v /'2, a'" '531 JMaraliaU lEqmtg Qlnllertton (Stft of IE. 3. maraljaU. 3I-ffi. 1. 1094 ■ORNELL UNIVERSITY LIBRARY 3 J924 084 260 748 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924084260748 THE TINHESSM MMUAL • * OF CHANCERY PLEADING AND PRACTICE BY . W. J. HICKS, OF KNOXVILLE, TENNESSEE, SECOND EDITION : ENLARGED, ANNOTATED AND REVISED, BY HARDIN P. FIGUERS, or THE A- H AOSr ID- BOOIC LAWYEES m CHANCERY PRACTICE. NASHVILLE, TENNESSEE. PRINTED BY MABSHALL 4 BEUCE, BOOK AND JOB PRINTERS. 1883. )5^-5V3y Entered according to act of Congress, in the year 1883, by HARDIN P. FIGUERS, in the office of the Librarian of Congress, at Washington, D. C. PREFACE TO SECOND EDITIO^^. It is not claimed for this book that it is free from fault in its arrangement ; or without error in its subject matter. It would be presumptuous to assert either proposition. So critics are invited to be silent. Cumbered with the burdens of an active practice, during the progress of the work, I can only say that I have done the best I could, under the circumstances. The only apology I offer for issuing this second edition is the fact that the entire first edition has been exhausted. This fact was sufficient to warrant the conclusion that the "Manual" was a useful and valuable book to the profession. The first edition was issued in 1870. Since that time, a dozen years of ' legislation, and thirty-six volumes of Tennessee State Eeports, have wrought many changes in our law, on the questions discussed in the work. I feel justified in the statement that the profession will find a vast improvement in the mechanical arrangement of the matter in the new, over the old edition. The addenda to the old edition was nearly as large as the original book — requiring two indexes, and their concomitant confusion. All that was valuable in the addenda has been condensed, and engrafted into this edition. In many instances where the law has been entirely changed, I have simply eliminated it from the text, and substituted the law as it now iB, instead. Where the law has simply been modified I have called attention to the fact in foot notes, citing the authorities. My effort has been to engraft into the book all that is useful and valuable to the profession under appropriate headings. I have added many new paragraphs to the text, which are indicated by the addition of a small italic letter after the number ; and my toot notes are nearly all new matter. HARDIN P. FIGUEES. Columbia, Tenn., May, 1883. . CHANCELLORS OF TEIM8SEE. H. C. SMITH, W. B. STALBY, W. M. BRADFORD, JOHN W. BURTON, W. G. CRAWLEY, GEORGE B. 8EAY, A. G. MERRITT, W. S. FLEMING, GEORGE H. NIXON, H. Y. LIVINGSTON, J. SOMBRS, w. w. McDowell, T. C. MUSE, First Division, Second Division, . Third Division, Fourth Division, Fifth I'ivision, Sixth Division Seventh Division, Eighth Division, Ninj^h Division, Tenth Division, Eleventh Division, Twelfth Division, Com. Law & Ch. Courl', Elizabeth ton. Kingston. Chattanooga. Murfreesboro. Smith ville. Gallatin. Nashville. Columbia. Lawrenceburg Brownsville. Dresden. Memphis. Jackson. CONTENTS. [The figures on ihs l&tt refer .to .he sections ; those on. the right to the pages.] CHAPTER I. OP INSTITUTING A SUIT IN CHANCERY 1. How the suit is commenced— — . 2 Icr, Jurisdiction as to the amount involved ,_ 3 2. Where to he brought ^ — — 4 2a. As to'what time suit may be brought 1 3. Who may institute the suit 7 4. Who may be sued: '.--' ! _ 11 4a. What kind of action may be brought-—-,- 12 5. When married women and infants should be made complainants, and when defendants . 12 6. General rule as to parties '- 13 1. Exceptions to the rule -, 1? 8. Rule as to residuary legatees 20 9. Trustees and beneficiaries 20 10. Parties by representation of interest 21 lOa. Rule as to parties incidentally connected with the relief sought 24 11. Parties having prior or subsequent liens or incumbrances 24 12. Parties to a bill to foreclose a mortgage , 25 13. Parties to a bill to redeem mortgaged property "_ 'il 13a. Parties where property is ' sought to be attached or sold, the legal and equitable title not being in the same party 29 14. Parties where there has been an assignment, pendente lite, of the sub- ject matter of the litigation 30 15. Where there is an assignment for the benefit of creditors 30 16. Where there are joint interests, claims or liabilities 31 17. Parties to billsfor the specific performance or recissiou of contracts for the sale of laihd -— 32 18. Parties to bills to Have the benefit of a cliarge on an estate, or to set it aside ' 33 18a. Parties where there has been an assignment of a chose in action 34 19. . Parties in cases of administration , 34 20. ,To bills seeking an account 38 21. For purposes of discovery — 39 22. To enforce vendor's lien; — -— : 40 23. In cases of agency ,- 42 24. Hus.bandand wife-- -— . l__-__, _—__.____._ . 4? 25. Clei of court— — 43 a VI • CONTENTS. 26. To a bill for subrogation .. . 44 21. To a bill for the removal of a trustee and appointment of a successor- 45 27a. Who are parties n 45 276. To a bill in the name of the State---;-: - ,; ^ 46 27c. To a bill to impeach a decree -— ' — 46 28. Effect of joining parties who have no. interest, or failing to join those who have, and when and how the opjection may be taken 46 29. Of the different kinds of bilis— J_— — — -L-— L— i.-'— ■-li_2-'i_J 48 30. Original bills praying relief——. 49 1. Original bills not praying relief 50 2. Of the ordinary bill for relief- - 50 3. Of the prayer of a bill— 51 34. Of multifariousness--—.! 1 J 52 35. Of scandal and impertinence in pleadings, affidavits or other proceed- ; ings— — _ --—.,— , 53 36. Time and manner of referring pleadings, for impertinence and scandal, 54 37. Bills of interpleader— -_-----.- — i. _ 55 38. Bills of discovery——-- ----—__ __- ^ _56 38a. Creditor's right to discovery in certain oases, ' .57 39. Of the form of a bill,—— — — . ^--_ — ,:.58 40. Of signing and swearing to. bills— . —.60 1. Signing them----- — ..__—. . ^, 60 ; 2. Swearing to them— — ^^_ . ^ i ; .60 3. Before whom———--— — _--___- -__ :__ 62 4. Form of theajffidavit--—- — —-, --^, , - ;— 62 41. Of bills praying an attachment, injunction or ne exeat, and form .'of. such bill and fiat ■ , i-i _— ; :— 62 42. Form of a bill for,a divorce — _^_, :__ 66 43. Form of a bill to have, an administrator appointed ; _., .6,6 44. Form of a bill to sell property of persons under, disabilities--- ^'— .67 45. Form of a bill to enforce wife's equity to a,,settlem,e.nt '■ -:-, .-^ .68 46. Form of a bill of interpleader . ----- 69 47. Of filing bills and executing bonds --.. - 70 48. Form of prosecution bond . ^ , 7l 49. Form of an attachment bond-- — . 71 oO. Injunction bonds ^ . -.^ 72 51. Form of a bond for an injunction to enjoin a money, demand after. judgment ^ . , .73 52. Form of bond when a suit at law is enjoined before judgment -^ 73 5.3. Of suing in forma pauperis — . •—- :— 73 CHAPTER n: PROCEEDINGS TO CAUSE THE DEPENDANT TO APPEAR AND TO : COMPEL HIM TO ANSWER, AND ISSUANCE AND SERVICE 0^ EXTRAORDINARY AS WELL AS ORDINARY PROCESS. ' 54. Issuance and form of subpoena to answer -" '.- 75 55. Form of an attachment —-ii-— ——'——: 7^ 55a. Lien of attachments ———--Z-— . — yg CON'TENTS. Vll 56. Form of an injunction to restrain the enforcement-of a judgment-— 78 57. Writ of Tie exeat . 79 58., Form of "the "writ---' — .-___.'.___„. _ .' 80 59. General directions as to form of writs of attachment, ne exeat and in- junction . '■ ---' 80 60. Of the service of process i— — — 81" -. 1. Service of subpoena to answer and injunctions — ..— , 81 2. Attachments —~ ^ — ;r-. ^- 81' 3. Service of garnishment : _,..„„_^ 82 4. Form of.gdrnishment'^— — ^ ; -—--.82; 5. Service oj ne exeat ~. ■ ' — . 83 6. Service of process on infants, lunatics,, corporations, and the agents of absent principal s and companies 84 7... Issuance and service of process on Sunday . — 85 61. Return of process—, ■--, — 86.' 62. In what cases personal service of -process is dispensed with 86 63. ■- -Of publication, in lieu of personal service of process 88' 64. Evidence of publication ; — — ^ 89; 65. Proceedings to compel an answer,.process of contempt 90' 66. Form of an attachment for contempt,^- 91 CHAPTER III. PROCEEDINGS IN DEFAULr OF AN AN'^WBR. 67. Of taking judgment ^ro confesso 92' 68. Effect of taking judgment pro confesso . 93 69. Effect of decree which is rendered without judgment pro confesso be- ing taken, against such of. the parties as do not. answer — -^_. — 95 70. Of setting aside the order pro confesso ,: -— ; 95; 71. Effect of final decrees, and setting aside final decrees, founded on judg- . ■ ments pro confesso, without personal service of process 96; l.-IrLattachmentcases — : — - — . — — 96' 2 In other than attachment cases 98 CHAPTER IV. APPEARANCE AND DEFENSE. . ; 72. Who (as respects the condition and character of "the defendant) must ■ make defense, and how- ' ■" — 102' 72a. Time within which appearance and defense'must be made 104| 73. Different modes of defense— i — — 107' 74. Time and order of making the different kinds of defejise-- — 109 74a. Objection for multifariousness, how taken ■ 112 75. Of demurrers ._—--- : — 113 75a. Some general principles concerning demurrers—- 116 W. What a demurrer admits—^ — -■ 119- 76a. Requisites as' to the-frame of- a -demurrer ^- : ■ . — — . —120' VlU CPNTENTS. 77. Forms of demu^rrers — ^.-i^^^. : _- 121. 1. General demurrers 121 2. Special demurrers-— — : 122 ■ 3. Demurrer coupled wiih answer 122 77a. Demarring either to the discovery or the relief, and answering as to the ~ other—— ^_-i_— ■___—_ :. 122 776. Demurrer to discovery on the ground that it will subject the defendant to a penalty ,--- — . 124 77c. Demurrer to a discovery on the ground that the defendant has an equal right with the plaintiff 126 lid. Demurrer to discovery on the ground that the matter is immaterial 126 77e. Demurrer to discovery of matters of professional confidence 126 77/ Demurrer to discovery because the defendant has no interest 127 11 ff. Demurrer to discovery for want of privity of title between the plaintiff and defendant 127 77A. Demurrer to discovery because it relates only to the defendant's case- -127 77i. Proper manner of taking objection to matters of discovery 128 77^'. Effect of allowing a demurrer : .i 129 77fc. Effect of overruling a demurrer 130 78. Of pleas in general 131 78a. The course of procedure on a plea— ^ 133 79. Setting down a plea for argument 134 79a. Allowing pleas and taking issue upon them 135 796. Ordering a plea to stand for answer , 136 79c. Overruling pleas _ 137 79d!. Amending pleas, and pleading de novo- 137 80. Of the different kinds of pleas '. ..: 137 80a. When pleas in abatement must be filed and verified 141 81. Plea of the statute of limitations 141 82. Plea of. the statute of frauds — 142 83. Plea of other statutes : 143 84. P,lea of former judgments 144 1. In cases of exclusive legal cognizance 144 2. In cases of concurrent jurisdiction 145 3. In cases of exclusive equitable cognizance 146 85. Plea of a former decree in equity 147 86. Plea of a release 148 87. Pleas of stated accounts and settled accounts 150 88. Plea of an award , 152 89. Plea of innocent purchaser 152 1. Generally 152 1. What necessary to he averred 153 3. Different kinds of notice — 90. Plea of title in the defendant , 15'^ 91. Length of time and adverse possession ISJ CONTENTS. ix 92. Forms of pleas -- — .i.i.l^_ll_^i'^__l__v.': 158 1. Ple^a of another suit pending -__—_,___ 158 2. Plea of infancy, to a hill exhibited without aprochein ami-158 3.- Plea of coverture of the complainant- ---J--- -.: ^'_lS8 4. Plea of the statute of frauds -_-_-^_' -^ ■ ^158 5. Plea of i/nnocent purchaser 1 160 93. Of swearing to pleas -__'_-!^_j_ ■. >__! 160 " 94. Of motions to dismiss- _.;_■_.!. i 163 95. Motions to dismiss for causes arising subsequently to filing the bill— -1B3 "96. Motion to dismiss by the plaintiff, or by consent - - i-165 96a!. Of motions to dismiss generally-^: „_: :' _166 9Yi Of defense by answer : .^ 167 98. Nature and substance of an answer '- _: 167 99. What matters must be answered '.-■- ■ ' l168 100. At what time an answer may be filed ^ -_ 173 101. Forms of answers — - — .—'-:-_' _^ ,^: :_ ; ;173 102. Titles, commencements and forms of answers in particular cases ^174 1. By an infant : : :._ 174 2.' Where the bill misstates the names of defendants 174 3. Bj/ a lunatic, or idiot — : _175 ' 103. New practice as to titles and commencements - 175 104. Of signing and swearing to answer ^ 175 104a. Obtaining order to file an answer without oath or signature 177 1046. Taking answers of foreigners, deaf mutes and blind persons-- :178 105. Filing the answer and notice——-— 178 ' 106. Exceptions to answers—--- ;: 1 1 1 178 106a. Exceptions to answers generally : - .- ;181 1066. Amendment of exceptions to an answer-— -_i- :182 107. Form of exceptions , 182 107a. General information on the. subject of answers 183 108. Piling answer as a cross bill---^ — -— — 1. 184 109. Cross bills — their.nature and use— :'^-,-j— 185 109ai. Of cross bills generally , 188 110. Proper time to bring a cross bill-i — ■ 1 ". 189 111. Form of a crossbill— ^i -1— ... 191 112. Form of a cross bill in the nature of a plea puis darrien continuance-191 113. Of staying the proceedings and hearing the cause 192 CHAPTER V. , . ;, OF THE AMENDMENT OF PLEADINGS. 1 114. Amendment of pleadings in general-—----! . 193 115. Of amending bills— -1 — i-— '— 194 , . 1. English practice — ^ '- -194 2. Practice in Tennessee— - — !— — — _196 1J6. Amending bill where t^e plaintiff is a minor- 198 \li6o. "Of amending bills--:-— '— -;_— ^ , 198 1166. Bond and process upon filing an amended bill— ^ — , 1199 117." Fbrm'of an amended; bill-i:——-,-— --11— '—--——■-'— —l—,—l20P 118. Amendment of demurrers, pleas aiid answers — J-J.— ' ' —200 X CONTENTS. _ . . CHAPTER VI. . r ■ OP SUPPLEMENTAL BILLS A^fD BILLS OP REVIVOR. 119. Of supplemental bills and bills of revivor generally 203 120. Of supplemental bills to supply defects in the frame or structure of original bills 206 121. Supplemental, bill to bring before the court matters occurring after the filing of the bill , -—-— r208 121a. Bringing new matter before the court by supplemental bill 208 1216. Supplemental bill to supply new parties — -209 122. Supplemental bills by defendants ., ■ 209 123. Supplemental bill after decree :-- -2G9 12^. Of the frame of a supplemental bill, and the hearing -210 126. Form of supplemental bill where the defendant has become a bank- ' rupt— ' — ,-— _211 126. Original bill in the nature of a supplemental bill — , — -212 127. Frame and nature of an original bill in the nature of a supplemental bill— — ^— -rr T-T- ,— — _2U 128. Bills of revivor -— - ^ 214 129. In what cases a revivor is necessary and proper — 215 130. By and against whom suits may be revived 216 131. Frame of a bill of revivor , , _ . 217 132. Form of a bill of revivor against the heir.s of a deceased n)()rtgagpr--218 133. Original bill in the nature oi a bill of revivor — 219 134. Diiference between a bill in the na-ture of a bill of revivor and a bill in the nature of a suppleniental bill— , -, 220 135. Frame of a bill in the nature of a bill of revivor 221 136. Bills of revivor and supplement 221 CHAPTER Vn. ' ■ EVIDENCE -IN CHANCJiRY. . 137." "Rules of evidence and method of obtaining and taking it in general — 224 138. Amount of evidence requirediu support of a bill. when denied by an- [ swer -— 1--- : — 1-- — ; -225 138a. What facts are in issue- * 1226 1386. The'answer as evidence : :227 138c. Effect of an order pro con^essp , 228 139. Sources of evidence ; , 228 MO. Things of which judicial notice will betaken 229 141." ■ Different kinds of presumptive evidence :- J 231 142. Conclusive presumption-l-lli: _;i_l- — 1 — _ 231 , 143. "Disputa;ble presuhiptibns of law --__:__. 233 144. Presumptions of fact --— 1- — , 233 145. Admission of parties in their pleadings and agreements generally — -237 146. "Admissioris in the bill .— -— : 1 . 237 147. " Admiss'i6iis^i"n the answer — l _ -23? 148. Admissions by agreement of the parties ,237 CONTENTS. XI 149. - When docuraentsin the possession of aparty will be ordered to be pro"-' ' * AaveA--- — -—-—^—-- ;_._-—___ _— _ 239 150: ProdactioTi of doBtiments in" the possession of t>ersOns not fiarties to - -suit—--—------:-—— — :-————: .—-24} 161; - Proof of documents produced on notice-: -241 152. Effect of an order-to produce— --. 1242 153. Proof of exhibits and other documents generally 242 154. I/egislative proceeSings. Journals^- : --24S 155. Statutes, resolutions andorders ' : 243 156. Executive acts--i. i-..-^- — _; — j - -244 157. Documents in offices of heads of departments- -: 245 158. Copies of printed books in the State Library 245 159. Judicial records ;--!-_ : — .i.— 245 r. ■,,; : '. 1.- Of this State-— -^ — — l-,— :..--.;-_^ 245 2. Of sister States and the IJnited States 245 3. Of for eign countries - 246 .1,601 Proceedings before justices of the peace 246 161. OCBce papers and iecords- — . 247 162. Registered writings--^ — 248 162a. Recitals in a deed. : : . 249 1626! A receipt as eviden'ce-11 1— 250 .16S. 'Settlements of guardian^ and personal representatives 250 164. Certificate of a' notary public -, 1 250 165. Corporation bbolss : ^ 250 166." Accounts from another State or county— . 251 167. Book accounts :__ _-— _— __ 1251 168. Time of filing docanieutary.evidenceT: 251 169. Inspectionln aid of proof ^ 252 1,70. When necessary to have order and commission to take deposition 252 171. Wheh'depdsitidhs may be taken — —11 ^253 Ij Before suit is, brovght-^-. , : 253 2, After suites, brought but before issue 254 5. After issue joined- —r — -— 254 172. Depositions of parties to the suit — -i— „ l . 255 173. -Taking depositions upon notice arid' by consent 2p6 \. Necessity of notice * . ^ - 256 _2._Length of notice r- 256 - .; , 3;, , Form and requisites of notice ,__ ^— „ '. 257 4. Service of notice—- — 257 5. Upon whom to besfrved 257 6. Notice-in case of nonresident parties 257 17^. Taking depositions u^on interrogatories — ^ 258 175. By whom depositions may be taken 2gl ■176.- -Form of commission to take depositions-ll: i -2gJ. ■177.- - -How- attendance of witnesses' procttred'---'— — — . 1 .262 '■ 78-.- -The exaiiiiliationi--l--ll—-__— I— 1—_— _—-—-' — -— — -lieS Xll CONTENTS. 179. Form^andautli^nticaitioji,, of depositions- — ._...____-.-.-.-.—_-,_-, — -264 ' ■ ■ '■' i.' The caption------ 1 —---.L--1-'--- '_ — 1-264 2. The body of the deposUion ~- . — '-—; — -264 ^ . ■ 3. The'ceriificaie.'—— : --264 180. Enveloping and transmitting depositions— ^ r ■:?6'< 181. Filing and opening '. '. — ■ 266 182. Exceptions 1o" depositions — — -r,--- --: — i — •—. — --'---^S^ l82a. E^ecto'f allowing exceptions to depositions by tlie master— — - — -269 183. Retaking depositions ■-r-.- : — :---• : — "^ — '^ 184. Depositioiis talten in anottier cause — --, — :^- — -270 185. Reading depositions in evidence — — ,-, •----,---- — -271 CHAPTER Vni. ..; '■■'■- -! INTERLOCUTORY APPLICA-TIONS AND ORDERS, AT CHAMBERS. '■. (SEE CHAPTER 10, POST.") 186. Orders and decrees necessary to prepare a case for bearing, or to carry into effect any decree or order '—'1' — ^1-1.—---; 273 187. - Regalating .the master's proceedings —-'- —- — —_'---.— -274 188.! Rednoing or discharging levy made, or bond taken, under' extraordi- ' " Jiary process--r — : — '-, ^_— '_■'__„ -...274 189. Appointing receivers __j1-— _■--'-' 1 — .'_ — -275 190. In whatcases'a receiver willbe' appointed------- — — -*- ,27T 190a. In what- cases a receiver- will be appointed ' -^^ 191. Who may be a reoei-ver -_-- '-'--■- ^-282 192. Time and mode of making the application, and the appointment of. a receiver -— ;-'- ^--—--283 193. Effect and consequences of the appointment-—- — ;-285 194. Powers and duties of a receiver -ill — '.——. l-_-J__.- ^^288 195. Liabilities of receivers------ 1-: ;--l-i— ■— — i-— J— 1-— — --12!91 195fl!. Compensation of receivers- — "_'■...'-- - — i- — : -292 196. Appointment of adrainistrators-.-r-v'-*,--!----.^- '—- — . 292 197. Dissolving or modifying injunctions i-; — :^-^^i_- — 293 198. Appointment' of commissioners to take , apco.unts, and persons to serve process -_ -— --_--^- — ;-293 199. 'Granting writs of habeas corpus '-'-____-l„_ — .-_ 294 200. ■ Granting extraordinary process--! -— — 294 ■ ;2.01. Notice of motion for interlocutory order- — Lu-^-'LLii':,--.-S 295 -202. Form of the notice :—_—_- -j ,— u-:-_--— — . 296 .203. Jurisdiction pfthe Supreme Court to Supersede iuterlocutoi^ Orders— 296 , CHAPTER IX. ;; PROCEEDINGS IN TEtl? MASTER'S OFFfCS' IN THE PREPARATION OP A CASE FOR flEARING. •';."■ "'"■,';' '"' 204. Rule'day and rule docket^ :--,- — - — -— — --^7-1--— J -2,98 '203. Mem'ofahdum'book— 1— ■-,— l-------- -..-- -'_^^ _299 ^06. Book in which to note the taking and filing of depositions—----^ ^^-299 CONTENTS. XUl 206(»; Duty of the clerk and master to report the' amount of mone^ in his ^ - -ofiftce -.- : — i- :■- J ^^1-299 207. ■ Entering suggestion and proof of death, and issuing process to revive in cases of-abatement by death or marriage- -li." 300 20Ya. What suits rnay be revived--— ».-'j---—---'--.i-- : 301 208. When, h«w and by whom a suit maybe Tevived - 302 209. - Form of a scire facias to r«vive--^^---— ,^ 303 210. Defense to the application to revive ' •■ 304 211. Master may make orders for publication-' 304 212. Setting a cause for hearing- ^_i__.._ ',- 304 212o. Where a demurrer or plea is set down for argument - '■ 307 213., , Other orders that may be made in the clerk and master's office 308 1. Making and setting aside orders pi'i) confesso - 308 ' ' J, 2.. Appointing gy,afdianS ad litem --^_ 308 3. Orders for taking depositions S-—- , 308 4. Opening causes for proof —- ----- . 308 5. Other acts authorized hy law ! 308 .6. Extending time in which to answer-: ^ - — -308 1. Rule on plaintiff' to take step in the cause— 308 8. Appointment of special commissioners-— ---- — 1308 9. Order upon non-resident parties to answer interrogatories— liiO 10. Power of the clerk and master to take depositions and adi- minister oaths :-!--•-, — 310 11. To take probate of the attendance of witnesses—'—--- 311 - ,,': 12. To appoint a deputy "— — :;- l — 311 / .13. To perform tht functions of a master in chancery 311 14. To issue process,: hear exceptions; etc—--'- ^ '^ 311 " 15. To adjourn court in the absence of the chancellor — 311 213a.- Appointment of guardians ad litem—— ; U —311 214. Notices to -be given by the clerk and master of'proee'edings in his office-312 CHAPTER X. ... INTERLOCUTORY APPLTCATlONS I'ifCOtJET. (SEE 'THE LAST TWO PKECEDING CHAPTERS.) 215. General nature of interlocutory applications, and manner of making 216,; When a petition is necessary andproperi— .---ij^,- ---^^r '■" '^^^ 216a. In what cases a stranger _ will be; permitted to become a party by ,L - _ .,- petition , , .-.--:_,->:,— .;.;,^^—,i._\-._ ■.—l, — :319 2166. How a stranger may apply Jo .be.made a party to a suit 320 217. Form of a petition-'--'-l— "— -'— I'-ri'jl '__: 321 218. ..-Signing and sweairing topetitions- X--— - --r_:ii:;lL 322 219,, N-o projjess or issue upon interlocutory applications — -- - 322 '220..- Of motions— •---—— —L-'-'-i ■—^—jy:sj-l..l'2—Jl——L- —323 .220.a, Repeating a motion— ---.--■-r-'siL^.ji—-:.-. j — '_-i;i-.:.__l . 323 221.,, Motion fo'r injunction 'against parties' already before the court without , i;:. -■-.:..■ filing-a bill: for that spedifie purpose-— ----■^■---:-—i-.;i-il 324 XIV * CONTENTiS. 222., Motion for injunction against persons, who are ^ot parties to th^ suit--32p 222a. Injunctions in favor of or against persons not parties to a suit 328 223. In what pases an injunction will be granted ~- — 32^ 1. Generally— ,—.-^^^^--^~- -__ 329 r la. To stay sale of real estate mortgaged for the payment of loaned money—, ^ ^ — 330 2. Tostay legal proceedings-^ . 331 3. To stay proceedings iii a foreign court , — -331 4. To stay proceedings in a Federal court, or court of a sister ; State of the United States ---— ■ :-' 332 , ^ 5. Not granted to stay proceedings in a court of chancery, or of court exercising chancery powers conferred by statute/A36 6. Not to compel performance of an act ,---,- 337 7. Not granted to restrain a party from selling land: without disclosing the existence of a vendor^s lein — - — — ; 339 8. Not granted to stay proceedings in a criminal matter 339 9. Successive applications for an injunction, — ,- 339 224. Effect of an injunction . .,--- 341 225. At what time an injunction takes effect ^ 1 343 226. Effect in releasing errors^, — ^^ — . ^-r,— - •■ '^^4 ,227. . Effect of a transfer of the case to the U, S. Circait Court — , 345 228. Motion to discharge, or to.dissqlve an injunction generally---- 345 229. Motion to dissolve before answer---------, ' 347 230. Motion to dissolve upon answer generally — -— - — 348 231,. Motion to dissolve upon answer where answer under oath is waived, and upon answer of a. corporation —: ,i, 353 232. Motion to dissolve where only a part of the defendants have answered-353 23.3. Effect of a dissolution— ——,—,, ___-355 234. Effect of an appeal upon the dissolution of an injunction ^—., 35^ 235. Reviving, injunctions-; „ .-- _<— -35,6 236. Injunction bonds, and judgments thereon, upon a dissolution of the injunctions . 357 237. Refunding bonds .,„-— :_: __---__359 238. Violations of inj unctions . =._; 360 239. Remedy lor violation of an injunction 361 240. Proceedure by attachment forcontempt — - 361 241. Motion to require a- plaintiff to elect between remedies ^363 242. Gases of special election : 364' 243. Time and manner of procuring, and effect of the ordinary order to elect-^— _^-^— .- 365 244. Fornas of interlocutory orders 366 ' ' ■' •- ■ (-See section 253, post.) 1. Order pro confesso — ..-,—. SQg 2. Order setting aside. order pro confesso-, . 367 3. Order appointing a guardian ad litem for minors 367 4. Order appointing an administrator---^ ..- 367 ,,, ,5, Order dissolving an injunction, and form oj refunding bond 368 6. Or'der granting l^ave. to amend a, bill — .:._-- . 369 CpNillBNTS, I XV V .T. Order granting leave to a stranger to become ajparty to a $uit-Z^9 8. Suggestion of death, and order for a, scire facias to issue -3'/0 9. Order abating a suit -, :- S'i'O 10. Order of revivor- — — ■- r 3Y0 11. Order appointing a receiver ^ 371 12. Order of publication for creditors to file their claims- 372 CHAPTER XL MANNER AND ORDER OP' DOING BUSINESS IN COURT; HEAR- ING CAUSES, MAKING DECRETAL ORDERS, AND RENDERING INTERLOCUTORY DECfiEES. 245. Reading the minutes and calling the roll of counsel for motions 374 246. Order pf hearing causes — — — - — ,37^ 247. Manner of hearing causes : -374 248. Reading and declining to read depositions '-- , 376 2419. What is a part 61 the record without a bill of exceptions, and what is not - 376 250. General nature of decrees, and distinction between interlocutory and final decrees -: ■—j.:--^--.-- _: 378 251. Decree or order of reference. When necessary p,nd proper 379 251a. Reference for the protection of parties absent .and those under disar , , bility 1 — ___j.:l 1_____1_11. __386 '2516. Reference to siipply defects in evidence —^ — - — --- — : -381 252. Nature and form of interlocutory decrees and decretal orders in gen- eral- ^_i:____:_^ — _ 1^382 253. Forms of decretal orders 1 — -'-- — 383 1.' Order for an account of the assif.i and •lidbilitieS of an estate -— 'J__^ :._—._' 1 l- '383 2. Reference as to propriety of selling real estate of persons under disability- — — ' — --- — ^1 : — -384 254r Report of the master upon a decretal order _ — --- — _ 385 255. Form of report upon a decretal order directing an account of the as-' sets and liabilities of an estate — - — 385 256. Foi-m of report upon reference as to propriety of selling real estate of ' persons under disability ;- -—- 386 257. Forms of interlocutory decrees ^^— _.._387 1. Confirming report of the master and ordering sale of land to pay liabilities of an estate •-'-- ! — -'- 387 - -2. Ordering sale of land of person under disability--- 387 3. Decree for account in favor of legatee agdiiist executor — -388 4. Decree for a general account between parties 388 5. Decree for account upon, and declaration of lien for note for specifie articles— -i — , — .^-—.—l-i 389 6. Account upon the recissipn of a contract fur the sale of real estate — - — -1 — , , 389 7. Decree for debt, and sale of land attached, in bar of the right of redemption — --. , 391 8. Decree for partition of lands ; , 3S?2 9. iiejerence as to necessity of sale/ for partition ,382 XVI CONT'ENTS. 258'. Pact's '> ii'doe'sSarly-' to ippfe'ir- 'to authorize' a decree for the sale of ■prb'p'ferty— :i: -^.\.l ' __... rJ-L-L : 393 1. In ease of n sale ~to satisfy a' debt'---- ^- 393 2. In course of administration where the personal assets have been exhausted ll-i-- — : z.'___^__-___ 393 3. In the adminis'trdtion of insolvent estates ---_-'-- — -■ 394 4. In case of sale for partition 3i|5 5. Sale of properly of persons under disability. 395 ' CHAiPTER Xli. , •r ISSUES OF FACT AND TRIAJL BY JURY. . 259. Provisions of the Code— i .l.'::i_„._--___-_- 398 '260. Fortder practice : ---—-■:i-l--—l- — l-J ^^399 ' 261. Effect of the verdict— -———'— —_:'-'-V— :_...______..____.. _:40O . , qiJAPtEE XIII. PEOCBBDINGS IN THE MASTER'S OFFICE UPON INTERLOCUTORY ^ , .... - .DEGREES. , • ,.,;. (AS TO WHEN A EEFERENCE IS NESeSSARY AND PROPER, SEE ANTE SEC. 251.) 262. Master to execute orders of ;-efer9nce without delay-^_„,— - 402 263. To assign day and place fpr taking account, and give notice to parties-402 264. Service of the notice 403 265. Adjournment of matter of reference— ----^---^-,---.,---._-.-^_ ..403 266. Opening tjie i;eference— -,-,---. — .--—--^ -_-___^.-__ 403 2.6'7. Examination of the matter wliere the parties do not attend 403 268. Re-examination of witnesses on r^ference-T ,-, .-- , 404 269. Examination of parties before the master---- _, 404 2t0. Failure of the master to comply with orde.r of^ reference-. .-. 404 271. Master must conform to the decree of reference- , ,- 405 ,.2,7ia. Duties of parties-'-'----— -l--—--^l----'l---—..— __,- 1405 272. , Duties of the clerk and master in regard to receiving and paying out ,. money- —-—---—-'———----_--—_———_ ^^-405 1.' Generally -__ _ — _- — --------^ 405 2. Proceeds' of property of married 'women--^- ^--, 1 406 3. of infants and. infant feniis coverf. — ^^- 407 4.^ Of persons, of unsoufid mind.---.-. — .- .-407 273. |iie-§aIe',of property by.the, niaster-,-v — — — _ 407 ;, \ ; ;. ;;.^^ CHAPTER XIV. ./: REPORT OF THE MASTER. AND PROCEEDINGS THEREON. 274.- Makiii'g the report, and filing and'hearirig' exceptions thereto 408 274a. What the master's report should contain--- — ---_—- 409 274&. To what 'teffn report niust be rnade---— -— ' — 410 ■275. Form of report of sale L_'Lil----'--Ll'--i — 1-_; 410 276. Form of reports in cases of account— -i--'_-_r^—-_: i 410 277. ' Form of exceptioiis tb'a report-i--'—i -'-'-'— -i-— -'---^-'-- — 412 CONTJJNTS,. ^ , xyu 278,,, Form of a decree allowing some, exceptions and disallowing otliers---412 27-8o, Object of the reference ^--. — — -^ 413 27-9,, Form of separate order on arguing exceptionSr-- — . — -. 414 280. Form of decree confirming report of sale and divesting and vesting , . title . ^_„_-— -, : .Ll.:..-__ . 414 280a, Proper decree upon confirmation of report of sale, — • 415 281., Effect of sale before confirmation -_ — ; -415 282. Effect of confirmation— — r— ^—.--7---, --422 283. Opening the biddings before confirmation -^ \ 422 283o. Opening the biddings after cofirmation — . 422 284. Mode of applying to set aside the sale and open the biddings —423 . 285'. Mode by which the purchaser may apply to have the sale set aside — 424 286. Form of proposition to advance the bid, and petition to open the , biddings ; — - — ■. -v-r — 425 287. Form of decree opening the biddings , 426 CHAPTEKXV; FINAL DECREES AND THEIR EXECUTION. (AS TO DECREES UPON INJUCTION AND REFUNDING BONDS, SEE SECl'lONS 23S- 237, ANTE.) 288. Further hearing of a cause after the rendition of one or more interloc- utory decrees -—429, 289. Reciting facts in decrees -' 430 290. Decrees where property is to be sold, or title thereto is to be trans- ferred, or a release or acquittance executed 430 291. Decree upon prosecution, attachment, replevy and delivery bonds — r-432 292. Decree for sale of pioperty free from right of redemption—^- 433 293. Decree must follow pleadings and uroof, and cannot be had on proof alone — 434 294. Granting relief beyond the prayer '. 434 295. ReHef between co-defendants . 435 296. Forms of final decrees — — 435 1. Generally— — --.- — 435 2. Form of decree for a divorce 436 3. Decree as to application of a fund 436 4r 'Decree for specific performance 436 297. Rectifying decrees 437 298. Entering decrees nunc pro tunc-— 438 299. Reviving decrees 440 300. Lieu of decrees .. — -^--. ,— — -, — ^ 441 301. Lien for purchase money of land sold by decree of chancery 442 302. Enforcing decrees — — — 442 1. By process of contempt , ^—442 2. By sequestration _ 444 3. Other modes of execution 444 302a. Putting a puFchaser into possession-'—- 445, x:viu c6NT'Ei!rars. '303. Forms of process for the execution of decrees— '- ^445 1. Fi. fd. or common execution . -— — 445 2. Wrii of possession — '. : : - ^--446 3. . Writ enjoining a party to per form a decree 446 4. Distringas against' a corporation----- —'_'—--" 447 5. Writ of sequestration ". '-448 304. Powers and duties oT sequestrators '— '■ '449 305. Effect of a sequestration . --' — '- — '.' .--. 451 306. Manner in wHcH parties claiming, 'by title paramount, the property seized, must apply for redress- 451 307. Abatement and revivor in cases in which there is a sequestration 453 308. Manner of executing final processss i : 454 309. Costs in chancery _1„1 1 ^-453 310. Decrees on notes given foVpiirchase money- - 459 311. Form of a decree iipori notes given for purchase money, and for sale of land without barring the right of redemption 460 312. Equities arising against a purchaser, or between purchasers, after the sale -— '—- 461 CHAPTER XVI. MISCELLANEOUS MATTERS. 314. Punishment for contempts 462 315. Rules of practice , 464 316. Incompetency of chancellors —-'465 317. Interchange , 467 318. Special chancellors--- _ '467 319. Special terms of court . ; . 468 320. Effect of a decree by a court de facto-- 469 321. Doctrine of lis pendens .---t r ^'^1 322. Docrine of laches r,— 472 323. Appropriation of payments . 474 1. Generally 474 2. In cases of 'running accounts between parties 477 " ' 3. Eurinirig accounts with a firm before and after a change of members- — — : ' 478 323a. Consolidation 1-^-1 . — 479 CHAPTER XyH. , PROCEEDINGS FOR THE CORRECTION OF ERRORS. 324. Different modes of correcting errors---——- 4,83 325. "What releases errors — 483 326. "What forms a part of the record -. , 483 327. In what cases a writ of error coram nobis ligs 483 328- How and when it is to be obtained ' 434 329. " 'When the ""order granting' it will operate as a'stipersedeas -li-i-^S; CO'NtfiNTS. xix 330; ■ DiscBargiug the supersedeas _!;----■ — l----'. 'i' — _ ._^i__: 485 331. ■ Notieeof suing out the ■writ— ---■-_-_--_-— _-—-_..-_^ ■ 485 332. Power of the court to prescribe rules in proceedings upon error nuram nobis :^_-^_.-J ____-^ -__j 486 333. Assignment of errors and issue thereon-; ^ -486 334.- D.ecree upon-writ of error -coram nobis '--' : -i — .^—--1— 48t 335. -Form and requisites of the petition, order and' notice in proceedings in error coram nobis ■-■ '--'--- 488 1. The petition — — ,--- 488 -■ • 2.- The order : ' . 3. Th€ noticed __: — 489 336. ' Causes for which a' rehearing will be" granted — 489 33Y. What decrees and' orders maybe reheard , ^ .491 338; " Time of applying for a rebearing ^^494 339. ' Form aiid requisites of a petition for "a rehearing '-495 340. 'Nature and'objects of a bilj of reView 1. .'496 341. What matters are grounds for a bill of review _ .'49'7 1. Generally- — . 497 2. For error apparent on fhe-Jace of the decree 498 3. On account of new matter . . 499 4. On account of new proof 499 342. Atwhattimea bill of review may be-br-Ought — ,^ , ,500 343. What decrees may be reviewed - — - :- , 500 344. Joinder of matters of error apparent and new matter : 503 345. Effect of a demurrer to a. liill of review \ ^— , 503 346. Leave of court to file the- bill ■■ — 504 1. When necessary .. :-- J 504 2. Sow obtained , ^ 504 3.- Discretionary power of the court in granting or withholding lease ■-- — _.— i- _ — _--^506 347. Who maybring abill oiT:&vi^^--Z— --— — ---'---— — -506 348. Who should be made defendants to a bill of review 506 349. In what court to be filed— -..,v-r-— 50T 350. Frame of a bill of review — -_——-—_ 507 350a. Second bill of review ^— -^ .-----i— -i..-.^--'-^-— ^Ji_— -__-508 3506. Defense to a bill of review 508 351. Original bill impeaching a decree for fraud 509 352 Frame of a bill to set aside a decree for fraud 510 353. Supersedeas of interlocutory decrees 510 354. Certiorari 513 355. "Who may takean appeal 514 356. Execution of appeal bond, or taking the pauper oath as a substitute-&14 357. Form of an appeal bond 516 35S. What decrees may beappealed from 516 359. Effect of an appeal 517 1. In anvAiUing the decree, and transferring the case to the Supreme Court 517 XX CONTENTS; /; 2. Fromadecreedismissingapetiiionfor awrit of erxor coram nobis '^ ^518 ■ 3. From a decree upon a cross hill Li___i^-____5i9 4. From, proceedings had at a term subsequent to the rendition of the final decree : — - 'J 51 ' 360. Transcript of the record ^ 1 __.;_ .'..-520 361. Requisites of the transcript ■ '_— , :;__^--__520 1. Mechanical execution _-520 2. Order of entering the proceedings in the transcript 521 3. What the transcript must contain . 521 4. Form of the transcript ! 524 362. Practice where the appellantfailstQ, prosecute his appeal 527 363. Effect of an abatement after appeal taken 528 364. Effect of voluntary dismissal of an appeal -. 528 365. Exceptions to depositions--. ,-— 528 366. When the case is heard in the Supreme Court !528 367. How the case is heard in the Supreme Court - , !529 868. What Isind of decree may be rendered by the Supreme Court 1529 3B8a. Remanding cause for further proof 530 369. When an appeal in the nature of a writ of error lies . 5.?0 370. Effect of an appeal in the nature of a writ of error, and of an abate- ment or dismissal thereof- 531 371. Writ of error — _-- : 531 1. When it lies — : — '. 53I 2. How obtained ' ._ 532 3. Within what time applied for :_! 532 4. Notice of the application, and issuance of the writ 532 5. The bond, and the proceedings in the appellate court- 533 6. Effect of a writ of error ,— . 534 372. Effect of reversal upon a writ of error 534 373. Difference in effect of an apeal in -the nature of a writ of error, and a writ of error, ; , , 534 CHAPTER XVIII. Rales of practice of the chancery courts—-- 536 CHAPTER I OF INSTITUTING A SUIT IN CHANCERY. 1. How the suit is commenced. la. Jurisdiction as to the amount involved. 2. Where to be brought. 2a. As to i^hat tittie suit may be brought. 3. Wlio may institute the suit. 4. Who may be sued. 4a. What kind of actions m^ay be brotight. 5. When married women and infants should be made complainants, and when defendants. 6. General rule as to parties. 7. Exceptions to the rule. 8. Rule as to residuary legatees. 9. Trustees and beneficiaries. 10. Parties by representation of interest. 10a. Rule as to parties incidentally connected with the relief sought. 11. Parties having prior or subsequent liens or incumbrances. 12. Parties to a bill to foreclose a mortgage. 13. Parties to a bill to redeem mortgaged property. 13a. Parties where property is sought to be attached or sold, the legal and equitable title not being in the same party. 14. Parties where there has been an assignment, pendente Hie, of the subject matter of the litigation. 15. Where there is an assignment for the benefit of creditors. 16. Where there are joint interests, claims or liabilities. 17. Parties to bills for the specific performance or recission of contracts for the sale of land. 18. Parties to bills to have the benefit of a charge on an estate, or to set it aside. 18a. Parties where there has been an assignment of a chose in action. 19. Parties in cases of administration. 20. To bills seeking an account. 21. For purposes of discovery. 22. To enforce vendor's lien. 23. In cases of ageucj^ 24. Husband and wife. 25. Clerk of court. 26. To a bill for subrogation. 27. To a bill for the removal of a trustee and appointment of a successor, 27a. Who^are parties. 1 2 MANUAl OF CHANCERY PllACTICE. 276. To a bill in the name of the State. 27c. To a bill to impeach a decree. 28. Eifect of joining parties who have no interest, or failing to join those ■who have, and when and how the objection may be taken. 29. Of the different kinds of bills. 30. Original bills praying relief 31. Original bills not praying relief 32. Of the ordinary bill for relief 33. Of the prayer of a bill. 34. Of multifariou.sness. 35. Of scandal and impertinence in pleadings, affidavits or other proceed- ings. 36. Time and manner of referring pleadings for impertinence and scandal. 37. Bills of interpleader. 38. Bills of discovery. 38(8. Creditor's right to discovery in certain cases. 39. Of the form of a bill. 40. Of signing and swearing to bills. 1. Signing ihem. 2. Swearing to them. 3. Before whom. 4. Form of the affidavit. 41. Of bills praying an attachment, injunction orne-exeai, and form of such bill and fiat. 42. Form of a bill for a divorce. 43. Form of a bill to have an administrator appointed. 44. Form of a bill to sell property of persons under disabilities. 45. Form of a bill to enforce wife's equity to a settlement. 4(i. Form of a bill of interpleader. ' 47. Of filing bills and executing bonds. 48. Form of prosecution bond. 49. Form of an attachment bond. 50. Injunction bonds. 51. Form of a bond for an injunction to enjoin a money demand afler judg- ment. 52. Form of bond when a suit at law is enjoined before judgment. 53. Of suing in forma pauperis. 1. How the Suit is commenced. A suit in Chancery is commenced by a bill or petition, addressed to tlie Chancellor of the Division in which it is filed, or by motion in open court, where that mode of procedure is allowed by law.' A Regular bill is frequently, called a Petition, especially when it. is an application for Dower, for Partition, for the sale of Real Estate, or for a Divorce. iCode, 4312. MANUAL OF CIIANCEEY PRACTICE. 3 The distinction between a bill and a petition, as an original proceeding, is this : A bill is a proceeding, inter ^ partes, in which there are parties complainant and defendant; but a petition (when resorted to as an original proceeding), is an ex -parte proceeding. Petitions are now seldom used as original proceedings. They are mostly used in interlocutory applications pending the suit. Proceedings by motion in Chancery are also, usually, if not always, either interlocutory applications in some pending suit, or motions based on some proceeding which has been had in the court. Thus, a motion against a purchaser of pro- perty sold under decree of Chancery is always an interlocu- tory application in the suit in which the decree of sale has been rendered. After the court has divested itself of all control over the original cause and parties, no such motion will ■ be enter-' tained.^ Motions against sheriffs and their sureties for failure to execute or return process, or to pay over money collected thereon, are based on proceedings which have been had in the, court. So are motions against the clerk and master or a special commissioner, for failure to pay over money to the parties entitled. la. Jurisdiction as to the Amount involved. Courts ot Chancery have exclusive original jurisdiction of all cases ot an equitable nature, where the debt or demand exceeds fifty dollars, unless otherwise provided by the Code.^ They have no jurisdiction of any debt or demand of less value than fifty dollars.' They have exclusive jurisdiction to aid a creditor by judg- ment or decree, to subject the property of the defendant which cannot be reached by execution, to the satisfaction of the judgment or decree.* ^Nor will a petition be entertained. Planters' Bank v. Fowlkea, 4 Sneed, 464 ; Vanbibber v. Sawyers, 10 Hum., 82. ^Code, 4280. • ^Code, 4281. *Code, 4282. Wliile sections 4280, 4281, construed together, restrict the 4 MANUAL OF CHANCBEY PRACTICE. 2. Where to be brought. The Court of. Chancery acts ordinarily in jpersonam, and suit may be instituted wherever the defendant or any material defendant is found, unless other- wise prescribed .by law.^ But where the plaintiff and defendant, at the time the suit is brought, both reside in the same county, the suit must be brought in that county. If brought in another county it is ground for a plea in abatement.^ " The local jurisdiction of the Court of Chancery is, also, subject to the following rules : (1.) The bill may be filed in the Chancery district in which the defendant or a material defendant resides ; and if, npon inquiry at his residence, he is not to be found, he may be pi'oceeded against by publication or judicial attachment. (2.) Bills seeking to divest or clear up the title to land, or to enforce the specific execution of contracts relating to realty, original jurisdiction of our Chancery Courts to debts and demands of fifty dol- lars and upwards, section 4282 vests them with exclusive auxiliary jurisdiction to aid a judgment creditor, to subject the property of his debtor, which cannot be reached by execution, to the satisfaction of his judgment, without reference to the amount of the judgment. The ground of the jus isdi^tion is, that the plaintiff has no remedy at law, cannot reach his debtor's property by execution at law, and the statute- aids him upon that ground alone. Putnam v. Bently, 8 Bax.,-84. Although 4281 of the Code declares that Courts of Chancery have "no jurisdiction of any debt or demand of less value than fifty dollars, yet this re- striction only applies when the jurisdiction turns wholly upon the amount in- volved. If the jurisdiction to grant the relief sought is exclusively conferred upon the Chancery Court, the limitation does not apply. It cannot be supposed t hat the Legislature intended to deprive tfie citizen of redress, no matter how small the amount involved may be, when the only court clothed with jurisdiction is the Chancery Court. State v. Covjngton, 4 Lea, 58, 59. Creditors of a de- faulting clerk and master may join in a suit against his securities, even though some of their claims may be less than fifty dollars* in amount. Gailbriath v. Hawkins, Southern Law Journal and Reporter, 804. But see Wagstaff v. Bra- den, 1 Bax., 304, construing 4281 of the Code. And also see Malone v. Dean, '9 Lea, 336, in which the foregoing authorities are discussed, and in which the Su. preme Court decide that the Chancery Court has no jurisdiction to enforce the vendor's equitable lien, where the amount of the demand is less than fifty dollars. 'Code, 4305. But the court may act in rem as prescribed by the (Jode, 4297. Davis V. Pulton, 1 0., 121. ''Code 2902, sub.-sec. 4. This section applies to Courts of Chancery as well as of law. Kendrick u. Davis, 3 Cold., 524. MANUAL OF CHANCERY PRACTICE. 5 may ;be filed in tlie district in which, the land or any material part of it lies;^ (3.) Bills seekiug to enjoin proceedings at law may be filed in the district in which the suit is pending, or to which exe- cution has issued.^ (4.) Bills against non-residents, or persons whose najmes or residences are unknown, may be filed in the district in which the cause of action arose, or the act on which the suit is pre- dicated was to be performed, or in which the subject of the suit or any material part'therqof is. (5.) Whenever attachment of property is allowed in lieu of personal process, the bill ma,y be filed in the county or disti-ict in which the property or any material part thereof sought to be attached, is found at the commencement of the suit."^ A bill for the appointment of an administrator of a deceased person's estate, may be filed in the Chancery Court of the dis- trict in which the deceased resided at the time of his death, or in which his estate, goods and chattels or efl"ects were at the time of his death.* A.bill seeking to sell the real estate for the payment of debts, in the course of administration on the ground that the per- sonalty has been exhausted in the payment of debts, must be filed in the district or county where the larld or a portion of it lies.^ A bill for the transfer of the administration of an insolvent ^If all the parties who have an interest in the suit are before the court, by the personal service of process; and any part of the lands to be sold lie within the Chancery district, the court has power to sell the lands lying in any part of the State. Todd v. Cameron, 8 Hum., 512; Winchester «. Winchester, 1 Headj 460. But the Code, 4311, sub-section 2, has been amended by the act of 1877, oh. 107, which is in these words : That section 2 of section 4311, of the Code, be amended so as to read : All bills filed in any court seeking to divest or clear up the title to land, or to enforce the specific execution of contracts relating to ■ resilty, or to foreclose a mortgage or deed of trust by a sale of personal property or realty, shall be filed in the county in which the land or any material part of it lies.'or in which the deed of mortgage is registered. 'Code, 4311, sub-section 3. This statute, passed 1825, changes the rule de- clared in Childress v. Perkins, Cooke, 87; and Cain v. Butler, 4 Hay., 53, as to injunction bills. =Code43n. *Code 2209. ^Code 2267. Winchester ». Winchester, 1 Head, 460. 6 MANUAL OF CHANCERY PRACTICE. e3tate from the County to the Chancery Court, must he filed in the district including the county wherein the will is proved, or letters of administration granted ; or where the representa- tive resides or is served ^Tith process.' Applications for the assignment of a widow's dower, must he made in the county where her hushand last resided before his death.^ A bill for a divorce maybe filed in the county or district in which the defendant resides, or is found, if a resident, but if a non-resident, or convict, then in the county where the ap- plicant resides.' Or, the bill may be filed in the county in which the parties lived at the time of the separation. Act of 1860, Ch. 88. A Bill for Partition of Land may be filed in the county in which the land or any part of it lies, or in which the defend- ants reside.* A Bill for the sale of the property of a person laboring under disability may be filed where the property, real or personal, soughli to be disposed of is, or where the person laboring under disability at the time resides, at the option of the party commencing the action.^ A Bill to enforce the payment of a legacy or distributive share in an estate, must be filed in the county or district jn which the administration is taken out.'^ To avoid confusion it should be borne in mind that a Chan- cery Division and a Chancery District are very difi^erent things. The State is divided into as many Chancery Divisions as there are Chancellors, and each division is sub-divided into a number of Chancery Districts, in each of which court is held only at one place. 'Code, 2362, and Code, 2362a!. ^Code, 2411. 'Since the act of 1835, a wife can maintain a suit for divorce in forma pau- ^eris, in her own name. Hawkins «. Hawkins, 4 Sneed, 105. *Code, 3268. See Reid ex parte, 2 Sneed, 876. But !^ partition of land in this State cannot be made by the courts of another State. Johnson v. Kimbro, 3 Head, 557. ^Code, 3326. 'Code, 2312 and authorities there cited. MANUAL OF CHANCERY PRACTICE. 7 Each Chaircery Di-strict used to embrace several counties ; but at present almost every county in the State forms a sepa- rate district. From section 107 to section 113 of the Code of Tennessee, the word district is improperly used for division.' 2a. At what time Suit may be brought. 1. Bills may be filed at any time, in term time or vacation.^ 2. In cases falling within any of the statutes of limitation, the suit must of course be brought within the time limited by the statute applicable to the case, or it will be barred.' But a party may be barred by his own laches, independently of any statute of limitation.'' 3. A bill must not be filed before the right of action ac- crues. If it appears on the face of the bill that it is prema- turely filed, a demurrer will lie. If the objection does not appear from the face of the bill, the defense should be made by plea in abatement. This doctrine is considerably modified in this State by statute. The vendor of land, as each pajTucnt of the purchase money becomes due. may nring his suit to en- force his lien as vendor, and may have so much of the land sold, as may be necessary to pay the money then due. The suit will be retained in court, and as each of the payments 'be- comes due, the court shall direct a sufficient quantity of the laud to be sold to satisfy the same. In certain cases, men- tioned in the statute, the court may order all the land sold at once, making the payments fall due so as to meet the pur- chase notes as they mature.' 3. Who may Institute the Suit. Any person, whether natural or artificial, not laboring under some special disability, may institute a suit in equity." Disabilities to sue in Equity are either such a,s are absolute, and, during the time they last, eftectually deprive the party of the right to assert his claim ; or they are such as are qual- 'These sections superseded by 107 a, b, c, d, of the Code. ^ 'Code, 4329. 'Post sec. 81. . ♦Post, 322. ^Code, 3563, et seq. '«Sto. Eq.. Plv, 50. 8 MANUAL OF CHANCERY PRACTICE. ified and merely deprive him of tlie power of suing without the assistance of some other party to maintain the suit on his hehalf. Of the former class are the disabilities which arise from alienage and bankruptcy ; and of the latter class are such as arise from infancy, coverture, idocy and lunacy.' An alien enemy cannot sue while the war continues. An alien friend may sue, if the subject matter of the suit be such as entitles him to maintain a suit.^ A foreign government or sovereign ijiay sue, provided such government has been recognized by the government of the country in which the suit is brought.^ A bankrupt cannot sue in respect to such property as will vest in his assignees, even though there be collusion between the assignee and the debtor.^ The theory is, that the bankrupt cannot pay his debts, and that the property of the bankrupt not being sufficient to sat- isfy the claims of his creditors, he has not such an interest in the property as will entitle him to maintain a suit about it. But if he can give security for costs, the Court of Chancery or Court of Bankruptcy may in a proper case, order the as- signee to permit the bankrupt to use his name to enable him to recover property upon his indemnifying the assignee.'' A married woman cannot ordinarily sue in equity any more than at law without the consent and co-operation of her hus- band. But this rule is intended for the wife's protection, and has no application to a case where the husband's interests are antagonistic to hers, or where he is barred by his laches. In such cases she may file a bill by her next friend, making her husband a party defendant." And where a husband has deserted his family, the wife may 'Sto. Eq. PI., 51, 55. 'Sto. Eq. PI., 51, 55. 'Sto. Eq. PL, 51, 55. *Dan'l Ch. Pr., 70. ^Dan'l Ch. Pr., 70. 'Winchester v. Wiuehester, 1 Head, 460. Where the husljand is made a party defendant, the wife must sue by next friend, who must be sui juris, and must give bond for costs. Leftwich v. Hamilton, 9 Heis., 310 ; Green v. Harrison, 3 Sneed, 131; Cohen w. Sheyer, 1 Tenn. Ch.,192; Leg. Rep., June, 1878, page 41. Where the wife has a separate estate, she may, in eqnity, sue the husband. B.'nnett o. Winfield, 4 Heis., 444; 2 Sto. Eq., sec. 1368; 2 Kent, 164. MANUAL OF CHANCERY PRACTICE. 9 prosecute, or defend in his name, any action which he might have prosecuted or defended ; and may sue and be sued in her own name for any cause of action accruing subsequently to such desertion.' So, a bill for divorce may be filed in the proper person and name of the complainant.^ A bill cannot be filed by a next friend on behalf of a feme covert without her consent. But in the case of infancy, any person who is responsible for costs, may bring a suit for the protection of the infant's rights, with or without his assent.' Idiots and lunatics sue by their guardian. (By their com- mittee in those States where their estates are committed to a committee.) A slight informality in the manner in which a party ap- pears on the record will not defeat the suit. Thus, where a person who was a paralytic and speechless^but who was not a lunatic or insane, brought suit by a next friend, it was held that, although the complainant could have brought the suit without a guardian, or next friend, yet the fact that he ap- peared by next friend on the record, could by no means de- feat the suit.* So, where complainant was both personal representative and distributee of an intestate, and in a bill to recover some of the persona] assets, he made his right as distributee (in connection with that of the other distribtees who were, joint complainants with him), the prominent ground of right to sue ; yet it appeared in the bill that he was the personal rep- resentative : held that this error of form would not prevent a recovery in his proper character.'' ^Code, 2805. The wife can sue and be sued where the husband has been de- clared insane by the verdict of a jury. Code, 2486. The wife may jointly sue with her husband on covenants or engagements entered into in writing with her. Catron v. Warren, 1 Cold., 358; Lowery ». Naff, 4 Cold., 370; Talliwickle v. Keith, 1 Heis., 361. 'Code, 2451. Before this act the wife could only sue for divorce by next friend, now she may sue in her own name, and in forma pauperis. Code, 3192. Hawkins v. Hawkins, 4 Sneed 105. =Sto. Eq. PI., 61. Phillips b. Hassell, 10 Hum. 199; Murphey ti. Green, 2 Bax. 403; Cheatham v. Huff, 2 Tenn. Ch., 616. ^Gass V. Mason, 4 Sneed, 497; Malin v. Malin, 2 Johns. E., 239. 'Thurman v. Shelton, 10 Yer., 383. 10 MANUAL OF CHANCEEY PRACTICE. In Englancl, an infant cannot sue by a guardian, but only by a next friend. This doctrine is certainly correct in respect to a guardian ad litem, for the court never appoints such a guardian to bring a suit, but only to defend. It might have been supposed, however, that this doctrine did not apply to general guardians whose appointment are authorized and their rights and duties defined by law (as clearly as those of a guardian of a lunatic or idiot), and bond with security taken for the faithful performance of those du- ties, as is the case in Tennessee. In Tennessee infants are allowed to sue and defend by reg- ular guardian ; still he is in all respects the next friend of the infant. He is charge'd with all of duties and liabilities, sub- ject to the same restraints, and bears the same relation to the infant and suit, as if he had been described as the next friend. He is subject to the control of the court. If he fail to perform his duty, or has an interest in the litigation antagonistic to that of the infant, the court has the power to remove him ; and it is his duty to do so, and appoint another.^ There can be no question as to the right of the guardian to sue in his own name for any property to which he is entitled, or for the collection of a debt due as such guardian. In cases where judgment is recovered by next friend, a reg- ular guardian alone is entitled to collect the money recovered by the judgment.^ When it occurs that two or more suits are instituted in an infant's name by different persons, each acting as his next friend, the court will direct an inquiry to be made by the master as to which suit is most for his benelit, and when that point is ascertained, will stay the proceedings in the other suit." It seems that a remainderman may iile a bill to remove a cloud upon the title ; otherwise a good right may be lost by delay from the death of witnesses, etc* So where the wife does not join in conveyance of the homestead, such convey- 'Sirapson v. Alexander, 6 Cold., 619. '^Barbae v. Williams, 4 Heis., -022; Benton v. Pope, 5 Hum., 392; Miles v. Kaigler, 10 Yer., 10. 'Dan'l. Ch. Pr., 90. *Burkley v. Self, 4 Sneed, 121 ; Aiken v. Snttle, 4 Lea, 103. MANUAL OF CHANCERY PRACTICE. 11 ance is void, so far as it abridges her homestead rights, and she may, hy next friend, file a bill, quia timet, and have, the cloud removed, and her homestead rights declared." So may the wife maintain, her bill, by next friend, to de- clare her rights in property claimed adversely to her, although, her right to the present possession may be in future.^ 4. Who may be Sued. Bills may be filed against all bod- ies politic and corporate, against all persons not laboring under any disability, against aliens, and against infants, mar- ried women, idiots and lunatics ; and also generally against persons by law disabled to institute or maintain a suit ; for they cannot plead their disability in defense.' Corporations, and persons of full age, not laboring under any disability, defend a suit by themselves. And corpora- tions can be sued only in their corporate name, unless enabled by their act of incorporation to come into court in the name of some other person, as their president, cashier, etc. Infants, idiots and lunatics defend by guardian. Where they have no regular guardian, or where the interest of the guardian is antagonistic to that of his ward, the court will appoint a guardian ad litem for the purpose of defending the suit. In regard to a married woman^ ordinarily her husband must be joined with her as defendant in the suit, and their answer must also be joint. She cannot, as a general rule, an- swer separately when her husband is joined, or ought to be, joined, as a defendant, without an order of court for that purpose, founded on special circumstances. Thus, if her in- terests are antagonistic to those of her husband, or if she lives separate from him, or disapproves of the defense which he wishes her to make, she may obtain an order allowing her to defend separately." When she answers separately she answers by next friend.' ^Williams v. 'Williams, 7 Bax., 116; Williams v. Woods, 1 Leg. Eep., 316: Carter v. Hattan, 1 Leg. Rep., 32C; Mash ». Russell, 1 Lea, 544. ^Dodd V. Benthall, 4 Heis., 601. ■'Sto. Eq. PI., 68; Cooper's Eq. PL, 27. *Sto. Eq. PL, 68 to 71, inclusive. ^Sto. Eq. PL, 873j Copper's Eq. P., 325. 12 MANUAL OF CHANCERY PRACTICE. 4a. What kind of actions may be brought- In Ten- nessee the Chancery Court has concurrent jurisdiction with the Circuit Court in all civil causes of action now triable in the Circuit Court, except for injuries to person, property or character, involving unliquidated damages. Ifow, no demur- rer for want of jurisdiction of the cause of action will be sus- tained in the Chancery Court, except in cases of unliquidated damages for injuries to person, property or character.^ 5. "When married women and infants should be made complainants, and when defendants. In all cases in equity where it is sought to affect the interests of infants, and more especially their interests in real estate, by an attempt to charge it, or to make partition, or sale thereof, whether the application be by a stranger, or by an adult co-tenant, or others claiming a right to do so, the infants ought to be made defendants. Joining them as plaintiffs in such case instead of making them defendants, is error, for which the decree will be re- versed on appeal Or writ of error.^ But it is not such error apparent on the face of the decree as that a bill of review lAct of 1877, ch. 97. Chancellor W. F. Cooper held, at Nashville, that a Chancery Court, under this act, could not entertain jurisdiction of a purely legal demand, brought be- fore it in the mode prescribed for the assertion of equitable rights, and was of the opinion that if the Chancery Court had been constitutionally clothed with jurisdiction over the legal causes of action specified in the act, it should, exer- cise that jurisdiction strictly in the mode prescribed by law for the trial of causes in the Circuit Court, and by the same law. He also intimated that the act was unconstitutional. Saudek v. Nashville & Hillsboro Turnpike Co., Leg. Rep. January, 1878, page 305. The Supreme Court have since that time in a very lengthy opinion, held tlie contrary to be true. Morris & Co. v, Nimms & Thornhill, 3 Lea, 597. Cooper dissented. A bill does not lie in equity, under this act, to recover damages for injury to land. Rhea v. Hooper, 5 Lea, 390. But Chancery Court may entertain a bill for a purely legal demand in attach- ment cases, and since the act of 1877, of suits to recover damages for breach of warranty. Williams v. Burg, 9 Lea, 455. ^Davidson v. Bowden, 5 Sneed, 129; Simpson ». Alexander, 6 Cold., 625. But see Freeman ». Freeman, 9 Heisk., 301, ^here a contrary doctrine is held. Also see Code 3323 to 3340 inclusive; and MoGavock v. Bell, 3 Cold., 520; Ful- ton V. Davidson, .3 Heisk., 641 ; Thompson v. Mebane, 4 Heisk., 379. MANUAL OF CHANCERY PEACTICE. 13 will lie for it, or as will invalidate the title of a bona fide pur- chaser under the proceedings.' But it is not error to join married women with their hus- bands as complainants in bills and petitions of this kind, and it would perhaps be error not to so join them unless their in- terests are antagonistic to those of their husbands, in which case they should be made defendants.^ In the case of Simpson v. Alexander, it was held that join- ing the infants as plaintiffs was error. But Judge Hawkins in delivering the opinion of the court gave a very deliberate dictum that if the bill had sought nothing more than a parti- tion strictly in accordance with the provisions of the Code ; the infants might have joined as plaintiffs, and it would have been, in such case, no error. That so far as partition cases were concerned, if a bill sought simply a partition and. noth- ing more, the Code had changed the law in regard to parties, and that a suit for partition heed not, under those provisions, " be conducted as other suits in equity."^ >^ 6. General rule as to parties. It is a general rule that all persons who are legally or beneficially interested in the sub- ject matter of a bill or in the objects of the suit, though they may be somewhat numerous, ought to be made parties to it either as complainants or defendants.'' This rule, however, being established for the convenient administration of justice, admits of exception in cases where its rigid application would defeat the very purpose for which it was established.'' It is not all persons who have an interest in the subject matter, but those interested in the objects of the suit, who are ordinarily required to be parties.* But the general rule does not seem to be founded on any positive and uniform pi-inciple admitting of being expounded by the application of any universal theorem as a test. It is 'Wincliester w. Winchester, 1 Head, 460. 'Winchester v. Winchester, 1 Head, 460. 'Simpson v. Alexander, 6 Cold., 625. The safer rnle and better practice is to malte minors parties defendant in all cases where it is possible. *3to. Bq. PI., T2, TBa., I^h. ^Sto. Eq. PI., 96. 6Rto. Eq. P1.,T2. 14 MANUAL OF CHANCERY PRACTICE. ■ a rule founded partly in considerations of convenience, partly in the solicitude of the Courts of Equity to suppress multifa- rious litigation, and partly in the dictates of natural justice, that the rights of persons ought not to be affected in any suit without giving them an opportunity to defend them.' This rule will not be readily abandoned by the courts upon the construction of a statute which may seemingly authorize such abandonment. Thus, although the act of 1838, ch. 3, sec. 3, (Code 2367), provides that an administrator or execu- tor may file a bill to have the administration of the estate conducted in chancery in his own behalf as well as on behalf of the widow, heirs and legatees or distributees of the estate against such of the creditors as are named therein and sought to be enjoined, and all others interested and not named as complainants ; the Supreme Court held that a sale of real estate in such a case without making the heirs or devisees real parties, was void.^ So sec. 2312 of the Code authorizes a distributee or legatee to bring suit for his distributive share or legacy after the lapse of two years from the grant of the letters testamentary or of administration. But it would per- haps be the safer plan to file the bill in such case for a gen- eral settlement of the estate, making all the heirs and dis- tributees, or devisees and legatees parties. The general rule, however, requiring all parties in interest to be made parties, is in most cases not in any just sense, a right of the parties brought before the court, but rather a rule prescribed by the Courts of Equity to themselves in the exercise of their jurisdiction, founded on their notions of pub- lic policy or public convenience. It is, in a great measure, a rule of discretion, founded in the anxiety of those Courts to do justice among all the parties having an interest in the subject matter or object of the suit, whether that interest be mediate or immediate, present or future, for the purpose of suppressing future controversj'- or litigation. Accordingly, if the beneficiaries should not be made parties, and their interests are apparent, a Court of Equity will sometimes, as a matter of indulgence and to pre- 'Sto. Bq. PI., 76c. ^Frazier v. Paukey, 1 Swan, 75. MANUAL OF CHANCERT PRACTICE. 15 vent turblier delay and expense, allow them to bring forward their claims by petition, in order that their rights may be protected. Courts of Equity are also enabled from their mode of practice, to see from time to time, that necessary parties are brought before them : and this they can do at almost any stage of a suit.' Parties complainant must in general have a community if not an identity of interest. Thus, an executor authorized by the will to sell land, and the person to whom he has sold in ex- ercise of the authority, may join in a bill against the heirs at law of the testator in possesion of the land, to divest the title out of them and vest it in the executor to enable him to com- plete his contract of sale, or to vest it in the purchaser.^ Parties having distinct, inconsistent and hostile claims can- not unite in filing a bill.' The want. of interest in any one of several complainants is a demurrable misjoinder.^ But if a party has an appai'ent in- terest, although it may be ascertained after a minute legal investigation that he has no interest, the want of interest would not vitiate the bill and prevent relief being granted to those entitled to it.' , : It may be remarked that in many cases, persons may very properly be made parties who are not absolutely necessary parties. In such cases these persons may be made parties or they may be omitted. But as a general rule, decrees are only binding on parties and privies, and hence, if it is desired to obtain relief for or against a person, such person should always be made a party." It may be further remarked, that if a necessary party ^^111 not consent to be made a plaintifi!, he may always be a defend- 'Birdsong v. Birdsong, 2 Head, 289 ; Saylors v. Saylors, 3 Heisk., 534 ; Stretch V. StntA, 2 Tenn., ch., H2; Goss v. Singleton, 2 Head 69, last head note; "Wilson u. Eifler, 1 Cold., 33; Reed v. Long, 4 Yer., 11. ■■'Henderson & McDermott v. Peck, 3 Hum., 247. 'Tilman v. Searcy, 5 Hum., 487.' *Tilman v Searcy, 5 Hum., 487. ^Henderson v. Peck, 3 Hum., 247;' Cocke w.Evans, 9 Yer., 288. 'Gamble v. Nunn, 5 Sneed, 465; Mimms v. Mimms, 1 Hum,, 425 ; Rowan v. Mercer, 10 Hum., 363. 16 MANUAL OF CHANCERY PKACTIG3. ant, although his interest is on the same side as that of the plaintiff". The complainant may, by the frame of the hill, as by waiving a paTticular claim, frequently avoid the necessity of making persons parties, who might be aff'ected by it, though that claim might be an evident consequence of the rights asserted by the bill against other parties. But this is not al- lowed to be done to the prejudice of others. Thus, if the obligee of a bond to which there are several surieties, the principal obligor being dead, seek by bill in equity the full payment of the bond from the sureties all the sureties must be made parties. But if he only seek to make one surety pay his proportion, the same objection would not apply unless the absence of the other parties would be a prejudice to him.^ The general rule as to necessary parties does not extend to all persons who may be consequentially interested, but only to those who are directly interested.^ So, a person is not properly a party to a suit, between whom and the plaintiff there is no proper privity or common in- terest, but his liability, if any, is to another person. Thus, it a creditor of an estate bring a bill against the personal re- presentative for the payment of his debt out of the assets, a a_ debtor of the estate is not ordinarily a proper party : for his liability is solely to the executor or administrator.' But under our statutes in Tennessee, in attachment bills, a debtor of complainant's debtor may be joined as a de- fendant. So where there has been a return of nulla bona on any ex- ecution, the debtor of the judgment debtor, may be made a party to a bill to reach the debt due such judgment debtor.* No person need be made a party to a bill, who claims under a title paramount to that brought forward, and to be enforced in the suit ; or who claims under a prior title or incumbrance, not affected by the interest or rellei' sought by the bill.^ 'Sto. Eq. PI., 228. 'Sto. Eq. PI., 226. »Sto. Eq. PI., 227. *Code, 428.S, and authorities there cited. See also Code, .S4Gla, as to making , a certain class of non-residents parties defendant to bills in Chancery. 'Sto. Eq. PI., 2,30; Elliott v. Blair, 5 Cold., 185. MANUAL OF CHANCERY PKACTICE. 17 The want of interest in a sole complainant is, of course, fatal to his right to maintain a suit ; so a want of interest in one of several complainants is fatal to the whole bill on de- murrer. But the defect may be cured by amendment. And a mere scintilla juris in one of the complainants will be suffir cient to justify joining him as complainant, if the persons having the substantial interests choose to do so.' When all, the parties are before the" court it is right for the chancellor, regardless of their attitude as complainants or defendants upon the record, so to frame the decree as to make a final and complete disposition of the cause, embracing the entire subject matter and the rights of all the parties hav- ing an interest in the suit.^ 7. Exceptions to the rule. The following are the most important exceptions to the general rule requiring all persons interested in the suit to be made parties : First. Where the parties are iinknown to the complainant, and the bill seeks a discovery of them, an objection for the want of such parties will not lie. But when such parties are discovered, the bill must be amended so as to cure the defect by making them parties.^ Second. Where the parties are so numerous that it would be extremely inconvenient to unite them in one suit. This class of cases admits of several stib-divisions. 'Sto. Eq. PI., 509, 510; Tilman v. Searcy, 5 Hum., 488; Decherd v. Edwards, 2 Sneed, 93. ^Alleni). Bauguss, 1 Swan, 406; Birdsongw. Birdsong, 2 Head, 302; LaGrange V. Eainey, 1 Cold., 457, Milliken'sDig., 615, sub. -sec, 3. ^Sto. Eq. PI., 92. And where the persons interested are so numerous as to make it impossible, or very inconvenient to bring them all before the court, a part of them may file a bill in behalf of themselves and others standing in the like situation. Danl. Ch. PI. & Pr. 5 Am. Ed. 190, note ; Robinson v. Smith, 3 Paige, 222 ; Williston v. Michigan S. & N. R. R. Co., 13 Allen, 406. It has long been the established practice to allow one complainant to sue on behalf of himself and all of the others of a numerous class, of which he is one ; and to make one of a numerous class, the only defendant, as representing the others, upon the allegation that they are too numerous to be all made parties. Lowery v. Francis, 2 Yer., 534.' This rule is extended to non-resident defendants, made such by publication. McCaleb v. Crichfield, 5 Heis., 291. 2 18 MANUAL OP CHANCERY PRACTICE. (1st.) Where the question is one of common interest, and one or more sue or defend for the benefit of the whole ; as in the case of the creditors of a deceased person, where one or more may sue on their own behalf and that of the other credi- tors ; or the representative may file the bill against such of the creditors as are named therein and sought to be enjoined and all others interested and not named as complainants: See Code, 2367, 2368, 2211, 2212._ But a few persons will not be permit- ted to file such a bill without saying in the bill that it is brought on behalf of thems^ves and all other creditors.^ So, a creditor may file a bill either for himself, or for him- self and other creditors to set aside a fraudulent conveyance.^ So, where a number of creditors were parties to a deed of trust for the payment of debts, a few were permitted to sue on behalf of themselves and the other creditors named in the deed to enforce the execution of the trust.^ (2d.) Where the parties form a voluntary association for private or public purposes, and those who sue or defend may be fairly presumed to represent the rights and interests of the whole. In cases of this sort the, persons interested are com- monly numerous, and any attempt to unite them all in the same suit would be, even if practicable, exceedingly incon- • venient, and would subject the proceeding to the danger of perpetual abatements, and other impediments, arising from interminable deaths, or other accidents or changes of interest. But the court will, in such case, take care that there shall be a due representation of all substantial interests before the court. Where a bill is brought by some of the members of a volun- tary association for the benefit of all, the bill must be brought on behalf of all the parties in interest.* This and other exceptions to the general rule apply not only to parties complainant, but also to defendants. Thus, where a committee of a voluntary club or association entered into agreements and incurred expenses on account of the club, it iSto. Bq. PI., 99. ''Code 4288. 'Sto. Bq. PL, 102, and authorities there cited. •Sto.Bq. PI, 107.. MANUAL OF CHANCBEY PRACTICE. 19 was held on a bill brought by a creditor against the commit- tee, that it was not necessary to make the other members of the club parties to the suit, on account of the members being numerous as well as unknown. But in such case it should be charged in the bill that the parties are numerous and many of them unknown.! (3d.) Where the parties are so numerous that it would be impracticable to bring them before the court, they are dis- pensed with, although they may have separate and distinct interests. In this class of cases, there is usually a privity of interest between the parties; but such a privity is not the foundation of the exception, but it is sustained in some cases where no such privity exists. However, there must be a com- mon interest, a common right, or common privilege which the bill seeks either to establish, to limit, or to take away.^ Thus, a single citizen of the Hiwassee District was allowed to tile a bill to prevent the sale of the school lands of the dis- trict under an unconstitutional statute.^ (But it should be alleged or otherwise appear in the face of such bill, that the parties are too numerous to make it practicable to make them all parties, even if known.) So, bills have been permitted to be brought by the lord of a manor against some of the tenants, or, vice versa, by some of the tenants on behalf of themselves and all other tenants, against the lord, to establish some right.* So, bills of peace, have been allowed to be brought where a general right was claimed by the plaintiff, though no privi- ty existed between the plaintiff and the defendants, and no general right on the part of the defendants, and where many more were, or might be, concerned than those brought before the court. Thus, a bill was sustained to quiet the plaintiff's right to a certatn fishery in which he claimed the sole right, and the defendants and others claimed several rights.' 'Sto. Eq. PI., 116. See also Hunter v. Justices of Campbell county, T Cold,, 49. ^Sto. Eq. PI., 120. 'Low^ry v. Francis, 2 Yer., 534; McCaleb v. Crichfield, 5 Heisk, 289, *Sto. Eq. PI., 121. ^Sto. Eq. PI., 124, 125, 20 MANUAL OF CHANCERY PRACTICE. The relief in such case will not only quiet the general right as to persons before the court, but naay furnish ground to quiet it as to all others in the same predicament.^ 8. Rule as to Residuary Legatees. But there are also cases in which persons interested in the subject matter and the object of the suit are not required to be made parties al- though not falling within the principle of any general excep- tion. Thus, a residuary legatee is interested in the object of a suit by a creditor against the executor, to establish his debt or claim against the estate ; for the establishment of such debt or claim, goes- pro tanto in direct diminution of his inter- est in the residue. Yet it has never been required to make such residuary legatee a party to such bill.^ • 9. Trustees and Beneficiaries. So, trustees for the pay- ment of debts and legacies may sustain a suit, either as plain- tiffs or defendants, touching the trust estate, without bringing the creditors or legatees before the court as parties.^ But the general rule is that both those\who are legally, and those who are beneficially, interested must be made parties. The general rule is that in suits respecting trust property' both the trustees and the beneficiaries are necessary parties, whether the suit be brought hy or against them.^ iSto. Bq. Pl., 124, 125. ^Sto. Eq. PI., 766. »Sto. Bq. PI., 766. *Sto. Eq. PI., 207; Gamble v. Nunn,'5 Sneed, 469, and see Hendrickt). Ruble, 10 Lea, 15. Trustees for a married woman, under a, settlement made during coverture, whicli she elects, after her husband's death, to abandon by clniming dower and distribution, must be made parties to a cause in which the widow asks for dower and distribution, and the court decrees an account of the property conveyed. Watkins u. Watkins, 7 Yer., 295. So when a vendee holding only a title bond assigned same to a trustee with power to sell same to pay certain debts named in a deed of trust; and the trustee sold same and delivered it to the purchaser without written assignment, on a bill by the heirs of the original vendee to set aside the sale by the trustee ; the trustee was held to be a neces- sary p^rty defendant. Wilburn v. SpofFord, 4 Sneed, 707. In a suit by the beneficiaries to ascertain their rights and to assert them against the claimants to the trust property, the trustee is a material party ; Helm v. Barnes, 1 Lea, 390. The MANUAL OF CHANCERY PRACTICE. 21 But there are some exceptions to this rule. Thus, if a bene- ficiary is entitled to an aliquot part, such as a quarter or a half of an ascertained and definite trust fund, he may sue for his own portion without making the other beneficiaries parties.' So, the court will relax the rule when great inconvenience would arise from its rigid application ; as where the benefi- ciaries are very numerous, or many of them are unknown, or the description of them so general that it is diflicult or im- practicable to ascertain, in the first instance, who are all the persons included therein.^ On the other hand, says Mr. Story, persons, who seem to have no interest, either in the subject or in the object of the suit, are sometimes required to be, or at least may be, made parties.^ But, perhaps, this is not strictly accurate, though in some cases persons whose interests are quite remote are allowed to be made parties. 10. Parties by representation of Interest. There are cases in which certain parties before the court are entitled to be deemed the full representatives of all other persons, or at least so far as to bind thpir interests under the decree, al- though they are not, or cannot be made parties. Thus, where real estate had been purchased by a joint fund, raised by a subscription, in shares of two hundred and fifty sub- scribers ; and the property had been conveyed to certain per- sons as trustees for the subscribers ; and afterwards a bill was brought against the trustees for a sale of the real estate court say, that on principle it would be clear that he is a material party to any litigation touching the trust. The title to the property on which the lien or trust is fixed has been vested in him, and cannot be divested without bringing him before the court. See Dunn v. Waggoner, 3 Yer. , 59 ; Gardner v. Brown, 21 Wall., 36 ; Weir v. Tannehill, 2 Yer., 5Y. Where there is a decree in favor of the rights of beneficiaries, and the trustees before the court, the court will not dis- miss the bill on the hearing because the beneficiaries are not before the court, but will allow them to take the benefit of the decree. Birdsong u. Birdsong, 2 Head, 289, last head note; Saylors v. Saylors, 3 Heis., 525. •Sto. Bq. PL, 207a. 'Sto. Bq.Pl, 207a. 'Sto. Eq. PI., 7B6. • - ' 22 MANUAL OF CHANCERY PRACTICE. under a mortgage made in pursuance of the trust ; it was held not necessary for the subscribers to be made parties to the bill.' So, where a commissioner sold property under a decree of Chancery and took a note in his own name for the purchase money, and afterwards obtained a judgment thereon ; it was held that the beneficiaries were not necessary parties to a bill filed bj^ the commissioner to set aside a fraudulent convey- ance of the property of the debtors, and subject the property to the satisfaction of the judgment; but that the commis- sioner alone might file the bill.^ Upon similar grounds of virtual representation, when there are contingent limitations and executory devises to persons not in being, they may be barred by a decree against a person claiming a vested estate of inheritance.' So, where a bill . is brought by the person having the first estate of inheritance, other persons having a subsequent vested or contingent interest will generally be bound by the decree, and also be entitled to its benefits.* But Courts of Equity are very scrupulous of affecting the interests of persons not before the court in cases of this sort, where their interests are not dependent upon the prior estate of inheritance, and it is practicable to make them parties.^ Persons having demands prior to the creation of a trust may enforce the demands against the trustees, without bring- ing before the court the person interested under the trust, if the absolute disposition of the property is vested in the trus- tees. But if the trustees have no such power of disposition (as in the case of trustees to convey to certain uses), the per- sons claiming the benefit of the trust must be made parties.* Where there is a general trust for creditors or others, whose demands are not distinctly specified in the creation of iSto. Eq. PI., 142, 143. •Harrison v. Hallujn, 5 Cold., 525. »3to. Bq. PL, 145. *Sto. Eq. PI., 146. 'Sto. Bq. PL, 147. 'Sto. Bq. PL, 149. MANUAL OF CHANCERY PRACTICE. 23 the trust, inasmuch as their numbers, as well as the difficulty of ascertaining who may answer the general description, might greatly embarrass a prior claim against the trust prop- erty, the court will dispense with their being made parties. It will in such cases be sufficient to make the' trustees alone parties.^ So, if a suit be brought to enforce the execution of the trust, all need not be made direct parties, but the bill may be filed by a part on behalf of all.^ But where a trust is created for the benefit of certain spec- ified creditors, and a suit is brought against the trustees for the execution of the trust, not only should those creditors generally be made parties, but the person who created the trust also, or his personal representatives.^ Where the class of persons (residuary legatees, for exam- ple, or beneficiaries in some trust) interested, and entitled to share in the property, are numerous, the rule, whether all or only a part of them shall be made parties, is a question of convenience to be decided by the court, and in many cases the court will permit a few to sue in behalf of all.^ But in cases in which a selected or limited number of per- sons are allowed to represent a numerous body, especially of defendants, they should be such persons as are in a position to adequately represent the interests of the entire body. If the interests of beneficiaries who are not before the court are apparent, a Court of Equity will sometimes as a matter of indulgence, and to prevent further delay and ex- pense, allow them, if they desire to do so, to bring forward their claims by petition, in order to have their interests ascer- tained, and their rights protected.' And at all events, they may bring a bill against the trustee and the original plaintiif, to assert and protect their rights in the other suit. * 'Sto. Bq. PL, 149, 216. ^Sto. Bq. PL, 216. 'Sto. Bq. PL, 149. *Sto. Eq. PL, 207,6 , «Sto. Eq. PL, 208; Wilson v. Eifler, 7 Cold., 33; Saylors v. Saylora, 3 Heis., 533; Hill v. Bowers, 4 Heis., 273 ; Stretch v. Stretch, 2 Tenn. Ch., 142 ; Goaa v. Singleton, 2 Head, 69. «Sto.Eq., Pl.,208. 24 MANUAL OF CHANCERY PRACTICE. 10a. Rule as to Parties Incidentally Connected with the Belief asked for. In regard to the nature of the interest which requires a person to be joined in a suit, there is, of course, no difficulty as to persons against whom relief is asked expressly, but with respect to those who are incidentally con- nected with the relief asked against others (the line of demarca- tion is less easy to draw. The interests, however, which re- quire such joinder seem generally referable to three following heads : 1. Interests in the subject matter which the decree may effect, and for the protection of which the owners are joined. 2. Concurrent claims with the complainant, which if not bound by the decree may be afterwards litigated. 3. Liability to exonerate the defendant or to contribute with him to the complainant's claim.^ 11. Parties having prior or subsequent liens or encum- brances. Where a suit is brought for the execution of a trust by or against those claiming the ultimate benefit of the trust after the satisfaction of prior charges, it is not neces- sary to bring before the court the persons claiming the benefit of such prior charges, as their interests are not intended to be touched by the bill.^ In a bill to foreclose a mortgage, subsequent mortgagees are proper, but not necessary, parties.'* But on proof of collusion such subsequent mortgagee may be allowed to open the account or insist on a resale of the property.'' Neither is a prior mortgagee a necessary party to a bill to foreclose. But the decree can have no effect whatever upon his rights if he is not made a party .^ 'Adams Eq., 314. The question of joinder of parties for the protection of their own interest; joinder of parties 'who have concurrent claims with the plaintiff; joinder of parties who are liable to exonerate the defendant, is discussed with great learning and ability in Adam's Equity, 314 to 322 in- clusive. »Sto. Eq. PL, 148. 'Rowan v. Mercer, 10 Hum., 359. *Rowan v. Mercer, 10 Hum., 359. ^Mims V. Mims. 1 Hum., 430. MANUAL OF CHANCERY PRACTICE. 25 So, to a bill to enforce the vendor's lien for unpaid pur- chase money, subsequent purchasers of the land are not necessary parties.^ This was a case where an express lien was reserved on the face of the deed. A different rule would apply in the case of an implied lien where the land had been sold and conveyed without reserving an express lien on the face of the deed. The purchaser, at execution sale, of a lot and buildings sub- ject to a mechanic's lien, is not a necessary party to a bill to enforce the lien ; but to save circuity of suits and for the greater safety of all concerned, he may well be made a ,party.^ 12. Parties to a bill to foreclose a mortgage. The heir of a mortgagee who is dead may sustain a bill to foreclose without joining the personal representative. But, when he receives the money he will hold it in trust for the personal representative.' But the personal representative is the proper plaintiff to bring the bill ; but if the mortgage be of a fee the heir is also a necessary party either as plaintiff or defendant.* All persons having a legal or equitable interest in the mortgage are necessary parties. A person entitled to only a part of the money cannot file a bill to foreclose as to his part only, but all the other persons in interest must be made parties. If the mortgage has been made or assigned to a trustee in trust, the beneficiaries should be made parties as well as the trustee.^ 'Fletcher v. Coleman, 2 Head., 384; Cookw. Dews, 2 Teun., Oh., 500. 'Foust V. ■Wilson, 3 Hum., 31. 'Atchison J). Surgine, 1 Yer., 400; Edwards v. Edwards, 5 Heisk., 123. *Sto. Eq. PI., 200. ^Sto. Eq., PL, 201 ; To a bill to foreclose a mortgage, neither the general credi- tors of the mortgagor, nor a previous mortgagee, nor the mortgagor's widow, are necessary parties. MimsB. Mims, 1 Hum.,425. But since the act of 1856, Code, 2399, and the homestead acts of 1 870, and 1879, it is presumed that the widow is a necessary party. And, unce these acts, it is probably the safer practice to, make the wife of a mortgagor a party to a bill to foreclose. A judgment creditor may file a bill and have the equitable interest of a debtor in land which has been mortgaged, sold without making the mortgagee a party or ascertain- ing the amount of his debt, but the better practice, however, is to bring all the 26 MANUAL OF CHANCERY PRACTICE. As to making prior or subsequent encumbrancers parties, see the last section above. As a general rule all persons having interests in the equity of redemption should be made parties. If the equity of re- demption belongs to different persons, either as assignees, heirs or devisees ; or as legatees having charges thereon ; all of them should be made parties defendant. If the equity of redemption has been conveyed or devised in trust is not suf- ficient to bring the trustee before the court without making the beneficiaries parties.' If the mortgagor has conveyed his equity of redemption absolutely, the assignee only need be made a party to the bill to foreclose.^ If the mortgagor has become bankrupt and his estate has been assigned under the bankrupt laws, his assignees only need be made parties.^ If the morgagor be dead it seems that it is not indispensa- ble to join his personal representative as a defendant with his heirs unless it be a case where the mortgagor was only posses- sed of a term for years, (which is personal assets and upon parties interested before the court, and have their interest ascertained. Wessell V. Brown, 10 Lea, 685. Subsequent mortgagees are proper, but not necessary parties to bill to foreclose, by a prior mortgager. Rowan v. Mercer, 10 Hum., 359 ; Mims v. Mims, 1 Hum., 425; Saylors v: Saylor.s, 3 Heisk., 52Y; Stark «. Cheatham, 2 Tenn., Ch. 303 A prior mortgagee is not a necessary party to a bill by a subsequent mortgagee to toreclose, but if he is not a party the sale will be subject to his mortgage. Mims V. Mims, 1 Hum., 425. The personal representative of the mortgagor is not a necessary party to a bill to foreclose. Harris v. Vaughn 2 Tenn., Ch. 484; Aiken u. Suttle, 4 Lea, 103; Edwards v. Edwards, 5 Heisk., 123. A sale of land mortgaged] by a creditor of the mortgagee, under a proceeding to which ■ the mortgagor was not a party was void. McGan v. Marshall, 1 Hum., 121. The personal representative of a deceased mortgagee is not a necessary party to a bill to divest the title out of the heirs of the mortgagee. Mulinix v. Perkins, 2 Cold., 87.. The heirs of both a deceased mortgagor and mortgagee, are nec- cessary parties to a bill to foreclose a mortgage. Mclver v. Cherry, 8 Hum., 715. The heirs of a mortgagee raa.y file a bill to revive a suit commenced by the mortgagee during his lifetime to foreclose the equity of redemption, without joining the personal representative. Edwards v. Edwards, 5 Heisk., 123 ; Jno. Atchison and wife v. the administrator of Surgine, 1 Yer.,400 >Sto. Eq. PI., 193, 197, 207. =iSto. Eq. Pl.,197. 'Sto. Eq. PL, 197. MANUAL OF CHANCERY PRACTICE. 27 the death of the owner goes to his personal, and not to his real representatives.) Or, unless a decree is sought against the personal represen- tative for any deficiency in the mortgaged premises in paying the deht.' Where the mortgagor and mortgagee are both dead, the heirs of both are necessary parties to a bill to foreclose.^ It may be remarked that if the mortgage be of personal property, the personal and not the real representatives of a deceased party are the proper parties by or against whom the bill should be filed. The widow of the mortgagor, to whom dower has not been assigned, is not a necessary party. The real estate descends to the heirs, who have undivided seizin till an assignment of dower has been made. But whatever rights a widow may have may always be enforced against the tenant of the free- hold if it be to the land itself, and against the trustee of the fund if it be a portion of money received for lands of which she would have been endowable had they reniained-in kind.' 13. Parties to a bill to redeem mortgaged property. If there has been no death or assignment on either side, the mortgagor and mortgagee are, of course, the only neces sary parties. If the mortgagor is dead, his heirs or devisees, as the case may be, are the proper parties to redeem, if it be a mortgage in fee ; but if it be for a term of years only, the personal rep- resentative of the mortgagor is the proper party. If the bill charges that part of the mortgage debt has been paid in the life-time of the mortgagor, the personal representative is a necessary party to take the account of what is due on the mortgage.^ 'Sto. Eq. PI., 196. ''Mclver v. Cherry, 8 Hum., 713. 'Mims V. Mims, 1 Hum., 430. See ante 25, note 5. *Sto. Bq. PL, 182. Where both parties are dead, their heirs are necessary parties to a bill to redeem land, and a sale under a proceeding by the personal representative of the mortgagor, by consent of the executor of the mortgagee, was held void. Mclver ». Cherry, 8 Hum., 713. A mortgagor seeking to re- deem may proceed against the assignee alone. Aikin v. Suttle, 4 Lea, 103. A trustee may file a bill to redeem land where he holds same under an assignment 28 MANUAL OF CHANCERY PRACTICE. Indeed it seems that the personal representative of a de- ceased mortgagor is always a proper, though not always a necessary, party to a bill to redeem.' If the mortgagor has made an assignment of his equity of redemption, the assignee may maintain the suit without making the mortgagor a party. But if the assignment be of the whole of the estate, free from incumbrances, the mort- gagor should, or at least may be made a party, in order to be bound by the decree, and to assist in taking the account.^ In many cases there are various persons having a privity of estate, under or with the mortgagor, of particular inter- ests, not embracing the whole fee, who are entitled to re- deem, and thus clear the property from all incumbrances, in order to make their own claims beneficial or available.^ Thus a tenant for life, a reversioner, a remainderman, a judgment creditor having a lien on the estate, or other person having a legal or equitable lien thereon, may insist upon a right to redeem. But in such case he should make other parties in- the same interest with himself parties to the suit, and the parties claiming the remaining interests are neces- sary parties.' Where the mortgagee is dead, both his real and personal representatives should be made defendants if the mortgage be of realty. But if it be of personalty, the personal repre- sentatives alone should be made defendants.'' Where the whole interest in the mortgage has been abso- lutely assigned by the mortgagee without the authority or privity of the mortgagor, the bill may be filed against the last assignee alone, however many mesne assignments may have been made. Where the assignments have been made with the privity of the mortgagor, the intermediate assignees need be made parties only in case they have interests which by a debtor after the land of the debtor has been sold under execution. Stark V. Cheatham, 2 Tenn. Ch. 303 ;, Weakley v. Cockrell, 2 Tenn. Ch. 319 ; Graves V. MoParland, 2 Cold., 169; Hufifaker v. Bowman, 4 Sneed, 98. 'Sto. Bq. PL, 182. 'Sto. Bq. PI., 185. »Sto. Eq. PI., 185. *Sto. Eq. PI., 185. •Sto. Bq. PL, 188. MANUAL OF CHANCERY PEACTICE". 29 are recognized, and to be asserted and protected. If the as- signment be absolute, and the amount due on'the mortgage is clearly stated in the assignment, they need not be made parties, as there is no settlement to make.' If an account is sought of rents and profits received by the mortgagee before the assignment, he is, of course, a nec- essary party .^ 13a. tarties where property is sought to be attached or sold, the legal ^nd equitable title not being in the same party. The owner of the legal title to property must be made a party where the equitable title is sought to be at- tached.' So where it is sought to have property sold by de- cree of the court in any other kind of proceedings, the gen- eral rule is, that the person in whom the legal title is vested must be made a party, and this for the obvious reason that otherwise the property will not only be likely to be sacrificed, but the purchaser will be driven to file a new bill in order to obtain the legal title, thus making two suits out of what should be disposed of in one.^ An exception is that a prior mortgagee is not required to be made a party to a bill to fore- close a subsequent mortgage. Nevertheless, the legal title is, of course, in the first mortgagee -unless indeed the first mort- gage be of an equity. An incumbrance by mortgage or otherwise will not affect the right to have land partitioned, nor sold for partition.^ Hence the incumbrancer need not be made a party.' 136. Parties to a bill to have an instrument delivered up for cancellation. To a bill to have notes delivered up and cancelled in the hands of a wrongful holder, on an alle- gation that they have been paid to the equitable owner, such equitable owner is a necessary party.'' iSto. Eq. PL, 189, 191. i^Sto.' Eq. PI., 190. 'Lane v. Marshall, 1 Heisk., 30. ^Alexander v. Perry, 4 Hump., 391. ^Code 3263, 3293. «Code 3271. 'Walker «;. Smith, 8 Yer., 238. 30 MANUAL OF CHANOBKY PRACTICE. 13e. Parties to redeem land that has been sold. A judgment debtor having sold and conveyed a tract of land which was subject to the lien of the judgement, the land was afterwards levied on and sold for the satisfaction of the judg- ment. Held, that to a bill filed by the vendor to redeem the land, the vendor was not a necessary party, as he had no legal or equitable right to the land, all his rights having' been vested in his vendee by his conveyance.^ 14. Parties where there has been an assignment, Pen- dente lite, of the subject matter of the litigation. Gen- erally speaking, an assignee, ■pendente lite, whether of a legal or an equitable interest, need not be made a party to a bill or be brought before the court, for, every person, purchasing ■pendente lite, is treated as a purchaser with notice, and is sub- ject to all the equities of the persons, under whom he claims in privity, whether he be the assignee of the compteiinant or of the defendant. But it is often very important to bring such assignees before the court, by a supplementary bill, to take away a cloud hanging over the title, or to compel the assignee to do some act, orto join in some conveyance. Such assignees are proper, though not necessary parties, unless the assignment is made before the service of process. In the latter case they seem to be necessary parties.^ 15. Where there is an Assignment for the benefit of the Creditors. Where an assignment has been made by a debtor for the benefit of his creditors, if any creditor seeks to enforce the trusts, he cannot sue alone ; but he must make all the other creditors, provided for in the assignment, parties, either by 'Jones M. Planters Bank, 5 Hum.. 624. ^Sto. Eq. PI., 156. When the complainant sells his whole right in the suit, or it becomes wholly vested in another, by operation of law, whether before or after decree,. if there is to be any further litigation in the case it must be done in the name of the person who has acquired the right. And if the complainant's interest is deter- mined by a voluntary assignment, the assignee must make himself a party to the suit by an original bill in the nature of a supplemental bill before he can be permitted to proceed. In such a case the proceeding must be carried on in the name of the real parties. Mills v. Hoeg T, Paige 21. MANUAL OP CHANCERY PRACTICE. 31 name, or by bringing suit on behalf of himself and all the other creditors who may choose to come in and take the benefit of the decree. But the assignees themselves may file a bill rela- tive to the trust estate, and to enforce its objects, without making the creditors parties ; for the assignees are, in such case, the proper representatives of all of them.^ 16. Where there are joint Interests, Claims or Liabili- ties. In cases of joint interest, joint obligations and con- tracts, and joint claims, duties and liabilities, the general rule is, that all joint owners, joint contractors, and other per- sons having a community of interest in the duties, claims or liabilities, who may be affected by the decree, should be made parties. But it seems that joint and several contracts from an exception io the rule so far as to allow the bill to be brought ordinarily against one or more of the persons sever- ally liable.^ As an illustration of the rule : one of several joint tenants in common cannot ordinarily sue or be sued in cases touching their common rights or interests without making the others parties.' So, persons having a joint interest in personal estate, such as the joint" owners of a ship, must all be parties, either as plaintiff's or defendants, where a suit is brought in regard to the interests therein. Thus to a suit for the earnings of a ship, or a suit on account of liabilities of the joint owners, all must be made parties.'' ^Sto. Bq. PI., 157. Where a bill is filed by a creditor to carry into effect an assignment of tbe debtor's property, the other creditors provided for in the assignment should either be made parties or the bill should be filed on behalf of the complainant and all of the other creditors provided for, who may choose to come in under the decree. But where the complainant is endeavoring to set aside the assign- ment as fraudulent and void, the rule is different. In such a case he cannot file the bill for himself and other creditors provided for; and where there are many creditors it would be unreasonable to compel him to be at the expense of making them all parties. In such a case it is sufBeient to make the fraudulent assign- ors and assignees parties defendant, without making the numerous creditors provided for, parties. Workman v. Grover, 4 Paige, 33. «Sto. Eq. PI., 159. »Sto. Sq. PI., 159. *Sto. Bq. PL, 166. 32 MANUAL OF CHANCERY PRACTICE. So, where a suit is brought by or against partners, all of them must be joined in the suit, either as plaintiffs, or de- fendants. And if a remedy is sought against the personal representative of a deceased partner, the surviving partners should be made parties, as they have an interest to contest the debt, and a right to be heard in taking the account.' And it seems that if the suit is brought against the surviving part- ners, the personal representative of the deceased partner should be made a party.^ But in the case of part owners and others, engaged in a common adventure, if some are to share a proportion of the ■ profits, only as a mode of payment of wages, and are not to share the profits and bear the losses in certain agreed pro- portions, they are not necessary parties.^ 17. Parties to bills for the Specific Performance or Re- cission of Contracts for the Sale of Land. If the vendor of real estate should die, and his personal representative brings a bill for the specific performance of the contract, all the heirs of the vendor should be made parties, either as plaintiffs or defendants.^ If the vendee should die, his real as well as his personal representative should be made parties defendant to a bill for specific performance.^ Where a bill is brought by heirs at law to set aside a con- veyance, made by their ancestor, for fraud or imposition, all of the heirs should be made parties.^ In the case of Cocke v. Evans, 9 Yerg., 294, it was said that in a bill for specific performance of a contract affecting the real estate, the widow and heirs of the deceased obligor, (who was owner thereof), as terre-tenants whose rights in the real estate were to be affected, were necessary parties defendant. In this case it does not appear whether dower had been as- signed to the widow or not. 'Sto. Eq. PL, 167. »Sto. Eq. PL, 167. '8to. Eq. PL, 168. *Sto. Eq. PL, 160, I77a. ^Sto. Eq. PL, 160, 177a. «Sto. Eq. PL, 160, 177a. MANUAL OF CHANCERY PRACTICE. 33 If dower had not been assigned, it is not easy to perceive how the opinion can be reconciled with that of Mims v. Mims, 1 Hum., 430, delivered by the same judge ; for, upoii princi- ple, no distinction can be made in this respect between a bill for specific performance, and a bill to foreclose a mortgage. If the learned judge had said that the widow was a proper party, the case could be reconciled with that of Mims v. Mime, whether dower had been assigned or not. As to the case of Mims V. Mims, see note ante 22. For a person may be a proper party who is not a necessary party. ^ 18. Parties to Bills to have the benefit of a Charge on an Estate, or to set it aside. Where a bill is filed to have the benefit of a charge on an estate, all persons must be made parties who claim an interest in the charge. And where leg- acies are made chargeable on real estate, all the legatees, whose legacies are so charged, should be made parties to the bill.2 But persons having a prior interest or incumbrance upon the property are not necessary parties to such suit, for their interests are not touched in such suit.^ So, a person claiming property adversely to the maker of a deed of trust, is not a necessary party to a bill filed by the creditors, of the maker to set it aside as fraudulent and void. But the interests of such adverse claimant cannot be af- fected by the decree.' 'A suit in Chancery for the conveyance of real estate which has, by the death of the vendor, who had executed bond_/b»' title, descended to his heirs, cannot be maintained against the personal representative alone without joining the heirs. And the Code, 2025, authorizing the representative to convey, does not change the rule. Hale v. Darter, 5 Hum., 79. Where bond for title to a tract of land had been executed to several obKgees, one of whom 'subsequently assigned his interest, it was held that the assignee could not maintain a bill for specific performance as to his share. That if the other obKgees would not join him as complainants, he must make them defen- dants, for a single contract cannot be split so as to authorize several suits in equity. Cook v. Hadley, Cooke, 466. 'Sto.Eq. PL, 164. 'Sto. Eq. PI., 164. *Bmotw. Blair, 5 Cold., 185. 3 34 MANUAL OF CHANCERY PEACTIOE. 18a. Parties where there has been an Assignment of a Chose in Action. The assignor of a debt or other chose in action, not transferable at law, must be a party to any suit by the assignee respecting it.^ It has been held that, if there remain any interest, right or liability in the assignor, which can be affected by the decree, the assignor should be made a party. And that to a bill by the assignee of a judgment, the assignor should be a party. But, although the assignee should make the assignor a party to a bill to obtain satisfaction of the judgment, yet the suit must be brought by the assignee. If the assignor refuses to join as a complainant, he may be made a defendant.^ Parties who are entitled to recover in a fiduciary capacity are sometimes permitted to bring the suit, as the representatives of those who are entitled to the benefit of the recovery. But it is never permitted where the party, in whose name the suit is brought, is not entitled to receive what may be recovered.^ Where the assignment is absolute and unconditional, and the legal title passes by the assignment, and no remaining right or liability is left in the assignor which can be affected by the decree, the assignee need not make the assignor a party. Thus, assignors are not necessary parties to suits, by assignees, on bonds, where there are statutes authorizing the assignment of such bonds. So, the assignor of a note in con- troversy, who has no interest in it, and against whom no re- lief is prayed, is not a necessary party to the bill.* 19. In cases of Administration. In addition to what ap- pears on this subject under other heads; it is a general rule that, wherever the personal assets of the deceased may be affected by the decree, his personal representative should be made a party. A life estate in certain slaves and their increase was be- queathed to one person, and the remainder interest to another person. The remainderman having died during the contin- 'Adam's Eq., 317. ''Field V. McGhee, 5 Paige, 540; Mumford v. Sprague, H Paige, 440. 'Adam's Eq., 317, and notes. ♦Adams' T^q.,Sl1; Ward v. Van Bokelen, 2 Paige, 289. MANUAL OE CHANCERY tRACTICB. 35 uauce of the life estate, his distributees jELled a bill to require the owner of the life estate to give bond with security for the forthcoining of the slaves at the termination of the life estate. Held : that the bill could not be sustained without a personal representative of the remainderman being before the court.^ In some cases where it has appeared at the hearing that the personal representative of the deceased was not a party to the suit, but ought to be so in the ulterior proceedings, the court has directed that the representative should be brought in, and heard in the proceedings before the master, without requiring the representative to be made a party by bill or otherwise. In such case he is considered as a p^'ty in the subsequent proceedings.^ So, where a bill is tiled under our statute for the appoint- ment of an administrator, such administrator when appointed is a party to the proceeding.' To a bill filed by a creditor, under the Code, 2267-2270, to subject the real estate of a deceased debtor to the satisfaction of such debts as remain upaid after the exhaustion of the personal assets, the personal representative is a necessary party ; for, should any assets be found in his hands, the chan- cellor must apply and exhaust them before decreeing a sale of the real estate ; and because the chancellor can only know how the estate has been administered by an investigation of the administrator's accounts, which can only be done efi^ect- ually by having the administrator before him.^ It was the design of the act that when the bill was filed by the administator, he should bring in all the creditors ; and if they are not so brought in, they may at their election come in and share ratably. And if the bill is filed by a creditor, the objects and effect of the bill must be the same. It was not intended that each creditor should file a bill as a remedy for the recovery of his debt.^ ^Alexander v. Espy, 6 Hum., 157; Thurmau v. Shelton, 10 Yer., 383; Brown V. Bibb, 2 Cold., 439. ' . ''Sto. Eq. PI., 170. 'Code, 2216. *Dulles V. Eeed, 6 Yer., 53. ^Dulles V. Reed, 6 Yer., 53 ; Cocke v. Evans' heirs, 9 Yer., 287. So the heirs at law, or devisees, as the case may be, must be made parties to a proceefliug by 36 MANUAL OF CHANCERY PEACTICB. The proper practice under this statute, in regard to making parties — taking into consideration the provisions of the stat- ute itself, the decision i-n 6th Yer., above cited, and the anal- ogies furnished by the practice in creditors' bills, and those of like character in other cases — would seem to be that when the bill is filed by the administrator or executor, it should be against the heirs or devisees, and such creditors as he may have knowledge of (or at least the principal ones), and all creditors not named who should come forward and have themselves made parties to the proceeding. If filed by one or more of the creditors, it should be on behalf of »the plaintiff' and all other creditors, (not made de- fendants), who should see proper to come forward and have themselves made parties on the usual terms required of per- sons becoming parties to creditors' bills, and should be filed against the personal and real representatives of the deceased. It is presumed that where dower has been assigned to the widow she need not be made a party, unless priority is claimed by some creditor, (on account of some lien or encum- brance on the land), over the widow's right of dower. But if dower has not been assigned it would seem highly proper, though perhaps not absolutely necessary, to make her a party and have her dower assigned in the proceeding be- fore decreeing a sale of the land. The necessary parties to the bill for the appointment of an administrator are designated in sections 2211 and 2212 of the Code, which are as follows : " Such bill, if filed by a creditor, shall be on behalf of all other creditors who may wish to come in and be made parties on the usual terms, and the distribu- tees and heirs may be made parties defendant. " If the bill is filed by the next ot kin, or any of them, it shall be on behalf of all the distributees and heirs against the creditors, who may become de- fendants." There are a variety of cases in which the personal repre- sentative as well as the real representative must be made a an executor or administrator, to subject the real estate to the payment of debts. They are entitled to have an opportunity to show that the personal assets have not been exhausted, or not properly administered, or that the debt sought to be made is not justly due; either of which facts, if established, will defeat the ap- plication in such case. Bstes «. Johnson, 10 Hum., 223. MANUAL OF CHANCERY PRACTICE. 37 party to a bill to enforce debts against the real estate charge- able thereon, but which are primarily chargeable on the per- sonal assets.^ Thus, where a testator charges his real as well as his per- sonal estate with the payment of his debts, inasmuch as the personalty is, by the rules of law, first chargeable, the per- sonal representative is an indispensable party, not only to take an account of the assets and disclose whether there is any deficiency, but also to make the decree attach primarily to the personal assets and secondarily to the real estate.^ But the case of the personal representative of a mortgagor, where a bill is filed to foreclose, is an exception to the rule that the party who is primarily liable for the debt must be made a party. The bill may be brought against the heir of the mortgagor ^After two years from administration a court of Equity will sustain a bill by legatees for their specific portion of decedent's estate against a third person who illegally detains from them the same, the personal representative being made a defendant also, it being charged that the administrator refused to bring suit for the property. Kincaid v. Rogers, 10 Hum., 83; or they can file a bill to compel an administrator to faithfully discharge his duty; Williams v. Otey, 8 Hum., 570. The personal representative is in general a necessary party to an action touching the personal estate of a decedent for the payment of debts, col- lection of assets, or distribution of the estate. Traiford v. Wilkinson, 3 Tenn. Ch., 451, and cases there cited. An administrator is not a necessary party where land is sold under a venditioni exponas, tested after the death of the debtor, al- though issued upon a judgment of condemnation in his life-time ; and the heirs are entitled to file a bill to recover possession of the land ; and the land is not liable in such case until the personal assets are exhausted by proper proceed- ings against the personal representative and the heirs brought before the court. Stockard v. Pinkard, 6 Hum., 120; Green v. Shaver, 3 Hum., 139 ; Perkins v. Norvell, 6 Hum., 151 ; Overton v. Perkins, 10 Yer., 328. Ordinarily the per- sonal representatives of a decedent are alone entitled to sue for the recovery of debts due the estate, but if they, by collusion with the debtor, refuse to take the necessary steps, are insolvent, and the debt is about to be lost, the parties ulti- mately entitled may, in equity, proceed against the debtor and representatives to enforce their right by proper decree. Mason v. Spurlock, 4 Bax., 554. The personal representative is not a necessary party to a bill to have the mortgaged property divested out of the heirs of the mortgagee. Mulinix v. Perkins, 2 Cold., 90. To a bill for a recission by a vendee and repayment of purchase money, the personal representative of the vendor is a necessary party. Baird V. Goodrich, 5 Heisk., 21 ; but is not a necessary party to a bill to enforce a specific lien on land by an attorney for services. McCamey v. Key, 3 Lea, 247. »Sto. Eq. PL, 172. 38 MANUAL OF CHANOBRY PRACTICE. alone, although the mortgage debt is primarily a charge on the personal assets.^ A suit in Chancery for the conveyance of real estate, which has descended to the heirs by the death of the ances- tor to whom it had belonged, and who had in his lifetime sold the same and executed his bond for title thereto, cannot be sustained against the personal representative alone of the vendor, without joining the real representatives ; and this rule is not changed by the Code, 2025-29, authorizing the personal representatives, in certain cases, to convey lands which the decedent had contracted to convey.^ A foreign executor or administrator is not a necessary or even a proper party to a suit afiecting the personal assets of the deceased^ An executor or administrator, appointed in ome State or country, is not, in virtue of such appointment, entitled to sue, nor liable to be sued, in his official capacity, in any other State or country/ It is a general rule in Chancery that, where there are sev- eral trustees, all of them should be made parties to a suit touching their interests as such. But, by sec. 2791 of the Code, where one of several executors or administrators re- moves out of the State, actions may be prosecuted, and judg- ments rendered against such as remain, in the same manner as if all were sued. 20. Parties to Bills seeking an Account. In many of the cases referred to in the preceding sections, persons were required to be made parties because they were interested in the account to be taken in the cause. It may be proper to add here, that an account may be sought by one against several, or by several persons against one ; and ihat all the persons on each side, having an inter- est in the account, are necessary parties. 'Sto. Eq. PI, 175. 'Hale V. Darter, 5 Hum, 19. 'Sto. Eq. PI, 179. *Young V. O'Neal, 3 Sneed, 57; cited in Car v. Lowe, 7 Heis., 97. MANUAL OF CHANCERY PRACTICE. 39 Thus, if an account be sought by or against partners, all the partners are necessary parties.^ So, if two executors or administrators are bound to render an account they should both be made parties. Unless one of them has removed from the State at least.^ And where different persons are interested in an account, although not in the same right, they should all be joined ; as, for instance, heirs and personal representatives, residuary legatees and distributees, mortgagors and mortgagees, and their assignees ; persons receiving and holding assets in suc- cession in virtue of their representative character ; and per- sons having distinct interests in the same security, either jointly or in succession.^ 21. Parties for Purposes of Discovery. A mere witness ought not to be made a party to a bill. JtTot only because, having no interest in the cause no decree can be rendered against him, but because he should not be harassed with the trouble and expense of a litigation in which he has no inter- est; and because his answer would not be evidence against his co-defendant.* Soine exceptioiis, however, to this rule have been established. The officers or agent of a corporation may be joined in the defense of a suit against the corporation. This is allowed, because a corporation cannot be required to answer under oath, and may therefore put in a false answer without incurring the penalties of perjury. But it seems that to authorize such officer to be made a party, some special ground, such as peculiar information, should be laid.^ So, the members of a corporation may be made parties to a bill, either for discovery albhe, or for discovery and relief, 'Sto. Bq. PL, 218. ''Code, 2791. The removal does not mean temporary absence, but a perma- nent change of residence. Bledsoe «. Huddleston, 5 Yer., 295. 'A decree against J. S. & Co. is simply a decree against J. S., and is void as to the persons constituting the company, but is not void as to J. S., nor is it even erroneous as to him if he fail to make at the proper time the objection of the omission to make the other partners parties. Moreaujj. Saffarans, 3 Sneed, 595. *Sto. Eq. PL, 234. 'Sto. Eq. PL, 2,35. 40 MANUAL OF CHANCERY PRACTICE. although they have no other interest than as corporators in the subject matter of the suit.^ The doctrine that an officer or agent of a corporation may- be made a party to a bill of discovery was recognized in the case of Lindsey v. James et al.^ But, it was there said, that this practice could not be re- sorted to when the same object could be accomplished by making such officer or agent of the corporation a witness. The long and the short of it seems to be, that if the officer or agent of the corporation is not personally interested, still in a proper case such officer or agent may be required to an- swer the bill under oath, not that such answer would be evi- dence against the corporation, (for it would not be evidence), but simply to enable the plaintiff, by amending his bill, so to frame it as to meet the facts of the case. There is, perhaps, no other case in which the desire of a plaintiff to obtain information to enable him to properly frame his bill, is recognized as a ground for a bill of discovery against disinterested persons who may be supposed to be able to give the desired information. "Where a bill is brought for a discovery merely, in aid of a defense at law, no other person, except the actual plaintiff at law, should be made a party to the bill of discovery, although others may be beneficially interested in the subject matter of the action at law.' But since our statutes in Tennessee allow a discovery to be had in- the court in which the case is pend- ing, this kind of bill in Chancery is seldom if ever resorted to- in this State. 22. To a Bill to Enforce a Vendor's Lien. The vendor of land who had executed bond for title, having filed his bill against the purchaser to enforce his lien for unpaid purchase money, both parties died pending the suit : Held, that as the legal title to the land descended to the heirs of the vendor, and the equitable title to those of the vendee, the heirs of both were necessary parties to the revival of the suit, by the ad- ministrator of the vendor.* iSto. Eq. PL, 235. ''Lindsay v. James, 3 Cold., 477. 'Sto. Eq. PI., 226a. *McCoy V. Broderick, 3 Sneed, 203. MANUAL OF CHANCBEY PKACTICB. 41 Sherrill purchased a tract of land from McTeer, and exe- cuted notes with Wright as his .security for the purchase money. To secure Wright, the bond for title was, by consent of all parties, executed to him instead of Sherrill. Sherrill being indebted to one Wilson, and being desirous to secure the payment thereof, Wright, by request of Sherrill, surren- dered the title bond, and McTeer and Sherrell executed a deed of trust, conveying the land to a trustee to secure the payment of the notes to which Wright was security, and the debt due Wilson. Wilson consented to this arrangement, believing that the land was sufficient in value to secure both debts. The trus- tee having sold the land at a very inadequate price, and for an amount sufficient to pay a very inconsiderable portion of the debts which the trust deed was intended to secure, while Wright was necessarily absent from the State, he, on his re- turn, tiled a bill to set' aside the sale, and have the land re- sold. Held : that Sherrill and McTeer having, by the deed 'of trust, appropriated the land to answer a special purpose, which they considered it equal to, and nothing more, they had no interest in the decree, and were not necessary parties ; and that if they had any interest, the decree could not bind it beyond the obligation of the trust.^ That the fund and the parties having power over it, being before the court, and acted upon by the decree, was all that was necessary to make the proceeding valid. McTeer and Sherrill had been made parties to the bill and had made no defense. » But the decree in the cause had been rendered without taking judgment fro confesso against them. In the Supreme Court this failure to take judgment pro con- fesso was insisted on by the other defendants as a fatal error. But the Supreme Court held that this failure to take judg- ment pro confesso could have no greater eflect than if no steps had been taken to make them parties. Hence, the reasoning in regard to the necessity of making them parties. High sold and conveyed a tract of land to Harris, taking a note for a large portion of the consideration which remained unpaid. Harris sold and conveyed the land, in several por- ^Wright V. Wilson, 2 Yer., 294. 42 MANUAL OF CHANCERY PRACTICE. tions, to the defendants, whom the hill alleged knew the con- sideration was unpaid by Harris to complainatit. That com- plainant was ignorant of the terms of the purchase by de- fendants, and whether or not they paid Harris the consider- ation, and that before the iiling of the bill, Harris had died insolvent. The bill sought against the defendants satisfaction of com- plainant's lien as vendor for the unpaid portion of the con- sideration. The defendants demurred to the bill. One of the grounds of demurrer was that the personal representative • of Harris ought to have been made a party defendant. Held : that the personal representative of Harris was not a neces- sary party. That the lien attaches to the land in such case, and the land is debtor, whether in the hands of the vendee, or his real representatives, or a purchaser from him, and that the vendor is not obliged to look to the personal estate of the vendee ; nor can the purchaser, from the vendee, compel the vendor to exhaust the vendee's personal estate before pro- ceeding against the land.^ 23. In cases of Agency. As has already been seen, a person who has no interest in the suit should not be made a , party. Thus, the mere agent in the transaction, such, as an auctioneer who has sold an estate, the sale being the matter of controversy, is not a proper party .^ ISTor a steward or a receiver of the rents and profits, when the controversy is be- iHigh V. Batte, 10 Yei-;, 186; Edwards v. Edwards, 5 Heia., 123; Harris v. Vaughn, 2 Tenn. Ch., 484. But the widow is a proper party. Same authority. The vendor's lien is fixed upon the land, and he need not make, the vendees of his vendee parties defendant to his bill to enforce his Hen. Fletcher v. Coleman, 2 Head, .S84;' Cook v. Dews, 2 Tenn. Ch., 500. If the vendor and vendee both die pending a suit to enforce a vendor's lien, the suit must be revived in the name of the vendor's administrator, and the heirs of the vendor and vfendee must be made parties and brought before the court. McCoy «. Broderick, 3 Sneed, 207; Alexander v. Perry, 4 Hum., 391. All of the holders of notes se- cured by a vendor's hen, expressly retained in the deed, on the same land, share ratably in the sale of the land ; and should be made parties to a bill to' enforce the lien. Tomlinson v. Pennebaker, 1 Tenn. Ch., 118; Ewing v. Arthur, 1 Hum., 537; Graham u. McCampbell, Meigs, 52; Barcroft v. Snodgrass, 1 Cold., 432. But an assignee in bankruptcy is not a necessary party. Willingham v. Leake, 7 Bax., 454. 'Sto. Eq. PI., 231. ' MANUAL OF CHANCERY PKACTICB. 43 tween the vendor and the vendee, to a hill for a specific per- formance. E^or an attorney or solicitor who has negotiated an annuity to a bill to set it aside on account (5f a defective memorial. Nor' an arbitrator, to a bill to enforce an award, or to set it aside. ^ But if there is a charge in the bill that there was fraud in the transaction, and that the agent, or steward, or attorney or solicitor, or arbitrator participated in it, he may be made a party ; for a decree might be rendered against him for the costs of the suit, if nothing more, if his principal should not be solvent.^ "Where a bill was filed against a party in whose hands it was alleged a note had been placed for the purpose of settlement between the plaintiff and the payee of the note, and for no other purpose, and the bill sought to have the note delivered up and cancelled upon the ground that it had, as was alleged, been fully paid to the said payee, it was held that the payee was a necessary party, he being the legal owner of the note if it had not been assigned, and still the equitable owner if it had been assigned for the purpose of settlement.' In this case the agent was also, of course, a proper party, as he had possession of the note which it was sought to have delivered up for cancellation. 24. Husband and wife. On this subject see ante sec. 3 and sec. 5. In all cases where the right or cause of action survives to the wife, after the death of her husband, she ought to be made a party to any suit brought by the husband to recover the property or debt. A distributive share survives to the wife, if not reduced to possession, or recovered by the hus- band in his life-time ; and on his death goes to the wife and not to his representatives. Therefore, the wife must be a party to a bill to recover it.* 25. Clerk of conrt. To a bill to enjoin a judgment for costs, the clerk of the court in which the judgmeijt was ren- 'Sto. Eq. PI, 231. 'Sto. Bq. PI., 232. ^Walker u. Smith, 8 Yer., 238. *Bryant v. Puckett, 3 Hay., 252. 44 MANUAL OF CHANCERY PRACTICE. dered is not a proper party, and a judgment against Mm for the costs of the injunction suit is erroneous, although he makes no defense and suffers the bill to he taken for con- fessed against him.^ 26. To a bill for subrogation. Where a surety had paid a judgment which had been rendered against his principal and himself, it was held that where the fact that the surety had paid the debt clearly appeared, and that fact was not at all denied or contested by the creditor, the principal debtor was not such a necessary party as would render it necessary for the court, on the hearing, to decline to substitute the surety to the rights and remedies of the creditor against his principal; but that the decree, of course, would not affect any rights the creditor might have, as he was not a party to the suit.^ ^MoGavock V. Elliot, 3 Yer., 373. An officer is often made a defendant to the bill upon tlie idea that it is necessary that he should be a party in order to make effectual service upon him of an injunction or other extraordinary process. This is a mistake. Such process operates upon the officer through the party who has the right to control his action. Public officers ought not to be unnec- essarily annoyed and interfered with by being made even' a nominal party. Montgomery v. Whitworth, 1 Tenu. Ch., 176; Stinson u. McMurry, 6 Hum., 339; Blanton v. Hall, 2 Heis., 423. See also Bloomstein v. Brien, 2 Tenn. Ch., 779; Wright v. Wilson, 2 Yer., 294; Buckner u. Abrahams, 3 Tenn. Ch., 346; Edney v. King, 4 Ired. Eq. Rep., 474. But where the officer has levied an execution or attachment on personal property, and has it in his posses- sion, he is then a proper party, because clothed with a, title to the property by virtue of his levies, which would enable him to sue for its conversion or for a trespass upon it. If they_ should dispose of the property after their knowl- edge of the injunction they could, by decree, be held liable for same. Buck- ner v. Abrahams, 3 Tenn. Ch., 348. So a clerk and master, to whom the note in controversy is payable, is a necessary party to a bill by one secondarily liable to compel its payment to exonerate complainant. Rice v. Hunt, 12 Heis., 346. ^Uzzel V. Mack, 4 Hum., 319; Miller v. Porter, 5 Hum., 29S; Bittick v. Wil- liams, 7 Heisk., 309 ; Gunn v. Tannehill, 2 Yer., 544 ; McNairy v. Eastland, 10 Yer., 310. Sometimes it becomes necessary to bring suit upon instruments made payable to public officers. It has been held in Tennessee that where the statute directs a bond for the public benefit to be payable to any public func- tionary, having legal succession, the office is the payee ; and the successor, whether described or not, eo nomine, either in the statute or bond, may yet maintain the action, such an officer being a corporation sole. See Polk v. Plummer, 2 Hum., 506; Governors. Allen, 8 Hum., 176; Felts v. Mayor and Aldermen, 2 Head, 656; Governors. Wiley, 4 Hum., 146; Cannon, adm'x, ». MANUAL OF CHANCERY PRACTICE 45 But, in such case, the creditor is not only a proper party, but it is presumed that he is such necessary party that a de- murrer would be sustained to a bill for subrogation which failed to make him a party. 27. To a bill for the removal of a trustee and appoint- ment of a successor. To a bill to remove a trustee in a deed of trust made to secure creditors, the maker of the deed of trust is a necessary party.^ 27a. Who are parties. A person against whom no process is prayed, or publication in lieu of process, is not technically and according to the established test a party to a bill.^ Thus in a suit against a lunatic's committee the lunatic is not a party unless process is prayed against him. "Where a bill does not point out specifically who are to be made parties, and prays that the proper parties may be made defendants, it was held that there was no party defendant to the bill.^ It is well settled that no persons are parties as defendants in a bill in chancery except those against whom process is prayed, or who are specifically named and described as defendants in the bill.* It has been said that when it is uncertain who are complainants or who are defendants, the suit is fundamentally defective, and if the parties are not clearly indicated it is the fault of him who brings the bill.* Snowden, 4 Hum., 361 ; Pindley v. Tipton, 4 Hay, 218; Merritt v. Governor, 4 Yer., 490. These were all suits at law. In equity the rule as to bringing suits upon bonds for the discharge of the duties of an office or trust made payable to the State, or to a public officer, is to bring the suit in the name of the person beneficially interested, and not to make the State or officer to whom the bond is. made payable a party at all, unless such payee is beneficially- interested in the subject matter of the suit. So where a guardian bond was improperly made payable to the justices of the county, instead of the chairman, as required by law ; and the ward, on arriving at maturity, brought a suit in equity in his own name, against the obligors, the bill was sustained. Ferrell v. Dooley, 6 Hum., 110. The rule laid down in Felts v. Mayor and Aldermen, 2 Head, 656, also applies in cases where suits are brought by public officers for the benefit of the public. ^Maxwell v. Finnic, 6 Cold., 434. ^Brasher v. Van Cortlandt, 2 Johns. Ch. R., 245. ^Hoyle V. Moore, 4 Ired. Bq. E., 176. n Marsh. Ky. is,., 594; 2 Johns. Ch. R., 245; 2 Dickens R., 101. ^Virplanck v. Mer. Ins. Co., 2 Paige, 449. 46 MAtrUAL OF CHANCERY PRACTICE. 21h. To a bill in the name of the State. Where a bill is filed in the name of the State, on the relation of a'third per- son, to test the title of the, circuit judge to the office, the attorney-general is a necessary party complainant.^ And to a bill to declare a forfeiture of a charter of incorporation.^ 27c. To a bill to impeach a decree. To a bill to impeach a decree, all parties to the original suit whose rights may be affected by the relief sought, are necessary parties. It is no sufficient cause of demurrer to the whole bill by any of the defendants that they are not directly charged with, the fraud, or connected with the unauthorized alteration, if the bill all-ege that those defendants knew by whom and when the alteration was made.^ 28. EflGect of joining parties who have no interest, or failing to join those who have ; and when and how the objection may be taken. "Where the objection of want of interest in one of several plaintiff's applies, it may be fatal to the whole suit. But, when it applies to defendants, it is only fatal to the suit as against the defendant improperly joined.* In such case a demurrer will lie, and is fatal unless the defect is cured by amendment.^ But a mere scintilla juris, in one of the plaintiffs, will be sufficient to justify joining him as a plaintiff", if the persons having the substantial interests choose to do so. But, by sec. 4338 of the Code, no objection for the misjoin- der of parties, plaintiff" or defendant, shall be taken at the hearing, but the court shall, in such case, decree upon the merits. And, by sec. 4337, if the defendant at the hearing object for want of parties, not having previously taken the objec- tion by plea, answer, or demurrer, the court may render a decree saving the rights of the parties not before it, or grant leave to amend on terms not extending beyond the payment of costs. iStateB. McCormell, 3 Lea, 332. 'State V. "Whites Creek Pike Co., 3 Tenn. Ch., 164, ^Paul V. Wiles, 1 Tenn. Ch., 519. *Sto. Bq. PI., 232. '^Decherd v. Edwards, 2 Sneed, 93. MANUAL OF CHANCERY PRACTICE. 47 If the want of necessary parties is apparent on the face of the bill, the defect may be taken advantage of by demurrer. But if not apparent on the face of the bill, the defense may be made by plea, or it may- be relied on in a general answer.' It will be seen from sec. 4337 of the Code, above quoted, that if the objection is not made till the hearing, the court is not authorized to dismiss the bill, but may render a decree saving the rights of the parties not before it, or grant leave to amend. And, even previously to the enactment of this statute, if the objection was not taken before the hearing, the court would, where there appeared to be merits, allow the case to stand over, that new parties might be made ; or if the bill was dismissed for want of the necessary parties, it would be without predjudice.^ It must appear where a demurrer is put in, or be shown by the plea, (where that mode of defense is adopted,) who are the necessary parties. But this need not, ordinarily, be done by name, but in such a manner as to point out to the plain- tiff the objection to his bill, and enable him to amend by ad- ding the necessary parties.^ Where there is a misjoinder of parties, if the defect is ap- parent on the face of the bill, the objection may be taken by demurrer ; and if the defect does not appear on the face of the bill, the defense may be made by plea or answer.'' Where a defendant is improperly joined, as, for instance, a person having, no interest, of course the person who is impro- perly made a party is the only person who can make the de- fense. Though, in adjudging the costs, the court should not allow costs in favor of the plaintiffs against the real defend- ants, arising from joining improper pa;rties as defendants, al- though the parties improperly joined made no objection. Parties are necessarily made according to the charges of the bill, and not the result of the decree.' 'Sto. Eq. PL, 236. 'Sto. Eq. PL, 236. ' 'Sto. Bq. PL, 238. *Sto. Eq. PL, 2Z1. The objection must be made by demurrer or motion to dismiss. Code, 4325. 'Cocke ».■ Evans, 9 Yer., 294. 48 MANUAIi OP CHANCERY PKACTICE. Thus, where a bill was filed against the personal represen- tative and widow, heirs of a deceased person, seeking an ac- count for moneys received by the deceased in his lifetime from certain real property, about which there was a contract be- tween the plaintiff and the deceased ; and also, to enforce a specific performance of the contract. Held, that the heirs were properly made parties, although it mjght turn out at the hearing that the plaintiff was not entitled to have a specific performance of the contract, but only an account against the administrator for. moneys received by the deceased.' The limits of this work will not permit a fuller elucidation of the subject of parties. 29. Of the diflferent kinds of bills. Bills vary in their form and denomination^ according to the objects for which they are exhibited. The most general division of bills, is into those which are original, and those which are not original. Original bills are those which relate to some matter, not be- fore litigated in the court by the same persons, standing in the same interests. Bills not original are those which relate to some matter already litigated in court by the same persons, and which are either an addition to, or a continuance of, an original bill, or both. 'Cocke V. Evans, 9 Ter., 294. In Tennessee it has been held that a want of interest in several parties complainant and a conflict of interest among the other complainants, constitutes a misjoinder of parties, which is fatal on de- murrer. Berdinatti u. Sexton, 2 Tenn. Ch., 704; Reed «. Noe, 9 Yer., 286; Deoherd v. Edwards, 2 Sneed, 99; Henderson v. Peck, 3 Hum., 247; Tilman v. Searcy, 5 Hum., 488. In" a proceeding to collect notes given for the purchase of the wife's land, and made payable to the husband, it is not a misjoinder of parties to make her a co-complainant. Mulherin and wile V. Hill, 5 Heis., 60. Where an executor resigned and another suc- ceeded him in the trust, and a bill was filed against them both for an account of their separate executorships, and asking for a separate account with each, the bill was held to be open to demurrer for misjoinder of parties.' Jefferson^ u. Gains, 7 Bax., 371. Only the person who is improperly made a defendant can demur, and a proper defendant cannot make the objection. Payne v. Berry, 3 Tenn. Ch., 154. If the plea of want of proper parties be allowed, the court should permit an amendment by adding new parties if the complainant who filed the bill is a necessary party, by reason of having an interest in the pro- ceeding. Franklin v. Franklin, 2 Swan., 526. If the demurrer be sustained for the want of proper parties, the bill should not be dismissed, but be allowed to stand over with leave to amend; by adding the proper parties. MANUAL OF CHANCERY PRACTICE. 49 Original bills are usually divided into such as pray relief, and such as do not. In a general sense, every hill in Equity asks relief. But in the sense in which the words are used in Courts of Equity, such bills only are deemed bills for relief, as seek from the court, in that very suit, a decision upon the whole merits of the case, and a decree which- shall ascertain and protect present rights, or redress present wrongs. Bills of discovery, and bills to perpetuate testimony, are not of this class. Bills not original are either : (1.) An addition to, or continuance of, an original bill, (such as a supplemental bill or a bill of revivor ;) or, (2.) They are for the purpose of cross litigation, or of con- troverting, suspending or reversing, some decree or order of the court, or carrying it into execution. Such are cross bills, bills of review, and bills to impeach a decree for fraud. We will now proceed to notice briefly some of the different kinds of original bills, reserving the consideration of those not original for a future chapter. 30. Original bills praying relief. Original bills praying relief are of three kinds : (1.) Bills praying the decree or order of the court touch- ing some right claimed by the party exhibiting the bill, in opposition to some right, real or supposed, claimed by the party against whom the bill is exhibited, touching some wrong done in violation of the plaintiff's right. This is the common bill in Equity. (2.) Bills of interpleader, where the person exhibiting the bill claims no right in opposition to the rights claimed by the persons against whom the bill is exhibited, but prays the de- cree of the court, touching the rights of those persons, for the safety of the person exhibiting the bill. (3.) Bills of certiorari, to remove a cause from an inferior Court of Equity. This last kind of bill is not used in America, and will not be further noticed in this^ork. 4 50 MANUAL OP CHAN,CERY PRACTICE. 31. Original bills not praying relief. Original bills not praying relief are of two kinds : (1.) Bills to perpetuate the testimony of witnesses, or to ex- amine witnesses de bene esse. The Code of Tennessee,' makes ample provisions and gives full directions in regard to per- petuating the testimony of witnesses. (2.) Bills of discovery, technically so called, which are used to discover facts resting within the knowledge of the party against whom they are filed, or of deeds, writings, or other things in his custody or power.^ As every bill is in some sense a bill of discovery, most of the observations hereinafter made on bills of discovery will also apply to bills for relief. 32. Of the ordinary bill for relief. In order that the court nlay be enabled to understand the case, and to admin- ister the proper remedial justice, and that the opposite party may be apprised of the nature of the claim, and of the re- dress asked, and be enabled to make the proper defense, the bill should contain a clear and exact statement of all the ma- terial facts. It should, therefore, show with reasonable certainty, the rights of the plaintiff; the manner in which he is injured; the person by whom it is done ; the material circumstances of the time, place, manner, and other incidents, all of which should be stated in a clear and orderly manner without prolixity or repetition, and should conclude with a prayer for the required process and appropriate relief.' It need not state any matters of which the court will take judicial notice, or is supposed to possess full knowledge. Hence, it need not state matters of law, or legal presump- tions, or recite public acts or laws, or aver facts which the court is bound judicially to know, such as the divisions of countries, the recognition of foreign governments by our own, the course of practice in the court itself, or any other 'Code, ssTe-sssg. 'Sto. Bq. PI., 19. 'Sto. Eq. PI., 23; Code 4314. MANUAL OF CHANCERY PRACTICE. .51 facts of a like public nature; wWch do or may concern the administriation of public justice.^ 33. Of the prayer of a bill. The prayer for relief is generally divided into two parts, viz : the prayer for specific relief, and the prayer for general relief. The prayer for general relief should never be omitted ; for if it is omitted and the plaintiff should mistake the relief to which he is entitled, no other relief can be granted him, unless he gets leave to amend his prayer. A mere prayer for general relief will in most cases be sufficient to enable the plaintiff to obtain such relief as he is entitled to, agreeably to the case made by the bill. But, it is the usual and most convenient practice to precede the prayer for general relief with a prayer for such specific relief as the plaintiff deems proper. And where extraordi- nary process is desired to issue, in the meantime, it must of course be prayed for specially. "Where there is no obstruction to the particular relief prayed, the plaintiff cannot abandon that, and ask a different decree under the general prayer.^ And under the general prayer the court will only give such relief as is agreeable to the case made by the bill.^ Except in a case where the answer makes out a case dif- ferent from that set forth in the bill.* If the plaintiff doubts his right to the relief he wishes to pray, he should frame his bill with a double aspect, so that if court should decide against him in one view of the case it may afford him relief in another. iSto. Eq. PI, 24. 'Lee V. Cone, 4 Cold., 392; Dan'l Ch Pr., 434, 435. ^Dan'l Ch. Pr., 435. *Rose V- Mynatt, 7 Yer., 30; Maiiry v. Lewis, 10 Yer., 118; Jamison v. Shelby, 2 Hum., 198. . On the subject of the prayer of a bill in the Chancery Court, Tennessee de- cisions are so numerous that I can only cite them: Eaton v. Breathett, 8 Hum., 636; Quin v. Leake, Tenn. Ch., 13; Whittleyz). Davis, 1 Swan, 333; James v. Kennedy, 10 Heis., 608; ,Dodd v. Benthall, 4 Heis., 610; Cox i). Waggoner, 5 Sneed, 546; Bartee v. Tompkins, 4 Sneed, 624; Pillow v. Pillow, 5 Yer. 420; Peck V. Peck, 9 Yer., 301; Hoyal v. Bryaon, 6 Heis., 141; Ross v. Sneed, 5 Sneed, 630; Quinby v. Nor. Am. Coal Co., 2 Heis., 597; Scott v. Fowlkes, 12 Heis., 703; Snannon v. Erwin, 11 Heis., 338; Grubb v. Browder, 11 Heis., '300; 5? MANUAL OF CHANCERY PRACTICE. .34. Of Multifariousness. A bill must not be multifarious. As to what constitutes multifariousness it is impossible to lay down any general rule. Every case must be governed, by its own circumstances, and the court must exercise a sound discretion on the subject. In new cases it is to be presumed that the court will be governed by those analogies which seem best founded in gen- eral convenience and will best promote the administration of Justice. I*Teither the number of the parties, nor the intricacy of their claims'on the one side or the other, will render a bill multifa- rious. It is their disconnection, or inconsistency, or the prac- tical inconvenience of considering them together, that renders it improper to embrace them in a single bill. Whenever a series of transactions have, a common origin, and are so connected that it is impossible to tell in advance what bearing one may have upon another, or how respective parties may be charged in reference to each other, they may be embraced in one bill.^ Hall V. Fowlkes, 746; Rogers v. Breen, 9 Heis., 679; Cunningkam v. Wood, 4 Hum., 417; Cocke v. Trotter, 10 Yer., 213; Wheatley v. Harvey, 1 Swan, 484; Ross V. Ramsey, 3 Head, 17; Frierson v. Blanton, 1 Bax., 281; Murrell v. Elam, 4 Bax., 236; Glass v. Porter, 7 Bax., 115; Thr'uston v. Belote, 12 Heis., 250; Hodge u. Copely, 11 Heis., 334; MoBee u. MoBee, 1 Heis., 563; Beech u. Haynes, 1 Tenn., 572; Maury v. Lewis, 10 Yer., 118; Bailey v. Bailey, 8 Hum., 230; Collins v. Knight, 3 Tenn., 188; Allum v. Stockbridge, 8 Bax., 356; Masson v. Anderson, 3 Bax., 302. ^Bartee v. Tompkins, 4 Sneed, 623; Woodward v. Hall, 2 Tenn. Ch., 169. The uniting in one bill of several matters of equity distinct and unconnected against one defendant is not multifarious. Code, 4327. The interests and lia- bilities of defendants may be separate, yet if they flow from the same fountain, or radiate from some common centre, they can be joined in the same suit. Johnson v. Brown, 2 Hum., 328; Fogg v. Rogers, 2 Cold., 296; Fay v. Jones, 1 Head, 444. Where a debtor having many creditors makes a fraudulent convey- ance of difif'erent portions of his property to different grantees, and the property is then disposed of to different persons, not innocent purchasers, the creditors may all join in a bill against all of the fraudulent grantees and those who claim under them. Moses v. Brodie, 1 Tenn. Ch., 398; Wilson v. Davidson county, 3 Tenn. Ch., 537 ; Hughes u. Tennison, 3 Tenn. Ch., 641; Doherty «. Steven- son, 1 Tenn. Ch., 518. But a bill is multifarious when several matters of a dis- tinct nature are complained of against different defendants; or that unites against a single defendant several distinct matters. Miller v. Harris, 9 Bax., 101. So is a bill which sets up complainants equity to land against a portion of MANUAL OF CHANCERY PRACTICE. 53 35. Of scandal and impertinence in pleadings, affi- davits or other proceedings. Care should be taken in Rawing a bill, answer or other pleading, or an affidavit, or any other proceeding whatever in chancery, to avoid scanda- lous or impertinent matter. Otherwise, upon due reference and report of the master, the impertinent or scandalous mat- ter will be expugned and the party and his counsel be liable to pay costs to the party aggrieved.^ "It is the duty of the court to discountenance prolixity and unnecessary and false allegations in 'all chancery plead- ings, and for this purpose the court may, of its own mo- tion, or upon application of the opposite party, refer the pleadings to the master to be revised or order particular parts to- be strickeil out, and charge the party in fault with the unnecessary costs. "^ the defendant's and seeks a decree vesting their, legal title in him, and asks for an account of rents and profits. Bruton v. Rutland, 3 Hum., 435. A bill is multifarious which seeks, as against the heirs of the vendor under whom the complainant claims to perfect the title, and as against another set of defendants who claim under a different right, to try the right of possession, and the superi- ority of title. Hickman v. Cooke, 3 Hum., 640. Different demands against different parties not flowing from a common center render a bill multifarious. Ohio Life Insurance Co. v. Merchant's Insurance Co., 11 Hum., 34. A bill is mul- tifarious which seeks a partition of land between the complainant and defendants; and also to subject the interests of one of the defendants to the payment of an individual claim of one of the complainants, Rogers ». Simpson, 10 Heis., 655. The subject of multifariousness is further discussed in the following cases : Cart- nell V. McLaren, 12 Heis., 41; Smith v. Thomas, 4 Heis., 116; Reed v. Noe, 9 Yer., 283; Governor ». McEwen, 5 Hum., 263; Colville v. Colville, 9 Hum., 524; Winchester «. "Winchester, 1 Head., 484; Partee v. McAlister, 6 Hum., 408; Hinton v. Cole, 3 Hum., 656; Decherd v. Edwards, 2 Sneed, 99; Thurman V. Shelton, 10 Yer., 386; State v. Duncan, 3 Lea, 681. A bill against several parties is' not multifarious, when all their respective rights and equities are so connected that the court can determine and adjust them. Neal». Reed, 1 Bax., 333. A bill to remove defects and clouds from land title, recover possession, and an account for rents and profits, is not multifarious, Pulliam v. Wilkinson, 1 Bax., 616. But a bill which seeks two separate accounts from two separate persons, upon matters having no connection, is multifarious. Jefferson v. Gains, Y Bax., 368. One of the tests of multifariousness, in its aspect of misjoinder of actions between the same parties, is, that the same defense cannot be made to the several parts of the bill. And another test is that the relief under each branch will be different. Berdanatti v. Sexton, 2 Tenn, Ch., 704, 'Sto, Bq. PI,, 266; Danl, Ch, Pr, 397; 1 Ch. Rule, sub-sec, 4, ^Code, 4316; Campbell v. Taul, 3 Yer,, 564. Discussed and reprehended. 54 MANUAL OF CHANCERY PEACTICE. Scandal consists in the allegation of anything which, is un- becoming the dignity of the court to hear, or is contrary to good manners, or which charges some person with a crime not necessary to be shown in the cause. So, unnecessary al- legations bearing cruelly on the moral character of an indi- vidual, and facts not material to the decision which are re- proachful, are scandalous.' But nothing that is relevant can be deemed scandalous, un- less the mode of expression make it so.^ Impertinence is the introduction of matters into a bill, an- swer or other pleading, or in an ajSidavit, deposition or other proceeding in a suit, which are not material to the decision of the case? The introduction of scandalous or impertinent matter in a bill does not justify similar matter in an answer to meet the improper allegations in the bill.'' 36. Time and manner of referring pleadings for imper- tinence and scandal. According to the ordinary practice of a Court of Chancery, a bill cannot be referred for imperti- nence after the defendant has answered, or has submitted to answer. But, it may be referred for scandal at any time, and even by leave of the court, upon application of a stranger to the suit. The reason of the dilSerence is the great and permanent injury which scandal is calculated to do to all persons whom it affects by making the records of the court the means of perpetuating libellous and malignant matter.^ So, an answer cannot be referred for impertinence after a reference for insufficiency, but it may be for- scandal.''' It seems that the exceptions to any pleading, aflBldavit or other proceeding for scandal, or impertinence, should be in writing, and should point out the exceptional matter with 'Danl. Ch. Pr., 397. 'Sto. Eq. PL, 862. »Sto. Eq. PI., 266; Danl. Ch. Pr., SSY, 839, 1397. *Langdon v. Pickering, 19 Maine, 214. »Sto. Eq. PL, 270, «Sto. Eq. PL, 867. MANUAL OF CiSANCBRY PRACTICE. 55 Sufficient certainty to enable the adverse party and the master to know what particular passage is excepted to and is to be stricken out, if the exception is sustained.' 37. Bills of interpleader. Where two or more persons claim the same thing, by difterent and separate interests, and another person not knowing to which of the claimants he ought of right to render a debt or duty, or to deliver prop- . erty in his custody, fears he may be injured by some of them, he may file a bill of interpleader against Iphem.^ A claim made upon a party aftbrds a ground for his filing a bill of interpleader, though no legal proceedings have been commenced against him. Even a liability to be called on by different persons for the demand, gives a right to file such a bill, to determine which of the parties is entitled. It is no objection to the bill that the right of one of the claimants is actionable at law and the other in Equity, or that a suit is pending between the claimants.^ The bill must show that the plaintiff has no interest in the fund, and must have an affidavit annexed, that there is no collusion between him and any of the parties ; and if there is any money due, the plaintiff must bring or offer in his bill to bring it into court, or it is ground of demurrer. The bill must state the several claims of the opposing parties ; and a mere pretext of conflicting claim will not be snfficient. And if the defendant, as the agent of one of the parties has received the money of his* principal, or for his use, he cannot sustain the bill. If a bill of interpleader is sustained, the ordinary, decree is, that the defendants do interplead," and the plaintiff with- draws from the suit. Although a bill of interpleader does not lie where the plaintiff claims an interest in the subject matter, yet a bill, in the- nature of a bill of interpleader, frequently lies by party in interest, to ascertain and establish his own rights, where there are other conflicting rights between third persons.'* ^Danl. Oh. Pr., 401, 402, and authorities there cited. ^an'l Ch. Pr., 1560; Sto. Bq. PL, 291; State Ins. Co. v. Gennett, 2 Tehn. Ch., 83 and 101; McBwen v. Frost, 1 Sneed, 193; Parkes v. Carroll, 1 Bax. 271. »Dan'l Ch., 1753, 1754. *Sto. Bq: PL, 291, 2976. 56 MANUAL OF CHANCERY PRACTICE. 38. Bills of Discovery. Every bill for relief is, in a certaiji sense, a bill of discovery, as it seeks a discovery from the defendant of tbe matters charged in the bill. But, a bill of discovery, properly so called, is a bill for the discovery of facts, resting in. the knowledge of the defendant, or of deeds or writings, or other things in his custody or power, and seeking no relief in consequence of the discovery, although it may pray for the stay of proceedings at law till the discovery is made. It is used to enable the party who prosecutes or defends a suit at law, which has either been brought, or intended to be brought, to obtain a discovery of the facts, which are material to the prosecution or defense of the same. But, as section 3891 of the Code authorizes a petition for discovery to be filed in a suit at law, in all cases in which the party would be entiled to a discovery in aid of such suit, by the rules of Equity, it is presumed that hereafter this kind of bill will seldom, if ever, be resorted to in Tennessee, unless it be in aid of a suit pending in a sister State. A bill of discovery never prays any relef. The plaintiff is entitled only to a discovery of what is necessary to maintain his own title; as for example, the deeds under which he claims. But he is not entitled to a discovery of the title of the other party, from whom he seeks the discovery. The plaintiff must show an interest in the subject matter, to which the discovery relates, and must state a case which will constitute a just ground of suit or defense at law. It cannot be filed in aid of a suit for a penalty, forfeiture, writ of mandamus, or of a criminal prosecution.' It must allege, (and if put in issue, the allegations must be sustained by proof,) that the facts are material to the plain- tiff's case, and that the discovery of them by the defendant is indispensable as proof; that the plaintiff is unable to prove such facts by other testimony.^ A bill of discovery will not be sustained where the oath of defendant to his answer is expressly waived, for that would 'Sto. Eq. PL, 311, 325; Lindsey v. James, 3 Cold., 477, ^Lindsey v. James, 3 Cold,, 477; Whitesides v. Latferty, 9 Hum., 27. MANUAL OF CHANCERY PRACTICE. 57 be useless, as the defendant would of course-jadmit nothing to Ms prejudice. Where a discovery is necessary aganist a corporation, it is sonaetimes allowable to make a principal officer or agent of the corporation a party to a bill so far as it seeks a discovery.* 38a. Creditors' right to a discovery in certain cases. In a very lengthy decision made at ITashville, by the present Supreme Court, the rights of a judgment creditor, by bill of discovery, to reach concealed personalty of the debtor, were very greatly enlarged. The decision is a novel one, and con- tains some rather startling features. Yet the principles an- nounced undoubtedly ' should be the law; and the decision will stand the test of both reason and authority. The case, briefly is this: A judgment creditor with an execution re- turned nullabona, and with an alias execution in the hands of the sheriff filed his bill against the judgment debtor alone, alleging, upon circumstantial information, that the debtor was the owner of specific articles of personal property which would be subject to execution if found; but from their nature were susceptible of being secreted or concealed either upon the debtor's person or otherwise, and further charging that the debtor was in fact fraudulently concealing said arti- cles of property for the purpose of preventing their being taken by the executioner, the bill praying that the debtor be com- pelled to discover where the articles were concealed; and also .compelled by process of attachment for contempt to deliver up the property to be subjected to the satisfaction of complainant's judgment, and the question was whether the court had jurisdiction to entertain such a bill. The bill was 'Lindsey v. James, 3 Cold., 477; Smith v. St. Louis Mutual Life lus. Co., 2 Tenn. Ch., 600; Van'Wickw. Norvell, 2 Hum., 192; MoLord v. Linville, 10 Hum., 164. The answer of the defendant to a bill of discovery may be used as evidence; and the complainant is bound by it unless he disprove it, Jones u. Davidson, 2 Sneed, 452; Lancaster v. Arendell, 2 Heis, 435; Thompson v. French, 10 Yer. 458; Murry u. Johnson, 1 Head, 354; Spurlock v. Pulks, 1 Swan, 290. For further information on bills of discovery, see Hinkle v. Currin, 1 Hum., 74; Thurmand ». Durham, 3 Yer,, 99; Whitesides v. LafFerty, 9 Hum., 27; Mann & Co. v. Bamberger, 4 Heis,, 489; Maguire v. Caruthers, 5 Hum., 414; also Milliken's Dig., 486 and 570, where numerous authorities are collated. 58 MANUAL OP CHANCBKY PRACTICE; sustained and the relief granted. The opinion closes in this language : "We confine our decision to the case presented, and are not to be understood as intimating that a bill might or might not be maintained to compel a defendant t'o discover whether he has money to pay his debt. We express no opin- ion as to whether a watch may be taken in execution or comes under the head of personal apparel."^ 39. Of the form of a bill. It was formerly supposed that nine distinct parts were necessary to every bill in Equity, to- wit: (1,) The address of the bill. (2,) The names and ad- dress of the complainants and defendants. (3,) The premises or stating part of the bill. (4,) The charge of confederacy. (5,) The charging part. (6,) The averment of jurisdiction. (7,) The interrpgating part. (8,) The prayer for relief. (9,) The prayer for process.' But some of these are now admitted to be useless, and are discontinued in practice; and, under the Code, (sec. 4314,) the bill is required to contain a clear and. orderly statement of the facts on which the suit. is founded, without prolixity or repetition, and conclude with a. prayer for the required pro- cess , and appropriate relief, without averring any formal combination or confederacy of the defendants or others, the insufficiency of the remedy at law, or other mere formal mat- ter. Under the Code, a bill will usually consist of four or five parts, presented in the following form : (1,) The Address. To the Honorable 0. P. lemple, Chancellor, etc., holding the Chancery Court at Madisonville : (2,) The Names of the Parties. Jacob Givens, administrator of the estate of Zachariah Give'ns, deceased citizen of Macon county, complainant, vs. James Givens, Joseph Johnson and John Smith, citizens of Monroe county ; William Irwin and wife, Martha Irwin, citizens of McMinn county ; and Jonas Givens, a citizen of the State of Missouri,, defendants. (3,) The Stating Part. The complainant respectfully shows to the court that in the month of August, 1866, Zachariah Givens departed this life, intestate, at his residence in Monroe 'Cresswell v. Smith, 8 Lea, 688. MANUAL OF CHANCERY PRACTICE. 59. county, leaviag the said James Giveps, Jonas Glvens and Martha Irwin, his only children and heir.s at law, whose places of residence are , respectively as stated above. Complainant is the administrator of said estate, duly appointed and qualified. The whole of the available personal assets of said estate for the payment of debts amounted to about the sum of one thousand dollars, and complainant has applied them all to the payment of the debts and liabilities of said estate, leaving bona fide debts, as he believes, outstanding and unpaid, to the amount of about one thousand dollars, to-wit : A note due one John Smith for three hundred dollars, dated January 1, 1865, and payable at one day ;, and a note due Joseph Johnson for about seven hun- dred dollars, the date of which is not now remembered by complainant. There may be other claims against said estate which have not yet been presented. The said Zachariah Givens died seized and possessed of a tract of one hun- dred and sixty acres of land, more or less, lying in the eighth civil district of Monroe county, being the southeast quarter of the 29th section, 3d township, 2d range east, Hiwassee district, which is the only assets now left for the pay- ment of said outstanding debt. (4,) Ihe Prayer. The complainant prays that process issue against the resident defendants aforesaid, and that publication be made as to said Jonas Givens, agreeably to the provisions of the law applicable to such cases, to cause said defendant to appear ; and that they be required to answer this bill fully and particularly ; that an account of the assets and liabilities of said estate be taken ; that said land, or so much' thereof as may be necessary, be sold to pay said outstanding liabilities of said estate ; and also any bona fide debts and charges against said estate which may be found t,o exist in favor of any other creditors not named herein who may choose to come forward and become parties to this proceeding, and establish their claims to the satisfaction of the court. He also prays that such other and general relief may be granted to him, as the nature of his case shall require. Wm. B. Reese, Solicitor for Complainant. In addition to the parts contained in the above form, it may sometimes be expedient to. embrace what is called the interrogatory part, or at least to enumerate, in connection with the prayer, and ask that the defendant be required to answer such interrogatories as it is deemed material that he should answer. This part of the bill was formerly considered indispensable in most of litigated cases, owing to the difficulty of extract- ing the truth from an unwilling defendant, except by par- ticular and searching interrogatories. But, in Tennessee, it is not so important, as formerly, to obtain a full and complete answer, as the defect may be 60 MANUAL QF CHANCERY PRACTICE. remedied by taking the party's deposition, it being enacted by section 3890 of the Code, that, " In all Chancery causes, and proceedngs in the nature of Chancery causes, the depo- sitions of parties maybe taken by the opposite side, or by a co-party on the same side, when the latter is entitled to such evidence, upon notice simply, as in the case of other wit- nesses." But, if the complainant desires to confine the dis- closures to any particular facts, without making a witness of the defendant for all purposes, it will be expedient to resort to interrogatories in the bill, in which case the answer of the defendant will only be evidence so far as it is responsive. 40. Of Signing and Swearing to Bills. 1. Signing Them. It is not essential to the validity of a bill or petition, that the conaplainants should sign it. It is sufficient if their names appear in the body or caption. And if the name of a feme covert is used, with that of her husband, as a complainant, she IS a party to the suit.' But every bill, whether original or not, niust be signed by counsel. And if it is not, it may be taken from the files, on motion of the defendant.^ This is to secure regularity, relevancy and decency, in the allegations of the bill, and the guaranty of counsel that, ac- cording to the instructions given them, there is good ground for the suit ; and the counsel may be ordered to pay costs to the party aggrieved, where he inserts irrelevant, impertinent or scandalous matter.^ A bill cannot be signed after it is filed, without an order of court; but signing on the back has in one case been held sufficient.'' 2. Swearing to Them. "Whenever a bill seeks to remove the cognizance of a cause from a Court of Law to a Court of Equity, it should be accompanied by an affidavit of the cir- cumstances on which the application to equity is founded. 'Swan u. Newman, 3 Head, 288. 'But by the Code of Tenn., 3979, no objection can be taken to the bill if the complainant sign it in his own proper name. It is not material whether the counsel sign the bill on the face or back. «Sto. Bq. PI., 47, and notes' *Sto. Eq.. PI., 47. MANUAL OF CHANCERY PRACTICE. 61 , So, whenever any immediate order, or interposition of the court is requested, as for example : On a bill of injunction, a bill of ne exeat, an at^iachment bill, or a bill seeking the im- mediate appointment of a receiver or Of an administratoj-, an affidavit is required of the truth of the bill, to protect the jurisdiction of the court from abuse.' Bills for divorce are required to be verified by an affidavit upon oath or affirmation, before a justice of the peace, or the judge or clerk of the court, that the facts stated in the bill are true to the best of complainant's knowledge and belief, and that the complaint is not made out of levity, or by col- lusion with the defendant, but in sincerity and truth, for the causes mentioned in the bill.^ To dispense with service of process in any case, the facts upon which the application for order of publication is grounded shall be stated under oath in the bill, or by separ- ate affidavit, or appear by the return.^ A bill seeking to have th^ property of a person laboring under disability sold must be sworn to.' So, bills seeking relief on lost bonds, or upon deeds, etc., in the defendant's possession, must be sworn to. And so must bills of review.^ And also, bills to take testimony de bene esse, and bills to perpetuate testimony." In bills of interpleader, an affidavit is always required of the plaintiff, that he does not collude with either of the de- fendants ; and if the bill is filed by an officer, in behalf of a company, he must annex a like affidavit, and add, to the best of his knowledge and beliet, the company do not collude with the defendants.' Upon the whole, it is safest to annex an affidavit to a bill where there is any doubt on the subject.' 'Barton's Suit in Eq., by Holoomb, 49. 'Code, 2453. 'Code 4353. *Oode 3329. ^Sto. Eq. PL, 313, 412; Birdanatti v. Sexton, 2 Tenn. Ch., ^05; Parsons v. Wilson; 2 Tenn., 260. «Sto. Bq. PI., 304, 309. 'Sto. Eq. PL, 297. 'But a petition or bill to partition land need not be sworn to. See Martin v. 62 ■' ■ MANUAL OF CHANCERY PRACTICE. 3. Before Whom. Bills required' to be under oath, may be sworn tq in the State, before any judge, clerk of a court, or justice of the peace, whose attestation shall be evidence of the fact.^ They may be sworn to out of the State, before a notary public or a commissioner of this State, whose attestation shall be accompanied by his seal of ofBce ; or before a judge or justice of the peace of the State, whose official character shall be attested by the clerk of the court in which the judge presides ; or by the clerk of a county court, in the case of a justice of the peace.^ 4. Form of the Affidavit. State of Tennessee, "1 Monroe Goimty. f Jacob Givens makes oath tjiat the statements in Ms. foregoing bill, made, as of his own knowledge, are true, and those made as on information and belief, he believes to be-true. Jacob Gitens. Subscribed, and sworn to, before me, this 1st day of May, 1868. S. P. Hale, Clerk and Master. For form of affidavit to Dill for divorce and to bill- of inter- pleader, see the affidavit annexed to the form of bill herein given in each of those cases.^ 41. Of bills praying an attachment, injunction or ne exeat. Injunctions, attachments, writs of ne exeat, and other extraordinary process, are granted by the chancellors, circuit judges, and judges of special courts.^ An attachment may also be granted by any justice of the peace, or by the Porter, 4. Heis., 410, 411, citing and explaining Bucker v. Moore, 1 Heis., 731. If a bill is filed by next friend, he is the proper party to swear to it. Leftwich r. Hamilton, 9 Heis., 313. ^Code, 4330; and before notaries pubHc, Code, 18026. iiCode, 4330. 'Post, 42, 46. *Code, 4434. The judges and chancellors are such for the whole State at large, and as such may, upon interchange and upon lawful ground, exercise the duties of office in any other judicial circuit or division in the State. Code, 3915 ; 1 Bax., 178. The judges and chancellors shall have interchangeable and concur- rent jurisdiction to grant injunctions, attachments and all pthev extraordinary process, issuable out of and returnable to any of the circuit or chancery courts of tkis State. Code, 3946. The chancellor of one division may suspend an exe- cution fi'om the Chancery Court .of another division upon a petition returnable MANUAL OF CHANCERY PRACTICE. 63 clerk of the court to which it is made returnable.^ But see sec. 4125, sub-sec. 1, which seems to limit the power of the justice of the pe.iee to attachments, (unless returnable before a justice of the pet^ce), returnable to the Circuit Court. A bill asking extraordinary process does not differ in form from other bills ; but it must, of course, contain the necessary facts to warrant the%ssnance of the process sought, and such a bill must, as already shown, have an affidavit of the truth thereof annexed to it.^ It must also contain a statement that it is the first applica- tion for such process.' It may be remarked that extraordinary process may be -ob- tained if the'necessity therefor arises during the progress of a cause, by petition ; but the petition must be upon oath or supported by affidavits. The application for a ne exeat is usually made ex parte with- out notice, as giving notice might cause the very mischief the writ is intended to prevent. The application for a ne exeat must be supported by an affidavit of the debt, and of the intention of t\e party to go abroad ; and if the applica- cation be against an executor or administrator, the affidavit must charge that assets have come to his hands, etc.* thereto. In re Thomas Chadwell, V Heis., 630. Upon making the requisite fiats for and granting such extraordinary process, it shall be the duty of the judge Or chancellor to enclose the papers accompanying the application and the order made in a sealed envelope, directed to the clerk of the court to which the fiat of .the "court is directed, which envelope shall Be opened only by the clerk or his deputy. Code, 3947. * « iCbde, ,3463. . ^To obtain writs of attachment, the bill- must allege cue or more' of the causes mentioned in 3455 of th6 Code'; or exhibit a nulla bona return. Code, 4283 ; or where there has been a fraudulent conveyance to hinder and delay creditors. Code, 4288. ' Wilson v. fieadle, 2 Head, 510, 513. ?Code, 4435. *Danl.'Ch. Pr., 193Y, 1938. 64 MANUAL OF CHANCERY PRACTICE. Form of the Bill. An injunction bill may be in the following forna : To the Honorable 0. P. Temple, Chancellor, etc., holding the Chancery Court at Madisonville : John Smith, Complainant, T -. , T "*' 1 f All citizens of Monroe County, Tennessee. Jacob Jones and Thomas Brown, Defendants. J The complainant respectfully shows to the court that on the 15th day of Jan- uary, 1868, he recovered a judgment in the Circuit Court of Monroe county against defendant Jones, for five hundred dollars and the costs of suit (amount- ing to about twenty-five dollars), upon which said judgment an execution issued on the 1st day of February, 1868, and has been returned by the sheriff of said county, " No property found." The complainant further shows that said Jones held a note on one Henry Wil- son, a solvent and responsible man, who is & citizen of Murray county, Georgia, for two thousand dollars, bearing date about the 1st of January, 1868, and pay- able to said Jones at twelve months. That said Jones has assigned and delivered said note to said Thomas Brown, as collateral security, to secure the payment of a debt for ahout one thousand dollars. The complainant prays that process issue to cause said defendants to appear, and that they be required to answer this bill fully and particularly; that they disclose the natuire and exact amount of said debt due from sai'd Jones to said Brown ; that an account be taken ; that the proceeds of said note on said Wil- son, after satisfying the debt due said Brown, be subjected to the satisfaction of complainant's said judgment; that a receiver be appointed to take possession of said note and collect the same, and hold the proceeds, subject to the order of this honorable court ; and that said Brown be required to deliver said note to such receiver when appointed; that an injunction in the meantime issue to re- strain the defendants from collecting or disposing of said note; and that such other, further and general relief may be granted to complainant as the nature of his case may require. The [complainant further shows that this is the first application for an injunction in this case. N. Gbeeu, Solicitor for Complainant. (Annex Af&davit of the truth of the bill.) A ne exeat is, prayed for in the following manner : " That the writ of ne exeat republica issue, staying the said John Doe and Richard Roe, or either of them, from departing into parts beyond this State, and out of the jurisdiction of this honorable court, without leave first had."^ ^Smith V. Koontz, 4 Hay., 189; Union Bank v. Newman, 4 Hum., 330; Code, 4434. In the Haywood case above, Judge Cooper, in a note, questions whether under the new Constitution, A.rt. I., sec. 18, prohibiting the Legislature fi-om passing any law authorizing imprisonment for debt in civil cases, a ne exeat will lie. MANUAL OF CHANCERY PEACTIOB. 65 If any application for extraordinary process is made and refused, no other application shall be granted, except by the court in which the bill is filed.' The proper course, where the application is refused, would be to file the bill, notwithstanding such refusal (unless the party desired to abandon the suit), and the application for the extraordinary process might, if deemed proper, be re- newed to the court. When an application for extraordinary process is refused, the judge or' chancellor -endorses his refusal on the bill, and signs his name thereto.^ But if the application is granted, he writes his fiat for the extraordinary process on the bill, which, in ordinary cases of injunction, may be as follows : To the Clerk and Master of the Chancery Court at Madisonville: Issue an injunction, as prayed in the foregoing bill, on the complainant giving bond and security, as required by law, in the sum of one thousand dollars. This Ist day of May, 1868. 0. P. Temple, Chancellor, etc. Where the object of the bill is to enjoin a money demand, after judgment, the fiat need not fix the amount of the bond, as the law fixes it at double the sum sought to be enjoined. Upon granting the fiat, the judge or chancellor envelopes the bill and fiat under seal, and directs it to the clerk and master, of the court in which the bill is filed, who alone is authorized to open the package.' It will sometimes be necessary for the judge or chancellor, in his fiat, to direct what shall be the condition as well as the penalty of the bond for an injunction or ne exeat.* The fiat for a ne exeat must also fix the amount of the bail bond which the sheriff is to take from the defendant. 'Code, 4436. 'Code, 4437. »Code,'4438. *Newell V. Moore, 10 Hum., 325. 5 66 MANUAL OF CHANCERY PRACTICE. 42. Form of bill for divorce. To the Hon. O. P. Temple, Chancellor, etc., holding the Chancery Court at Madisonville: Rachel Smith, ") . V. V Both Citizens of Monroe County. John Smith. J The complainant respectfully shows to the court that she and the defendant were lawfully married in said county on the 1st day of May, 1860, and have resided there ever since. That about the 10th day of July, 1868, the defendant committed adultery, in^ said county, with one Polly Cash, as complainant is informed and believes. Complainant is also informed and believes that he has repeatedly committed adultery with said Polly, both before and since that time. Complainant has twochildren, the issue of said marriage, to-wit: James Smith, aged about five years, and Jane Smith, aged about one year. She therefore prays that a sub- poena issue to compel the defendant to appear and answer this bill, and that the bonds of matrimony subsisting between him and complainant be dissolved ; that sufficient alimony be decreed to her out of his estate, and that their said infant children be committed to her. Nathan Geeen, Solicitor. State of Tennessee, I Monroe County, f Eachel Smith makes oath that the statements in her foregoing bill, to the best of her knowledge and belief, are true, and that her complaint is not made out of levity or collusion with the defendant, but in sincerity and truth for the causes mentioned in the bill. Rachel Smith. Sworn to and subscribed before me, December 20, 1868. S. P. Hale, Clerk and Master. 43. Form of biU to have an administrator appointed. To the Honorable 0. P. Temple, Chancellor, etc., holding the Chancery Court at Madisonville : D. W. Latimer, a citizen of Monroe county, on behalf of himself and all other creditors of the estate of C. A. Gurley, deceased, who shall come in and be made parties on the usual terms, vs. Martha Gurley, Josephine Gurley and George Gurley, citizens of Blount county. The complainant respectfully shows to the court that in the j'ear 1863 Calvin A. Gurley departed this life, intestate, leaving defendant Martha, his widow, and defendants Josephine and George, his only children and heirs at law ; that said Josephine and George are minors and have no regular guardian. That said C. A. Gurley, at the time of his death, resided in Monroe county. That six months have elapsed since his death, and no person will apply or can be procured to administer his estate. MANUAL OF CHANCERY PRACTICE. ■ 67 That said C. A. Gurley died seized and possessed of a tract of laud, lying iif the l7th Civil District of Blount county, containing about two hundred acres, adjoining the lands of Jack Sanders, Harvey Bright and others, being the same on which the said Martha Gurley and family now reside, and that said land is all the available assets for the payment of the liabilities of said estate. Dower in said land has not been assigned to said widow. Complainant further shows that said C. A. Gurley, at the time of his death, was indebted to complainant by note for one thousand dollars, dated 20th day of August, 1862, and payable at one day, which, with the interest thereon, remains wholly unpaid, and marked exhibit (A) is herewith filed, and prayed to be taken as part of this bill. Complainant prays that process issue to cause the defendants to appear, and that they be required to answer this bill fully. That a guardian ad litem be ap- pointed for said minors. That an administrator on said estate be appointed. That all necessary accounts to settle and wind up said estate be taken. That the assets belonging to said estate be applied, so far as necessary, to the satis- faction of the liabilities of said estate. . That the administration of said estate be conducted under the authority of this honorable court, in accordance with the statute applicable to such case; and that such other, further and general re- lief may be granted to cornplainant as the nature of his case may require. Thomas L. Williams, Solicitor. (Annex Affidavit.) 44. Form of a bill to sell property of persons under disability. To the Honorable 0. P. Temple, Chancellor, etc., holding the Chancery Court at Madisonville : Joseph Smith, a citizen of Monroe county, guardian of William Green and Mary Green, complainant. va. William Green and Mary Green, citizens of said county, defendants. The complainant respectfnlly shows to the court that the defendants are minors, and complainant is their regular guardian. Said William Green is sixteen years old, and said Mary is ten years old. Said minors, as heirs at law of their deceased father, the late Joseph Green, are the owners, as tenants in common in fee simple, of a tract of land lying on the waters of Natchez creek, in the Tth Civil District of Monroe county, con- taining about three hundred acres, bounded as follows: On the north, by the land of Joseph Boyd; on the west, by the land of J. H. Kelso; on the south, by the land of Joseph A. Young, and on the east, by the land of A. Hawkins. Said land is unencumbered, and is all the property of any kind which is owned by the defendants in the State of Tennessee. Complainant is informed that said Joseph Green died seized of a tract of land lying in Greene county, Missouri, containing one hundred and sixty acres, more or less, which descended- to the defendants as his heirs at law, and that this and the above described tract in this State is all the property or means of any kind owned by the defendants. 68 MANUAL OF CHANCERY PRACTICE. Complainant fiirtlier shows that all of said land except about fifty acres ot said first mentioned tract, is uncleared and unimproved, and that the rents and profits of the real estate of the defendants are wholly insufficient for their sup- J>6rt and education, and are, indeed, little more than sufficient to pay the taxes. The defendants are well connected, and are of bright natural intellect, but their parents both being dead, they have no friend who will incur the expense of edu- cating ttem, as their condition in life requires; and it is absolutely necessary that said first mentioned tract 'of land be sold for the- purpose of educating the defendants in a manner suitable to their condition. Said land is also loose, rolling land, which is almost constantly washing away and depreciating in value. The complainant prays that process issue to cause the defendants to appear and answer this bill ; that a guardian ad litem be appointed for the defe'ndants ; that said first named tract of land, or so much thereof as is necessary, be sold to procure funds for the necessary support and education of the defendants, and that such other, further and general relief may be granted to complainant, as the nature of his case may require. W. B. Reese, Solicitor. (Annex Affidavit. ) 45, Form of bill to enforce wife's equity to settlement. To the Honorable 0. P. Temple, Chancellor, etc., holding the Chancery Court at Madisonville : Martha Doe, the wife of John Doe, a citizen of Monroe county, who sues by her next friend, Bichard Roe, who is also a citizen of said county, complainant, vs. John Doe, Thomas Fen, James Pen and Richard Pen, citizens of the same county, defendants. ^ The complainant respectfully shows to the court that her father, the late John Den, of said county of Monroe, departed this life on the 1st day of June, 1865, at his residence, in said county, having first made and published his last will, in which he directed that as soon after his- death as practicable, all of his property of every nature and kind whatever should be sold by his executor, and the pro- 'ceeds applied: first, to the payment of his funeral expenses and the costs of the administration of his estate ; second, to the payment of his just debts ; and third, that the surplus should be paid over to complainant, to whom he bequeathed the proceeds of his entire estate after the payment of debts and the expenses of the administration of the estate. Complainant further shows that said testator in his said will appointed said Thomas Pen executor thereof, and that after the death of said testator, to-wit : at the July term, 1865, of the County Court of Monroe .county, said will was admitted to probate, and said Thomas Pen thereupon entered into bond with James Pen and Richard Pen, his sureties, as required by law, and qualified as executor of said will. Complainant further shows that the proceeds arising from the sale of prop- erty belonging to said estate, sold by said executor, amounted to about the sum of two thousand dollars ; that two years have elapsed since the grant of let- ter's testamentary to said executor; that the expenses of the administration MANUAL OF CHANCERY PRACTICE. 69 and all the liabilities of said estate have, been fully paid and satisfied, leaving in the hands of said executor a surplus of one thousand dollars, to which the complainant is justly entitled as the sole legatee under said will, and that said executor refuses to pay said surplus to complainant, as he is in duty, bound to do. Complainant prays that process issue tq make said John Doe, Thomas Fen, James Fen and Richard Pen, parties defendant to this bill, and that they be re- quired to answer the same fully ; that the said Thomas Fen be required to state 'and show the amount of assets that have come to his hands as executor of said John Den ; how he has applied the same, and the amount of funds in his hands still belonging to said estate ; that an account be taken and a decree rendered in complainant's favor and against said Thomas Feu and his said sureties for such an amount as may be found due her under said will ; that said fund be settled upon a trustee for the sole and separatfe use of the complainant, free from the liabilities and control of her said husband ; and that such other, further and general relief may be granted to complainant as the nature of her case may require. (Annex affidavit.) Thomas L. Williams, Solicitor. 46. Form of a bill of interpleader. To the Honorable 0. P. Temple, Chancellor,, etc., holding the court at Madi- sonville . James Jackson, a citizen of Monroe county, complainant, vs. William Wilson and Thomas Malone, citizens of the same county, (Monroe), defendants. The complainant respectfully shows to the court that about the 20th day of May, 1867, he purchased of defendant Wilson a lot of bacon, amounting to about five thousand pounds, for which he agreed to pay the said Wilson the sum of five hundred dollars, for which complainant executed his promissory note to said Wilson, payable at thirty days. Complainant further shows that sometime afterward, to-wit: about the 10th day of June, 1867, the said Thomas Malone sued out an attachment against one David Jones as an absconding debtor; that said attachment having come to the hands of John J. Crippen, sheriff of said county, he summoned com- plainant as a garnishee and gave notice to complainant not to pay any debt due or afterwards to become due said David Jones, and to retain possession of all the property of the said David Jones which was then or might afterwards be in his custody, or under his control, to answer the garnishment ; and the said sheriff and William B. Turley, the attorney of the said Thomas Malone, ap- prised said complainant that said bacon, purchased as aforesaid by complainant of the said William Wilson, was the property of the said. David Jones, for whom the said William Wilson was only an agent, or factor, and insisting and giving notice to complainant that he would be held liable if he paid the pur- chase money for such bacon to said Wilson. Complainant further shows that he made application to the said Thomas Ma- lone for leave to pay over the purchase money for said bacon to the said 70 MANUAL OF CHANCERY PRACTICE. William Wilson without subjecting himself to responsibility therefor, to him, the said Thomas Malorie, which was refused; and complainant also applied to the said William Wilson to relieve or secure complainant against the effect or operation of said attachment and from any flirther responsibility in the prem- ises, but he, the said William Wilson, has wholly refused so to do, and has com- menced an action at law in the Circuit Court of Monroe county to recover said purchase money agreed upon as the price of said bacon ; and complainant further shows that he has always been willing to pay said money to such person as should be lawfully entitled to receive the same, and to whom he could pay the same with safety ; and he hereby offers to pay the same into this honorable court; and complainant further shows that he does not in any respect collude with either the said William Wilson or the said Thomas Malone touching the matter in question; that he has not exhibited this bill at the request of either of them, and that he has not been indemnified by said defendants or any or either of them, but merely of his own free will and to avoid being molested and injured touching the matter contained in. said bill. Complainant therefore prays that process issue to compel said defendants to appear, and that they be required to answer this bill fully and particularly ; that said defendants be required to interplead and settle their rights to said sum of money, and that complainant may be at liberty to pay the same into court; and that the said William Wilson be perpetually enjoined from further proceed- ing in said suit at law ; and that said Thomas Malone be, also, perpetually en- joined from commencing any suit against complainant touching the premises ; that an injunction in the meantime issue to restrain said Wilson and said Ma- lone, as above prayed, till the final hearing of this cause; that complainant, upon payment of said sum of money into court, and procuring the said defend- ants to interplead, according to the course of this honorable court, may be de- creed to be discharged from all liability to said defendants in the premises, and may have all his costs therein ; and that such other and further relief may be granted to complainant as the nature of his case may require ; and complain- ant ftirther shows that this is the first application for an injunction in this case. William B. Reese, Solicitor for Complainant. State or Tennessee, \ Monroe County. J James Jackson makes oath that the statements in his foregoing bill made as of his own knowledge, are true, and those made as on information and belief, he believes to be true, and that there is no collusion between him and any of the defendants. James Jackson. Subscribed and sworn to, before me, this 1st day of Maj', 1867. Stephen P. Hale, Clerk and Master. 47. Of Filing Bills and Executinjg Bonds. The bill be- ing prepared, (and having been submitted to a judge or chancellor, for his fiat, in cases requiring a fiat,) it is to be filed with the clerk and master, and bond, with security, given for the prosecution of the suit, unless the complainant MANUAL OF CHANCERY PRACTICE. 71 sues in forma pauperis ; and if an injunction, or attachment, is obtained, an injunction or attachment bond, as the case may be, must be given according to the fiat of the judge.^ And upon the bill being filed, and the required security given, it is the daty of the clerk and master to endorse on the bill the date of the filing.^ But the clerk and master's endorsement on a bill of the time of its being filed is only prima' facie evidence of the fact, and it may be shown by tes- timony aliunde that it was filed at another time. Thus, where a bill was brought to the office in the clerk's absence, and left with a person instructed by the clerk to receive and file bills, etc, the testimony of that person was received to fix the day of filing at an earlier day than that endorsed upon it by the clerk upon his return home.^ From this decision, it will be seen that the filing of the bill is the commencement of the suit, although process is not to be issued till the prosecution bond is executed. 48. Form of Prosecution Bond. We, Joseph Smith and John Brown, acknowledge ourselves indebted to William Green and Mary Green in the sum of two hundred and fifty dollars, to be void if the said Joseph Smith shall prosecute, with effect, an original bill, this day filed by him in the Chancery Court, at Madisonville, against the said Wil- liam and Mary Green; or, in case of failure therein, shall pay all such costs and damages as may at any time be adjudged against him on account of such failure. This 10th day of May, 1868. Joseph Smith, John Brown. 49. Form of an Attachment Bond. ' We, James Wilson and Edward Cannon, acknowledge ourselves^indebted to Thomas Lee in the sum of two thousand dollars (double the amount of the de- mand), to be void if the said James Wilson shall prosecute, with effect, an at- tachment, this day obtained by him against the property of the said Thomas Lee, in the Chancery Court, at Madisonville, or in case of failure therein, shall pay all costs which may be adjudged against him; and all such damages as the said Thomas Lee may sustain by the wrongful suing out of said attachment. This 1st day of May, 1868.* James Wilson, Edward Cannon. 'Code, 3187. See also 3188 and 3189. "Code, 4339. ^Montgomery v. Buck, 6 Hum., 416. *Code, 3471. 72 MANUAL OF CHANCERY PRACTICE. 50. Injunction Bonds. Before issuing the writ of in- junction, the clerk and master is required to take from the complainant, besides the usual bond for the proseciition of the suit, a bond conditioned, according to the object of the bill, as follows : (1.) When a judgment at law has been obtained, the con- dition of the bond shall be to pay the amount of the judg- ment, at law, with interest, damages and costs, or to perform the decree of the court, in case the injunction is dissolved; and also to pay such damages as may be sustained by the ' wrongful suing out of the injunction. (2.) When, before judgment at law, the investigation of the questions involved have been drawn, by injunction, into the Court of Chancery, upon the ground of concurrent juris- diction in, that court, the condition of the bond shall be to pay costs and damages, awarded by the Chancery Court on dismissing the bill.' The penalty of the bond shall be as follows : If the object is to enjoin a money demand after judgment, in double the judgment, or sum sought to be enjoined. In all other cases, in such sum as the court shall order. In the absence of any order, in the sum of five hundred dollars.^ It will often be necessaiy and proper for the Judge or chancellor, in his fiat, to direct what shall be the condition of the bond, as well as the penalty.^ Whenever the security is to be taken in any other county than that in which the court is held, the clerk and master may appoint a commissioner in the county where security is to be taken to judge of the sufiiciency of the bond and se- curity, and to take the same as he himself might do.^ In taking an injunction bond under the fiat of the judge or chancellor, the clerk and master is discharging a judicial act. Still, he may accept a bond-, although the sureties are 'Code, 4439. ^Code, 4440. 'Newell V. Partee, 10 Hum., 325. *Code, 4441. MANUAL OF CHANCERY PRACTICE. 73 not present and do not acknowledge it before him, if he is fully satisfied that the sureties are good, the signatures gen- uine, and that the bond was executed under such circum- stances as to bind the obligors ; and the bond when accepted becomes invested with the verity and force of a record.' 51. Form of a bond for an injunction to enjoin a money demand after judgment. We, William Jones and Samuel Smith, acknowledge ourselves indebted to Joseph Wilson in the sum of one thousand dollars, (double the amou,nt to be enjoined), to be void if the said William Jones shall prosecute with effect an in- junction suit which he is about to commence against the said Joseph Wilson in the Chancery Court at Madisonville ; or, in case of failure, shall pay the amount of the judgment at law, to be enjoined by said suit, with interest, dam- ages and costs ; or shall perform the decree of the court in case the injunction is dissolved, and shall also pay such damages as the said Joseph Wilson shall sustain by the wrongful suing out of said inj nnction. This 1st day of May, 1868. William Jones. Samuel Smith. 52. Form of bond when the suit at law is enjoined be- fore judgment. We, William Jones and Samuel Smith, acknowledge ourselves indebted to Joseph Wilson in the sum of one thousand dollars, to be void if the said Wil- liam Jones shall with effect prosecute an injunction suit which he is about to commence against the said Joseph Wilson in the Chancery Court at Madison- ville; or, in case of failure, shall pay such costs and damages as shall be awarded by the court on dismissing said bill. This 1st day of May, 1868. William Jones. Samuel Smith. ■ 53. Of suing in forma pauperis. Suits may be prose- cuted in chancery in forma pauperis : In that case the com- plainant will take and subscribe the following oath before the clerk and master, which is filed with the papers in lieu of a prosecution bond :^ State of Tennessee, \ Monroe County. J I, John Den, do solemnly swear that owing to my poverty I am not able to bear the expenses of the suit which I am about to commence in the Chancery Court, at Madisonville, against Richard Pen, and that I am justly entitled to the redress sought by said suit to the best of my belief. John Den. Subscribed and sworn to, before me. May 1, 1868. Stephen P. Hale, Cleric and Master. 'Ward V. CuUom, 2 Cold., 353. •Code, 3192. 74 MANUAL OF CHANCERY PRACTICE. There is no express provision authorizing the issuance of extraordinary process in forma pauperis. But it was held in a case at law that an ancillary attachment might issufe under the provisions of the statute. The original summons in that case had also issued in forma pauperis? The right to sue in forma pauperis is a personal privilege, and does not extend to executors and administrators.^ ISTor to a guardian or next friend. But it extends to citizens of other States.^ ^Barber ». Denning, 4 Sneed, 267 ; cited in Eobb v. Parker, 4 Heis., 72. •McCoy V. Broderiok, 3 Sneed, 203. See Johnson v. Hunter, 1 Tenn. Leg. Eep., 168 ; Green v. Harrison, 3 Sneed, 131 ; Cohen v. Shyer, 1 Tenn. Ch., 192. •Lissenbee v. Holt, 1 Sneed, 42. But now see the acts of 1879, chap. 94, which amends Code, 4144, so as to exclude non-residents from suing in forma pauperis. Quaere : Does this act only apply to suits before justices of the peace ? The section, 4144, intended to be amended, only applies to justices of the peace. See Code, 3192. By 3192a of the Code, (addenda,) guardians of persons of unsound mind, idiots and lunatics, may sue in forma pauperis, by making oath that he has no property of his ward out of which to bear the ex- penses of the suit. CHAPTER II PROCEEDINGS TO CAUSE THE DEFENDANT TO APPEAR, AND TO COMPEL HIM TO ANSWER, AND ISSU- ANCE AND SERVICE OF EXTRAORDINARY, AS WELL AS ORDINARY PROCESS. 54.' Issuance and form of subpoena to answer. 55. Form, of an attachment. 65a. Lien of attachments. 56. Form of an injunction to restrain the enforcement of a judgment. 57. Writ of ne exeat. 58. Form of the writ. 59. General directions as to form of writs of attachment, ne exeat and in- junction. 60. Of the service of process. 1. Service of subpcenas to answer and injunctions. 2. Attachments. 3. Service by garnishment. 4. Form of garnishment. 5. Service of a ne exeat. 6. Service of process on infants, lunatics, corporations, and the agents of absent principals and companies. 7. Issuance and service of process on Sunday: 61. . Return of process. 62. In what cases personal service of process is dispensed with. 63. Of publication, in lieu of personal service of process. 64. Evidence of publication. 65. Proceedings to compel an answer, process of contempt. 66. Form of an attachment for contempt. 54. Issuance and form of subpoena to answer. Upon the bill being filed and the required security given, it is the duty of the clerk and master, after endorsing on the bill the date of the filing, and entering the -cause in his rule docket, to forthwith issue a subpoena to answer and copy of the bill for the defendant and all other process ordered.^ 'Code, 4339. 76 MANUAL OF CHANCERY PRACTICE. He issues only one subpcena to each county, embracing therein all the defendants in such county.' The subpcBna to the couijty in which the bill is filed shall be accompanied by one copy of the bill, to be delivered to any one of the defendants named in the subpoena.^ And the clerk shall issue,, upon demand, to any one of the defendants, his agent or attorney, in the county in which the bill is filed, to whom no copy of the bill appears by the sheriff's return to have been delivered, a certified copy of the bill, to be charged in the bill of costs.' The counterpart subpoena to any other county shall be ac- companied by a copy of the bill for each one of the defend- ants named therein, to be delivered to such defendant when the subpoena is served.* The subpcena may be substantially as follows : State of Tennessee, > Monroe County. J To the Sheriff of Monroe County : Summon James Givens to appear on or before the 1st day of June next be- fore the Chancery Court, at Madisonville, to answer the bill of Jacob Givens, administrator of Zachariah Givens, deceased, and have you then and there this writ. This 15th day of May, 1868.^ S. P. Hale, Clerk and Master. Although the above form (taken from the Code) is tested of the day of its issuance instead of the first day of the pre- ceding term, as was formerly the practice, yet a subpcena tested, according to the old practice, would not, it is pre- sumed, be vitiated thereby. Indeed, so far as the observa- tion of the author has gone, most of the clerks continue the old practice of testing all process as of the preceding term, and he has never known of any exception being taken to the practice. The form of an attachment, laid down in section 3474 of 'Code, 4341. , *Code, 4342. •Code, 4344. 'Code, 4343, modified by the act of 18V7, chap. 45, so as to require one copy of the bill to the defendants in each county, which shall be read to each defend- ant when the subpcena is served. •Code, 4340. MANUAL OF CHANCERY PRACTICE. 77 the Code, like the above form of subpoena, is dated at the foot of the process with the actual date of its issuance. But it was held in a court of law that an. attachment ^tested as of the former term was sufficient, the date of its issuance being endorsed on the back of it.' But since all process, excejpt final process, may now, by rule of court, be madp returnable on a rule day, it seems very proper that it should bear the real date of its issuance.^ When a portion of the defendants live in another county, and a counterpart is issued for them, it is to be noted by the clerk and master on the original subpoena to answer, that'a counterpart has been issued to the other county for the other defendants; and on the counterpart, that it is a counterpart of the original.^ Thus, on the original: "A counterpart of this subpoena to answer, issued to McMinn county, for Wil- liam Ervin and wife, Martha. Stephen P. Hale, C. and M." On the counterpart: "This is a counterpart of an original subpoena to answer, issued in Monroe county, for James Griv- ens. Stephen P. Hale, C. and M." The counterpart will only difirer from the original in being addressed to the sheriff of another county, and in the names of the parties to be summoned. 55. Form of an Attachment. State of Tennessee, To the Sheriff of Monroe County : Whereas, A. B has filed his bill of complaint, upon oath, in the Chancery Court at Madisonville against C. D., charging, among other things, that the said C. D. is justly indebted to him in the sum of one thousand dollars, due the 1st day of January, 1865, which, with the interest, it is charged, remains wholly unpaid; and that said C. D. has removed himself from the State of Tennessee, having (one bay horse and perhaps other) property in said county of Monroe, subject to attachment; and praying, among other things, that a writ of attach- ment issue to be levied on said (horse and other property), which prayer has been granted and bond given, as required by law, in attachment cases. Now therefore (by the order and fiat of the Hon. 0. P. Temple, chancellor, etc., to me directed), you are hereby commanded to attach (said horse andj so much of the (other) estate of the said C. D. as will be of value sufficient to satisfy the debt and costs, according to the complaint; and such estate, unless re- »Swan w. Roberts, 2 Cold., 162. 'Cade, 4348. 'Code, 2821. 78 MANUAL OF CHANCERY PRACTICE. plevied, so to secure that the same may be liable to further proceedings thereon, in the Chancery Court, to be held at Madisonville on the first Monday of June next, when and where you will make known how you have executed this writ. Witness, Stephen P. Hale, clerk and master of said court, at office in Madi- sonville, this 1st day of May, 1867. Stephen P. Hale, Cleric and Master. If the bill does not specify any particular property to be attached, and there is no fiat for the attachment, the portions of the above form, which are in parenthesis, will, of course, be omitted. The necessary changes in the above form, to meet dift'erent cases, will readily suggest themselves. 55a. Lien of Attachments. Where the property attached is mentioned in the bill or writ, the lien accrues at the filing ot the bill or suing out of the attachment at law; but where the property attached is not mentioned in the bill or writ, there is no lien on the property till a levy is made.' 56. Form of an Injunction to restrain the Enforcement of a Judgment. State op Tennessee. To the Sheriff of Monroe County: Whereas, A. B. has filed his bill of complaint (upon oath) in the Chancery Court, at Madisonville, against C. D., charging, among other things, that on the 15th day of January, 1867, the said'C. D. recovered a judgment against him in the Circuit Court of Monroe county, for one thousand dollars, founded on a note which had been executed by the said A. B., in coiisideration of a certain tract of laud lying in said county, for which he holds the bond of said C. D., binding him to make the said A. B. a general warranty title to said tract of land, upon the payment of the purchase money; and charging, further, that said C. D. is unable to make a valid title for said land, and praying, among other things, the issuance of a writ of injunction to restrain said C. D. from further proceeding to enforce said judgment, till further order of said court, which prayer has been granted. Now, therefore, by the fiat of the Hon. 0. P. Temple, Chancellor, etc., to me directed, you are hereby commanded to make known to the said C. D. that he is strictly enjoined and commanded, that he by no means proceed any further in the collection of said judgment, but that he desist from all further proceed- ings thereon, till further order of said court. Herein fail not. And make re- turn of this writ to said court, on the first Monday of December next. Witness, Stephen P. Hale, Clerk and Master of said- court, at office, the 1st Monday of June, 1869. Stephen P. Hale, Clerh and Master. 'Lacey et al, v. Moore et al, 6 Cold., 348. But section 4287 of the Code, which gives a lien in certain cases, from the filing of the bill, does not apply to cases where an attachment at law would lie. Allen v. Gilliland, 6 Lea, 535, MANUAL OF CHANCERY PBAOTICB. 79 57. Writ of ne exeat. The writ of ne exeat regno is, in England, a prerogative writ, which is issued to prevent a per- son from leaving the realm.^ In America it is not treated as a prerogative writ, but as a writ of right, in the cases in which it is properly grantable.^ But the writ and its attributes are almost entirely derived from the English authorities and practices.^ In general it will not be granted except for equitable debts and claims, and not for legal demands. It is in the nature of equitable bail.* But there are two cases (exceptions to the general rule) in which it lies for claim demandable at law, to-wit : (1.) To enforce against a husband alimony which has been decreed to the wife. (2.) In the case of an account in which a balance is ad- mitted by the defendant, but a larger claim is insisted on by the creditor.' The equitable demand must be certain in its nature and actually payable, and not contingent. It should also be for some debt or pecuniary demand. .The writ will not lie for a demand of a general unliquidated nature, or a demand in the nature of damages. But the debt need not be directly created between the parties, if it is fixed and certain. Thus the cestui que trust, or assignee of a bond, may have the writ against the obligor.^ Since the abolition of arrest and impri^sonment at law for debt, the writ of ne exeat has seldom, if ever, been resorted to in Tennessee, but the remedy is still recognized by the Code^ >Sto. Bq. Jur., 1465. »Sto. Bq. Jur., 1469. 'Sto. Eq. Jur., 1469. *Sto. Bq. Jur., 1470. 'Sto. Eq. Jur., 1471. •Sto. Eq. Jur., 1474. 'Code, 4434. See ante page 64, note. 80 MANUAL OF CHANCERY PRACTICE. 58. Form of the writ. State of Tennessee, • lo the Sheriff of Monroe County : Whereas, A. B. has filed his bill of complaint in the Chancery Court at Mad- isonville against C. D., charging, among other things, that the said C. D. is greatly indebted to him and designs quickly to go into parts beyond the State, as by oath on that behalf appears, which tends to the great prejudice and dam- age of the said complainant; and praying for a writ of ne exeat, staying the said 0. D. from departing into parts beyond this State and out of the jurisdic- tion of this court without leave first had, which prayer has been granted. Now therefore by the order and fiat of the Hon. 0. P. Temple, chancellor, etc., to me directed, you are hereby commanded that, without delay, you cause the said C. D. personally to come before you and give sufficient bail, or security, in the sum of dollars ; that he, the said C. D., will not go, or attempt to go, into parts beyond this State without leave of 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 county jail of Monroe county, thereto be keptinsafe custody until he shall do it of his own accord ; and when you shall have taken such security, you are forthwith to make and return a certificate thereof to said court, together with this writ. Witness, Stephen P. Hale, clerk and master of said court, at office, in Madi- sonville, this 1st day of May, 1868. Stephen P. Hale, Clerk and Master. 59. General directions as to form of writs of attach- ment, ne exeat and injunction. If the attacliment, ne ex- eat, or injunction is ordered to issue in the progress of the suit, instead of being granted by fiat of a judge, or chancel- lor, at the institution of the suit, the form, instead of the re- citals as to the filing of the bill of complaint, charging, etc., as in the preceding forms, may begin as follows : State of Tennessee, To the Sheriff of Monroe County : Whereas, it is represented in our Court of Chancery, at Madisbnville, on the part of A. B., complainant, against C. D., defendant, (amongst other things), that he, the said defendant, (here state the grounds upon which the process is granted) as by oath made on that behalf appears, (or if the fsicts appear by the answer of the defendant, or in any other manner, state the manner in which they appear, and then proceed as in the above forms). The process will, of course, have to correspond with the fiat, but it will be easy to modify the foregoing forms to suit any particular case. MANUAI, OF CHANCERY PRACTICE. 81 60. Of the service of process. 1. Service of subpmnas to answer, and injunctions. Subpoenas to answer are served by reading the same to each defendant specified therein ; and if the defendant evade or attempt to evade the service of such process, the officer charged therewith shall leave a copy at the usual residence of the defendant, which shall be a suffi- cient service.^ If the defendant evade, or attempt to evade, the service of an injunction, it shall be the duty of the officer to leave a copy at the defendant's residence, and state the facts in his return, which shall be deemed a sufficient service.^ 2. Attachments. In the execution of an attachment, where the property to be attached is not described in the writ, the sherift" must at- tach and take into his possession so much of the defendant's personal property as may be sufficient ; and, if he cannot find enough of personal property, he may levy the attach- ment on real estate, which is done simply by endorsing on the writ that it is levied on the real property, describing it.' The taking the property attached into possession, and re- storing it to the defendant upon the execution of a replevy bond, can, of course, have no application to real estate. The failure of the sherifi" to exhaust the personal property before levying on real estate does not make the levy void.* 'Code, 4346, 2829, and authorities there cited. Where an infant is sued, he must be summoned, however young, unless he have a regular guardian, in which case aervice on the guardian is sufiBcient., Britain v. Cowan, 5 Hum., 315, Cowan v. Anderscih, 7 Cold., 291; Mason v. Swan, 6 Heis., 451. But it is always safest to serve the writ upon infants and lunatics, personally. Car. Law- suit, 51. So where husband and wife are sued, both must be served with pro- cess. See same authority. If several defendants are sued, all must be sum- moned. See also Code, 4093, sub-sec. 5, as to officer's duty. "Code, 4443. °To constitute a valid levy of an attachment on personal property, the officer must take possession of the property levied upon. Manual possession is not necessary, but he must have it under his control. Connell v. Scott, 5 Bax., 598. If the levy is actually made, it is good, although the sheriff- fail to sign the re- turn. Hurt V. Brien, 1 Tenn. Ch., 449; Green v. Lanier, 5 Heis., 678; Lea v. Maxwell, 1 Head, 368;. Rogers v. Cawood, 1 Swan, 148. *Boggess V. Gamble, 3 Cold., 148. ., 6 B2 MANUAL OF CHANCERY PRACTICE. The attachment is to be levied on property of either a legal or equitable nature, debts or choses in action, whether due or not due, in which the defendant has an interest.' Whether the property in which the defendant has an inter- est is in possession, remainder or reversion, it is to be at- tached.^ 3. Service by Garnishment. If tlie property, choses in action, or effects of the debtor, are in the hands of third persons; or, if third persons are in- debted to the defendant, the sheriff is allowed to attach it without risk to himself, and yet to secure it for the plaintiff' by garnishment ; which is a written notice by the officer to such third person, informing him that the effects of the de- fendant in his hands are attached; and requiring him to ap- pear at the return term of the writ, and answer questions touching such property, and to retain the possession of any such as he has, or may afterwards have, in his possession or under his control, and not to pay any debt he may owe the defendant.^ 4. Form of Garnishment. Mr. B. P. : — By virtue of an attachment in my hands against the estate of C, D., I attach all the property, choses in action, and effects of every kind in your hands belonging to the said C. D., and all debts you may owe him; and I sum- mon you to appear at the next term of the Chancery Court, at Madisonville, to be held on the first Monday of June next, when and where said attachment is returnable, to answer such questions as may be asked you touching the property and effects of the said C. D. You are also required to pay no debt now due, or hereafter to become due, to the said C. D. ; and to retain possession of all his property that now is, or may hereafter, come into youjj custodj', or under your control, to answer this garnishment. This, 1st day of May, 1867. John J. Crippen, Sheriff. A copy of the garnishment is to be returned with the at- tachment. It should be endorsed thus : " Served a copy of the within garnishment on E. F., May 1st, 1867. J. J. Crip- pen, Sheriff." The levy of the attachment, by the service of the garnish- ment, is endorsed on the attachment thus : " Levied the with- •Code, 3500. 'Lockwood «. Nye, 2 Swan, 515. 'Code, 3478, 3479, 3480. MANUAL OF CHANCERY PRACTICE. 83 in attachment by serving a garnishment on E. F., a copy of which is herewith returned. No other property of the de- fendant in my county to be found. May 1st, 1867. J. J. Crippen, Sheriff." 5. Service of a ne exeat. This writ is executed by taldng the party into custody till he gives the required bail. But, it is said to be an abuse of the process to break open doors, and take the party in bed. When the capture is made, the defendant, to obtain his discharge out of custody, must execute bond to the sheriff, with two sufficient sureties, in the sum directed by the court, conditioned not tc go, or attempt to go., beyond the limits of the State, without leave of the court.' The sheriff should return the writ with a proper endorse- ment of what he has done. If he has taken bail, the return may be in the following form : " I have caused the within named A. B. personally to come before me, and he found bail in the penalty of dol- lars, according to the command of this writ. May 1st, 1867. John J. Crippen, Sheriff'." If he takes a deposit of the amount instead of taking se- curity, or if he commits the defendant for failing to give se- curity, he should, of course, make his return according to the facts.^ This remedy is in the nature of equitable bail.^ And it is presumed that a bond in the following form would answer : We, A. B., C. D. and, E. F., hereby bind ourselves to John J. Crippen, sheriff of Monroe county, in the sum of dollars ; to be void if the said A. B., who has this day been arrested by the said John J. Crippen, on a writ of ne exeat, issued from the Chancery Court, at Madison ville, at the suit of Gr. H., shall not go, or attempt to go, into parts beyond the limits of the State of Ten- nessee, without leave of said court. This 1st day of May, 1868. It would be more in harmony with the statutes of Tennes- see, that the bond should be taken, payable to the State. Bonds of executors, administrators, guardians, apprentice bonds, taken by the County Court, official bonds, etc., are 'Dan'l Ch. Pr., 1943-1944. =Dan'l Ch. Pr., 1945. 'Sto. Eq. Jur., 1470. 84 MANUAL OF CHANCERY PKACTICE. HOW required to be taken in the name of the State. So, by the 4th Eule of Chancery Practice, (which rules have the effect of statutes,) bail bonds, taken upon process of con- tempt, are to be made payable to the State. But the author can find no statute, or rule, changing the former practice in respect to taking bail upon a ne exeat. 6. Service of process on infants, lunatics, corporations, and the agents of absent principals and companies. An infant is well brought before the court by service of the subpoena, and copy of the bill, upon his general or regular guardian, even when the bill is filed to subject land, descended or -devised, to the ancestor's debt ; and it prays that the infant may be made a party defendant.' The holding of the Supreme Court, in various cases, that the minor, as well as his guardian, must be personally served with process of sci.fa. to subject his lands, was, because the court thought it was lex scripta'^ positive statutory provision, exacting simple obedience.^ But, in the case of an idiot or lunatic defendant, process must be served on the defendant, in an action at law, at least, if not in Equity.^ If a distinction is really intended to be made between the case of an infant and that of a lunatic or idiot, it is hard to perceive any solid 'ground upon which such a distinction can rest. And, if different rules in regard to the person on whom process in such cases must be served are to prevail in courts of law and equity, it is not easy to perceive why such difference should exist. As regards service of process against corporations, it is provided by the Code, that service of process on the presi- dent, or other head of a corporation ; or, in his absence, on the cashier, treasurer or secretary ; or, in the absence of such officers, on any director of such corporation, shall be suffi- cient.'' ^Brittain v. Cowen, 5 Hum., 315. 'Brittain v. Cowen, 5 Hum., 315. 'Rogers V. Ellison, Meigs, 90. *Code, 2831. MANUAL OF CHANCERY PKAOTICB. 85 If neither the president, cashier, treasurer or secretary re- sides within the States, service on the chief agent of the cor- poration, residing at the time in the county where the action is brought, shall be deemed sufficient.^ If the action is commenced in the county in which the cor- poration keeps its chief office, the process may be served on any one of the foregoing officers, in the absence of those named before him.^ "When a corporation, company or individual has an office or agency in any county other than that in which the princi- pal resides, the service of process may be made on any agent or clerk employed therein, in all actions growing out of or connected with the business or agency.^ When there is an agency, office or director of any corpora- poration, company or individual in the county where the suit is brought, process may be served on the agent or clerk therein, in actions growing out of the business of the corpor- ation, company or principal.^ 7. Issuance and service of process on Sunday. Civil process may be issued on the Sabbath, on the appli- cation of any party, supported by oath, or affirmation, that the defendant is removing, or is about to remove himself, or property beyond the jurisdiction of the court, or justice, ap- plied to.° The clerk, or justice, shall endorse on the back of such process, that it was obtained on the oath of the plaintiflF, his agent or attorney, as directed in section 2824.^ It shall be the duty of the proper officers to execute all such process on the Sabbath, subject to the same penalties and regulations, as in other cases.' iCode, 28.S2. »Cocle, 2833. 'Code, 2834. *Code, 2834(1. ^Code, 2824. 'Code, 2825. 'Code, 2826. 86 MANUAL OF CHANCBEY PRACTICE. With this exception, civil process shall not be executed on Sunday.' 61. Return of process. Original process may, by rule of court, applicable to the court where made, be returnable to the rule days, and all others, except final process, may be so returnable.^ The return days of all other process in the Chancery Court (such as subpoenas to answer supplemental and amended bills and bills of revivor), except final process, shall be the rule days of said court.' Service of the original subpoena on the defendant, five days before the return day, shall bind him to appear within the first three days of the term, if the court hold so long ; otherwise, on the first day of the term.^ But if the subpoena be served upon the defendant within five days before the return day, he is not bound to appear be- fore the first day of the second term after the service.^ 62. In what cases personal service of process is dis- pensed with. Personal service of process on the defendant in the Court of Chancery is dispensed with in the following cases : (1.) When the defendant is a non-resident of the State. (2.) When, upon inquiry at his usual place of abode, he can not be found so as to be served with process, and there is just ground to believe that he is gone beyond the limits of the State. (3.) When the sherifi" shall make return upon any leading process against a defendant, that he is not to be found. (4.) When the name of the defendant is unknown and can not be ascertained upon diligent inquiry. 'Code, 2827. The issuance of process on the Sabbath is matter in abate- ment. Helm V. Rogers, 5 Hum., 105; Code, 2902; and Eainey v. Sanders, 4 Hum., 447. •Code, 4348. •Code, 4349. *Code, 4350. •Code, 4351. MANUAL OF CHANCERY PRACTICE. 87 (5.) When the residence of the defendant is unknown and can not be ascertained upon diligent inquiry. (6.) "When judicial 'and other attachments will lie under the provisions of the Code.^ The cases in which attachments will lie under the Code, and which are, therefore, embraced in the last one of the above divisions, are as follows : (1.) "Where the debtor, or defendant, resides out of the State. (2.) Where he is about to remove, or has removed himself, or property, from the State. (3.) Where he has removed, or is removing himself, out of the county privately. (4.) Where he conceals himself so that the ordinary pro- cess of law cannot be served upon him. (5.) Where he absconds, or is absconding, or concealing himself, or property. (6.) Where he has fraudulently disposed of, or is about fraudulently to dispose of, his property. (7.) Where any person, liable for any debt, or demand, re- siding out of the State, dies, leaving property in the State.^ (8.) When the summons in any civil action has been re- turned, " E'ot to be found in my county," as to any defend- ant.' The attachment, which is authorized to issue in this last case, is what is called a judicial attachment. Section 3468 of the Code provides that no judicial attach- ment shall issue against the estate of any person residing without the limits of the State, unless such process is grounded on an original attachment ; or, unless the leading process in the suit has been executed on the person of the defendant when within the State. This section must have been inserted through a singular misapprehension as to what a judicial attachment is. A judicial attachment cannot be grounded on an original attachment ; nor on a summons that has been served. There •Code, 4352. 'Code, 3455. ^Code, 3466, and cases there cited. 00 MANUAL OF CHANCERY PRACTICE. is no law authorizing it to be done, unless the provisions in this confused section should be held to authorize it. It is authorized alone by the return of the summons, " Not to be found in my county," technically called " Non est inventus." But this return alone always implies that the defendant re- sides in the county. And, if he does not so reside, the re- turn would be false, and a court would not, of course, grant a judicial attachment if the return was known to be false. The return, " The defendant not found in my county," does hot authorize the issuance of a judicial attachment.' To dispense with process in any of the cases aforesaid, the facts must be stated, under oath, in the. bill, or by separate affidavit, or appear by the return.^ In divorce cases, where the divorce is demanded because the defendant is a convict in the penitentiary, the bill may be taken for confessed, upon publication as if he were a non- resident.' And,' if a woman sue for a divorce, her bill, or petition, may be heard, and a divorce granted, without service of the sub- poena or publication, if her bill was tiled, and subpoena for the defendant was placed in the hands of the sheriiF of the county in which the suit is instituted, three months before the time when the subpoena is returnable; but the officer having the subpoena shall execute it, if he can.* 63. Of Publication in lieu of Service of Process. Upon the affidavit, or return, being made, authorizing process to be dispensed with, if the defendant does not cause his appear- ance to be entered, it is the duty of the clerk and master to immediately enter upon the rule docket an order, requiring the defendant to appear at a certain day therein named, being a rule day, and defend, or otherwise the bill will be taken for confessed.* And he shall forthwith cause a copy of this order to be published for four consecutive weeks, in the newspaper 'Welch V. Robinson, 10 Hum., 264i 'Code, 4353. 'Code, 2454. *Code, 2456. ^Code, 4354. In the Chancery Court, at Madisonville. MANUAL OF CHANCERY PRACTICE. 89 mentioned in such order, or designated by the general rules of the court.' The order need not be made on a rule day, but may be made at any time after the filing of the bill, upon the neces- sary facts appearing, as required by law.^ The order should contain the names of the parties, the style of the court in which the proceedings are had, and the name of the place where the court is held, without any brief or abstract of facts, unless directed by the court.' Where the suit is against an unknown defendant, the order of publication should describe such unknown party, as near as may be, by the character in which he is sued, and by ref- erence to his title or interest in the subject matter of the liti- gation.^ The order of publication may be in the following form : (A copy of which from the rule docket is to be published.) Jacob Givens, admn'r of Zachariah Givens, deceased, vs. James Givens, Jonas Givens, and others. In this case, it appearing from" the complainant's bill, that Jonas Givens, one of the defendants, is a non-resident of the State of Tennessee, it is ordered by the , clerk and master, that said Jonas Givens be required to appear before the Chancery Court at Madisonville, on the 1 st day of June, 1 868, and make de- fense to said bill, within the time prescribed by law, or the same will be ' taken for. confessed, and the cause set for hearing ex parte as to him. It is further ordered that this notice be published for four consecutive weeks in the Sweetwater Enterprise. This, 15th day of April, 1868. Stephen P. Hale, Clerk and Master. An order requiring the defendant to appesir at the next term of the court, without specifying the day of the term, is not void, and a sale of real estate under a decree, founded on such order, communicates a good title to the land until the decree is reversed.^ .64. Evidence of Publication. By section 4359 of the Code, the evidence of the publication may be by the affidavit 'Code, 4355. 'Code, 4.S56. »Code, 4357. *Code, 4358. 'Kilcrease v. Blythe, 6 Hum.. 378. 90 MANUAL OF CHANCERY PRACTICE. of the printer, or by actual production of the newspaper in court.i If the record states that it appeared to the satisfaction of the court that publication had been mside, it will be presumed that the newspaper was produced in open court; the court being . a superior court, its proceedings are presumed to be correct.^ The important thing is the publication itself, in such terms as will give the defendant definite notice, and not the memo- randum of the clerk and master at rules.^ 65. Proceedings to Compel an Answer. Process of Con- tempt. If the defendant, upon whom process has been served, fails to appear and defend in the time recLuired by law, the bill may be taken for confessed, or the complainant may proceed, by process of contempt, to compel an answer.* The only process of contempt is an attachment, which is issued upon order of the chancellor, at the instance of the complainant, upon the return of the subpoena, duly served by the proper officer, or affidavit by him of such service.' The attachment may be made returnable on any rule day, in term, or vacation ; and, upon its service, bail may be taken for the appearance of the defendant at the tinae fixed therein.' The clerk and master may issue an attachment against a defendant for want of an answer, where the time for answer- ing has expired.' If the defendant fails to appear in compliance with the terms of his bail, a second attachment issues, upon which no bail can be taken ; and the penalty of the bail-bond may be decreed forfeited, and collected by execution.^ ^Claybrook v. Wade, 1 Cold., 559. 'Kilcrease v. Blythe, 6 Hum., 378. "Kilcrease v. Blythe, 6 Hum., 378. *Code, 4360. As to the power of courts to enforce jurisdiction by proceedings for contempt, see Code, 4106, and authorities cited. For mode of proceeding, see Chancery rule 7. Ruthei'ford v. Metcalf, 5 Hay., 58. ^Code, 4361. •Code, 4362. 'Chancery Rule 7, sub-seo. 8. 'Code, 4363; Chancery Rule 7, sec. 2, sub-sec. 4. MANUAL OP CHANCERY PRACTICE. 91 If the defendant appears and refuses to answer fully, he shall he committed to jail, there to remain till he purges himself of the contempt and complies with the requirements of the law hy filing a full and complete answer.' After an attachment for contempt, no plea or demurrer shall be received, unless by order of the court, upon motion.^ If the defendant is committed for contempt, the complain- ant may proceed with his action as if the bill had been taken for confessed, the allegations being taken in all respects as true.^ But, in that case, all further proceedings for the contempt shall cease, and the court, or judge thereof, may discharge the defendant from custody.^ By the Code it is provided that nothing in the preceding sections shall deprive the clerk and master, or the court, of the power of granting to the defendant, upon good cause shown, further time within which to file an answer.' 66. Form of an attachment for contempt. State of Tennessee, To the Sheriff of Monroe County : We command you to attach John Den so as to have him before our Chancery Court, at Madisonville, on the 1st day of June, 1868, there to answer as well touching a contempt which he, as is alleged, has committed against, the State, as also such other matters as shall then and there be laid to his charge; and, fur- ther to perform and abide such order as our said court shall make in this be- half; and herein fail not, and have you then and there this writ. Witness, Stephen P. Hale, clerk and master of said court, at office, in Madi- sonville, the 1st Monday of December, 1867. Stephen P. Hale, Clerk and Master. ^Code, 4364. 'Code, 4.S65. 'Code, 4366. *Code, 4367. 'Code, 4368. When a party is in contempt of court, no answer can be re ceived until he is discharged of his contempt by the court. The clerk has no such power, and if he receive the answer and mark it filed, it is a mere nullity. The defendant cannot make a motion until purged of his contempt. Gaut ». Gaut, 10 Hum., 464. Neither can a party, in contempt f(Jr violating an injunc- tion be heard in the principal cause till he yields obedience to the injunction. Rutherford v. Metcalfe, 5 Hay., 58; Dan'l Ch. Pr., 554. CHAPTER III. PROCEEDINGS IN DEFAULT OF AN ANSWER. 67. Of taking judgment pro confeaso. 68. Effect of judgment ^ro coTi/esxo. 69. Effect of decree which is rendered without judgment pro confesso being taken, against such of the parties as do not answer. 70. Of setting aside the order pro confesso. 71. Effect of final decrees, and setting aside final decrees, founded on judg- ments pro confesso, without personal service of process. 1. In attachment cases. 2. In other than attachment cases. 67. Of taking Judgment pro confesso. The bill may be taken for confessed in the following cases : (1.) When, being duly served with process, the defendant fails to plead, answer or demur, by the time fixed by law. (2.) When an order for his appearance having been duly made and published, as prescribed by law, the defendant fails to cause his appearance to be thereupon entered, and to plead, answer, or demur, or to obtain time to answer. (3.) When process of contempt, having been returned exe- cuted, or the defendant having been brought into court upon such process, he refuses to answer the plaintiff's bill, or puts in an insufficient answer, eo adjudged by the court. (4.) When a plea or demurrer having been overruled, and the defendant ordered to answer the bill, he fails to so do upon a rule given. (5.) When exceptions to an answer, having been allowed by the clerk and master, and the defendant, or his solicitor, notified thereof, and ordered to answer, the defendant fails to file a sufficient answer within thirty days, or to appeal from the order of the master.' 'Code, 4369. Forrnerly an answer adjudged insufficient, upon exception, was treated as no answer. Lea v. Vanbibber, 6 Hum., 20; Lannum v. Steel, 10 Hum., 283. But now see Code, 4407, which seems to modify the-rule. If the answer is full and perfect, and the chancellor adjudge it insufficient, and pro- ceed to final decree upon bill and pro confesso, disregarding the answer, it is error which the Supreme Court will revise. March v. Crawford, 1 Swan, 117. MAKUAL OF CHANCERY PRACTICE. ' 93 Iq the first and second of the above cases, the cause may be set for hearing at the return term of the process ; and in the other three, at the next term, after the bill is taken for confessed.! jf ^ defendant is committed for contempt in re- fusing to answer, the complainant may proceed with his action as if the bill had been taken for confessed, the allega- tions being taken as in all respects true.^ Orders taking bills for confessed, and all other orders for the preparation of a chancery case for trial, are left to the discretion of the chancellor, and will be reversed by the Court of Errors only in cases of manifest injustice.^ 68. Effect of Judgment pro confesso. Whenever an order pro confesso is lawfully taken, the allegations in the bill are to be taken as admitted, except in the case of infant defendants, persons of unsound mind, executors or adminis- trators, bills for divorce, and bills without attachment of ■property, against non-residents, and persons, whose names or residences are unknown.* ' In the excepted cases of infants and persons of unsound mind, the defendant shall appear by guardian or committee, before the complainant can proceed with his eause.^ In other excepted case's, the complainant may proceed as it the allegations of the bill had been put in issue by answer not sworn to, with the right to set for hearing forthwith.^ If a bill filed against two jointly interested (as two part- ners), be taken for confessed as to one, and the other party 'Code, 43Y0. 'Code 4366. 'Buchanan v. McManus, 3 Hum., 449. Judge W. F. Cooper held, that under our practice, orders pro confesso appertain to the duties of the clerk and master, and should be made at the rules and not in court. Seay M. Seay, 1 Tenn. Ch., 2; Lanum v. Steel, 10 Hum., 280. A decree pro confosso will be sustained on service of subpoena alone, without copy of bill. Avery v. Warren, 12 Heis., 559. *Code, 4371. This section applies to married women, except in divorce cases. Hill D., Hillman, 6 Lea, 715. 'Code, ,4372. A decree against infants, on publication without appearance, was held good. Kilcrease v. Blythe, 6 Hum. 378. And there is no difference between the effect of a pro confesso taken on publication and one based on per- sonal service. Clay brook v. Wade, 7 Cold., 555. 'Code; 4371" 94 MANUAL OF CHANCERY PRACTICE. answers and disproves the plaintiff's case, it will be dis- missed as to both defendants.^ But this doctrine does not apply to the case of an answer by a defendant who has distinct rights, and no joint or com- mon interest with the party who fails to answer.^ In such case, as between the complainant and a defendant, who has been served with process and suffered judgment ^ro confesso to be taken against him, the case is to be treated as though such defendant had answered and admitted com- plainant's right, as set up in the the bill; and, therefore, a co-defendant, who adinits his liability to some one of the parties cannot controvert the right of the complainant, as against the parties who have suffered judgment ;pro confesso.^ And, where a defendant was made a party by publication, but it appeared, from the fact of his deposition being taken in the case, that he had notice of the proceeding, it was held, that the judgment pro confesso had the same effect as if such defendant had been served with process.^ "Where the bill shows that the complainant is not entitled to the relief he seeks against a defendant, a judgment pro confesso against such defendant can avail him nothing.^ If after a bill filed for an account, has been taken for con- fessed, it be agreed that it may be referred to the master to take an account, and that the defendant may prove before him, by competent testimony, any matter of defense to the bill, in the same manner, and to the same effect as if an answer had been filed relying on such matter of defense, the defendant is not confined to proof adapted merely to limit his responsi- ^Petty V. Hanniim, 2 Hum,, 102. So where the cestui que trust allowed a. pro confesso, and the trustee answered. Cherry v. Clements, 10 Hum., 552. So in the case of vendor and vendee. Hunessee v. Ford, 8 Hum., 499. So where one of two persoilal representatives defends. Brien v. Peterman, 3 Head, 499. So of adverse claimants, McDaniel v. Goodall, 2 Cold., 395. But not so where the defendants have a distinct right. Smith v. Cunningham, 2 Tenn. Ch., 572; Philips V. Hollister, 2 Cold., 271. '^Philips V. Hollister, 2 Cold., 269; Smith r. Cunningham, 2 Tenn. Ch,, 572. 'Wiley V. Bridgeman, 1 Head, 69; Stone v. Duncan, 1 Head, 103; Warren u. Kennedy, 1 Heis., 439. 'Philips V. Hollister, 2 Cold., 269. 'Chadwell v. McCall, 1 Tenn. Ch., 643; Wood v. Cooper, 2 Heis-, 455; Ross. V. Ramsey, 3 Head, 15. MANUAL OP CHANCERY PRACTICE. 95 bility, but may adduce proof to the equity of the bill, and to show that he is not accountable at all.' 69. EflTect of decree which is rendered without judg- ment pro confesso being taken against such of the par- ties as do not answer, Where a decree was rendered, with- out taking judgment pro confesso, against two of the de- fendants who had made no defense, it was held, that the objection to this failure, (made by the other parties on the argument of the case in the Supreme Court,) could have no greater weight than if no steps had been taken to make them parties.^ 70. Of setting aside the order pro confesso- A defend- ant, who has been served with process, may, at any time be- fore final decree, on good cause shown, obtain from the Chancellor, or Clerk and Master, an order setting aside the decree pro confesso, upon filing a full and sufficient answer, and the payment of costs.^ A non-resident defendant, or one whose name or place of , residence is unknown, and who is not served with process, may appear and defend at any time before final decree, as of course.^ All other persons, as to whom personal service is dispensed with, shall show merits, in order to entitle them to appear and defend after judgment by default.^ 'Pearl u. Nashville, Meigs, 603. When a bill seeking to enforce a contract is taken pro confesso, no proof is necessary, the bill being taken as true by the court. If the action be founded on a specialty, bill or note, no other proof than the paper is necessary, Douglass v, Evans, 1 Tenn. 82. ^Wright V. Wilson, 2 Yer., 294. ^Code 4375. A defendant seeking to set aside a pro confesso must show good cause and so state it that the court may see what it really is, Wilson v. Waters, 7 Cold., 323. A decree pro confesso will not be set aside when the answer tendered contains no matter of defense sufficient to enable the defendant to resist the relief sought in the bill, Lewis v. Simonton, 8 Hum., 183. As a general rule it should not be set aside after the death of witnesses; but there may be exceptions justifying it. Buchanan v. McManns, 3 Hum., 449. In this case receiving counter affidavits is rfeprehended. *Code, 4376. sCode, 4377. 96 MANUAL OF CHANCERY PRACTICE. Cross affidavits to resist a motion to set aside an order taking a bill for confessed, are not to be encouraged.^ An order taking a bill for confessed ought not to be set aside after the witnesses are dead. This is the general rule, but there may be exceptions to it, of which the chancellor must judge, and his errors and mistakes in the exercise of this discretion would be corrected with difficulty in a revising tribunal.^ Nor ought an order pro confesso, (at least in case of a party served with process,) to be set aside, unless the answer pre- sented and offered to be filed contains matter of defense suf- ficient if true, to enable the defendant to resist the relief sought, by the bill.^ And, where a judgment pro confesso is set aside, the answer should not only be presented and filed at the time, but should not be permitted, ordinarily, to delay the hearing.* But of course if there is sufficient ground for a continu- ance, the cause may be continued, although it may stand for trial at the term at which the answer is filed, (or the first ' term after it is filed, in case the judgment pro confesso is set aside, at rules in vacation.) 71. Effect of final decrees, and setting aside final de- crees, founded on judgments pro confesso, without per- sonal service of process. 1. In attachment cases. Cases in chancery, brought by attachment of property under our at- tachment laws, are governed in respect to the effect of the decree pro confesso, by the provisions of sections 3529-3534.' Those provisions are as follows : 'Buclianaii «. McManus, 3 Hum., 449. ^Buchanan v. McManus, 3 Hum., 449. ^Lewis V. Slmonton, 8 Hum., 185. 'Scales V. Nichols, 3 Hay., 229. If the pro confesso is set aside with leave to defendant to answer, he is precluded from any other mode of defense, and cannot plead or demur without special leave. Allen v. Bauguss, 1 Swan, 404 ; Old Chancery Rule, 9. The master has no authority to set aside a pro confesso, except upon affidavit showing good cause for not filing answer; and the affidavit should generally be made by the defendant himself Cook v. Dews, 2 Tenn. Ch., 496. If defendant has been served with process s^pro confesso should only be set aside on payment of costs. Tharpe v. Dunlap, 4 Heis., 681. ^Code, 4378. HANUAL OF CHANCERY PRACTICE. 97 In all cases of attachment sued out because the defendant resides out of the State, or has merely removed himself or property from the State, the judgment, or decree by default, may be set aside upon application of the defendant,, and good cause shown, within twelve months thereafter, and defense permitted upon such terms as the court may impose.' In all other cases of judgment, or decree by default, the, defendant cannot deny, or put in issue, the ground upon which the attachment was issued; but may, at any time thereafter, within one year after the suing out of the attach- ment, commence an action on the attachment bond, and may recover such damages as he has actually sustained for wrong- fully suing out the attachinent.^ Persons laboring under the disabilities of coverture, in- fancy or unsoundness of mind, at the rendition of the judg- ment, or decree by default, have six months after the re- moval of such disability to appear and show cause against such judgment or decree.' The death of the defendant, proceeded against by attach- ment, without personal service, whether the death occur be- fore or after the commencement of the action, does not ren- der the proceedings void ; but his heirs or representatives, as the case may be, have the right, within three years from the rendition of the final judgment, or decree, to make them- selves parties, by petition, showing merits verified by affi- davit, and contest the plaintiff's demand.* The judgment or decree, if executed before it is set aside, under any of the fortegoing provisions, will be a protection to all persons acting under it, and will confer a good title to all property sold by virtue thereof.^ In the case of Patterson and Shaver v. Arnold, 4 Cold., 364, it was held that under the provisions of sections 3529 and 3530 of the Code, when the issuance of an attachment is based . upon the ground that the defendant is an abscoud- »Code, 3529. ^Code, 3530 and notes. As to suits on attachment bonds see Smith v. Story 4 Hum., 169 ; Smith v. Akin, 2 Sneed, 456; Jennings v. Joiner, 1 Cold., 645. 'Code, 3532. *Code, 3533. =Code, 3534. 7 98 MANUAL OF CHANCERY PRACTICE. ing debtor, he is precluded from denying or putting in issue in that suit (after the final judgment) the ground upon which the attachment was issued, and that he cannot have the decree by default set aside, upon the ground that he was, in fact, a non-resident of the State ; his only remedy is upon the attachment bond. 2. In other than attachment cases. In all other than attachment cases, a decree against a de- fendant, without personal service of process, who does not appear to defend, is not absolute for three years from the^ de- cree, unless a copy of the decree is served upon the defend- ant ; in which case it becomes absolute if the defendant fails to come forward and make defense within six months after service.^ The death of the defendant proceeded against, without personal service of process, whether the death occurs before or after the filing of the bill, does not render the proceedings void, but his heirs or representatives, as the case may be, have the right, within three years from the rendition of the final decree, to make themselves parties by petition, verified by affidavit, showing merits and contest the complainant's bill.^ The original defendant, his heir, representative or assignee, claiming under him by virtue of any act done before the commencement of the suit, may, within six months after ser- vice of a copy of the decree, or within three years after the decree, be admitted to answer the bill, upon petition showing merits, and giving security for the payment of costs ; and witnesses on both sides may be examined, and such other proceedings be had thereon as if the cause were then newly begun.' It is no objection to the execution of a decree rendered against a defendant, that it was founded on a bill taken for confessed, without personal service; but the court may re- ^Code, 4379. See Seovel v. Absten, 1 Ch., 74, and Grewar v. Henderson, 1 Ch., 79-80. =Code, 4380. 'Code, 4381. This proceeding must be in the same court which rendered the decree. Anderson u.'Bond, 5 Sneed, 661. MANUAL OF CHANCERY PRACTICE. 99 quire the complainant to give security in such sum as the court deems proper, to abide by and perform such order touching the restitution of property, or repayment of money, as the court may make, upon the defendant subsequently set- ting aside the decree, and successfully resisting the complain- ant's suit.^ The decree, if executed before it is set aside under any of the foregoing provisions, will be a protection to all persons acting upon its validity, and will confer a good title to all property sold under it.^ The foregoing provisions have no application to divorce cases.' 'Code, 4382. See. Scovel v. Abaten, 1 Ch., 73. 'Code, 4383. 'Owens ». Sims, 3 Cold., 544. CHAPTER IV APPEARANCE AND DEFENSE. 72. Who (as respects the condition and character of the defendant) muat make defense, and how. 72a. Time within which appearance and defense must be made. 73. Different modes of defense. 74. Time and order of making the different kinds of defense. 74a. Objection for multifariousness, how taken. 75. Of demurrers. . . ' 75a. Some general principles concerning demurrers. 76. What a demurrer admits. 76a. Requisites as to. the frame of a demurrer. 77. Forms of demurrers. 1. General demurrers. 2. Special demurrers. 3. Demurrer coupled with answer, 77a. Demurring either to the discovery or the relief, and answering as to the other. 776. Demurrer to discovery on the ground that it will subject the defendant to a penalty. . 77c. Demurrer to a discovery on the ground that the defendant has an equal right with the plaintiff. 77d!. Demurrer to discovery on the ground that the matter is immaterial. ' 77e. Demurrer to discovery of matters of professional confidence. 77y! Demurrer to discovery because the defendant has no interest. Ilg. Demurrer to discovery for want of privity of title between the plaintiff and defendant. 77A. Demurrer to discovery because it relates only to the defendant's case. 77i. Proper manner of taking objection to matters of discovery. 77j. Effect of allowing a demurrer. 77 &. Effect of overruling a demurrer. 78. Of pleas in general. 78a. The course of procedure on a plea. 79. Setting down a plea for argument. 79a. Allowing pleas and taking issue upon them. 79&. Ordering a plea to stand for answer. 79c. Overruling pleas. 79(Z. Amending pleas, and pleading de novo. 80. Of the different kinds of pleas. 80a. When pleas in abatement must be filed and verified. 81. Plea of the statute of limitations. MANUAL OF CHANCERY PRACTICE: 82. Plea of the statute of frauds. 83. Plea of other statutes. - 84. Plea of former judgments. 1. In cases of exclusive legal cognizance. 2. In cases of concurrent jurisdiction. 3. In cases of exclusive equitable cognizance- 85. Plea of a former decree in equity. 86. Plea of a release. 87. Pleas of stated accounts and settled accounts. 88. Plea of an award. 89. Plea of innocent purchaser. 1. Generally. 2. What necessary to be averred. 3. Different kinds of notice. 90. Plea of title in the defendant. 91. Length of time and adverse possession. 92. Forms of pleas. 1. Plea of another suit pending. 2. Plea of infancy, to a bill exhibited without a prochein ami. 3. Plea of coverture of the complainant. 4. Plea of the statute of frauds. 5. Plea of innocent purchaser. , 93. Of swearing to pleas. 94. Of naotions to dismiss, 95. Motions to dismiss for causes arising subsequently to filing the bill. 96. Motion to dismiss by the plaintiff, or by consent. 96a. Of motions to dismiss generally. 97. Of defense by answer. 98. Nature and substance of an answer. 99. What matters must be answered. 100. At what time an answer may be filed. 101. Forms of answers. 102. Titles, commencements and forms of answers in particular cases. 1. By an infant. 2. Where the bill mis-states the names of defendants. 3. By a lunatic, or idiot. 103. New practice as to titles and commencements. 104. Of signing and swearing to answer. 104a. Obtaining order to file answer without oath or signature. 1046. Taking answers of ioreigners, deaf mutes and blind persons. 105. Filing the answer and notice. 106. Exceptions to answers. 106a. Excfeptions to answers generally. 1066. Amendment of exceptions to an answer. 107. Form of exceptions. 107a. General information on the subject of answers. 108. Filing answer as a cross bill. 109. Cross bills— their nature and use. 102 MANUAL OF CHANCEEY PRACTICE., 109a. Of cross bills generally. 110. Proper time to bring a cross bill. 111. Form of a cross bill. 112. Form of a cross bill in the nature of a plea puis darrien continuance. 113. Of staying the proceedings and hearing the cause. 72. Who (as respects the condition and character of the defendant) must make defense, and how. Persons of full age, not laboring under any disability, defend a suit themselves. Idiots and lunatics defend by their guardian, if they have one ; and if they have no guardian, or his interests are an- tagonistic, a guardian ad litem is appointed to defend for them.i Where a lunatic or idiot has a regular guardian, both he and his guardian must be served with process, and the guardian puts in an answer both for himself and his ward, but he only signs it once. "Where a defendant is shown to be in a state of incapacity, it is usual for the court to appoint k guardian ad litem to con- duct his" defense, although his incapacity does not amount to idiocy or lunacy. If the court is not satisfied as to how the fact is where a defendant is represented to be imbecile, a ref- erence will be made to the master to hear proof, and report as to the capacity of the defendant.^ Infants also defend by their guardian. Where they have no regular guardian, or where the interests of the guardian are antagonistic to those of his ward, the court will appoint a guardian ad litem for the purpose of defending the suit.' If, by reason of age, a person is reduced to the condition of second infancy, the court will, upon information of the fact, appoint a guardian ad litem to defend the suit for him.* There is one case, however, in which infants over four- teen years of age must answer in person, as well as by guardian ad litem. That is, in a case where the regular 'Sto. Eq. PI., 10. •Danl. Ch. Pr., 870, and note. »Sto. Bq. PI., 70.- *Sto. Eq. PL, 70. MANUAL OF CHANCERY PRACTICE. 103 guardian of sucli infants files a bill to have the real or per- sonal property of the infants sold under the provisions of the Code.i A married woman must ordinarily defend a suit jointly with her husband in all cases where her husband is joined, or ought to be joined, as a defendant, unless an order of court be obtained allowing her to answer separately. Such order may be obtained when there are special circumstances to warrant it, as, for example : if her interests are antago- nistic to his; or, where she lives separately from him; or, disapproves of the defense which he desires her to make.^ Such order may be obtained by the complainant, and may not only give her liberty, but require her to answer sepa- rately, where the circumstances warrant such order. For example : if the husband is insane, or is beyond the juris- diction of the court, the wife may be required to answer "sep- arately. So, if she obstinately refuges to join her husband in an answer, he may obtain an order requiring her to answer sep- arately.' Or, rather, he may obtain an order to be allowed to defend himself, and the plaintiff must then proceed sepa- rately against the wife.'' ~ A remark may here be made that should have been made in a preceding chapter. In general, where a husband and wife have been made defendants to a cause, and there has been no order that the wife shall answer separately, the hus- band alone incurs all the ordinary consequences the contempt for the failure to answer.' But if an order be made for her to answer separately, although made at her own request, it subjects her to the pen- alties of a contempt if she does not put in an answer pursuant to the order." If a married woman answers separately, without an order 'Code, 3323-3340. »8to. Eq. PI., 71. »Sto. Eq. PL, 71. *Danl. Ch. Pr., 192, 193. "Danl. Ch. Pr.. 548. •Dan'l Ch. Pr., 194. 104 . MANUAL OF CHANCERY PRACTICE. of court authorizing' it, subh answer may be taken' off the file upon motion or suppressed for irregularity.^ But, if a separate answer of the wife be put in deliberately without such order, with the consent of her husband, and is fair and honest, and is accepted Dy the complainant, the court will not set it aside on the motion of the wife or her repre- sentatives.^ "When she answers or defends separately from her husband, she ordinarily answers or defends by a next friend.' But there is one case in which she answers both in person and by next friend. That is, in case where a husdand files a bill to have her real or personal property sold under the provisions of the Code.* Where a party under disability answers by next friend, or guardian, the next friend, or guardian, is the proper party to sign and swear to the answer.' "Where the infant and his guardian are both made parties, the guardian signs the answer but once.^ A coi'poration ordinarily answers under the seal of the cor- poration ; but if the corporation desires to obtain the dissolu- tion of an injunction upon the answer, it must be verified by the affidavit of some of the incorporators, or • officers ac- quainted with the facts of the case, for the coui-t will not dissolve an injunction upon an answer which is not under oath. 72a. Time within which appearance and defense must be made. Service of the original subpoena on the defendant, five days before the return day, shall bind him to appear within the first three days of the term, if the court is held so long, otherwise, on the first day of the term.^ But, if the subpcEua is served on the defendant within five iDanl. Ch. Pr., 193. ^Danl. Ch. Pr., 194. »Sto. Bq. PI., 873. *Code, 3323, 3340. 'Danl. Ch., Pr., 868. •Danl. Ch. Pr., 868. 'Code, 4350. MANUAL OF CHATJCERT PRACTICE; 105 d^ys before the return day, he is not bound to appear before the first day of the second term, after the service.^ A counterpart subpoena to answer an original bill, is original process within the meaning of these sections of the Code. Original process may, by rule of court, applicable to the court where made, bs returnable to the rule days, and all others except final process may be so returnable.^ The return days of all other process in the Chancery Court, such as subpoenas to answer, supplemental and amended bills, and bills of revivor, except final process, shall be the rule days of said court.^ Where process is made returnable to a rule day out of term time, being first Mondays in each month, and is served five days before the return day, the party would perhaps be bound to make a defense before the next rule day, 6r procure an order to be made by the clerk and master, to extend the time, otherwise judgment pro covfesso might be taken against him. For it is probable that the Code,' 4350, giving the de- fendant the first three days of the term in which to make defense, was not intended to embrace such a case, especially if it be other than original process, within the meaning of that section of the Code cited. But a party is always -at liberty to make defense at any time before a pro confes'so is taken against him. If, however, he has obtained time to make defense, he can only adopt such mode of defense as is indicated in the order granting time. The order of publication in the case of a non-resident de- fendant, req^uires the defendant to appear at a certain day therein named being a rule day, and defend, or otherwise the bill will be taken for confessed.^ 72b. Obtaining further time in which to make defense. Sometimes the order only, in express t6rms, gives the defend- ant time in which to answer. Whether in such a case, in.the absence of any rule or statute on the subject, the defendant •Code, 4351. ' - ' ' ,'Code, 4348. 'Code, 4349. 'Code, 4354, an : ■" 106 MANUAL OF CHANCBEY PRACTICE. may plead to the bill is, perhaps, not well settled, though the weight of authority seems to be that a plea is an answer within the meaning of an order for time to answer.' A plea, for some purposes, may be considered a special answer. And for this reason it has been held that the de- fendant might put in a plea to the whole bill, under the usual order for time to answer, although in such a case he» would not be permitted to demur.^ In Tennessee, under Chancery Rule ISTo. 1, sub-sec. 7, if a defendant obtain time to answer the bill of complainant, he shall not file a plea or demurrer, unless the order giving time expressly embrace those modes of defense. But the court has power to relax this rule and allow a demurrer or plea to be filed after time has been given to answer, or even allow the defendant to withdraw his answer after filing it, and to demur.* Time to answer is usually granted as a matter of course by the court simply upon application of defendant; and two months is the usual time allowed. Granting time to answer does not delay the hearing of the cause, for under the Code a cause stands for trial at the first term after answer filed.'' The clerk and master has the power, upon good cause shown, to grant the defendant further time to make answer.' Such order, of course, to be made on a rule day. 72c. Defendant not bound by the defense of another. It would be unreasonable that one man should be bound by the defense of another. Therefore, when the defendants sever in their defense, the confession of one in his pleading cannot be used against another; if this were permitted it would be in the power of any defendant, by collusion, to do much wrong and injury to any person with whom he might be joined in the action, for that very purpose of confessing the charge against the other.^ 'Danl. Oh. Pr., 792, 793, and notes. 'Heartt v. <}orning, 3 Paige, 569. 'Lowe V. Morris, 4 Sneed, 69. ♦Code, 4432, 4328. 4401. "Code. 4368. •King V. Ponsonby. 1 Ves. Jr., 8. MANUAL OF CHANCERY PRACTICE. 107 73. DifiFerent modes of defense. Defense may be made: (1,) By plea in abatement. (2,) By motion to. dismiss. (3,) By demurrer. (4,) By plea in bar. (5,) By answer. (6,) By cross bill.^ The defendant will often bave the option of bringing for- ward the same matter of defense in either one of two dif- ferent modes : for example, if a bill wants Equity on its face ; or, if it is multifarious ; or, if it appears upon its face that there is a misjoinder of parties; or a want of proper parties; the objection may be raised either by demurrer, or by motion to dismiss.^ So, a party may incorporate all matters of defense in his answer which might be brought forward by plea, except ob- jections to the jurisdiction of the court.^ So, he may have all the benefits of a demurrer, except the objection be to the jurisdiction of the subject matter, or of the person, by relying, thereon in his answer.'' But the defendant cannot rely on matters of demurrer to the jurisdiction of the court of the subject matter, or of the person, in an answer.' The objection must be made by demurrer, or special plea.' Or by motion.' In the case of Kendrick v. Davis, 3 Cold., 524, it was held, that it is clearly manifest' from sections 2901, 2903 of the Code, that matter in abatement cannot be thus incorporated in an answer, but must be specially pleaded. In the case of Connell v. Furguson, 5 Cold., 401, it was held, that the defense of a former suit pending may be incorporated in an answer; but, that the same certainty would, in such case, be required as if the matter had been specially pleaded. •Code, 4384. See Cook v. Richards, 11 Heis., Hi. "Code, 4386, 4388, and notes. 'Code, 4318. *Code, 4319; Kirkman v. Snodgrass, 3 Head, 370. "Lowry V. Naff, 4 Cold., 370. •Lowry v. Naff, 4 Cold., 370. 'Bennett v. Wilkins, 5 Cold., 240. 108 MANUAL OF CHANCBKY PEACTICB; The Code provides further, that multifariousness, misjoin- der, or non-joinder of parties, is no sufficient cause for the dismission of a bill in equity, unless the objection is made by motion to dismiss, or by demurrer.^ And this section will, it is presumed, control the provisions in section 4319, so far as they conflict; and that, therefore, these matters of defense cannot be set up by answer. It is questionable whether, after a judgment, overruling a demurrer for multifariousness, the court can look either to the bill, or to anything afterwards arising, as a ground of dis- missal on that score, although leave be given at the time of overruling the demurrer to rely upon the objection in answer.^ And a defendant, regularly served with process, who suf- fers judgment -pro eonfesso to be rendered against him, can- not be heard to object to the bill in the Supreme Court, on the ground of multifariousness.' If a bill be unknown to the forms of the court, or if any of the prerequisites to the issuance of the writ be wanting, those objections cannot be reached by demurrer, but must be taken by motion to dismiss.* Therefore, those objections cannot be taken in an answer under the provisions of sec- tion 4319. There seems to be some conflict in the Code in regard to whether a demurrer will lie on account of a want of jurisdic- tion of the person of the defendant. Section 4386 enumerates six different causes for which a motion to dismiss will be sustained. Among those causes, a want of jurisdiction of the person of the defendant is the third. Section 4388 provides that the flrst, fifth and sixth causes of dismissal may be raised by demurrer. (Omitting to mention the third.) ; But section 4309 provides that the jurisdiction of the Court of Chancery, in which the suit is brought, can only be re- sisted by plea in abatement, demurrer, or motion to dismiss. This section is found in the chapter on personal and local jurisdiction. 'Code, 4325. ■ , : \ 'Bartee v. Tompkins, 4 Sneed, 623. 'Moreau v. Saffarans, 3 Sneed, 595. *Code, 4386, 4388. MANUAL OF CHANCERY PRACTICE. 109 And. section 4319 provides that a defendant shall not he re- quired to .demur; except for the want of jurisdiction of the subject matter, or of the person, but may have all the benefit of it by relying thereon in his answer. . Further disoussion of the different modes of defense will be left till treating of them separately. 74. Time and order of making different kinds of de- fense. If the subpoena to answer is served on the defendant five days before the return day, he is bound to appear and make defense within the first three days of the term, if the court hold so long ; otherwise, on the first day of the tei-m.' But, if the subpoena is served on the defendant within five days before the return day, he is not bound to appear before the first day of the second term after the service.^ In cases in which publication is made, in lieu of service of process, the order of publication names/the day, being a rule day, on which the defendant is required to appear and de- fend.^ Objection to the jurisdiction of the court must be taken before answer filed ; for the filing of an answer is a waiver of objection to the jurisdiction of the court, and the cause shall not be dismissed, but heard, and determined upon its merits, although the court may be of opinion that the matters com- plained of are of legal cognizance.* But this provision has only the effect to silence the defend- ant from insisting on the want of jurisdiction. The court has still the discretion, upon satisfactory reasons being shown, to permit the party to withdraw the answer and demur.^ Under the provisions of the Code," when the defendant seeks to raise an objection to the jurisdiction of the court of the subject matter, or of the person, he must plead specially *Co(ie, 4350. 'Code, 4351. •Code, 4354. *Code, 4321; Bright v. Newland, 4 Sneed., 440; Brazeiton v. Brooks, 2 Head, 194. 'Lowe V. Morris, 4 Sneed, 69. "Code, 4318, 4319, 4321. 110 MANUAL OF CHANCBBT PRACTICE. or demur. He cannot rely upon the matters of demurrer in his answer. By answering, he waives all objections to the jurisdiction.' Under the provisions of the Code, a defendant cannot avail himself of an objection to the jurisdiction of the" court, ex- cept by a plea or demurrer, or by motion.^ If, the defendant, at the hearing, object for the want of proper parties, not having previously taken the objection by plea, answer or demurrer, the court may render a decree, sav- ing the rights of the parties not before it, or grant leave to amend on terms not extending beyond the payment of costs.^ No objection for the misjoinder of parties, plaintiff, or de- fendant, shall be taken at the hearing, but the court, in such case, shall decree upon the merits.* After an attachment for contempt, no plea, or demurrer, shall be received, unless by order of the court, upon motion.* A non-resident defendant, or one whose name or place of residence is unknown, and who is not served with process, may appear and defend at any time before final decree, as of course.^ All other persons as to whom personal service is dispensed with, shall show merits to entitle them to appear and defend after' judgment by default.' After answer filed, and no plea in abatement to the local jurisdiction of the court, no exception for want of jurisdic- tion shall afterwards be allowed.' 'Lowry v. Noff, 4 Cold., 370; Bright v. Newland, 4 Sneed, 440; Wiley «. Bridg- man, 1 Head, 70; Rankin v. Croft, 1 Heis., 713. The objection cannot be taken by general demurrer, assigning no cause except a want of equity on the face ot the bill. Chesney v. Rodgers, 1 Heis., 241; Kirkman v. Snodgrass, 3 Head, 372. ^Bennett v. "Wilkins, 5 Cold., 240. 'Code, 4337. *Code, 4338. ^Code, 4365, 4396. 6Code 4376. !Code, 4377, ante 71. 'Code, 4385. This rule applies to objection to jurisdiction over subject mat- ter. Code, 4321. So the falsity or non-existence of the ground of the attach- ment in equity, is matter in abatement, and not available after answering to the merits, though denied and not proved. Hendrick v. Davis, 3 Cold., 524; Foster V. Hall, 4 Hum., 346; Isaaks v. Edwards, 7 Hum., 465. MANUAIi OP CHANCERY' PRACTICE. Ill In all cases where an amendment to a bill is made after answer filed, and an answer thereto is necessary, the defend- ants are allowed thirty days after the order, or after notice of the amendment, if notice is required, to answer; and on fail- ing to answer within that time, or to ohtain further time, the matter of amendment may be taken for confessed, etc.^ . Upon exceptions to an answer being sustained, the clerk and master is required to notify the defendant's solicitor to file a sufficient answer within thirty days.^ Where a defendant files a cross bill, he must answer the original bill before he can require the original complainant to answer his cross bill.' "Where a defendant's property is irregularly attached, ap- pearing and answering is a waiver of the irregularity of process ; and a motion to discharge the attachment for irreg- ularity (grounded on the answer) was in such case denied.* A demurrer is overruled by a plea, or answer, to the same part of the bill ; and a plea is overruled by an answer. The reason is, that a deniurrer demands the judgment of the court, whether the defendant shall be required to plead or answer ; and a plea whether he shall make any other answer than that contained in his plea ; and, of course, he waives the objection when he does the very thing, which, by his plea . or demurrer, he objected to doing.^ Upon a plea or demurrer being argued and overruled, no other plea or demurrer shall be received, but the defendant shall answer the allegations of the bill ; and, in case he fails to do so by the next rule day, or by the time prescribed by »Code, 4336. *Code, 4402. Chancery Rule 1, sec. 5. 'Code, 4408. But if an amended bill is filed after a cross-bill, the cross- bill must be answered first. Scales v. Nichols, 3 Hay., 229. *Terrill v. Bogers, 3 Hay., 203; Hendrick v. Davis, 3 Cold., 524. 'Sto. Bq. PI., 839; Witt v. ElHs, 2 Cold., 39; Starnes v. Newson, 1 Tenn. Ch., 245; Shockly «. Rowley, 2 Head, 493. The adoption of any one defense is a waiver of those preceding it, and leave of the court must be had to withdraw an answer, to file a demurrer, or to withdraw a demurrer and file a plea in abate- ment. Cook V. Richards, 11 Heis., Ill; Seifred v. Bank, 2 Tenn. Ch., 20. 112 MANUAL OF CHANCERY PRACTICE. the court, the Mil may be taken for confessed, or answer en- forced by contempt, as if no such plea or demurrer had been flled.i Previously to the enactment of this statute, the rules in re- gard to the order of pleading were as follows : When a plea or demurrer was held bad upon argument, the eftect of the judgment of the court, in general, was that the defendant must answer the bill. He might, however, if his first defense had been by de- murrer, be admitted, under certain circumstances, to dispute by plea the right of the plaintiff to call upon him fOr an an- swer ; or, he might submit reasons why he should not be re- quired to answer the whole of the bill, by demurring, or pleading to a portion only. If he had no such reasons to offer why he should not be called upon to answer the bill ; or, if having offered any such reasons, they were overruled, the course of the court required that he should put in a full answer to the bill ; unless, in- deed, it was a case in which he could and did put in that species of answer known as a disclaimer, by which he- dis- claimed all interest in the matters in question in the suit.^ 74a. Objection for multifariousness — how taken. Even in a case which arose before the abolition of general de- murrers, it was held that a demurrer for multifariousness must be special.^ So, as a judgment pro confesso stands in the place of an answer admitting the facts charged in the bill, wHthoat ob- " jection to the jurisdiction of the court; suffering judgment pro confesso is a waiver of the objection of multitariousness.^ 'Code, 4395. ^Dan'l Ch. Pr., 586. 'Pay V. James, 1 Head., 444. *Moreau v. Saffaraus, 3 Sneed, 602. MANUAL OF CHANCERY PRACTICE. 113 75. Of demurrers. A demurrer lies to a bill : (1,) For want of equity qu its face. (2,) For misjoinder, or nonjoinder of parties, where the fact appears on the face of the bill. (3,) For multifariousness.' (4,) For waiit of jurisdiction of the subject matter, or of the person.^ (But, as to whether want of jurisdiction of the person can be taken by demurrer, see sec. 73, ante.) And for other causes, as will now be, to Some extent, ex- plained. Demurrers to bills for relief may be either : (1,) To the jurisdiction ; (2,) To the person of the plain- tiff; and, (3,) To the matter of the bill, either as to its sub- stance or as to its frame. Demurrers to the jurisdiction are either on the ground that the case made by the bill does not come within the de- scription of cases in which a Court of Equity assumes the power of decision ; or, that the subject matter is within the jurisdiction of some other court than that in which the bill is filed ; for example, in a court of Common Law, the Court of Bankruptcy, some statutory jurisdiction, some other Court of Equity. (The Chancery Court at Knoxville, for instance, instead of the Chancery Court at Madisonville, in which the bill is filed, etc). Demurrers to the person of the plaintiff are on account of disabilities which incapacitate the complainant to sue ; or, which only incapacitate him from suing alone, as in the case of an infant suing without a next friend being named in the bill. If either of those kinds of disability appear upon the face of the bill, a demurrer lies. So, if it appears from the face of the bill that the plaintiff does not legally possess the character in which he sues, a de- murrer will lie, as if a person sue as administrator by virtue of a grant of administration in a foreign court. Demurrers to the matter of the bill are either to its sub- stance or to its form. 'Code, 4388. "Code, 4319. 114 MANUAL OF CHANCERY PRACTICE. Demurrers to the substance embrace the following : (1,) That the plaintift", or some one of the plaintiffs, has no interest in the subject ; (2,) That although the plaintiff has an interest, the defendant is not answerable to him, but to some other person ; (3), That the defendant has no interest ; (4), That the plaintiff is not entitled to the relief which he has prayed ; (5), That the value of the subject matter is beneath the dignity of the court ; (6,) That the bill does not embrace the whole matter ; (7,) That there is a want of proper par- ties, or a misjoinder of parties ; (8,) That the bill is multifa- rious, and improperly confounds together distinct demands ; (9,) That the plaintiff's remedy is barred by length of time ; and (10,) That it appears by the bill that there is another suit pending for the same matter. The 7th and 8th cases are sometimes considered as objections to the form and not the substance of the bill. As regards demurrers to the form of a bill, it is presumed that if the bill should fail to state the residence of the parties or should not, in other respects, be in substantial conformity to the requirements of the Code, it would be ground of de- murrer. So a demurrer might be sustained for want of certainty in the allegations. There is great negligence among many members of the bar in failing to set forth the names and residences of parties at the head of the bill, to the no little inconvenience of the clerk and master in issuing process. Some members of the bar are also in the negligent habit of leaving blanks as to dates, amounts, etc., in bills so as to render them, frequently, very uncertain. But, as regards demurrers for matters of form, it was held in the case of Kirkman and Ellis v. Snodgrass, 3 Head,- 370- 373, that the provisions of section 2934 of the Code, abolish- ing demurrers for formal defects, and allowing themi for sub- stantial defects only, applies to demurrers in all courts, chan- cery as well as law courts. It follows that demurrers to the form of the bill are no longer available. But it is presumed that where a bill is materially defective in form the court would, upon motion of the defendant, or MANUAL OF CHANCERY PRACTICE. 116 upon its own motion in a proper case, require the bill to be amended so as to make a specific statement of the matters complained of. This conclusion is arrived at from the fol- lowing considerations : (1,) Section 4314 of the Code requires a bill to contam a clear and orderly statement of the facts on which the suit is founded; and it is presumed that the court has inherent power to see that this requirement is complied with. (2,) By sections 2883-2885 of the Code it is provided that it is the duty of the court to see that the rules of pleadiiig are substantially adhered to ; and, for this purpose, the court is empowered to impose terms on delinquents ; and, it is pro- vided that if any pleading does not convey reasonable certainty of meaning the court shall, on motion direct a rtiore specific statement to be made. These last-named pro- visions are found in the chapter which treats on pleadings in courts of law ; but the provisions in regard to demurrers and pleas in abatement, in the same chapter, have been held to apply to courts of equity, as well as to courts of law ; and it is presumed that the provisions above quoted would also be held so to apply. It may be stated, generally, that if, for any reason, founded on the substance of the case, as stated in the bill, the com- plainant is not entitled to the relief sought, the defendant may demur. A demurrer may be to the whole bill, or only to a part. And a 'defendant may demur as to one part, plead as to an- other, and answer as to another, if those parts of the bill are distinct. But there cannot be a demurrer to a part of the bill, and a plea or answer to the same part, without over- ruling the demurrer. If a demurrer be to the ^syhole bill, and be good as to part only, it will be overruled. But a de- murrer may assign several causes of demurrer, and if any one of them is good to the whole extent of the demurrer, the demurrer will be sustained ; so that any one good cause as- signed will do.' A defendant may also put in separate demurrers to sepa- 'Saunders v. Gregory, 3 Heis., 575; Sto. Eq. PI., 442 116 MANUAL OF CHANCERY PRACTICE. rate and distinct parts of the bill, for separate and distinct causes ; and, on argument, one of them may be overruled, and the other sustained. So, where there are several defendants, if they all join in one demurrer, the demurrer may be overruled as to one, and allowed as to another. The young lawyer should not forget that a demurrer does not lie to a plea ; but if a plea is deemed insuflicient, the plaintiff may set it dowix for argument, just as a demurrer itself is set down.^ And this has been the uniform practice in courts of equity, from the earliest period of their history.^ Singularly enough, the impropriety of demurring to a plea was entirely overlooked in the case of Witt v. Ellis et al., 2 Cold., 38, 42. Demurrers are either general or special. They are general when no particular cause is assigned, ex- cept the usual formulary, that there is no equity in the bill. This is to comply with the rules of courts of equity, that every demurrer must contain the causes thereof, with reasonable directness. They are special when the particular defects or objections are pointed out. In the case of Kirkman and Ellis v. Snodgrass, 3 Head, 370-373, it was held that the provisions of sec. 2934 of the Code, requiring all demurrers to state the objection relied on, apples to Courts of Chancery as well as Courts of Law. 75a. Some general principles concerning demurrers. A defendant is not required to demur, except for want of jurisdiction of the subject matter, or of the person, but he may have the benefit of a demurrer by relying thereon in his answer.^ Demurrers for formal defects are not allowed. The ob- jection relied on must be clearly stated in the demurrer.* »Code, 4393. 'Sto. Eq. PI., 697; Danl. Ch. Pr,, Y94. •Code, 4309, 4319. *Code, 2934. MANUAL OF CHANCBEY PRACTICE. 117 This section abolishes general demurrers, and requires them to be special.' It is laid down as a general rule in equity pleading, that, if a demurrer be too general, and covers and applies to the whole bill ; when it is good to a part only ; or, if it is a demurrer to a part of the bill only, but yet is not good to the full ex- tent which it covers, but is good to a part only, it will be overruled, for it is a general rule that a demurrer cannot be good as to a part which it covers, and bad as to the rest, and therefore it must stand or fall together. So, if a demurrer does not cover so much of the bill as it might by law have extended to, it has been held to be bad. But a demurrer may be put in, and several causes assigned; and if one cause is good to the whole extent of the demurrer, and another is bad, the demurrer will be sustained, for if both were bad, the defendant may ore tenus, assign new causes of demurrer at the argument to matters of substance, but not to matters of form ; so that any good cause, existing of record, or other- wise assigned will do.^ A bill that is clearly wanting in equity will be dismissed upon demurrer, although the causes of demurrer be not technically sufficient.' A demurrer must be founded on some point of law which goes to the whole of the facts on which particular relief is properly sought, not to separate facts constituting connected parts of a case; and therefore when the ground of a bill, as well as the relief sought, is single, separate demurrers to separate paragraphs of a bill are necessarily bad.^ The ground of the demurrer must be a neat, short point 'Stretcliu. Stretch, 2 Tenn. Ch., 144; McNairyu. Mayor, 2 Bax.,25r; Pinley «. McCormack, 6 Heis., 393; Kirman ». Snodgrass, 3 Head, 370; McCaleb v. CricMeld, 5 Heis., 290; Fowler v. Alexander, 1 Heis., 425; Fitzgerald v. Camming, 1 Lea, 233. "Saunders v. Gregory, 3 Heis., 575; Sto. Eq. PI., 443. See also Ridley v. Motley, 1 Lea, 471; Bittick «. Wilkins, 7 Heis., 312; Mann v. Bamberger, 4 Heis., 490; Hunter d. Justices, 7 Cold., 59; Crowder ». Denny, 3 Head, 360; MilUken's Dig., 578. 'Knight V. Atkisson, 2 Tenn. Ch., 385. *Payne v. Berry, 3 Tenn. Ch., 154; Brien v. Buttorff, 2 Tenn. Ch., 523. 118 MANUAL OF CHANCERY PRACTICE. upon wMch it is plain the bill, or that part of it de- murred to, would be dismissed with costs at the hearing.' A demurrer which does not designate what part of the bill it applies to, is bad for uncertainty.^ A demurrer for want of equity admits the jurisdiction.' It is a well settled rule of chancery pleading, that if by lapse of time, no right of action exists in the complainant from his own showing, this may be taken advantage of by demurrer; indeed a plea would seem idle, because it would only state what already appeared on the face of the bill. A demurrer would seem peculiarly appropriate to a bill seeking to recover real estate, where time had operated to destroy the title, as well as to defeat the remedy.* Although the rule upon a demurrer is that every reasonable presumption is to be made in favor of the bill ; yet it will be otherwise in the case of an obviously stale demand barred both by the statute of limitations and lapse of time.^ If the allegation in the bill show that the claim is barred, it should also show the facts which it is claimed operate to save the bar, or it is demurrable.* Any person improperly made a defendant may demur for misjoinder of parties, but a person properly made defendant cannot.^ Where the notes mentioned in the bill as exhibits, are not filed as exhibits, but are in the record, it is no cause for de- murrer.' Whenever a general demurrer will hold to a bill, the court, , though the defendant answers, will not grant relief on hear-> ing. Otherwise, a defendant by answering and failing to demur, could compel the court to take jurisdiction of a cause, however unfit for equity.' . 'Payne' «. Berry, 3 Tenn. Ch., 154; Brien v. Buttorff, 2 Tenn. Ch., 523. 'Buckner v. Abraham, 3 Tenn. Ch., 346. ^Chesney v. Rodgers, 1 Heis., 241. *Diinlap V. Gibbs, 4 Yer. 94. sprenchj). Dickey, 3 Tenn. Ch., 302; McClungj). Sneed, 3 Head, 221 ; Dun- lap, Gibbs, 4 Yer., 94. ^MoClung V. Sneed, 3 Head, 221. 'Payne v. Berry, 3 Tenn. Ch., 160; Cocke v. Evans, 9 Yer., 287. "Payne ii. Berry, 3 Tenn., Ch., 160. 'Starnes v. Newson, 1 Tenn. Ch., 239.; Hickman zi. Cooke, 3 Hum., 640. MANUAL of CHANCERY PRACTICE.' 119 If upon a critical examination of the facts stated in the hill, there is a possibility that the action may be sustained, though upon a different ground from that assumed, a de- murrer to the whole bill will be overruled; as where the bill was sought to be vested upon the right of distributees to sue for a legacy, bequeathed their intestate, when it might, by possibility, be maintained upon the existence of a trust relation between the parties.' Upon sustaining a demurrer for want of parties, the bill should be allowed to stand over with leave to complainants to amend.^ A defendant may demur, though a motion to dismiss on the sanae grounds has been overruled.^ A demurrer may be embodied in an answer; but in such case, the demurrer must be set for hearing at the earliest opportunity, under the penalty of costs, and possibility of losing its benefits.* And the demurrer in answer is waived, if the defendant does not have it acted on by the court, before hearing the cause on its merits. Or if not brought to the attention of the court at the first term.^ 76. What a demurrer admits. As a demurrer proceeds upon the ground that, admitting the facts stated in the bill to ,be true, the plaintiff is not entitled to the relief he seeks ; all the matters of fact which are stated in the bill are, for the purposes of the argument, admitted by the demurrer. But, it is only matters of fact, and not inferences of law, stated in the bill, which are thus taken as admitted.^ Neither are matters of fact which are repugnant taken as admitted by the demurrer. Thus, if a certain statement in the bill is shown by other disclosures in the bill to be incor- rect, and in fact untrue, it is not taken as admitted.'' 'Traford v. Wilkinson, 3 Tenn., 449. ^Gray v. Hayes, 1 Hum., 588. 'Galloway v. Galloway, 2 Bax. 333. *Harding v. Bgin, 2 Tenn. Ch., 39. ^Kyle V. Eiley; 11 Heis., 230; Caruthers v. Caruthers, 2 Lea, 77. «Dan'L Ch. Pr.,;601. '> : 'Danl. €h. Pr., 601-662.' , 120 MANUAL OF CHANCERY PRAQTICJE; So, where a matter of record is referred to and relied on in the bill, the demurrer does not admit anything stated in the bill which is contrary to the record. And, the record will be inspected upon the argument of the demurrer. But, if a statement is made in regard to the contents of a written instrument in the possession of a plaintiff, the instrument, if not made an exhibit, will not be looked, to, (on the argument of the demurrer,) for the purpose of contradicting the state- ments of the bill in regard to its contents.' A demurrer does not admit the truth of any statement which is contrary to a fact of which the court will take judicial notice.^ 76a. Requisites as to the frame of a demurrer. As a demurrer confesses the matters of fact to be true, as stated by the opposite party, it is always preceded by a general pro- testation against the truth of the matters contained in the bill, a practice borrowed from the common law, and proba- bly intended to avoid conclusion in another suit, for in the present suit it is wholly without effect.' If the demurrer does not go to the whole bill, it must point out the particular parts of the bill which it is intended to cover, for, if this is not done, the court will be compelled to look over the bill to pick them out.* What is known as speaking demurrers are fatal in law- A speaking demurrer is one which introduces some new fact, or averment, which is necessary to support the demurrer, and which does not appear distinctly upon the face of the bill.' Where a defendant answers a part of a bill and demurs to a part, the statements cannot be brought in aid of the de- murrer. The attempt, in such a case, to sustain the demur- rer by an averment of fact in the answer, is in the nature of a speaking demurrer and is not aided by such averment.* 'Danl. Ch. Pr., 600. 'Danl. Ch. Pr., 602. «Sto. Eq. PI., 452. «Sto. Eq. PL, 457. 'Brooks V. Gibbon, 4 Paige, 375. "Kuypers V. Dutch Ref. Church, 6 Paige, 675. The case most relied upon to invalidate speaking demurrers is Edaell v. Buchanan, 2 Ves. Jr., 83. MANUAL OF CHANCERY PEACTICE. 121 The demurrer, having assigned the causes of demurrer, then proceeds to demand the judgment of the court, whether the defendant ought to be required to put in any further or other answer to the bill or to such parts thereof as is specified as being the subject of demurrer, and concludes with a prayer that the defendant may be dismissed with his reason- able costs in that behalf sustained.^ When a demurrer is to a part of the bill only, the answer to the remainder usually fol- lows the statements of the causes of demurrer and the sub- mission to the judgment of the court of the complainant's right to call upon the defendant to make further or other an- swer.^ In order to prevent delays by putting in frivolous demur- rers, it is required by the rules of the court that the demur- rer must be signed by counsel, but it is put in without oath, as it asserts n'o fact and relies merely upon the face of the bill. It is tberefore considered .that the defendant may, by advice of counsel upon the mere sight of the bill only, be enabled to demur thereto. And for this reason it is always made the especial condition of an order giving the defend- ants time to demur, plead or answer to the plaintiff's bill that he shall not demur alone.^ By the laws of Tennessee any person may conduct and manage his own case in any court.* Hence, if the demurrer is signed by the defendant himself it is sufficient without the signature of counsel. 77. Forms of demurrers. 1. General Demurrer. The joint and separate demurrer of John Den and Richard Fen, two of the defendants, to the bill of complaint of John Doe, an infant, who sues by his next friend, Richard Roe. These defendants, by protestation, not confessing any of the matters in said bill to be true, severally demur to said bill ; and for cause of demurrer , say that the complainant's said bill, in case the same were true, contains no matter of equity whereon this ,court can ground a,ny decree, or give complainant any relief as against these defendants. Wherefore, and for divers other errors in said bill contained, and appearing on the face thereof, these defendants do demur thereto; and they pray the judg- 'Danl. Ch. Pr., 659. »Danl. Ch. Pr., 659. 'Sto. Eq. PL, 461. *Code, 3979. 122 MANUAL OF CHANCBKY PRACTICE.' ment of this honorable court whether they shall be compelled to make any- other or further answer to said bill ; and they pray hence to be dismissed, with their reasonable costs, in this behalf sustained. Thomas L. Williams, Solicitor. (2.) Special Demurrers. A special demurrer will difl'er from the above simply in showing the particular grounds of the demurrer. AH de- murrers must now be special.' (3.) Demurrer coupled with an answer. The demurrer of the defendant, John Smith, to part, and his answer to the residue of the bill of complaint of James Bell. (Set forth the demurrer in the usual form, particularly specifying the part of the bill demurred to, and proceed). And as to the residue of said bill, this defendant, not waiving his demurrer, but relying thereon, and saving and reserving to himself now and at all times hereafter, all manner of benefit and exception which can be had to the residue of said bill; for answer to so much thereof, as he deems it material for him to answer, says : That, etc. 77a. Demurring either to the Discovery or to the relief, and answering as to the other. The right of a defendant to demur to the relief, and answer to the discovery, has sometimes been questioned, though not very seriously. But his right to demur to the discovery and answer to the relief has been very seriously questioned.^ In fact, it has been held in several cases that a defendant cannot demur to the discovery and answer to the relief, for then he does not demur to the thing required, but the means by which it is obtained. But the following are admitted to be exceptions to the rule : Where the discovery sought would subject the defendant to punishment, or to a penalty or for- feiture, or where it would tend to show him to have been guilty of any moral turpitude of such a nature as would lay a party open to proceedings in any court. So the court will not require a defendant to discover matters which are- totally immaterial to the relief prayed, or which have been commu- nicated under the seal of professional confidence, or which re- late entirely to his own title and not to that of the plaintiff.^ 'Kirkman v. Snodgrass, 3 Head, 370. 'Dan'l Ch. Pr., 603-605. 'Dan'l Ch. Pr., 606, 607, 625, to 649. ■' MANUAL OF CHANCERY PRACTICE. 123 But, although it has been held in some of the, cases that a defendant cannot demur to the discovery and answer to the relief, the better doctrine seems to be that, if any part of a bill is good, and entitles the plaintifi" either to relief or to dis- covery, a demurrer to the whole bill cannot be sustained. It is an established rule in chancery that a defendant may meet the plaintiff's bill by several modes of defense, he may de- mur, answer and plead to different parts of the bill ; so that if a bill for discovery and relief contains proper matter for one and not for the other, the defendant should answer to the proper and demur to the improper matter. But if he demurs to the whole bill, the demurrer must be overruled.' But where the bill seeks special relief, and also a discovery, and the relief is the principal object, and the dis- covery is sought merely as incidental to the relief, if the plaintiff shows no title to the relief sought, a demurrer lies to whole bill.^ But in such a case, although the defendant may demur to tiie whole bill, he may waive his right to de- mur to the discovery, and may demur to the relief alone, and answer to the discovery.^ So it will be seen that, although a demurrer is too exten- sive, it will be overruled, yet if it is less extensive than it might be, it will not for that reason alone be overruled. But it is said that if a demurrer does not cover so much of a bill as it might by law have extended to it, has been held to be bad.* But now, by the 36th Equity Rule, adopted by the Supreme Court of the United States, no demurrer or plea shall be held bad and overruled upon argument only, because such demurrer or plea does not cover so much of the bill as it might by law have extended to. If a bill seeks discovery of a matter which is proper, and likewise discovery of matter not proper — as, for instance, matter which would charge the defendant with a crim^b, the defendant must answer the proper and may demur to the im- 'Livingstou v. Story, 9 Peters, 658. 'Pool«. Loyd, 5 Met, 525. ^Hodgkin v. Langden, 8 Ves. Jr., 2. ' *Sto. Eq. PI, 443; Dawson v. Saddler, 1 Sim. & Stu. Rep., 535, 542. 124 MANUAL OF CHANCERY PRACTICE, proper question put to liim, or he may answer to the proper questions put to him, and take no notice of the residue.' 776. Demurrer to Discovery on the ground that it will subject the Defendant to a penalty or forfeiture. It is a general rule, that no one is bound to answer so as to subject himself to punishment, in whatever manner that punishment may arise, or whatever may be the nature of the punishment ; whether by ecclesiastical law, where such exists, or by the law of the land. This rule is not confined to cases in which the discovery must necessarily subject the defendant to pains and penalties, but it extends to cases where it may do so.^ It protects the defendant from discovering not only mat- ters which may subject him to penalty or forfeiture, but of those which may subject him to anything in the nature of a penalty or forfeiture.' If an indictable conspiracy is charged in the bill, a de- murrer to the discovery sought will lie.^ The exemption from answering to acts of moral turpitude is confined to those cases where the moral turpitude is of such a nature as would lay the party open to proceedings in the courts.^ If a person, by his own agreement, subject himself to a payment in the nature of a penalty, if he does a particular act, a demurrer to a discovery of that act will not lie.'' Where the plaintiff is the person who is entitled to the ad- vantage of the penalty, or of the forfeiture to which the de- fendant would render himself liable by making the discovery sought, he may obviate a demurrer by expressly waiving his right to the penalty or forfeiture in his bill. But where the penalty or forfeiture is of such a nature that the plaintiff cannot by waiver relieve the defendant from the consequences of his discovery, a demurrer will lie.' 'L.eight V. Morgan, 1 Johnson's Cases, 434. 'Dan'l Ch. Pr., 626; Hare on Discovery, 131-32. »Sto. Bq. PL, 583; Poxton v. Douglass, 19 Ves. Jr., 228. *2 Ves. Jr., 451 ; 8 Ves. Jr., 404. 'Sto. Eq. PI., 695; Dan'l Ch. Pr., 629 and notes. •Dan'l Ch. Pr., 629-630. 'Dan'l Ch. Pr., 626. ■ ' MANUAL OF CHANCBKY PRACTICE. 125 If the defendant has entered into an express covenant not to demur, he will be compelled to answer, although his an- swer subject him to a penalty.' So, if the defendant is under a higher obligation not to de- mur than if he had actually covenanted not to protect him- self from a discovery. As where an administrator who has taken an oath and given bond to duly administer the assets, cannot allege these matters in answer to a bill of discovery, charging him with fraudulently rendering an account of the assets.^ But it seems that where the defendant is entitled to the protection of the court against a discovery tending to estab- lish a criminal charge, he cannot waive his right to such pro- tection, or deprive himself of the benefit of it by any agree- ment whatever.^ In cases in which the legislature has expressly provided that parties to transactions rendered illegal by statute, shall be compelled to answer bills in equity for the discovery of such transactions, the defendant cannot protect himself from such discovery.* If the time within which the penalty or forfeiture can be enforced or punishment inflicted, has been barred by the statute of limitations, no proceeding having been instituted within the time prescribed by law, the defendant is bound to answer fully, even though by so doing he may exp^e his char- acter and conduct to reflection. And the plaintiff is entitled to answer, if the liability ceases after the defense is put in and before it is heard, even though there was a liability at the time of putting in the defense. And this is so whether the defense is made by plea, upon exceptions to an answer, or by demurrer.^ So where the penalty is personal and expires with the per- son entitled to demand it, the defendant to a bill filed by the iDan'l Ch. Pr., 629. 'Dan'l Ch. Pr., 630, 631. "Dan'l Ch. Pr., 631; Sto. Eq. PI., 5T7. *Daiil. Ch. Pr., 632. 'Danl. Ch. Pr., 633. 126 MANUAL OF CHANCERY PRACTICE. personal representative is not protected from making the dis- covery, as the penalty does not survive to the representative of the deceased.^ 77c. Demurrer to discovery on the ground that the de- fendant has an equal right with the plaintiff. If the defendant has, in conscience, a right equal to that claimed by a person filing a bill against him, though not clothed with a perfect legal title, a court of equity will not compel him to make any discovery which may hazard his title, and if the matter appear clearly on the face of the bill, a demurrer will hold. The most obvious case is that of a purchaser for a valuable consideration without notice of the plaintiff's claim.^ The protection which a court of equity throws around an innocent purchaser applies not only to bills of re- lief, but to bills of discovery.^ lid. Demurrer to discovery on account of the imma- teriality of the matter of which the discovery is sought. A defendant is not compelled to discover anything immate- rial to the relief prayed in the bill.* And where the bill is one for discovery alone, and not for relief, it must show the materiality of the discovery sought, or a demurrer will lie.^ 77e. Demurrer to discovery of matters of professional confidence. Another objection which may be taken by way of demurrer to a bill of discovery, or to the discovery in a bill for discovery and relief — is, that it seeks the discovery of facts from one whose knowledge of facts — as appears on the face of the bill — was derived from the confidence reposed in him, as counsel, attorney, solicitor or arbitrator. This privilege of secrecy afforded to professional men, in regard to communications passing between them and their clients, is, in truth, not so much the privilege of the adviser, as of his client. And there may be cases where the client may be 'Danl. Ch. Pr., 633. ^Danl. Ch. Pr., 636. ^Sto. Eq. Jur., 1502; Jerrord ». Saunders, 2 Ves. Jr., 458. *Danl. Ch. Pr., 636. 'M&Intyre v. Marcius, 3 Johns. Ch. Rep.,. 45; Seymour v. Seymour etai.,i: Johns. Ch. Rep., 410. M;ANUAL OB' CHANCERY PRACTICE. : 127 compelled to disclose facts which his professional adviser is bound to withhold. The privilege is founded upon a great public policy.' The rule also extends to the clerk of the solicitor or coun- sel consulted.^ 77/. Demurrer to discovery because the defendant has no. interest. If the defendant has no interest in the subject matter of the controversy, and is a mere witness, he is not generally compelled to answer, and if the want of interest appear on the face of the bill, a demurrer will lie. But not so if the bill states that such defendant has, or claims an in- terest. In such a case the objection must be made by plea; or possibly by disclaimer.' l^g. Demurrer to discovery for want of privity of title between the plaintiflF and the defendant. Although both the plaintiff and the defendant may have an interest in the subject to which the discovery required is supposed to relate, yet there may not be that privity of title between them, which will give the plaintiff the right of discovery against the defendant. In such a ease a demurrer will lie. For it is necessary that the bill should show that a certain degree of privity exists between the plaintiff and the de- fendant, in order to entitle him to maintain his, suit.' This rule as to privity of interest between the plaintiff and the defendant, so far as the right to relief is concerned, has no more extent than this ; that a person is not properly a party to a suit, between whom and the plaintiff there is no proper privity or common interest, but his liability, if any, is to another person.^ 77A. Demurrer because the Discovery relates only to the Defendant's case. The plaintiff is only entitled to what appertains to or is necessary for his own title. He has no iSto. Eq. PI., 599. *Danl. Oh. Pr., 644. As to matters not within the rule excluding discovery of professional communications, see Danl. Ch. Pr., 642, 643. «Sto. Bq. PI., 5Y0. *Danl. Ch. Pr., 645; Sto. Eq. PI., 4T1. ^Danl. Ch. Pr., 373; Sto. Ex. PI., 227. Ante, page 16. 128 MANUAL OF CHANCERY PRACTICE. right to pry into the title of his adversary. Hence the de- fendant has a right to resist, hy demurrer, any inquiries which call upon him to disclose the nature and character of his own title to the subject matter of the controversy. It is a right, as a general rule, of a plaintiff in equity to exact from the defendant a discovery, upon oath, as to all matters of fact, which, being well pleaded in the bill, are. material to the proof of the plaintiff's case, about to come on for ti-ial, and which the defendant does not, by his form of pleading, admit. The right of a plaintiff in equity to the benefit of the defendant's oath is limited to a discovery of such mate- rial facts as relate to the plaintiff's case, and does not extend to the discovery of the manner in which the defendant's case is to be exclusively established, or to evidence which relates exclusively to his case.' If the plaintiff' is entitled to a discovery or other docu- ments for the purpose of establishing his own case, his right to such discovery will not be affected by the circumstance that the same documents are evidence of the defendant's case also.^ And if a defendant, bound to keep distinct accounts for another party, improperly mixes them with his own, so that they cannot be separated, he must produce the whole.' 77i. Proper manner of taking objections to matters of discovery. If the objection to the discovery appears on the face of the bill, it is proper, whether it applies to the whole bill or to particular discoveries only, that the objec- tion as far as it extends, should be taken by demurrer. If the objection does not appear on the face of the bill, it must ordinarily be taken by plea. In many cases, if the objection is not insisted on by demurrer< or plea, it is in effect waived ; for it is a general rule, subject to some exceptions, that the defendant must answer fully all the allegations of the bill and all the interrogatories incidental to and founded upon 'Wigram on Discovery, 26, 27. 'Wigram on Discovery, 325. 'Wigram on Discovery, 326. MANUAL OF CHANCERY PRACTICE, 129 them, from wliich. he does not specifically protect himself by way of demurrer, or by way of plea, as the case may re- quire.^ Every objection to discovery which is founded upon a de- nial of the plaintiff's right of suit or of his right to proceed' with it in its existing state, should regularly be taken by de- murrer or plea, according to the circumstances of the case; and, where the objection is not so taken, and the defendant answers the bill, he will, in general, be held to have waived the objection, and will be obliged to answer the bill through- out. But every objection to discovery which is not founded upon a denial of the plaintiff's right of suit, or of his right to proceed with his suit in its existing state, but depends ex- clusively upon the nature of the discovery sought, may regu- larly be taken by answer as well as by demurrer or plea. A defendant who has not actually answered an interrogatory or interrogatories to which the objection may apply, can not, as a general rule, be held to have waived it upon any merely technical ground.^ 77j. EflFect of allowing a demurrer. Strictly speaking, upon a demurrer to the whole bill being allowed, the bill is out of court, and no subsequent proceeding can he taken in the cause. But there are cases in which the court has after- wards permitted an amendment of the bill to be made, and has even allowed such amendmentj and set the bill on foot again, after an order dismissing it.= But in Tennessee, such amendment can only be allowed at the same term of the court at which the demurrer is allowed, while the record of the term is under the control of the court.* In England the instances are said to be rare, in which the amendment of a bill has been allowed after sustaining de- murrer to the whole bill, unless the demurrer was for the want of parties.'^ 'Sto. Eq. PI., 605. For the exceptions to the above rule see post, 99. ^Wigram on Discov., 28, 29. 'Dan'l Ch. Pr., 668; Baker v. Mollisle, 11 Ves. Jr., 71, 72. *Crowder v. Turney, 3 Cold., 551. *Dan'l Ch. Pr., 668, 670; Gray v. Hays, 7 Hum., 588. • 9 130 MANUAL OF CHANCERY PRACTICE. If a demurrer for multilarriousness is sustained, the court iliay authorize amendmeHts, by directing separate hills to he filed without new process as to the parties before the court, and by the addition of new parties, or otherwise, as may he necessary for the attainment of justice.* And even prior to the adoption bf this statute it was proper for the chancellor, upon the motion of complainant, to allow him to elect as to which part of the bill should be dismissed, and retain the other part. But if no such motion Was made, it was nbt error to dismiss the whole bill upon sustaining a demurrer for multifariousness.^ Where a partial demurrer is allowed, that portion of the bill not covered by the demurrer still remains in court, and the plaintiff may obtain an order to amend, or may except to the answer, or adopt 9,ny other proceedings in the cause, in the same manner that he might have done had there been no demurrer.^ TT/c. Effect of overruling a demurrer. A denmrrer, being a mute thing cannot, like a plea, be allowed to stand for an answer.* But in no case can a second demurrer be put in after the first has been overruled, without leave of court, though the rule is dift'erent where the first demurrer has not been over- ruled but has been taken off the files for irregularity.' And if a second demurrer, or plea, be put in without such leave, after the first is overruled, it will, upon motion, be taken off the files.* ' Where the substance of the demurrer is good, but is in- formally pleaded, the defendant has been allowed, upon the same being overruled, to take it off the file and demur again. So the court will sometimes allow the demurrer to be amended. For example : A demurrer to the whole bill has been allowed to be amended so as to make it less expensive.' ' '00(1°, 4326. 'Johnson v. Brown, 2 Hum., 330. 'Dan'l Ch. Pr., 671. *Danl. Ch. Pr., 674. 'Danl. Ck Pr., 674. «Dan'l Ch. Pr., 675. 'Dan'l Ch. Pr., 674. MANUAL OF CHANCERY PRACTICE. 131 Where^ (iemurrer is not to the whole bill, hut. is accompa- nied with an answer, the plaintiff, if he wishes for a further answer, must except to- the answer for insufficiency; and therefore the defendant need not put in any further answer till after the plaintiff has taken exceptions to the answer already put in and the exceptions have been allowed. The; plaintiff should not except to the answer until the demurrer^ has been decided, otherwise he will admit the demurrer to be good. If, after a decision overruling the- demurrer, the plaintiff" amends his bill, either generally or by adding parties, he will not thereby lose his right to except to the, answer to the part of the original bill which has not been demurred to.^ 78. Of pleas in general. A plea is defined as a special answer, showing or relying on one or more things, as a cause why the suit should, either be dismissed, delayed or barred.^ The fact proper for a plea is such as reduces the cause, or some part of it, to a single point, which is a defense to the suit, or the part of it to which the plea applies. It is not, however, necessary that a plea should consist of a single fact, but it may consist of a variety of circumstances, if their combined result establishes some one general fact. Thus, a plea of title derived from the person under whom the com- plainant claims, may be good, though consisting of a variety of circumstances.'' , Pleas may be divided into: (1,) Affirmative pleas; (2,) Negative pleas ; and, (3,) Anomalous. Affirmative pleas are such as rely wholly upon matter not apparent upon the face of the bill, such as a release, former judgment, innocent purchser, etc. A negative plea merely denies some matter stated in the bill, upon which the complainant's right depends. Thus, to a bill to foreclose a mortgage, or a bill for an account of 'Daa'l Ch. Pr., 675, 676. ''But a plea was never considered as evidence in behalf of the defendant, as to the facts stated therein, so as to require the testimony of more than one wit-' ness to contradict it, even where it negatived a material averment in the bilL Heartt v. Corning, 3 Paige, 569. ^Sto. Eq. PL, 649-652. 132 MANUAL OF CHANCEEY PRACTICE. partnership transactions, a plea that there is no mortgage or I'io partnership, as the ease may be, is a negative plea. '' '• A niegative plea must he suppoi-ted by an answer, where- the bill states or charges facts by way of evidence of the j(laintift''s right ; because, in such cases, the plaintiiF is not to' be denied a discovery of those facts tending to prove his' fight.' An anomalous plea reasserts and wholly relies upon some- feet stated in the bill, and which the bill seeks to impeach;'; and denies all the circumstanpes which the complainant relies upon to impeach it. This class of pleas must be siipported? by an answer.^ Thus, where a bill is filed to impeach a de-- cree, on the ground of fraud used in obtaining it, the decree' may be pleaded in bar, supported by an answer denying the fraud. A matter arising between the filing of the bill and the plea, may be pleaded ; but a matter arising subsequently to the filing of a plea or , answer cannot, it seems, be pleaded 'puis darrien continuance ; but the eifect of such plea may be had by cross bill.^ The defendant may put in separate pleas to different parts of the same bill,* " Although the fact proper for a plea is such as reduces the cause, or spme part of it, to a single point, and double plead- ing is not ordinarily allowable, there are cases in which the rule will be relaxed, and the defendant. be allowed to plead several matters. But before a defendant can put in such double plea, he must obtain an order for leave to do so. But with reference to the subject of multifarious or double pleading, where the facts stated in the plea are suflicient to constitute a good plea, the introduction into the plea of a, fact which, although it put, in issue a distinct matter, is not important to the validity of the plea, will not vitiate it.* 'Sto. Eq. PI., 670-681. -■«Sto. Eq. PL, 6V0; Graham v. Nelson, 5 Hum., 605; Seifred v. Bank, 1 Bax., 200. 'Danl. Ch. Pr., 681. *Danl. Ch. Pr., 685. ' 'Danl. Ch. Pr., 683-685. - MANUAL OF CHANCERY PRACTICE. 133 , The defendant may put in several pleas to different "parti of tlie same bill in the same manner as he may put in dif' ferent demurrers to different portions of the bill ; hut he must, of course, point out distinctly to what particular part of the hill each plea is applicable.^ The rule applicable to a ,demui*rer, that it cannot bd good in part and bad in part^ is riot applicable, with the same etrietnese, to a plea ; but a plea may be bad in part and not in the whole ; and the coprt will allow it to so much of the bill as it is properly applicable to. But this is true only as . to the quantity of the bill coveted by it, and not as to the ground of defense offered by it- If any part of the defense made by the plea is bad, the whole must be overruled.^ ' And a plea must also cover the ^svhole case rhade by the bill or by that part which the plea affects to eoverj Thus, where a bill was filed to foreclose a tnortg^ge of a messuage and forty acres of land^ a plea of title in the defendant to a messuage and tenements were, put in, averring that they, were the same which were meant by the bill, it was held that the plea was bad, for it affected tb cover the. whole case, but did not, in fact, cover the forty acres.' If the plea had been of title to the whole, but it had ap- peared that the title was good as td the messuage, but Was hot a valid title as to the forty acres, it is presumed; that it would have been such a plea as may be good in part, though in 'part bad. ,' 78ai The course of procedure on a plea. The course of procedure on a plea will depend on the view taken by the plaintiff as to the sufficiency in law, or the truth in fact, of the ■ defense. If he thinks the plea valid, but that he can meet it by amendment, he may do so. If he thinks it in- valid, he may set it down for argument If he thinks it un- true, he may file a replication and go to a hearing on the issue of its truth. If the plea be overruled on argument, the defendant must answer ; or, the court may pursue an inter-r mediate course by reserving the benefit of it till the hearing 'Danl. Ch. Pr., 685. «Danl. Ch. Pr., 686, 687-. 'Danl. Ch. Pr., 686, 687. 134 #ANUAL OF CHANCEKY PRACTICE. 'by directitig it to stand for an answer, with liberty to tbe plaintiff to except to its sufficienej'. If it is allowed on argu- ment its validity is established, but the plaintiff may still file a replication and go to a hearing on the question of its truth. He may' sometimes, too, obtain permission ito amend his bill', but this is not a matter of course after the -allowance of a plea, and will only be granted on specific application. If the plea be replied to either originally or after its allowance on argument, the cause will be brought to a hearing on the sin- gle question of its truth. If it is sustained by the evidence, there will be a decree for the defendant. If it is disproved, . he can set up no further defense, but a decree will be ren- dered against him.' . Where the plea is for the want of proper parties, upon the ;.'.fe, argument of the plea the covirt, instead of allowing it, will, in a proper case, give the plaintiff leave to amend the bill upon the payrhent of costs, a liberty which he may obtain after the allowance of a plea according to the common course of the court, for the suit is not determined by the allowance of a plea, as it is by the allowance of a demurrer to the whole of'thebill.^ ' ■ 79. Setting down a plea for argument. If a plea is deemed: insufficient^ the plaintiff may set it down for argu- ment, just as a demurrer is set down.' ■ This has been the uniform practice of Courts- of Equity from the earliest period of their history.* Perhaps the -first deiiiurrer to a plea itf chancery that was ever heard of was in the case of "Witt -y. Ellis, 2 Cold., 38." And, strange to say, in that case the innovation, not only Oil the settled and uniform course of decision of Courts of Equity, but upon the express provisions of the statute above cited, was entirely overlooked. ' (In this same case of Witt v. Ellis, pleas in abatement are confounded with the abatement of suits by the death or mar- riage of parties). ■ ' ' 'Adam's Eq., 341-342. 'Franklin v. Franklin, 2 Swan, 526. ' ' 'Code, 4393. *Sto. Eq. PI., 697; Danl. Ch. Pr., 794. ■ilANirAL 01" CHANCERY PRACTICE'. 135 Where a plea required by the practice of the court to be sworn to is not under oath, it should not even be noticed as a plea on the i-ecord ; yet, setting down the plea for argu- ment is no waiver of the objection, but a means of obtaining the judgment of the court as to its validity as a defense.' Where there, is an answer in support of a plea, it should not be excepted to if there is any doubt as to the sufficiency of the plea. For, taking exceptions to the answer allows the plea the same as a replication would do. The plea should be set down for argument, and if it is held good the answer can then be excepted to.^ , 79a. Allowing^ pleas and taking issue on them. If, upon being set down for argument, a plea is simply, allowed, it is thereby determined to be a full bar to so much of the bill as it covers, if the matter pleaded, with the averments necessary to support it, be tru§. If, therefore, a plea is allowed upon argument, or the plaintift' without argument thinks it, though good in form and substance, not true in point of fact, he may take issue upon it, by a replication to it, and, proceed to disprove the facts upon which it is en- deavored to be supported, or leave the defendant to prove the facts if he can, in support of his plea; for if issue is taken on a plea the defendant must prove the facts which it suggests.' The Code of Tennessee abolishes replications to answers but not so as to pleas. A replication is still necessary to put a plea in issue.* Where the defendant pleads the pendency of another suit, the plaintiff ought not to reply to such plea, even if he dis- putes the fact, but he should obtain a reference to the master, whether another suit is pending between the parties, and whether both suits are for the same matter, or he may admit as much of the plea as he likes and take a reference for the remain der.° 'Graham v. Nelson, 5 Hum., 609 ; Seifred v. Bank, 1 Bax., 200. 'Sto. Eq. PI., 689. ' »Dan'l Ch. Pr., 79T-798. ♦Code, 4893. SDan'l Ch. Pr., 797-T98. ' 136 MANUAL OP CHANCERY PRACTICE. Pleas of a former decree, aS well as those of aaother suit pending, are generally referred to the master to inquire into the fact; and if the master report the fact true, the bill stands instantly dismissed unless the court otherwise order. The plaintiff may except to the master's report and thus bring the matter before the court for argument. He may also set the plea down for argument if he conceives it to be defective in point of form or otherwise.' IJnder the Code, in Tennessee, it is presumed it would be proper to take issue upon pleas of former decree or of another suit pending, the same as upon a general plea.* It would perhaps be competent for the court to refer the question to the master to ascertain the necessary facts for the information of the court. 79b. Ordering a plea to stand for answer. If, upon argument, the court considers the matter offered by way of plea, may be a defense, or part of a defense, but that it has been informally pleaded, or is not properly supported by the answer in support of it, so that the truth of it is doubtful, the court will in such a case, instead of overruling the plea, direct it to stand for an answer. If a plea is ordered to stand for an answer, it is allowed to be a sufficient answer to so much of the bill as it covers, un- less by the order liberty is given to the plaintiff to except. But a sufficient answer is not necessarily a perfect defense. If a plea be to a part of the bill only, and is accompanied by an answer to the rest, an order that it niay stand for answer, without giving the plaintiff liberty to except, it will not pre- clude the plaintiff from excepting to the answer to that part of the bill which is not covered by the plea. The proceedings upon exceptions to a plea ordered to stand for an answer with liberty to except, are the same as those upon exceptions to an answer.^ 'Danl. Ch. Pr., 756. ^Code, 4393. See also Danl. Ch. Pr., 798, 799, 800, on the question of issue on pleas. 'JDanl. Ch, Pr., 800, 801, 802; Orcutt v. Ornes, 3 Paige, 459. MANUAL OF CHANCERY PRACTICE. 137 7&C. Overruling pleas. If the court; upon the argument of a plea, is of opinion that it cannot, under any circum- stances, be made use of as a defense, it will be overruled. The effect of overruling a plea is to impose upon the de- fendant the necessity of making a new defense, and the pro- ceedings upon .the new defense will be the same as if it had been originally made.' If the plea, which has been overruled has been a part only of the bill, accompanied by an answer to the rest, the plaintiff may proceed to compel an answer to the- part in- tended to be covered by the plea, by exceptions to the an- swers.^ t9d. Amending pleas and pleading de novo. In the practice in England, liberty to amend, 'or to plead de novo, will only be granted in cases where there is an apparent good ground of defense disclosed by the plea, but owing to some accident or mistake, it has been informally pleaded ; where a suhstantial ground of defense has been omitted, such permis- sion will not be given.-'' But under thfevery liberal provisions of the Code of Ten- nessee, in regard to amendments, it is presumed that our courts will allow amendments more freely than is permitted under the English practice, except pleas under oath.* 80. Of the different kinds of pleas. In addition to what has been said on this subject in the preceding section, it may . be remarked, that : Pleas in equity to the relief prayed, have usually been ranged under the heads of jileas; (1,) to the jurisdiction; (2,) to the person of the plaintiff", or defendant ; (3,) to the bill ; and (4,) in bar of the suit. Pleas embraced under the first three of those heads, are in the nature of pleas in abatement. . But, the distinction be- tween pleas in abatement and in bar ha^ been considered of no practical importance in, equity, as there was no difference 'DanL Ch. Pr., 80% ^Danl. Ch. Pr., 803-804 'Danl. Ch. Pr., 805. *See Code 2863 to 2870, inclusive ; and authorities there cited. 138 MANUAL OF CflANCERY PRACTICE. in the termination of pleas iii abatement and in bar, "ae there was at law.' But, by section 4384 of the Code, a distinction is recog hized between pleas in abatement and pleas in bar. And, as a former decree is only a bar to a suit between the same parties, for the same subject matter, when the same point is in issue, and when it is conclusive upon the rights of the parties, it is presumed, that as regards the right of the plaintiff to file a new bill for the same object, there is a very substantial difference in the effect of a plea in abatement and "a plea in bar. A final decree upon the rights of the parties upon a plea in bar, in the absence of fraud, puts an end forever to all future litigation of the matter ; but, a decree dismissing a bill upon a plea in abatement, does not. JBy sec. 2901 of' the Code, it is provided that "no plea in abatement shall be received in any court, unless its truth is verified by the oath of the party, or otherwise." By sec. 2902, "actions may be abated by plea of the de- fendant in' the following cases : 1. Where the process is issued and served on Sunday, in the bases prescribed in section 2838." (This bungling and senseless sub-section was, no doubt, intended to provide that the action may be abated where the process, is issued ^nd served on Sunday, in eases in which such issuance and service is not authorized by law.) "2. "Where the process is served upon the defendant while attending his duty at a muster of militia, or election, or as a witness, or juror. . "3. Where suits, local in their nature, are brought in a dif- ferent county from that required by law. "4. Where the plaintiff and defendant both reside, at the time the suit is brought, in the same county, and the action is instituted in another county. "5. Where the defendant is the joint drawer of nego- tiable paper with others, and the original Writ is not served upon any one of the joint drawers." 'Danl. Ch. Pr!, IU-116. ' ' ■ ' MANUAL OF CHANCERY PRACTICET. 139 "This enumeration is not intended to exclude any cause of abatement now r&cognized by law."' "The provisions of the foregoing sections shall not apply so as to aft'ect any rights, or remedies against absconding debtors under the attachment iaws."^ ' Aside from the distinctions and provisions aboVe stated, the difference between pleas in abatement, and pleas in hair, is so slight that they will here be treated together. Pleas in abatement are either pleas : 1. To the jurisdiction. 2. To the person of tbe plaintiff, or defendant. ' 3. To the bill. ' ' 1. Pleas to the jurisdiction do not proceed the length of disputing the right of the plaintiff in the subject of the suit, or allege any disability on the part of the plaintiff to prose- cute the suit, but simply assert that a Court of Chancery, or the one in which the suit is brought, is not the proper court to take cognizance of those rights. . 2.. Pleas to the person of the plaintiff, also, do not dispute the validity of the. rights which are made the .sijbject of the suit; but, they object to the plaintiff, that he is by law-^dis abled to sue in a court of justice; or tha't he cannot institute a suit, alone; or that he is not the person he pretends to' be; or. that he does not sustain the character which he assumes, f'leas to the person of the plaintiff include pleas of alienage, infancy,, covertijre, idiocy or lunacy, bankruptcy, and the want of the character in which the plaintiff sues. 'Soiiie of the other causes for plea in abatement are: Misnomer. Marshall V. Hill. 8 Yer., 101; Dixon t'. Cavenaugh, 1 Tenn., 365. Non-joinder, House v. Mitchell, Meigs, 138. Process irregular or premature, Simmons v. Harris, 1 Bax., 326; Carter v. Turner, 2 Head, 52; Blevins «. Alexander, 4 Sneed, 583. Not served in time, Boyd i;. Buckingham, 10 Hum., 435. Served in wrong county, Shelby v. Johnson, 7 Hum., 503. Covej-tufe, Shepperd v. Kendall, 3 Hum., 80, Crawford «. Crawford, 1 Tenn. Leg. TElep.,,37; Chatterton v- Young, 2 Tenn. Ch , 110. Plaintiffs not partners, Code, 3779«. Defendant not individually liable, Saunders v. Wilder, 2 Head, 579 ; but see Code, 2789. Objection to jurisdiction, Boyd VJ Martin, 9 Heis;, 383; Isaacs ». Edwards, 7 Hum., 467; Vincent v. Vincent, 1 Heis., 335. In attachment suits where it is sought to dispute the allegations made as ground of the attachment, Foster u. Hall, 4 Hum., 346; Kendrick ». Davis, 3 Cold., 524. ^Code, 2904. ' 140 MANUAL OF CHANCBEY PRACTICE-. Pleas to tlie person of the defendant are usually such as allege that the defendant does not possess the character in which he is sued. Such, for instance, as the defendant is not a/eme sole, or not hejr, or executor, etc.; in which character alone suit is maintainable against the defendant. " 3. Pleas to iiie bill do not dispute the validity of the right made the subject of the suit, or contend that the court has not generally jurisdiction over it; nor do they allege that the plaintiff is under any disability to sue, or that the defendant ought not to be sued ; but they assert that the silit, as it ap- pears on the record, is defective to answer the purpose of complete justice, or ought not, for some other reason, to proceed. They, have been arranged under the following heads : (1) Plea of another suit pending in a court of equity for the same matter; (2) plea of want of proper parties, or misjoin- der of parties; (3j plea of multiplicity of suits; (4) plea of multifariousness, or joining and compounding distinct mat- ters in one suit.' By the Code, section 4325, it is provided that " multifari:^ ousness, misjoinder, or nonjoinder of parties, is no suffici,ent cause for the dismission of a bill in equity, unless the objec- tion is made by motion to dismiss, or by demurrer." But section 4388 provides that when the misjoinder, or nonjoinder of parties does not appear on the face of the bill, the objection may be made by plea. Section 4385 provides that, " after answer filed, and no plea in abatement to the local jurisdiction of the court, no excep- tion for Want of jurisdiction shall afterwards be allowed." Pleas in bar are usually ranked under the heads of: (1) Pleas, founded on some bar created by statute — such as the statute of frauds, or the statute of limitations; (2) Pleas founded on matter of record, or, as of record, in some court — such as a plea of a former judgment in a Court of Record, or in a foreign court (which is deemed not to be a Court of Record, but of equal validity) ; (3) Pleas of matters purely in pais — that is, upon matters of fact which are not of record. The most usual pleas under this h6ad are : (1) Pleas of a re- 'Sto. Eq. PI., 705-735. MANUAL OF CHANCERY PRACTICE. 141 lease; (2j of a stated account; (3) of a settled account; (4) of an award; (5) of innocent purchaser; and (6) of title in the defendant.' SOa. When Fleas in abatement must be filed; and ver- ified. Pleas in abatement are not favored, and are construed with great strictness.^ They must, therefore, always be tiled at the right time, in the right form, and properly verified.* : A plea in abatement cannot be filed after a general contin- liance; and an agreement to plead and try at the next term is. a general continuance.'' It must be filed before pleading in bar, unless the matter in abatement arose after the plea in bar.'' > :. All pleas in abatement must be verified by .the oath of the party, or otherwise.' ,. If filed without verification, the plaintift" may proceed to judgment without noticing it.^ The afifidavit must be positive as to the truth of every fact contained in the jplea. It must be stated that the plea is true in substance and in fact.' But it may be verified by an agent or attorney; and the fact of agency need not appear in the plea." ■ • 81. Plea of the statute of limitations. This is a good bar to a suit in equity, as well as at law, in all cases to which the statute applies, and will ordinarily bar both the claim and the discovery as to when the claim became due.'" ; The objection may be taken in an answer as well as by plea, and if the objection appear on the face of the bill, it may be taken by demurrer. 'Sto. Eq. PL, 749-796. 'State V. Bryant, 10 Yer,, 527. "Grove V. Campbell, 9 Yer,, 7. ■ *Shaw V. Bcwen, 1 Tenn., 249; State i). Faust, 7 Cold., 109. ^Yancey v. Marriott, 1 Sneed, 28. 'Code, 2901, and cases cited^ ' 'Youngi. Stringer, o Hay., 30; Priedlander v. Pollocfc, 5 Cold , 490. ^Banfc V. James, 1 Swan, 391. j^ 'Klepper v. Powell, 6 Heis.,'503. "Sto. Eq. PL, 751. 142- MANUAL OF CHANCERY PRACTICE. The plea must aver, not that the defendant did aot promise within six years, but that the cause of action hath not ac-. crued within six years, in all cases where the demand is of a debt upon an executory contract, for the statute runs only from the time the debt is due, and not from the time it is contracted.. If the bill charges fraud, and that the fraud was not discovered till within six years, a pure plea would not be appropriate; but it should be an anomalous plea, not only pleading the statute, but containing averments denying the fraud; or stating that the fraud, if any, was not discovered within six years, before the commencement of the suit; and it should also be accompanied by an answer in support of the plea, answering and denying the circumstances of fraud, and other circumstances which go to avoid the bar.^ So, where any other matter is charged in the. bill for the purpose of avoiding the bar (such as a new promise, disabil- ity, etc.), such matter must be denied by averment in the plea ; and the plea must be accompanied with, and supported' by, an answer.^ In many cases, courts of equity, in analogy to the law, adopt, as a positive rale, the time fixed by the statute for the. lirnitation of suits, and apply it to cases not within the words of the statute.' 82. Plea of the statute of frauds. The statute for the prevention of frauds and perjuries may not only be pleaded (in cases to which it applies), where the original contract is not in writing; but, if the bill -seeks to set up an essential verbal variation of the contract within the statute of frauds, the statute may be pleaded to the variation.* 4 'Sto. Eq. PI., 754. 'Sto. Eq. PI, 754; «Graham v. Nelson, 5 Hum., 605. The statute of limita-- tions must be specially pleaded. Carter v. Wolfe, 1 Heis., 701; Graham v, Nel- son, 5 Hum., 605. But it may be specially pleaded and' relied on in the answer. Code, 4318. Such a plea must be sworn to. Graham v. Nelson, 5 Hum., 609; Anderson v. Bedford, 4 Cold., 471. But this practice is not followed by the pro- fession in this State, generally. And must be accompanied with an answer d,e- iiying any charges of fraud or fraudulent concealment. Same authority, and Seifredu. Bank, IBax., 201. ' . »Sto. Eq. PI., 756. *Sto. Eq. PI., 761. , .^ MANUAL OF CHANCERY PRACTICE. 143 The plea must contain negative averments, showing that there has been no contract or agreement signed by the par- ties, or no va,riation signed by them.^ If the bill, seeking the specific performance of a verbal contract, falling within the provisions of the statute, should on its face show that the contract was not in writing, a de- murrer would lie., The statute may also be relied on in an answer. If the defendant should, by his answer, admit the verbal agreement, and should insist upon the benefit of the statute, he will be entitled to it, notwithstanding such admission. But, if he admits the verbal agreement, without insisting on the statute, the court will decree a specific performance, upon the ground that the defendant has thereby waived the benefit of the statute.^ It must be remembered that such contracts are not abso-, lutely void, but only voidable.^ But, if in cases of this sort, any matter, such as fraud, is charged in the bill, which may avoid the bar created by the statute, that matter must be denied by averment in the plea, and the plea must be supported by an answer denying all the alleged facts, with particularity and precision.* 83. Plea of other statutes. The plea of any statute which creates a bar to the demand made by the plaintifl:''s bill, may be pleaded with the averments necessary to bring the case of the defendant within the statute, and to avoid any equity ^et up in the bill to take the case out of the operation of the statute. In the latter case, the plea must always be supported by an answer, denying, with particularity, the. equities relied on to take the case out of the statute.'* A statutory bar may also, always, be relied on in an answer ; or, if the face of ;the bill shows that the case is within the statute, a demurrer will lie. 'Sto. Eq. PL, Tei. »Sto. Eq. PI., 763 ; Sneed v. Bradley, 4 Sneed, 301. "Sneed v. Bradley, 4 Sneedj 301. *Sto. Eq. Pl.;764. ■" - 5Sto. .Eq. PL, 769. 144 MANUAL OF CHANCEEY PKACTICE. 84. Plea of former judgment. 1. In eases of exclusive legal cognizance. , In cases of" exclusive legal cognizance, such as personal actions concerning debts, or goods and chattels, a recovery, or bar in one action, is a bar in another. But, to this rule, exceptions are allowed in equity, where the party can impeach the justice of the verdict and judgment, on grounds of which he could not have availed himself at law, or was prevented from doing it by accident or fraud, or the act ' of the opposite party, unmixed with negligence or fault on his part.' "It is not sufficient to show that injustice has been done; but it must be shown that it has been done under circumstances which authorize the court to interfere ; because, if a matter has been already investigated in- a court of Justice of compe- tent jurisdiction, according to the common and ordinary rules of investigation, a court of equity cannot, and ought not to take upon itself to enter anew into the merits of the case. It is bound to presume that all things have been right- fully done; and the maxim applies, expedit reipuhlicce, ut sit finis litiuni."^ Foreign courts are deemed to be courts not of record, but as of record ; and if the court by which tlie judgment is ren- dered had jurisdiction, the judgment, or sentence, is a bar, with the like exception of such circumstances as would in- validate a domestic judgment. But it is not necessary to set forth the proceedings and judgment at length.' 'Meigs' Dig., 404, and cases cited. Milliken's Dig., 579, sub-sections 5 and 6. The plea of a former trial and judgment must show the record of the trial and judgment, that the court may see whether a full and adequate remedy or de- fense existed. It must be averred that the same issue was joined; that the sub- ject matter was the sanie, that the proceedings in the former suit were for the same object and purpose. Sto. Eq. PI., ISOa; Arnold v. Kyle, 8 Bax., 322; Williams v. Coplinger, 6 Hum., 2^7; McKissack b. McKissack,. 6 Hum., 75; Sreen v. Neal, 2 Heis., 219; Connell v. Purgason, 5 Cold., 404; Peeler v. Mor- ris, 4 Yer., 331; Knight ». Atkissjn, 2 Tenn. Ch. 388,. The plea must state facts and not legal deductions. Eiley w. Lyons, 11 Heis., 251; Whitthorne v. St. Louis Mut., 3 Tenn. Ch., 147. It must set out the names of the parties to the judgment or decree, arid conclude with a verification by the record. See same authorities. It must show that the judgment was on the merits, fiank- head v. Alloway, 1 Tenn. Ch., 207; Hurt v. Means', 2 Sneed, 548. 'Sto. Bq. PI., 782. »Sto. Eq. PL, 783. MANUAL OF CHANCERY PEACTICE. 145 In the case of Williams v: Oaplinger, 6 Hum., 257-259, Judge Grreen, in delivering the opinion of the court, says : " The defendant insists that there has been a trial at law, and that the complainant should have defended himself in that forUm." " It does not appear from the record what form of action was prosecuted at law; and, therefore, we do not know that the complainant could have defended himself in that suit." He then states that either trover or assumpit might have been brought, and that if trover was the form of action, the defense (set off) could not be made in the court of law. He then proceeds: "As the defendant relies on a trial at law, in bar of the complainant's right to recover those sums to which he is manifestly entitled in equity, it was incumbent on him to show the record of the suit at law, that we might see whether a full and adequate remedy existed." If there is any charge of fraud, or other circumstances showjn in the bill to avoid tbe bar, the plea must, by aver- ments, deny the fraud, or other circumstances upon which the judgment is sought to be impeached, and thus put them in issue, and must be supported by a full answer to the special charges.' 2. In cases of concurrent jurisdiction. Much that has been said in the preceding sub-section will apply to this, and very little need be added to what is there said. In cases originally equitable in their nature, of which courts of law have assumed jurisdiction, or of which juris- diction has been conferred by statute on courts of law, with- out negative words excluding equity jurisdiction, if there has been an investigation in a court of law, where the case is plain and unembarrassed in its nature, and the court of law, agreeably to its mode of proceeding, is competent to afford adeqtiate relief, a court of equity wall not interpose unless some obstacle to the attainment of justice occurred.^ "Sto. Eq. El., 18i. *Turney v. Young, 2 Tenn., 266. 10 146 MANUAL OF CHANCERY PRACTICE. If a party, having a cause originally equitable, elects to bring his suit in the legal forum, (which either by assumption, or statute, takes jurisdiction,) there are few cases in which equity woulfl aft'ord him relief after an investigation at law. But, as regards an equitable defense, if such defense prove unavailable at law, no matter for what cause, the defendant is entitled to relief in equity, of course ; or, without having any other ground than that he honestly endeavored to defend himself at law, and that the defense proved unavailable.^ This reasoning includes, as well, that class of cases where the remedy at la^v is difficult and embarrassed, of which the courts of equity take cognizance, as those in which £iiere was originally a clear equitable I'emedy. Thus, courts of law always had cognizance of accounts ; but, being of a compli- cated nature, and consequently calculated to produce embar- rassment with a jury, a court of equity would, of course, afford relief to a defendant, whose defense of this nature had, after due exertions, proved ineffectual at law.^ Bat in the case of Galbraith v. Martin, 5 Hum., 52, Jyidge Turley, in delivering the opinion of the court, says : "It is now well settled, that if a defendant at law neglect to avail himself of a defense, which might there be made, he cannot be permitted to make it in equity, and this, whether the defense were purely legal, or from its nature, both legal and equitable." These cases seem to establish the rule that, if the equitable defense is one which could have been legitimately made in the court of law, and the defendant neglects to make it, a court of equity will not relieve him; but that if the remedy at law is not clear and unembarrassed, and the pai'ty en- deavored to prove the defense, but it proved unavailable, a court of equity will grant relief. 3. In cases of exclusive equitable cognizance. It is presumed that the lines of jurisdiction are, by this time, pretty well settled between the law courts and the courts of equity; and, that the former are not likely to 'Turney u. Young, 2 Tenn., 266; Wilson v. Killcannon, 1 Tenn.,.206. ^Turney v. Young, 2 Tenn., 266. MANUAL OP CHANCERY PEACTICE. 147 meddle with matters exclusively within the jurisdiction of the latter. But, if they should, by a little judicial legislation, throw the doors of justice a little wider open, so as to make their decisions more in harmony with the liberal principles which are applied in courts of equity, it is presumed that the jurisdiction which would then be exercised by the two courts in administering- the same principles of justice in similar cases, might very much resemble a concurrent jurisdiction, even although the courts of equity might feel inclined to re- sist the supposed usurpations as stubbornly as the law courts resisted the supposed usurpations of the court of chancery, in the acquirement of its present jarisdiction. It surely is not diiSlicult to settle the bounds of jurisdiction between the two courts, as the decisions of both are subject to revision by the same tribunal — the Supreme Court. As questions of exclusive equitable cognizance -are never investigated by the law courts, a judgment between the par- ties in a court of law, although it may be in some way con- nected with the same subject matter, is no bar to a suit in equity to enforce the equitable right. In treating this subject- of pleading a judgment at law, it is customary, in Tennessee, to treat it under the heads em- braced in the sub-sections into which this section is divided. The author has followed this mode of treating the subject out of respect to this custom, and not because he deemed the addition of this third head appropriate. The defense of a former judgment may be relied upon in an answer ; or, if the fact sufficiently appears from the face of the bill and there is no allegation of any equitable fact or circumstance to avoid the bar, the objection may be taken by demurrer. 85. Plea of a former decree in equity. A decree in the same or another Court of Equity, in order to be a bar to another suit, must not only be substantially between the same parties for the same subject matter, but must be final, and must be upon the same point. Therefore a decree for an account of the principal and interest due on a mortgage, and 148 MANUAL OF CHANCERY PRACTICE. - for foreclosure in ease of non-payment, cannot be pleaded to a bill to redeem, unless there is a final order of foreclosure. V A decree against an infant may be pleaded in bar of a new- bill brought by him after he comes of age ; for an infant is as much bound by a decree as a person of full age.^ A decree, dismissing a former bill for the same matter, may be pleaded in bar to a new bill, if the dismission was upon the hearing and was not in terms directed to be with- out prejudice. But a decree, or order of dismission, is only a bar where the court has determined that the plaintiff is not. entitled to the relief sought by his bill. Therefore an order dismissing a bill for want of prosecution is no bar to another bill.^ The same rule holds in regard to a plea of a former de- cree, as in analogous ca,ses ; that if the bill seeks to impeach the decree for fraud, the plea must, by averments, negative the charges of the fraud, and must be supported by a full answer denying them.* To make a decree in a former suit a bar, the title sought to be adjudicated must be the same, as well as the parties and the property.^ Upon a plea of a former decree, so much of a former bill and answer must be set forth as is necessary to show that the same point was then in issue.° 86. Plea of a Release. If the plaintiff, or any person, under whorn he claims has released the subject of his de- mand, it may be pleaded in bar ; and if fraud, surprise, inad- equacy of consideration, or any other objection to the release is charged in the bill) those charges must be met by aver- ments in the plea, and the plea, in such cases, must be sup- ported by an answer denying them.' Although by the Code, sec. 1804, the use of private seals in written contracts, except the seals of corporations, are 'Sto. Eq. PL, 791. See ante 84, authorities cited in note. 'Sto. Eq. PI., 792. ''Sto. Eq. PI., 793. *Sto. Eq. PL, 794. 'McKissack v. McKissack, 6 Hum., 75. «Sto. Eq. PI., 791. 'Sto, Eq. PI:, 796. MANUAL OF CHANCERY PRACTICE. 149 abolislied ; yet all receipts, releases and discharges in writing, whether of a debt of record or a contract under seal, or otherwise, shall have effect, according to the intention of the parties thereto.^ And by sec. 3790 all settlements in writing, made in good faith for the composition of debts, shall be taken as evidence and held to operate according to the intention of the parties, although no release under seal is given and no new conside- ration has passed. In a plea of release, the defendant must set out the consid- eration upon which it was made ; for every release must be founded on some consideration, otherwise fraud must be pre- 'sumed.^ And if the bill impeaches the consideration of the release, .the plea must, by averments, deny the charges impeaching the consideration, and must be supported by answer, as in analogous cases, which have been treated of in the preceding sections.^ Notwithstanding the fact that Mr. Daniell (whose general accuracy, as well as his thoroughness, is admirable) lays it down in general terms, and is followed by Mr. Story, that a plea of a release must set out the consideration on which it was made, the position will here be ventured, that in the ab- sence of any fraud, accident, mistake, or undue advantage, a release is valid without any consideration ,at all to support it.'' But where a release is founded on a consideration, and is not voluntary, and a bill is filed to set it aside, impeaching the consideration on which it is founded, there is no doubt but the position of Mr. Daniell, when applied to such a case, is correct. A release may be relied on in an answer; or, if the bill .should show that the matters for which relief is sought have been released, and shall fail to show any circumstances to im- impeach the validity of the release, a demurrer would lie. 'Code, 3789. ^Danl. Ch. Pr,, 766; Sto. Eq. PI., 797. sSto. Eq. PI., 797. *Smith V. Harris, 3 Sneed, 556. 150 MANUAL OF CHANCERY PKACTICE. 87. Pleas of stated accounts, and settled accounts. A stated account properly exists only where accounts have been examined, and the balance admitted as the true balance be- tween the parties, and that it has not been paid. "When the balance, thus admitted, is paid, the account is deemed a settled account.' Each of these, and, a fortiori, a settled account may be pleaded in bar to a bill for an account. The 'plea of a stated account must show that it was in writing, and the balance likewise in writing ; or, at least, it must set forth what the balance was, and that the settlement was final.^ A receipt in full of all demands will generally be consid- ered as evidence of a general release, or discharge, upon an account stated; but, if there are suspicious circumstances ap- pearing in the case, such receipt will then only be considered as evidence of a particular payment, and not as such general release, or discharge.^ Courts of equity will not open a settled account where it has been signed, or a security taken on the foot of it, unless for fraud, or for errors distinctly specified in the bill, and sup- ported by evidence. The expression, of " errors excepted," will not prevent its being a settled account; nor will the allegations of general errors be enough, for specific errors must be pointed out, or it will be final. But, where there was an admission of the allegation of general errors in a settled account between an attorney and client, it was held not binding on the parties, although no specific errors were pointed out.^ It is a still stronger case for opening such an account at any time, where an attorney has used his influence over his client to get a settlement of an vmfair account between them. In such case, it is enough if the court see that the account is unfair, without other proof of the objection.'' "Dan'l Ch. Pr., 761; Sto. Eq. PI., Y98. 2Sto. Eq. PL, 798. »Sto. Eq. PI., 799, *Sto. Eq. PI., 800. ^Sto. Eq. PI., 800. MANUAL OF CHANCEEY PRACTICE. 151 In a plea of a stated or settled account, where the bill charges fraud, or error, it is necessary to meet those charges by averments in the body of the plea, and also to support the plea by an answer denying them. And if either error or fraud is charged, the defendant must, by plea, aver that the stated or settled account is just and true to the best of his knowledge and belief. If the bill charges that the plaintiff has no counterpart of the account, the account should be an- nexed by way of schedule to the answer; so, that if th^re are any errors on the face of it, the plaintiff may have an oppor- tunity of pointing them out.' The ex parte settlement made by an executor, or adminis- trator, in accordance with the statutes of Tennessee, although it is considered as prima facia correct, is not in the nature of a stated account, unless the distributees were present in per- son, or by agent, and assenting to the settlement as made, or have recognized it as correct in receipting for the balance found, or in some other way. And such settlements are liable to be opened and reviewed by a bill asking for an account generally, without surcharg- ing, and falsifying them by pointing out in the bill the errors in the account. Especially if the distributees are minors.^ What effect shall be given to those ex parte settlements, as against the executor or administrator, or the guardian, by whom they are made, who may afterwards try to impeach them, has not yet been adjudicated. But in reason it would seem that such party would have to show a very clear case of accident or mistake to entitle him to open the account.^ It is extremely dangerous to open accounts after settle- ments made by the parties and a bond given for the balance. It ought not to be done when the application is made after a considerable lapse of time, when vouchers are lost and wit- nesses are removed. "When so opened, the burden of proof is on the complainant, and evidence ought to be received only as to such parts of the account as the court permits the 'Sto. Eq. PL, 802. ^Turney v. Williams, t Yer., 172-222; Elrod v. Lancaster, 2 Head, 573; Mil- ley V. Harrison, 7 Cold., 213. 'Since the publication of the first edition, the Supreme Court have sustained this view exactly. Dodson w. Dodson, 6 Heis., 111. 152 MANUAL OF CHANCERY PEACTICB. plaintiff' to falsify if he can. In general, the court will not open an account after bond taken, or release given, or atter the settlement is put under seal. But it will do so if collu- sion be alleged, or fraud, or if the settlement be made under suspicious circumstances which show an undue influence of one of the parties over the other; or if there be a promise to correct errors; or if the settlement be made by surprise; or the account itself show error. For these and similar reasons the account will be opened if an application be made recently.^ A stated account, or a settled account, may be relied on in an answer. And if the fact appears on the face of the bill, and no circumstance is alleged to impeach it, a demurrer would lie. 88. Flea of an award. An award may be pleaded to a bill to set aside the award and open the account. If fraud or partiality is charged against the arbitrators, the charge must be denied by way of averment in the plea, and the plea must be supported by an answer showing the arbitrators to have been incorrupt and impartial. And any other matter stated in the bill as a ground for im- peaching the award, must be denied in the same manner.^ Courts of Chancery will modify, change, or set aside an award which has been erroneously made by fraud, accident or mistake; but the case must be clearly made out, before such power will be exercised.^ An award may be relied on in an answer, or if it appear on the face of the bill without circumstances to impeach it, the defense may be'made by demurrer. 89. Plea of innocent purchaser. 1. Generally. Although a plaintiff" may have full title to relief, yet if the' defendant has an equal claim to the protection of a Court of Equity to defend his possession, as the plaintiff' has to the assistance of the court to assert his right, the court will not interposfe ou either side. 'Love V. White, 4 Hay., 210. 'Sto. Eq.Pl., 803. 'Hardeman v. Surge, 10 Yer., 205. MANUAL OF CHANCERY PRACTICE. 153 This is particularly the case where the defendant claims under a purchase or mortgage for a valuable consideration, without notice of the plaintift"'s title. Such purchase or mortgage may be pleaded in bar of the plaintiff's suit, whether the title of the plaintiff is legal or equitable.^ A person affected with notice has the benefit of want of notice of intermediate parties. Therefore a purchaser with notice from a purchaser without notice may shelter himself under the first purchaser.^ And a purchaser, bona fide, without notice of any defect in his title at the time he made the purchase, may buy in any other title, or incumbrance ; and, if he can defend himself at law by. any such incumbrance brought in, his adversary shall never be aided in a Court of Equity by setting aside such in- cumbrance ; for, equity will not disarm a bona fide purchaser, but assist hini.^ But it seems that the defense of innocent purchaser does not apply to transfers of personal property, except negotia- ble paper transferred in due course of trade, where credit is given to the paper and the consideration bona fide paid on receiving it.' This defense cannot be set up to defeat the right of a widow to dower in land fraudulently conveyed by the husband to defeat her right of dower. Such conveyances are, under our statute on the subject, absolutely void as to all persons, without regard to notice." The defense of innocent purchaser may be made by answer but in that ease the same certainty is required as in a plea.' 2. What is necessary to be averred. (1.) The plea must aver that the person who conveyed or mortgaged to the defendant was seized in fee or pretended to be so seized, and that he was in possession, if the conveyance 'Jerrard v. Saunders, 2 Ves. Jr., 454 ; Sto. Bq. PI., 805, and note. ^Sto. Eq. PL, 808. "Jerrard v. Saunder, 2 Ves. Jr., 457. *Napier v. Blam, 6 Yer., 115. sCode, 2406; Hughes v. Shaw, M. and Y., 323. ^High V. Batte, 10 Yer., 335; Cardwell v. Cheatham, 2 Head, 22; Rhea v. Al- lison, 3 Head, 179 ; Saylors . i>. Saylors, 3 Heis., 529; Stephens !J. Porter, 11 Heis., 348. l54 MANUAL OF CHANCERY PRACTICE. purported an immediate transfer of the possession, at the time when he executed the purchase or mortgage deed.' There is no instance of the plea being sustained without the averment tliat the defendant was, or pretended to be, seized in fee.^ The vendor must be in the actual possession, and the vendee believe he is acquiring the fee ; otherwise he cannot be a bona fide, purchaser within the meaning, of the plea.^ As it is a matter of record, it is presumed that every one knows whether or not, land which has been entered, has been granted by the State; and if land has not been granted, a purchaser thereof is presumed to know that his yendor was was not seized thereof in fee, and he cannot therefore make this defense. (2.) The plea must aver a conveyance, and not articles merely. And if a purchaser be fixed with a notice of a pre- vious equity, one holding under him by mere bond for title is not in a condition to set up the defense.* (3.) It must aver the consideration for the property and actual payment of it; a consideration secured to be paid is not sufficient." And where a tract of land is the consideration agreed to be paid, a bond for title to it is not a payment of the con- sideration ; but it requires a conveyance of the land to con- stitute such payment." A recital in the deed of conveyance cannot be received in lieu of the averment that the consideration money was bona fide and truly paid. And the averment that a full and fair consideration has been paid, is not sufficient. The defendant must state what he has paid, and then the court can judge whether he is a purchaser for a valuable consideration.^ 'Saylors v. Saylors, 3 Heis., 529; Cleveland v. Martin, 2 Head, 132; High v. Batte, 10 Yer., 335. ^Craig V. Leiper, 2 Yer., 193. "Craig V. Leiper, 2 Yer.;^ 193. *Sto. Eq. PI., 805; Smitheal v. Gray; 1 Hum., 496; Pillow u. Shannon, 3 Yer., 508. ,5Sto. Eq. PI., 805. ^Merrill v. Johnson, 1 Yer., 73. 'Wells V. Stratton, 1 Tenn. Ch., .341; Smitheal v. Gray, 1 Hum., 491; Napier V. Elam, 6 Yer., 108; Merrill u. Johnson, 1 Yer. 71. To constitute the defense ■MANUAL OF CHANCERY PRACTICE. 155 This decision was made to uphold " that certainty which constitutes the beauties of both legal and equity pleading.''^ (4.) The plea must deny notice of the plaintift''s title or claim, previous to the execution of the deed and payment of the consideration. Although the purchaser has no notice at the time of the- purchase, yet, if he has notice before the ex- ecution of the deed and the payment of the purchase money, he cannot set up this defense.^ But the author has seen no case in which the purchase money had been fully paid before notice, and the conveyance taken after receiving notice. And notwithstanding the num- ber of dicta on the point, he cannot see why a purchaser, who has fully paid the consideration before receiving notice of an opposing equity, might not take a conveyance to pro- tect his possession, as well as he may buy in an encum- brance for that purpose. In the case of Pillow v. Shannon, 3 Yer., 512', Judge Green, in delivering the opinion of the court, says: "In the case of Denning v. Smith, 3 John Ch. Rep., 345, Chancellor Kent says: "If a purchaser wishes to rest his claim on the fact of being an innocent purchaser, he must deny notice, even though it be not charged, and he must of innocent purchaser the defendant must have the legal title and aver that the consideration money has been bona fide and truly paid, and state what he has paid. Neither a general allegation, nor the recital in the deed, will be received in lieu of the statement of facts. High v. Batte, 10 Yer., 335; Saylors w. Saylors,3 Heis.,527; Livingston u. Noe, 1 Lea, G6; Click v. Click, 1 Heis., 612; Gass V. Gass, 1 Heis., 623; Rhea v. Allison, 3 Head, 178; Cleveland v. Martin, 2 Head, 132; Parker v. Hall, 2 Head, 641; Bloomer v. Bloomer, 6 Bax., 101. 'High v. Batte, 10 Yer., 337. ^Pinson v. Ivey, 1 Yer., 296; Pillow v. Shannon, 3 Yer., 512; Smitheal «. Gray, 1 Hum., 496; Sto. Kq PI., 806; Bayless v. Williams, 6 Cold., 451; Bay- lors u. Saylors, 3 Heis., 527"; Kinegan. !'. Pinegan, 3 Tenn. Ch., 516; Aiken -o. Smith, 1 Sneed, 312; Ellis v. Temple, 4 Cold., 321. Whatever is sufficient to put a prudent man on inquiry amounts to notice. Woodfolk u. Blount, 3 Hay., 147; Robertson v. Auld, 6 Yer., 406.. But language in a deed which admits of a construction consistent with the title will not be notice to an innocent purchaser of an outstanding equity. Moore v. Walker, 3 Lea, 657. A vendor is charge- able with notice of all defects" in the claim of title under which he claiins, and cannot as to the same plead want of notice or innocent purchaser. Pulliam V. Wilkerson, 7 Bax., 611. If an agent or trustee has notice of a prior encum- brance it is notice to the principal. Myers v. Ross, 3 Head, 60. 166 MANUAL OF CHANCERY PRACTICE. deny it positively, not evasively ; he must even deny fully ;and in. most precise terms every circumstance from which notice could be inferred." As regards this language, it may be remarked : 1st. If Judge Green had adopted it as his own (which he indeed seems to have done, by citing it with approval), it could amount to nothing more than a dictum, as the facts of the case of Pillow v. Shannon did not call for it. In that case, the defendant did not deny notice at all before the pay- ment of the purchase money and execution of the deed; but only alleged that he had no notice at the time of the pur- chase, and that a fair consideration was paid ; without stating what consideration was paid, or when. 2d. The language is in direct conflict with the decision in the case of Edmonson v. Hays, 1 Tenn., 509. 8d. If it is meant to say that such plea must deny every circumstance from which notice could be inferred, without such circumstance being charged in the bill, it is simply ab- surd and ridiculous. 4th. The language when used by Chancellor Kent, in the case of Denning u. Smith, was only a dictum. In support of the position, a dictum in the case of Frost v. Beekman, 1 John Ch. Eep., 302, is found, which rests on what was said by Lord Loughborough, in the case of Jerrard v. Saunders, 2 Yes. Jr., 454. The whole matter rests at last on what Lord Loughborough said in that case. The dicta in both the ease in 1 John Ch. Rep., and in that in 3 John Ch. Rep., rest on it. And upon examining the Case in 2 Ves. Jr., it will be found that the language of Lord Loughborough utterly fails to convey any such idea. His language on this point is as follows : " I am perfectly satisfied upon the general reasoning, that this court will never extend its jurisdiction to compel.a pur- chaser, who has fully, and in the most precise terms, denied all the circumstances mentioned, as circumstances from which notice may be inferred, to go on to make a further answer as to the circumstances of the case, that are to blot and rip up MANUAL OF CHANCERY PRACTICE. 157 . his title. To do so, would be to act against the known estah- hshed principles of this court."' 90. Plea of title in the defendant. Although the plea of a purchase for a valuable consideration, without notice, can- not be set up as a defense by a party who claims under a mere voluntary conveyance, or other voluntary title; a mere volunteer may plead his title in bar of the suit, if his title is, on the whole, paramount to that of the plaintiff. Thus, to a bill filed by an heir against a person claiming under a conveyance from the ancestor, the defendant may plead the conveyance in bar of the suit. So, to a bill brought to set aside a deed for fraud, a plea of title paramount under a former conveyance, may be pleaded in bar.^ This, like any other ordinary matter i7i pais, may be relied on in the answer as well as by j)lea. 91. Length, of time, and adverse possession. Length of time, and adverse possession, is a peculiar defense in equity, in cases which are not within the reach of the statute of lim- itations.^ Courts of equity have established the doctrine, that after a great lapse of time, and long peaceable possession, they ought not to interfere to grant relief, for the policy of the • law is to give quiet and repose to titles ; and courts of justice ought not to countenance laches or long delays on the part of claimants. And, indeed, after a great lapse of time, courts of equity will raise a presumption of some, legal or equitable extin- guishment of the adverse title, if the circumstances of the case will enable them to support it.* This defense may be relied on in an answer, and if the facts sufficiently appear on the face of the bill, a demurrer would,' of course, be available. ^errard v. Saunders, 2 Ves. Jr., 454. 'Sto. Eq. PI., 811-812. 'Sto. Eq. PL, 813. *Sto. Eq. PI., 813. 158 MANUAL OF CHAXCERY PaACTICE. 92. Forms of pleas. 1. Plea of another suit pending. The joint and several pita of John Doe and Richard Roe, to the hill of com- plaint of John Smith. These defendants, by protestation, not confessing any of the matters in said bill contained, to be true in manner and form as the same are therein set forth, , do plead thereunto ; and for cause of plea say, that heretofore, and before he exhibited his present bill in this honorable court, to-wit; on the 1st day of May, 1869, the said, now complainant exhibited his bill of complaint in this honorable court, against these defendants for the same matters, and to the same effect, and for the like relief, as the said now complainant does, by his present bill, demand and set forth ; to which said first bill, these defendants did put in their joint and several answer, and other proceedings were thereupon had; and the said, former bill is still pending in this honorable court, and the matters thereof undetermined ; and therefore, the said defendants do plead the said former bill, answer and proceedings, in bar of the present bill ; and pray the judgment of this honorable court, whether it behooves them to make any other, or further an- swer thereto, than as aforesaid, and pray to be henee dimissed, with their rea- sonable costs in this behalf sustained. Nathan Green, Solicitor. The mere pending of a suit in a foreign court, (which prin- ciple applies to the courts of another State of the United States,) cannot be pleaded in abatement, or in bar, of a suit in our own State upon the same matter.^ The defense of a former suit pending in equity, may, under the Code, be incorporated in the answer.^ 2. Flea of infancy to a hill exhibited without a prochein amy. (Commence as above, and proceed.) That the said complainant before, and at the time of filing, his said bill, in , which he appears as the sole complainant, was and now is, an infant, under the age of twenty-one j'cars, that is to say, of the age of twenty years, or thereabouts. Therefore, etc. 3. -Plea of coverture of the complainant. That the said complainat, Mary Jackson before, and at the time of exhibiting her said bill, was, and now is, under the coverture of one William Jackson, her husband, who is still living, and ia every respect capable, if necessary, of insti tuting any suit at law, or in equity, on her behalf. Therefore, etc. 4. Plea of the statute of frauds. John Den 1 V.I. [ In the Chancery Court, at Knoxville. Richard Fen. J In this cause, the defendant, by protestation, not confessing any of the matters contained in complainant's bill to be true, pleads to said bill, and for plea says: That neither this defendant, nor any person by him thereto lawfully author- 'Lockwood & Co. v. Nye, 2 Swan, 520. 'Uonnell v. Ferguson, 5 Cold., 401. MANUAL OF CHANCERY PRACTICE. 159 ize'd, did ever sign any contract, or agreement, in writing, or any memorandum, or note, in writing of any such contract, or agreement, for the sale to the com- plainant of the tract of land mentioned and described in complainant's said bill. He therefore pleads those matters in bar of complainant's suit, and prays the judgment of the court, whether he shall be required to make any other or fur- ther answer to said bill. And he prays to be hence dismissed,' with his reasona- ble costs in this behalf expended. W. B. Reese, Solicitor. Where any other provision of the statute of frauds is to be pleaded, the necessary changes will readily suggest them- selves. In fact, where any statute whatever is to be pleaded, the language used in the statute will indicate the necessary alle- gations to be used in pleading it. If a plea contains all the substantial averments necessary to make a complete defense, the manner in which the facts are set forth is of minor importance. All pleas may begin and conclude alike. The form of commencement and conclusion in this last plea, or that in the first form above given, or any other form of introducing and concluding a plea in an appropriate manner, may be adopted. The usual manner of pleading a statute has been to set forth : 1st, The provisions of the statute ; and, 2d, the facts which bring the case within the provisions of the statute. Thus, in pleading the statute of frauds, the practice in England has been to frame the body of the plea as follows : " For plea saith, that by an act of parliament, made in the twenty-ninth year of his Majesty, King Chai'les the Second, entitled 'An act for prevention of fraud and perjuries,' it was, amongst other things, enacted that from and after the daj' of —^, no action should be brought where- by to charge any person upon any contract, or sale of lands, tenements, or heriditaments, or any interests in or concern- ing them, unless the agreement upon which such action should be brought, or some memorandum or note thereof, should be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized, as by the said act may appear. 160 MANUAL OF CHANCERY PRACTICE. " And this defendant furtlier for plea saitli that neither he, this defendant, nor any person by him lawfully authorized, did ever sign any contract or agreement in writing, for making or executing any sale or conveyance to the com- plainant of the said messuage, or tenement, or any part thereof, or any interest thereof, or to any such effect, or any memorandum or note in writing of any such agreement ; all which entries and things this defendant doth aver to be true, and is ready to prove as this honorable court shall award. And therefore he doth plead the same in bar," etc., etc. Ifow, the author deems it not only unnecessary to allege or prove matters of which the court will take judicial notice, (suchas a j)ublic statute), but that, however good tbe inten- tions of the pleader in giving the court information that a certain statute has been passed and is the law of the land, yet that it is somewhat impertinent to do so. It is presumed that the. proper way to bring such matters to the attention of the court, if it is supposed that the judge is likely to overlook them, is in argument of tbe ease at the hearing, and not by stating the fact in pleading. 5. Plea of innocent purchaser. That John Doe, in complainant's said bill mentioned, was at and prior to the dates and execution of the indentures hereinafter in part set forth, seized or en- titled in fee simple of the tract of land hereinafter mentioned, of which tract of land the said John Doe being also in the quiet and imirtterrupted possessioa and enjoyment; he, th« said John Doe, by his deed of conveyance, duly exe* cnted and delivered by him to this defendant, on the 1st day of January, 1869, for the consideration of one thousand dollars, in current bank notes, which was on the same day of the execution of said deed paid in hand by this defendant to said Doe, did bargain and sell, and transfer and convey to this defendant in fee simple, the tract of land aforesaid, to-wit: (here describe it.) To have and to hold said tract of land to this defendant, his heirs and assigns forever. And this defendant avers that said purchase of said tract of land was made and the consideration thereof fully paid as aforesaid, and said conveyance taken all in good faith, and that this defendant had not, at the date of any of said several transactions, or at any "time previously thereto, any notice or knowledge whatever of the supposed claim of the complainant to (here set forth the claim, and conclude the plea as other pleas are concluded). 93. Of swearing to pleas. " Ifo plea in abatement shall be received in any c,ourt unless its truth is verified by oath of the party or otherwise.'" 'Code, 2901, and antliorities there cited. MANUAL OF CHANCERY PRACTICJE. 161 It is laid down by Lord Redesdale,- and adopted'by Judge Story/ that " Pleas to the jurisdiction of the court, or in disability of the person of the plaintiff", as well as pleas in bar of any matter of record, or of matters recorded, or as of record in the court itself, or any other court, may be put in without oath." But Mr. Daniell, in his work on Pleading and Practice in Chancery, thinks this proposition laid down too broadly. " For," says Mr. Daniell, " although it is true that many pleas to the jurisdiction may be put in without oath, and that pleas to the person of the plaintiff" may be put in in a simi- lar manner; yet, it is by no means the fact that all pleas to the jurisdiction, or any other pleas to the person than those above specified, can be so treated. Thus it has been held that a plea of privilege, because the defendanlj is an officer of another court, which is in eff'ect a plea to the jurisdiction, ought to be upon oath. So a plea of the bankruptcy of the plaintiff", which is a plea to the person, was, before the estab- lishment of the Court of Bankruptcy, required to be upon oath. " Perhaps, the best mode to be adopted by the practitioner, for determining the question as to a plea being or not being upon oath, will be to consider how far it will be necessary, in the event of the plea being considered' valid, and issue being joined upon it, to establish its truth upon oath at the hearing ; and, in all cases where such evidence upon oath would be re- quired at the hearing, to let the plea be accompanied by the oath of the defendant; for the principle upon which the court acts in requiring pleas to be put in upon oath is, that it will not permit a defendant to delay the discovery sought by the plaintiff, unless he will first pledge his oath to the truth (or at least to his belief of the truth) of the facts upon which he relies, in all cases where the facts are those of which the court does not take judicial notice."^ "The court will take judicial notice," among many other matters, " of the existence and course of proceeding of the superior courts at Westminster, and the other courts of gen- ^Sto. Eq. PL, 696. ^Dan'l Ch. Pr.,'786. 11 162 MANUAL OF CHANCEKY PRACTICE. eral jurisdiction. It will also receive, as evidence, whici: does not require the sanction of an oath, copies properly au- thenticated, of the records of all other courts of record. Therefore, if the plea involves the existence or jurisdiction of a court of record, or matters which can be proved by the production of the records, or authenticated copies thereof, or by inspection of its own proceedings, no oath is required."' Section 2901 of the Code settles this matter in our practice. That section, and the succeeding ones in the same chapter, applies to courts of equity as well as to courts of law.^ Pleas of matters m pais, in bar, must be upon oath of the defendant; otherwise, the plea may be treated as no plea on the record.' And setting the plea down for argument is no waiver of the objection (which might be insisted on by motion), but is a means only of obtaining the judgment of the court of its invalidity as a defense.^ (It was held in Heartt r. Corning, 3 Paige, 566, that the plaintiff might apply for an order io have such plea set aside, or to have it taicen off the files of the court; but he could not make the objection upon the argument of the plea.) In the case of Grraham v. Jfelson, 5 Hum., it was held that the facts on which the bar of the statute of limitations is formed, are matters in pais, and that the plea of such matters must be upon oath. A plea must be verified by oath, if it is a plea that requires to be so verified, although the plaintiff has expressly waived an answer from the defendant on oath.^ Although such a plea be supported by an answer, the plea must be upon oath. Indeed, it seems that all pleas, supported by an answer, must be upon oath.'' The propriety of a plea being upon oath, notwithstanding it is accompanied with an answer, is often very apparent, •Dan'l Ch. Pr., 786, 78Y. ''Kendrick v. Davis, 3 Cold., 524. 'Graham v. Nelson, 5 Hum., 605. *Graliam v. Nelson, 5 Hum., G05 ^^ Paige, 566. »Dan 1 Ch. Pr., 790. MANUAL OF CHANCERY PRACTICE. 163 from the fact tliat the former applies to some general fact, while the. latter is a discovery of circumstauces charged in the bill as evidence of that fact. The suggestion m,ade in a previous section in regard to bills, that in case of doubt upon the subject, it is safest to ac- company the bill with an affidavit of its truth, applies with equal force to pleas. 94 Of motions to dismiss. "A bill may be dismissed, on motion of the defendant: (1.) For want of equity on its face. (2.) Because unknown to "the forms of the court. (3.) If it appears on the face of the bill that the court has no jurisdiction of the person of the defendant. (4.) For want of any of the prerequisites to the writ. (5.) For misjoinder or nonjoinder of parties, where the fact appeal's on the face of the bill. (6.) For multifariousness. (7.) For such other grounds as may be specially declared sufficient by this Code."' "The first, fifth and sixth causes of dismissal may also be raised by demurrer."^ A motion to dismiss is the proper defense, in ease an at- tachment bill has been filed, with a bond omitting the clause of indemnity tor wrongfully suing out the attachment. For, the execution of the bond, as required by the statute, is a necessary prerequisite to the issuance of the writ; and a bond omitting the clause in question is the same as no bond at all.' If there be a misjoinder of parties, or of causes of suit in the same bill the chancellor may dismiss the bill as to one set of the parties, or as to one cause of action, and retain it as .to the other.'' 95. Motions to dismiss for causes arising subsequently to filing the bill. To procure promjpt dispatch of the busi- 'Code, 4386, and cases there cited. 'Code, 4388. 'Bank v. Fitzpatrick, 4 Hum., 311. But the bond may be amended or new bond given. Alexander v. Lissby, 2 Swan, 108. See Code, '1.77, ♦Johnson v. Brown, 2 Hum., 327. See Code, 4326. 164 MANUAL OF CHANCERY PRACTICE. ness of the court, tlie defendant may make a rule, in tlie clerk's office, on his adversary, to take any step necessary to the progress of the cause; and the clerk shall give notice immediately to the party interested, or his counsel.^ If the party upon whom such rule is made fail to take the necessary step, the chancellor, at the next term, unless good cause he shown for the failure, shall make a peremptory rule fixing the time within which the step shall he taken ; and if not so taken the cause shall he dismissed.^ No step taken hy the defendant shall prevent him from moving to dismiss for the default of the complainant.^ The court may, however, upon good cause shown hy affi- davit, relieve the complainant from the consequences of his default, imposing such terms to hasten the hearing of the cause, as in its discretion may he thought just.* The most usual cases, perhaps, in which it will be necessary or proper for the defendant to make a rule on the complain- ant under the foregoing provisions, will be : (1.) Where complainant has failed to file a replication to a plea. (Or set the plea down for argument, if he considers it bad.) (2.) Where he has obtained leave to amend his bill and de- lays to file his amendment. (3.) Where some of the parties have died, (particularly one of several defendants,) and the complainant is taking no steps to revive. (4.) Where & feme sole, who is a party, has married, and no step is taken to revive. (5.) Where the plaintiff is suing both at law and in equity-, at the same time for the same matter; in which case it is presumed that the defendant is entitled to inake a rule on the plaintiff, to elect whether he will proceed with the suit in equity, or with the action at law ; and if he fails to make such election within the time prescribed, the bill will be dis- missed. 'Code, 4389. 'Code, 4390. 'Code, 4391. *Code, 4392. MANUAL OF CHANCERY PRACTICE. 165 (6.) Upon the bankruptcy of the complainant, and plea thereof is sustained, it is presumed that the assignees may be required to come forward and become parties, or the suit will be dismissed. 96. Motion to dismiss by the plaintiff, or by consent. To dismiss a suit in equity, the consent of the court is necessary; and as this cannot be had in vacation, a suit in equity cannot be dismissed in vacation.^ A plaintiff" may move to dismiss his bill, with costs, as a matter of course, at any time before the decree. And, where there are several complainants, one of them may dismiss it, with costs, so far as concerns himself, unless such dismissal Avould injure his co-complainants, in which case the order will be so framed as to protect them, or the dismissal will not be allowed.^ But it will not often happen that such dismissal will preju- dice the other parties, as the party dismissing may be made a defendant by amendment.^ After decree, however, the court will not suffer a com- plainant to dismiss his own bill, unless upon consent; for all parties are interested in a decree, and any party may take such steps as he may deem expedient to have the effect of it.'' And after a decree having been made of such a kind as that other persons besides the parties upon the record are in- terested in the prosecution of it, neither the plaintiff" nor de- fendant on the. consent of the other, can obtain an order for the dismissal of the bill ; thus, where a plaintiff" sues on be- half of himself and all other persons of the same class, al- though he acts upon his own mere motion, and retains the absolute dominion of the suit until the decree, and may dis- miss the suit at his pleasure. Yet, after a decree, he cannot, ,by his conduct, even with the consent of the defendant, de- prive other persons of the same class, of the benefit of the decree, if they think fit to prosecute it. " The reason of the "Changed by 3199 of the Code; Thompson v. Thompson, 3 Head, 528. ^Dan'l Ch. Pr., 929. ^Dan!. Ch. Pr., 929. *Danl. Ch. Pr., 930. 166 MANUAL OF CHANCERY PRACTICE. distinction is, that before decree, no other person of the class is bound to rely upon the diligence of him who has first in- stituted his suit, but may file a bill of his own, and that after a decree no second suit is permitted." If a solicitor files a bill in the name of his client, without authority, the complainant may move to have the bill dis- missed, and that the costs, as between the solicitor and client, be paid by the solicitor. So, if a bill be filed in the name of a married woman against her husband by next friend, without her consent, it may be dismissed. The motion to dismiss, because filed with- out authority, must be supported by aflidavit of the plaintiff", of the want of authority. The application should be made as soon as possible after the complainant is informed of the institution of the suit. The solicitor may show upon affida- vit, that he had authority to institute the suit, and thus re- sist the application.^ 96a. Of motion^ to dismiss, generally. If a bill is un- known to the forms of the court, it may, upon motion, be taken from the files as a novelty.^ A bill, on the face of which it appears that the court has no jurisdiction of the person of the defendant, may be dis- missed on motion, without requiring a plea.^ A bill, iinder our practice, cannot be summarily dismissed on motion, except for the causes enumerated in the statute.-' A bill totally wanting in equity on its face, or which shows the plaintiff" is entitled to no relief, may be dismissed on mo- tion of the defendant ; or by the chancellor of his own accord.'^ A bill may be dismissed on motion to dissolve an injunc- tion.' 'Dan'l Ch. Pr., 952. i^Daii'l Ch. Pr., 353-354. , "Cox: V. Breedlove, 2 Yer., 510. ^Parker v. Porter, 4 Yer., 81. *Code, 4386; Ford v. Bartlett, 3 Bax., 21;" Litton v. Armstead, 9 Bax., 514. 'Earles v. Earles, 3 Head, 367 ; Mayse v. Biggs, 3 Head, 38. 'Merriman v. Norman, 9 Heis., 270; Knight v. Atkisson, 2 Tenn. Ch., 390 ' Eandall v. Payne, 1 Tenn. Ch., 137. MANUAL OF CHANCERY PRACTICE. 167 If a bill is filed to enjoin a judgment at law, on purely legal defenses, the objection to the jurisdiction may be made by motion to dismiss the bill for want of equity on its face.^ A motion to dismiss a bill for want of equity on the face will not lie, if there be any equity in the bill, though defec- tively stated.^ This motion only lies in those cases in which the court may mero motu, at any stage of the proceedings, dismiss, and that is when admitting all the facts stated in the bill, whether well or defectively pleaded, the complainant is entitled to no re- lief.' Such construction will be given to a bill as will support, rather than defeat it.* A court cannot of its own motion dismiss a cause until it is brought before it properly for adjudication.'' The court may, in its own discretion, limit the order of dis- missal, to be without prejudice to complainant's right to file another bill. And this will be done whenever the record dis- closes merits, but, on account of some defect in the pi'oof or otherwise, the bill must be dismissed." And the dismissal of a bill cannot be relied upon as res ad- judieata, unless it was npon the merits.' 97. Of defense by answer. As to what matters of de- fense may be insisted on in an answer, see sec. 73 a7ite. See also sec. 74, and sections 81-91. 98. Nature and substance of an answer. If a defendant cannot pi-otect himself by plea, demurrer, or motion to dis- miss, he must put in an answer either to the whole bill, 'Shaww. Patterson, 2 Tenn. Ch., 171. 'Quin V. Leak, 1 Tenn. Ch., 70; Kerr v. Kerr, 3 Lea, 227. 'Merriman v. Norman, 9 Heis., 270; Henderson v. Matthews, 1 Lea, 34; Kerr V. Kerr, 3 Lea, 227. *Kerr v. Kerr, 3 Lea, 227; Randall v. Payne, 1 Tenn. Ch., 138; Hobbs v. M. E. & Co., 9 Heis., 873. ^Parkes v. Jones, 2 Cold., 174. ^Young V. Covett, 7 Heis., 24; Evans v. Wells, 7 Hum., 568; Johnson v. Brown, 2 Hum., 330. 'Mabry v. Churchwell, 1 Lea, 424; Chesnut v. Frazier, 6 BaX;, 220; Young V. Covett, 7 Heis., 24; Hurst ». Means, 2 Sneed, 548. 168 MANUAL OP CHANCERY PRACTICE. or to such parts of it as are not covered by a demurrer or plea. The object of an answer is to make the discovery to which the plaintiff is entitled, of the matters charged in his bill ma- terial to the merits of his case ; and also to state to the court the nature of the defense upon which the defendant relies. In this latter respect, the answer performs the duties of a plea, or of a series of pleas, either denying facts upon which the plaintiff"'s equity, as stated in the bill, arises, or confess- ing such facts, and avoiding them by the introduction of some new matter from which contrary inferences are drawn.' An answer should contain a clear and orderly statement of the facts on which the defense is founded, without prolixity or repetition, and with a prayer of dismissal or counter re- lief, according to the nature of the case.^ If it is doubtful whether a plea of the matters of defense will hold, or if the defendant has no occasion to protect him- self from any discovery sought by the bill, and can offer cir-- cumstances, which he conceives to be favorable to his case, and which he could not offer together with a plea, it is better to set forth the whole matter in an answer, although the main ground of defense may not consist of such a variety of cir- cumstances as would preclude him from relying on the same by way of plea.^ 99. What matters must be answered. It is a general rule that if a defendant answers at all he must answer fully. But he need not, as a general I'ule, answer to matters of law, or inferences of law, drawn from the facts. He is not bound to answer to matters purely scandalous, or impertinent, or irrelevant, or immaterial. He is not bound to answer what would involve a breach of professional confidence; nor to anything that might subject him to any penalty, forfeiture or punishment. Nor is he bound to discover the facts respect- ing his own title ; but merely those which respect the title of =Danl. Ch. Pr., 813, 814. 'Code. 4315. ■Sto. Eq. PI., 857. MANUAL OF CHANCEEY PRACTICE. 169 the plaintiff. A defendant need not answer any of the charges of the bill, except those which apply to or concern himself.' The answer must be full and perfect to all the material al- legations in the bill ; must confess, deny or traverse all the material parts of the bill; it must state facts and not argu- ments. It is not sufficient that it contains a general denial of the matters charged ; but there must be an answer to the sifting inquiries upon the general subject. It should also be certain in its allegations, as far as practicable. To so much of the bill as it is necessary 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 travers the substance of each charge. Thus, if a defendant is charged with having in his posses- sion, custody, or power books or papers ; a statement, in his answer, that there are certain books and papers in the "West Indies, the particulars of which he is unable to set forth, w;ithout any answer as to the fact whether they are in his possesssion, custody, or power, is iasufficient; for, if the de- fendant admits them to be in his posses3ion, custody, or power, the plaintiff may make a motion calling upon him to 'Sto. Eq. PI., 846, 848. Where ai defendant is compelled to answer, he must, in general, answer fully to all the charges of the bill, that are material — that is, all matters that are well pleaded. He is not boiind to answer matters that are scandalous, impertinent, immaterial, or irrelevant; nor to anything that may subject him to a penalty, forfeiture or punishment; nor to what would involve a breach of professional confidence; nor to discover facts respecting his own, title, but only those respecting the title of the plaintiff. In most, if not all other cases, the general rule applies. The rule is, the defendant cannot, by answering, excuse himself from making a full answer. Philips v. Overton, 4 Hay., 291; Gleaves v. Morrow, 2 Tenn. Ch., 596; French v. Rainey, 2 Tenn. Ch., 647; Shea ». K & K. R. R., 6 Bax., 283; Lindsey v. James, 3 Cold., 485. It is the general rule that, as to matters not within the defendant's own knowl- edge, he must answer to both, as to his own information and belief, and where the means of informing himself are readily accessible, the defendant should take, pains and inform himself Gleaves v. Morrow, 2 Tenn. Ch., 597. And, under our practice, a defendant must answer the charging part of a bill, with- out being specially called npon to do so by an interrogatory based upon it. Mur- rill V. Watsbn, 1 Tenn. Ch., 342. A fact stated in the bill, and not noticed in the answer, is not in issue, nor is it to be taken as true or otherwise. Neither is that to be taken as true, which is asserted in the answer and is not proved. Tar- box V. Tender, 1 Tenn. Ch., 167. See Milliken's Dig., 586 and 613, on the subject of answers. 170 MANUAL OF CHANCERY PRACTICE. produce them, and the court will order them to be brought in within a reasonable time. So, when the defendant stated that certain papers were not in his possession, custody, or power, because they were coming over to England from another country, it was held that they were in his power, and that he ought to have so stated in his answer. Books and papers, in the hands of the defendant's solicitor, are con- sidered in his own custody, or power. So, all documents which he has a right to inspect, provided he can enforce that right, are deemed to be in his power.^' "Whenever there are particular, precise charges, they must be answered particularly and precisely, and not in a general manner, although the general answer may amount to a full denial of the charges. ^ An answer which is manifestly evasive may be considered as no answer, and will be liable to be taken off the files of the court.^ But when the court does not order such evasive answer to be taken off thp files, the plaintiff should except to the an- swer. The court will not take evasions as a confession of a charge in the bill." Where the defendant, by his answer, denies the title of the plaintiff", yet he must, in many cases, make a discovery prayed by the bill, although not material to the plaintift''s title. Thus, an executor must answer as to assets, although he denies the debt of the creditor who files a bill against him. So, to a bill for an account of partnership dealings, the de- fendant must set forth the accounts, although he denies the partnership.^ But when the defendant sets up a title, which is prima facia valid, and which the plaintiff" must remove to found his own title, (such as a devisee against whom the heir files a bill for the devised premises), the defendant is not generally 'Sto. Eq. PI., S52. ^Sto. Eq. PI., 852. =Sto. Eq. PI., 852; Phillips v. Overtoa, 4 Hay., 201. ^Phillips V. Overton, 4 Ha^-., 29 ^Sto. Eq. PI., 252a. JIANCAL OF CHANCERY PRACTICE. 171 compelled to make any discovery uot material to the trial of the question of title.' The answer should, in general, be full to all the interroga- tories founded on the matters charged in the bill, unless they are clearly immaterial.^ The court will not, in general, allow the circumstance of a plaintiff's having a claim upon the defendant, to be used for the purpose of enabling the plaintiff to investigate all the private affairs of the defendant. Thus a vendor, in a bill for specific performance, cannot interrogate the vendee as to his property, although the defendant is charged to be insolvent. To entitle a, plaintiff to an answer to such an in- quiry, he must show some specific lien upon the defendant's property and pray some relief respecting it ; and even then the court will not compel the defendant to make such dis- covery, where the interest which the plaintiff may have in it is very remote in its bearings oh the real point in issue^ and would be an oppressive inquisition.^ An allegation seeking a discovery which is material from one defendant and immaterial and wholly irrelevant from another, need be answered only by the defendant from whom the discovery is material." A defendant is only obliged to answer so much of the plaintiff"'s bill as is necessary to enable the plaintiff to obtain a complete decree, so far as relief is sought, against him in- dividually. In general, if a fact is charged which is within the de- fendant's own knowledge, as if it is done by himself, he must answer positively. But, as to the facts which have not hap- pened, within his own knowledge, he must answer as to his information and belief, and not as to his information merely. As to recent facts, (happening, for instance, not more than six years previously,) within the defendant's knowledge, he must answer positively, and not on belief; but not so in re- gard to the result of a conversation. And the court will, 'Sto. Eq. PI., 2526. ^Sto.' Bq. PI., 853. ^Slo. Eq. PL, 8536. *Sto. Eq. PI., 8o5r;. 172 MANUAL OF CHANCERY PRACTICE. when it finds spscial cause for doing so, dispense witli so positive an answer as to facts. ^ If the defendant deny a fact, he must traverse or deny it directly, and not hy a negative pregnant. Thus, if he be charged with receiving a sum of money, he must deny re- ceiving that sum or any part of it, or else set forth what part he has received. And, if a fact he laid to he done with divers circumstances, he must not traverse it literally, but must an- swer the point of substance, positively and certainly.^ If the facts have passed between the defenant's agent and the plaintifit", it is not sufficieiit for him to answer that he has no knowledge or information of those points, for he is bound to make inquiry of his agent before he makes his answer. Such a case is not governed by the same considerations as where the facts are equally open and accessible to both parties.^ A detendant is not bound to answer facts interrogated to, without being charged in the bill. But a general charge as a fact enables the plaintiff to put all questions upon it that are .material to make out whether the fact is so.'' In a suit for an account, an answer going no further than to enable the plaintiff" to go" into the master's office, is not sufficient. He is entitled to the fullest information the de- fendant can give him by answer, not by long schedules in an oppressive way; but by giving the best account possible, stating how it is, and referring to books of account and other vouchers, so as to make them part of the answer, and giving the fullest opportunity of inspection.^ Though a defendant need not answer such parts of the bill as does not concern him, (but a co-defendant,) yet if he states a part of the circumstances of a transaction, or a part of a conversation, he will be compelled to state tlie whole.'' 'Sto. Eq. PI., 854 'Sto. Eq. PI., 855. 'Sto. Eq. PI, 855a. *Sto. Eq. PL 856., "Sto. Eq. PI., 856. ■*Sto. Eq. PI. 857. m MANUAL OF CHANCERY PRACTICE. 173 The plaintiff', as already seen, is not entitled to the dis- covery and production of documents called for in the bill ex- cept those which appertain to his own case, or title made by his bill ; and not of those which wholly and solely respect the defendant's title or defense. "Whether, when the defendant does answer and refer to documents and papers in bis answer, he is bound to produce them for the inspection of the plaintiff", upon motion; see section 149, "post. When a reference is made to extracts from books of ac- counts, it is the practice to have those parts which the de- fendant swears to be immaterial, left sealed up.^ 100. At what time an answer may be filed. The de- fendant to a bill in chancery has the right to file his answer Avith the clerk before the term to which the process is re- turnable.^ And under the provisions of the Code, a cause stands for trial at the first term of the court after answer filed, unless it be a case in which the cause is not at issue, on account of the answer being excepted to within the time prescribed by lalv;' As to the time in which a defendant is bound to answer, see section 74, ante. 101. Forms of answers. Where there are several de- fendants, each may answer separatelj'^, although they have a common defense. An answer may be in the following form : the joint and several answer of James Givens, William Erwin and wife Martha, and Jonas Givens, to the hill of complaint of Jacob Givens adm'r, etc., of Zachariah Givens, deceased. These respondents, reserving to themselves the benefit of all exceptions to said bill, on account of the errors and insufficiencies therein, for answer to so much thereof as they deem it material for them to answer, say: They admit the death and intestacy of Zachariah Givens, deceased, and the appointment and qualification of complainant, as administrator of the estate, as stated in the bill. They also admit the descent to them of the real estate described in the bill. 'Sto. Eq. PI., 860. -Wh te V. Cahal, 11 Hum., 2i53; Code, 4000-4001. ^Code, 4328. 174 MASrAL OF CHANCERY PRACTICE. They admit that the compLiinant has paid off some debts that were owing by said intestate, but respondents do not know to what amount. Neither do they Icnow whether or not any or all of the claims mentioned in the bill are just, nor whether there are any bona fide debts against the estate yet outstanding and unpaid, and they require strict proof on those points. Respondents have no personal knowledge as to whether or not complainant has exhausted the personal estate in the payment of debts; but according to their information and belief, he has not done so, but has .about one thousand dollars, which has come to his hands as such administrator, which has not been applied to the payment of debts, or otherwise accounted for, and according to the best of their information and belief, it will not be necessary to sell said real estate to pay debts. And now, having fully answered, these respondents pray to be hence dis- missed with their reasonable costs. Nathan Geeen, Solicitor. 102. Titles, commencements and forms of answers in particular cases. 1. By an infant. The 'answer of .lohn Doe, an infant u-nder the age of twenty-one years, by Richard Roe, his guardian ad litem, defendant to the bill of complaint of John .Den, filed against him in the chancery court, at Knoxville. This respondent, answering by his said guardian, says : He is an infant of the age of twelve years, or thereabouts, and he therefore submits his rights and interests in the matters in question in this cause to the protection of this honorable court. (Close the answer as other answers are closed.) ■ It will frequently be necessary for a guardian to answer more at large, and insist on matters of defense for his ward. If there is any matter in his knowledge, or of which he has information, that would benefit his ward, he should rely on it in his answer. But he should be careful how he makes admissions that would prejudice his wai-d. The answer of an infant by his guardian is sworn to by the guardian, and not by the infant. And, if the guardian is a co-defendant with the infant, he may put in an answer for both, and need only sign it once.' The same rule applies to the guardian of a lunatic or an idiot. 2. Where the bill mis-states the names of defendants. The joint and several answer of John Smith, in the bill called James 'Smith, and of Thomas Brown, the defendants, to the bill of complaint filed by William Green, in the chancery court, at Knoxville. =Dan'l Ch. Pr., 867-868. MA>'UAL OF CHANCERY PRACTICE. 175 3. By a lunatic or idiot. The joint anstcer of John Smith, a lunatic, {or idiot,) by James Smith, his guardian, and of James Smith, his guardian, defendants to the hill of complaint of William Green. 103. New practice as to titles and commencements. The titles of answers given above are in conformity to tlie old practice. But some members of the bar have adopted the practica of entitling them as follows : In the chancery court, at Knoxville. Jacob Givens, adm'r, of Zachariah Givens, deceased, vs. James Givens, William Er- vin and wife Martha and Jonas Givens and others. The joint and separate answer of James Givens and Jonas Givens, two of the defendants in the above named case, to the bill of complaint filed in this cause. These respondents reserving, etc. This is substantiallly the same as that laid down by the Lord Chancellor to regulate the practice in England, under the stat. 15 and 16 Vic, Ch. 86, amending the course of practice in the high court of chancery. 104. Of signing and swearing to answers. The plain- tiff may, in his bill, waive an answer from the defendant, under oath, in which case the answer will be entitled to no more weight than the bill as evidence.^ If an answer, under oath, is not waived, the answer must be put in under oath, or affirmation, unless it be the answer of a corporation aggregate, which may be put in under the seal of the corporation.^ All persons conscientiously scrupulous of taking an oath, may make solemn af&rmation, in the words of the oath re- quired.' . , Persons may also be sworn according to the forms of their own country, or particular religious creed, when required.* 'Code, 4.Sir. 'Danl Ch. Pr., 844-848. »Code, 3774. " 'Code, 377.7. 176 MANUAL OF CIIATSTCEEY PRACTICE' Persons who do not believe in the obligatory force of the Christian oath, must, out of necessity, be put to swear, ac- cording to their own notions of an oath. Therefore, a Jew maybe sworn on the Pentateuch, with his hat on ; a Moham- medan, on the Koran ; and a heathen in the manner most binding on his conscience.' The provisions of law quoted, and remarks made above, in regard to the manner of administering an oath, or affirma- tion, apply to all cases in which an oath, or affirmation, either written or oral, is to be administered in any court. The oath, or affirmation, to an answer may be administered in the State by any judge, justice of the peace or clerk ; and in another Sta^eby any jiidge or justice of the peace, accom- panied by a certificate of his official capacity by the clerk of the court in which such judge or justies presides. The oath may also be administered in another State by a commissioner of this State, (appointed by the governor), or by a notary public, whose attestation shall be under their seals of office. In any foreign government the answer may be sworn to be- fore any ofiicer authorized to take probate of deed, and authenticated in like manner.^ The answer may also be sworn to before a special commis- sioner, (appointed by the court or by the clerk and master), either in this or any other State.' "When a corporation is a defendant, although the answer is not usually put in under oath, but under the seal of the cor- poration, yet where the object of the corporation is to obtain a dissolution of an injunction, the answer must be verified by the oath of some of the corporators or officers acquainted with the facts, as an injunction will not be dissolved upon an answer, except it be under oath.'' The affidavit to an answer may be in the following form : State of Tennessee, \ Monroe County. J John Smith makes oath, (or solemnly affirms), that the statements in his fore- going answer, made as of his own knowledge, are true, and those made as on information and belief, he believes to be true. John' Smith. 'Danl. Ch. Pr., 845, 846. 'Code, 4398. "Code, 4399. A notary public may also administer the oath. Code, 1802?). n Paige, 311. MANUAL OF CHANCERY PRACTICE. 177 Subscribed and sworn to, (or affirmed to, as the case may be), before me, this 1st day of January, 1870. John Minis, Justice of the Peace. "When an oath is not required, still the answer must gen- erally be signed by the defendant.^ Where the answer is sworn to, the signature to the affi- davit annexed is, of course,- sufficient to show that the de- fendant is responsible for its contents, without signing the answer in another place. An answer must also be signed by counsel, who is respon- sible for the propriety of its contents.^ 104«. Obtaining order to file answer without oath or signature. Sometimes, upon the consent of the plaintiff, an answer may be put in without oath and signature. But such an answer cannot be received unless an order to that effect has been obtained. Such order, if applied for by the defend- ant, cannot be had without the consent of the plaintiff? So where the application is made by the plaintiff, strictly, the defendant should consent, But where the defendant is abroad, the court requires some authority to show that he is willing, before such order will be made."* The court will not permit the answer of a defendant, rep- resented to be in a state of mental incapacity, to be received without oath or signature, though a trustee, and without in- terest ; the usual course in such case is for the court to appoint a guardian, by whom the defendant may answer.''' "Where, under the jurisdiction of our statutes, an answer under oath is waived, or where the defendant is a corpor- ation, the rule that an answer without oath cannot be re- ceived without an order of court, has, of course, no applica- tion. >Sto. Eq. PI, 8T5. 'Perhaps under 3979 of the Code no objection can he taken to an answer for the want of signature of counsel. Any person may conduct and manage his own cause in any court in this Slate. »Danl. Ch. Pr., 846. *Codner v. Hersey, 18 Ves. Jr., 468. °Wilson V. Grace, 14 Ves. Jr., 172. 12 178 MANUAL OF CHANCERY PRACTICE. 1046. Taking answers of foreigners, deaf mutes and blind persons. In the case of foreigners not sufficiently versed in tlie English language to answer in that tongue, an order may be obtained for an interpreter, and the answer be- ing engrossed in the foreign language, a translation thereof must be made by the interpreter, and annexed to it. The foreigner must swear to his answer, in order to do which, the interpreter attending must be previously sworn to interpret truly, and convey to the foreigner the langaage of the oath ; and at the same time he swears to the translation as true and just, to the best of his ability, and the jurat is adapted there- to.i But it seems that a foreigner, however ignorant he may be of the English language, is not bound- to put an answer on the file in his own language.^ An interpreter may be resorted to when necessary, when the answer of a deaf and mute defendant is to be taken. But such answer is to be taken by the commissioner, if he is able to do so, without the intervention of an interpreter. Where a defendant is blind, some other person must swear that he has truly, distinctly and audibly read over the con- tents of the answer to the defendant. The defendant must also swear to the answer.^ 105. Filing the answer and notice thereof. The clerk and master is required to note upon an answer, (as well as a bill), the day on which it is filed. And he shall notify the complainant's solicitor of the fact of the answer being filed by letter or otherwise.'' 106. Exceptions to answers. The complainant's solici- tor may, within twenty days, file exceptions to the answer." And, upon sufficient cause shown, the chancellor may allow exceptions to be filed after the time limited.'' 'Danl. Ch. Pr., 855. =^Danl. Ch. Pr., 855, "Danl. Ch. Pr., 855. *Code, 4400; 1 Ch. rule, sub-sec. 3. ^Code, 4400; 1 Ch. rule. sec. 5. *Marsh v. Crawford, 1 Swan, 116; Lowe «. Morris, 4 Sneed, 72. But see Maultsby v. Carty, 11 Hum., 361. MANUAL OF CHANCERY PRACTICE. 179 An answer may be excepted to for scandal, impertinence, or for insufficiency. (1.) If an answer goes out of the bill to state anything scandalous or improper, the scandal will be expunged by or- der of the court. But matter that is material and relevant, no matter what its nature, is not deemed scandalous, unless from the mode of expression it becomes so.^ (2.) If an answer goes out of a bill to state some matter not material to the defendant's case, it will, on exception and application to the court, be expugned. An answer be- comes impertinent by containing irrelevant matter, or being stuffed with long and unnecessary recital and digressions.^ It is the duty of the court to discountenance prolixity and unnecessary and false allegations in all chancery pleadings, and for this purpose the court may, of its own motion, or upon application of the opposite party, refer the pleadings to the master to be revised, or order particular parts to be stricken out, and charge the party in fault with the unneces- sary costs.^ (3.) But the principal and usual ground of exception to an answer is for insufficiency. Exceptions to an answer must be in writing, signed by counsel , and, if for insufficiency, stating the parts of the bill which the plaintiff alleges are not answered, and praying that the defendant may, in such respects, put in a further and full answer to the bill.'' If there are two or more defendants to a bill, and the de- fendants answer separately, separate exceptions must be taken to each answer. But exceptions to a joint answer may be allowed as to one defendant, and disallowed as to another.^ Care should be taken to state all the points of insufficiency, in the exceptions, for after answer to the exceptions, new ex- 'Sto. Bq. PL, 862, 863. =^810. Bq. PI., 862, 863. 'Code, 4316. *Sto. Eq. PL, 864. =Sto. Bq. PL, 864, 180 MANUAL OF CHANCERY PKACTICE. ceptious cannot be added. But, in case of mistake, the court may allow exceptions to be amended.^ ": Exceptions filed shall be acted on by the clerk in ten days, and, if allowed, he shall, by letter or otherwise, notify the de- fendant's solicitor to file a sufiicient answer within thirty days, from which order he may, within said time, appeal.^ But if the defendant, in obedience to the order, file an an- swer deemed suflacient by the clerk and master, he shall, by letter or otherwise, notify the complainant's solicitor of the same, and he may appeal within twenty days after notice.^ The chancellor may hear these appeals in vacation, and the losing party shall pay such costs as the chancellor shall order, and abide by such other order as he may make on the matter of appeal, either in vacation or in term time.* Upon exceptions to the defendant's answer being over- ruled, the complainant shall pay three dollars costs; and if the exceptions are sustained, the defendant shall pay three dollars, which, in each case, shall be paid to the opposite party.'' (This is never exacted by solicitors, and it would be ungenerous to exact it in ordinary cases.) The parties may, pending the appeal on exceptions, pro- ceed to take proof, and the testimony taken before the -suffi- ciency of the answer is determined, maybe read on the trial, and any additional testimony may be taken, rendered neces- sary by the change of pleadings under the decision on the exceptions.^ If the defendant, upon exceptions sustained to the suffi- ciency of his answer, neglects and refuses to put in a suffi- cient answer, or shall put in another insufficient answer, the complainant may take his bill for confessed, as to the part to which his exceptions relate, and proceed with the cause as in other cases." 'Sto. Eq. PI., 864. ■^Code, 4402; Ch. Rule I., sec. 5. 'Code, 4403. *Code, 4404. *Code, 4405. ^Code, 4406 ; 1 Ch. Rule, sec. 6. 'Code, 4407. If the defendant make a full and perfect answer, and the chan- cellor, upon exceptions adjudge it insufficient, and proceed to render- decree MANUAL OF CHANCERY PRACTICE. 181 If exceptions be filed to an answer for insufRciency, or for scandal, or impertinence, the clerk and master shall examine and report upon them witli all convenient speed; and if either party be dissatisfied with liis report, he may appeal to the chancellor in court.^ Exceptions do not lie in an answer because it does not state matters set forth in avoidance, fully and explicitly. They lie only for matters alleged in the bill, and not sufficiently an- swered.^ Scandal and impertinence in an answer must be disposed of before its sufficiency is considered. A reference of an an- swer for impertinence is waived by a reference for insuffi- ciency. And after a reference for insufficiency, an answer cannot be referred for impertinence, but may for scandal. One defendant may refer an answer of another defendant for scandal against him.^ 106a. Of exceptions to answers generally. An answer adjudged to be insufficient may be treated as no answer, and the whole bill taken for confessed, as if no answer had been put in.'' But this is not so unless the defendant neglects and refuses to put in a sufficient answer, or shall put in another insuffi- cient answer.^ If an answer is so evasive that it is a mere delusion, it will be considered no answer at all, and the court. will order it taken from the files." The complainant in such a case should except and compel a more direct answer.^ Failing to answer a charge in the bill, or not answering fully, cannot be taken as a confession. For where a charge upon the pro confesso, disregarding the answer, it will be reversible error. Marsh v. Crawford, 1 Swan, 116. U Ch. Rule, sec. 4. ^Lannm v. Steel, 10 Hum., 280. 'Sto. Eq. PL, 867. *Lanum v. Steel, 10 Hum., 280. ^Code, 4407; Smith v. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch., 605. "Philips V. Overton, 4 Hay., 292. 'Welcker v. Price, 2 Lea, 668; Hopkins v. Spurlock, 2 Heis., 152; Buch u. Haynes, 1 Tenn. Ch., 570. 182 MAXUAL OF CHANCERY PRACTICE. is not answered, and the answer is not excepted to, that mat- ter is not in issue, nor is it to be taken as ti'ue, or otherwise. The complainant's remedy is to except, and compel a suffi- cient answer.' Exceptions will not lie to the sufficiency of an answer where the oath of the defendant is expressly waived thereto by the bill.^ IsTeither will exceptions lie to the answer of a corporation, under its corporate seal.' E"or of an infant; nor to the an- swer of an attorney general; nor of the guardian of a person of unsound mind, against whom no commission has issued.* 1066. Amendment of exceptions to an answer. The general rule in regard to amendment is, that the court will, up to a certain stage, amend the record where there is some- thing to amend by, and where it appears to be by mistake. Exceptions to an answer will, therefore, be permitted in case of mistake.^ And this will be permitted, whether the mistake be as to matters of fact, or as to practice. The mode in which the error is to be corrected, where there has been a mistake in the exceptions, should be in the discretion of the court. Amend- ments may be permitted, if it can be done without disfiguring the record; but if it be so extensive as to deface the record, the record should be taken off the file, and a new one put upon it." 107. Form of exceptions. Jacob Givens, admr. of ] Zachariah Givens, deceased, | James and, 'jonas Givens, [, ^" *« Chancery Court, at MadisonviUe. and William Ervin and | wife, Martha. J Exceptions talcen by the complainant to the joint and several answer of the said defendants to his bill of complaint in this cause. 'Philips V. Overton, 4 Hay., 281 ; Wilson v. Carver, 4 Hay., 90. ^Sheppard v. Akers, 1 Tenn. Ch., 326. ^Smith V. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch., 599; Sheppard v. Akers, I Tenn. Ch., 326. ^Sheppard v. Akers, 1 Tenn. Ch., 326, and cases there cited. liDolder v. Bank of England, 10 Ves. Jr., 284. "Boyd V. Mills, 13 Ves. Jr., 86. MANUAL OF CHANCERY PRACTICE. 183 1st Exception. For, that the said respondents have not, according to the best of their iniormation, knowledge and belief, set forth and discovered in their said answer, whether the said Zachariah Givens, in the complainant's said bill named, in the month of August, 1866, departed this life, intestate, etc. (pur- suing the words of such allegations and interrogatories in the bill as are not sufficiently answered). 2d Exception. For, that, etc. In all of which particulars, the complainant insists that the answer of the de- fendant is evasive, imperfect and insufficient. Wherefore, the complainant ex- cepts thereto, and prays that the respondents may be compelled to put in a full and sufficient answer to complainant's said bill. William B. Reese, Solicitor. 101a. Some general information on the subject of an- swers. Although the bill waive an answer under oath, the answer should be signed by the defendant, but the irregu- larity of omitting the signature will be waived by the filing of a replication, or what is equivalent under our statute, dis- pensing with a replication, by failing to except to the answer within the time allowed by statute.^ If the answer is not signed, a motion will lie to take it off the files for irregularity.^ An answer must be signed, and unless the oath is waived, must be sworn to by each of the defendants whose answer it purports to be, otherwise, in strictness, it should not be received as the answer of any of them.' A corporation answers under its corporate seal. It can not answer under oath, and the oath of one of its ofiicers who is a party has no efficacy. The answer only creates an issue between the parties.'' And though a corporation answer never so falsely, still there is no remedy against it for perjury.'"' It is well settled, as an exception to the rule, that a wit- ness cannot be made a defendant ; that the officers of a cor- poration may be made defendants with the corporation and required to answer under oath, where discovery is sought." youes V. Carper, 2 Tenu. Ch., 627; Wilson ». Wilson, 2 Lea, 18; Cook u. Dews, 2 Tenn. Ch., 496. ^See authorities just cited. 'Cooper V. Dews, 2 Tenn. Ch., 496. ♦Smith V. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch., 600; Woodfork v. B^ank, ,3 Cold., 497; McLord v. Linnville, 10 Hum., 164. ^Smith V. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch., 599. 'Woodfork v. Bank, 3 Cold.,, 497; VanWick v. Norvell, 2 Hum., 196. 184 MANUAL OF CHANCERY PRACTICE. But where the officers are made parties defendant and called upon to answer under oath, and they answer and adopt the answer of the corporation, there is then no reason for the relaxation of the ordinary rule as to the degree of evidence necessary to support the bill.' An order of court allowing an amendment of the hill at the return term of the suhpcena, postpones the time of an- swering to the next term, and the plaintiff" is not in default in not replying till then ; and a decree dismissing the hill previously is premature, and will be reversed for that cause.^ When a defendant is in contempt no answer can be re- ceived until he is discharged of the contempt by order of the chancellor. And if the answer be received by the clerk and marked filed, it is a nullity, and no motion will lie by the de- fendant against the complainant.' The court may at any time, before a cause is set for hear- ing, permit a withdrawal of the answer and filing of a de- murrer, upon good cause shown. But this can not be done without leave of the court.* It is not a matter of course to allow an answer to be filed for a person of unsound mind, even with the consent of the complainant.' If a husband as complainant makes his wife a defendant he treats her as a feme sole, and she answers separately with- out a guardian ad litem ar next friend.* 108. Filing answer as a cross bill. The defendant may, by proper allegations, file his answer as a cross bill, and re- quire a discovery from the complainant, in which case de- murrer or pleas may be filed or other proceedings had upon the answer, as upon a cross bill.'' 'Woodfork v. Bank, 3 Cold., 497. 'Graham v. Cook, 6 Yer., 404. 'Gaut V. Gant, 10 Hum., 464. ^Merchant v. Preston, 1 Lea, 283; Cook v. Richards, 11 Heis., 714; Chest- nut V. Frazier, 6 Bax., 219. ^Speak V Ransom, 2 Tenn. Ch., 211. "Copeland v. Granger, 3 Tenn. Ch., 487. See authorities cited in Milliken's Dig., 613 and 586, on the subject of defense by answer. 'Code; 4323. MANUAL OP CHANCERY PRACTICE. 185 And the, court sball act upon all the matters properly in- volved in the pleadings and give such relief, either for the plaintiff or defendant, as the nature of the case requires to do complete justice.' An answer tiled as a cross bill under the statute can only be treated as a cross bill proper, and, being defensive, will go with the original bill. And the court cannot be required to notice original matter set up therein, at any rate if the origi- nal matter be a cause of action against the heir when the original bill is by the personal representative of a decedent.^ An answer as a cross bill need not necessarily be a bill for discovery, specifically, but may be well based on any proper matters ot equity growing out of the original bill or con- nected with it, on which the respondent might be entitled to afl[irmative relief on a cross bill if filed separately.^ The statute allowing an answer to be filed as a cross bill does not limit it to purposes of defense, but puts it upon the same footing as a cross bill proper.* But an answer filed as a cross bill will only be treated as an answer where the defendant fails to execute a bond for costs and no process is issued thereon." If, however, the complainant answers without objection that no bond has been given or process issued, he waives the objection and can not insist upon it at the hearing.'' "Where an answer is filed as a cross bill, new parties can not be brought in by same.' 109. Cross bills — their nature and use. A cross bill is a bill brought by a defendant in a suit against the plaintift" in the same suit, oi- against other defendants in the same suit, or against both, touching the matters in question in. the 'Code, 4.S24. ^Elliston V. Morrison, 3 Tenn. Ch., 280. J'Od'a.m V. Owen, 2 Bax., 450. *Nichol V. Nichol, 4 Bax., 147. *Curd V. Davis, 1 Heis., 575; Harwell v. Harwell, 4 Cold., 377; Keele v. Cunningham, 2 Heis., 290.' «Hall V. Fowlkes, 9 Heis., 754. 'Hall w. Fowlkes, 9 Heis., 754; Masson v. Anderson, ,3 Bax., 300; Macey c. Childress, 2 Tenn. Ch., 251 ; McGavock v. Morrison, 3 Tenn. Ch., 356 ; Morrow V. Morrow, 2 Tenn. Ch., 554. 186 MANUAL OF CHANCEKY PRACTICE, original bill. It is treated as a mere auxiliary suit, or as a dependency on the original suit, and can be sustained only on matter growing out of the original bill.' A cross bill is a mode of defense. The original bill and the cross bill are but one cause. It must be confined to the subject matter of the original bill. If it introduce new and distinct matters, no decree can be founded on those matters.^ But, if seasonably filed, it may be sustained for the pur- pose of obtaining an equitable set off.-' If new parties are to be brought before the court and new matters of equity to be litigated, not dependent on the origi- nal suit, an original bill must be filed, which may partake more or less of the nature of a cross bill, according as the matter is connected more or less with that of the first bill. A cross bill is usually brought for one of the following purposes : 1. To obtain a necessary discovery of facts in aid of the defense to the original bill. 2. To obtain full relief to all the parties touching the mat- ters of the original bill.* A cross bill is no longer necessary in Tennessee for pur- poses of discovery, unless the party desires to have the dis- covei-y and enforce the production of some written instru- ment, or is unwilling to make a general witness of the party against whom the cross bill is filed, and desires to confine his evidence to certain points responsive to the cross bill. For, " iVi all chancery causes and proceedings in the nature of chancery causes, the depositions of parties may be taken by the opposite side, or by a co-party on the same side, when the latter is entitled to such evidence, upon notice simply, as in the case of other witnesses."'' As regards a cross bill for relief, if a defendant desires to 'Sto. Eq. PI., 389; Danl. Ch. Pr., 1742. And a cross bill which seeks no dis- covery and makes no defense which Was not equally available by way of an- swer to the original bill, will be dismissed. Beal u. Smithpeter, 6 Bax., 358; Montgomery v. Olwell, 1 Tenn. Ch., 169. ^Danl. Ch, Pr., 1743. 'Danl. Ch. Pr., 1744. *Sto. Eq,. PI,, 389. "Code, 3890. MANUAL 01' CHANCERY PRACTICE. 187 invoke the active aid of the court against tlie complainant, he must do so by cross bill, or by answer filed as a cross bill; for, "in his answer, he cannot pray anything except to be dis- missed. Thus, where a bill is filed for the specific execu- cution of a contract to convey real estate, no decree can be rendered in the defendant's favor for any unpaid balance of purchase money, without 'a cross bill for the purpose.^ "It also frequently happens, and particularly if any ques- tion arises between two defendants to a bill, that the court cannot make a complete decree without a cross bill, or cross bills, to bring every matter in dispute completely before the court, to be litigated by the proper parties, and upon the proper proofs. In such a case, it becomes necessary for some one, or more, of the defendants to the original bill, to file a cross bill against the complainant, and some, or all, of the other defendants in that bill, and thus to bring the litigated points fully before the court."^ It has been said that one defendant cannot have a decree against a co-defendant without a cross bill, with proper prayer and process, or answer, as in an original suit.' But the Supreme Court of Tennessee say: "It is the set- tled law of the court of chancery that a decree may be made , between co-defendants, grounded upon the pleadings and proof between the complainant and defendant, and founded upon, and connected with, the subject matter in litigation between the complainant and one or more of the defend- ants."* But if the pleadings between the complainant and the de- fendants do not show distinctly the facts upon which a de- fendant is entitled to relief against a co-defendant, he should file a cross bill. A cross bill may, also, be filed to answer the purposes of a plea puis darrien continuance, at the common law. The plaintiff in a cross bill cannot contradict the admis- sions in his answer to the original suit. And if the allega- 'Bussy V. Gaut, 10 Hum., 238. =■810. Eq. PI., 392. *Danl. Ch. Pr., 743; Talbot v. McGhee, 4 Monroe, 3Y9. 'Ingram v. Smith, 1 Head, 411; Elrod v. Lancaster, 2 Head, 571. 188 MANUAL OF CIIAXCEIIY PRACTICE. tions of a cross bill are inconsistent with the answer, they cannot be taken as true, though unanswered.' Indeed, it seems that the matters of defense, upon which a cross bill is founded, must ordinarily be stated in the answer to the original suit, as well as in the cross bill." The relief prayed by a' cross bill not simply for a discovery should be equitable relief; for to this extent it may be con- sidered as not. purely a cross bill, but in the nature of an original bill, seeking further aid from the court ; and then the relief ought to be such as, in point of jurisdiction, it is competent for the court to give.^ But matters purely legal, connected with matters of the bill, may be relied on as a defense, and the original com- plainant will be required to answer thereto, without stating any ground of jurisdiction.* No leave of court is required to file a cross, bill, if filed in proper time. 109rt. Of cross bills generally. If the cross bill is set for hearing, the legal effect is to set the original cause also for a cross bill incorporates itself with the original bill and must be heard with it.'' A cross bill must be a defense to the original suit, au auxiliary to it, or dependent upon it so far that the equity between the co-defendants is the result of the complainant's litigation.^ A cross bill being generally considered as a defense, or a proceeding to procure a complete determination of a matter already in litigation, the plaintifi is not, as against the plain- tift"'s original bill, obliged to show any ground of equity to support the jurisdiction of the court.' A legal demand having no connection with the equities set up in the bill, cannot be mads the subject of a cross bill. 'Danl. Ch. Pr., 1743. ^Danl. Ch. Pr., 1744. 'Sto. Eq. PI., 398. ♦Danl. Ch. Pr., 1744. ^Hergel v. Laitenburger, 2 Tenn. Ch., 254; Cocke v. Trotter, 10 Yer., 213. 'Hergel v. Laitenburger, 2 Tenn. Ch., 254. 'Danl. Ch. Pr., 1549. MANUAL OF CHANCERY PRACTICE. 189 Nor can one defendant set ofF against the claim of a co- defendant, properly presented by the pleadings, a demand upon him in a representative capacity.' Relief maybe decreed to a complainant upon the equity ot his adversary's crO'iS bill, where there is no equity in the original bill.^ If an amended bill be filed in the cause, after a cross bill, the latter must be answered first. Each bill is to be an- swered according to its date.' Where a defendant seeks the aid of the court for the purpose of enforcing his rights he must file a cross bill. In general, the defendant cannot have any positive relief against the- plaintiff", even on the subject matter of the suit, except by cross bill.* It is the policy of the law to prevent a multiplicity of suits, and where upon the facts stated in the cross bill, the relief to which the plaintiff therein is entitled could not be fully given, without the bringing in of new parties, it may be done.-'' 110. Proper time to bring a cross bill. The proper time for filing a cross bill, is at the time of putting in the answer to the original suit. And if not then put in, the delay must be accounted for, or the proceedings will not be stayed." As a general rule, a cross bill must be filed before publica- tion of the evidence in the original suit, unless the plaintiff' in the cross bill will go to the hearing, upon the proofs already published." But this rule is a restriction upon the rights of the defend- ant only, and not upon the authority of the court; for 'Beal V. Smithpeter, 6 Bax., 358. ^McNairy v. Eastland, 10 Yer., 310. 'Scales V. Nichols, 3 Hay., 229. *Dan'l Ch. Pr., 1550; Hudgins v. Panning, 4 Bax., 578. ^Hilderbrand v. Beasley, 7 Heis., 123; Huffmaster ». Payne, Mss. Knoxville, 1880; Henderson v. Anderson, Mss., Knoxville, 1880. But see Odam v. Owen, 2 Bax., 449. This does not seem to have been a pure cross bill. 'Morrison v. Searight, 4 Bax., 479; Morrow u. Morrow, 2 Tenn. Ch., 549; Danl. Ch. Pr., 1744-1745. _ 'Danl. Ch. Pr., 1548, 5 Am. Ed., Sto., Eq. PI., 395. 190 MANUAL OF CHANCERY PRACTICE; where it is neceesary for the purposes of justice in a particu- lar cause, the court may aftarwards direct a cross' bill to be filed. Thus, upon hearing a cause, it sometimes appears, that the suit already instituted is sufiicient to bring before the court all the matters necessary to enable it fully to decide upon the rights of all the parties. Thi? most commonly hap- pens where persons in opposits interests are. co-defendants, so that the court cannot determine their opposite interests upon the bill already filed,.and yet the determination of their interests is necessary to a complete decree upon the subject matter of the suit. In such a case, if, upon hearing the cause, the difficulty appears, and a cross bill has not been ex- hibited to remove the difficulty, the court will direct a bill to be filed, in order to briug. all the rights of all the parties fully and properly before it for its decision; and it will reserve the directions or declarations, which it may be neces- sary to give or make, touching-the matter not iully in litiga- tion by the former bill, until this new bill is brought to a hearing. And, if a creditor, who has come in under a decree in favor of creditors against a debtor, should require relief for the purpose of assisting the. investigation of demands, affect- ing the estate, before the master, which relief cannot be ob- tained under the original bill,' or by a re-hearing, he may, even without the direction of the court, file a cross bill for the purpose; for he might not have had any opportunity at any earlier stage of the proceedings of presenting his case and his objections.^ In the case of Brown v. Bell, 4 Hay., 287, after the cause had been pending for eleven years, a motion was made for leave to file a cross bill. The court said that, before granting leave, they would consider. 1st. Whether the cross bill was material. 2d. Whether the benefit of it, (if material,) might not be had in some other way. 3d. Whether, if the cross bill was allowed to be filed, it should not be on condition that the hearing of the original 'Sto, Eq. PL, 39Y. MANUAL OF CHANCERY PRACTICE. 191 cause should not be delayed, as the court could, at the hear- ing, put oft" the hnal determination of the cause if it should be found indispensable. The court being of the opinion that the benefit of the mat- ters of the .cross bill could be had by producing proof before the master in taking the account, tVie motion was disallowed. Upon a cross bill being filed, security is taken for the prosecution of the suit, and subpoena to answer, with copy of the bill issues, as in the case of an original bill. 111. Form of a cross bill. A cross bill should state the parties, objects and prayer of the original bill; the proceed- ings thereon, and the rights of the party exhibiting the bill, which are necessary to be made the subject of cross liti- gation, or the ground on which he resists the claim of the plaintiff in the original bill, if that is the object of the new bill. 112. Form of a cross bill in the nature of a plea puis darrien continuance- (Usual commencement.) The complainant respectfully shows to the court, that the defendant, Richard Roe, on or about the 1st day of May, 1S67„ filed his bill of complaint in this honorable court, against the present complainant, thereby praying, (state the prayer,) and the present complainant being duly served with process, appeared and put in his answer thereto; and issue being thus joined, witnesses were ex- amined on both sides, but said cause has not yet been heard. Complainant further shows, that on or about the 1st day of April, 18G8, the said Richard Roe, by a certain writirtg of release, bearing date the said 1st day of April, 1868, did remise, release, and forever quit claim, unto complainant, his heirs, executors and administrators, the several matters and things com- plained of in said bill of the said Richard- Roa, and in question in the said suit, and each and every one of them, and of all sums of money then due and owing, or thereafter to become due and owing, together with all, and all manner of ac- tions, causes of action, suits and demands whatsoever, both at law and in equitj-, or otherwise howsoever, which he, the said Richard Roe, then had, or which he should, or might, at any time, or times, thereafter have, claim, allege or de- mand against complainant, for, or bj' reason or means of any matter, cause or thing whatsoever, from the beginning of the world, to the day of the date of said deed, or writing, of release; as by reference to said release, reference being thereunto had, will appear. (State the release according to its terms, which will rarely be so prolix as the one obove stated. ) Complainant further shows, that under the circumstances aforesaid, he is unable to put the said release, in issue, or tc; use the same as a plea in bar in said suit. 192 MANUAL OP CHANCERY PRACTICE. Complainant prays that process issue, to cause said Richard Roe to appear and answer this bill fully. . That said release may be established, and declared by this honorable court a sufficient bar to any further proceedings by the said Richard ROe, in said suit; and that said. bill of the said Richard Roe be dis- missed with costs. He also prays for general relief WiJxiAM B. Reese, Solicitor. 113. Of staying the proceedings and hearing the cause. -The plaintiff in the original cause is not obliged to stay pro- ceedings thereon, upon the filing of a cross bill, except by special order of the court. And it is- not a matter of course, for the court to stay the proceedings in the original suit in any case, except where the defendant in the cross suit is in contempt for not answering. And to entitle the plaintiff in the cross bill to have the proceedings in the original suit stayed, the cross bill must be under oath' The original and cross causes are usually, but not neces- sarily, heard together.^ This is the practice in England ; but, in Tennessee, the original or cross bills are treated as forming but one suit ; so that where the original bill in a suit was dismissed, and a de- cree rendered upon the cross bill, and an appeal was taken from the decree dismissing the original bill, it was held that the whole case, both as to the bill and cross bill, was before the Supreme Court for examination, and a decree was ren- dered in favor of the complainant in the original bill.* A cros« bill incorporates itself with the original bill, and must be heard with it.'' A disclaimer is sometimes used as a mode of defense in courts of equity, but is not recognized by the Code of Ten- nessee, and will not be further noticed. iDanl. Ch. Pr., 1750. 'Danl. Ch. Pr., 1750. 'Woodrum v. Kirkpatrick, 2 Swan, 223. ^Cocke V. Trotter, 10 Yer., 214. J'or a full collection of authorities on the subject of cross bills, and an- 1 swers as cross bills, see Milllkin's Dig., 572-573. CHAPTER Y OF THE AMENDMENT OF PLEADINGS. 114. Amendment of pleadings in general. 115. Of amending bills. 1. English practice. 2. Practice in Tennessee. n 6. Amending bill where the plaintiff is a minor. 116a!. Of Amending bills. 1166. Bond and process upon filing an amended bill. 117. Form of an amended bill. 118. Amendment of demurrers, pleas and answers. 114. Amendment of pleadings in general. The amend- ment of chancery pleadings is allowed with great liberality until after the testimony is taken and publication passed, ex- cept in cases where they are put in under oath, in which cases, for obvious reasons, they will not easily be changed. But after the examination of witnesses and publication passed no part of the pleadings can be altered or added to except under very special circumstances, or in consequence of some subsequent event. ^ 'Cocke V. Evans, 9 Yer.,'294; Cook v. Bee, 2 Tenn., 345. The court has a right to permit amendment, whenever it is thought necessary to justice; and it will do so at any stage of the cause, even after it has been argued to the court, if it appears that justice cannot be fully done without it. Perkins v. Hays, Cooke, 189. Whenever a complainant has preferred his bill and ascertains that the same does not contain such material facts, or make such persons par- ties as are necessary to enable the court to do complete justice, he may amend' it by inserting new matter, or by adding such persons as shall be deemed neces- sary parties or both. And although it is the practice to call a bill thus altered an amended bill, the amendment is in fact esteemed but a continuation of the origiriaj bill, and as forming a part of it, for both the original and amended bill constitute but one record. Morrows. Frassick, 3 Lea, 131 ; Tappan v. Rail- road, 3 Lea, 111; Bradley v. Dibrell, 3 Heis., 522; Wilson o. Beadle, 2 Head, 612; Peay v. Ferguson, 1 Tenn. Ch., 291. An amended bill will not be allowed which asks alternative relief, directly in conflict with the relief of the original bill. Rogers u. Simpson, 10 Heis., 655; Mason v. Anderson, 3 Bax., 302; Bos- ley V. Phillips, 3 Tenn. Ch., 649. 13 194: MANUAL OF CHANCERY PRACTICE. In Tennessee, the practice of passing publication is now abolished. The clerk and master opens depositions at any time after they are filed, at the request of either party or his attorney. After an interlocutory decree, it is not error to refuse an amendment to the answer so as to enable the defendant to plead the statute of limitations.^ Being regarded only with reference to the furtherence of justice, it is, as a general rule, in the discretion of the court to allow amendments, especially in matters of form.' Amendments, by the defendant, are allowed with much greater caution than by the plaintiff.^ Exceptions to an answer have been allowed to be amended where there has been a mere mistake.' 115. Of amending bills. 1. English practice. "When a plaintiff has preferred his bill, and is advised that it does not contain such material facts, or make all such persons parties as are necessary to enable the court to do complete justice, he may alter it, by inserting new matter subsisting at the time of exhibiting his bill, of which he was not then ap- prised, or which he did not think necessary to be stated, and may add such persons as shall be deemed necessary parties; or, in case the original bill shall be found to contain matter not relevant, or no longer necessary to the plaintiff's case, or parties who may be dispensed with, the same may be struck out; and the original bill, thus added to' or altered, is termed an amended bill. " But, although it is the practice to call a bill thus altered an amended bill, the amendment is in fact esteemed biit as a continuation of the original bill, and as forming part of it ; for both the original and amended bill constitute but one rec- ord ; so much so, that where an original bill is fully answered and amendments are afterwards made, to which the defend- ant does not answer, the whole record may be taken, pro con- 'Code, 3870. 'Cocke V. Evans, 9 Yer., 294; Flora v. Rogers, 4 Hay., 202. '3 Sumner, 410. *Sto. Kq. PI., 894. =Sto. Eq. PL, 901. MANUAL OF CHANCBEY' PRACTICE. 195 fesso, generally; and an, order to take tlie bill pro confesso as to^ the amendments only will he irregular. "An amended bill must, therefore, in all cases, be addressed to the same lord chancellor, lord keeper, or lords commis- sioners, to whom the original bill was addressed, although a change has taken place in the custody of the great seal, be- tween the times of filing the original bill and the amend- ment." ^ ' "Although, however, the original and amended bill consti- tute but one record, and are so considered at the hearing, the defendant, in case he has answered the original bill, ought to answer the amendments only."^ If the plaintitf obtains new light as to the circumstances of his case from the answer of the defendant, which renders it necessary to shape his bill accordingly ; or if it be neces- sary to put in issue new matter stated in the answer, he may amend. And in general, any imperfection in the frame of the bill may be thus remedied as often as occasion may re- quire. But the matter introduced by amendment after the defendant has put in his answer, must not, as a general rule, be new matter — i. e., matter which has happened since the filing of the bill. But there are some exceptions to this rule. Thus, where a foreign executor files a bill in chancery, and subsequently takes out letters testamentary in the State in which his bill is filed, he may state the fact of the granting of such letters by way of amendment, and is not compelled to resort to a supplementary bill.' By the usual practice of courts of chancery no amendment of the bill is generally allowable after the parties are at issue upon the points of the original bill and witnesses have been examined. But such matters must be introduced by a sup- plemental bill.^ Although the amended bill is considered as a part of the original bill, yet so far as the pendency of a suit can aflect either parties or strangers to it, the matter brought into a bill 'Danl. Ch. Pr., 454. ^Danl. Ch, Pr., 456. »Sto. Eq. PI,, 884; Danl. Ch. Pr., 454. *Sto. Eq. PI., 332, 614, 884, 887, 890, 894. 196 MANUAL OF CHANCERY- PRACTICE. by amendment, will not have relation to the time of tiling, the original bill, but the suit will so far be considered _a8 pending only from the data of the amendmsnt.' 2. Practice in Tennessee. The complainant may amend his bill before the defendant has taken out; or the clerk issued a copy thereof, and in small matters not affecting the merits, afterwards, without costs.^ Material amendments maybe made as of course, without application to the chancellor, after copy of the bill has been issued or taken out, and before the defendant has mads de fense, upon complainant paying the costs of furnishing a copy of the amendment to such of the defendants as hava re- ceived or" taken out copies of the original bill, and of the notice to be served upon all the defendants of such amend- ment. Amendments may also be made after demurrer and before argument thereof, upon the same terms.' In all other cases than those enumerated above, the com- plainant can amend his bill only by leave of the chancellor given in open court, and uppn such terms as he may impose."* But the court may, at any stage of the cause, even after argument, if it be thought necessary to justic3, permit amendments, upon such terms as may appear reasonable.^ If objection be taken at the hearing for want of parties,- the objection not having been previously taken by plea, an- swer or demurrer, the court may render a decree saving the rights of the parties not before it, or grant leave to amend on terms not extending beyond the payment of costs.* At any time before a demurrer is allowed the plaintiff may amend his bill. And during the same term of the court, at which the decree sustaining the demurrer and dismissing the iSto. Eq. PL, 904. •'Code, 4332. 'Code, 4333. ♦Code, 4334. *Code, 4335; Perkins v. Hays, Cooke, 189; Hogan.u. McFarland, 6 Bax., 104. *Code, 433V; When a demurrer for non-joinder of parties is allowed, the proper order is that the hill stand over for amendment, by adding the necessary parties. As to making new parties see Franklin v. Franklin, 2 Swan, 521. MANUAL OF OnANCEEY PRACTICE. 197 bill, is pronounced, upon a proper application, the chancellor may set aside the decree sustaining the demurrer, and permit the plaintift to amend his hill.' In this case of Crowder ii. Turney, the plaintiff asked to file his amended bill at the same term at which the demurrer was sustained. That was, in effect, asking that the judgement sustaining the demurrer should be set aside and the plaintiff' be permit- ted to amend his bill. But he was not permitted to file his amended bill; and, upon an appeal being taken, the Supreme Court sustained the action of the chancellor, because the complainant had not, in just so many words, asked to have the decree sustaining the demurrer set aside. So, it seems that the time when form is to be cherished rather than substance has not entirely passed in courts of equity. But such matter of form is no longer available in a law court; for section 2935 of the Code, provides that either before or after judgment on demurrer, the court may permit an amendment of the pleadings, which amendment shall not delay the trial, unless the court is satisfied that substantial justice requires a continuance. In the case of Kirkman & Ellis V. Snodgrass, 3 Head, 372, it was held that the provisions of the section immediately preceding this one, being general, must be held to embrace all courts, chancery as well as law. Section 2935 is as general in its provisions as is the section immediately preceding it, on which the decision in 3 Head was made. In the case of G-ray v. Hays, 7 Hum., 588, it was held that although a demurrer was properly sustained for want of a necessary party, it was error in the court to dismisss for such cause. That after the demurrer was allowed the bill should have stood over with leave to amend by adding the necessary parties. This was in a case in which the complainant did not ask leave to amend. In our practice in Tennessee, the court will allow amend- ments in small matters, to be made in the body of the bill without the issuance of any new process or copy of the 'Crowder v. Turney, 3 Cold., 531. 198 MANUAL OF CHANCERY PRACTICE. amendment, even in cases not falling within the provisions of sections 4332 and 4333 of the Code. But material amendments, unless made before the issuance of process, are usually made by filing what is known in our practice as an amended bill. The original bill and the amendment in such case, are not considered as forming to- gether the amended bill", but the one is called the original and the other the amendad bill, though the amendments thus introduced have the same effect as if they had been added to the face of the -original bill ; for the 'original and amended bills form but one cause. But it is apprehended that they are not treated as one record to such an extent that if the defendant has answered the original bill and fails to answer an amended bill subse- quently filed, judgment 'pro eonfesso can be taken against him on both bills. Ilfor to such an extent as to make it necessary to resort to fiction in the address of the amended bill where there has been, in the meantime, a new chancellor elected.' 116. Amending bills where the plaintiff is a minor. The court, considering infants as particularly under its pro- tection, will not permit them to be injured by the manner in which their bill is framed. Thus, where the bill of an infant submitted to pay off" a mortgage, which the court was of opinion on the hearing of the case, the infant was not bound to pay, the court of its own motion ordered the bill to be amended by striking out the submission. So, where a bill on behalf of an infant does not put a matter properly in issue, to the prejudice of the infant, the court will generally order the bill to be amended.^ 116a. Of amendii^ bills. The amendments to a bill, where allowed, are always considered as incorporated in and as forming part of the original bill. They have reference to the time of filing the bill, and the defendant can not, by amendment, be called upon to answer anything which has occuri'ed since that time.^ 'For a full and well arranged collection of authorities on amending bills, see Milliken's Dig., 602. »Sto. Eq. PI., 892. 'Hunt V. Everett, 1 Paige, 124. MANUAL OF CHANCERY PRACTICE. 109 But the amendments do not so relate to the time of filing the original bill as to deprive the defendant of any defense to an amendment which introduces substantially a new cause of action, which he would have had if such new cause of action had been brought forward by an original bill filed at the date at which the amendment is made.^ In a case where the time of the commencement of the ac- tion may become important in reference to the statute of limitations or other matters of defense, the eftect of an amendment changing the form of action must be restricted to the time when from the record it appears to have been allowed.^ The name of an infant plaintiff may, on motion, be struck out of the bill in order to make him a defendant, when such proceeding is for his benefit, in order to take care of his in- terests.^ 116^. Bond and process upon filing an amended bill. In our practice in Tennessee, it is not usual for the clerk and master to take a new prosecution bond upon the filing of a new bill, but upon application , to the court a new bond would, of course, be required to be executed in proper cases, as, for example, where new parties are introduced by the amended bill. A subpcEna to answer the amended bill, with copy, issues as in other cases, but a copy of the original does not issue, except for new defendants, who may be introduced by the amended bill, and such of the original defendants as have not been served with a copy of the original bill. "Where the amended bill is simply for the purpose of bringing in addi- tional parties, there is no propriety in issuing new process as to the original defendants, or requiring them to answer the amendments. But in such case the order granting leave to amend should recite, that new process need not issue as to 'Cunningham v. Bell, 2 Paige, 656. 'Flatly V. M. & C. R. R., 9 Heis., 235; Miller'w, Taylor, 6 Heis., 481; Crof- ford V. Cathran, 2 Sneed, 492; Lillard v. Porter, 2 Head, 179. 'Tappan v. Norman, 11 Ves. Jr., 563. See Simpson ». Alexander, 6 Cold., 619. 2\00 MANUAL OF CHANCERY PKACTICE. the original defendants, and that no further answer will be required of them.^ 117. Form of an amended bill. Where the amendment is not made in the body of the original bill, the amended bill should state so much of the original bill as is necessary to in- troduce the amendment and no more. It may be in the following form : To the Honorable 0. P. Temple, Chancellor, etc., holding the Chancery Court at Madisonville : A. B., complainant, "j vs. > Both citizens of Monroe County. C. D., defendant. J ■ The complainant respectfully shows to the court that on the 1st day of May, 1869, he filed his original bill in this honorable court against said C. D., charg- ing, among other things, that, etc., etc., and thereupon praying, etc., etc. (Here state so much of the allegations and prayer of the original bill as is necessary to introduce the amendment and proceed), as by such bill on file in this honorable coiirt will on reference appear. And now (by leave of the court for that pur- pose first had and obtained), complainant brings and files this his amended bill in said cause; and shows to the court, (in addition to what is shown in his' said original bill), that, etc. (Here state the matters of amendment and praj" for the appropriate relief). 118. Amendment of demurrers, pleas and answers. A defendant may amend his pleadings, but is allowed to do so with much greater caution than in the case of a plamtift'. Where a demurrer is too extensive, the court has the discre- • tion, where a fair case is made, to allow it to be amended and narrowed so as to cover only such portion of the bill as it may properly apply to.^ So, leave will be granted to amend a plea where there has been an evident slip, or mistake, and the material ground of defense seems to be sufficient. But the court always expects to be told precisely what the amendment is to be and how the slip- happened oefore it will grant leave to amend. Where a plea is good in substance leave will be given to _ amend it in matters of form. And where a plea seemed in- capable of amendrnent, a defendant has been allowed, in a proper case, to withdraw it and plead de novo? 'See Danl. Ch, Pr., 487. »Sto. Eq. PI., 894. »Sto. Bq. PI., 895. MANUAL QF CHANCERY PRACTICE. 201 In the case of pleas and answers put in under oath, the court will not easily suffer an amendment to be made, except in mere matters of form, mistakes of dates or verbal inac- curacies. To support an application to amend an answer in material facts, or to change essentially the grounds taken in the origi- nal answer, Courts of Equity require very cogent circum- stances, and such as repel the notion of any attempt of the party to evade the justice of the case or. to set up new and ingeniously contrived defenses or subterfuges.^ If upon the hearing of a cause it appears that the defend- ant has not put in issue facts which he ought to have put in issue, and which must necessarily be in issue, he will be al- lowed to amend. In such case the same indulgence is granted to him as is granted to a plaintiff' under like circum- stances. But upon a rehearing of a decree an answer can not be amended except by consent of parties.^ Facts arising subsequently to the filing of an answer can not, with propriety, be put in issue by amending the answer. Such facts should be put in issue by a bill in the nature of a plea puis darrien continuance at law, and the case stand over till the new bill can be brought to a hearing with the old.^ In amending answers the old practice in England was, in cases where there had been a clear mistake, to allow the old answer to be taken off' the file and a new answer put in. But the better practice has been adopted of allowing an amended or supplemental answer to be filed in such cases, leaving the parties the full eff'ect of what had been sworn be- fore, with the explanation given in the supplemental answer.* The cotirt has the discretion, upon satisfactory reasons be- ing shown, of permitting a defendant to withdraw an answer and file a demurrer.^ Although Courts of Equity are very indulgent in allowing amendments of answers in matters of form, mistake of dates >Sto. Eq. PI., 89§; Cook v. Bee,, 2 Tenn. Ch., 343; Wilson u. Wilson, 2' Lea, 18. ''Sto.'Eq. PI., 902. 'Sto. Eq. PI., 903. Cook V. Bee, 2 Tenn. Ch., 343; Cocke v. Evans, 9 Yer., 295; Wilson v. Wil- son, 2 Lea, 18. ^Fiirman v. North, 4 Bax., 299. CHAPTER VI. OF SUPPLEMENTAL BILLS AND BILLS OF KEVIVOR. 119. Of supplemental bills and bills of revivor generally. 120. Of supplemental bills to supply defects in the frame or structure of orig- inal bills. 121. Supplemental bills to bring before tie court matters occurring after the filing of the bill. 121a. Bringing new matter before the court by supplemental bill. 1216. Supplemental bill to supply new parties. 122. Supplemental bills b}^ defendants. 123. Supplemental bill after decree. 124. Of the frame of a supplemental bill, and the hearing. 125. Form of supplemental bill where the defendant has become a bankrupt. 126. Original bill in the nature of a supplemental bill. 127. Frame and nature of an original bill in the nature of a supplemental bill. 128. Bills of revivor. 129. In what cases a revivor is necessary and proper. 130. By and against whom suits ma}' be revived. 131. Frame of a bill of revivor. 132. Form of a bill of revivor against the heirs of a deceased mortgagor. 133. Original bill in the nature of a bill of revivor. 134. Difference between a bill in the nature of a bill of revivor and a bill in the nature of a supplemental bill. 135. Frame of a bill in the nature of a bill of revivor. 136. Bills of revivor and supplement. 119. Of supplemental bills and bills of revivor gener- ally. It often happens that a suit in chancery, though pei'- fect in its institution, has, by some event subsequent to tlae filing of the original bill, become defective, or has abated, so that no proceeding can be had, either as to the whole or some part ; or it may happen that there is some imperfection ex- isting in the frame of the original bill, which is not discov- ered in time to allow of its being corrected by amendment. If the defect is either in the original proceedings, or has been occasioned by some event subsequent to the institution of the suit, so that the proceedings, as they stand, cannot have their full effect, the defect is remedied by a supple- mental bill. 204 MANUAL OF CHANCERY PRACTICE. But, if by some event subsequent to the institution of the suit, tbere- is no person by or against whom the suit in the whole or in part can be prosecuted, a bill of revivor is ap- plicable.^ But it is not very accurately ascertained in the books of practice, or in the reports, in what cases a suit becomes de- fective without being absolutely abated ; and in what cases it abates as well as becomes defective.^ When, although the parties to the suit remain before the court, some event subsequent to the institution of the suit, has either made such a change in the interest of those parties, or giv*en to some other person such an interest' in the matters of litigation as that the proceedings. as they stand cannot have their full effect, the bill becomes defective only. But when, by such subsequent event, there is no person before the court by or against whom there can be any jsroceedings at all, gflher as to the vs^bole or as to a part, the suit abates.^ The bankruptcy of a party, pending the suit,' rendei's the suit defective only. But by the death of a party whose in- terest is not determined by his death, or by the marriage of a female plaintiff, the proceedings are abated or discontinued, either in part or in whole. For so far as the interest of the party dying extends, there is no longer any.person before the court by whom or against whom the suit can be prosecuted ; and as regards the case of the marriage of a female plaintiff", a married woman is incapable by herself of prosecuting a suit.* Upon the whole, if by any means, any interest of a party to the suit in the matter in litigation becomes vested in an- other, the proceedings are rendered defective, in proportion as that interest affects the suit ; so that, although the parties to the suit may remain as before, yet the object of the suit cannot be obtained.^ There is the same want of accuracy, says Mr. Story, in the 'Danl. Ch. Pr., lGo3. »Sto. Eq. PI., :-S29. 'Sto. Eq. PI., 828. *Sto. Eq. PI., 329. ^Sto. Eq. PL, 3->9. MANUAL OF CHANCERY PRACTICE.. 205 books in ascertaining the manner in which the benetit of a suit may be obtained, after it has become defective; or abated by. an event subsequent to its institution, as there is in the distinction between the cases, where a suit becomes defective merely, and where it likewise abates. It seems, however, clear that if any propei'ty or right in the litigation, vested in a plaintift", is transmitted to another, the person to whom it is transmitted is entitled to supply the defects of the suit, if it has become defective merely; and to continue it, or at least to have the benefit of it, if it is abated. It seems also clear that if any property or right, vested before in a defendant, becomes transmitted to another person, the plaintiff is -fen- titled to render the suit perfect, if it has become defctive, or to continue it, if it is abated, against the person to whom that property or right is transmitted.' There are also bills known in the practice which though., they are not strictly supplemental bills, or bills of revive^-, strongly resemble them in form as well as the practice conse- quent upon them. Bills of this description are generally termed bills in the nature of supplemental bills, or bills in the nature of bills of revivor.^ In some instances, the abatement of the suit gives rise to new matters which it becomes necessary to introduce into the proceedings, in,, which cases the proper remedy is by bill of revivor and supplement.^' When a suit is abated, it ca_nnot be proceeded in till there is a revivor of it. But when merely defective, it may be proceeded in without such a technical revivor, upon the mere supply of the defective facts or defective parties.'' And, under our practice in Tennessee, it i^ apprehended that if justice -could be done between the parties before the court, saving the rights of parties not before it, a decree might be rendered, though all the parties usually deemed necessary parties might not be before the court.' 'Sto. Eq. PI, 330. ^Danl. Ch. Pr., 165,V4. ^Danl. Ch. Pr., 1654. *Sto. Eq. PL, 331. ^Code, 4337, 2851 2852. 206 MANUAL OF CHANCERY PRACTIC3. If the suit, should become defective, or even abate as to the interest of one wlio is a proper but' not a nedessary party, it is, of course, not absolutely necessary to revive, or to supply the defect. So, if the interest of a deceased party devolves upon parties who are already before the court, no revivor is necessary.' Generally speakings an assignee pendente lite, need not be brought before the court, for every purchaser, pendente lite, is treated as a purchaser with notice, and is subject to all the equities of the person under whom he claims in privity.^ But such persons might very properly be made parties by a supf)lemental bill. But there is a distinction between a volnntary alienation -pendente lite, and an involuntary altena- tion by operation of law, as by bankruptcy. The assignee, upon whom the interest of a party has been cast by operation af law, for the benefit of others, has a right to be heard for the protection of that interest, and he will not be bound by the decree, (as a voluntary assignee would be,) unless he is a party.' Whenever a supplemental bill is not a supplemental suit, but only introduces supplementary matter, the whole -record constitutes but one cause.^ 120. Of supplemental bills to supply defects in the frame or structure of original bills. A supplemental bill of this kind, is merely an addition to. the original bill. In many cases, an imperfection in the frame of an original bill, may be remedied by amendment. Generally, a mistake in the bill, in the statement of a fact should be corrected by an amendment, and not by a right statement of the fact, in a supplemental bill. But, the imperfections of a bill may re- main undiscovered, or its importance not understood, while the proceedings are in such a state that an amendment can be j)ermitted, according to the practice of the court. In either of these cases a supplemental bill is the proper remedy.' 'Gilchrist v. Cannon, 1 Cold., 581. 'Sto. Eq. PI., 156; Shelton u. Johnson, 4 Sneed, 6V2. »Sto. Eq. PI., 342, and notes. *Sto. Eq. PI., 332. ^Sto. Eq. PI.. 332-333. MANUAL OF CHANCERY PRACTICE. 207 So, in either case, tlie filing of the supplemental bill is not always a matter of course; but sometimes special leave of the court must be obtained. Thus, when it seeks to change the original"structure of the bill, and to introduce a new and difierent case, special leave to file it must be had.' So, in many other cases, leave of court must be obtained.^ But the cases do not establish any very clear principle con- cerning the period of the cause, when the plamtitf may, without leave, file a supplemental bill for the purpose of in- troducing matter which existed at the time the original bill was filed.' A supplemental bill will not be permitted to be filed where the same end may be obtained by amendment.'' A supplemental bill may be proper, in order to bring be- fore the court some party, who is a necessary party to the proceedings, and who has been omitted to be introduced at the stage of the cause in which an amendment for this pur- pose may be made. In such a case, the original dfefendants need not be made parties to the supplemental bill, unless they have an interest in the supplemental matter, or may be af- fected by the interests of the new party.^ A supplemental bill is often necessary, when, after the court has decided upon the suit as framed, it appears neces- sary to bring some other matter before the court to obtain the full effect of the decision, or before a decision has been . obtained, but after the parties are at issue upon the points in the original bill, and witnesses have been examined (in which case, the practice of the court will not generally permit an amendment of the origuial bill), some other point appears necessary to be made, or some additional discovery is found requisite. Thus, for example, if new chai'ges are required to be made, for purposes of further discovery, or a material fact is required to be put in issue, which was not before in the cause." 'Sto. Eq., PI., 333. 'Sto. Eq. PI., 333. "Dan'l Ch. Pr., 1653. «Sto. Eq. PI.; 333. 5Sto. Eq. PI., 334. «Sto. Eq. PI., 335, ante 114. 208 MANUAL OF CHAXCEllY PRACTICE. So, new parties, when necessary, may be added by a sup- plemental bill, if the proceedings are in a state in which the object cannot be obtained in any other way.' 121 . Supplemental bills to bring before the court mat- ters occurring after the filing of the bill. When new events, or matters, occur after the tiling of the bill, a supple- mental bill is, in many cases, the proper mode of bringing them before the court; for, generally, such facts cannot be introduced by way of amendment to the bill. But such new events, or matters, must merely support the rights and inter- ests already in the bill. If those matters change the rights or interests of the parties before the court, the bill will not then be, properly speaking, a supplemental bill.^ Such bill would be an original bill in the nature of a supplemental bill. A supplemental bill is, properly, applicable to those cases only where the same parties, or the same interests, remain before the coui't ; whereas an original bill, in the nature of a supplemental bill, is, properly, applicable to new parties, with new interests arising out of the events since the institution of the suit. But this division is more formal than substan- tial.3 A supplemental bill may not only be brought to insist on the relief prayed in the original bill, but on different relief required by the new facts which have occurred.* 121a. Bringing new matters before the court by sup- plemental bUl. If the cause has progressed so far that an amendment cannot be made, or if material facts have oc- curred after the commencement of the suit, the court, on a proper application, will give the complainant leave to file a supplemental bill.'' And wherever the party is permitted to file such bill, for the purpose of introducing matters which have arisen subsequent to the filing of the original bill, the court will also give the complainant permission to introduce 'Sto. Eq. PI., 335. »Sto. Eq. PI, 836. 'Sto. Eq. PL, 336. *Sto. Eq. PL, 345. ^Goodwin V. Goodwin, 3 Atk., 370. MANUAL OF CHANCERY PRACTICE. 209 other matters into the supplemental bill, which might have been introduced by way of amendment to the first bill. 1216. Supplemental bill to supply new parties- Where the objection for want of parties is made rather out of sea- son, the lack of parties may be supplied by supplemental bill. But when a supplemental bill is used merely for the purpose of bringing a party before the court, as a defendant, the de^ fendants to the original bill need not be made parties.^ !N"ew events or new matters, which do not change the par- ties before the court, nor the rights and interests of the par- ties, but merely refers to and supports the rights and inter- ests already in the bill, may be brought before the court by a supplemental bill proper.^ 122. Supplemental bills by defendants. " Supplemental bills may also be brought on behalf of the defendant in the suit. Where the matter is newly discovered evidence on the part of the defendant, after the cause is at issue, or after pub- lication is passed, or even after a heai-ing, or decree, the de- fendant may, by petition to file a supplemental bill, obtain relief, and an order allowing him to introduce the hew evi- dence, either by putting the new matter at issue, or by en- larging publication, or by a rehearihg, as the particular stage of the cause, at which the discovery is made, may require."^ 123. Supplemental bill after decree. A supplemental bill may be filed as well after as before a decree, and if filed after a decree, it may be, either in aid of the decree, that it may be carried fullyinto execution, or that proper directions may be given upon some matter omitted in the original bill^ or nbt put in issue by it, or by the defense made to it, or to bring parties before the court; or it may be used to impeach the decree, which is the peculiar case of a supplemental bill in the nature of a bill of review. But where a supplemental bill is brought in aid of a decree, it is merely to carry out '3 Atk., 110, 217; Bnsworth v. Lambert, 4 Johns. Ch. R., 606; 6 Johns. Uh. B., 451. i'ELddle v. Matty, 1 Lea, 372; Sto. Eq. PI., 336; Stafford v. Howlett, 1 Paige, 200. See Milliken's Dig., .571. ^Sto. Eq. PI., 337a. 14 210 MANUAL OF CHANCERY PRACTICE. 'and to give fuller effect to that decree, and not to obtain re- lief of a different kind on a different principle; the latter being the province of a supplemental bill in the nature of a bill of review, which cannot be filed without leave of court' The plaintiff can only obtain the benefit of the former proceedings by supplemental bill, where it is in respect to the same title, in the same person, as stated in the original bill. Thus, where a person filed a bill as heir at law of a mort- gagor, to redeem, and at the hearing it turned out that he was not the true heir, it was held that he could not have the benefit of the former proceedings by a supplemental bill, as he claimed by a different title from that asserted in his original bill ; that his course was to file an original bill.^ 124. Of the frame of the supplemental bill, and the hearing. A supplemental bill must state the original bill and the proceedings thereon,^ If the supplemental bill is occasioned by an event subse- quent to the original bill, it must state that event, and the consequent alteration with respect to the parties ; and, in gen- eral, the supplemental bill must pray, that all the defendants may appear and answer its charges.^ If the alteration or acquisition of interest happens to a defendant, or a person necessary to be made fi defendant, the supplemental bill may be exhibited by the plaintiff" in the original suit against each person alone, and may pray a de- ci-ee upon the particular supplemental matter alleged against that person only; unless, which is frequently the case, the interests of the other defendants may be affected by that decree.^ But, it is not necessary for the plaintiff to state in a sup- plemental bill, all the circumstances of a case at length. All that is requisite, is, that he should state so much of the case as shows that there was an equity in it.^ 'Sto. Eq. PI., 338. 'Sto. Eq.PL, 389. 'Sto. Eq. PL, 343. *Sto. Eq. PI , 343. 5Sto. Eq. PI., 343. "Sto. Eq. PI., 343. MANUAL OF CHANCBRX PRACTICE. 211 Wli.e;;e a siappleineatal bill is merely for the purpose of bringijig formal parties befoji'e the court as defendants, the parties defendant to the original bill need not, in general, be made parties to the supplemejjtal bill. And, in general, if new parties are brought befor.e the court upon a supplemental bill, the oxiginal defendants peed not be made parties to the supplemental bill unless they have an interest in the supple- mental matter; or, their interests require that the new de- fendant should be a party to the suit.^ If the supplemental bill is not fpr a discoyery merely, the cause must be heard upon the supplemental bill at the same time that it is heard upon the original bill, if it had not been before hea.rd; and if the cause has been before heard, it must be further heai;d upon the suppiemental matter.? Whenever a supplemental bill is not a supplemental suit, but only introduces supplemental matter, the whole record constitutes but one cause.^ The form giyeii in the next section, and the form of an ^ amended bill given in sec. 117 will serve as a sufficient guide to the young practitioner. 125. Form of a supplemental bill where the defendant > has become a bankrupt. To Hon. W. S- Fleming, Chancellor, etc., holding court at Columbia: John Smith "I John Doe and } All citizens of Ma^ couAty. Kichard Roe. J The complainant respectfully shows to the court, that on the 1st day of May, • 1869, he filed iis original bill in this l^ojiprable court against the said John Doe, stating the several matters a,nd things therein stated, (it would be better to state in a concise form the grounds of equity embraced in the original bill, intro- ducing them in the same manner as in an amended bill, as directed in the form given in sec 117, ante,) and praying, .(state .the prayer in a concise fanner.) He further shows that said John Doe was served \vith process issuing out ol this honorable court, to appear and answer said bill, butias not yet appeared and ansjvered said bill or made any defense thereto, (or he appea,red accord- ingly and put in his answer thereto, as the case may be,) but before any further 'Sto. Eq. PL, 343, 'Sto. Bq., PL, 343. "Sto. Eq. PL, 332; Horton v. Thompson, 3 Tenn. Ch., 580 212 MANUAL OF CHANCERY PRACTICE. proceedings were had in said suit, said John Doe was, upon his own petition, (or upon the petition of John Den and Richard Fen, creditors of said John Doe,) adjudged and declared to be a banltrupt, by the district court of the United States for the Eastern District of Tennessee,. and the said Richard Roe lias been duly chosen (or appointed, as the case may be, see sec. 13 of the bank- rupt act,) assignee of the said bankrupt's estate, and qualified as such; and the Hon. Connally P. Trigg, Judge of said court, (or H. M. Aiken, Esq., a Register in bankruptcy in said court,) has, by an instrument under his hand, duly as- signed and conveyed to said Richard Roe, as such assignee, all the estate, real and personal, of said bankrupt, with all his deeds, books, and papers relating thereto. Complainant prays that process issue to cause the defendants to appear, and that they be required to answer the original and this supplemental bill. Let them answer particularly, whether, etc., etc. (If the bankrupt has answered the original bill, pray that the assignee be required to answer the original and Supplemental bills, and that the bankrupt be required to answer the supple- mental bill). That complainant have the benefit ot said suit and proceedings against the defendants to this bill, and have the same relief against said Rich- ard Roe as he would have been entitled to against the said defendant, John Doe, if he had not become a bankrupt. He also prays for general relief Abraham Caeothees, Solicitor. 126. Original bill in the nature of a supplemental bUl. As has been already stated, where the object of the bill is to bring before the court new parties, with new interests, arising from events occurring after the institution of the suit, it is not strictly a supplemental bill, but a bill in the nature of a supplemental bill. Thus, if a person, pendente lite, becomes assignee of the interest of a party m the suit, and wishes to be admitted to take part in it, he must bring forward his claim by an original bill in the nature of a sup- plemental bill.^ So if a sole plaintiff, suing in his own right, is deprived of his whol'fe interest in the matters in question by an event sub- sequent to the institution of the suit, (as where he becomes a bankrupt, or where he assigns his whole interest to an- other), the plaintiff being no longer able to prosecute the suit for want of interest, and his assignee claiming by a title, which may be litigated, the benefit of the proceedings can not be obtained by a mere supplemental bill, but is a proper case for an original bill in the nature of a supplemental bill.^ 'Sto. Eq. PI., 348. ^Sto. Eq. PL, 349. manual' op chancery puactice. 213 The voluntary alienation of property, pending a suit, by any party to it, is not permitted to aft'ect the rights of the other parties, if the suit proceeds without a disclosure of the fact, except so far as the alienation may disable the party from performing the decree. Thus, if pending a suit for foreclosure by a mortgagee, the mortgagor assigns the equity of redemption, a decree of foreclosure against the mortgagor will bind such assignee. But, upon a bill by a mortgagor to redeem, if the mortgagee assigns, p.endente lite, the assignee must be brought before the court by the mortgagor, who can not otherwise have a reconveyance of the mortgaged prop- erty.^ But in Tennessee this difficulty would be obviated by our practice of divesting and vesting title by decree of the court, which, it js presumed, would, in its effects against the as- signee, pendente lite, relate to the date of the institution of the suit. But, for the purpose of preventing a cloud upon the title, it would be highly expedient to bring such assignee before the court. In either of the above supposed cases of an assignment by the mortgagor or mortgagee, pendente lite, the assignee may, it is presumed, be brought before the court by a supplemental bill. And the assignee might, in either case, it is presumed, have himself made a party by an origi- nal bill in the nature of a supplemental bill. And if the as- signee desired to ask the active aid of the court to obtain a decree against the plaintiff in the original suit, it would be an original bill in the nature of a cross bill. Thus, if the as- signee of the mortgagor, in the case above supposed, desired to redeem, his bill should be an original bill in the nature of a cross bill to redeem. See on this last point.^ If the party aliening be the plaintiff in the suit, and the alienation does not extend to his whole interest, he may also bring the alienee before the court by a bill, which, although in the nature of an original bill against the alienee, will be supplemental against the parties to the original suit ; and they will be necessary to the supplemental suit only so far as their interests may be affected by the alienation. Generally ^Sto. Eq. PL, 351. f^Sto. Eq, PI., 351. 214 MANUAL OF CHANCEKY PRACTICE. in cases of alienation pendente lite, the alienee is bound by the proceedings in the suit after the alienation and before lie becomes a party to it ; and the depositions taken during that time may be used by the other parties against him, as they might have been used against the party under whom he claims.' A bill in the nature of a supplemental bill may also be re- quired where relief of a different kind, or upon a different principle, is required, from that in the oi'iginal ' decree, al- though new interests, (such as may not be brought forward by a supplemental bill), have not arisen.^ 127. Frame and nature of an original bill in the nature of a supplemental bill. An original bill in the nature of a supplemental bill, must state the original bill, the proceedings upon it, the event, which has determined the interest of the party, by or against whom the former bill was exhibited, and the manner in which the property has vested, in the person, who has become entitled. It must show the ground upon which the court ought to grant the benefit of the former suit to or against the person, who has become so entitled; and it must pray the decree of the court, adapted to the case of the plaintiff" in the new bill. This bill, although partaking of the nature of a supple- mental bill, is not an addition to the original bill, but another original bill, which, in its consequences, may draw to itself the advantage of the proceedings on the former bill.' 128. Bills of revivor. "Where there is an abatement of a suit, which in the sense of courts of equity signifies only a present suspension of all proceedings in the suit from the want of proper parties capable of proceeding therein, a bill of revivor is applicable.^ In Tennessee, our statutory provisions allowing revivals to be made by motion, or lipon scire facias, have caused biUs of revivor to fall very much into disuse. ,'Sto. Eq. Pl.,351. ^Sto. Eq. PI. 3Si6. 'Sto. Eq. PI., 35H. *Sto. Eq. PI., .354. As to revivor of bill and decrees sua post 207-210^ 299. MANUAL OF CHAXCERY PRACTICE. 215 129. In what cases a revivor is necessary and proper. If the interest of a party dying so determines that it can no longer affect the suit, and no person becomes entitled there- upon to the same interest, (which happens in the case of the death of a tenant for life,) the suit does not so abate as to re- quire a revivor against the remaining parties. But if the party so dying is the only defendant, the suit will necessarily end, if there is no subject of litigation remaining.' If the whole interest of the decedent survives to anotlier party, so that no claim can be made against the representa- tives of the deceased, (as where a bill is filed against husband and wife in right of the wife, and the husband dies under circumstances which admit of no demand by or against his representatives), the proceedings do not abate.^ So, if a surviving party can sustain the suit, as in the case of several creditors, plaintiffs on behalf of themselves and other creditors, the proceedings do not abate.' So, where two joint tenants exhibit their bill and one dies, the suit does not abate. But it is otherwise as to tenants in common, as the interest of the decedent in such case does not go to the survivor .'' If, upon the death of the husband of a female plaintiff, suing in her right, the widow does not choose to proceed, the bill is considered as abated, and she is not liable for costs. But she may proceed in the cause without a revivor, if she chooses to do so, and if she takes any step in the cause after her husband's death, she makes herself liable to the costs from the beginning.-' If the plaintiff in a bill of interpleader dies after a decree, that the defendants interplead, no revivor is necessary .° In general, the court will not permit a suit to be revived to determine a question of costs merely.' iSto. Eq, PI., .S56. »Sto. Eq. PI., .S5r. . 'Sto. Eq. PI., 357. . Bomar, 9 Hum., 546; Code, 3800. "iPost, 183. n Greenl. Ev., 14. *1 Greenl. Ev., 15. H Greenl. Ev., 16. 232 MANUAL OF CHANCEEY PRACTICE. This is a presumption arising from the force of the statute. Other conckisive presumptions arise by force of the com- mon law of the land. Thus in cases of title acquired by pre- scription, by reason of an uninterrupted possession for a length of time beyond the memory of man, a conclusive pre- sumption arises.' Presumption and prescription must be resorted to for the peace, order and happiness of society. As against the State, where, by the principles of the common law, no time runs, twenty years were prescribed by the courts, as a proper time for the creation of this presumption in a case of grant for land, which is the strongest instance of presumption.^ So, a sane man is presumed to contemplate the probable consequences of his own acts.^ So, the deliberate publication of calumny, which the pub- lisher knows to be false or has no reason to believe is true, raises a conclusive presumption of malice. And the neglect of a party to appear and answer process duly served, (in a court of competent jurisdiction), is taken conclusively against him as a confession of the matter charged.^ But sec. 4371 of the Code excepts infants, persons of un- sound mind, and executors and administrators trom the oper- ation of this principle. Conclusive presumptions are also made in favor of judicial- proceedings. Thus, the records of a court of justice are presumed to have been correctly made, and a party to the record is pre- ■ sumed to have been interested in the suit. The presumption. will also be made, after twenty years, in favor of every judicial tribunal acting within its jurisdiction, and that all persons concerned had due notice of its proceed- ings.^ '1 Greenl. Ev., 17. ^Gwathney o. Stump, 2 Tenn., 31:^; Haynes v. Peck, Mar. & Yer., 218; Gil- christ V. McGhee, 9 Yer., 457; Brock v. Bnrohett, 2 Swan, 31; Snoddy v. Kreuteh, 3 Head, 306. n Greenl. Ev., 18. *1 Greenl. Ev., 18. n Greenl. Ev., 19. MANUAL OF CIIANCBBY PRACTICE. 233 The presumption in favor of the regularity of the registra- tion of deeds, etc., from the lapse of time after an imperfect registration are of this class — that is to the class of presump- tions called conclusive presumptions. Estoppels also fall under this head of presumption.^ Where a husband and wife have cohabited togetlier as such, and no impotency is proved, the issue is conclusively presumed to be legitimate.^ 148. Disputable presumptions of law. Disputable pre- sumptions of law furnish 'prima facie evidence only of the fact and throws the burden of proof on the opposite party. This class of presumptions is very numerous. Thus proof of possession of property is presumptive proof of ownership. The presumption of innocence is a strong presumption, not only in the trial of a criminal prosecution, but in civil cases. It is so strong that where the guilt can be established only by proving a negative, that negative must, in most cases, be proved by the party alleging the guilt; though the general rule of law devolves the burden of proof on the party hold- ing the affirmative.^ But this presumption may be overthrown by the miscon- duct of the party in suppressing or destroying evidence which he ought to produce, or to which the other party is entitled. The general rule is, Omnia presumentur contra spo- liatorum. This conduct is attributed to his supposed knowl- edge that the truth would have operated against him.'' Other presumptions of this class are founded upon the ex- periences of- human conduct in the course of trade. Thus, where a bill of exchange, or an order for the payment of money, or delivery of goods, is found in the hands of the drawee, or a promissory note is in possession of the maker, a legal presumption is raised that he has paid' the money due upon it or delivered the goods ordered, as the case may be.^ 'See Code, 2084. n Greenl. Bv., 28. '1 Greenl. Ev., 35. n Greenl. Ev., 31. •H Greenl. Ev., 38 ; Kineaid v. Kincaid, 8 Hum., 18. 234 MANUAL OF CHANCBRY PRACTICE. So a receipt for the last year's or quarter's rent is jprima fa- cia evidence of the payment of all the rent previously ac- crued. But the mere delivery of money by one to another, or of a bank check, or the transfer of stock, unexplained, is presumptive evidence of the payment of an antecedent, debt, and not of a loaji. The presumption upon the payment of an order or draft for money is that it was drawn upon funds of the drawer, in the hands of the drawee ; but in the ease of an order for the delivery of goods, it is otherwise, they being presumed to have been sold by the drawee to the drawer. "Where proprietors of adjoining lauds agree upon a dividing line, it is a presumed recognition of the true original line between their tracts.' The presumption of payment of bills single, mortgages, judgments, decrees, recognizances, &c., from the lapse of six- teen years, tails under this head. A jury may infer payment from the circumstances of the case connected with the lapse of a shorter period of time.^ The chancellor may do the same thing, for chancellors may draw the same inferences, and make the same presump- tions from facts, that a jury may do.' So, the presumption of payment arising from lapse of time may be rebutted by evidence of recognition of the debt, or by circumstances. But in the absence of all other proof, the lapse of sixteen years is plenary proof of payment.'' In modei"n times presumptions are justly favorites of our law, and either grants, deeds, records, agreements, titles, or anything else necessary to account for long possession shall be inferred.-' But presumption from length of possession, as well as the bar created by statutes of limitation, is founded on the prin- ciple of laches in the person who has the right, power and n Greenl. Ev., 38. 'Leiper v. Erwin, 5 Yer., 97. »3 Greenl. Ev., 272. *YarneU jj. Moore, 3 Cold., 173; Huskey v. Maple.s, 2 Cold., 25; Thompson v. Thompson, 2 Head, 405; Lyon v. Guild, 5 Heis., 175; Anderson «. Settle, 5 Sneed, 202; Atkinson v. Dance, 9 Yer., 424; Carter v. Wolfe, 1 Heis., 700. ^Houston V. Matthews, 1 Yer., 120. MANUAL OF CHANCERY PRACTICE, 235 capacity to sue. But the presumption that a person has parted with his right will not be made, if such person was unable to sue.^ So, presumptions frequently arise from the course of busi^ ness in a public office. Thus post marks on letters are prima facie evidence that the letters were in the post office at the time and place therein specified. And if a letter is Sent by post it is presumed that it reached its destination at the reg- lar time and was received by the person to whom it was ad- dressed, if living at the place and usually receiving his letters there.2 The return of a sheriff, while conclusively taken to be true between third persons, is taken prima facie as true even in his own favor. Until the contrary is proved, it is presumed that every man obeys the mandates of the law and performs all his official and social duties.^ The like presumption is drawn from the usual course of men's private offices and business, where the primary evi- dence of the fact is wanting.* When the seal of a corporation has been affixed to an in- strument it is presumed to have been done by the proper autherity.' Other presumptions are founded on the experienced continu- ance or permanency, of longer or shorter duration, in human affairs. "When, therefore, the existence of a person, a per- sonal relation, or a state of things is once established by proof, the law presumes that the person, relation, or state of things continues to exist as before, till the contrary is shown, or till a' different presumption is raised from the nature of the subject in question. Thus, when the issue is upon the life or death of a person who was once living the burden of proof lies on the party who asserts the death. But after the lapse of seven years, without intelligence concerning the person, the presumption of life ceases, and the burden of proof is on 'McCorry v. King; 3 Hum., 276. n Greenl. Ev., 40. n Greenl. Ev., 40. *1 Greenl. Ev., 40. "Darnell v. Dickens, 4 Yer., 9. 236 MANUAL OF CHANCERY PRACTICE. the other party. But where the presumption of life conflicts with innocence the latter is generally allowed to prevail. The presumption of death may be inferred from a lapse of time short of seven years if other circumstances concur.' A partnership, or other similar relation, once shown to ex- ist is presumed to continue in the absence of proof of its dissolution. So, the opinions of individuals, once entertained and ex- pressed, and the state of mind, once proved to exist, are pre- sumed to continue unchanged. Thus all the members of a christian community being presumed to entertain the com- mon faith, no man is supposed to disbelieve the existence and moral government of Grod, till it is shown from his own declarations. So, every man is presumed to be of sane mind, till the contrary is shown ; but if derangement or im- becility is proved to exist at any particular period, it is pre- sumed to continiie till disproved.^ 144. Presumptions of fact. Presumptions of fact are mere arguments of which the major premise is not a rule of law. They belong equally to any and every subject-matter. They depend on their own natural force and efficacy in gen- erating belief or conviction in the mind, as derived from those connections, which are shown by experience, irrespec- tive of any legal relations. They are not reduced to fixed rules like presumptions of law, but are derived wholly and directly from the circumstances of the particular cause, with- out the aid or control of any rules of law whatever. Such, for example, as the inference of guilt drawn from the dis- covery of a broken knife in the pocket of a party, the other part of the blade being found sticking in the window of a house which had been burglariously entered by means of such an instrument.' Wherever the entire cas6 is heai'd and decided by the judge or chancellor without a jury, all inferences which jurors "1 Greenl. Ev., 41. n Greenl. Ev., 42. n Greenl. Ev., 44. MANUAL OF CHANCEUY PRACTICE. 237 might draw, and all things which they may lawfully presume, may be drawn and presumed by the court.^ 145. Admissions of parties in their pleadings, and agreements generally. Admissions by the parties may be either in the bill, in the answer, or in some special agree- ment, made in the cause for the purpose of dispensing with other proof .- 146. Admissions in the bill. As a bill is ordinarily drawn by the solicitor upon the general instructions given by his client, and is signed by the solicitor only, the general rule is that it cannot be used in another suit against the party filing it, as evidence of the truth of the statements contained in it, unless it is sworn to. The statements of the bill, unless the bill is sworn to, are regarded merely as- the statements or suggestions of counsel, made to elicit dis- closures in the answer of the defendant." But if it is sworn to, it may be used .against the party swearing to it, as a solemn admission of the facts within his knowledge.^ And in the trial of the cause in chancery the statements of the bill, although the bill is not sworn to or-signed by the complainant, are evidence, for the defendant, of any of the matters therein directly and positively averred. For, whether the allegation be true or not, they are in the nature of judi- cial admissions for the purposes of that particular trial. But when the plaintiff has incorrectly stated circumstances with which he may be presumed to be unacquainted, -and the de- fendant does not rely upon them in his answer, the plaintiff ■will not be held bourrd" by the statement.'' 147. Admissions in the answer. The answer of the de- fendant, being a deliberate statement on oath, it is evidence against him of all matters it contains ; and is extremely '3 Gi'eenl. Ev., 272. In regard to presumptions in favor of the regularity of judicial sales, in certain cases, see Code, 3790a. '3 Greeul. Ev., 373. ^3 Greenl. 274; Jones v. Davidson, 2 Sneed, 453. *Same authorities. 53 Greenl. Ev., 275. 238 MANUAL OF CHANCEllY PRACTICE. strong, though not so entirely conclusive as to preclude him from showing that it was made under an innocent mistake.' But evasions will not be taken as confessions of a charge in the bill, even in the suit in which the ans.wer is filed.^ The answer of an infant by his guardian cannot be read as evidence against j;he infant. The guardian cannot make an admission that will bind the infant, even as a judicial admission. But it may be read against the guardian. So, it seems that an admission in the joint answer of husband and wife, although binding on the husband, is not to be taken as an admission against the wife if it relates to her inheritance. But if it relates merely to her personalty the rule is different. And if an infant comes of age during the pendency of the suit, and does not, within a reasonable time, put in a new answer, the answer put in by him by guardian may then be used as evidence against him.' The answers of -idiots and persons of permanently weak in- tellects, and those who by reason of age or infirmity are reduced to second infancy, put in by their guardians are evi- dence against them, for they cannot become capable of answer- ing for themsSlves.* An answer may be read, without the bill, in another suit, as evidence against the party who filed it, of any new facts which it states by way of defense, which are not responsive to the bill. In such case the bill is not necessary to a complete understanding of the answer in regard, to such new matter.'"' It may here be remarked that the answer of a party cannot be read in his own favor in another suit, if the evidence is objected to, although he may read the bill.'' But if one party reads a part of the record, the other party can read the balance of it. Thus, if one party reads the bill, the other party may read the answer ; for parties are not per- mitted to garble records.' 13 Greenl. Bv., 277. ^Phillips V. Overton, 4 Hay., 29.1. •*3 Greenl. Ev., 278. *3 Greenl. Bv., 280. HVallen v. Huff, 5 Hum., 91. *Jones V. Davidson, 2 Sneed, 447. 'Duncan 0. Gibbs, 1 Yer., 261. MANUAL OF CHANCERY PKACTICB. 239 148. Admissions by agreement of the parties. Admis- sions made by express agreement ot the parties, in order to dispense with other proof, ought ordinarily to be in writing, and signed by eacli party or his solicitor ; or reduced to the form of an order by consent. But it seems that it is not in- dispensible that the agreement be written, but that a verbal agreement, if satisfactorily proved, will be sufficient.^ Admissions of this sort, however, are not to be extended by implication, beyond what is expressed in the agreement. The courts encourage the practice of admissions tending to the saving of time and expense, and to promote the ends of justice, but they will not sanction any agreement for an ad- mission, by which any of the known principle, of law are evaded. Thus, where a husband was willing that his wife should be examined in an action against him, it was not per- mitted." Admissions by infants, and admissions evasive of the stamp laws, have been disallowed on the same geperal principle.^ 149. When documents in the possession of a party will be ordered to be produced. It is the constant practice of courts of chancery, before the hearing of a cause, to allow the plaintiff to move for the production of documents rele- vant to the matters in question which have been admitted by the defendant's answer to be in his possession and power.' As a matter of right, the plaintiff is not entitled to a dis- covery and production of any documents or papers called for by the bill, except those which appertain to his own case, or the title made by his bill. The defendant is not compelled to discover and produce documents and papers which wholly and solely respect his own title or defense.^ But an exception to this limitation exists, when the de- fendant in stating his own title, states a document shortly or partially, and for the sake of greater certainty refers to the i.'i Greenl. Ev., 292. '3 Greenl. Ev., 294. ^3 Greenl. Ev., 294. «Danl. Ch. Pr., 2038. "Sto. Eq. PI., 858. 240 MANUAL OF CHANCERY PRACTICE. document, to show that its effect has been accurately stated. The court will order its production as part of the answer.' If the papers or documents called for by the bill appertain to the plaintiff' 's case, and are in the plaintiff''s possession or under his control, the defendant will, upon motion, be re- quired in most cases to produce and deposit them with the clerk and master; but, in special cases, the court will order that they may be produced at the defendant's place of busi- ness for the inspection of the plaintiff". And where books are produced, the defendant will have leave to seal up such parts of them, as according to his affidavit previously made and filed, do not relate to the matters in question.^ The discovery and production of documents and papers by the defendant may be successfully resisted, by showing that they are privileged, either by professional confidence, or by their exclusively private character ; or that the discovery and production would tend to involve the defendant in a criminal charge; or subject him to a penalty or punishment; or to ecclesiastical censures ; or to a forfeiture of his estate.' If the documents are in the joint possession of the defend- ant and others, not parties to the suit, but equally entitled with him to their custody, the defendant will not be required to produce them, but will be required to inspect them and answer as to their contents.'' To entitle the plaintiff to the production of documents, they must be described with reasonable certainty, either in the answer or in a schedule annexed to it, so as to be considered by the reference as incorporated in the answer, and the pos- session of them by the defendant must be admitted.^ If a demurrer to the whole bill be put in, as such a state of the record is itself an admission of every fact properly pleaded in the bill, the plaintiff has no right to any discov- ery, and consequently no motion for the production of docu- ments can be made. So, also, if the defendant pleads a pure affirmative plea, that is, if he admits the whole case made by '3 Greenl. Ev., 298. '3 Greenl. Ev., 301. '3 Greenl. Ev., 300. *3 Greenl. Ev., 296. '3 Greenl. Ev., 295, 29Y. MANUAL OF CHANCERY PRACTICE. .241 the bill, but states some fact, not in any manner denied by the bill, as a defense to tke whole case, the plaintiff has no right to a discovery.' As a general rule, if a defendant desires the discovery and production of documents in the possession of the plaintiff', he must file a cross bill, unless the plaintiff has in his bill offered to produce them when required, or so referred to them as to incorporate them in the bill. But, although ordinarily a plaintiff cannot be compelled to give the defendant; an in- spection of. his books and documents, to enable him to make 'his defense ; yet, if the plaintiff" on request, refuses to permit such inspection, he will not be allowed to except to the an- swer for insufficiency in not stating their contents.^ In cases of partnership, however, where the controversy is between the partners or their representatives, the party bav- in possession of the. partnership books and papers will be ordered, on motion, and at any stage of the suit, to place them in the hands of an officer of the court, for the inspec- tion of the other pai-ty, and that he may take copies if nec- essai'y.^ And if documents are impeached by either party as false and fraudulent they will be ordered to be brought into court for inspection.* 150. Production of documents in the possession of per- sons not parties to the suit. If documents, the production of which is desired, are in the possession of one who is not a party to the suit, he may be compelled by subpoena duces tecum, to produce them; and if the subpoena is not obeyed, he will be punished for contempt, on proof by affidavit that the documents are in his custody.'* 151. Proof of documents produced on ndtice. At law the party calling for the production of documents and offer- ing them in evidence, must ordinarily prove their execution, 'i)anl. Ch. Pr., 2051. ^i Greenl. Ev., 302, 303. 33 Greenl. Ev., 303. *3 Greenl. Ev., 303. 53 Greenl. Ev., 305. 16 .242 MA^rUAL OF CHANCERY PRACTICE (uialesS it be instruments which prove themselves, see sec. 153, post,) notwithstanding they come out of the custody of the adverse party, and are produced at the trial. But an ex- ception to this rule is allowed, where the party producing the instrument is himself' a party to it, claiming under it an abiding interest in the siibject; or where the instrument was taken by the party producing it in the course of his official duty as a public officer, as for example, a bail bond, taken by the sheriff, and produced by him on notice.' In equity this rule holds good to its full extent, as to docu- ments in the hands of a plaintiff ; but it seems that, as to documents in the hands of a defendant, the rule applies only to those ot which the plaintiff is entitled to call for inspec- tion, but which the defendant has insisted on some privilege lb withhold.^ 152. Effect of an order to produce. It is said that "the effect of an order for the production of documents is only to giv3 the party obtaining the order the right to inspect and take copies of them. It does not make them evidence in the cause, except in those cases in which the mere circumstance of their coming out of the possession of the other party would, in itself, render them admissible."' The practice in Tennessee is different. Our practice is not to inspect and take copies, but to order the documents to be produced and filed with the. clerk and master, and to read them as evidence at the hearing of the cause. 153. Proof of exhibits and other documents generally. Exhibits to bills or answers may be proven by affidavits filed with the exhibits in the clerk's office at any time before hearing, or by witnesses at the hearing.'' The depositions of subscribing witnesses to deeds or other ■ writings shall be taken with such instruments annexed thereto.'^ '3 Greenl. Ev., 306. 23 Greenl. Ev., 306. »Dan]. Ch. Pr., 2068; 3 Greenl. Ev., 307. '.Code, 4458. As to exceptions to reading exhibits see Ingram v. Smith, 1 Head, 411. , sCode, 4459. Manual of chancery pbactic&. 243 "Written instruments, the execution of which is not ad- mitted, and which do not prove themselves, must be proved by the same evidence in equity as at law.^- But by the Code there are certain instruments which need not be proved unless denied under oath. The provisions of these sections are as follows : '^Every written contract, instrument or signature purport- ing to be executed by the party sought to be charged, his partner, agent, or attorney in fact, and constituting the foundation of an action, is conclusive evidence against such party, unless the execution thereof is denied under oath. " If the party be dead, the personal representative may make the denial under oath, ' according to the best of his knowledge, information, and belief.' "The execution or assignment of instruments offered in evidence by the defendant, when allowed by law, is equally conclusive as when introduced by the plaintiffs, unless denied under oath."^ 154. Legislative proceedings. Journals. The proceed- ings of the legislature of this or any other State of the Union, or of the United States, or of any foreign govern- ment, are proved by the journals of those bodies respectively, or of either branch thereof, either by copies officially certified by the officer having custody of the originals, or by a copy purporting to have been printed by the order of such legis- lature, or either branch thereof.-' 155. Statutes, resolutions and orders. In regard to pri- vate statutes, resolutions, etc., the only mode of proof known to the common law is either by means of a copy, proved on oath to have been examined by the roll itself, or by an exem- plification under the great seal.'' But section 3800 ot the Code provides that printed copies of the statute laws of this State or any other of the United States, or of congress, or of any foreign government, pur- porting or proved to have been published under the authority 'SGreenl. Bv.-, 308. 'Code, 3777-3779, and cases cited under first section. 'Code, .S799. ' •- *1 Greenl. Ev., 480. 244 MANUAL OF CHANCERY PRACTICE. thereof, or proved to be commonly admitted as evidence of the existing laws in the courts of such State or government, shall be admitted in the courts of this State as presumptive evidence of such laws. By sec. 3802 of the Code, a copy of a written law, or other public writing of any State or government, authenticated by the great seal of such State or government, is also evidence of such law or writing. (This would be so on common law principles). By see. 3804, private acts of the legislature of this or any other State may be given in evidence without pleading them specially. And sec. 3801 provides that it shall not be necessary, in a case carried from an inferior to a superior court, to have the statutes of a State" read as evidence in the inferior court transcribed into the record except where it is directed to be done by the inferior court; but the superior court may take judicial notice of such laws and statutes and decide upon them accordingly.' Banks are created upon public considerations and to sub- sei've public ends, and not alone for private purposes. And although the corporation may in such case be correctly de- nominated a private corporation, yet the law creating it is a public law, and the charter need not therefore be given in evidence.^ But the charter of a town is a private law and must be proved.' The existence of a foreign law or custom is to be proved • as a matter of fact by evidence to show what the law or cus- ' torn is. The written law of a foreign country must be proved by documents properly authenticated ; but the un- written law may be proved by tlie testimony of persons fa- miliar with those laws.* 156. Executive acts. Acts of the executive of the United States, or of this or any other State of the Union, or of a 'Code, 3801, ^Williams v. Union Bank, 2 Hum., ,340. sTilford V. Woodbury, 1 Hum., 190. *2 Stark Ev., 459 and notes. MANUAL^ OF CHANCERY PRACTICE. ■ 245- foreign goveramentj are proved by the records of the State department of the respective governments, or by public doc- uments purporting to have been printed by order of the leg- islature of those governments, or either branch thereof.^ 157. Documents in offices of heads of departments. The certificate of the head of any department or bureau of the general government is a sufficient authentication of any paper or document appertaining or belonging to his office.^ 158. Copies of printed books in the State library. A copy of any executive act, legislative proceedings, public or private law, of any State of the Union, or of the general government, taken from of the any printed books in the library of the State, made evidence by the Code, and certified by the Secretary of State to. be a correct copy from such book, will be evidence if the book itself cannot be produced.' 159. Judicial records. 1. Of this State. A judicial record of this State is proved by the .production of the original, or , by a copy thereof certified by the clerk or the person having , the legal custody thereof, authenticated by his seal of office, < if he have one.* 2. Of sister States and the United States. A judicial record of a sister State, or of any of the Federal Courts of the United States, may be proved by a copy there- of, attested by the clerk, under his seal of office, if he have one, together with the certificate of the judge, chief justice or presidingmagistrate, that the attestation is in due form of law.'* See to same effect Stat. U. S., May 26, 1790, (p. 66 of the Code,) passed in pursuance of article IV.* section 1, of the United States Constitution, winch provides that " full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State ; and that the congress may, by general laws, prescribe the manner 'Code, 3798, 'Code, 3803; Reeves u. State, 1 Cold., 96. 'Code, 3805. *Code, 3794; 1 Greenl. Ev. 91 ; Nichol v. Ridley, 5 Yer., 63. *Code, 3795, and notes. 246 MAKUAL OF CHANCERY PRACTICE; in which such acts, records and .proceedings shall be proved, and the effect thereof." This TJ. S. statute provides that records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them, in, every court within the United States,, as they have by law or usage in the courts of the States from whence the records are taken. 3. Of foreign countries. Copies of the records and proceedings in the courts of a foreign country may be admitted in evidence, upon being authenticated by the officialattestation of the clerk or officer in whose custody such records are legally kept; and the cer- tificate of one of the judges or magistrates of such court, that the person so attesting is the clerk or officer legally in- trusted with the custody of such records, and that the signa- ture to his attestation is genuine ; and the official certificate of the officer who has the custody of the great seal of the government, under whose authority the court is held, at- tested by said seal, stating. that such, court is duly consti- tuted and has jurisdiction of the subject of the record, and that the seal of the court is genuine.' The usual modes of authenticating foreign judgtnents are either by an exemplification of a copy under the great seal of the government, or by a copy proved to be a true copy by a witness who has compared it with the original ; Or, by the certificate of an officer, properly authorized by law to give a copy, which certificate mtist itself also be duly authenticated. If the copy is certified under the hand of the judge of the court, his handwriting must be proved. If the court has a seal, it ought to, be affixed' to the copy and proved, even- though it be worn so smooth as to make no distinct impres- sion. And if it is clearly proved that the court has no seal, it must be shown to possess some other requisites to entitle it to credit. If the copy is merely certified by an officer of the court, 'without other proof it is inadmissablfe.^ 160. Proceedings before justices of the peace. The official certificate of a justice of the peace of this State, or 'Code, 3797. . '1 Green). Ev., 514. MANUAL OF CHANCERY PRACTICr, 247 of any of the United States, to aliy judgment and prelitjii- nary proceeding before liim, with the oflB.cial certificate ot the clerk of any court of record within the county in which such justice resides, stating that he is an acting justice of the peace of that county, and that t]ie signature to his cer- tificate is genuine,, is evidence of such proceeding and judg- ment.^ Such proceedings might also be proved by a sworn copy, for the foregoing provision does not exclude other modes of proof. 161. Office papers and records. Duly certified copies of all records and entries, official bonds, or other papers belong- ing to any public office, or by authority of law filed to be kept therein, are evidence in all cases.^ The certificate of a public officer that he has made diligent and ineffectual search for a paper in his office is of the same efficacy in all cases £|,s if such officer had personally appeared and sworn to such facts.^ He who has not and is not entitled to the possession of an instrument cannot be required to produce it. Nor can he produce a copy that can be read, unless some officer is au- thorized to give and authenticate copies. In such case the contents of such instrument may be proved by parol. Thus, in an action against a recruiting officer for false imprison- ment, the defendant was allowed to prove by parol the enlist- ment of the plaintiff, although the enlistment is by law re- quired to be in writing, in duplicate, one copy of which is sent to the Adjutant General's and the other to the Treasur- er's office, for there is no provision by law for giving copies of the enlistment.* All records and exemplifications of office books which are or may be kept in any public office of any State, not apper- taining to a court, shall be proved or admitted in any other State by the attestation of the keeper of said records or books and the seal of his office thereto annexed, if there be a . 'Code,, 3796. ^Code, 3791; Goodlce v. Wilson, 2 Tenn., 59; Nichols v. Ridley, 5 Yer., 63. , 'Gode,,3r93. . , ■ ,- ^Denton v. Hill, 4 Hay., 73. 248 MA^rUAL OF CHANCERY PRACTICE. seal, together witli a certificate of the presiding justice of the court of the county or district, as the case may he, in which such office is or may be. kept, or of the governor, the secre- tary of State, the chancellor or the keeper of the great seal of the State, that the said attestation is in due form, and by the proper officer; and the said certificate, if given by the presiding justice of a court, shall be further authenticated by the clerk or prothonotary of the said court, who shall cer- tify under his hand and the .seal of his office, that the said presiding justice is duly commissioned and qualified ; or, if the said certificate be given by the governor, the secretary of State, the chancellor or keeper of the great seal, it shall be under the great seal of the State in which said certificate is made. And the said records and exemplifications, authenti- cated as aforesaid, shall have such faith and credit given to them in every court and office within the United States as they have by law or usage in the courts or offices of the States from which the same are or shall be taken.' 162. Registered writings. Instruments proved, or ac- knowledged and registered, as required by our statutes, are received as evidence, without any further proof of their exe- cution, in any of the judicial tribunals of the State, subject, nevertheless, to be impeached and proved to be forgeries or to be otherwise inoperative, if the fact be so.^ But this provision does not exclude the right of a party to prove, in the common law mode, the execution of an instrument which may be registered. (In regard to the effect of registration, see Code, 2071- 2075. And in regard to defective probate, certificate, or reg- istration, see Code, 2080-2086. See act of 1860, ch. 91, in regard to deeds purporting to have been made by attorneys in fact.) To let in a copy of a registered instrument as evidence, there must ordinarily be an affidavit by the party offierin'g it, or his agent, showing that the original is lost, or mislaid, or so out of the power and possession of the party that he can- not produce it. 'U. S. Statute, March 27, 1804. See old Code of Tennessee, page G7. 'Code, 2071. MANUAL OF CHANCERY PKApTJ^CE. 249 But the law presumes that all dijly certified copies of pa- pers, required to be registered, represent the originals truly, as they are registered and certified by sworn ofiicers ; and there is, therefore, not the same necessity for strictness in re- lation to such copies that there is respecting the admission of sworn copies as secondary evidence.' Where it is shown to the court that the party claims under a deed with general warranty, the law presumes the title papers to be in the hands of the warrantor, and the wai'rantee is not required to produce them, but may read certified cop- ies in evidence.- So, a purchaser at sheriff's sale is not presumed to have the original grant or other original title papers, except- his deed from the sheriff". He may, therefore, read certified copies of them.^ In all cases where a party is not in law presumed to have the custody of original registered instrument, a copy from the register's office is deemed sufficient.^ Copies of registered deeds have been admitted without accounting for the absence of the originals, in cases where the warrantor of the title was not sued, and was supposed to keep his title papers, that he might be ready to make defense with them when notified by the warrantee of the suit against him. But when the warrantor and warrantee are both sued in the same action, the original deed to the warrantor must be produced, or other grounds than the mere fact of its being supposed to be in the possession of the warrantor must be laid to authorize the reading of a copy as evidence.-' 162ffl. Recitals in a deed. As between the bargainor and persons taking by conveyance under him, the recital in his deed of the payment of the consideration is eyidence against him. It is his receipt for the money. In some cases, and perhaps generally, a greater operation and effect would ba 'Smith V. Martin, 2 Tenn., 208. See Wallter v. Walker, 6 Cold., 571. ''Cooke V. Hunter, 2 Tenn., 113; King v. Hall, 1 Tenn., 209. =Tillery v. Simmons, 1 Tenn., 209, *Lannum w.. Brooks, 4 Hay., 121. ^Anderson v. Walker, M. & Yer., 201. 250 MANUAL OF CHANCERY PRACTICB.' given to it than to a receipt. It' would be an estoppel that could not be averred against by him.' 1626. A receipt as evidence. A receipt, which is a mere acknowledgment of. payment or deliveiy, is only prima facie evidence of the fact, and may be contradicted or explained by oral evidence.- But where an account has been deliberately settled and closed by a receipt, it should only be corrected on clear, strong and irrefragible proof.^ A receipt for the last year's or quarter's rent is prima facie evidence of the payment of all rents previously accrued. This is a presumption founded upon the evidence of human conduct in the course of trade.* 163. Settlements of guardians and personal representa- tives. The settlements of personal representatives and guar- dians, made in the eounty court in pursuance of law, are taken as prima facie correct.'' 164. Certificate of notary public. The attestations, protestations, and other instruments of publication, made or done by a notary public, under his seal, shall be received in evidence.' ' , The certificate of a notary public in or on his protest, that he has given the parties to negotiable paper notice of the dishonor, is prima facie evidence of the facts stated in the certificate ; and in like manner, entries in his books to the same eflFect, are prima facie evidence, in case of his death, of the faces therein stated. If the notary be dead, not only an entry in his book, but a sworn copy thereof is prima facie evidence of notice.' 165. Corporation books. In actions between corporations and their stockholders, a copy of the proceedings of the ^Bayliss v. Williams., 6 Cold., 444. ' 2Kirlq)atriek v. Smi-th, 10 Hum., 191. ' 'Jones V. Ward, 10 Yer., 166. n Greenl. Ev., 38. 5 Code, 3786; ante, 87. «Code, 1799. 'Code, 3787, 1800, 1801; Gollady v. Bank, 2 Head, '57; Caruthers v. Harbert, 5 Cold., 362. MANUAL OF CHANCERY PRACTICE. 251 board of directors, and the subscription and other books of the company, certified by the secretary under the corporate seal, shall be evidence.' 166. Accounts from another State or county. An ac- count on which action is brought j coming from another county or State, with the affidavit of the plaintiff* to the cor- rectness of the account, and the certificate of a State com- missioner annexed thereto, or the certificate of a justice with the clerk's certificate that such justice is an acting justice within his county, is conclusive evidence against the party sought to be charged, unless he shall, on oath, deny the ac- count.^ By act of 1866-7, ch. 30, sec. 3, the affidavit may be made before a notary public if the account comes from another county in this State, being ce,rtified by, the notary under his official seal.^ 167. Book accounts. The plaintiff"'s book, or a copy from it, unless the defendant gives him notice at the time of join- ing issue that the original must be produced, is evidence for him to the amount of seventy-five dollars for goods sold and delivered, or work done, upon his making oath: 1. That it is a book account. 2. That he has no means of- proving it but by his book. 3. That the book contains a true account of all the dealings, or the last settlement of accounts between the parties, .4. That it is a true account. 5. That he has' given the defendant all just credits. An executor or administrator may adduce the book of the deceased on swearing: 1. That he found it as produced. 2. That he believes it to be correct. . 8., That he knovs^s of no other credits to be given. 4. That he knows of no wit- ness by whom the account can be pro.ved.'' 168. Time of filing documentary evidence. By the old 15th chanceiy rule, all deeds, transcripts of records, or other written documents, intended to be offered as testimony on 'Code, 3788. 'Code, 3780, and notes. Showing the rei3,E0n, ijoBey and construction of this law. ' ' • • ; . . . ^Code, 18016. *Code, 3781 and 3785 inclusive, and copious notes. 252 MANUAL OF CHANCERY PRACTICE. the hearing of the cause by either party, shall b3 filed with the clerk before the cause shall bs heard, aud if filed during the term at which the cause is heard, notice thereof at least one day shall be given to the adverse counsel.' 169. Inspection in aid of proof. In courts of equity the judge will often order the production of the subject in con- troversy for his own better satisfaction as to the truth. Thus, he will order an original document or book to be produced to be satisfied of its genuineness and integrity, or its age and precise state and character and the like. And where the subject is immovable, the court will order the party in possession to permit an inspection by witnesse?.^ 170. When necessary to have order and commission to take depositions. Formerly depositions could not be taken till an order was made by the court or clerk and master that a commission should issue to take them, and a commission accordingly issued. Such orders may still be made, but are entirely unneces- sary in ordinary cases. Depositions may be taken under our present law upon mere. notice when the case is at issue, and various officers are authorized to act as commissioners in taking them without the necessity of any commission issuing to authorize them to do so. Sometimes, however, cases arise in which it is necessary to have an order to take a deposition ; as, for instance, where it is desired to take it before the cause is at issue, or to re- take the deposition of a witness whose deposition has already been taken in the same cause by the same party. It may also be desirable sometimes to have a commission issued to authorize some person to act as commissioner who is not authorized to do so by virtue of any office he may 'It is presumed that this rule has no application to records of the court where the suit is pending. If at the hearing of the cause a party desires to in- troduce as evidence the records of another cause in the same court, it is not necessary to file a transcript. He may re^d the original record. And it is pre- sumed he is not bound to give the opposite party notice of his intention to read said original record. ^3 Greenl. Ev., 328. MANUAL OF CHANCERY PRACTICE. 253 hold, especially where the deposition is to be taken in an- other State. 171. When depositions may betaken. 1. Before suit is brought. The deposition of a notary public may be taken and perpetuated (without petition) as to any of his official transactions upon giving to the party adversely interested in the question ten days' notice, if a resident in the State, and forty days' notice, either actual or by publication, if anon- resident.^ So the deposition of any person may be taken and perpet- uated, to be used in pending or expected litigation, by pre- senting a petition in writing to a judge of the Circuit or Chancery Court, setting forth the reasons for the application, the subject matter of controversy, the names of the parties interested and the names of the witnesses, and praying that their depositions be taken and perpetuated. The judge thereupon makes an order appointing a time and place for the opposite party to appear, and show cause why the prayer of the petition should not be granted, pre- scribing reasonable notice to the party. The notice may be given to a non-resident by publication in such newspapers and for such length of time or in such other manner as the judge may direct. If, after notice, no sufficient cause is shown to the contrary, the deposition of the witness is taken by the judge or some other person by him appointed, and at such time and place as he may prescribe. The deposition, when taken, is to be sealed up and directed to the register of ?uch county as the judge may appoint ; and if he appoints none, to the register of the county in which the petitioner or some one of the petitioners resides; and if none of the peti- tioners reside in the State, to the register of the county in which some one of the opposite party resides. The register is to register the whole proceedings and fur- nish copies thereof when required upon the payment of the legal fees therefor ; and copies of the depositions, duly cer- tified' by such register, are to be received in evidence at any time thereafter in any suit between the parties mei;tioned in "Code, 3889, 1802. See Worley v. Waldron, 3 Sneed, 548. 254 MANUAL OF. CHANCERY PRACTICE. the petition, or their privies in interest, upon proof of the death, insanity, or departure to some place unknown of th^ witness at the time of trial.' 2, After suit is brought but before issue. When witnesses are aged and infirm, or are going out of the cliancery division, or do not reside in . such division, the court, or clerk and niaster, upon affidavit of the facts, may, at any time after the bill iS filad, either before or after a cause is at issue, authorize the depositions of the witnesses to be taken de bene esse, on such notice a?' may be thought just ; and depositions thus taken may be read as if taken regu- larly, vmless retaken by order of the court, upon application ■of the opposite party.^ And it seems that when there is only one witness to a ma- terial fact, his deposition may b3 taken upon a mere notice at any time after the suit is brought in chancery, the same as it may be done at law.^ 3. After issue joined. By sec. 4457 of the Code, the complainant may take testi- mony at a,uj time after answer filed, or after a decree pro confesso, and the defendant at any time after filing a sufficient answer. Section 4406 provides that psnding an appeal on excep- tions to an answer, the parties may proceed to take proof, and the testimony taken before the sufficiency of the answer is determined, may be read on the trial, and that any addi- tional testimony may be taken, rendered necessary by the change of pleadings under the decision of the exceptions. 'Code, 3876 to 3888 inclusive. "Code, 4463. •'Code, 3836, 3838. By section 3836ff. of the Code, if either party desires to take the deposition of a female, he is required to take the same, if so requested by the witness before the nearest magistrate, or person authorized to take the deposition. A deposition taken in a cause to which an infant is party, before the cause, is at issue, and which does not appear to have been taken de bene esse, and taken by collusion with the next friend of the infant, will be suppressed. Gaugh u. Henderson, 2 Head, 628. . . MANUAL OF CHANCERY PKACTICE. 255 The Code is silent , as to when depositions may he taken when the defendant defends by plea. But according to the well settled rules of chancei\y practice the cause would he ready for proof as soon as the plaintiff had taken issue on the plea. Section 4393 of the Code, provides that if the plaiutitf conceives any plea of demurrer to be naught, either for the matter or manner of it, he may set it down with the clerk to he argued; or if he thinks the plea good but not true, he may take issue on it, and proceed to trial. By the old rules of practice depositions coald not be taken after publication passed, unless the cause was remanded to the rules for fui'ther proof. But under our present practice there is no such thing as passing publication, but the clerk and master opens the dep- ositions on filing.'^ And by the act of 1860, ch. 106, sec. 1, it is provided that when any cause in the chancery court may be continued by either party to the suit, or by order of the court, it shall be open for proof, or the taking of depositions generally, with- out the necessity of an order of the court remanding it to the rules: Provided, that four months shall be allowed to each party for taking proof in chief, and two months for re- butting proof. 172. Depositions of parties to the suit. In all chancery causes, and proceedings in the nature of chancery causes, the depositions of parties may be taken by the opposite side, or a co-party on the same side when the latter is entitled to such evidence, uj)on notice simply as in the case of other wit- nesses.^ It the party to a suit whose testimony is desired resides beyond the limits of the State, the person wishing his evi- dence may file interrogatories with the clerk and master, which shall be answered before such party can be allowed to proceed to hearing. 'Code, 3870. 'Code, 3890. But see now Code, SSlSff, et seq. ; Lancaster e. Arendall, 2 Hels., 434. 253 MANUAL OF CHANCERY PRACTICE. "Should' such person delay to answer in a reasonable time, to be adjudged of by the court or clerk, a pereinptory ordar may be made by the clerk or court, reqiiiring the inter- rogatories to be answered on a given day, and on failure, it the delinquent is the complainant, the bill may be dismissed, notice of which shall be given' by the clerk and master to the party or his solicitor; or the answer rriay be taken off the file and the bill taken for confessed, if the defendant be in default."^ 173. Taking depositions upon notice and by consent. 1. Necessity of notice. The only object of giving the opposite party notice of the time and place of taking depositions, is to give him a chance to be present and cross-examine the witnesses'. He may waive notice, and it is an implied waiver if he at- tend and cross-examine.^ But if notice is not waived, it must be given, (except where the deposition is taken upon interrogatories,) whether there be an order for taking the deposition or whether it be •taken merely upon notice. 2. Length of notice. If the deposition is taken in the county in which the suit is pending, the notice is to be served five days before it is taken. If taken out of the county, if not over fifty miles, five days' notice is required; from fifty to one hundred miles, ten days; over one hundred and not exceeding two hundred and fifty miles, fifteen days ; if over two hundred and fifty and not exceeding five hundred miles, twenty days. If the , deposition is taken west of the Rocky Mountains in the United States, such tinie not over forty days as the court or clerk and master shall order, is required; and in foreign countries, such time as the court or clerk and master shall order.^ The court or the clerk and master may, upon good cause shown, restrict or enlarge the periods above set forth.* 'Code, 4463, 4464. ^Bedford v. Ingram-, 5 Hay., 1J5, 'Code, S851. *CoJe. 4460. MANUAL OF CHANCEKY PKACTICE. 257 3. Form and requisites of notice. The notice should specify the names of the witnesses to be examined, the day on which their depositions are to be taketa-', the place at which they are to be taken (specifying the par- ticular house at which they are to be taken), and the suit in which they are to be used as evidence. The. notice may be in the following form: [ Im John Smith ■6s. \ In the chancery court, at Knoxville, Tennessee. Thomas Greene. Mr. Thomas Greene:' On the 1st day of January, 1870, at the courthouse in Knoxville, I will take the depositions of William Brown and Joseph Wilson, to be used as evidence in the above named case. John Smith. Dec. 25th, 1869. 4. Service and proof of the notice. Proof of notice to take depositions may be made, either before the clerk and master, or before the commissioner tak- ing the deposition, by the affidavit of a competent witness or the return of a proper officer.^ The notice is served like any other notice, by delivering a copy of it to the party. Any private person may serve the notice ; but it is usually best to deliver it to the sheriff or some of his deputies, or some constable of the county in which it is to be served, as the officer's return saves the trouble of other proof of service. If it is to be served on the sheriff", it would be proper to de- liver it to the coroner or some constable to serve. The return of the officer is sufficient evidence of the fact of service.^ In the case of Bewley v. Cummings, 3 Cold., 232, it was held that,. " Executed this writ on the 18th of June, 1859," though informal, was sufficient evidence of the service of the notice. M3 Old Ch. Rule. 'Code, 3854 ; 2 Ch. Rule, sec. 2 17 258 MANUAL OF CHANCERY PRACTICE. If the notice be left at the residence of the party to be no- tified, and he be in the house and conceal himself, or if he be jh the neighborhood, that will be sufficient. But not if he is in a distant part of the State.' , 5. U]pon whom to he served. In all cases in which more than one person is plaintiff or defendant, the court or clerk may determine whether' notice shall be given to each person, and if noc, to whom notice shall be given; a memorandum of the order being kept among the papers.^ 6. Notice in case of non-resident parties. If either party resides out of the State, notice may be served on his agent or attorney.^ Service of notice of time and place of taking depositions upon the counsel of non-resident parties, shall have the same effect as if served on such parties themselves.* In cases where judgment jsro confesso has been taken against a non-resident defendant, the complainant may enter the no- tice of the time 'and place of taking depositions on the rule docket, and it will be sufficient. Or he may take the deposi- tions upon interrogatories filed ten days beforehand.'' 174. Taking depositions upon interrogatories. When the witnesses reside out of the State, or over pne hundred and fifty miles from the place of trial, either party may take dep- 'ositions by filing interrogatories with the clerk, giving the ■opposite party notice thereof, who shall have ten days there- after to file cross interrogatories, to which rebuttmg interro- gatories may then be put ; at any time after which the depo- sitions may be taken upon a cei'tified copy of the interroga- tories, t© be issued by the clerk." Wilson V. Dcake, 5 Hay., 108. ^Gode, 3850. For oonjtruotion of thU, statute, S3S Tho3p30u v. Bank, 3 Cold., 46. »2 Ch. Rule, sec. 3. *Code, 38540. sCode, 4374. "Code, 3855. MANUAL 01* CHANCERY PRACTICE; 2bQ If the opposite party is a noh-residelit, or if judgment by- default or pro eonfesso, has been taken for the want of appear- ance and defense, the depositions maybe taken by filing with the clerk a copy of the interrogatories, with a memorandum of the time and place of taking depositions, for twenty days before taking the same.' ... . Where judgment pro eonfesso has been taken against a non-resident defendant, the complainant may take deposi- tions by interrogatories filed ten days beforehand, or by the usual notice of the time and place of taking entered on the rule docket..^ The Code provides that in all cases where depositions are taken by filing interrogatories with the clerk, as provided' by section 3855 of the Code, it shall be the duty of the clerk to give notice of the filing of such interrogatorips, to the coun- sel of tile opposite party, and such notice. shall be. sufficient if such opposite partybe a- nou-resident.5 ' When it is designed to take a deposition upon interrog'a- toi'ies, it is, perhaps the better practice to make affidavit of the fact that the witness resides .out of the State, or over one hundred and fifty nailes from the place of trial, and there- upon obtain- an order from the court or from the clerk and master,, allowing the deposition to be taken in that mode, re- citing in the order name that the fact so appeared from the affidavit of the party or his solicitor., -But if it appears in the deposition that the witness . resides out of the State, or more than one hundred and fifty miles from the place of trial, it will, doubtless, be sufficient, vithout any order on the subject. , , , ■ The interrogatories may be in the following form: [■ Iti the I Join Smith vs. [■ In the Ghancery Court, at Knoxville, Tenn. Thomas Greene. Interrogatories to be propounded, to William Brown, who resides out of the State of Tennessee, and Joseph Wilson, who resides more than one hundred and fifty mites from the courthouse at Knoxville, witnesses for the respondeat in the above named cause.- . 'Code, 3856. "2t!ode, 4374. 'Code 3854a. 260 MANUAL OF CHANCERY PRACTICE. 1st. Interrogatory by respondent : State whether or not you reside within the State of Tennessee, and within one hundred and fifty miles of the courthouse of Knox county. 2nd. Interrpgatory by same : State all you may know in regard to, etc. , etc. Nathan Gjieek, Solicitor for Respdt. The notice oT the firing of the interrogatories may be in the following form : ..]■ John Smith vs. \ In the Chancery Court, at Knoxville, Tenn, Thomas Greene. Mr. John Smith: I have this day filed with the clerk and master of the Chancery Court, at Knoxville, interrogatories to. he propounded to William Brown and Joseph Wilson, as witnesses on my behalf in the above named case. This 1st day of, January, 1870. Thomas Geeene. In regard to the comparative merits of the two modes of taking depositions, it may be remarked, for the benefit of young lawyers, that where a solicitor, or other person skilled ill the examination of witnesses, and familiar with the ques- tions at issue, can be present at the examination an.d pro- pound such questions to the' witness as may suggest themr selves in the course of the examination ; the preferable plan is to take the deposition upon notice. For, the answer to one question will often suggest another question which would not otherwise have been thought of. Moreover, where a witness is inclined to evade telling what he may know in re- gard to the questions at issue, it is difficult to frame in ad- vance such searching interrogatories as will cause him to make a full disclosure of the facts. But, whei'e a witness lives in a remote section of the coun- try, it is difficult to have the deposition taken at the precise time and place fixed in the notice, and as po notice of the time and place of taking depositions upon interrogatories is required to be given, that mode is often preferable in such cases. MANUAL OF CHANCERY PRACTICE. 261 175. By whom depositions may be taken. Depositions may be taken by any judge, justice of the peace, mayor or chief magistrate of a town or city, the clerk of any court, or any other person properly commissioned or appointed by the court or clerk, not being interested', of counsel, or related to either of the parties within the sixth degree, computing by the civil law.?' , By the Code a notary public, commissioned by the gov- ernor of this State, may' tatke depositions in the county in which he resides. But his certificate must show his locality.^ The governor may appoint and commission, under the gi'eat seal of the State, one or more persons in each State of the Union, and also in any foreign State, to • be styled com- missioner of the State of Tennessee, to take acknowledg- ment and probate of deeds, powers of attorney, and other instruments to be registered and recorded in this State, and to take affidavits or depositions to be used or read in evi- dence in any court of law or equity in the State, and to hold said office during the pleasure of the governor.^ Whether the depositions be taken in this or another State, it is presumed, prima facie, that the commissioner holds the office which in the caption or certificate he purports to hold.'* . Any officer or other person who takes a deposition is called the commissioner, because formerly no one could take a dep- osition unless authorized by a written commission called a dedimus potestatem. The court or clerk 'may still issue such a commission, and it authorizes the person to whom it issues to take the deposi- tion although he holds no office.^ 176. Form of commission to "take depositions. The Commission may be in the following form : (State of Tennessee. To \ — -,. greet.! jig,c_; ,. ... ;r, .,, Know ye, that we, in confidence of your prudence and fidelity, have ap- pointed you, and by these presents do give unto you, full power and authority 'Code, 3865. • i'Code, 1802a. 'Code, 190. By the acts of 188H the commissioner holds his office four years. *Hoover v. Rawlings, I Sneed, 289. 'Code, 3845, 3865. 262 MANUAL . OF CHAJ^CERY PRACTICE"' ■ to call {^ndiCOTse to jQome before yop Thpipas Jonps and Jftcob Smith, and their examination, on oath or affirmation as the law directs, to take in writing on be- half' of Jonas Givens, (upon the' interrogatories hereto annexed), in the cause pending' in our Chancery Court at Madisonville, wherein .Jacob Givens, adm'r. of Zaohariah Givens, deo'd., is complainant, and James Givens and others are defendants; ?ind the gape when taken, to certify under your hand (ind seal, and enclose, seal and direct the samOi together with this writ, without delay, to our said Chancery Court. Witness. S. P. Hale, clerk and master of our said court, at office in Madison-r ville, the 1st Monday of December ,1869. S. P. Hale, Clerh and Master, If the deposition is not taken on interrogatories, that] por- tion of the ahove form which is in parenthesis will, of course, he omitted. The commission may issue in hlank as to the name of the commissioner, but the blank must be filled either before or at the time of taking the deposition, and not afterwards.' 177. How attendance of witnesses procured. The com- missioner or person authorized to take depositions has power to issue subpoenas for witnesses, to be served by the sherift' or any constable ; and the certificate of the commissioner or person authorized, that the witness failed to appear, together with the return of the officer, is proof of the facts.^ Any witness who fails to appear in such cases, according to the terms of the subpoena, or to answer the qiiestions which may be lawfully put to him, is subject to the penalties proyided for enforcing the attendance of witnesses to give testiinony in court and compelling them to testify.^ The penalty for non-attendance may be enforced by the tribunal having cognizance of the suit upon seire facias, as in other cases.* • . • The commissioner has also power to comnjit a witness to the common jail, for refusing to testify when bound so to do, there to remain without bail or mainprize till he- is willing to testify.'' '•" '"^ 'McCandless v. Polk, 10 Hum., 617. ■'Code, 3862. 'Code, 3863. *Code, 3864. »Code, 3823. MANUAL OF CHANCERY PRACTICE. 263 And of course when tlie witness contumaciously diso- beys the subpoena, the commissioner ■ may use the necessary process of attachment to bring him before him. It is scarcely necessary to remark that the provisions for compelling the attendance of witnesses cannot be enforced beyond the limits of the State, and of course are not intended to apply to such cases. 178. The examination. The commissioner has all the powers of a court in conducting the examination. He can preserve order, compel! the witnesses to testify, and control the conduct of the parties in the examination.' The penalties he may inflict, ai'e fine not exceeding ten dollars and imprisonment not exceeeing ten days ; or, till the witness is willing to testify, in cases where the contempt is refusing to testify.^ If a witness to be examined does not understand English, an order should be obtained to appoint an interpreter to in- terpret the interrogatories and deposition. The person so ap- pointed must be sworn to interpret truly, and the deposition of the witness is to be taken down by the commissioner, from the interpretation in English.^ It was Lord Il^ottingham who established the rule that "ho ' alien should be examined as a witness without a motion first made in court to swear an interpreter, that the other side might know him and take exceptions to the interpreter."^ The commissioner having first sworn the witness according to law, should require the questions to be reduced to writing before being put, and then read to the witness, and should take down his answers in writing, or cause the same to be done by the witness himself, as near as may be in the wit- ness' own words.' But where the takers of a deposition selected a disinter- ested person to write for them, it was held that the deposition was properly taken.* 'Code, 3858, .3863, 3823. 'Code, 4107, 4108, 3823. "Danl. Ch. Pr., 1063. *Danl. Ch. Pr., 1063. SQode, 3850. ■'Bradford u. Ingram, 5 Hay., 155. 264 MANUAL OF CHANCERY PRACTICE. As to the manner in whicli the'oath or affirmation may be administered, see section 104, ante. 179. Form and authentication of depositions. 1. The caption. This is to be substantially as follows: John Smith, I vs. [-In the Chancery Court, at Knoxville, Tenn. Thomas Greene. J Depositions of Wilham Brown and Joseph Wilson, witnesses for the defendant in the above-named case, taken upon notice, (or interrogatories, as the ease may be,) on the first day of January, 1870, at the courthouse in Knoxville, Tennessee, in the presence of the plaintiff and defendant (show the fact) : The said witness, William Brown, aged fifty years, being duly sworn, deposed as follows: 2. The body of the deposition. This consists in the questions propounded to the witness and his answers thereto, if the deposition is taken upon notice. But if the deposition is taken upon interrogatories, it is not necessary to copy the interrogatories into the body of the deposition. But the interrogatories are answered thus : To the first interrogatory this deponent says (here write his answer). To the second interrogatory this deponent says, &c., &c. "Whether the deposition be taken upon notice or upon in- terrogatories, when the witness has answered all the ques- tions or interrogatories propounded to him, the deposition should be closed thus: Further this deponent saith not. William Brown.. Sworn to and subscribed before me, this 1st day of January, 1870. R. D. JouROLMAN, Justice of the Peace. ■ The said Joseph Wilson, aged forty years, being duly sworn, deposed as fol- lows. The same form and conclusion as before ; and when all the witnesses have testified, then follows : 3. The certificate. The foregoing depositions were taken before me as stated in the caption, and reduced to writing by me, (Or by the witnesses, if such be the fact.) And I certify that I am not interested in the cause, nor of kin or counsel to either of the parties, and that I sealed them up and delivered them to Thomas Johnston, (or put them in the post office,) without being out of my possession or altered after they were taken. Given under my hand the 1st day of January, 1870.' R. D. JoUROLMAN, Justice of the Peace for Knox County' iCode, 3848. MANUAL OF CHANCBEY PRACTICE. . 265 The last clause may be written across the back of the en- velope on the sealed side, instead of inserting it in the cer- tificate.^ If this plan is adopted, pursue the above form to the word " parties," and then proceed thus : Given under my hand this 1st day of January, 18T0. E. D. JOUROLMAN, Justice of the Peace for Knox County. Then, after the .deposition is enveloped, write on the sealed side of the envelope the remaining portion of the certificate thus : I certify that I sealed up the within depositions and delivered them to Thomas Johnston (or put them in the post office), without being out of my possession or altered after they were taken. R. D. Joueolman. This 1st day of January, 1870. J. P. for Knox County. By the 2d Chancery Rule the commissioner before whom a deposition is taken is required to annex a bill of costs of tak- ing the same. It is presumed that a certificate in due form would cure the want of the jurat ("sworn to and subscribed," etc.), at the end of each deposition. But the deposition must in fact be sworn to and subscribed by the witness, and it is proper in all cases that the jurat should be made as in the above form. If the deposition is taken by the clerk and master of the court in which the suit is pending, the certificate is not nec- essary, if either is it necessary that the caption be as elabo- rate as when taken by any other commissioner. The clerk and master occupies a position of great respon- sibility and trust in his own court, and much faith is attached to his ofiicial acts. I mean the clerk and master of the par- ticular court in which the suit is pending. It will not be presumed that he is interested or of counsel, or that he will alter the depositions or permit them to be altered after they are taken. ^Code, 3849. 266 MANUAL OF CHANCERY PRACTICE. The caption of depositions taken by him may be thus : Jolin Smith "j vs. V Thomas Greene. J Depositions of William Brown and Joseph Wilson, witnesses for the defendant, in this cause, taken at the office of the clerk and master on notice. (From this point pursue the usual form. ) Where depositions are taken upon an order or decree of reference, the caption may be in the following form : Thomas Hall vs Isaac White "1 The undersigned attended at his office on this 1st day of January. 1870, to take the account ordered at last term of the court, to be taken in the above named cause, having first given the notice required by law. (If the decree reg- ulates the notice, say " required by said decree," instead of saying " required by law.") In taking said account, the complainant produced as a witness, William Dean, aged 20 years, who being duly sworn, deposed as follows, etc. 180. Enveloping and transmitting depositions. The deposition, when complete, shall be envelop 3d,, together with the commission, if any, and all documents which may have been deposed to, sealed, with the commissioner's name writ- ten across the seal, and directed to the clerk of the court in which the cause is pending, with the title of the cause en- dorsed thereon, and maybe sent by mail or private con- veyance.' If sent by private conveyance, the person delivering it shall make, affidavit before the clerk, that he received the deposition from the commissioner, that it has not been but of his possession, or opened by him, or while in his possession.^ 181. Filing and opening. The clerk will endorse on the deposition the day it is tiled, and make an entry upon the docket, giving the style of the caiise, the names of the wit- nesses and the date of filing.' "Code, 3860. 'Code, 3861. Section 3861a provides that depositions may be sent by express, mail or private conveyance. 'Code, 3867 ; see post 206. MANUAL OF. CHANCERY. PRACTICE. 267 , Depositions may be opened by the .clerk at.any time after they are filed at the request of either of the parties or his attorney, and copies furnished the parties on demand. The clerk shall note on the deposition the fact that it is opened by him.' Under the old English practice depositions were takfen by an examiner ,pr by commissioners upon interrogatories pre- viously filed, and the examiner. or comniissioners were sworn to secrecy, ^either of the parties to the suit was allowed to be, present. "When the examination of witnesses on both sides ended, either party might serve a rule or order of court on the other, importing. that the depositions would be made public within a time therein expressed, unless sufficient cause should be shown against it. If no cause was shown, the rule was made absolute, and this was termed passing publication. , 182. Exceptions to depositions. All exceptions to depo- sitions for want of notice, because not filed in reasonable time, or for other causes going to the admissibility thereof, except objections going to the competency of the witness or his evidence, shall be made and disposed of before the com- mencement of the .hearing or trial, otherwise they will be considered as waived.^ Objections to the competency of the witness or the admissibility of his evidence are, therefore, the only exceptions that can now be taken at the hearing. It is the duty of the clerk to act upon exceptions, made before the hearing, forthwith ; and from his decision an ap- peal lies to the chancellor or judge, to be disposed of before the cause is heard or tried.^ Upon exceptions being filed to depositions, the clerk and master shall immediately consider and decide them, writing upon them " allowed," or " disallowed;" as the case may be, and signing his name thereto. Either party may appeal from the decision of the master to the chancellor in court, to 'Code, 3870. 'Code, 3868. See Whitley ». Davis, 1 Swan, 333 ; Hodge ». Nance, 1 Swan, 57; Mt. Olivets. Shubort, 2 Head, 116; Looper ». Bell,! Head, 373. 'Code, 3869. 268 MANUAL OF CHANCERY PKACTICB." be heard upon motion within the first thre% days of the term, unless the cause is sooner- called.' The forms of exceptions to answers and to reports of the master will sufficiently indicate to the young lawyer the form in which he may except to depositions. It may be remarked that exceptions to a deposition, answer or report should al- ways be specific, pointing out the precise ground of the ex- ception. A general exception to a deposition will not do, except it be to the competency of the witness or his evi- dence, and if a part only of the deposition is incompetent, the exception must be confined to and specify that part.^ Under the old English practice exceptions were allowed to be filed to the credibility of witnesses, supported by afii- davit, after publication passed, and depositions might then' be taken by leave of court as to their credibility. Under our practice the depositions are not taken in secret and kept sealed up till an order of publication is passed. Testimony to impeach witnesses is taken under our practice just like any other testimony, and the practice of exhibiting 'Old Ck Rule, 11; Ch. Rule, 2, sec. 5. ''The following are some of the grounds of exception to depositions : 1. On account of the incompetency of the witness or his evidence. Excep- tion for either of these causes may be taken at the hearing. If made for any other cause, the exceptions must be disposed of before the hearing, or will- be considered waived. Code, 3868. 2. For want of notice. Code, 3868. 3. Because not filed in reasonable time. 4. On account of irregularities in taking the deposition. ' 5. Because taken.before the cause is at issue ; or because taken after the time allowed to take proof has expired. , 6. Because taken by' collusion with the next friend of an infant. Gough v.- Henderson, 2 Head, 628. 7. Because taken by a person not authorized to take depositions, or who is disqualified on account of being of kin or counsel to one of the parties, or in- terested in the cause. 8. For informalities in the caption or certificates. 9. For irregularities in its transmission^ 10. Because of irregularities in the body of the deposition, such as not being; signed or sworn to, or both. 11. Because altered after being taken. 12. Because the matter is scandalous. 13. Because impertinent or immaterial. These grounds are merely suggested for the young lawyer. MANUAL OF CHANCEKY PRACTICE. 269 articles of exception to depositions on this ground is un- known. 182a. Effect of allowing exceptions to depositions by the master. The action of the master in allowing excep- tions to depositions is conclusive, unless appealed from and reversed before the trial begins. But where the exceptions are for formal defects, such as informalities or omissions in the caption and certificate, the court may allow it to be amended by the officer who took the deposition, so as to cor- rect the. informality or supply the facts accidentally omitted ; and after such amendment the deposition may be read, al- though the master had, previously to such amendment, al- lowed exceptions on account of those defects, and this is so although his action in allowing the exceptions was proper and his action was not appealed from.^ 183. Betaking depositions. After an examination in chief, or cross examination, once shad, no witness shall be again examined in chief, or cross examined, as the case may be, without leave of the court or master on good cause shown. ^ A witness once examined in chief in a cause by either party, shall not be re-examined to the same facts by the same party, unless by order of the court or of the clerk and mas- ter on sufficient cause shown by affidavit.^ Upon a reference a witness can not be examined either by the master or the party, whose witness he is, to the same matter to which he has been examined in chief before the hearing of the cause, without an order from the court or of the clerk and master, upon affidavit, showing sufficient cause, but he may be examined touching any other matter.'' It is presumed that where a deposition is excepted to and the exceptions sustained on account of any informality in taking it, .(so that the deposition cannot be read), the above 'Hawkins ». McNamara, 1 Heis., 352, and Bewley «. Ottinger, 1 Heis., 3-54. This case also holds that depositions may be amended. ''Code, 4461; 2 Ch. Rule, sec. 6. - n7 Old Ch. Rule; *2r Old Ch. Rule. 270 MAlifUAI, OF CHA^'CB&V PRACTICE. provisions do not apply ; and that in such case a party may retake it without obtaining an order for the purpose. ' J3ut where a. deposition has been excepted to and the ex- ceptions sustained, the deposition cannot be retaken upon the same interrogatories without refiling them and giving the opposite party notice thereof.' It may be doubted whether interrogatories do not spend their force by the failure of the party filing them to take the deposition before the next succeeding term of the court after they are filed. It may also be doubted whether the same in- terrogatories can be filed without an order from the court, or tTom the master authorizing it to be done. 184. Depositions taken in another cause. In the case of Ross V. Cobb, 9 Yer., 463, the Reporter says: "The plaintift' offered on the trial" (in the court below,) "to read as evidence a deposition of Alexander Blair, which had been taken in another suit in the Fentress circuit court, be- tween the same parties, and also a certified copy of said deposition,,, which was objected to by the defendant, but on the defendant proving that the said Blair had become deranged since the deposition was taken, the court over- ruled the defendant's objection, and allowed the deposition to be I'ead as declarations of Blair in relation to the boundary of the land." In the . argriment of the case in the Supreme Court, t?ie counsel for the plaintiff insisted that the deposition of Blair was admissible as a declaration to prove a matter of reputa- tion. That as the traditionary declarations of a person who was dead would be evidence, a fortiori declarations on oath Avould be, and that, as Blair had become insane he had no legal existence. In delivering the opinion of the Supreme Court in that case. Judge Green says : "We think the court also erred in permitting the depo- "sition of Alexander Blair to be read without proof that he had made the statements contained in it. The matter of the deposition was proper enough to be given iu evidence, but 'Foster v. Smith, 2 Cold., 485. MANUAL OF CUANCERY PRACTICE. 271 the certificate of the magistrate who took the deposition, could not give it verity as the statement of Blair, except in the suit in which it had been taken. In order to have justi- fied the reading of it in this cause, it should have been proved to have been his statement by some one who heard him make it." But in the case of Birdsong v. Birdsong, 2 Head, 289, (in delivering the opinion upon the application for a rehearing,) the court said : "It is true' the wife and children of complainant are not parties, but he sets up. the trust in their favor; and the liti- gation, instead of being with them directly, is between com- plainant and defendant. "It may very well be made a question, if complainant had not the right to file a bill to enforce the contract between him and defendant, out of which was to arise a trust in behalf of complainant's wife and children. But passing this by, how does the case stand? Here, it is palpable the de- fendant has been fully heard as to this trust and as to the rights of these parties. The proof, pro and con, has been exhausted. Then he has not suffered for want of an opportunity to adduce evidence of his defense. "If the, wife and children of complainant were to file a second bill, or become parties by amendment, the depositions and evidence already taken, could be used against the de- fendant. It is not like the case of a judgment, which requires — to make it evidence — that there be mutuality be- tween the parties. As to depositions, the parties need not be the same. If the issue be the same, and the party against whom the proof is offered has been allowed a chance to cross-examine, that is enough.' 185. Reading depositions in evidence. The party who takes a deposition is not bound to use it as evidence. But if the party who takes a deposition declines to use it, the oppo- site party may use it as evidence, but thereby makes the '1 Greenl. Ev, 553; 5irdsong v. Birdsong, 2 Head, 300. 272 MANUAL OF CHANCBKY PEACTICB. witness his own, and gives the party who took the deposition the right to impeach the witness if he can do so,' As the depositions in a cause are, under the Code, made a part of the record, and are to be so regarded in proceedings for the correction of errors, it would be proper for a party who declines to use a deposition which he has taken, to place on the record the^act of his declining to use it. 'Richmond v. Richmond, 10 Yer., 345; Elliott v. Shultz, 10 Hum., 234, and other cases cited. CHAPTER VIII. INTERLOCUTORY APPLICATIONS AND ORDERS, AT CHAMBERS. (SEE CHAPTER 10, POST.) 186. Orders and decrees necessary to prepare a case for hearing, or to carry into effect any decree or order. 187. Regulating the master's proceedings. 188. Reducing or discharging levy made, or bond taken, under extraordinary process. 189. Appointing receivers. 190. In what cases a receiver will be appointed. 190a. In what cases a receiver will be appointed. 191. Who may be a receiver. 192. Time and mode of making the application, and the appointment of a receiver. 193. Effect and consequences of the appointment. 194. Powers and duties of a receiver. 195. Liabilities of receivers. 19oa. Compensation of receivers. 196. Appointment of administrators. 197. Dissolving or modifying injunctions. 198. Appointment of commissioners to take accounts, and persons to serve process. 199. Granting writs of habeas corpus. 200. Granting extraordinary process. 201. Notice of motion for interlocutory order. 202. Form of the notice. 203. Jurisdiction of the Supreme Court to supersede interlocutory orders. 186. Orders and decrees necessary to prepare a case for hearing, or to carry into eflFect any decree or order The chancellors have power as well in vacation as in terjn time, to hear and determine all such motions, and to make all such intei'locutory orders and decrees in any suit, as may be nec- essary or proper to prepare the case for final hearing and determination.^ 'Code, 4410. 18 274 MANUAL OF CHANCERY P3,ACXICE. Orders for the preparation of chancery cases for trial, are left to the discretion of the chancellor, and will be reversed by the court of errors only in cases of manifest injustice.' And when any decree or order shall have been made in any suit pending in the court, the chancellors, in like man- ner, have power, as well in vacation as in term time, to make such further orders, and to issue such writs and process, as may be necessary to carry into effect such decree or order.^ Section 4413 of the Code provides that the power conferred by sections 4410 and 4411, extends to making rules and orders for the preparation ot suits, but not to the making of decrees, "ordering accounts, or such like decrees, fixing or settling the rights of parties in vacation. 187. Regulating the master's proceedings. The chan- cellor may, as well in vacation as in term time, regulate and control proceedings in the master's office, and for good cause shown, may set aside, modify or alter any such proceedings, upon such term-i as may appear equitable.' And he may hear appeals from the action of the master upon exceptions to an answer, or in receiving an answer to the exceptions which he considers sufficient.^ 188. Reducing or discharging levy made, or bond t^ken, under extraordinary process. Chancellors may, as well in vacation as in term time, examine the proceedings under extraordinary process upon the answer of the defend- ant, or upon petition and affidavit, and discharge or reduce any levy or bond taken under such proceediugs.-''' 'Buchanan v. McManus, 3- Hum., 449. 'Code, 4411. ''Code, 4416. By sections 4416a, it is provided that 4410, 4411, 4444, 4445, 4446, be so amended, that in all cases in which the chancellor of the division in which any cause is pending shall be incompetent, that the chancellor of any adjoining division shall have the same power, in vacation, to make all such orders and decrees, issue all such process, and dissolve, restore or modify injunc- tions, to appoint receivers, and to do and perform any other duty that may now be performed by the chancellor of the division, as provided by sections 4410 and 4416, inclusive; and 4444 and 4446, inclusive. But notice of such application shall be the same, as to lime and place, as is prescribed for taking deposilionr. *Code, 4404, ^Cod?, 4451. MANUAL OE CHANCERY PRACTICE. 275 189. Appointing receivers. The judges of the circuit courts and chancellors may concurrently appoint receivei'S in vacation, whenever necessary in the proceeding? of either the circuit or chancery courts, and the clerks of said courts, when required hy the fiat, shall take bond with good security, from the receiver or applicant, as the case may he, for the faithful discharge of the duties of receiver.' So by section 4453 of the Code, the clerk and master, when so directed by the order of the judge or chancellor, will take bond and security from the receiver or the complainant, con- ditioned for the faithful discharge of the duties of the re- ceiver. Receivers may be appointed by the chancellor or circuit judges in vacation, upon reasonable notice of the time and place of the application, and of the person before whom it will be made, or good cause shown why such notice should not be given." "A receiver is an indifferent person, between the parties, appointed by the court to receive the rent^, issues and profits of lands or other things in question, in the court, pending the suit, where it does not seem reasonable to the court that either party should do it; or when a party is incompetent to do so, as in the case of an infant. He is to account for such receipt when the court shall require him, and to secure his doing so, he is commonly ordered to enter into recognizance with sureties."^ In the case of Verplank v. Caines, 1 Johns. Ch. R., 57., Chancellor Kent says : " The exercise of this power," (that of appointing a receiver,) " must depend upon sound discretion, and in a case in which it must appear fit and reasonable, that some indifferent person, under approved security, should receive and distribute the issues and profits, for the greater safety of all the parties concerned." In the case of Skip v. Harwood, 3 Atk., 564, the plaintiff" and defendant had been partners, and after a dissolution of the partnership, the plaintiff" filed a bill for an account of what iCode, 3948. ^Code, 4452. 'Paul. Ch. Pr., 1949 ; Waters v. Carroll, 9 Yer., 102, 276 MANUAL OF CHANCERY PRACTICE. was due liim from the partnership, and obtained a decree appointing a receiver to collect the partnership debts, and that the defendant should not dispose of any i^art of the dead stock. The defendant removed a part of the stock about the time the decree was rendered, and afterwards became a bankrupt, and the stock so removed went into the possession of his assignees in bankruptcy, who insisted that they had a right to retain it, and that the plaintifi' would have to come in pari passu with other creditors. Lord Hardwicke said : "A judg- ment creditor, to be sure, has no preference under commission of bankruptcy, though execution has been taken out, if not actually executed ; but then a commission of bankruptcy can- not supersede a decree of this court for a receiver, which is of a different consideration, and is a discretionary power exercised by this court with as great utility to the subject as any sort of authority that belongs to theyn, and, is provisional only for the more speedy getting in of a party's estate, and securing it for the benefit of such person who shall appear to be entitled, and does not at all affect the right." The author hopes he will be pardoned for inserting the statement of the case, and that portion of the opinion in the case of Skip v. Harwood, which is not relevant to the ques- tion in hand. He has italicised that portion of the opinion which is directly in point, so as to distinguish it from the portion which relates to other matter-s. A prayer for a receiver is not necessary, if the facts stated authorize the appointment of one. And where the necessity for the appointment occurs after the bill has been tiled, a re- ceiver may be appointed without filing an amended or supple- mental bill. Where a defendant is entitled to relief against a co-de- fendant, the court may make any interlocutory order necessary to give the relief, and may therefore, in such a case appoint a receiver upon the application of the defendant who is entitled to relief against his co-defendant.' 'Henshaw v. Wells, 9 Hum., 584. MANUAL OF CHANCERY PRACTICE. 277 A receiver is an officer appointed by the com»t, and responsible to the court for the discharge of his duties.' 190. In what cases a receiver will be appointed. The most ordinary cases in which receivers are granted by the court, are those in which the suit arises out of claims by parties liaving equitable interests in the subject. In such cases the court will appoint a receiver for the purpose of pro- tecting the property till the question between the parties is determined. But in appointing a receiver in such case, the court will always take care not to interfere with the rights of persons having prior interests, legal or equitable, in the estate, and who are not before the court.^ The appointment of a receiver will not prevent such person having the prior right from taking possession of the property, if he is entitled, as against the pai'ties litigant, to such possession. And if a person is already in possession of the property, who is entitled to retain it as against the parties litigant, the court will not appoint a receiver.^ The courts are disinclined to appoint a receiver against a defendant in possession, who has the legal title, unless it appears pretty clearly that the right is with the plaintiff, and that the ultimate decree will be in his favor. But a receiver was appointed at the instance of a purchaser ijendente lite, the court being satisfied that the contract was one that the court would enforce. So, where the plaintiff had advanced money to the delendant upon his agreeing to execute a mortgage on certain lands to secure the payment of the same; upon a bill for specific performance a receiver was appointed, there being an arrear of interest due on the money advanced. So, where a bill was filed by creditors claiming satisfaction out of real and personal assets, and it appeared from the an- swer of the person in possession of the real estate, that the real estate must eventually be responsible, (there being no personal assets,) a receiver was appointed. So, if the court is satisfied that the defendant is not right- 'Whitesides v. Lafferty, 3 Hum., 150; Bass v. Williams, 11 Heis., 412; Berry V. Jones, 11 Heis., 210. ='Danl. Ch. Pr., 1950, 1950. ' ^Danl. Ch. Pr., 1950, 1953. 278 MANUAL OF CHANCERY PRACTICE. fully entitled to the possession, as where fraud is proved, the court will appoint a receiver, especially if danger is likely to result if the intermediate possession should not be taken un- der the care of the court.' The coui't will not appoint a receiver upon the mere ground of title in the plaintiff, in the absence of actual or construc- tive fraud, unless it is a case of spoliation, or a case in Avhich there is danger to the property or fund unless such a step is taken.^ The object of appointing a receiver is, usually, the'preser- vation aiid protection of the property in dispute pending a litigation, and the court will not appoint a receiver on the application of a party who possesses the power of protecting the property without it; consequently a receiver will not be appointed on behalf of a mortgagee who has the legal estate, and has nothing to do but to take possession.^ And as a general rule, whenever there is a dispute respect- ing an estate, which depends upon a mere legal title, (as the plaintiff has his remedy by asserting his title in a court of law,) the court will not grant a receiver, unless there is some special circumstance, such for example as danger that the property or the rents and profits thereof will be lost in the interim.^ Where an executor or administrator, or any other party clothed with the character of a trustee, has wasted the assets, or misconducted himself, or has not done what he .could to get in the personal estate, the court will appoint a receiver.^ And it will be done in cases of implied as well as in cases of express trusts.^ So, where a trustee refuses to act, the court will appoint a receiver.^ So, a court will entertain a bill for the appointment of a receiver for the protection of property during the pendency 'DanL Cb. Pr., 1954, ]9o5. 'Danl. Gh. Fr., 1956. •*Danl. Cb. Pr„ 1961. *Danl. Cb. Pr., 1961, 1962. =Danl. Cb, Pr., 1956-58. «Danl. Cb. Pr., 1959. 'Danl. Cb. Pr., 1958. MANUAL OF CHANCEllY PHACTICE. 2T5 of a suit in regard thereto in another court. Thus, a rec'efV^er has been appointed during the pendency of a litigation for probate or administration, although the ecclesiastical court had power to appoint an administrator pendente lite. But the court will not appoint a receiver of the rents and profits of the land pending a contest in the ecclesiastical court, concerning the probate, between the heir and devisee. The legal title can be asserted in a coUf tof law.' (But if the contest was in the chancery court, it is- presumed that it - would be a very proper case for the appointment of a re- ceiver.) "Where a partnership has been dissolved, or where one party has a right to a dissolution of it, a receiver will be appointed upon a bill filed for that purpose, if the articles of copartnership do not provide for the settlement of the con- cern.^ So, when a partnership expires by death of all the parties, or the affluxion of time, (in the absence of a special provision as. to the disposition of the property), a receiver will be appointed. So, if one of the partie? become bankrupt, it is ground for the appointment of a receiver. For by the bank- ruptcy of one of the parners, the pai'fcnership is considered in one sense as determined, but in a sense also as continued — that is, continued till all the affairs are settled. So, if one partner excludes the other from taking that part in the con- cern which he is entitled to take, it is ground for the appoint- ment of a receiver, if the exclusion is such as to entitle the party to a dissolution.^ Upon a bill filed by one of the partners to close up a part- nership concern, it is a matter of course to appoint a receiver if the parties cannot agree as to the disposition and control of the property.^ So, a receiver may be appointed at the instance of a part- ner, alleging that the firm is insolvent, and that his co-part- ners are wasting the effects. But in cases of partnership a receiver will net be ap]; ointed "Danl. Ch. Pr., 1961. '^LawB. Ford, Paige, 310. 'Danl. Ch. Pr., 1966. H Paigff, 479. 280 MANUAL OF CHANCERY PRACTICE. iipon the application of a partner wLo has the property in his own possession, the other partner not objecting.' The court will also appoint a receiver pending an investi- gation into the title to an estate, in a suit for the specific per- formance of an agreement; and this it will do at the sugges- tion of the vendor, reserving the consideration of the question at whose expense it should be; but if the purchaser is after- wards compelled to take the title, the receiver is considered as his receiver.^ A receiver may likewise he appointed of the rents and profits of an infant's estate, hut it will not be done unless a bill is filed for the purpose, or is pending in the court.' But it seems that, in the case of idiots or lunatics, receivers have been appointed, upon petition, where no person could be found disposed to act as committee.* It is pi'esumed that where a bill is pending to enforce a specific lien upon real estate ; for example, a bill to enforce a vendor's lien or to execute a deed of trust in chancery by a sale of the trust property, a receiver of the rents and profits may very properly be appointed for the purpose of accumu- lating a fund in aid of the proceeds which may arise from the sale, if it shall appear i'rom the allegations of the bill under oath, or from affidavits in support of the motion, or from the evidence, or from the answer of the defendant, that the real estate will be insufficient to satisfy the debt or debts for which the lien exists." In attachment cases, the court or justice before whom the suit is pending, may at any time appoint a receiver to take possession of the property attached, and to collect, manage and control the same, and pay over the proceeds according to the nature of the property and exigency of the case." When an execution or distringas against a corporation is 'Danl Ch. Pr., 1966. ^Danl. Ch. Pr., 1969. n Atk., 578. 'Danl. Ch. Pr., 1969. »Henshaw v. Wells, 9 Hum., 568; Merrill v. Elam, 2 Tenn. Ch., 515; Williams V. Noland, 2 Tenn. Ch., 153;. Johnson v. Tucker, 2 Tenn. Ch., 399. «Code, 3503. ■ MANUAL OF CHANCERY PRACTICE. 281 levied on choses in action, the court may appoint a receiver to collect the same.' A receiver may be appointed of the rents and profits of lands, houses, etc., and also of all personal estate which is capable of being reduced into possession. A receiver will be appointed, of all property which is subject to execution, and also of whatever is considered in equity as assets.^ 190a. In what cases a receiver will be appointed. The burden is on the applicant to establish a proper case, by a strong showing to justify interference with actual possession, by the appointment of a receiver. And an affidavit made by a solicitor, upon " information and belief," and which does not disclose the solicitop's means of information, and does not aver facts, is clearly insufficient.' A receiver may be appointed to take the assets out of an administrator's hands, when in danger of being lost;' or until administration is granted.^ After decree confirming a sale of land, and ordering a writ of possession from which an appeal is prayed and granted, the court may, during the term, set aside the order granting the' appeal, and appoint a receiver to take possession of the land pending the appeal, where it appears that the party in possession is insolvent.-' Where the appeal is in forma pauperis, and the bill alleges "that the security is scarcely sufficient to pay the debt claimed," a beneficiary in a trust assignment for the benefit of creditors, is entitled, after a decree below in his favor, to a receiver.* The failure of the party in possession of land in litigation .to pay the taxes is sufficient ground to authorize the appoint- ment of a receiver.^ 'Code, 3000. "Danl. Ch. Pr., 1970. 'Davis V. Reeves, 2 Lea, 651. *Roberson w.Roberson, 3 Lea, 53; Smiley v. Bell, M. & Y., 380. ^Merrill v. Elam, 2 Tenn. Ch., 513. "Bidwell v. Paul, 5 Bax., 693. 'Johnson v. Tuclie'r, 2 Tenn. Ch., 401 ; Cone v. Paute, 12 Heis., 506. On the question of appointment of receivers, see the following cases: Baird v. Pike Co., 1 Lea, 394; Richmond v. Yates, 3 Bax., 204; Mumford v. Hanner, 3 Bax., 391; 282 MANUAL OF CHANCERY PRACTICE. 191. "Who may be a receiver. Generally speaking, a receiver should be a person wholly disinterested in the sub- ject matter of the suit, but in some cases, although he may be mixed up with the suit, a person so situated may be ap- pointed. Thus, in a suit to establish a will, the heir at law has been appointed receiver till after the trial of an issue. So, also, it has been held, that a trustee may, under some cir- cumstances, be a receiver, provided he will accept the appoint- ment "without emolument. But in no case can a trustee or other party to a cause be a receiver with emolument, unless no one else can be procured who will act with the same ben- efit to the estate; and even where he is disposed to act with- out emolument, the court will not appoint a trustee to be a receiver, where he is the person to watch and check the receiver for the benefit of the parties interested.^ This rule, that the court will not appoint a person receiver, whose duty it is "to check and control the receiver, is not con- fined to trustees. Upon similar grounds the court will re- fuse to appoint the master a receiver. And as it is the duty of the next friend of an infant to watch the conduct and ac- counts of the infant's estate, the two characters are incom- patiblewith each other; and it has been held that a son of the next friend ought not to be appointed receiver in such case.^ So, a sorrcitor in the cause should not be appointed re- ceiver.^ In Tennessee a practice has existed of appointing the clerk and master receiver. This practice, originating when the simplicity and paucity of chancery suits, and the limited number of persons qualified to act as receivers, was such as might se'em to indicate its necessity, should now be entirely abandoned.* But it may be remarked that in Tennessee re- Bramly v. Tyre. 1 Lea, 531 ; Johnson v- Hanner, 2 Lea, 11 ; Hodge v. Hollister, 8 Bax., 533; Bowling v. Scales, 2 Tenn. Ch., 63; Cassety u. Capps, 3 Tenn. Ch., 524; Mays v. Wherry, 3 Tenn. Ch., 34; Chadburn v. Henderson, 2 Bax., 460. ^Danl. Ch. Pr., 1V91, 1792. •■'Danl. Ch. Pr., 1972. »Danl. Ch. Pr., 1972. 'Waters v. Carroll, 9 Yer., 103. MANUAL OF CHANCERY PRACTICE. 283 ceivers are not under the control of the master as. they are in England. 192. Time and mode of making the application, and the appointment of a receiver. The court has no jurisdic- tion to appoint a receiver, unless a cause is pending, except in the case of a lunatic or idiot's estate, as before no.ticed.' "When it is intended to apply to the court, before decree, for the appointment of a receiver, it is usual to insert in the prayer of the bill a request that the court will appoint one ; this, however, is not absolutely necessary, and if the bill lays a foundation for the appointment by stating such facts as show the necessity and propriety of it, the court will appoint a receiver, although there is no prayer to that effect in the bill ; indeed, the necessity for the appointment frequently oc- curs after the bill has been filed, so that it could not have been part of the prayer, and the court will, nevertheless, make the order without requiring the bill to be amended, or a supplemental bill to be filed.^ Where a defendant is entitled to relief against a co-defend- ant, the court may make any interlocutory order necessary to give the relief, and may therefore in such case appoint a receiver upon the application of the defendant, who is en- titled to relief against his co-defendant.' An application for a receiver may be by petition, but it is usually made by motion, of which notice must be given ; a receiver may also be appointed by decree.'' A receiver will not be appointed before appearance and answer, and especially before appearance, except special grounds for such appointment are laid, suppoi'ted by affi- davit showing merits, and also showing the necessity of the appointment being made without delay .'* The English rule, in regard to notice of the application, seems to be that if the application is made before the defend- ant has appeared notice must be served on him personally. n Atk. 578; Danl. Ch. Pr., 1969. •Danl. Ch. Pr., 1974. Henshaw v. Wells, 9 Hum., 584. ^Henshaw v. Wells, 9 Hum., 584. *Danl. Ch. Pr., 1974. ^Danl. Ch. Pr., 1974. 234 MANUAL OF CHANCERY PRACTICE. That after he has appeared, notice of the application may he given to his solicito'r. But notice of the application must he given, although the application is made in court.' But the rule requiring previous notice to he served on the defendant, who has not appeared, is suhject to exception where the de- fendant is resident out of the jurisdiction of the court, and can not be served.^ It is presumed that under the Code of Tennessee uo pre- vious notice is required if the application is made in open court, and that if the application is made at chambers the reasonable notice required does not apply to a case where the defendant resides out of the jurisdiction of the court, or ab- sconds, so that notice cannot be served upon him, and that fact is made to appear by affidavit. But if the defendant, in such case, has appeared, it is presumed that notice of such application should he served on the solicitor by whom he has appeared.' But a receiver ought not to be appointed on an ex jjf/r/e application, where an advertisement for the defendant, a non- resident, is running for his appearance, unless special cir- cumstances are shoAvn ; as, for example, where there is dan- ger of the property being wasted or removed beyond the jurisdiction of the court.'' The court will also appoint a receiver after an intei'locu- tory decree, and this will be done upon motion, notwithstand- ing a reservation of all matters under the decree ; because such an appointment is a mere provisional proceeding, and does not aifect the question between the parties. And even after a hearing and rehearing had taken place, and the court had refused a receiver; but, on further direc- tions, the report showed an altered state of facts, (a balance iu the hands of the defendant,) which entitled the plaintifi" to say that now a receiver should be granted; a receiver was appointed. A receiver will not be appointed over the possession of 'Danl. Ch. Pr., 1974, 1975. ^Danl. Ch. Pr., 1975. 'Code, 4452. *8 Paige, 373. MANUAL OF CHANCERY PRACTICE. 285 another receiver; but the proper motion is, that the receiver already appointed shall be extended to the cause in which it is sought to appoint one. "Where the estates lie very remote trom each other, or are very large, the court will appoint more than one receiver.^ 193. EflFect and consequences of the appointment. A receiver when appointed by the court, is appointed on behalf of all parties, and not of the plaintiff or of one defendant only; therefore, if any loss arises from deficiency in his accounts, the estate must bear it. The effect of the aj)point- ment, however, is not to oust any party of his right to the possession of the property, but merely to retain it for the benefit of the party who may ultimately appear to be entitled to it ; and when the party entitled to the estate is ascertained, the receiver will be considered as his receiver.^ But, where, in consequence of the inability of the vendor of an estate sold under a decree to make out his title, a receiver had been appointed, the court thought that the ex- penses of the receiver ought not to be borne by the pur- chaser, and directed that fhey should be repaid to him out of the fund in court, together with the costs of the application. "When a receiver has been appointed of lands or tene- ments, it is the duty of any party to the record to deliver up to him the possession of such of the lands or tenements as may happen to be in such party's possession. If, however, the party should rafale to do so, th? proper course, to compel him is to obtain an order, upon motion, that he may, on or before a given day, deliver up the possession to the re- ceiver ; and if upon service of sulcIi order he refuses to deliver up the possesion, the plaintiff may sue out a writ of assistance."^ A writ of assistance is simply another name for a writ of possession. It issues to the sheriff, commanding him to put the party into possession. ^Danl. V.h. Pr., 1975, 1976, 1978. 'Danl. Ch. Pr., 1982; Wall v. Pulllam, 5 Heis., 369; Ross v. Williams, 11 ^e's., 412; Fulton v. Havidson, 3 Heis., 623; Brien v. Paul, 3 Tenn. Ch., 360. »Danl. Ch. Pr., 1982. - 286 MANUAL OF CHANCERY PRACTICE. Under our practice in Tennessee, we are in the habit ot resorting to the most effective process at once to carry into effect the decrees and orders of the court, without trying experiments with process whieli may prove unavaihng. It would be in harmony witli our practice to award the writ of possession in the first instance in case • of the refusal of a party to deliver up the lands, etc., to the receiver. ' The person to. procure the necessary orders to put the receiver into possession, is the party at whose instance he is appointed, and not the receiver himself.' "Wliere the lands or tenements, or any of them," says Mr. Daniell, "are not in the actual occupation of the party, the order for the appointment of a receiver usually contains a direction that the tenants shall attorn to the receiver, and shall pay their rents in arrear, as well as growing rents, to such receiver. Under this* order, application should be made by the receiver to the tenants to attorn to him, and if they or any of them refuse to do so, the party obtaining the order for the appointment of the receiver, should serve them or such of them as refuse to attorn, with a copy of the order appointing the receiver. He should also serve them Avitli a notice" of motion that they be ordered to attorn within four days from the service of the order, or stand committed. " Upon this motion the parties in possession may appear and inform the court whether they are in possession as tenants or not*; but if they do not appear the order will be made, and must be served personally on the tenants ; and upon affi- davit of service and non-compliance, the party prosecuting the contempt may obtain an order, as of course, for their committal to the queen's prison, which is drawn up by the registrar, and delivered to the tipstaff"; or an attachment may be issued against the tenant under the 15th order of August, 1841."2 Such is the English practice where the tenants refuse to attorn. The author is not aware that there is any settled practice in such case in Tennessee. But the analogies fur- nished by the English practice, applied to our mode of prac- 'Danl Ch. Pr., 1982, 1983. ^Danl. Ch. Pr., 1983. MANUAL OF CHANCERY PRACTICE. 287- tic3, would seem to indicate that a copy of the ordei* o: ap- pointment of the receiver should be served on the tenants who refuse to attorn ; and, also, reasonable notice should be served on them of the time when a motion is to be made in court for process of contempt against theni, and unless they appear and show reason to the contrary the process of con- tempt should be awarded. The possession of the tenants will not ordinarily be dis- turbed by the court where a receiver is appointed, though they may be compelled to attorn to him.' But it is presumed that this rule would not apply with much force after the ex- piration of the term of a tenant. It is also presumed that there might be a case in which the court would award a writ of possession in favor of the receiver against a tenant whose term had expired. When a receiver has been appointed his possession is that of the court, and any attempt to disturb it without the leave of the court iirst obtained, will be a contempt on the part of the person making it. Where the property is legally and properly in the possession of the receiver, it is the duty of the court to protect such possession, not only against vio- lence, but against suits at law. But if the property is in the possession of a third person, under a claim of title, the court will not protect the I'eceiver, who attempts by violence to ob- tain possession, any further than the law will protect him, his right to take possession of the property of which he has been appointed receiver being unquestioned.^ When a party is prejudiced, by having a receiver put in his way, the course has been, either to give him leave to bring an ejectment, or to permit him to be examined pro interesse siio. The rule that the possession of a receiver is not to be dis- turbed, extends even to cases in which he has been appointed expressly without prejudice to the rights of persons having prior estates ; and the perons having such prior estates must, if they wish to avail themselves of them, apply to the court either for liberty to bring an ejectment or to be examined 'Story Eq. Jur., 833. * ^Sto. Bq. Jur., 8336. 288 MANUAL OF CIIANCERY PRACTICE pro interesse suo; and this although their right to take pos- session is clear. In this respect there is uo distinction be- tween the possession of a receiver and that of sequestrators under a commission of sequestration. But where an ejectment was actually brought against a re- ceiver, without the previous leave of the court, a reference was made to the master to inquire whether it would be for the benefit of the parties interested, who were adults, that the receiver should defend the ejectment and charge th^ expense in his account.^ 194. Powers and duties of a receiver. When a receiver has been appointed of lauds and tenements, it is his duty to obtain possession of such of the estates as may be in the hands of any of the parties to the cause, and to obtain the attornment of the tenants of such of them as may be let. If he is unable to accomplish this by reason of the refusal of the party to deliver up possession of the estate, or of the tenants to attorn, he must report such refusal to the solicitor of the party on whose application the appointment was made in order that he may take the necessary steps to put the receiver into possession or to procure the attornment of the tenants.^ It is the duty of the receiver to collect and receive the arrears of rent due at the time of his appointment, if the order, as is usual, authorizes him to do so. Also, to let and manage the estate, under the direction of the coui't. Formerly, in England, this had to be done with the appro- bation of the master, but the present practice is for the receiver to report his action to the court for confirmation, and if he has acted with propriety, his action is confirmed by the court, and becomes valid and binding.^ This latter practice accords with our practice in Tennessee. It may be further remarked that in England receivers are 'Danl. Ch. 1984; Post, 306, as to examination jjro interesse suo. 'Daul. Ch. Pr., 1988. It is the duty of a receiver to make a full report and settlement at least once a year. Stretcli v. Gowdy, 3 Tenn. Ch., 565; Lower. Lowe, 1 Tenn. Ch., 515. . 'Danl. Ch. Pr., 1988, 1989. MANUAL OF CHANCERY PKACTICE. 289 appointed by the masters in chancery (an order authorizing their appointment being first made by the courb), and a great many of their acts have to be sanctioned by the master, but in Tennessee they are appointed by the court, and act entirely under the sanction of the court and not of the master. A receiver when in possession has very little discretion allowed him ; but he must apply, from time to time, to the court for authority to do such acts as are beneficial to the estate. Thus, he is not at liberty to bring or to defend actions ; or to let the estate ; or to lay out money ; unless by the special leave of the court.^ But it may be remarked, that such special leave may, of course, be given by the order of appointment as well as by any other order in the case. The possession of the receiver is not to be distu)'bed, even by an ejectment under an adverse title, without the leave of the court. For his possession is deemed the possession of the court; and the court will not permit itself to be made a suiter in a court of law. The proper and usual mode adopted under such circumstance is, for the party claiming an adverse interest to apply to the court, to be permitted to come in, and be examined pro interesse suo. He is then allowed to go "before the master, and to state his title, upon which he may, in the first instance, have the judgment of the master, and ultimately, if necessary, that of the court. And where the question to be tried is a pure matter of title, which can be tried in an ejectment, the court, from a sense of convenience and justice, will generally authorize such suit to be brought, taking care, however, to protect the possession by giving proper directions. "Where the property is in the possession of a third person, who claims a right to retain it, the receiver must either pro- ceed by a suit, in the ordinary way, to try his right to it, or the plaintiff in equity should make such third person a party to the suit, and apply to the court to have the receivership extended to the property in his hands, so that an order for the delivery of the property may be made, which will be 'Sto. Eq. Jur., 833a. 19 290 MANUAL OF CHANCERY PRACTICE. binding upon him, and which may be enforced by process of contempt, if it is not obeyed.' A receiver may lay out small sums of money in customary repairs, or allow the same to a tenant, but he is not ordina- rily allowed to thus apply the funds to any considerable extent, withoat the authority of the court. But where the receiver lays out money for repairs, or oth- erwise, without a previous order, the later practice is to allow him the money so laid out, if it be found, upon a reference to the master, that it was beneficial to the estate. "When a receiver has been appointed to get in outstanding personal property, it is his duty to collect all that he can get at; to enable him to do which, the order of appointment usually directs the parties to deliver up to him all securities in their possession for the outstanding debts and effects, together with all books, papers and writings relating thereto. If the parties in whose hands such securities or papers are should refuse to deliver them up, the receiver should give notice of such refusal to the party obtaining the order so that he may take the necessary steps to enforce the order. Mr. Daniell says: "By the terms of the order, the receiver is empowered, in case it should be necessary, to put any of the .debts in suit, to make use of the name of the party to whom such debt is legally due, who is to be idemnified out of the estate for any loss thereby incurred."^ But in the case of Wray and Price v. Jamison, 10 Hum., 187, Judge McKinney, in delivering the opinion of the court, said : " The necessary effect of the delivery of the account sued for in this cause, to Jones as receiver under the appoint- ment of a court of chancery, was to vest him, in that char- acter, with such an interest in the debt to be recovered, as that he alone would be entitled to sue therefor ;. and conse- quently^ to divest Wray and Price of the I'ight to maintain any suit for the recovery of the same." And " that Wray and Price, having been divested of the legal interest in the chose iti action sued for," could not maintain a suit for the recovery of it. 'Sto. Eq. Jur., 833a, 833&. 'Danl. Ch. Pr., 1990. Wi)]. 1997. MANUAL OF CHAXCERY PEACTICE. 291 lieal estate, in the hands of a receiver pendente lite, depre- ciating in value, requiring funds to insure and guard it, and no one being obliged to advance such funds, may be sold.^ 195. Liabilities of receivers. A receiver will be respon- sible for any loss occasioned to the estate by his willful de- fault : therefore, if he places money received by him in what he knows to be improper hands, the court will oblige him to pay it out of his own pocket. But where rents received were large, and the receiver, as a necessary precaution, for the purpose of remitting the money to London in bills rather than in specie, paid it to a tradesman who was in credit at the time, and took bills from him, and the tradesman after- wards failed, the receiver was not held responsible. So, where a receiver deposits the moaey with a banker for safe custody, he will not be answerable for the failure of the banker, if the money is not mixed with his own, and is bona fide deposited for safe custody under circumstances in which it could not be properly paid into court. A receiver, however, will be held answerable for the loss occasioned by the tailure of the banker with whom he de- posits the money for security, if the deposit is made in such a way that he j)arts with the absolute control over the fund : therefore, where a receiver paid the sums which he had re- ceived, into a banking house, to the joint account of his sureties, under an arrangement with them, that all drafts for the sums so paid in should be written by one of the sureties and signed by himself, the receiver was held responsible for the loss. So, if he deposits the money with a banker for his own credit and use, and not to a separate account for the trust, and the banker fails, the receiver must bear the loss. A receiver is bound to keep the property so that it can be easily traced, delivered up, or accounted for.^ In the. case of Whitesides v. Lafferty, 3 Hum., 150, which was an attempt, by means of an ' original bill, to hold a receiver liable for profits made by speculating with the fund, Judge Turley, in delivering the opinion of the court says : 'Gleaves v. Furguson, 2 Leg. Rep., 25. "Danl. Ch. Pr., 1991, 1992, and note. 292 MANUAL OF CHAS'CERY PRACTICE. '.' We know of no principle which creates such a relation between a receiver and a party to a suit, as makes him liable for profits made by any use of the money during the contin- ance of his receivership. He is an officer appointed by the court, responsible to the court for the discharge of his duties, and personally liable for any loss of the fund in his hands. There is no similarity between his case and that of a gual'dian, who is prohibited by law, as a matter of public policy, from speculating on the estate of his ward." Property in the hands of a receiver is in custodia legis, and any loss or injury to it, without fault of the receiver, must fall upon the owners. IsTor is he liable for interest unless he "has received interest.^ 195a. Compensation of receivers. Receivers are entitled to such compensation as is usually allowed by law, or by con- tract, between individuals for similar services, to be ascer- tained by proof of facts. Five per cent, on the amount re- ceived and disbursed seems to be the customary allowance. But a surviving partner as receiver is not entitled to compen- sation.^ 196. Appointment of administrators. Where a bill is filed for the appointment of an administrator, the appoint- meut' may be made in vacation upon such terms as the chancellor or judge may think best, and he may direct in his order that the perishable prop£rty be sold.^ But where the appointment is made in vacation, the com- plainant, (at whose instance the appointment is made,) shall be required to give .bond with surety, in double the value of the estate to be administered, payable to the State, condi- tioned that the administrator shall render a true inventory of the estate to the court at its next term, so far as the same may come to his knowledge ; and that he will deliver such assets over, or place the same, or the proceeds, under the charge of the court.'' 'Koss V. Williams, 11 Heis., 412; Wall v. PulUam, 5 Heis., 369; Brien d. Paul, 3 Tenn. Ch., 360. 'Stretch v. Gowdey,3 Tenn. Ch., 565; Fulton v. Davidson, 3 Heis., 623, Berry V. Jonen, II Heis., 210; Todd v. Rich, 2 Tenn. Ch., 107. 'Code, 2213-2215. 'Code, 2214. MANUAL OF CHANCERY PRACTICE. 293 Such administrator, when appointed, is a party to the pro- ceedings in court, and is bound by any decree or order in the cause.' He is under the same responsibilities as a receiver in chancery, and shall make reports to the court in the same manner; and be removable from office for neglect or improper conduct as a receiver; and when he is removed, or dies,' or resigns, the court shall appoint another.^ 197. Dissolving or modifying injunctions. A defendant may niove to dissolve or modify an injunction, before the chancellor of the division in which the bill is filed, either for Avant of equity in the bill, or upon the coming in ot the- answ^er, to be heard upon the certified copies of the bill, or bill and answer, but five days' notice of the application musi be given the plaintiff or his solicitor.'^ Such motion may be made at any time upon answer, or for want of equity on the face of the bill.'' In the case of the M. & M. R.-E. Co., and Marbery l\ Huggins et al., 7 Cold., 217, it was said that " an order dis- solving an injunction relieves the prohibition imposed by the injunction, but does not itself require or authorize the doing of any act. The injunction being removed, the party may act at his peril as if the injunction had not been issued, but he does not act under and by virtue of the order dissolving the injunction." The case before the court was a case of a dissolution at chambers, and when applied to such a case the doctrine above announced is correct. Where on a motion to dissolve, the parties actually appear, and do not object to insufficiency of notice, the objection is waived.' 198. Appointment of commissioners to take accounts, and persons to serve process. The chancellors as well in vacation as term time, havp power to appoint commissioners 'Code. 2216. 'Code, 2218. ^Code, 4444: Old Ch. Rule i ; Ch. Rule 6, sec. 2. *Code, 4445. See also Code, 4416a. ^Hilliard on Inj., ch. 'A. sec. 89a. ' 294 MAXUAL OF CHANCERY PRACTICE. to take accounts, where the clerk and master is interested, or is unable to attend, or in other cases where it maybe deemed expedient.^ They may also, in like manner, appoint persons to serve original, mesne or final process in particular cases upon special application.^ 199. Granting writs of habeas corpus. Where a party has been committed to jail upon attachment for contempt for the non-performance of a decree, the court, or a judge thereof in vacation, may grant a habeas cori^us, and discharge the party, if he shall purge the contempt, upon such conditions in respect to his compliance with the decree as the judge may think proper." So, the chancellor may grant a habeas corpus, where a per- son is in confinement upon an alias attachment, for want of appearance or answer; but no writ of habeas corpus shall issue, except on the petition and aflBldavit of the person con- fined, his agent or attorney.* 200. Granting extraordinary process. Injunctions, at- tachments, writs of ne exeat, and other extraordinary process, aregranted by the chancellors, circuit judges, and judges of special courts.^ An application for extraordinary process, when made at the commencement of the suit, is usually made at chambers, and the application granted or refused upon the facts as they appear in the sworn statements of the complainant made in his bill, without any notice of the application being given to the defendant. But if the defendant should have notice of the aj)plication, by the voluntary act of the complainant (or by the direction of the judge or chancellor to whom the application is made, and who feels that justice demands that the defendant should be heard before action is had on the application, and sus- 'Code, 4414. 'Code, 4415. 'Code, 4482. *01d Ch. Rule, 5. *Code, 4434 and notes. B}- 4434a of the Code, the same power is conferred on judges of criminal courts. MAXUAL OF CHANOBKY PRACTICE. 295 peuds Ms" action for that purpose), the defendant may, of course, very properly be heard in resisting the application. But cases of this kind will not often occur. « 201. Notice of motion for interlocutory order. Injunc- tions, attachments, and writs of ne exeat, are granted upon the ex parte application of the plaintiff, sufficient grounds for the same being laid in the bill, supported by the affidavit of the complainant, his agent, or solicitor, as to the truth of the allegations of the bill, l^o notice of the application is i-e- quired. !N^o notice seems to be required of an application for the appointment of commissioners to take accounts, or of persons to serve process. Five days' notice of an application at chambers to dis- solve or modify an injunction, must be given to the plaintiff" or his solicitor.^ Reasonable notice of the time and place of an application for the appointment of a receiver, (in vacation), and of the chancellor or judge to whom the application is to be made, niust be given, or good cause shown why such notice should not be given .-^ Upon a habeas ebrpus to discharge a party committed to jail upon an attachment for contempt for the non-perform- ance of a decree, the adverse party, his agent, or attorney, is entitled to the reasonable notice of the hearing upon the writ of habeas corpus, if in the State.^ In the cases mentioned in section 186, ante, the Code pro- vides, " No such motion shall be heard, nor such decree or order made in vacation, until reasonable notice shall have been given to tjie adverse party or his counsel to appear and object."* In the cases mentioned in sections 187 and 188, ante, rea- sonable notice to the opposite party is required."' "Code, 4444 'Code, 4452, and note. "Code, 4483. 'Code; 4412. sCode, 4416, 4451. 29G MANUAL OF CHANOEEY PllACTFCE. What IS jeasoiiable notice will depend on ciTcnmstanees. Particularly upon tlie distance whicli the party entitled to notice lives from the place where the application is to he made or the motion disposed of. ' The notice required to he given to the opposite party of the time and place of taking depositions, perhaps furnishes a pretty correct index as to the length of time which would be considered reasonable in giving notices of those motions in which reasonable notice is required to be given. 202. Form of the notice. The notice of a motion to dis- solve an injunction may be in the following form : John Smith "I Tiroh Jonps and 1" ^^ ^^^ Chancery Court at Knoxville, Tennessee. Thomas Brown. J Mr. John Smith : On the 1st day of May, 1870, before the Hon. 0. P. Temple, chancellor, etc., at chambers, at the court-house in Knoxville, Tennessee, we will move that the injunction heretofore granted and issued in the above named case be dissolved. This 10th day of April, 18V0. Jacob Jokes, Thomas Browx. In giving notices of other applications to the chancellor at chambers, the necessary changes in the above form will readily suggest themselves to tlip young lawyer, who needs the aid of forms in such matters. 203. Jurisdiction of the Supreme Court to supersede interlocutory orders. The Supreme Court in term, or either of the judges in vacation, may grant writs of supersedeas to an interlocutory order or decree, or execution issued thereon, as in case of final decrees, and may require the party apply- ing to give bond with good security, payable to the opposite party, conditioned to pay the amount of the interlocutory order or decree if so required upon final hearing, and further, to pay all such costs and damages as the opposite party may sustain.^ The clerk of the Supreme Court, upon issuing the super- sedeas in such case, shall transmit to the Chancery Court a copy of the petition and supersedeas, to bs filed in the cause, and to constitute a part of the record.^ •Code, 3983; Williams v. Boughner, 6 Gold., 487. ''Code, .M34 MANUAL OF CHANCERY PRACTICE. 297 In that case one of the chancellors attempted to control the power of appointment vested in the executive depart- ment of the government hy enjoining a registrar, appointed by the governor, (under the provisions of the statutes known in common parlance as the franchise laws), from exercising the duties of his office, and by allowing his predecessor, (the complainant), to hold the office. The Supreme Court superseded the order of the chancellor granting the injunction. But in the case of the^ M. & M. R. R. Co., and Marbery, receiver, etc., -y, Huggins et al,, 7 Cold., 217, the Supreme Court held that they had not the power to supersede an or- der granting or dissolving an injunction,' •Post, 353, CHAPTER IX. PEOCEEDINGS IN THE MASTER'S OFFICE IN THE PREPARATION OF A CASE FOR HEARING. 204. Rule days and rule docket. 205. Memorandum book. 206. Book in which to note the taking and filing of depositions. 206a. Duty of the clerk and master to report the amount of money in his office. 207. Entering suggestion and proof of death, and issuing process to revive in cases of abatement by death or marriage. 207a. What suits may be revived. 208. When, how and by whom a suit may be revived. 209. Form of a scire facias to revive. 210. Defense to the application to revive. 211. Master may make orders for publication. ■212. Setting a cause for hearing. 212a. Where a demurrer or plea is set down for argument. 213. Other orders that may be made in the clerk and master's oflSce. 1. Making and setting aside orders pro corifesso. 2. Appointing guardians ad litem. 3. Orders for taking depositions. 4. Opening causes for proof. 5. Other acts authorized by law. 6. Extending time in which to answer. 1. Rule on plaintiff to take siep in the cause. 8. Appointment of special commissioners. 9. Order upon non-resident parties to answer interrogatories. 10. Power of the olerk and master to take depositions and admin- ister oaths. 11. To take probate of the attendance of witnesses. 12. To appoint a deputy. 13. To perform the functions of masters in chancery. 14. To issue process, hear exceptions, etc. 15. To adjourn court in the absence of the chancellor. 213a. Appointment of guardians ad litem. 214. Notices to be given by the clerk and master of proceedings in his office. 204. Rule days and rule docket. Each day of the term of the court of chancery, and the first Monday in every month in vacation is a rule day.' 'Code, 4421. MANUAL OF CHANCERY PRACTICE. 299 The clerk and master is required to keep a rule docket, in. which shall be entered the names of the plaintiffs and defend- ants in full ; the names df the attorneys and counsel ; a min- ute of the date of the issuance and return of process, with the return thereon, and a note of all the orders and proceed- ings made at office.^ Rules, notices, oi-ders and other proceedings in a cause, made with or by the clerk' and master, shall be entered by him in a well bound book, to be kept for the purpose, each entry to be made in order, with the correct dates attached.^ Such rules, notices and proceedings shall be made at the rule days, unless otherwise authorizied by the Code.^ All rules or orders taken at any one court shall be inserted iu such rule docket by the first rule day, being more than twenty days after such term.^ 205. Memorandum book. The clerk shall keep a memo- randum book in which shall be noted every subpoena for witnesses, commissions, with the day of issuance, and any other proceedings of the clerk not entered on his records, rule docket, or minutes, and such memorandum book shall be open for parties or their attorneys to make such memoran- dums for the direction of the clerk as may be necessary." 206. Book in which to note the taking and filing of dep- ositions. The clerk and master is required to keep a well bound book, in which shall be entered, under the name ot each case, the depositions taken and filed in the case, the names of the witnesses, and the date of filing and by whom. But by keeping the rule docket so as to make these entries therein without interfering with the entries regularly belong- ing to that docket, this book may be dispensed with." 206a. Duty of the clerk and master to report the amount of money in his office. The clerk and master is now required, on the first day of each term of the court, in ^Code, 4085. 'Code, 4417. 'Code, 4418. 'Code, 4419. sCode, 4438. «Code, 4085, sub-sec. 2. 300 MANUAL OF CHANCERY PRACTICE' oue general report, to state to the court the amount of money n his office, and the causes in which the several sums belong; but no costs need he stated in said report, except the State revenues; and the report shall not only be filed for the in- spection of the court, but for the benefit of attorneys and parties interested ; and it is made the duty of the court to have the same inspected, and see that same is in every re- spect correct. If the clerk and master should willfully and corruptly make a false report to the court, it is made a mis demeanor in office; and upon conviction, may be fined, im prisoned and removed from office.' 207. Entering suggestion and proof of death, and issuing process to rievive in cases of abatement by death or marriage. "The clerk and master may, at his office, receive and enter on the rules, the suggestions and proof of a party's death, and order and issue the necessary process to revive."^ "Upon the death of a defendant or marriage of a female defendant, the suit may be revived by scire facias or notice to the heirs or personal representatives, or husband, without the necessity of filing a bill of revivor."^ In adopting this section of the Code, the fact seems to have been overlooked, that it is well settled in the practice of courts of chancery, that a suit does not abate by the mar- riage of a female defendant, though her husband ought to be named in the subsequent proceedings.^ The clerk and master shall issue this scire facias or notice at any time, upon motion of the complainant, entering the same upon his rules, and including in each writ issued to any county, all the parties residing in that county.' Persons made defendants under these sections, may make the same defense to the revival of such suits, as if made parties by the former practice of the courts of chancery.' 'Code, 335i, 335/. 'Code, 4420. As to revival of decrees, see post, 299. ^Code, 4425. *Sto. Eq. PI., 354. 'Code, 4426. "Code, 4427. MA>'UAL OF CHANCERY PRACTICE. 301 The scire facias need only give the names of the parties, and recite the filing of the bill, pendency of the suit, and death or marriage as the case may be, and thereupon require the parties against whom it is issued to appear and show cause why the suit should not be revived.' Bills of revivor, amended bills, and supplemental bills, if resorted to, may be filed at any time in the clerk's office; and the process may be made returnable and the suit revived on a rule day.^ 207a. What suits may be revived. Upon the marriage ' of a female any suit to which she is a party may be revived by or against her husband.^ " No civil actions commenced, whether founded on wrongs or contracts, except actions for wrongs affecting the charac- ter of the plaintifl'," (and these are not cognizable in a court of equity,) " shall abate by the death of either party, but may be revived."* But, independently of these provisions, it is well settled that all suits in equity, which become abated, may be revived where the subject matter and objects of the suit are not extinguished by the event which causes the abatement. "Where the subject matter and objects of the Suit are extinguished, there can, of course, be no revival, either under these statutes or independently of them, the grounds of the suit being swept away. Mr. Story lays down the doctrine of abatement in Equity as follows : "In the sense of courts of equity, an abatement signifies only a present suspension of all proceedings in the suit, from the want of proper parties capable of proceeding therein. At common law, a suit, when abated, is absolutely dead. But, in equity, a suit, when abated, is (if such an expression is allowable) merely in a state of suspended animation; and it may be revived. The death or marriage of one of tlie original parties to the suit, is the most common if not the 'Code, 4428. "Code, 4429, and notes. ^Code, 286dv^, •Code, 2846. 302 MANUAL OF CHANCERY PRACTICE. sole cause of the abatement of a suit iu equity. As the interests of a plaintiff usually extend to the whole suit, there- fore, in general, upon the death of a plaintiff or the marriage of a female plaintiff, all proceetlings become abated. Upon the death of a defendant, likewise, all proceedings become abated as to that defendant. But upon the marriage of a female defendant, the proceedings do not abate, although her husband ought to be named in the subsequent pro- ceedings."! A bill for divorce and alimony cannot be revived for the alimony after the death of the husband. The death not only dissolves the bonds of matx'imony, but it extinguishes the right to alimony, and gives iu its place the rights of a widow in her deceased husband's estate.^ The doctrine that upon a bill of revivor the only questions before the court are the competency of the parties to revive and the correctness of the frame of the bill, has no applica- tion to cases in which the grounds of the suit are swept away by the event which causes the abatement.' 208. When, how and by whom a suit may be revived. If the proper person entitled to the place of a deceased party, whether plaintiff or defendant, wishes to revive a suit against the adverse party, he may do so upon mere motion.'' But of course he would have to produce proper evidence that he is entitled to the place of the decedent. The adverse party, whether plaintiff or defendant, may re- vive against the proper person entitled to the place of a de- ceased party, with the consent of that person, on mere mo- tion; and without consent, by scire facias or notice.* And the scire facias may be sued out in term time or vaca- tion and the order to revive be made as of course, unless good cause to the contrary be shown on the return of the process.' 'Sto. Eq. PI.. 354. 'Swan V. Harrison, 2 Cold., 534; Owens «. Sims, 3 Cold., 544; Maslcall u. Maskall, 3 Sneed, 208. But see McCoUum u. McCollum, 1 Heis., 56o. ^Ante, 131. *Code, 2851, 2855. ^Code, 2856. 'Code, 2857, and notes. MAIfTTAL OV CHAXCERY PRACTICE. 303 The husband of a female plaintiff may make himself a party plaintiff" by motion, and giving bond with good secn- rity for the prosecution of the suit. And this releases the original security from liability for subsequently accruing costs.' The suit may be revived at any time before the final dispo- sition thereof, against the husband, with his consent, or by scire facias, without his consent.^ As to whether it is neces- sary to revive against the husband when a female defendant to a bill in chancery marries, see the last two sections above. When a defendant dies before answer, it seems that a copy of the bill should issue.' It would certainly be reasonable to issUe copy of the bill and subpoena to answer in case the defendant died before be- ing served with process. In Tennessee our statutory provisions allowing revivals to be made by motion or upon scire facias have caused bills of revivor to fall into disuse. The foregoing provisions of the Code also abolish the old rule that the person entitled to the place of a deceased de- fendant could not revive, except he had an interest in the further prosecution of the suit, such as in cases of account. 209. Form of scire facias to revive. The following will serve as a form of the scire facias. The State op Tennessee. To the Sheriff of Knox County : Whereas, on the lOth day of March, 1868, A. B. filed an original bill against C. D., in our Chancery Court at Knoxville, which suit is pending and undetei- mined. And whereas, it has been suggested of record and admitted (or proved, as the case may be), that said C. D. is dead ; and it being further suggested by the complainant that E. ¥. is the administrator of said C. D. You are therefore commaflded to make these facts known to said E. F., find summon him to appear before the chancellor of our said Court of Chancery at the next term of said court, to be held at the court-house in Knoxville on the 1st Monday of April next to show cause, if any he has, why said suit should, not be revived against him as the administrator of said C. D., deceased. 'Code, 2861. 'Code, 2862. Lewis V. Outlaw, 1 Tenn., 140. 304 MANUAL OP CHAXCERY PRACTICE. Witness, D. A. Deaderick, clerk and master of our said court, at office n Knoxvillo, the first Monday of October, 1869. D. A. Deadebiuk, C & M. ' 210. Defense to the application to revive. The order to revive is made as a matter of course, unless good cause to the contrary be shown on the return of the process.' And the representative must take up the defense at tlie point where he finds it upon the death of the person under whom he claims.^ If it should not appear that the person who seeks to re- vive as the representative of a deceased party is really the person entitled to revive, he will not, of oursa, be' allowed to revive. So, if it should appear that the person against whom the revivor is sought is not the proper party against whom the revivor should be made, the revivor will not bo allowed.^ 211. Master may make orders of publication. The clei'k and master may make orders for publication against defendants in cases in which publication is allowed in lieu of personal service.* The order may require the defendant to appear at a rule day. The order need not be made on a rule day. It may be made at any time after the filing of the bill, and it is the duty of the clerk and master to make it as soon as the nec- essary aflidavit is made." 212. Setting a cause for hearing. The practice in Eng- land was, that when a cause was ripe for hearing, it might be set down for hearing at the instance of either party, and thereupon a subposna to hear judgment was issued and served on the opposite party. Under our practice no subpoena to hear judgment issues. The complainant may specially set a cause for hearing ou bill and answer. In all other cases it is the duty of the clerk >Code, 2857. 'Lewis V. Outlaw, 1 Tenn., 14.^ ; Jackson v. Jackson, 2 Leg. Rep., 276; Car- son V. Richardson, 3 Hay., 231. 'Sto. Eq. PI., 626. *Code, 4420. 'Code, 4354, 4356. MANUAL OF CHANCERY PRACTICE.". 305 and mastor to set all causes at issue for hearing, and transfer tliem to the trial docket.^ No replication or other pleading after answer filed is re- quired or allowed, but all cases will be heard as if replication had been filed, unless set for hearing expressly on bill and answer.^ All causes are at issue, without replication filed, if the plaintifi:" tail to except to the answer of the defendant within the time prescribed by law, and shall stand for trial at the first term of the court after answer filed, and at every term thereafter, if not then heard.^ Under these provisions of the Code, a cause stands for trial at the first term after answer filed (if not excepted to within twenty days), whether the clerk and master formally sets it for trial or not. And under our previous practice, it was held that when a cause stood in a situation to be set down for hearing on the first day of the term, it might be heard by consent without any formal entry on the. rule docket, and if tried in the pres- ence of counsel on both sides without objection, consent would be presumed.* ■An answer may be filed before the process is returnable.-' The cause would then be at issue and ready for taking proof. The Code provides that, pending an appeal on exceptions to an answer, the parties may proceed to take proof, but that additional proof rendered necessary by a change of the plead- ings under the decision on the exceptions, may be afterwards taken. And the complainant may take testimony at any time after answer filed, or after decree -pro conjesso, and the defendant at any time after filing a sufiicient answer." If the answer is filed more than twenty days before the re- turn term, the cause will, under 'the provisions of the Code, stand for trial at that term, unless the answer is excepted to. 'Code, 4430, 4431. As to setting cause for hearing on cross bill, see Code, 4408; Cocke v. Trotter, 10 Yer., 213. ^Code, 4.S22. ' '■ ' 'Code. 4432, 4328, 4401. ♦Cocke V. Trotter, 10 Yer., 213. HVhite V. Cahal, 11 Hum., 253. See Code, 4400, 4401. "Code, 4406i 445?. 23 306 MANUAL OF CHANCERY PRACTICE. If the complaiuant should by a rule in the clerk and mas- ter's office, or an order in court, set a cause specially for •hearing on the bill and answer (as he has a right to do under sec. 4430 of the Code) the eftect would be, (under the pro- visions of sec. 4422 of the Code,) to take all the matters in the answer as confessed, whether responsive to the bill or not; for that section provides that after answer tiled all causes shall be heard as if replication had been filed (no replication being required or allowed), unless set for hearing expressly on bill and answer. These j)rovisions forbid the idea of allowing the allegations of the answer to either be actually put in issue, or the cause to be heard as if the answer had been put in issue by replication where the case is set for hearing ex- pressly on bill and answer. The cause, when set for hearing expressly on bill and an- swer, would stand, as if the defendant had, under pur old practice, set the cause for hearing on the bill and answer, after having given a rule on the complainant for a replication, and the time fixed in the rule having expired without a re- plication being filed. But if the cause is tried on bill and answer simply, in the regular course of the business of the court, without the com- plainant setting it for hearing expressly on the bill and an- swer, it will be heard as if replication had been filed.' The only thing to be gained by setting a cause for hearing expressly on bill and auswer, would be to cut off" the privi- lege of either party to take or introduce any proof, and it would therefore leave the defendant no ground upon which to ask to continue the cause, or to delay the hearing. The young lawyer must not fall into the error of supposing that if a case is not set for hearing by the plaintiff' expressly on bill and answer, it will not stand for trial itntil proof is taken. The question as to whether any or how much proof has been taken by either party, has nothing to do with fixing the time when a cause stands for hearing. A demurrer or plea shall be set for argument at the first term.- 'Code, 4322. 'Code, 4394. MANUAL OF CHANCERY PRACTICE, 307 Whea a party, in his answer, relies upon matters of demurrer or matters which might be specially pleaded, either party may set down the matters of demurrer for argument at the next term of the court, but not so as to prevent preparing the cause for hearing; and the court may charge the defend- ant with any costs occasioned by the failure to rely upon the . formal plea or demurrer at the proper time.' When process has been duly served on the defendant or publication duly made, as the case may be, and judgment pro confesso is taken against him for failing to make defense to the bill, the cause may be set for hearing at the return term of the process. "When a defendant who has been brought into court upon process of contempt, refuses to answer or puts in an insufficient answer and the bill is taken for confessed; and in cases where a plea of demurrer has been overruled and the defendant ordered to answer and fails to do so upon rule given, and judgment pro confesso is taken; and in cases where exceptions to an answer are sustained, and judgment pro confesso taken because the defendant has failed to put in a sufficient answer , the cause may be set for hearing at the next term after the bill is taken for confessed.^ Although a judgment pro confesso may be taken against an infant or person of unsound mind, the complainant cannot proceed with his cause till such defendant appear by guai-dian or committee.^ 212a. Where a demurrer or plea is set down for argu- ment. Where a demurrer or plea is set down for argument, which should be done at the first term, it makes an issue of law, which must be disposed of before any issue of fact can be made. No issue of fact can be made upon a demurrer. But if a plea is allowed upon argument, the complainant may take issue upon the facts of the plea, which is done by filing a replication. So, if he think the plea good but not true, he may, without setting it down for argument, take issue upon it and proceed to trial.'' 'Code, 4320. ^Code, 4370. sCode, 4372. . Huff, 9 Hum., 345; Henderson v. McGhee, 6 Heis., 55;' Stretch V. Stretch, 2 Tenn. Ch., 144. =Sto. Eq. PL, 2076, 208. 318 MANUAL OF CHANCERY PRACTICE. as may be deemed just and proper to secure the rights of the other parties to the suit in regard to the costs of the liti- gation. Where a decree has been rendered against a defendant without personal service of process, and he, or his heirs or representatives, or an assignee claiming under him, desire to contest the complainant's bill within the time allowed in such cases for doing so after the rendition of the decree, the ap- plication must be made by petition showing merits and veri- fied by affidavit.^ 80, a writ of error coram nobis is applied for by petition.^ A rehearing must be applied for by petition containing the special matter or cause on which a rehearing is applied for, be signed by counsel, and the facts therein stated;' if not ap- pearing from the proceedings in the court, shall be verified by oath or afiirmation.^ The proceedings under extraordinary process may be ex- amined (for the purpose of reducing or discharging any levy or bond taken under such proceedings) either upon the an- swer of the defendant or upon petition.* A writ of habeas corpus is applied for by petition, and (in cases, at least, where the applicant is confined on an alias at- tachment for want of appearance or answer), the petition must be verified by the afiidavit of the applicant, his agent, or attorney.-^ An application by a purchaser to be relieved from his pur- chase of property sold under the decree of the court, must be made by petition in the court in which the cause is pend- ing. . And this is so at any time' before a conveyance of the property has been executed. If he has paid the purchase money he may recover it back by petition in the court in which the suit is pending." 'Code, 4380, 4381, 3533. "Code, 3111. 'Old Ch. Kule 34; Ch. Rule 15. *Code, 4451. ^Old Ch. Rule 5. ^Deaderick v. Smith, 6 Hum., 138; Blackmore v. Barker, 2 Swan, 342; Spence V. Armour, 9 Heis., 167; Foster v. Bradford, 1 Tenn. Ch., 402. See the distinc- tions drawn in this case as to the time and mode of proceeding. MANUAL OP CHANCERY PRACTICE. 319 But of course the application must be made while the suit 18 pending. After the court has divested itself of all control over the original cause and parties, no motion or petition in the case can be entertained.^ After the cause has gone out of court relief can only be had in such a case by an original bill. It is presumed that if a party has been aggrieved by any interlocutory order whatever of the court, of which the court has power to relieve him in the cause in which the order is made, the proper mode of making the application is hy peti- tion. So, where it is desired to have a sale of property under de- cree of the- court set aside and the biddings opened on ac- count of cii'cumstances which prevented the property from bringing its value, the application, if made before confirma- tion of the report, is made by petition.^ So, if the application is made during the term at which the sale is confirmed and before the whole of the purchase money is paid, although it is made after the confirmation of the sale, it may be made by petition. For the record of the decree of confirmation is in such case still under the control of the court.^ But under oar practice, in cases iji which the sale has been confirmed, the purchase money paid, and the term of the court at which the decree of confirmation is made is closed, the application must be made by an original bill so as to give the opposite party an opportunity of answering and admit- ting or denying the alleged grounds for the application ; or of making an issue by plea or demurrer.* 216a. In what cases a stranger will be permitted to become a party by petition. Under our practice in Ten- nessee, creditors and other persons interested, who desire to establish their claims against an insolvent estate which is be- ing administered in chancery, or against an estate which is 'Vanbibber «. Sawyers, 10 Hum., 82; Majors w. McNeilly, 1 Heis., 299. 'Morton v. Sloan, 11 Ham., 278; Childress v. Hurt, 2 Swan, 487; MoMinu v. Phipps, 3 Sneed, 196. 'Moore v. Watson, 4 Cold., 68. *McMinn «.Phipps, ;! Sneed, 196; Moore v. Watson, 4 Cold., 68. See Spence V. Armour, 9 Heis., 167, and the distinctions there made. 320' MANUAL OF "CHANCERY PRACTICE. ■ being administered under a bill filed" for the appointment of an administrator, must have themselves made actual parties to the bill. So, in cases where, xmder the provisions of 4288 of the Code, a creditor files a bill tor himself and other cred- itors to set aside fraudulent conveyances of property by the debtor, other creditors who desire to share in the benefits of the bill must have themselves made actual parties.' In these cases the application to become a party is made by petition. The Chancery Courts in Tennessee have been much more libei'al in allowing strangers who are interested in the subject matter of the litigation to become parties by petition than has ever been permitted under the English practice. » It may be that in some other cases the question of allow- ing third persons who are interested to become parties in this way, is a matter resting in the sound ■ discretion of the court under the particular circumstances of the case. But it is presided that it would be error to allow a stranger to be- come a party by petition unless there is a privity of interest between him and the plaintiff', or defendant, already before the court, either in the svibject matter or object of the suit. Where there is no privity, the stranger who is interested in the subject matter or objects of the suit should be required to bring forward his claim by a supplemental bill, or by an original bill iji the nature of a supplemental bill, or of a cross bill, as the case may require, so that those adversely in- terested may have process with copy of the bill served on them, and make proper defense thereto. 2166. How a stranger may apply to be made a party to a suit. "We have seen that the regular way for a stranger to be made a party to a suit already pending, is by p3tition.^ Where a stranger becomes a party for the purpose of as- serting a claim, it is usual and highly proper to require him, or his agent, or attorney, to make oath to the justice of the claim, unless the interest pf such person already appears from the j)leadings or proof in the cause, or is admitted. He 'Code, 4290. 'Ante 216. See also Banks jj. Banks, 2 Cold., 546. It is suppose 1 that what is called an affidavit in that case was really in substance a 'sworn jet' tic n. MANUAL OF CHANCERY PKACTICB. 6'Zl should also be required to give bond with security for costs. The author is not aware of but two ways in which a stranger may apply to have himself made a party to a suit, by petition and supplemental bill. There are but few cases in which he can apply by supplemental bill.^ 217. Form of a petition. An interlocutory petition should be addressed to the chancellor of the division in which the cause is pending, and should be entitled in the cause in which it is presented. It states by whom it is presented and the particulars of the case, and concludes by praying the court to make the desired order.^ Brevity and form are the two things chiefly to be observed in drawing petitions, to which Aay be added care to avoid scandal and impertinence, for which a petition, as well as any other proceeding, may be referred.^ The following will serve as a guide to, the young lawyer in drawing "a petition for a person who desires to become a party to a suit in which he is interested. Other forms of petitions will appear in a subsequent part of this work in connection with the matters in regard to which they are filed; such as petitions to open biddings, petitions for re- hearing, etc.: D. W. Lattimer on behalf of"l himself and the other credi- | tors of C. A. Gurley, dec'd. [- In the Chancery Court at Madisonville. vs. I ' Martha Gurley and others. J To the Hon. 0. P. Temple, Chancellor, etc.: Your petitioner, Joseph Lee, respectfully shows to your Honor, that the estate of C. A. Gurley, dec'd., is justly indebted to him by promissory note, executed to him by said C. A. Gurley on the 10th day of October, 1861, for one thousand dollars, payable at one year with interest from the 1st day of May, 1860; which note with the interest remains wholly unpaid, except the sum of ninety-five dollars paid and endorsed as a credit thereon on the 1st day of June, 1861. Said note, marked exhibit A, is herewith filed and prayed to be talcen as a part of his petition. Petitioner prays to be allowed to become a party to the above named cauSe and receive payment of the balance, principal and interest, of said note out of the asse'.s of said estate; and for general relief. Thomas C. Lyon, Solicitor. 'For further information on this point, see ante 119, 121. 'Danl Ch. Pr., 1802. "Danl. Ch. Pr., 1802, 1803. 21 322 MANUAL OP CHANCERY PRACTICE. 218. Signing and swearing to petitions. Parties usuall}- sign a patitioQ, but not a bill, and it is not essential to either, if the names appear in the body or caption of the bill or petition.^ In England interlocutory petitions n,eed not be signed by counsel, except it be a petition for a rehearing or appeal.^ But it is certainly highly proper that they should be signed by counsel, whether absolutely necessary or not, and it is be- lieved that this is the uniform practice in Tennessee. As to what petitions are required to be under oath the author is not prepared to state further than what is shown in section 216, ante, to which the reader is referred. It may, however, be remarked that unless the truth of the petition otherwise appears, it would, upon principle, seem necessary in every case that the petition should be sworn to or supported by affidavits. But where the truth of the grounds of the petition appears from the recoisd- in the cause, or from an accompanying exhibit as the foundation ot the application, it does not appear necessary that the petition should be verified by affidavit. And it may here be remarked that the execution of an instrument, which is the foundation upon which it is sought to charge a party, (it is presumed,) is conclusively proved by the instrument itself unless denied under oath by the opposite party.^ 219. No process or issue upon interlocutory application. No subpoena to answer issues upon these interlocutory appli- cations, whether made orally or in writing ; and an issue by plea, answer or demurrer, would not be proper. But of course the opposite party may always be heard in resistance to such applications. And although no issue by pleading is to be made upon tho'se interlocutory applications, yet affidavits are sometimes received to contradict the grounds upon which application is made. Thus, affidavits have sometimes been received to resist an application to dissolve an injunction, but this is only ^Swan V. Newman, 3 Head, 290. 'Danl. Ch. Pr., 1803. =Code, 2111, 2119, ante 153. MANUAL OF CHANCEEY PRACTICE'. 823 allowable in cases wliare irreparable mischief would follow from a dissolution of the injunction, as in cases of waste for instance. Ordinarily the better practice is to require a refunding bond instead of hearing affidavits in cases where there is reason to. believe that the parties will not be in statu quo at the hearing.' 220. Of motions. A motion is an application either by a party to the suit, or his counsel, not founded on any written statement addressed to the court.^ A motion may be made by or on behalf of any of the parties to the record, provided such party is not in contempt, it is not usual for an indiviual who is not a party to the record to be heard to make an application by motion.^ But a quasi party to the record may make an application by motion, unless the matter itself be such as is required to be made by petition.'' 220a. Repeating a motion. The same interlocutory mo- tion, on the same matter, ought not to be repeated, without the existence of some new ground. Where a motion has been heard, discussed and decided, there would be great vex- ation if the same motion were permitted to be repeated, except upon some new matter which may have arisen after the decision.^ 2206. Motions to take pleadings ofiF the file. Whenever any pleading is filed which is unknown to the forms of the court, or is wanting in some prerequisite necessary to au- thorize it to be filed, or is filed after the time within which it is allowable to file it, or ,is, for any other reason, so irregular as to render it improper that it should have been filed, it will, on motion of the opposite party, be ordered to be taken off of the file. "Mooredock v. Williams, 1 Tenn., 325; Davis v. Pulton, 1 Tenn., 121. ^Danl. Ch. Pr., 1787. 'Danl. Ch. Pr., 1784. *Danl. CL Pr., 1787, 1787. ^Hoffman v. Livingstonej 1 Johns. Ch. Rep., 211. 324 MANUAL OP CHANCBEY PRACTICE. Where a bill is unknown to the forms of the court, it will, on motion of the defendant, be ordered to be taken oft" the file as a novelty.' It may be remarked that motions to take answers off" the file are more frequent than like motions in regard to any other pleading. If any irregularity has occurred in the frame or form of an answer, or in the taking or filing of it, the plaintiff may take advantage of such irregularity by moving to take the answer oft" the file.^ "We have seen that if the answer is so evasive that it is a mere delusion, it will be considered as no answer, and that the court will order it to be taken off" the file on motion of the complainant.' And where an answer upon oath is waived, the answer may be taken oft" the file for want of the signa- ture of the defendant, unless an order has been obtained to take the answer without such signature.* ■So where a wife, without leave of the court, answers sepa- rately from her husband, her answer may be taken from the file on motion of complainant.^ So if the joint answer of husband and wife is not sworn to by both, the complainant, by motion, may have it taken from the, file for irregularity." 221. Motion for an injunction against parties already before the court, without filing a bill for that specific purpose. As a general rule, injunctions will not be granted except upon a bill filed for the special purpose of praying for an injunction, nor against any one who is not a party to the suit.' The injunction here alluded to is a provisional injunction, such as continues until the hearing of the cause (unless 'Cox V. Breedlove, 2 Yer., 511; Wilson v. Wilson, 10 Yer., 200. Ante, 94. ■^Danl. Ch. Pr., 918. ^Anie, 1386. *Denison v. Bassford, 7 Paige, 372, ^Perine v. Swaine, 1 Johns. Ch. Rep., 24. *6 Paige, 654. Under what circumstances a defendant is allowed to with- draw his answer from the file, see ante, 118. 'Danl. Ch. Pr., 1834. MANUAL OF CHANCERY PRACTICE. 325 sooner dissolved), and not a perpetual injunction which forms part of the decree at the hearing upon the merits, nor the writ of injunction as final ]Drocess to enforce a decree. The rule has no application to such injunctions.' It must be remembered that whatever is said in this and the succeeding sections is not meant to apply other than pro- visional injunctions. But to the rule that a provisional injunction will not be granted except upon a bill specially praying for it being filed, there are several exceptions. " Thus, if the court having full cognizance of the matter, has by its decree, taken it into his own hands, it will inter- fere by its injunction, to prevent injury to the property either by the parties litigant or others, although there is no injunc- tion prayed by the bill. Instances of this occur in cases of foreclosure, in which, if after a decree to account, the mort- gagor attempts to cut timber, the court will enjoin him, al- though there was no prayer for an injunction in the bill. " Upon the same principle, if there has been a decree for the administration of assets, the coui't will restrain a creditor who is not a party to the suit from proceeding at law against the testator's or intestate's estate for his own individ- ual debt." And the application may be made by the heir, a legatee or another creditor, as well as by the administrator or executor.^ Another exception to the rule is where a plaintiff is pro- ceeding against the defendant, both at law and in equity, at the same time for the same matter, and upon being called upon to elect in which court he will proceed, has elected to proceed in equity, the court will restrain him from further proceedings at law, although there is no prayer for an injunc- tion in the bill. Another class of cases in which an injunction will be granted without a bill being filed for that purpose, arises from the jealousy entertained by the court, of any interfer- ence with its process by another tribunal, for which reason the court will issue its injunction to restrain an action at law ^Danl. Ch. Pr., 448. 'Dani. Ch. Pr., 1834, 1835; Eden on Inj., 71. 826 MANUAL OF CHANCERY PRACTICE. to recover damages for false imprisonment under process of contempt improperly issued.' 222. For injunction against persons who are not parties to the suit. As regards the point whether there any excep- tions to the rule that an injunction will not he granted against any one who is not a party to the suit, it seems to be pretty well settled in England that there are exceptions. But I find that the court has adhered very closely to the principle, that you cannot have an injunction except against a party to the suit. Upon a review of all the cases, I think the practice of granting an injunction against a creditor who is not a party to the suit is wroQg. The court has na right to grant an injunction against a person whom they have not brought before or attempted to bring before the court by subpoena ; and in the absence of a creditor, no one appearing for him as counsel, which might make a difference, I should hesitate very much to proceed against him for breach of the injunction.^ But subsequently Judge Eldon granted injunctions in such cases against creditors who were not parties, although no in- j.unction had been prayed in the bill.' In the case of Fellows v. Fellows, 4 Johns. Ch. Rep., 25, certain persons who were not parties to the suit had been enjoined from paying certain notes given by them to the defendant. Chancellor Kent dissolved the injunction upon the authority of the above named case of Iveson v. Harris. But it may be remarked that the case of Fellows v. Fellows did not fall within the class of cases which are recog- nized in England as exceptions to the rule that an injunction will not ordinarily be granted against persons who are not parties to the suit. It is presumed that where a party is guilty of a contempt of court, such as disturbing the possession of a receiver, or of sequestrators, the rule does not apply.'' 'Danl. Ch. Pr, 1836, 1837. 'Ivison V. Harris, 1 Ves. Jr., 257. 'Paxton V. Douglass, 8' Ves. Jr., 520 ; Perry v. Phelps, 10 Ves.' Jr., 38. *See ante 193 ; post, 306. MANUAL OF CHANCERY PKACTICE. 3l7 Mr. Hilliard, in his work on injunctions, says: " It is the general rule that an injunction cannot be granted against a person who is not a party to the cause. " The exceptions consist of cases either where the party en- ioined is the mere solicitor, or agent, or tenant of the party to the suit, having no rights involved in the controversy, or where the right has already determined. But an injunction, inhibiting a defendant and all other persons from selling property, until a further order of the court prevents a valid sale of the property, on execution against the defendant, al- though in favor of persons not parties to the suit.' " In ca^es of waste and trespass, although the bill only prays an injunction against the defendant, it is invariably ex- tended by the order, to his servants, agents and workmen. "" It is presumed that an injunction may also issue against a public officer who, has no interest in the subject matter of the suit, to stay the issuance or execution of process, or to re- strain him from paying over money in his hands without making such officer a party. The same principle applies to a public officer having no interest, as applies to an agent or solicitor having none.^ But if the agent, solicitor, officer, tenant, etc., has a sub- stantial interest in the subject matter of the suit, he should be made a party. By section 2332 of the Code, the suggestion of the insolv- ency of an estate, to the clerk of the county court, an adver- tisement thereof, shall operate as an injunction in all cases against the bringing of any suit before any judicature what- ever, against the administrator or executor of such insolvent estate. But by section 2333, in cases where suits have been brought before the suggestion is made, final judgment or decree may 'be rendered and certified to the county court in which the suggestion is made. By section 2381, upon a bill being filed and sustained, transferring the administration from the county to the chan- cery court, the chancellor may enjoin all the proceedings in 'Hilliard on Inj., 90. 'Danl. Ch. Pr., 1894. 'Stinson i-. McMurray, 6 Hum., 339; Overton v. Perkins, M. & Y., 3V3. 328 MAN,UAL OF CHANCEIfeY PRACTrei;. the count}' court. And by section 2383, the chancellor may enjoin the (iommencmg or prosecuting of all suits at law against the 'estate, except such as, in his discretion, he shall direct to be tried at law ; and all other suits in equity, except such as he shall direct to be tried separately. By section 2384, the chancellor may direct suits at law brought before the proceedings at law are enjoined to be dis- missed upon 'such terms as shall be just and equitable, or 'iKave judgments entered to be paid out of assets or eft'eets of the deceased when any shall accrue or come to the hands of the representatives to be administered; but the additional costs of taking such judgments shall not be paid out of the estate, unless the chancellor so direct.' By section 2385, it is provided that it shall not be neces- sary for all the parties to be before the court when an order or decree is about to be made therein, but ^ only such and so many of them as shall enable the court to do complete j ustlce in the order or decree that is to be rendered. 222a. Injunctions in favor of or against persons not parties to the suit. Where a court of chancery directs a receiver to bring a suit at law in the name of another person, upon giving the usual indemnity ; it will interfere by injunc- tion to restrain the nominal plaintift' from discontinuing or releasing the action, or from applying to the court of law to stay the proceedings.. The court will also, in its discretion, restrain third persons from instituting proceedings at law against its officers, acting under its direction, although persons by whom such suits are instituted are not parties to the suit in chancery. The court will not only interfere in this summafy, manner to protect a receiver, or other officer acting under its direction, but it will also interfere in the same summary man- ner to protect third persons against an abuse of power, at- tempted to be exercised by another under pretense of author- ity derived from the court as an officer thereof. Thus, the court by whom a receiver is appointed will restrain him from prosecuting an unjust and vexatious law suit in the name of a third person, without his consent, although the persons ap- •Dibbrell v. Williams, 3 Cold., 528. MANUAL OF CHANCERY PRACTICE. 329 plying are not partieB to the suit in wliich the receiver was appointed.^ 223. In what cases an injunction will be granted. 1. Generally. (See 4451a.) "The extent to which the jurisdic- tion" (of granting provisional injunctions), "maybe carried is not marked out by any adjudged ease, and from the nature of things, must forever remain undefined."^ " In the endless variety of cases in which a plaintiff is eu- 'titled to equitable relief, if that relief consists in restraining the commission or continuance of some act of the defendant, a court of equity administei'S it by means of the writ of in- junction."^ Mr. Eden enumerates the following as among the most ordinary objects of the writ: "To stay proceedings in the courts of law, in spiritual courts, the courts of admiralty, or in some other courts of equity; to restrain the indorsement or negotiation of notes and bills of exchange, the sale of lands, the sailing of a ship, the transfer of stock, or the alieji- ation of a specific chattel; to prevent the wasting of assets or other property pending litigation; to restrain a trustee from, assigning the legal estate, from setting up a term of years, or assignees from making a dividend; to prevent the removing out of the jurisdiction, marrying, or having any intercourse which the court disapproves of, with a ward; to restrain the commission of every species of waste to houses, mines, timber, or any other part of the inheritance ; to pre- vent the infringement of j^atents, and the violation of copy- right either by publication or theatrical representation ; to suppress the continuance of public or private nuisances ; and by the various modes of interpleader, restraint upon the mul- tiplicity of suits or quieting possession before the hearing, to stop the process of vexatious litigation."* It might be added that injunctions are not uncommon to restrain a party from collecting or bringing suit on a claim '5 Paige, 131. In this case the application was by petition in the cause in which th,e receiver had been appointed. -^WilHard's Eq. Jur., 408. ■''Eden on Inj., 11. *Eden on Inj., 10, 11. 330 MANUAL OF CHANCE iY PBACriCE. upon whicli no suit has been instituted; to restrain a party from paying debts or moneys, or delivering effects to another party ; to restrain a party from committing a trespass ; to restrain trustees from any contemplated breach of trust ; to restrain commissioners from carrying into effect an uncon- stitutional act of the Legislature, such as the erection of a new county of less than the constitutional dimensions; to restrain the authorized use of the name of a person, or firm, in any business, or of the trade mark of such person or firm ; and to restrain the breach of covenants. An injunction may also be granted to restrain the obstruc- tion of ancient lights, the diversion of watercourses, the dis- closure of secrets communicated in the course of a confiden- tial employment; and for many other purposes. "The granting of temporary injunctions is confided to the discretion of the chancellor. It is a legal discretion to ,be controlled by well settled rules. The. power to grant prelim- inary injunctions is one necessary to the protection of the citizen, but is in itself a tremendous power which may easily be misused. It involves the most delicate responsibility and requires to be exercised with the greatest wisdom and caution."' The interference by injunction, to prevent erections which are in progress, 'is the exercise of a very high power ; and when invoked on the statement of one of the parties only, ought not to be exercised except upon a strong case, made out in the bill ; and not then without ample indemnity to the other party, for any loss he may sustain, if the complainant shall fail to support his bill by proof.^ la. To stay sale of real estate mortgaged for the payment of loaned money. K'o judge or chancellor is allowed, by the Code of Tennes- see, to grant an injunction to stay the sale of real estate con- veyed by mortgage or deed of trust, with the power of sale executed, to secure the payment of money loaned, unless the complainant gives twenty days' notice to the trustee or mort- '■M. & M. R. R. V. Huggins, 1 Cold., 217. ^Newell V. Porter, 10 Hum., 325. Cited in Ranning v Eeeres, 2 Tenn. Cli., 267. MANUAL OF CHANCERY PRACTICE. 331 gagee, of the time and place, and of the judge or chancellor before whom said application for injunction is to be made, and no action shall be taken unless the notice is accom- panied by a return of the sherift", constable or attorney, sliowing that it has been served on said mortgagee or trustee; or he is not to be found in the county of his usual place of residence, or is a non-resident. Provided, that in order that the complainant may have time to give the required notice, ■ the sale of the property so conveyed, shall be postponed until the judge or chancellor acts upon the application for injunc- tion, and makes his orders in the matter. The second section of the act provides specifically what the bill, in which applica- tion for the. injunction is made, shall state and show.' 2. To stay legal proceedings. As regards injunctions to stay legal procedings, they may be obtained at any stage of the proceedingSj even after exe- cution, to stay the money in the hands of the sheriff, if it be a fieri facias, or to stay the delivery of possession if it be a writ of possession.^ In all cases in which a proper case is shown for the court to aftord relief against proceedings in a court of law, either before or after judgment, by taking jurisdiction of and set- tling the matters in controversy, by perpetually enjoining the proceedings or judgment, by granting a new trial, or by any other mode of redress whatever, a provisional injunction may be obtained to stay the proceedings till the cause can be heard. A judgment of the supreme court may be enjoined in a jiroper case.^ 3. To stay Proceedings in a foreign court. Proceedings in foreign courts may be enjoined, where the ♦parties are within the jurisdiction of the courts granting the injunction.* 'Code, 4451a. Discussed in 2 Ch., 631, and in 3 Ch., 1. 'Hani. Ch. Pr., 1845. 'Coles V. Anderson, 8 Hum., 489; Kinzer v. Helm., ?, Heis., 67Y; Palmore v. Malone, 1 Heis., 552; Vanbibber v. Smith,! Swan, 110. •Danl. Ch. Pr., 184Y, 1848. 332 MANUAL OF CHAJfCEKY PRACTICE In fact a party may, in a proper case, be eryoined from doing anytliing abroad, whether it be acts in pais, or insti- tuting or prosecuting an action in a foreign court.' 4. To stay proceedings in a Federal Court, or court of a sister State of the United. States. " Where cases are pending in a State court, in which prop- erty had been attached before any act of bankruptcy on the part of the defendant, and lie had obtained and pleaded his discharge, the assignee and all claimants of the property may be enjoined from attempting to procure process from any court not acting under the authority of the State, with a view to prevent judgments or executions in such actions; and also from applying for or attempting to execute any summary process, order or decree of any court with the view of taking from the creditors or their attorneys the fruits of their judg- ments, on account of any supposed want of right to render such judgments or their supposed invalidity, while in force and unreversed. Also from making application or institut- ing proceedings, founded on any supposed breach of an in- junction or order issued by any tribunal not acting under State authority, by reason of any proceedings in the State courts, arising after the discharge was pleaded."^ In this connection it may be remarked that a court or judge of a court of the United States can not enjoin proceed- ings in a State court. In the case of Peck v. Jenness, 7 How^, 612, the District Court of the United States had de- creed that the sheriff should deliver the goods attached by a proceeding in a State court — the court of Common Pleas of New Hampshire — or account for their value to the assignee in bankruptcy of the defendant. Which decree was made after notice to the parties of the motion for the same and a hearing of the motion. The Supreme Court of the United States say : " The Dis-- trict Court has exclusive jurisdiction 'of all suits and pro- ceedings in bankruptcy.' But the suit pending before the Court of Common Pleas was not a suit or proceeding in 'Danl. Ch. Pr., 1848; Lockwood r. Nye, 2 Swan, 521. '^Hilliard on Inj., ch. 1, sec. 01. MANUAL OF CIIANCBllY PRACTICE. 333 bankruptcy ; and although the plea of bankruptcy was in- terposed by the defendants, the court was as competent to entertain and judge of that plea as of any other. It had full and complete jurisdiction over the parties and over the subject matter of the suit; and its jurisdiction had attached more than a month before any act of bankruptcy was com- mitted. It was an independent tribunal, not deriving its authority from the same sovereign, and as regards the Dis- trict Court, a foreign forum in every way its equal. The District Court had no supervisory power over it. The acts of Congress point out but one mode by which the judgments of State courts can be revised or annulled, and that is by this .court under the 25th section of the judiciary act. In certain cases, where one of the parties is a citizen of another State, he has the privilege of removing his suit to the courts of the United States. But in all other respects they are to be regarded as equal and independent tribunals. " It is a doctrine of law too long established to require a citation of authorities, that where a court has jarisdictiou it has a right to decide every question which occurs in the cause, and whether its decision is correct or otherwise, its judgment, till reversed, is regarded as binding in every other court, and that where the jurisdiction of a court and the right of a plaintiff to prosecute his suit in it have once attached, that right cannot be arrested or taken away by proceedings in another court. These rules have their foundation not merely in comity, but in necessity. For, if one may enjoin, the other may retort by injunction, and thus the parties be without remedy, being liable to a process for contempt in one if they dare to proceed in the other. [Neither can one take property from the custody of the other by replevin or any other process, for this would produce a conflict extremely embarrassing to the administration of justice. " The act of Congress of the 2d of March, 1793, ch. 66, sec. 5, declares that a writ of injunction shall not be granted ' to stay proceedings in any court of a State.' In the case of Diggs /'. Wallcott, 4 Cranch, 179, the decree of the Circuit Court had enjoined the defendant from proceeding in a suit pending in a State court, and this court reversed the decree 334 MANUAL OF CHANCERY PEACTICE. because it had no jurisdiction to enjoin proceedings in a State court.'" " It was recently held that where a mortgage given to a citizen of another State as security for bonds is sued for fore- closure in a State court, and the defense is set up of partial failure of consideration, the State court may issue an injunc- tion against a subsequent suit upon the bonds in the United States Court, where such defense could not be made. But in general, a State court of chancery will not, by injunction, re- strain a suit or proceeding previously commenced in a court of another State, or in any of the Federal Courts.^ In a late case,' being a bill to enjoin a judgment recovered in the United states court for infringement of a patent, it is said, ' "We have not the power, if we had the inclination, to enjoin proceedings in the courts of the United States; and should hardly think of commencing so novel an enterprise in a case for the infringement of a patent, which is expressly if not exclusively confided by law to those courts. The sug- gestion in the bill that when this case was tried in the circuit court of the United States for this district, parties were not allowed, as now in our State courts, to be called or to offer themselves as witnesses, aflbrds not the slightest ground for our interference.' "^ It is generally true that a court of chancery here in the exercise of its injunctive powers over the person of a party, has not' any proper authority to restrain a suit previously in- stituted in the courts of another State of the United States. Both comity and public policy forbid the exercise of such a power." It will be seen that the decisions on this subject are very conflicting. A judgment was obtained here upon the record of a decree tendered in Virginia, which record was authenticated as required by the laws of Congress. A bill was filed to enjoin -Peck V. Jenness, 1 Howard, 612. n5 Wis., 401; 2 Paige, 402; 3 Edw. Cli., 191. "Kendall. u. Winsor, 6 R. I., 462. *Hilliard on Inj., ch. 1, sec. 62. 'Lockwood V. Nye, 2 Swan, 515; 2 Paige, 404; Diggs i'. Walcott, 4 Cranch, 179. MANUAL OF CHANCERY PKACTICE. 335 * the judgment upon the merits of the original cause in which the decree was rendered in Virginia.. Held: that the decree had no less force here than in Virginia, and that it could not be reviewed here.* If an action of debt is brought on a j udgment or decree from a sister State, it will be treated in the same manner as an action brought upon a judgment or decree of our own State, and will be enjoined for the same reasons that would authorize the court to enjoin a suit upon a domestic judgment or decree.- 5. Not granted to stay proceedings in a court of chancery, or of court exercising chancery powers conferred by statute. "It is held, that an injunction to restrain the execution of a decree in equity cannot be granted.' "And as to restraining proceedings before decree, Lord Eldon remarked, 'I do not remember any instance where this court has enjoined a party from proceeding in another court of equity. In the same court of equity you do restrain them, when there are different suits for the same purpose.' But a court of equity may withdraw its own process, m a proper case or stay it by supersedeas."* In the case of Deaderick v. Smith, 6 Hum., 138, certain lands had been sold by decree of the chancery court at Erankhn. The clerk and master recovered two judgments at law on the notes for the purchase money. The purchaser filed a bill in the chancery court at Murfreesboro and pro- cured an injunction to restrain the collection of the judg- ments. Upon the coming in of the answer, the injunction was ordered to be dissolved on condition that the defendant should execute a refunding bond. But the clerk and master, instead of executing the refund- ing bond, moved his own court for a decree for the amount due on the notes, which decree was rendered accordingly, and an appeal taken therefrom to the Supreme Court, where the 'Hunt V. Lile, 8 Yer., 142; Stegal v. "Wyche, 5 Yer., 83. 'Wilson V. Robertson, 1 Tenn., 266; Glasgow v. Lowther, Cooke, 351; Win- chester V. Evans, Cooke, 320. See Milliken's Dig., 513, sub-sec. 7. 'Ired. Eq., 481 ■ *Jackson v. Leaf, 1 Jac. & W., 232; Hilliard on Inj., ch. 1, sec 64. 33(3 MANUAL OP CHANCERY PRACTFCE. decree was affirmed. The supreme court eay : "But it is said that the suits at law and the chancery suit at Murfreesboro are impediments to the proceeding which has been adopted in this case. We do not think these proceedings at all interfere with the jurisdiction of the court in this case. The suits at law were improperly instituted. Thosejudgments ought to have been enjoined when the order in this cause was made, and the defendants should not be charged with the costs of those causes. As to the suit in equity at Murfreesboro, the court has no jurisdiction to interfere with another chancery court for the purpose of enjoining the execution of its decrees. If this were allowable, there would be endless collisions in the jurisdiction of the different chancery courts." So, where a circuit court rendered judgment by motion upon notes executed for the purchase money of lands sold under decree of that court, and a bill was filed in chancery to obtain relief against the judgment, the Supreme Court said: "If the judgment in the circuit court was erroneous, the chancery court could give no relief. The partj^ must apply to the court having jurisdiction of the cause in which the suit is pending. The chancery court has no jurisiietlou to interfere with the decrees of the circuit court exercising chancery powers conferred by statute."' The court will not enjoin its own pi'oseedings, though it may suspend its own order.^ A court of equity may withdraw its own process in a proper case, or stay execution by supersedeas.' We have seen that in the exercise of that control which the court has over its suiters, it will restrain them from pros- ecuting- different suits in the court for the same j)urpose, but will not restrain proceedings in another court of equit}-. But such proceedings in another court may be pleaded as a defense.'' We have also seen that an injunction to restrain the execu- tion of a decree in the same or another court of equity, will iWhite V. Latham, 2 Cold., 91. 'Hilliard on'Inj., ah. 6, sec. 38; Butler v. Peytoii. 4 Haj'., 88. 'Hilliard on Inj., ch. 1, sec. 64. *Anie 9Z, sub-sec. '1. MANUAL 01' CHANCERY PRACTICE. 337 not be granted. A contrary doctrine has had soma counte- nance, hilt if it is not entirely exploded, it is, perhaps, time it should be. It would comport more with the dignity of the court to withdraw or supersede its process, or suspend the execution of its decree, than to tantalize its suiter with the offer of pro- cess in one hand, so to speak, while holding in the other a whip with which to punish him for contempt if he accepts the benefit of it. It has been seen, however, that by sec. 2381 of the Code, in a proceeding for the administration of an insolvent estate in chancery, all other suits in equity as well as at law may be enjoined.' 6.. Not to compel performance of an act. The court will not ordinarily by a provisional inj unction direct the defendant to perform an act. Thus in the case of Ryder i'. Bentham, 1 Ves. 543, upon a motion to pull down certain blinds. Lord Hardwicke observed that he never knew an order to pull down anything on motion. And m an anonymous case, 1 Ves. Jr., 140, upon a motion to restrain a party from digging a ditch, and to compel him to put every- thing in the same repair which it was before by filling up so much as he had already dug. Lord Thurlow refused the latter part of the motion. In the case of Lane v. N'ewdigate, 10 Ves. Jr., 192, Lord Eldon, although he expressed a difficulty whether he could order certain banks to berepaired and a certain stop gate to be restored, said : " I think I can direct it in terms that will have that effect." To accomplish this object, he had recoui-se to a stratagem not calculated to exalt our ideas of the ad- ministration of justice. He restrained the defendant from hindering the plaintiff, etc., by continuing to keep the banks out of repair and the stop gate removed. So, it ■ seems that -the idea of the learned lord chancellor was that a defendant might be compelled to perform any de- ^Ante 222. The principle laid down above is not to be understood as apply- plying to proceedings in inferior courts. See Franklin & Columbia Pike Co. v. Maury Co., 8 Hum., 342, and Rucker v. Moore, 1 Heis., 1726. 22 338 ■ MANUAL OF CHANCERY PEACTICH. sired act by restraining him from hindering the plaintift" by continuing not to perform it. Rather an amusing kind of hindrance. The apology that the defendant was using the canal to which the banks to be repaired and the stop gate to be re- stored appertained, and that the order was merely a restric- tive order directing the manner in which he should use the canal, does not place the stratagem in a much more favorable light. But it seems now to be pretty well settled by the later cases that if the injury is already done the writ can not be applied correctively so as to remove it. That it is not used for the purpose of punishment, or to compel persons to do right, but simply to prevent them from doing wrong ; and that the leading principle which ought to be the guide of the court and limit its discretion in granting injunctions, at least where no very special circumstances occur, is that such re- straints should be imposed as may suffice to stop the mischief complained of, and where it is to stay injury, to keep things as they are for the present.' So, it is held that an injunction granted on an tx. 'parte, ap- plication, on filing the bill, does not require the defendant to do or undo anything, but simply restrains him from acting; that its office is to restrain the acts of the defendant to the suit' and not to compel him to undo what he has already done, or to restore anything further than this result from such restraint, unless issued after the decree, when it becomes a judicial process.' So^ the Supreme Court says : "An injunction in our prac- tice is a prohibitory writ, and its office is to restrain, and not compel, performance. It does not authorize any act to be done, and there can be no proceeding under it capable of being stayed by a supersedeas." The case before the court was that of a provisional injunc- tion granted at chambers, and the principle announced by the court that the writ cannot order any act to be performed, 'Hilliard on Inj., ch. 1, sec. 5. ''See Hilliard on Inj., ch. 1, sec. 5, and cases cited. 'M. & M. B. R. Co. .V. Huggins, 1 Cold., 217. . MANUAL OF CHANCERY PRACTICE. 339 18 in harmony with the policy of the provision in section 4413 of the Code, withholding from the chancellors the power of making decrees or orders in vacation, fixing or set- tling .the rights of parties. If a man files his bill in equity to be quieted in possession upon equitable matter alleged, and shows upon the face of the bill that he is likely to be turned out of possession before his claim can be investigated in court, and that he yet hath possession either of all or part of the premises, an injunction may be issued to quiet his possession till the hearing.' But a provisional injunction relative to possession and pro- hibiting entry on the same, is not to be construed as forbid- ding the party enjoined from keeping possession of that which he actually has at the time of the injunction.^ 7. Not granted to restrain a party from selling without disclosing the existence of a vendor's lien. Before the purchase money for land sold and conveyed be- comes due, so that a bill can be filed to enforce the implied lien of the vendor,, an injunction will not be granted to restrain the purchaser from selling the land without disclos- ing the existence of the implied lien.^ 8. Not granted to stay 'proceedings in a criminal matter. An injunction will not be granted to stay proceedings in any criminal matter, unless the party who is seeking redress in such criminal proceeding is the plaintiff in the suit in equity, and by thus having submitted his rights to the court, has given it jurisdiction.* 9. Successive applications for an injunction. "Injunctions, attachments, writs of ne exeat, and other ex- traordinary process, are granted by the chancellors and circuit judges, and judges of special courts."' "No such extraordinary process shall be granted unless the party applying therefor state in his bill or petition that it is the first application for such process."* -Rutherford v. Metcalf, 6 Hay., 58. '5 Hay., 58. ""Taylor v. Hunter, 5 Hum., 569. *Danl. Ch. Pr., 1838. ^Code, 4434. ^Code, 4435. 340 MANUAL OF CHANCERY PEACTICE. "If any application is made and refused, no other applica- tion shall be granted, except by the court in which the bill is filed."! It seems very evident that sections 4434 and 4435, were framed simply with a view to authorize the granting of pre- liminary injunctions by the judicial officers mentioned in section 4434, upon an ex parte application,- and to regulate those ex parte applications ; and were not intended to limit the inherent Jurisdiction and powers of the chancery court, or to regulate the practice of applications of the kind made to the court. It must be remembered, that in whatever light the matter may be viewed under the English system, under our statutes and practice in Tennessee, the chancellor, at chambers, is not in contemplation of law, the court; and that he has no jurisdiction to make any order in a case at chambers, in the absence of a statute conferring the power to do so. The acts authorized to be done by the chancellor at cham- bers are ex officio acts of the chancellor, and are not done by him as the coiirt. Then, we will proceed to notice in what cases the court will grant successive applications for an injunction. It will be seen by section 4436 of the Code, above quoted, that a refusal of a chancellor or judge to grant the applica- tion, is no obstacle to the granting ot it by the court. An injunction may be granted upon new tacts stated in a supplemental bill, though one founded upon the original bill has been dissolved upon its merits.^ But where an injunction has been already granted, a second injunction will not be granted upon a new bill wbile the former injunction is in force. That would be useless and derogatory of the authority of the court. If the injunction has been violated the remedy is by attachment for contempt. If it has been voluntarily withdrawn by the plaintiff", by some arrangement between the parties, the fact and reason of it, and the new grounds for a renewed application should be fully stated.^ "Code, 4436 "Fanning v. Dunham, 4 Johns. Ch. Rep., 35. 'Livingston v. Gibbons, 4 Johns. Ch. Rep., 571. MANUAL OF CHANCERY PRACTICE. 341 A second injunction in tlie same catise will not be granted upon new grounds, if the new grounds existed when the lirst bill was filed, nor successive injunctions upon dift'erent grounds, which might have been put at issue in one pro- ceeding. 224. Effect of an injunction. If an injunction be issued upon a wrong statement of facts made bjr the com- plainant, the defendant should submit, and -vCait until he can answer the complainant's bill and procure a dissolution of the injunction. Or, if the injunction be improperly or irreg- ularly issued upon a true statement of facts, the defendant should submit until he can get it discharged for such irregu- larity or impropriety. If he disobey it before procuring a dissolution or discharge of it, he will be in contempt and the court must punish him for it.^ The inadvertent grant of writs of attachment and injunc- tion by the court does not make them void; but the defend- ant may move for and procure them to be discharged.' It is a rule of the common law, that an execution is an entire thing, and when once commenced must be ended, and cannot be suspended ; and that when once levied upon per- sonal* property sufficient to satisfy the debt, the defendant's person and property not levied on, are discharged from further liability for the debt. It is an exception to this rule, that an execution may be suspended by injunction, and that such suspension releases personal property and restores it to the defendant. But, this exception does not extend to real property levied on ; for that continues subject to the lien of the levy notwithstanding the suspension of the sale. The clifterence arises .from the perishable nature of the one species of property, and the imperishable nature of the other.* But in the latter case it was held that there was a wide difl'erence between the general lien of a judgment upon all of the debtor's lands, and a special and fixed lien, by virtue 'Hilliard on Inj., ch. 1, sec. 89. 'Rutherford v. Metcalf, 5 Hay., 58. ^Graham v. Merrill, 5 Cold., 638. ♦Overton v. Perkins, M. and Y., 367; Miller v. -Estill, 8 ,Yer., 452 . 342 MANUAL OF CHANCERY PEACTICE. of a levy. That if nO levy was made within the twelve months which the statute then in force continued the lien, although such levy was prevented hy injunction, a bo7ia fide purchaser for a valuable consideration would take title supe- rior to the lien of the creditor, though as between the cred- itor and debtor the lien would continue. But now, if the sale within the twelve months is prevented by injunction, writ of error, appeal in the nature of a writ of error, or other adverse proceeding in court, the lien will be continued, provided the creditor shall issue execution and sell the land within one year after the injunction is dissolved, the judgment or decree affirmed, or other adverse legal pro-, ceeding dismissed,^ An injunction issued by competent authority, takes from the officer having an execution in hand, all right to proceed with it, and a sale in disregard of the injunction is illegal and the officer is liable for the value of the property.^ "Injunctions quia timet may be obtained before or after suit. If after suit, and before plea, the suit at law may proceed to issue, but must stop there. If after issue, it proceeds to judgment and there stops until the determination of the suit in equity."^ It is now the practice to allow the party enjoined after issue, to proceed to judgment, unless such liberty is expressly granted, either in the original injunction or by a modification of it. The writ of injunction is directed to the defendant and acts on him in personam, and it renders it unlawful in him to do the thing therein prohibited, or to fail or omit to do the thing therein commanded. The act being unlawful, it is to be deemed ineftectual and unavailable, as to- the purpose in- tended, as though it had not been done ; or, if that may not be, on account of the intervention of the rights of innocent persons, who had no knowledge or information of the injunction, the defendant is liable to make indemnity for his unlawful act.* 'Code, 2983. .'Stinson v. MoMurray, 6 Hum., 339. 'Hendrick v. Dallam, 1 Tenn., 427. *Farnsworth v. Fowler, 1 Swan, 1; Boils v. Boils, 1 Cold., 284. MANUAL OF CHANCERY PRACTICE. 343 Where possession of premises was taken in violation of an injunction, it was held that although the court of chancery, if applied to, would aft'ord relief, yet, if the plaintift" chose, he could oust the wrongdoer by an action of forcible entry and detainer. An innocent purchaser without notice, who has bought property and paid a valuable consideration for it, will hold a good and valid title although the sale is made in violation ol an injunction.' 225. At what time an injunction takes effect. An in- junction should be actually served upon the party as the most sure and certain way of notifying him of its contents. But if the defendant be otherwise informed of the issuance of the injunction, he will be bound thereby, as if he had been actually served, and will be committed for the breach of it. So, also, if he is informed that an injunction has been granted, and there has been no unnecessary delay in causing it to be issued, the defendant will be committed for a breach of it, because it would be a contempt to act contrary to such all order when he knew the order was made.^ In the case of Boils v. Boils and Saunders, the complainant filed her bill for divorce and alimony on the 27th of Novem- ber, 1857, and obtained a fiat for an injunction on the same day, to restrain tbe defendant from selling his land, but the same was not issued till the 2d of June, 1858, the complain- ant not having given security till that time, but the delay was caused by the difficulty complainant had in procuring security. In the meantime, Saunders, who had full notice of the fiat for the injunction, and who was the particular friend and ad- viser of the defendant, purchased the land from the defend- ant, on the 24th of December, 1857. At May term, 1858, complainant obtained a decree for a divorce and alimony, and on the 2d of February, 1859, she filed an amended bill to make Saubders a party, and set aside the sale to him, and subject tiie land to her decree. Held: That the great delay in causing the injunction to issue was excused, under the pe- 'Farnsworth v- Fowler, 1 Swan, 1. 'Farnsworth v. Fowler, 1 Swan, 1; Boils v. Boils, 1 Cold., 284. 344 MANUAL OP CHANCERY PRACTICEi culiar circiiinstances of the case, and that the attempted transfer of the land in violation of the fiat was void. 226. Effect in releasing errors. "A judgment by confes- sion, or the suing out of an injunction against a judgment at law is a release of errors."' Under the act of 1801, ch. 6, sec. 64, which was similar in its provisions to the section of the Code above quoted, the ioUowing decisions were made : In the case of Overton v. Perkins, it was held that as soon as the bill was filed and the injunction obtained, the proceed- ings in the law court were treated by the complainant as reg- ular, and the errors, if any, cured by the statute.^ In the case of Henly v. Robertson, the complainant en- f joined a judgment at law and afterwards dismissed his bill, and sued out a writ of error on the judgment at law. To the writ of error, the suing out of the injunction was pleaded; to which the dismission of the bill was replied.^ Judge Catron, in delivering the opinion of the court, said : "So soon as the writ of injunction was made to operate on the defendants in error, it worked a release of all errors at law as if judgment had been confessed. That the plaintiff, Henly, after he had superseded the judgment, dismissed his bill is immaterial. One object was a prevention of divers supersedeas. The spirit of our legislation .is, that there shall issue but one, at law or in equity. " The act of 1801 has at all times been deemed to conclude the party from disturbing the judgment enjoined. The act of 1817, ch. 199, acting on this assumption, has ordered that judgment shall be entered, upon the dissolution of the in- junction, against the complainant and his securities to the injunction bond, for the judgment below." But an injunction is no release of clerical errors. Such errors may be corrected by the court at a subsequent term to that at which the judgment is rendered, and after injunction obtained and dissolved.'' 'Code, 3107, and notes. ^Overton v. Perkins, M. & Y., 369; Simmons v. Wood, 6 Yer., 521. 'Henly v. Eobertson, 4 Yer., 172. *Blal{e V. Dunn, 5 Hum., 578. Nor does this statute prevent the setting aside a void judgment. MANUAL OF CHANCERY PRACTICE. 345 In the case of Matthews n. Douglass, Cook, 136, it was said that an injunction to stay proceedings at law would not he granted unless the defendant would confess judgment at law, so that the errors, if any, in the proceedings at law would he cured. But this tyrannical practice has heen dis- continued. Any act done hy a party enjoined which contravenes the injunction is unlawful, and as to him is to he deemed inef- fectual and unavoidahle in the accomplishment of the pur- pose intended.^ 227. Effect of a transfer of the case to the XT. S. Circuit Court. Where a case has heen removed from a State court to the Circuit Court of the United . States, under section 12 of the judiciary act (1789), it stands as if originally brought in the Circuit Court ; and therefore an injunction allowed in the State court falls hy the removal, so that the Circuit Court has no power to grant an attachment against the defendant lor a violation of the injunction before the case was removed. But a motion for an injunction on the face of the bill may be heard in the Circuit Court, as if it had been originally filed there.^ 228. Motion to discharge or to dissolve an injunction generally.^ In England there must be notice of a motion to dissolve an injunction, but this is not our practice, when the motion is made in court.''- An injunction may always be vacated on motion, when the reasons for granting it have ceased to exist. " It is the general rule that if the grounds for a pi'ovisional injunction be removed it will be dissolved." " E'o precise form is necessary, A decree authorizing the payment of money in the hands of a party to the suit, en- joined- from paying it out, is a dissolution of the injunction." So, the dismissal of the suit for want of prosecution dis- charges the injunction." 'ParnsWorth v. Fowler, 1 Swan, 6; Greenwald v. Roberts, 4 Heis., 500; Wil- hoit V. Castell, 3 Bax., 423; Stinson v. McMurray, 6 Hum., 339. ''Hilliard on Inj., ch. 4, sec. 14. ''Ante 197. *But now see Code 4444 and 4415. 346 MANUAL OP CHANCERY PKACTICE " The distinction is made that an injunction may be dis- charged for irregularity, but can be dissolved only for want of equity."! " The power of dissolving as well as granting injunctions must necessarily rest much in the discretion of the court and should be exercised so as to prevent injustice. Improbability in the statements of a bill is a strong ground for dissolving." " A defect in the injunction bond may be a good cause for dissolving the injunction on motion, but is no ground for dismissing the bill which prays other relief." But of course the plaintiff should be allowed an opportunity to gi^e a suf- ficient bond before the injunction is dissolved for such cause. " On notice of a motion to dissolve an injunction given before answer, an answer filed after the motion though be- fore the day fixed by the notice for the hearing of the mo- tion, cannot be read to support it." " Laches, neglect or delay is ground for the dissolution of an injunction. Thus, under peculiar circumstances and after a lapse of sixteen years, an injunction to stay proceedings at law will be dissolved irrespective of the merits of the ques- tions at issue. So, in a patent case, a temporary injunction will be dissolved at the next term, if the law case directed by the court to try the validity of the complainant's patent, is not brought before that time. On the other hand, delay may prevent the dissolving of an injunction. The court will not dissolve an injunction on enforcement of an important right, unless the party enjoined use due diligence in getting the question before the court." " Where a defendant is restrained by injunction from col- lecting his debts and preserving or disposing of perishable property, the complainant should apply for the appointment of a receiver, and if he neglects to do so, the court will dis- solve the injunction so far as to enable the defendant to pre- serve it himselt. A motion to dissolve an injunction may be taken and dis- posed of at any time before the cause is regularly reached on the docket or called for trial, more especially after answer. And if a bill is wanting in equity, the chancellor may dis- 'Hilliard on Inj., oh. 3, sec. 2, 3, 4 and 65, and notes. MANUAL OF CHANCERY PRACTICE, 34:7 solve the injunction in vacation, after the coming in of the answer, notwithstanding all its allegations are therein ad- mitted. " Interveners in an injunction suit can oppose the dissolu- tion of an injunction only by making out a case which would entitle them to an injunction."' " Where, after injunction, the defendant dies and the com- plainant has not revived the suit, the proper mode of pro- ceeding is by order that he revive within a specified time after service of the order, or that the injunction be dissolved. So, mutatis mutandis, where, after answer, the complainant dies."2 An injunction may be partially dissolved in accordance with the case made out by the answer.^ So, it may be modified as well as dissolved, not only in term time biit in vacation, by the chancellor of the division ■ in which the bill is filed, five days' notice of the application being given to the plaiiitifl" or his solicitor if the application is made in vacation.^ 229. Motion to dissolve before answer. "A motion to dissolve an injunction may be made at anytime upon answer, or for want of equity on the face of the bill."^ Prior to the adoption of this provision it was held that, al- though in England they never permit a motion to be made by a defendant who is in contempt for not answering; yet, as respects foi-eign or non-resident defendants, motions to dis- solve injunctions were allowed here, upon the ground that great delay and injustice might arise from frivolous bills be- fore the coming in of the answer. And that in these cases the court would not presume contumely." "On a motion to dissolve an injunction before answer, the material allegations of the bill relied upon as a ground of injunction are taken as true. The motion is like a demurrer."' 'Hilliard on Inj., ch. 3, sec. 6, 29, .SO, 90, 96, 115, 127. 'Hilliard on Inj., ch. 3, sec. 120. 'Hilliard on Inj., ch. 3, sec. 105. ♦Code. 4444. 'Code. 4445. ^Renfroe v. Dickinson, 1 Tenn., 196. 'Hilliard on Inj., ch. 3, sec. 31. 348 MANUAL OF CHAXCERY PRACTICE. "And a ground of demurrer may be relied upon, on motion to di--solve an injunction."' But it seems that it is only such grounds of demurrer as go to the equity of the bill that can be relied on upon a motion to jjissolve an injunction. That is the extent of the provis- iou*in section 4445 of the Code; and in.Hilliard on Injunc- tions, ch. 3, sec. 112, it is laid down,^ that "a misjoinder of plaiiititf 's is not ground to dissolve an injunction, but only of demurrer, more especially where it is mere form." 280. Motion to dissolve upon answer, generally. The usual method of obtaining the dissolution of injunctions is by answer. The dissolution of an injunction cannot be ob- tained by putting in a plea.^ In the case of Renfroe v. Dickinson, 1 Tenn., 196, the so- licitor of the defendant made the motion to dissolve for want of equity on the face of the bill, and at the same time held a demurrer in his hand ready to file. The court being of opin- ion that there was no equity in the bill, allowed the demurrer to be filed, and dissolved the injunction upon the demurrer, before'the demurrer was i-egularly set down for argument as was then the practice. Although this was before the enact- ment of the provision contained in section 4445 of theCode, quoted in the last preceding section, the court, according to all the authorities on the subject, committed a double error. In the first place, the injunction should have been dissolved upon motion; and in the second place, it could not be dis- solved upon demurrer until the demurrer was argued and sustained. Btit the correct result was arrived at in the case, notwithstanding these errors. "If there are exceptions to the sufliciency of the answer, a motion to dissolve the injunction upon the answer shall not be entertained until the exceptions are disposed of, unless the court should be of opinioi> that the matters of exception would not affect the motion."^ iHilliard on Inj., ch. 3, sec. 196; Code, 4445. ^3 Wend., 538; 1 Paige, 302. On tlie question dissolving injuuctiona on mo- tion, see Millilten's Dig., 62G. 'Hilliard on Inj., ch. 3, sec. 34. *Code, 4446. But see now Code, 4416t!, 44166. MANirAL OF CIIAXCEKT PRACTICE. 349 "lu all injunction cases, where exceptions are tiled to the answer, the same shall be brought before the clerk and mas- ter by the party excepting, and be heard by him, before a motion be made to dissolve the injunction, or they shall not be noticed upon the motion to dissolve."' "On notice of a motion to dissolve an injunction given be- fore answer, an answer filed after the motion, though before the day fixed by the notice for the hearing of the motiou) cannot bo read to support it."^ This is a salutary rule. The complainant should certainly have some time allowed him in which-to examine the answer and prepare exceptions before the hearing of the motion. It is a sufficient answer to aa application to dissolve an in- junction, that the equity of the bill on which the injunction rests is not denied by the answer, although no exceptions have been filed. And on the hearing of the motion to dis- solve, objections of every kind to the answer may be made, and are then in order .^ "Where a motion to dissolve an injunction is stibmitted on bill and answer, if the bill does not contain sufficient equity on its face to authorize relief, the injunction may be dis- solved and the bill dismissed.'' By the English practice, in ordinary cases an injunction is not obtained uutil an aswer comes in. ]!Tot so with us — the injunction here issues with the subpoena, though it may be moved for as in England. There, if an answer admits or evades the equitable charges of a bill the court will grant an an injunction. Our courts seem to act on the same principle in dissolving, that the courts of England do m allowing an injunction.'' But where there did not appear to be any evasion in the answer, but the defendant, being the personal represenative of the deceased with whom the transactions complained of were had, answered that he. had no knowledge of those mat- ters, but from some circumstances of which he had been 'Old Ch. Rule 8. 'Hilliard on Inj., ch. 3, seo. 30. 'Hilliard on Inj., ch. 3, sec. 86. *HiIIiard on Inj.. ch. 3. sec. 38. ^Haynes v. Hazelrigg, 1 Tenn., 242. Code, 4439 to 444*. 350 MANUAL OP CHANCERY PRACTICE. informed believed the statements in the bill to be untrue : it was held to be improper to continue the injunction, and it was accordingly allowed to be dissolved upon condition that a refunding bond should be executed.' The general practice of the court is not to admit affidavits to be read to continue an injunction, but instead of receiving affidavits to uphold the injunction a refunding bond will be required in every case of a dissolution .where there is reasonable ground to suppose that the parties will not be in statu quo at the hearing. But in some cases, such as violation of copyrights, or bills to restrain waste where the injunctiou is the remedial part of the bill, and great and irreparable injury might result from the dissolution, affidavits may be read to resist the applica- tion to dissolve.^ Where the injunction, though collateral to the main ques- tion, is the only efficient part of the bill, affidavits may be read to continue it.^ But "in no case can affidavits be received to keep up an injunction, except where irreparable mischief would follow from the delay of entering into the plaintiff's case till the hearing, as in cases of waste, etc."^ Upon a motion to dissolve upon an answer, if by such dis- solution the complainant is likely to be deprived of all the benefits of the suit, the injunction will not be dissolved. 'Nor, in general, in case of irreparable mischief, or where fraud is the gravamen of the bill.^ "An answer founded on hearsay is not sufficient to remove the complainant's equity, though resting upon infotmation derived from others, it denies the facts out of which that equity arose.^ Credit can only be given to the answer, in so far as it speaks of responsive matters, within the personal knowedge 'Haynes u. Hazelrigg, 1 Tenn., 242. 'Davis B. Pulton, 1 Tenn., 121. 'Davis V. Pulton, 1 Tenn., 121. *Moredock v. Williams, 1 Tenn., 325. ^Billiard on Inj., eh. 3, sees. 41, 42. 'Hilliard on Inj., eh. 3, sec. 43. But see Davis v. Fulton, 1 Tenn., 121. MANUAL OF CUANCBRY PRACTICE. 351 of the defendant ; and unless so speaking, the equity of the hill is sworn away, the injunction cannot he dissolved. The distinction is made, that if the allegations he weakly made in the bill, as upon belief mei-ely, and strongly denied in the answer, the injunction should be dissolved. But in order to warrant ^-dissolution, it is necessary that the answer should deny any material allegations with the same clearness and certainty as they are charged. It must appear that the answer fully meets the plaintiff's equity. It must not be deficient in frankness, candor, nor precision, nor must it be illusory. The answer can be regarded only so far as it is responsive to the bill. It is more especially held, that on a charge involving fraud, either actual or constructive, especially where direct interrogatories are put, in relation to particular facts, the court cannot be satisfied with a general answer, or one in any way evasive, as a ground for dissolving an injunction. To entitle the defendant to a dissolution, an answer to the several charges of the bill, literally, is not sufficient ; it must traverse the substance of the charges. A mere formal and technical denial is not, as of course sufficient.' The denial must, on the other hand,. be specific. Thus, where a judgment on a covenant to pay certain costs was en- enjoined, the complainant alleging that no costs had been incurred, it was held that an answer, alleging that the de- fendant had expended large sums of money, but not par- ticularizing them, was not sufficient to dissolve the injunction. On a motion to dissolve an injunction before the plaintiff" has had an opportunity to examine witnesses, every allega- tion positively sworn to in the bill which is not substantially denied in the answer upon the defendant's own knowledge, must be taken as true. So, if the answer neither admits nor denies the allegations of a bill, they are to be taken as true, if the defendant might have answered directly. Matter in avoidance, or new matter, not responsive to the hill, is not evidence on a motion to dissolve an injunction on bill and answer, though the answer sets up a complete de- >Hilliar(i on Inj., ch. 3, sees. 43, U, 45, 46. 352 MANUAL OF CHANCERY PRACTICE. fense to the bill, but fails to deny the allegations on which the injunction was granted. The statute of limitations insisted on in an answer is not a sufficient ground for a dissolution of an injunction. The dissolution of a provisional injunction is not a decision upon the merits, aind does not preclude a decree being ren- dered for a perpetual injunction at the hearing. Where the answer only entitles to a partial dissolution, it is error to dissolve the injunction for more than is claimed in the answer. Where an injunction is prayed for to prevent irreparable injury, and the case as it appears on the bill is a proper one for the interference of the court, if any of the material facts are denied in the answer, the court will not dissolve the in- junction upon the bill and answer alone, but hold it over un- til proofs are taken. If an amendment to a bill presents no new case and charges no equities, the defendant may move a dissolution of an injunction upon his answer to the original bill, without answering such amendment. Where the defendants answer that they have no substantial interest in the subject matter of the bill, but that a third per- son, not a party, is alone interested, the court Avill not dis- solve the injunction at their instance for his benefit.^ "A motion to dissolve an injunction on the coming in of the answer after the death of the complainant, administra- tion not having been granted on his estate, will not be heard." " Where a receiver has been appointed in a creditor's suit, it is not a matter of course to dissolve the injunction upon a full denial of the equity of the bill, if there is good reason for retaining the property in the hands of the receiver." With regard to the nature, weight and legal admissibility of testimony upon applications of this nature, it is held that an injunction will not be dissolved, as a matter of course, on the coming in of the answer denying the equity of the bill, if the complainant has adduced auxiliary evidence of his 'Hilliard oh Inj., ch. 3, sees. 46, 50, 51, 55, 56, 60, 68, 73, 83, 116. MANUAL OF CHANCERY PRACTICE. 353 rigM. And, on the other hand, that on a motion to dissolve an injunction, the defendant ought not to be required to in- validate, by full proof, the allegations of the bill ; the burden is on the plaintiff to support them, and the defendant is re- quired only to show that the evidence on which the injunc- tion was granted is not entitled to credit. It is not expected that a party shall come as fully prepared with proofs as he might do on a final hearing. The bill can only be read as an affidavit.! 231. Motion to dissolve upon answer where answer under oath is waived, and upon answer of a corporation. An injunction ought not to be dissolved upon an answer not under oath, and where evidjence of the truth of the facts are not furnished. Though the plaintiff has waived an answer on oath, the answer must still be sworn to in order to dis- solve an injunction. And the defendant may answer under oath for that purpose with the same effect as other sworn an- swers. If the plaintiff waives an answer on oath from all the defendants, and one of them answers on oath denying the whole equity of the bill, he may move to dissolve the in- junction upon his answer, though the other has put in an answer not under oath.^ An injunction will not be dissolved upon the answer of a cbrporation verified only by its corporate seal. The corpo- ration may answer the bill under its corporate seal, but the injunction will not be dissolved without the oath of some agent or member of the corporation acquainted with the facts stated in the answer.* 232. Motion to dissolve where only a part of the de- fendants have answered. " Where a part only of the de. fendants apply to dissolve an injunction, it can be dissolved as to them only. And if the plaintiff has used due diligence to obtain the answers, exceptions to the answers of some of the defendants, submitted to .or allowed by the master, ar« sufl&cient to defeat a motion to dissolve an injunction. A 'Hilliard on Inj., ch. 3, sees. 123, 126, 70. 'Hilliard on Inj., ch. 3, see. 94. *Hilliar(i on Inj., ch. 3, sees- 109, 110. 23 354 MANUAL OF CHANCERY PRACTICE. complainant has the right to make every one a party who is a participator in the fraud, for the purpose of discovery ; and generally to hold his injunction until he obtains the discov- ,ery. The answers of all the defendants implicated must be perfected before the injunction can be dissolved. So, where the defendant, who has been restrained, denies the equity, but others most interested in the subjeci; matter admit all the material allegations, the injunction must stand. So, on a bill for an injunction against two, and an answer by one only, that he is ignorant of the facts charged, the injunction will not be dissolved until the answer of the other is put in. If the answering defendants are unable, from want of knowl- edge, to deny rnaterial allegations of the bill, the injunction is retained, and this although tlje only defendant who can answer such allegations is absent from the State. "But a motion to dissolve an injunction may be granted, though one of the defendants has not answered, if his' an- swer would not affect the rights of the party enjoined. Or, upon the answer of those defendants within whose knowl- edge the facts charged in the bill must be, if they exist at all, although there are .others who have not answered. Or, upon the answer of the defendant who alone is interested, denying all the facts and circumstances charged in the bill upon which the equity is based. Or, before the answers of merely nomi- nal defendants. Or, where the defendants have not an iden- tity of interest, and the act of one will not affect the other. And in general, though an injunction upon parties jointly implicated will not be dissolved, without the answer of the defendant on whom the gravamen of the bill rests; it is oth- erwise, if the defendant who answers is able to lay the facts before the court, which show that the complainant has no equity. Or, if the plaintiff has not taken the requisite steps to compel an answer from all. And where the defendants on whom the gravamen rests, have fully answered, they may ap- ply to have the injunction dissolved as to them, although a co-defendant has not answered. Nor is the general rule ap- plicable where the injunction has not been properly granted. In such cases, the cause will be placed in a situation to obtain a dissolution without the answer. MANUAL OF CHANCERY PRACTICE. 355 " More especially will the answer of one be sufficient, where the party not answering is not charged in the bill with any particular knowledge of the facts alleged, and the parties who have answered wei-e so charged. Or, if all have an- swered, against whom the complainants claim an equity. Or, if the defendant on whom the gravamen of the charges is made, has fully answered." Before the plaintiff can oppose the dissolution, on the ground that one of the defendants has not answered, he must have taken the proper steps to compel an answer, or must show a sufficient excuse for the omission.^ 233. Effect of a dissolution. An order dissolving an in- junction removes the prohibition imposed by the injunction, but does not itself require or authorize the doing of any act. The injunction being removed, the party may act at his peril, as if the injunction had not been issued; but he does not act under and by virtue of the order dissolving the injunction.^ The principles above announced are correct when applied to the facts of the case. It was the case of a dissolution at chambers, and the chancellor is not authorized to make or- ders, adjudicating the rights of parties, at chambers. But it must not be inferred that the court may not combine in an order dissolving an injunction, any other order necessary or proper to be made in the cause. Where judgments at law, upon which executions have issued, and levied upon lands, are enjoined; after the dissolu- tion of the injuncfion, nothing more is necessary to author- ize the sheriff to sell, than writs of venditioni exponas ; the lands are to be regarded as in custodia legis, and the death of the defendant in the judgments, after execution had been issued and levied, does not render a scire facias necessary against his heirs or terre-tenants.' 234. Effect of an appeal upon the dissolution of an in- junction. Where an injunction is dissolved in the chancery court upon an interlocutory order, the supreme court, on the 'Hilliard on Inj., ch. 3, sees. 32, 106, 107. m. & M. R. E. Co. V. Huggins, 7 Cold., 217. 'Hilliard on Inj., ch. 3, sec. 159. 356 MANUAL OF, CHANCERY PRACTICE. cause-being removed thither after final decree, cannot restore it. Bilt when the dissolution . of the injunction is the conse- quence . of the final disposition of the cause, an appeal does not indeed restore the injunction, but continues it until the final hearing in the appellate tribunal. And where an injunction was dissolved at the heariiig, and an appeal was prayed and granted but was omitted to be put upon the record by the clerk, it was held that upon the cause being removed to the Supreme Court upon writs of certiorari and supersedeas, the court would place the complainant in the situation he would have occupied, had he not been deprived of his appeal by the neglect of the clerk.' A verdict for the defendant in an equity cause does not dissolve an injunction unless it is a final verdict ; i. e., unless it is permitted to stand. ^ 235. Reviving injunctions. "Injunctions are sometimes revived after dissolution on the merits. Or, awarded afresh on special motion, or new facts stated in an amended or supplemental bill, or on proof taken. A court of chancery is always open to re-instate, as well as to grant, an injunction. If the dissolution of an injunction be improperly obtained, it will be revived." A special order is necessary to revive an injunction which has been dissolved. The making a writ of error operate as a supersedeas will not have this effect.' An injunction which has been dissolved will not be reinstated upon complainant's petition supported by an ex parte aflidavit, stating that the complainant had lately dis- covered that he could prove the facts set forth in the bill. For if he could prove the allegations of his bill by fifty wit- nesses, yet if they are denied by the defendant in his answer, the injunction must be dissolved, and a motion to reinstate founded on the affidavits of those witnesses themselves ought to be refused.* 'Kearney u. Jackson, 1 Yer., 294; Humphreys Co. v. Houston Co., 4 Bax., 591. 'Hilliard on Inj., ch. 3, sec. 85. 'Hilliard on Inj., ch. 3, sec. 98. *Lowery v. McGhee, 5 Yer., 238;^ Davis v. Fulton, 1 Tenn., 121; Moredock v. Williams, 1 Tenn., 325. See case collected in Milliben's Dig., 426, sub-sec. 6. MANUAL OF OH ANCEBY 'PRACTICE. 357 236. Injunction bond, and judgment thereon upon a dissolution of the injunction. As the judgment proper to be rendered upon the bond, will depend very much upon the condition, it is deemed proper to quote, in this connection, the provisions of the Code on the subject of injunction bonds, which are as follows : "Before issuing the writ of injunction, the clerk and master shall take from the complainant, besides the usual bond for the prosecution of the suit, a bond conditioned, ac- cording to the object of the bill as follows : "(1.) "When a judgment at law has been obtamed, the con- dition of the bond shall be to pay the amount of the judg^ ment at law, with interest, damages and costs, or to perform the decree of the court, in case the injunction is dissolved, and also to pay such damages as may be sustained by the wrongful suing out of the injunction. "(2.) "When, before judgment at law,^ the investigation of the questions involved has been drawn by injunction into the -court of chancery, upon the ground of a concurrent jurisdiction in that court, the condition of the bond shall be to pay costs and damages awarded by the chancery court on dismissing the bill."^ " The damages may be ascertained by the court in which the cause is heard, and injunction dissolved, upon reference to the clerk and master, and proof or upon an issue of fact to be made up and tried as in other cases of issue of fact, if the parties elect to have a jury.^ "Upon the dissolution of an injunction, to stay proceed- ings on a j udgment for money in whole or in part, the de- cree, interlocutory or final, shall be entered against the com- plainant and his sureties for such . amount as the court may order ; and the clerk and master shall issue execution thereon."^ "Where the injunction bond is not of a class, the condition of which is prescribed by statute, the chancellor may, in his 'Code, 4439. "Code, 4442. 'Code, 4447 and note. 358 MANrAL OF CHANCERY PRACTICE. fiat, prescribe the condition, and the condition to be required in such case is a matter to be governed by his discretion.^ The Chancery Court has jurisdiction to render a decree against the sureties in bonds taken in the progress of a cause, such as prosecution, injunction, refunding, attachment and replevy bonds, independently of statute.^ It may be remarked that the later decisions go much further than the earlier ones in upholding the jurisdiction of the court to grant relief against quasi parties, and to grant that relief in a summary manner without notice.^ But as the sureties in an injunction bond are only collate- ral parties to the suit, the mere omission to decree against them in the suit in chancery does not oust a court of law or other court of chancery, of jurisdiction in a proper case, to enforce their liability. 'Sot would the mere refusal of the court to decree against them on a motion made for that pur- pose have the effect to discharge their liability, unless it ap- pears that being properly before the court, such court ad- judged upon its construction of the bond, that they were not liable, and such judgment remained in force and unreversed.* Under the act of 1817, ch. 119, sec. 1, it was held that where the injunction was dissolved upon the abatement of the suit by the death of the complainant, the statute did not authorize a summary judgment against the sureties." The section under which these decisions were rendered was as follows : " When any injunction shall be obtained to stay the col- lection of money on a judgment, and the same shall be dis- solved on motion or on the final hearing of the cause, it shall be the duty of the clerk of the court in which the injunction shall be dissolved or final decree made, to enter up judgment against the party obtaining the same and his sureties for the amount of the principal, interest and costs, and execution shall issue as in other cases." 'Newell V. Partee, 10 Hum., 325 ; Black v. Caruthers, 6 Hum., 87 ; Ranning v. Beeves, 2 Tenn. Ch., 267. 'Black V. Uaruthers, 6 Hum., 87. 'But see Coltart v. Ham, 2 Tenn. Ch., 356; Patterson v. Stewart, 6 Yer., 26; Sarratt v. Elifif, 4 Hum., 323; Hammond v. St. John, 4 Yer., 107. *Black V. Caruthers, 6 Hum., 87. « 'Patterson v. Stewart, 6 Yer., 26 ; Garratt v. Eliff. 4 Hum., 323. MANUAL OF CHANCERY PRACTICE. 359 It will be seen that the provisions of this section and those of sectian 4447 of the Code are not identical, but an opinion will not here be volunteered as to the difference, if any, in the effect. Ifeither will an opinion be volunteered as to whether the clerk and master has power to exact a bond or prescribe any condition in other than the two cases provided for in section 4447 of the Code, in the absence of a fiat di- recting a bond to be taken and prescribing the condition. Under the former practice the chancellor did not always exact an injunction bond.' "Where the sale of slaves upon which an execution was levied was enjoined by a person other than the debtor, and the slaves re-delivered to the complainant upon an injunction bond being executed, and upon the final hearing of the cause the injunction was dissolved, it was held that the slaves were in custodia legis, and that their emancipation by the people of Tennessee exonerated the complainant from his obligation to deliver them up or account for their value.^ And where in an injunction of a similar kind the slaves died without negligence of the complainant, it was held that the slaves being in custodia legis the complainant's obligation to deliver them or account for their value was released by their death .^ 237. Refunding bonds. "Where an injunction is dissolved before the hearing of the cause, a refunding bond should be required in every case in which there is reason to suppose that the parties will not be in statu quo at the hearing.* "Whenever, by interlocutory order or decree, the injunction to stay proceedings on a judgment at law for money is dis- solved, the chancellor shall require of the defendant a refund- ing bond, in double the amount of the sum to be collected, payable to the opposite party land conditioned to refund the amount collected if so ordered on final hearing; and the court may render a decree upon such bond, against any or all the parties thereto." See also sec. 3109, authorizing the ^Conway v. Jett, 3 Yer., 481. 'Green v. Smith, 4 Cold., 436. ^Mosley v. Baker, 2 Sneed, 362. *Davis V. Fulton, 1 Tenn., 121. ^Code, 4448. 360 MANUAL OF CHANCERY PRACTICE. Supreme Court to render judgment without scire facias or notice, on all bonds taken according to law in the progress of the suit. The chancery court has jurisdiction to render a decree against the sureties in bonds taken in the progress of a cause independently of statute.' The doctrine of the summary jurisdiction of the court against quasi parties, was not then recognized as it is now. 238. Violation of injunctions.^ So far as the rights of plaintifl' are aflected by the breach of an injuntion, it is no defense to the party violating the injunction, that he acted with the advice of counsel, though if he has acted in good faith, he may be protected from punishment for a criminal contempt. Defendants duly served with an injunction are personally responsible for a violation of it, in whatever capacity they acted, and from whatever motives. Praymatic trespassers, pending an injunction, may be com5 pelled to remove at their own cost, all erections made by them in breach of the injunction. An injunction upon a creditor is violated by a sale by the officer, in his presence, without objection, the officer being so far his agent. Although an injunction improperly issued must be respected as long as it is in force, after a dissolution, a motion for an attachment, for a violation of the injunction while in force, cannot be sustained.^ A party in contempt for violating an injunction, cannot be heard in the principal cause till he has yielded obedience to the injunction.^ v Indeed it is a general rule that a party who is in contempt, though it be but an attachment for want of an answer, is never to be heard by motion or otherwise till he has cleared his contempt and paid the costs. 'Black V. Caruthers, 6 Hum., 87. The earlier cases did not recognize this doctrine. See Patterson v. Stewart, 6 Yer., 26; Garratt u. Eliff, 4 Hum., 323, and other cases. ^Anie, 224, 225. 'Hilliard on Inj., sees, 4, 5, 6, 7, 14. *Rutherford v. Metcalf, 5 Hay., 58. MANUAL Oy CHANCERY PRACTICE. 361 But the rule is confined to proceedings in tlie same cause, and a party in contempt for not obeying an order in one cause, will not thereby be prevented from making an application to the court in another cause, relating to a distinct matter, although the parties to such other cause may be the same. Neither does the rule prevent him from making applica- tion to set aside the order for process of contempt against him, or to discharge, for irregularity, the order, for the vio- lation of which the contempt was incurred. He may also be heard in opposition to any special appli- cation which the other side may make upon noJ;ice served upon him.' 239. Remedy for violation of an injunction. The pro- visions pf section 4361 of the Code Avere evidently not in- tended to apply to any contempt other than that of failing to appear arid defend within the time required by law, after being 'served with process.^ But the provisions of sub-sec. 3 of sec. 4106, and the pro- visions of sees. 4107-4111 of the Code are applicable to at- tachments for contempt for the violation of injunctions ; but it is presumed that it was not intended thereby to limit the inherent power of the court to resort to other modes of redress than an attachment for the contempt. On the con- trary, it is provided by sec. 4478, that courts of chancery may' enforce rules, orders or decrees, by process against the person in default, or by process against his property.' Therefore where the injunction is against a corporation, or against a defendant who goes abroad or eludes the sheriff so that he cannot be attached, it is presumed that a commission of sequestration -or any other appropriate process might issue to reach the property of such Corporation or person, for the purpose of enforcing obedience to the injunction, or satisfy- ing any damages sustained by its violation. 240. Procedure by attachment for contempt. Where a party violates an injunction or any other order or decree of the court, if the fact of the violation does not appear in the "Danl. Ch. Pr., 554, 555, 556. 'Chancery Rule, 7. ^Post 314. 362 MANUAL OP CHANCERY PRACTICE. record, affidavits showing the breach must be made. If the breach is after a final decree, it seems that the party to be proceeded against should have notice of the application against him to show cause why an attachment should not issue. Upon the hearing of the motion (the fact of the ser- vice of the injunction, decree or order, appearing by the re- turn of the sheriif or affidavit of its service ; or it appearing that the party had knowledge of such injunction, decree or order), the defendant may show cause by counter affidavits. The court may in its discretion grant either party further time, and n^ay direct the clerk and master to issue subpoenas, and bring before him to make affidavit for either party any person who is unwilling to attend. And on the day ap- pointed, the court will proceed to examine upon affidavits the charge respecting the breach, and if the court find that a breach has been committed, the attachment issues. The plaintiff thereupon files interrogatories in the clerk's office, which, if the defendant will not answer before the clerk and master in writing on oath, by a day to be assigned by the court, then, upon motion, he shall be committed. If he sub- mit to examination and confess the contempt, he must submit to the court, and perform what it requires, and pay costs. If, on examination he denies the contempt, the plaintiff descends to proof before the court, and produces witnesses whom the defendant may cross examine : and the defendant may also produce witnesses on his part to show that he is not guilty. And upon a full hearing, if the court be of opinion that he is guilty, he must stand committed and pay costs.' In another case the procedure was as follows : After a final decree had been rendered, perpetually enjoin- ing the defendant from doing certain acts, affidavits were filed alleging a violation of the injunction by the defendant and one Underwood, and process of attachment was there- upon awarded against them. Underwood was arrested. The Supreme Court said : "Interrogatories have not been filed, as would, perhaps, have been the proper, at all events, the more regular course, touching the contempt. But he (Underwood) has filed, on 'Rutherford v. Metcalf, 5 Hay., 58. MANUAL OF CHANCERY PKACTICE. 363 oath, an answer in relation to Ma conduct and rnotives in the premises, which his counsel deeming full and satisfactory, have thereon moved the court that he be discharged. This is opposed by the other side, and in resistance thereof they insist that they are entitled by counter affidavits or opposing testimony to show that the explanation given in said answer, and the grounds of excuse or exculpatioi( therein set forth, are not true." The court decided that it was well settled that such counter affidavits or opposing testimony might be received in pro- ceedings of contempt in a court of chancery, though the rule in a court of law was different.' 241. Motion to require a plaintiff to elect between rem- edies. Where the plaintiff is suing both at law and in equity, at the same time, lor the same matter, it cannot be pleaded in abatement as can the pending of another suit in equity, but the defendant is entitled to an order that the plaintiff elect whether he will proceed with the suit in equity, or with the action at law. This practice originated, or at all events, the grounds of it are explained in the 18th Ordinance of Lord Bacon, which is in the following words : , "Double vexation is not to be admitted; but if the party sue for the same cause at the common law and in chancery, he is to have a day given to make his election where he will proceed, and in default of making such election, to be dis- missed." As the remedies given at law and in equity are different, it is sometimes difficult to determine whether a suit and an action are so far identical in their objects, as to give the de- fendant a right to call upon the plaintiff" to elect between the two.^ When the plaintiff is proceeding in two suits in equity at the same' time, for the same subject matter, the defendant cannot compel him to elect which suit he will proceed in, but he pleads the pendency of one suit in abatement of the other. 'Underwood's case, 2 Hum., 46; State v. Rust, 2 Tenn. Ch., 181. »Danl. Ch. Pr., 961. 364 MANUAL OF CHANCERY PRACTICE. See form 6i the plea, sub-sec. 1 of section 92, ante. The' mere pending of a suit in a foreign court (and such is a court of chancery of a sister State) cannot be pleaded in abatement or in bar of a suit in our own State for the same matter .* 242. Gases of special election. In the case of Barker v. Dumeresque, 2 Atk., 119, the plaintiff filed his bill for a discovery -of the assets, and relief against the defendant as administrator. The defendant, to give preference to other creditors, con- fessed judgments in their favor, whereupon the plaintiff sued him at law on the same demand sued for in equity. Lord Hardwicke discharged the usual ord6r which had been obtained by the defendant requiring the plaintiff to elect between the two suits, but gave the plaintiff' leave to make a special election to proceed at law to recover judgment with a stay of execution, and at the same time to proceed in chan- cery for a discovery and account of asse's. In the case of Livingstone v. Kane and others, 3 Johns. Ch. Rep., 224, a bill was filed by a creditor of James Kane, (who had become insolvent), to set aside judgments con- fessed by him in favor of certain other creditors, which con- fessions of judgment it was alleged were fraudulent. A . provisional injunction was obtained to restrain the creditors in whose favor said judgments were confessed from proceed- ing to subject the assets of said Kane to the satisfaction of their debts. While this injunction was pending the plaintiff instituted proceedings at law to collect his own debt against Kane ; and thereupon the defendants petitioned the court praying that the plaintiff should be compelled to elect in which case he would proceed. Chancellor Kent said : " This is not an ordinary case of election. The plaintiff is not pros- ecuting the defendants here and at law, ' for one and the same matter or demand,' according to the language of the books in such cases." • • • • " The suit at law is a judgment against James Kane for a debt not in dispute, and the plain- tiff is endeavoring to raise the debt by execution. The object of the suit here is to set aside as fraudulent prior judgments 'Lockwood V. Nye, 2 Swan, 515. MANUAL OP CHANCBKY PRACTICE. 365 which the defendants as creditors of James Kane have obtained against him. The integrity or validity of those prior judgments is not questioned in the plaintiff's suit at law ; nor does any proceeding under the plaintiff's judgment at law necessarily disturb them. But the hardship of the case consists in this, that the defendants are restrained by the plaintiff's suit here, and the injunction which he has pro- cured, from pursuing their execution on their judgments at law, while he is continuing his remedy there, and seeking ad- vantages, by an intermediate sale of the debtor's property." • • • • " Such advantages ought not to be gained by means of the process of this court." The following is the order which was made in the case: "Ordered, that the plaintiff, by his counsel, forthwith elect and agree either to stay his execution at law,in said petition mentioned, during the continuance of the injunction hereto- fore issued in this cause, or that said injunction be dissolved. And the said plaintiff", by his counsel, having declared before the chancellor, that he should not consent to elect to stay the execution at law : It is, thereupon, further ordered, that said injunction be dissolved, and the question of costs upon this application, and all other questions, are reserved , until the hearing." It may be remarked that it is not usual to require the elec- tion to be made forthwith. Ordinarily, reasonable time should be given. 243. Time and manner of procuring, and efiFect of the ordinary order to elect. It is said that a defendant has never been permitted to apply for an order to compel the plaintiff to elect, till he has answered the bill. It is also said that a plea or joint plea and answer is not such an answer as will entitle the defendant to apply for the order. But why not? "Why should a defendant who chooses to de- fend by plea or joint plea and answer be subjected to " double vexation" anymore than the party who defends by answer?' In Englahd the order to elect is obtained, as of course, upon the suggestion that the plaintiff is prosecuting the de- 'Danl Ch. Pr., 962, 963; Soule v. Corning, 11 Paige, 412. 366 MANUAL OF CHANCERY PRACTICE. fendant, both at law and in chancery, for one and the same matter. The order under their practice requires the plaintiff within eight days after he and his solicitor have notice there- of, ta make his election in which court he will proceed, and if the plaintiff" siiould elect to proceed in chancery, then his proceedings at law are to be stayed by injunction ; but if he elect to proceed at law, his bill thenceforth stands dismissed with costs. Under the English practice the court has no discretion to reluse the order ; but when the defendant has obtained the order the plaintiff may move to discharge it for irregularity, or upon the merits confessed in the answer. If upon such a motion there should be any doubt as to whether the suit in equity and the action at law are for the same matter, it is the usual course to refer it to' the master to inquire into that fact.' 244. Forms of interlocutory orders. {See see. 253, post). Interlocutory orders are so various that it would be imprac- ticable to attempt to enumerate them, much less to give forms for them. Scarcely any two orders, even of a like nature, are precisely similar. A sufficient number of forms are here given to serve as a guide to the young members of the bar : 1. Order pro confesso. Jacob Givens, adm'r. of Z'achariali Givens, deo'd., vs. James Givens, Jonas Givens and others. In this cause, it appearing to the court that James Givens has been regularly served with subpoena to answer, and that Jonas Givens has been regularly made a party to complainant's .bill by publication duly made, and that both said James Givens and said Jonas have failed to appear and make defense to said bill within the time required by law; it is ordered that, as to them, complain- ' ant's bill be taken as confessed, and the cause set for hearing ex parte. 'Danl. Ch. Pr., 963, 964. We have seen that, in England the order to elect is obtained as of course upon the suggestion that the plaintiff is prosecuting the defendant both at law and in equity for one and the same matter. As regards the practice in America, in the case of Livingston D. Kane, 3 Johns, Ch. Rep., 224, the application W9,s by petition, In Soule v. Corning, 11 Paige, 413, the application was by motion. No reasoa is perceived why the application may not be by motion, accompanied by an affidavit of the truth of the suggestion, unless there is evidence of the fact of record. MANUAL- OF CnANCERY PRACTICE. 367 2. Order setting aside, order 'pro confesso. Jacob Givens, adm'r., etc., vs. James Givens and others. In this cause, for good and sufficient cause shown to the court by' the affidavit of James Givens, it is ordered that the judgment pro confesso heretofore en- tered against him be set aside, and that he be permitted to file his answer to complainant's bill. A non-resident defendant who has not been served with process may appear and defend at any time before final de- cree, as ot course.' The order in such case might be as follows : Jacob Givens, adm'r., etc., vs. James Givens, Jonas Givens and others. In this cause Jonas Givens, who is a non-resident, and who has not been served with process, enters his appearance, and by his solicitor moves the court to set aside the judgment jpro confesso heretofore rendered against him, and to permit him to make defense to complainant's bill; and it is ordered accord- ingly- 3. Order appointing guardian ad litem for minors. D. W. Lattimer, vs. Martha Gurley and others. In this cause, on motion of complainant's solicitor, it appearing to the court that Josephine Gurley and George Gurley, two of the defendants to complain- ant's bill, are minors and have no regular guardian ; the court is pleased to ap- point John Minis guardian ad litem to defend this suit for said minors. 4. Order appointing an administrator. . D. W. Lattimer, on behalf of himself and the other creditors of C. A. Gurley, deceased," vs. Martha Gurley and others.- In this cause, on motion of complainant's solicitor, the court is pleased to ap- point Harvey Bi-ight administrator of the estate of C. A. Gurley, deceased, and the said Harvey Bright thereupon appeared in open court and accepted said trust, and having been sworn to perform the duties of administrator, and having given bond in the sum of two thousand dollars, with D. W. Lattimer and ^Anfe, 70. 368 MANUAL OP CHANCERY PRACTICE Joseph Johnston his securities, conditioned for the faithful performance of all the duties required of him by law in the administration of said estate ; it is or- dered that he be clothed with all the powers of administrator of said C. A. Gurley, deceased. 5. Order dissolving an injunction and form of refunding bond. John Smith, vs. William Jenkins. The defendant, by his solicitor, moved the court that th« injunction hereto- fore granted in this cause be dissolved ; and it appearing to the court that since the granting of said injunction the defendant has put in a full and perfect an- swer to complainant's bill, and thereby denied the whole equity of said bill, it is ordered accordingly. Under our practice in Tennessee, it is not usual to dissolve an, injunction, before the hearing of the cause, without requiring a refunding bond. A refunding bond should always be required in cases in which there is reasonable ground to suppose that the parties will not be in statu quo at the hearing.' "Where a refunding bond is required, add to the aboye form, these words : " IJpon the defendant executing a refunding bond with good and sufficient security in the sum of dollars." It will also sometimes be necessary, and always proper, to specify in the order the condition of the bond, which will, of course, vary according to the circum- stances of each case. Where an injunction restraining the collection of a judg- ment at law is dissolved, the refunding bond may be in the following form : We, William Jenkins, Thomas Jenkins and John Doe, acknowledge our- selves held and firmly bound untp John Smith in the sum of one thousand dollars. The condition of the above obligation is such that: Whereas, on the 1st day of January, 1870, in the case of said John Smith against the said William Jenkins, pending in the chancery court at Knoxville, it was ordered that the injunction previously granted in said cause restraining said Jenkins from pro- ceeding further in the collection of a certain judgment which he recovered against said Smith in the Circuit Court of Knox county, on the 1st day of July, 1869, for five hundred dollars and the costs of the suit, should be dissolved •Davis ii. Fulton, 1 Tenn., 121. MANUAL OP CHANCEUY PEACTICE. 369 upon the said, William Jenkins executing a refunding bond witli good and sufficient -security in the sum of one thousand dollars: Now, if the said William Jenkins, shall, in case said suit shall be decided against him on the final hearing thereof, refund the amount with interest which he shall in the meantime have collected upon said iudgment, then this obligation to be void otherwise to remain in full force and effect. This 1st day of March, 1870. William Jenkins, Thomas Jenkins, ' John Doe. The necessary changes in the above form will readily- sug- gest themselves in preparing refunding bonds in other cases. 6. Order granting leave to amend a bill. John Smith, vs. William Jenkins. In this cause, leave is granted the complainant to file an amended bill (making additional allegations and parties) and the time of two months from this date is allowed him for that purpose. If the amendment is simply in regard to some matter of form, or in some immaterial matter, and is permitted to be made in the face of the original bill without the issuance of new process, the order may be thus : John Smith, vs. William Jenkins. In this cause leave is granted the complainant to amend his bill by inserting after the words, (here insert the words immediately preceding the words intro- duced by way of amendment,) which is done accordingly. 7. Order granting leave to a stranger to become a party to tJie suit. John Smith, vs. William Jenkins. In this cause, James Brown presented his petition to the court (verified by affidavit,) praying to be allowed to become a party complainant to the suit. And for sufficient reasons disclosed to the court by said petition, (and the affidavits introduced in support thereof, or the exhibits thereto, etc., as the case maybe,) it is ordered that said James Brown be allowed to become a parly complainant to this suit, (upon executing bond with good and sufficient security, conditioned, etc., which is accordingly done.) 24 370 MANUAL OF CHANCERY PRACTICE. If the petition be to become a party defendant, pursue the above form to the words " be allowed to become," and then proceed thus: A party defendant to this suit and answer the complainant's bill. (And two months time is allowed him in which to file his answer to said bill.) 8.' Sicggestion of death, and order for a scire facias to issue. John Smith, vs. Williams Jenkitis. In this cause, the death of William Jenkins is suggested and proved, (or admitted.) And it being suggested that Richard Roe is the administrator of said William Jenkins, deceased, on motion of complainant's solicitor it is ordered that a scire facias issue to make these facts known to said Richard Roe, and to summon him to appear at the next term of the court to be held at Knoxville, on the 1st Monday of April next, and show cause, if any he has, why this suit should not be revived against him as such administrator. 9. Order abating a suit. John Smith vs. William Jenkins. In this caus.e, the death of William Jenkins, the defendant, having been sug- gested and proved (or admitted), and the suggestion and proof (or admission) thereof entered of record at the term, 18 — , of the court, and no steps having been taken to revive, it is ordered that the suit stand abated, and that . the plaintiff pay the costs of this cause, for which execution maj' issue as at law.^ A suit cannot be abated for the death of a party until the second term after the death has been suggested and proved, or admitted, and entry to that eft'ect made of record.^ 10. Order, of revivor. John Smith vs. William Jenkins. , By- consent of parties, it is ordered that this suit be revived against Richard Roe as the administrator of William Jenkins, deceased, and be in the same plight and condition as it was in at the time of the death of said William Jenk- ins, deceased. 'See Code, 3209 as to costs where a suit abates. 'Code, 2843. The right to revive continues through the whole of the second term. Churchwell u. Bank, 1 Heis., V80. MANUAL OF CHANCERY PEACTICE. 371 If the revival is by scire facias the order may be in the fol- lowing form : John Smith vs. Williaai Jenkins. In this cause, the complainant, by his solicitor, moved the court that the suit be revived against Richard Roe as the administrator of William Jenkins, de- ceased, and stand in the same plight and condition as it was in at the time of the death of said William Jenkins, deceased ; and it appearing to the court that tlje scire facias awarded in this cause at last term of the court was duly issued and served on said Richard Roe (more than) five days before the meeting of the present term of the court, and that he has failed to show any good cause why said suit should not be revived against him as such administrator, it is ordered accordingly. After the suit is revived, the title of the cause must, in the subsequent proceedings, correspond with the names of the parties to the revived suit. Thus, in the supposed case above given, the subsequent proceedings would be entitled in the cause of John Smith vs. Richard Roe,'adm'r. of WilUam Jenkins, deceased. 11. Order appointing a receioer. William Wilson vs. John Jones. In this cause, on motion of complainant's solicitor, it is ordered by the court that Joseph Smith be appointed receiver of the rents and profits of the tract of land situated in the 10th civil district of Monroe county, in the pleadings in this cause mentioned, after first giving bond with good and sufiScient security to be approved of by the clerk and master of this court. And said receiver shall have power to rent, out said tract for a term of one year and receive the rents and profits thereof, and hold the same subject to the order of this court. He is also authorized to receive the rents in arrear and growing rents of said tract of land. It is further ordered that upon said bond being executed, the tenants of said, real estate shall attorn to said receiver, and pay to him their rents in arrear and growing rents. Perhaps no two orders appointing receivers will be exactly siriiilar, because no two cases will be precisely alike, but the above will serve as a form to assist the young. lawyer. ; 372 MANUAL OF CHANCERY PRACTICE. Where the receiver is appointed to take possession of notes and accounts and collect them, and holds the proceeds sub- ject to the order of the court, or to do anything else what- ever, the changes necessary to be made in the form of the order will readilj' suggest themselves. 12. Order of fublicatio'n for , creditors to file their claims. D. W. Lattimer, on behalf of Hmself and the other creditors of C. A. Gurley, deceased, , ' vs. Martha Gurley and others. In this cause, it is ordered that publication be made for four consecutive weeks, in the Sweetwater Enterprise, for all persons having claims against the estate of C. A . Gurley, deceased, to come forward and exhibit their demands, and have themselves made parties to complainant's bill.^ 13. Order of publication in attachment cases. "Where property is attached in lieu of personal service, and this method is used to bring the defendant before the court, the order should be different from the general form given in section 63, ante. The following is a suitable form : j^ g ■) J, L In this cause complainant, A B — — , having filed his bill C D J of complaint upon oath in the Chancery Court, at Knoxville, against C D , charging among other things that said C^ D is justly indebted to him, and resides out of this State, (or has removed himself from the State; or as the case may be), and having obtained by the order and fiat of Hon. W. S. Fleming, chancellor, etc., (or from the C. & M. of said court), an original attachment against the estate of said C D , returnable to the October term, 1883, of said court; and same having been levied on the property of said C D , it is ordered by the clerk and master, (or by the court), that said C D be required to appear before said Chancery' Court, at the courthouse in Knoxville, Tenn., on the first Monday in October next, and make defense to said bill; or same will be taken for confessed and set for hearing ex parte as to him. It is further ordered that this order be pub' lished for four consecutive weeks in the Knoxville Press, the last pubHcation to be at least one week before the first Monday in October, 1883. This June 1st, 1883. M. L. Patterson, C. & M. This form should have followed sec. 63, ante, but was over- looked. »Code, 2219, 23V1. CHAPTER XI. MANNER AND ORDER OP DOING BUSINESS IN COURT ; HEARING CAUSES, MAKING DECRETAL ORDERS AND RENDERING INTERLOCUTORY DECREES. 245. Reading tlie minutes and calling the roll of counsel for motions. 246. Order of hearing causes. 247. Manner of hearins causes. 248. Reading and declining to read depositions. 249. What is a part of the record without a bill of exceptions, and what is not. 250. General nature of decrees, and distinction between interlocutory and final decrees. 251. Decree or order of reference. When necessary and proper. 25la. Reference_for the protection of parties absent and those under disa- bility. 251?). Reference to supply defects in evidence. 252. Nature and form of interlocutory decrees and decretal orders in general. 253. Forms of decretal orders. 1. Order for an account of the assets and KaMUties of an estate. 2. Reference as to propriety of selling real estate of persons under disability. 254. Report of the master upon a decretal order. 255. Form of report upon a decretal order directing an account of the assets and liabilities of an estate. 256. Form of report upon reference as to propriety of selling real estate of persons under disability. 257. Forms of interlocutory decrees. 1. Confirming report of the master and ordering sale of land to pay liabilities of an estate. 2. Ordering sale of land of person under disability. 'A. Decree for account in favor of legatee against executor. 4. Decree for a general account between, parties. 5. Decree for account upon, and declaration of lien for note for specific articles. 6. Account upon the recission of a contract for the sale of real estate. 7. Decree for debt, and sale of land attached, in bar of the right of redemption. 8. Decree for partition of lands. 9. Reference as to necessity of sale for partition. 374 MANUAL OF CHANCEKY PEACTICE. 258. Facts necessary to appear to authorize a decree for the sale of property. 1. In case of a sale to satisfy a debt. . 2. In course of administration where the personal assets have been exhausted. 3. In the administration of insolvent estates. 4. In case of sale for partition. 5. Sale of property of persons under disability. 245. Reading the minutes, and calling the roll of coun- sel for motion. The minutes of the court shall be read each morning in open court, and signed by' the judge.' After the minutes of the preceding day shall be signed by the chancellor, the clerk shall call over the names of the counsel, which shall be placed on a list; and when the name of the counsel is called, he may bring before the court such motions as he may wish to make that day.^ It is proper for counsel to bring to the attention of the court in this way, such matters upon the return docket as are required to be disposed of at the first term ; such for ex- ample, as the sufficiency of a plea of demurrer which has been set down for argument. Sometimes the court has the return docket called for the disposal of such matters after the cases on the trial docket have been disposed of. 246. Order of hearing causes. The motion having been heard, the court proceeds to hear the causes in the order in which they stand on the trial docket, unless the parties consent to a different arrangement.' But this rule is not so peremptory as to exclude the exercise of the discretion of the court as to the order in which . the cases are heard. When a cause is reached upon a call of the docket, it is heard. Unless it is continued, which may be done by con- sent of both parties, or on sufficient cause shown by affidavit.* 247. Manner of hearing causes. In hearing a cause the complainant's counsel reads the bill, and the defendant's 'Code, 4101, and note. 'Old Ch. Rule, 19. 'Code, 2947. *Code, 2941, and note. MANUAL OF CHANCERY PRACTICE. 375 counsel reads the answer or plea. The complainant's solici- tor then reads such evidence as he may see proper to intro- duce, admissible under the law and the rules and practice of the court. The defendant's evidence is then read by his counsel. The case is then argued, the complainant's counsel having the right to open and conclude the argument. By the 21st chancery rule, " When a cause is called for trial, the counsel shall produce and read to the court a brief, plainly showing the points in the cause raised by the plead- ings and evidence, together with the principal authorities re- lied on in argument ; otherwise the court may, in its discre- tion, delay the trial until this rule is complied with." It is only in very intricate cases, perhaps, that the chancel- lors will feel called upon to exercise the discretion of delay- ing a trial till a brief is read. They will perhaps never delay the trial on this ground where the failure is on the part of the counsel of a party who is presumed to desire delay. After the case is argued the chancellor takes the papers and briefs, (if any have been prepared by counsel), and con- siders of the case during the hours of the temporary adjourn- ment of the court, unless the case is so plain that he is will- ing to decide it upon the close of the evidence and argu- ment. "When he announces his decision of the questions involved the counsel of the party in whose favor the decree is pro- nounced takes the papers and prepares a decree, which, after being submitted to and approved by the chancellor, is handed to the clerk and master, who spreads it upon the minutes of the court. 248. Reading and declining to read depositions. A party who has taken a deposition is not bound to read it, and if the opposite party reads it he makes it his own evi- dence.' But if the party who has taken a deposition intends to de- cline reading it, and is desirous of introducing witnesses to impeach the credibility of the deponent in the event the dep- osition is read by the opposite party, he may be under the ^Elliot V. Shultz, 10 Hum., 234; Eichmond v. Kichmond, 10 Yer., 345. 376 MANUAL OF CHANCERY PRACTICE. necessity of demanding the issues to be submitted to a jury. Then, if his adversary reads the deposition, witnesses can be introduced before the jury to impeach the deponent, a thing that could not be done before the chancellor, (except in di- vorce cases), as oral testimony is not admissible before him in ordinary cases, except to prove the execution of exhibits.^ It may be that the party taking the deposition might place on record, before the hearing of the cause, the fact that he declined to use the deposition as evidence, and might then take depositions of other witnesses to impeach the credibility of the first named witness ; but in that case, if the opposite party should not read the first mentioned deposition, the dep- ositions taken to impeach the witness would be irrelevant, and the party taking them would probablj^ be taxed with the costs of taking them. 249. What is a part of the record without a bill of ex- ceptions and what is not.^ The depositions and exhibits that, arc read on the hearing of the cause shall, be considered a part of the record, as if the same were transcribed and in- corporated with the decree.' In equity causes removed to the Supreme Court by writ of error, or appeal in the nature of a writ of error, the deposi- tions and exhibits read on the hearing below shall be con- sidered a part of the record, and the cause shall be reviewed and examined as if brought up by appeal.'' Either party dissatisfied with the judgment or decree of the circuit or chancery court in a matter of equity tried according to the forms of the chancery court, may appeal to the Supreme Court and have a re-examination in that court of the whole matter of law and fact appearing in the record.^ Issues of fact in chancery, made up on demand of either party, and tried by a jury according to the forms of a court ^But see Perry v. Pearson, 1 Hum., 431 ; Spurlock v. Fulks, 1 Swan, 291. "Post, 326. 'Code, 3121. 'Code, 3108. ^Code, 3155 and note. MANUAL OF CHANCERY PRACTICE. 377 of law, are not embraced in the foregoing section, and errors in the proceedings therein had, can only be corrected as errors are corrected in actions at law.^ Under these provisions it may be remarked : (1st.) That if a party desires the record to show the evi- dence submitted to a jury upon an issue of fact, it can only be done by bill of exceptions. (2d.) That if it is desired that the record show the oral testimony given by witnesses before the chancellor in a di- vorce case, or in proving an exhibit, or as to the competency of a witness, it must be done in the same way, or by recital in the decree.^ (3d.) That if an original record ot the court, the transcript of which is not Sled among the papers as evidence in the caus9, is read on the hearing, the decree should recite the fact that it is read, so as to make it a part of the record in the cause. (4th.) If a deposition has been taken and filed and the party who had it taken declines to read it, and it is not read by the opposite party ; the decree should show that it was not read, otherwise, by its being on file in the cause, it would not appear upon appeal or writ of error but that it was part of the record, unless leave was obtained to remove it from the file. So, if the party who takes a deposition declines to read it, and the opposite party reads it, the record should .show the fact if there is anything in the record which can be iised by the party who took it, to impeach the credibility of the wit- ness in the appellate court. (5th.) If the record shows that a deposition or other docu- ment filed as evidence was in fact rejected as evidence at the hearing, it is not a part of the record of the case unless made so by bill of exceptions.^ In the absence of statutory provisions, the record embraces nothing but the pi'ocess, the pleadings, and the orders and 'Code, 3156. ^Lacky v. Watkins, 8 Yer., 191; Pillow v. Pillow, 6 Yer., 420; Perry v. Pear son, 1 Hum., 431. 'Perry v. Pearson, 1 Hum., 431. 378 MANUAL OF CHANOKEY PUACTrCE. decrees in the caiise, the report of the master upon any mat- ter of reference, and the exceptions to answers, reports, etc' AiEdavits (unless forming a part of some paper which is a part of the record) are not a part of the record.^ The date of the tiling of any pleading endorsed oh it is a part of it and a part of the record, and so is au exhibit filed with any pleading. So, the endorsements on process show- ing the return made by the sheriff, is a part of such process, and of the record. A deposition, which is rejected upon motion as incompe- tent and illegal, cannot be taken into consideration in the Supreme Court, unless a bill of exceptions has made it a part of the record. Depositions are frequently rejected for mat- ters arising upon parol evidence; the interest of a witness is often thus proved, and unless, a bill of exceptions is filed, it is impossible for the court above to know for what cause the depositiftn is excluded.-' 250. General nature of decrees, and distinction be- tween interlocutory and final decrees. "A decree is a sentence, or order of the court, pronounced on hearing and understanding all the. points in issue, and determining the the right of all the parties to the suit, according to equity and good conscience." " It is either interlocutory or final. An interlocutory de- cree is when the consideration of the particular question to be determined, or for further directions generally, is reserved till a further hearing; and the further hearing is termed a hearing upon further directions, or upon the equity reserved. " It very seldom happens that a first decree can be final, or conclude the cause."' "An interlocutory decree is one made in the progress of a cause for the purpose of ascertaining some matter of fact or 'Post, 360. 'Foust V. Echols, 4 Cold., 397; Allen v. State, M. & Y., 294. 'Perry v. Pearson, 1 Hum., 431. An instrument, such, for instance, as the assignment of a purchaser's bid, copied into the transcript of the record sent to the Supreme Court, will not be regarded as part of the record, unless it appears to have been filed as evidence, or to have been made a part of the record in some regular mode. Newland v. Gaines, 1 Heis., V23. *Danl Ch. Pr., 1192. MANUAL OP CHANCERY PRACTICE. 379 law preparatory to a final decree. This is done by a refer- ence to the master, a commissioner or jury, in an interlocu- tory decree by the terms of which the principles governing the rights of the parties, are generally settled, but a more perfect ascertainment of the facts to which they apply is nec- essary to a final disposition of the case."' The learned Judge who delivered the opinion in the case of Delap V. Hunter fell into a singular error in supposing that a matter of law can be ascertained by a reference to the piaster, a commissioner or a jury. In England, if a question of mere law arises in the course of a cause, it is the practice of the court of chancery to refer it to the opinion of the judges of one of the courts of com- mon law, upon a case stated for the purpose, wherein all the facts are admitted, and the point of law is submitted to their decision. But in Tennessee the chancellors never submit' such questions to the judges of the law courts, much less the master, a commissioner or a jury. "A decree is final when all the facts and circumstances ma- ' terial and necessary to a complete explanation of the matters in litigation are brought before the court and so fully and clearly ascertained on both sides, that the court is enabled upon a full consideration of the case made out, finally to determine between them according to equity and good conscience. A decree which disposes of the whole merits of the cause, leav- ing nothing for the future judgment of the court in the case which will make if necessary to bring it again before the court for final decision is a final decree." "It is not always easy to determine whether a decree is interlocutory or final."- 251. Decree or order of reference. When necessary and proper. It is presumed that it is competent for the chancellor, (if he deems it proper), to take upon himself the ■ 'Delap V. Hunter, 1 Sneed, 104, and case there cited. ''Delap V. Hunter, 1 Sneed, 104; Gill v. Creed, .3 Cold., 297 ; Meeks v. Mathis; 1 Heis., 636; xibbot v. Fogg, 1 Heis., 747; Harrison v. Farnsworth, 1 Heis., 753; Sanders v. Gregory, 3 Heis., 576; Brandon v. Crouch, 11 Heis., 605; Lus- ter V. Ball, 6 Bax., 94; and see page 69; Porter v. Burton, 10 Heis., 585. See Milliken's Dig., 615, sub-sec. 6. Terrell v. lugersol, 10 Lea, 77. 380 MANUAL OF CHANCERY PRACTICE. labor of iuvestigatiiig any matter for himself, whether it be a matter of account, a matter involving the state of title, »r any other matter whatever, except cases in which by express statutory provision a report by the master is required. Such for instance as the case embraced in sec. 2388 of the'Code.^ But in matters of account- it is the usual practice of the court to settle the law on any point of disptute in relation to a debt or credit, and refer it to the master to hear proof and state the account.^ So, also, a reference to the master is very frequently made for the purpose of ascertaining some matter of fact prepara- tory to a final decree, to other cases than cases of account. In the case of Woodson v. Smith, 1 Head, 276, it was held that the truth of the allegation in the bill, that the complain- ant had, by purchase, acquired the interests ol some other claimants of slaves sued for, was a matter proper for the de- termination of the chancellor, and not a proper matter of reference to the master ; and the Supreme Court reversed the decree on account of the irregularity — the chancellor having referred the matter to the master instead of determining it ■ himself. 251r/. Reference for the protection of parties absent, and those under disability. A reference for the protec- tion of absent, parties, is made where a claim, or possibility of a claim, to the property in suit belongs to a creditor or next of .kin, or other person entitled as a class, so that it is uncertain at the hearing whether they are all before the court. In order to remove this uncertainty, a reference is made to the master to ascertain the fact before any step is taken for ascertaining or distributing the fund. And, on the same principle, if a compromise is proposed or an arrangement by consent is made, where any of the parties are under disability of infancy or coverture, and, therefore, unable to 'Lewis V. Baker, 1 Head, 385 ; Codwise v. Taylor, 4 Sneed, 361 ; Buchanan c. Alwell, 8 Hum., 516. '■'A reference to the master to take and state an account, without settling the legal questions, and principles on which the account is to be taken, is errone; ous. Terrell v. Ingersol, 10 Lea, "il ; Cory v. Williams, 1 Lea, 51 ; Patton v. Cain, 1 Lea, 14. MANUAL OF CHANCERY PRACTICbI 381 exercise discretion, the court, before sustaining the proposal, will ascertain by a reference, whether it is for their benefit.^ The most usual cases in which inquiries as to persons are directed to he made by a master, are those in which it is nec- essary to ascertain the heirs at law, or next of kin, of a deceased person ; or for the purpose of ascertaining the indi- viduals forming a particular class, such for instance, as grand- children. A similar inquiry is also necessary where it is referred to the master to take an account of the debts due by a particular individual, involving necessarily the inquiry who the creditors are, as well as the amount of their claims. In decrees ordering inquiries of this nature, it is usual to direct the master to make publication for such next of kin or creditors to come in and make out their kinship or prove their debts.^ 2516. Reference to supply defects in evidence. A ref erence to the master is occasionally made at the hearing for the purpose of ascertaining the truth of an allegation with respect to which there has been an accidental omission of evidence, but such a course is not strictly regular. The cirT cumstances under which the reference would, in regular course, be made, are where the evidence already given has induced a belief in the mind of the court that new matter might be elicited by the inquiry, or where allegations had been made in the answer, though not established by proof, which, if- true, would be material in the cause.^ 251c. Special commissioners. In cases in which the clerk and master is personally interested, it is proper for the court to appoint a special commissioner to act in his stead upon any matter of reference or to make any sale of property or- dered by the court. But it is presumed that where the in- terest of the clerk and master is only in his official capacity there is no impropriety in his taking the account or making the sale. Where a special commissioner is appointed to make a sale, care should be taken to require a bond to be given by such 'Adams Eq., ii19. 'Danl. Ch.Pr., 1400; Code, 23Y1. 5 Adams Eq., .S82. 382 MANUAL OF CHANCERY. PKACTICE special commissioner to secure the fund that may come into his hands as commissioner.' The office of special commissioner is distinct from that of clerk. The appointment is under authority conferred by statute. In legal contemplation the two offices are, distinct, though filled by the same person. The special commissioner is, properly speaking, a trustee, and the condition of the bond requires him to perform all the duties of the trust.- 2 252. Nature and form of interlocutory decrees and de- cretal orders, in general. Decretal orders and interlocu- tory decrees are so nearly similar in their nature, that they will be treated of together. Decrees in general consist of three parts : 1, The date and title,; 2, The recitals; and 3, The ordering part. To these is sometime added the declaratory part, which, when made use of, generally precedes the ordering part. "Where the suit seeks a declaration of the rights of the parties, the ordering part of the decree should be prefaced by such declaration.^ Decrees need not recite the facts upon which they are based, but only the conclusions to which the court ha.s come. But the parties are not prohibited from stating the facts in the decree, plainly and succinctly, nor is the court prohibited from directing it to be done.* It is frequently necessary to have orders of reference re- peatedly in the progress of a cause. An interlocutory de- cree usually reserves till the coming in of the master's report or till a further decree, the consideration of some particular question or of all questions not therein adjudicated.' A decretal order is an order in the nature of a decree, made upon motion or petition.* An order, whether decretal or otherwise, is made upon motion or petition ; but a decree is made upon hearing the 'Reeves v. Steele, 2 Head, 647; Pardue v. Barnes, 7 Heis., 360. See Code, 328, 329, 333. 'Williams v. Bowman, 3 Head, 6''9. But see State ex. rel. v. Blakemore, 7 Heis., 652, discussing the act of 1852. ^Barton's Suit in Eqtity, InO. *Code, 4476, 4477, and note. ^Post, 288. «Danl. Ch. Pr., 1198. MANUAL OF CHANCERY PRACTICE. 383 cause ; a decretal order differs in form from a decree simply by the ordering part being preceded by words appropriate to an order instead of those appropiiate to a decree made at the hearing. But it is presumed that putting a decretal order in the form of a decree, or putting a decree in the form of a decretal order, would not alter its effect. A decretal order being in the nature of a decree, it is pre- sumed that such order cannot be made till all the parties are before the court, and have had an opportunity of being heard in defense. A decretal order of reference is made whenever it is necessary to ascertain some fact preliminary to hearing the cause and settling the rights of the parties. It is proper to settle by a decretal order, any of the quesf ions in issue between the parties, or in other words to adjudge any question as to the rights of the parties. That should be done upon a hearing of the cause. Decretal orders, as well as those which are merely pro- visional, are often made after a hearing of the cause as well as before the hearing. But the decree made at the hearing is- sometimes so iinal as to leave no power in the court to make any subsequent decretal order between the parties thereto. But an order which is merely provisional, may always be made when necessary after a final decree as well as before it, so long as the case remains in court. 253. Forms of decretal orders. 1. Order for an account of the assets and liabilities of an estate. Jacob Givens, adm'r. of Zachariah Givens, dec'd., vs. James Givens and others. In this cause, on motion of complainant's solicitor, it is referred to the master to hear proof and report to the next term of the court; (1.) What personal assets of the estate of Zachariah Givens, deceased, have, or ought by due diligence to have come to the hands of the complainant as administrator of said estate. (2.) What bona fide debts and charges against said estate have been paid by the administrator. (3.) Whether the personal assets of said estate have been exhausted in the payment of such bona fide debts and charges. (4.) Whether any and what 6o»a .^de debts and charges against said estate remain oatstandihg and unpaid. 384 MANUAL OF CHANCERY PRACTICE. (5.) Of what real estate did Zachariali Givens die seized, and what is it reasonable minimum value. (6.) Whether it will be_necessary to sell any or all of said real estate to pay such outstanding debts and charges. It is further ordered that the master give thirty days' notice by advertisement at the courthouse door in Madisonville, and cause said advertisement to be pub- lished for fear consecutive weeks in the Sweetwater Enterprise, for all persons having claims against said estate, to come before him at his office and prove their demands against said estate on a day to be fixed by him and specified in said advertisement for talking the account herin ordered.^ D. W. Lattimer, on behalf of himself and other creditors of C. A. Gurley, deceased. vs. Martha Gurley and others. Be it remembered that on this 4th day of June, 1868, on motion of the com- plainants's solicitor, it is orderded by the court that this cause -be referred to the master to hear proof and report to next term of the court. (1.) Of what assets, real and personal, did C. A. Gurley die seized and pos- sessed. (2.) What personal assets have, or ought by due diligence to have come to the hands of the administrator. (3.) What has become of any of the personal assets of said estate which have not come to the hands of the administrator. (4.) What bona fide debts and charges against said estate have been paid by the administrator. (5.) What bona fide debts and charges against said estate remain outstrnding and unpaid. (6.) Whether it will be necessary to sell any or all of said real estate to pay such outstanding debts and charges. (7.) What would be a reasonable minimum price to fix upon said real estate. (8.) The master will hear proof and report upon any other matter which is material to an understanding of the condition of said estate.'' 2. JReJerence as to 2^^opriety of selling real estate of person under disability. Joseph Smith, guardian, etc., William Green and Mary Green. Be it remembered that this cause coming on for decretal order before the Hon. 0. P. Temple, chancellor, etc., on this 4th day of June, 1868, on the bill, the answer of the defendants by John Minis, their guardian ad litem, and the answer of said William Greeu in person ; the court is pleased to refer it to the master to take proof by disinterested and unexceptionable witnesses and report upon the facts established by the proof- 'See Ante 39. 'See Ante 43 and 221, sub-sees. 4 and 12. MANUAL OF CHANCERY VllACTICE. 385 (1.) Whether it is necessary for the support, education, and maintenance of the defendants that the real estate, or any portion thereof, described in com- plainant's bill should be sold. (2.) If the facts show that it will be necessary to sell a portion and not all of said real estate for the purposes aforesaid, the master will report what particu- lar part of said real estate, (of sufficient value to answer the purposes afore- said), it would be most to the interest of the defendants should be sold. (3.) Whether it is manifestly to the interest of the defendants that any or all of said real estate should be sotd. The master will report to next term of the court. 254. Report of the master upon a decretal order. The master proceeds to perform the duties devolved upon him by a decretal order, and to report in the same way as upon an interlocutory decree, and upon the coming in of the report the proceedings upon it are subject to precisely the same rules as a report made under an interlocutory decree. There- fore the discussion of the proceedings in the master's office upon an order of reference, as well as a discussion of the proceedings upon the coming in of the report by filing ex- ceptions to it, etc., etc., will be reserved till such proceedings under interlocutory decrees are discussed. 255. Form of report upon a decretal order directing an account of the assets and liabilities of an estate. Jacob Givens, adm'r. of "I , Zachariah Givens, dec'd., 1 j^^^^^j ^f ^j^^ jj^^^^^ ^^ December Term, 1868. James Givens and others. J The undersigned would respectfully report that in obedience to the order of reference made in this cause at the last term of the court, after first giving the required notice, he proceeded on the day specified in said notice, to-wit, the 1st day of August, 1868, at his office, to hear proof upon the matters of reference, (which so far as it is not already on file in the cause is herewith submitted), and to take the account ordered. Upon the evidence he would report : (1.) The personal assets of the estate of Zachariah Givens, dec'd., which have, or ought by due diligence to have come to the hands of the complainant, as the administrator of said estate, are as follows : Amount of the administrator's sale of personal property $670 20 Cash collected frortl John Doe, (pr. and int.), upon a note executed to the intestate 319 80 Total amount of personal assets $990 00 25 386 MANUAL OF CHANCERY PRACTICE (2.) The administrator has paid the following bona fide debts and charges against said estate : Funeral expenses of said intestate $ 40 00 Judgment and costs in favor of Richard Roe against the intestate 995 20 Total $1,035 20 (3.) The personal assets of said estate have been exhausted in the payment of the hona fide debts and charges above named. (4.) The following ftonas j^de debts and charges against said estate remain outstanding and unpaid : Note to John Smith, due 1st of January, 1865, for $300 00 Int. to 1st of December, 1868 52 50 $352 50 Note to Joseph Johnston, due 1st of December, 1865, for — TOO 00 Int. to 1st of December, 1868 -, 126 00 826 00 Am't. due the adm'r. for excess of disbursements over re- ceipts 45 20 Am't. allowed him for services as administrator 25 00 Expenses incurred in procuring letters of administration 2 00 Expenses incurred in making sale of the personal property— 5 00 11 20 Total outstanding liabilities 1 $1,255 TO (5.) The only real estate of which Zachariah Givens died seized is the tract of land described in the bill, to-wit: The southeast quarter of the 29th section 3d township, 2d range east, Hiwassee district. One thousand five hundred dol-' lars is the reasonable minimum value of said land. (6.) It will be necessary to sell all of said real estate to pay said outstanding debts and liabilities. All of which is respectfully submitted. S. P. Hale, C. & M. 256. Form of report upon a reference as to propriety of selling real estate of persons under disability. Joseph Smith, guardian, etc., "| vs. \ Report of the C. & M. to Dec. term, 1868. William Green and Mary Green, J The undersigned would respectfully report that in obedience to the order of reference made in this cause at last term of the court, he proceeded to take proof by disinterested and unexceptionable witnesses, to-wit : John Doe and John Smith, whose testimony is herewith submitted ; and that the facts established by the proof show that it is necessary for the support, education and maintenance of the defendants that the whole of the real estate described in the complain- ant's bill be sold ; and also that it is manifestly to the interest of the defend- ant's that the whole of said real estate should be sold. All of which is respectfully submitted. S. P. Hale, C. &. M. MANUAL OF CHANCERY PRACTICE. 387 257. Forms of interlooutory decrees. 1. Confirming re- port of the master, and ordering sale of land to -pay liabilities of an estate. Jacob Givens, adm'r. of Zacliariali G'lvens, deceased, vs. James Givens and others. Be it remembered, that this cause came on to be heard before the Honorable O. P. Temple, Chancellor, etc., on this 5th day of December, 1868, on the plead- ings and proof in the cause, and the report of the master to the present term of the court, which report is in the words and figures following, to wit. (here insert report in full), and said report being unexcepted to is in all things confirmed. And it appearing to the court that the personal assets of the estate of Zacha- riah Givens, deceased, have been exhausted by the administrator in the payment of hona fide debts and charges against said estate, leaving hona fide debts and charges against the same still outstanding and unpaid to the amount of ($1,233.- 20) one thousand two hundred and thirtj'-three dollars and twentj' cents. And it further appearing that said Zachariah Givens died seized of a cer- tain tract of land lying in Monroe county, being the south-east quarter of the 29th section, 3d township, ^d range east, Hiwassee district, of the reasonable minimum value of one thousand five hundred dollars, and that it will be neces- sary to sell the whole of said tract of land to pay said outstanding liabilities. It is therefore decreed, that the master, after giving thirty days' notice thereof by advertisement at five public places in Monroe county, one of which shall be at the courthouse door and another in the civil district in which the land lies, and causing said advertisement to be published for four consecutive weeks in the Sweetwater Enterprise, shall pr jceed to sell said tract of land at public sale at the courthouse door in Madisonville, to the highest and best bidder, on a credit of six and twelve months, except the sum of one hundred dollars, which he will require to be paid in hand, taking notes with approved security for the unpaid installments of the purchase money, and retaining a lien on the land for the same. But he will not sell said land for less than the minimum price aforesaid. He will report to next term ol the court, until which time all further questions are reserved. 2. Ordering sale oj land of •person under disability. Joseph Smith, guardian, etc., vs. William Green and Mary Green. Be it remembered, that this cause came on to be heard before the Honorable O. P. Temple, Chancellor, etc., on this 5th day of December, 1868, on the plead- ings and prool, and the report of the master to the present term of the court, which report is in the words and figures following, to wit. : (here insert report in full) and said report being unexcepted to is in all things confirmed. And it appearing to the satisfaction of the colirt, by proof of facts established by unexceptionable and disinterested witnesses, that it is necessary for the sup- 388 MANUAL OF CHANCERY PRACTICE. port, education, and maintenance of the defendants that the land described in complainant's bill, to wit. : (Jiere describe it) should be sold, and also that it^is manifestly for the interest of the defendants that it should be sold. It is therefore decreed that (proceed to decree a sale of land as in other cases). Either one of the two grounds stated above would be suffi- cient to authorize the decree for the sale of the land. 3. Decree for account in favor of legatee against executor. Martha Doe, wife of John Doe, by Richard R,oe, her next friend, vs. I John Doe, Thomas Fen and others. Be it remembered that this cause came on to be heard before the Honorable 0. P. Temple, Chancellor, etc., on this 4th day of June, 1868, on the pleadings and proof And the court being of the opinion that the complainant is entitled ' to an account against defendant, Thomas Fen, as the executor of John Den, deceased, upon the basis of the reference herein made, and in accordance 'With the specific directions herein given, and that she is entitled to have the fund which may be collected in this suit settled upon a trustee for her sole and separ- ate use, free from the liabilities and control of her present or any future hus- band; it is declared accordingly. And it is referred to the master to hear proof and take an account of what is due the complainant from defendant, Thomas Fen, as the executor of the estate of John Den, deceased. In taking said account the master will charge said ex- ecutor with the assets or the proceeds thereof of said estate which have, or by due diligence ought to have come to his hands, and will allow him credit for the funeral expenses of said John Den, the necessary and proper costs of the ad- ministration of said estate, and such hona fide debts of his said testator as he has paid or is liable for. He will compute interest on such balance as shall be found to have remained in the hands of said executor since the expiration of two years from the date of his qualification as such executor. The master will report hereof to the next term of the court. The consideration of the costs of this suit, and all other questions not herein adj adicated, are reserved till the coming in of said report. 4. Decree for a general account between parties. (After giving the title of the case, date and recitals proceed:) It is referred to the master to take a mutual account of all the dealings and transactions between the complainant and the defendant: and for the better taking of said account, the parties are to produce before the master upon oath, all books and papers in their custody or power relating thereto, and are to be examined upon interrogatories as the master shall direct, who in taking said account, is to make all just allowances to the parties, and to report to the court what upon the balance of said account shall appear to be due to either party from the other. MANUAL OF CHAXCERY PEACTICE. 889 The master will report to the next term of the court. The consideration of tlie costs of this suit, and of all other questions not herein adjudicated, are reserved till the coming in of said report. 5. Decree for account upon, and declaration of lien for note for specific articles, John Doe, vs. Richard Roe. Be it remembered that this cause came on to be heard before the Hon. 0. P. Temple, Chancellor, etc., on this 10th day of October, 1868, on the bill and exhibit thereto, the answer, and the proof in the cause. And it appearing to the court that the note filed as exhibit A, to complain- ant's bill, executed by the defendant to the complainant on the 1st day of June, 1865, for one thousand bushels of corn to be delivered to complainant at his residence in Knox county, on the 20th day of November, 1865, remains wholly unpaid; and that 'said note was executed for the unpaid portion of the con- sideration agreed to be paid by the defendant for the tract of land described in complainant's bill, sold by him to defendant, and for which he executed to the defendant his bond for title of same date as said note. And the court being of opinion that the complainant is entitled to a decree against the defendant for the value of the one thousand bushels of corn afore- said at the time and place the same was agreed to be delivered, with interest on the said value to the date of the decree for the same, and is also entitled to a decree for the costs of this suit, and that the same is a lien upon said tract of land; it is so declared, . But because it does not appear what was the value of corn, per bushel, at the time and place at which said note was payable, it is referred to the master to hear proof and take an account and report to next term of the court what was the reasonable value of one thousand bushels of corn on the 20th day of November, 1865, at complainant's residence in Knox county. He will also compute the interest on the amount of said value from the 20th day of November, 1865, up to the time of making said report, and will report the aggregate amount. 6. Account upon the recission of a contract for the sale of real estate. William Jones, vs. Joseph Wilson. Be it remembered that this cause came on to be heard before the Hon. 0, P. Temple, chancellor, etc, on this 4th day of June, 1868, on the pleadjngs and proof in the cause. And it appearing to the court that on the 10th day of May, 1865, the com- plainant purchased from the defendant a certain tract of land lying in Monroe county, to-wit: A tract containing one hundred and sixty acres, more 390 MANUAL OF CHANCJEBY PRACTICE. or less, being the southeast quarter of the thirtieth section of the 3d township, 2d range east, Hiwassee district, at the price of one thousand dollars, to be paid in equal instalments at" one and two years, for which he executed his promissory notes, taking the defendant's bond, binding him to convey or cause to be con- veyed to the complainant a good and valid title to said, tract of land in fee simple, upon the payment of the purchase money. And it further appearing to the court, that soon after said purchase was made, the complainant entered into the possession of said tract of land under his said purchase, and has enjoyed the rents and profits thereof, and erected permanent improvements thereon : It further appearing that the defendant is unable to make a valid title to said tract of land in compliance with his said contract and condition of his said bond, and that his pretended title to said tract of land is wholly defective : And it further appearing that the complainant having paid a portion of the note aforesaid which first came due, that the defendant recovered a judgment against the complainant before John Minnis, a Justice of the Peace of Monroe county, on the 10th day of Sept., 1866, for three hundred dollars, the balance of principal and interest then due on said note first coming due, and one dollar costs of suit,' a portion of which said judgment is claimed by complainant to have since been paid, but as to how that fact is, does not clearly appear from the proof: It further appearing that the other one of said notes is still in the hands of the defendant and remains wholly unpaid. The court is of the opinion that the complainant is entitled to have a recission of said contract and to have the collection of said judgment perpetually enjoined, and said note delivered up to be cancelled, and so declares. And the court being further of the opinion that the complainant is entitled to recover back irom the defendant the amount paid oh said purchase with lawful interest, and is accountable to the defendant for the reasonable value of the rents and profits of said land while he has occupied the same, but is entitled to have the value of the permanent improvements erected thereon by him deducted from the rents and prpfits with which he is chargeable, but is not entitled to any remuneration for such iujprovements in excess of the value of the rents and profits received by him as aforesaid, it is declared accordingly. But because it does not appear how much of the purchase money aforesaid has been paid by complainant, nor what is the reasonable value of the rents and profits, and the permanent improvements aforesaid ; it is referred to the master to hear proof and take an account, and report to next term of the court" (1.) The amount of purchase money paid by complainant on his said pur- chase, both before and after rendition of said judgment. He will compute in- terest on the same to the time of making his report, and will report the aggre- gate amount. (2.) The value of the rents and profits received as aforesaid by the com- plainant, computing interest and reporting the aggregate amount in like manner as directed in the preceding item of reference. (3.) He will report the reasonable value of the permanent improvements erected as aforesaid liy the complainant. MANUAL OV CHANCERY PRACTICE. 391 (4.) If the value of said rents and profits with interest shall exceed the value of said permanent improvements, the master will deduct the latter from the former and deduct the remainder from the sum reported under the first item of this reference. The injunction heretofore granted in this case, restraining the defendant from collecting or disposing of said note and said judgment, is continued till the coming in of said report and the rendition of the final decree, agreeably to the adjudication of the rights of the parties herein made, at which time said injunc- tion will be made perpetual. (In regard to rescinding the contract, requiring the note to be delivered up to be cancelled, and making the injunction perpetual, a final decree might be ren- dered if preferred. A decree may be final as to some matters, and order a reference as to others.) 7. Decree for debt, and for sale of land attached, in bar of the right of redemption, John Doe, vs. John Smith. Be it it remembered, that this cause came on to be heard before the Hon. 0. P. Temple, Chancellor, etc., on this 7th day of June, 1869, on the bill, exhibit, and the judgment pro confesso heretofore regularly taken against the defendant. And it appearing to the court from an inspection of the note filed as exhibit A, to complainant's bill, that there is due thereon to the complainant from the defendant the sum of one thousand two hundred and thirty dollars (balance of) principal and interest; it is decreed that the complainant recover of the defend- ant said sum of one thousand two hundred and thirty dollars and the costs of this cause. And it appearing that a certain tract of land lying in the 7th civil district of Monroe, county, to-wit: The southwest quarter of the 29th section of the 3d township, 2d range east, Hiwassee district, has been attached in this cause, it is decreed that unless the defendant, within three months from this date, shall pay and satisfy this decree, the master after first giving thirty days' notice thereof, by advertisement at four public places in Monroe county, one of which shall be at the courthouse door, and another in the civil district in which said land lies, and causing said advertisement to be published for four consecutive weeks in the Knoxville Whig and the Sweetwater Enterprise shall proceed to sell said tract of land, or so much thereof as necessary, at public sale, to the highest and best bidder, at the courthouse door in Madisonville, to satisfy this decree. And on special application of the complainant, in his bill, and now it is decreed that said land be sold on a credit of twelve months, and that when said sale is confirmed, no right of redemption shall exist in the defendant or his creditor. The master will take a note with approved security, bearing interest from its date, for the purchase money, and retain a lien on the land for the same. He will report to next term of the court his action in the premises . {For form of decree to sell without barring the right, see section Z\'[,post.) 392 MANUAL OF CHAKCERY PRACTICE. 8. Decree for ])0-rtition of lands. John Doe, vs. 1 Thomas Doe, James Doe and Susan Doe. Be it remembered, that this cause came on to be heard before the Hon. 0. P. Temple, Chancellor, etc., on this 4th day of June, 1868, on the pleadings and proof in the cause. And it appearing to the court that the complainant, John Doe, and the defendants, Thomas Doe, James Doe and Susan Doe, as the heirs at law of Jacob Doe, deceased, are entitled by descent, to equal undivided interests, as tenants in common, in the lands described in the pleadings, to-wit : A tract Ij'ing in Monroe county, being the 10th section of the 3d township, 2d range east, Hiwassee district; the rights of the parties are declared accordingly, and it is adjudged and decreed that partition be made between them in accordance with their rights and interests so declared. And the court appoints John Smith, Thomas Jones and James Wilson, (being disinterested freeholders) in conjunction with Solomon Bogart, the county sur veyor of Monroe county, to make partition of said land among the said parties, according to their respective rights and interests as herein before declared. (In making said partition, said commissioners having been first sworn as required by section 3280 of the Code of Tennessee, shall divide the premises and make the allotment of the several shares with due consideration of the relatiye quality and quantity of those several shares, and shall designate the sev- eral sha^gs by posts, stones, marked trees or other permanent monuments. And if exact partition of said premises cannot be made among said parties agreeably to their rights aforesaid, without material injury to said parties, or some of them, the commissioners will make the partition as nearly equal as they can, and charge the large shares with the sums necessary to equalize all the shares. ) The commissioners will report their action to the next term of the court. That portion of the above form which is in parenthesis is merely a recital of what is, by the Code of Tennessee, made the duty of the commissioners, when appointed. That part may be omitted, hut as the commissioners appointed in most cases, are men who are not familiar with the law, and seldom if ever have the benefit of the presence of counsel while making the partition, they may sometimes be prevented from making fatal blunders, by the precaution being used of embodying such directions in the order appointing them. When the commissioners come to making their report, they can have the benefit of the advice and assistance of the counsel in the case. 9. Reference as to necessity of sale for partition. (Pursue the form given in last section to the words '' declared accordingly." Then proceed thus:) MANl.'AL OF CHANCERY PRACTICE. 393 And it appearing to the court that this is a proper case for a reference, it is referred to the master to hear proof and report to next term of tlie court whether said tract of land is susceptible of advantageous partition, and whether the same is of such a description that it would be manifestly to the interest of all concerned that it should be sold for partition instead of being partitioned in kind. 258. Facts necessary to appear to authorize a decree for the sale of property. 1. In case of a sale to satisfy a debt. It is an unauthorized practice to decree a sale of prop- erty to satisfy a debt until the exact amount due, for which a decree is sought by the complainant, has been ascertained by a reference to the master or by the chancellor himself. A decree in chancery, like a judgment at law, should on its face ascertain the precise sum recovered. A decree for an indej&nite amount to be in vacation ascertained and fixed by the master upon his judgment alone cannot be allowed. More especially is this practice to be discountenanced where a sale of real estate is decreed before the amount of the debt is ascertained. It is irregular to order a sale in such case till after the exact amount to be paid has been ascertained and stated in the decree ; and then, according to the established practice, a reasonable time is to be given the defendant to pay the amount into the of&ce of the clerk before proceeding to sell the land.' 2. In course of administration where the personal assets have been exhausted. Section 2267 of the Code provides that where an executor not authorized by will to sell and convey real estate, or an administrator has exhausted the personal estate of the de- ceased in the payment of his debts, leaving just debts or de- mands against him unpaid, or paid by the representative out of his own means, and the deceased died seized and possessed of real estate, the chancery or circuit court of the district or county where the same or a portion of it lies, may, on the petition of the representative or any bona fide creditor whose debt remains unpaid, decree a sale of such lands, or of such 'Codwise V. Taylor, 4 Sneed, 351 ; Lewis v. Baker, 1 Head, 385. 394 MANUAL OF CHANCEEY PRACTICE. j)ortion8 thereof as may prove least injurious to the heirs and legal representatives, and as may be sufficient to satisfy the debts or demands set forth in the bill or petition, and shown to exist.^ But by sec. 2268 it is provided that before making such decree it shall be made to appear to the satisfaction of the court that the present estate has been exhausted in the pay- ment of bona fide debts, and that the debts or demands for which the sale is sought are justly 'due, and owing either to creditors or to the representative for advances out of his own means to pay just demands against the estate.^ By sections 2269 and 2270 the suit is to be conducted as other suits, in equity in any county in which any portion of the real estate lies. Before a, sale can be decreed iinder these provisions, the heirs or devisees must be properly before the court, and there must be an account with the administrator of the assets of the estate received by him, or which he ought to have re- ceived, and of such bojia fide debts and charges as he has paid, and also an account as to what bona fide debts and charges are outstanding against the estate, and these must be established, by proper evidence, to the satisfaction of the chancellor, rejecting all such claims as appear involved or barred by the statute of limitations.-^ If upon taking the account it is found that there are still personal assets in the hands of the administrator, the court must apply them before decreeing a sale of the real estate.^ 3. In the administration of insolvent estates. "When the personal estate is ascertained by the report of the clerk and master, and the confirmation thereof by the 'Reason and policy of this statute is discussed in Dulles c. Read, 6 Yer., 53. The administrator is a necessary party. Id; and so are the heirs. Crippen f. Crippen, 1 Head, 128. And a failure to make them parties renders the sale a nullity. Estes D. Johnson, 10 Hum., 223. See Kindell w. Titus, 9 Heis., 733, where the 6 Yer. case is discussed. ^A settlement by an administrator with the county court is prima facie evi- dence iu his favor, and if formal, accurate, and unexcepted to, is sufficient to authorize the sale. Code, 2305 ; Curd v. Bonner, 4 Cold., 632. 'Crippen u. Crippen, 1 Head, 128; Whitemore v. Johnson, 10 Hum., 612. ^Dulles V. Reed, 6 Yer., 53. MANUAL OP CHANCERY PRACTIClt' 395 court, to be insufficient for the payment of the debts of the estate, the court shall direct that the real estate, or so much thereof as is necessary, be sold for the payment of the debts, reserving to the widow her dower.' 4. In case of sale for "partition. To authorize a sale of land for partition, it must appear either that the premises are so situated that partition thereof cannot be made, or that they are of such a description that it would be manifestly "for the advantage of the parties that, the same should be sold instead of partitioned.^ Ordinarily, the more convenient mode of ascertaining those facts is by a reference to the master to hear proof and report in. regard to those questions. And such reference may be made not only upon the prayer of the complainant seeking a sale for partition, but upon the answer of the defendant's asking a sale, where the bill has been filed merely for partition.^ And if the commissioners appointed to make partition I'e- port that the premises, or any portion thereof, are so situated that a partition cannot be made without great prejudice to the owners, the court may, if satisfied that the report is just and correct, order a sale of the premises, whether prayed for or not in the petition, or asked by the defendant.'' 5. Sale of property of persons under disability. The sale of property, real or personal, of persons laboring under the disability of coverture and infancy may be decreed : (1.) "When it is necessary for the support, education and maintenance of the person under disability. 'Code, 2388. Before the sale can take place, there must be an account, and a report of deficiency of personal assets, confirmed by the court. And a sale had without such an account is void. Frazier v. Panky, 1 Swan, 75; Jones v- Doug- lass, 1 Tenn. Ch., 359. The inquiry of the clerk and master ^should embrace all the personal property in the State, and should not be limited to the county where the administration takes place. Gilchrist v. Cannon, 1 Cold., 581. The fact' that the decedent's land was levied on in his lifetime does not prove the want of personal assets. He may'have had personal assets in another county. Stockard v. Pickard, 6 Hum., 119. ■■'Code, 3293 and notes. 'Code, 3297 and notes. 'Code, 3299. 396 MANUAL OF CHANCERY PRACTICE. (2.) "When it is manifestly to the interest of such person.' But great care and strictness are required in proceedings for this purpose. "Where it is sought to sell the property of persons under dis- ability for-their maintenance and education, or because such sale is manifestly to their interest, many stringent provisions are required which do not apply to cases in which the prop- erty of such parties under disability are sold in a proceeding in which the jurisdiction of the court to decree the sale rests upon some' other ground.; such, for instance, as a sale for par- tition; or in the administration of an estate; or for a debt for Avhich the party under disability may be liable. The stringent provisions above alluded to are to be found from section 3323 to section 3340 of the Code. Among those provisions are the following : The pleadings shall set forth fully and particularly the age, circumstances, and condition of the party under disability; what other property, if any, such person owns, or is in any way entitled to, and the causes or reasons why a sale of the particular property is sought; and such pleadings shall be sworn to.^ By section 3325, the infant, if over fourteen years of age, and the married woman, shall answer the bill in person. Section 3330 provid-es that if the person under disability is not represented by counsel, the court shall appoint counsel for such person and fix his compensation (which is not to ex- ceed one hundred dollars). By section 3331, the propriety of the relief sought shall appear to the satisfaction of the court, by proof of facts estab- lished by unexceptionable and disinterested witnesses, and not by statements of opinion. By sec. 3332, the questions put to the witnesses shall be such as to elicit the whole truth, and may, if necessary, be prescribed by the court ; and the testimony shall be full, ample and satisfactory, and leave no reasonable doubt on the mind of the court as to the propriety of the relief sought. 'Code, 3333. '^Cocle, 3329. MAXIIAL OF CHANCERY PRACTICE. 397 By sec. 3-334, it is made the duty of the court to see that the requirements of the chapter on this subject are fully com- plied with, and not to give consent to, or order a sale without a full vinderstauding of the circumstances and condition of the person under disability, and without being fully satisfied that the case for a sale is clearly made out. By sec. 3339, no guardian, next friend, or witness in such cause, shall purchase at such sale, or at any time afterwards, until five years from the removal of the existing disabilities, and if such purchase is made, the original sale becomes void and ejectment may be brought against such purchaser. These stringent provisions apply with equal force to a bill filed to confirm a sale already made, as to a bill to sell the property. The provisions regarding the sale of the property of idiots and lunatics are less stringent.' 'Code, 3328, 3716, 3719. CHAPTER XII. ISSUES OF FACT AND TRIAL BY JURY. 259. Provisions of the Code. 260. Former practice. 261. EflFeot of the verdict. 259. Provisions of the Code. Issues of fact in all equity- causes are heard and determined by the court, unless a jury is demanded by one of the parties under the provisions of the Code.i In divorce cases issues may be made up at the request of either party upon matters of fact charged in the bill and denied in the answer, and tried by a jury in the presence of the court; and a new trial may be granted of said issues should the court deem it necessary.^ Either party to a suit in chancery is entitled, iipon appli- cation, to a jmy to try and determine any material fact in dispute, and all the issues of fact in any case shall be sub- mitted to one jury.' If the demand is made in the pleadings, the cause shall be tried at the first term before a jury summoned instanter, in the same way that jury causes are tried at law. But if the demand is only made after the cause is ready for hearing, the trial will be before a jurj^ summoned instanter, upon like evi- dence as a suit at law, together with such parts of the bill, answers, depositions and other proceedings in the cause as the court may order.'' The issues shall be made up by the parties under the direc- tion of the court, and set forth briefly and clearly the true questions of fact to be triei.^ 'Code, 2955. 'The petition need not be read to the jury as forming the issues to be tried, but the issues may be submitted to them on a separate piece of paper. Eicli- mond V. Richmond, 10 Yer., 343. Code, 4465, and notes. Report of the C. &' M, to -April term, 1869. Richard Roe. j The undersigned would respectfully report that in obedience to the decree of reference rendered in this cause at the last term of the court, after first causing notice to be served on the parties as required by law, he proceeded ,on the 10th 'Hubbard v. Smith, 10 Lea, 252. 'State V. Hyde, 4 Bax., 466. MANUAL OF CHANCERY PRACTICE. 411 day of Marcli, 1869, at his office in Knoxville, to hear proof upon the matter of reference and take the account as directed. Upon the proof taken, which is herewith submitted, he would report : The reasonable value of one thousand bushels of corn on the 20th day. of November, 1865, at compl't's residence in Knox county, was, say 50o. per bu.-l $500 00 Int. to 1st of Apr., 1869 -'_... lOO 00 Aggregate am't JGOO 00 All of which is respectfully submitted. D. A. Deadebick, C. &. M. William Jones, 1 vs. \ Eeport'of the C. & M. to Dec. term, 1868--> Joseph Wilson, j ; , ,.,,i,. .,;: ,., The undersigned would respectfully report that in obedience to the interlocu- tory decree rendered in this cause. at last term of the court, he puoceeded on the 10th day of October,, 1869, at. his office, to hfear proof upon the matters of refi erence and to take the account ordered, having first caused notice to be served en the parties as required .by law. '■ He would report upon the evidence taken, which' is herewith submitted; (1.) That the amount of purchase monej' paid by the complainant on his pur- chase from the defendant of the land mentioned in the bill is as follows ; May 10th, 1866 ^ -$205 00 Int. on same to Dec. 10, 1868 ^ 30 00 Dec, 10th, 1867 _ '.-^ ; 210 00 Int. on same to Dec. 10, 1868—1 6 60 Total am't paid on said purchase with int $451 60 (2.) The value of the rei:ts and profits of said land while occupied by com- plainant were worth, say, $100 per year. The proof shows that complainant enjoyed those rents tor the years 1866 and 186T. Value of rents and profits for 1866-.* $100 00 Int. from Dec 31st, 1866, to Dec. 10, '68, 12 00 Rentsfor 1867 100 00 Int. from Dec 31st, 1867, to 10th of Dec. 1868 6 00 Total am't. of rents and profits $218 00 (3.) The reasonable value of the permanent improvements erected by the complainant is $500 00 All of which is respectfully submitted. S. P. Hale, C. & M. (.The author has not taken the trouble to make the calcu- lations correctly in those supposed cases of account, as that is not necessary to convey an idea of the form). 412 MANUAL OF CHANCERY PRACTICE. 277. Form of exceptions to a report. Exceptions par- take of the nature ot special demurrers, and if a report is erroneous, the party excepting must put his finger on the error. Thus, exceptions that " moneys have been twice credited," or that the aggregate result of debts and credits is erroneous, are too general and are therefore bad.' The following will serve as a form for exceptions to a re- port : William Jones, "J vs. j- In the Chancery Court at Madisonville, Dec. term, 1868. Joseph Wilson. J Exceptions talteii byithe said defendant to the report of the master' made in this cause to the present term of the court : , - • Ist Exception. For that the master has in and by his said report stated that the said complainant paid said defendant on the 10th of December, 1867, $210, and charges this defendant with the same and interest thereon, whereas the proof does not show that such payment' was in fact made. 2d Exception. For that the master has in his said report stated the value of the rents and profits of the tract of land in controversy in tjiis suit, while occupied by the complainant, at only $100.00 per year, whereas the proof shows them to have been of the yearly vahie of $400.00. (See depositions of John Doe and John Smith.) ^d Exception. For tha;t the master has in his said report stated the vafa& of the permanent improvements erected by the complainant on sa,id tract of land at $500, whereas according to the weight of the evidence (see dep. of John Doe and John Sfliith), they are n6t worth more than $100. In all of which particulars the defendant excepts to said reports and appeals ■ therefrom to the judgment of this honorable court. N. Greek-, Solicitor. 278. Form of a decree allowing some, exceptions and disallowing others. William Jones vs. Joseph Wilson. Be it remembered that this cause came on to be further heard before the Hon. 0. P. Temple, Chancellor, etc., on this 10th day of December, 1868, on the proceedings heretofore had in the cause, ' and the report of th^ master to the present term of the court, and the exceptions taken thereto by the defendant. And the court being of opinion that the first exception taken as aforesaid, 'Ridley v. Ridley, 1 Cold., 332. Exceptions to a master's report are in the nature of special demurrers, and the party objecting must point out the error, otherwise the part not excepted to must be taken as admitted. Goddard V. Cox, 1 Lea, IIB; Green v. Lanier, 5 Heis., 670; Musgrove v. Lusk, 2 Tenn. Ch., 576. MANUAL OP CHANCERY PRACTICE. 41'3 being for that, the master, in his said report, haa stated that the complainant paid said defendant, on the 10th day of December, 1867, $210.00, and charges the defendant witli the same and interest thereon, is well taken, the same is allowed. And the court being of the opinion that the second exception taken as aforesaid is not well taken, the same is disallowed. And upon the third exception taken' as aforesaid, being for that, the master in said report stated the value of the permanent improvements erected by the complainant on the tract of land in cont^oyersy in ,this suit, at $500,00, the court orders that the com- plainant be allowed two hundred dollars and no more for said improvements, that sum appearing to be the reasonable value thereof, to be deducted from the amount with which complainant is charged for rents and profits of said land. And said report, in all things other than the matters embraced in said first and third exceptions, is confirmed. And it appearing to the court that the amount of purchase money paid by the complainant on his .purchase from the defendant, of the tract of land mentioned in the pleadings, with lawful interest to the present time amounts to the sum of two hundred and, thirty-five dollars, and that the v^lue of the rents and profit? of said tract of land while the complainant occupied the same, with interest to the present tifne, amounts, to- two hundred and eighteen dollars, being eighteen dollars in excess of the value, as herein adjudged, of the permanent improve- ments erected by complainant on said tract of landj which sum of eighteen dol- lars being deducted from said sum of two hundred and thirty-five dollars, leaves the sum of two hundred and seveiiteen dollars ; it is decreed that the complain- ant recover of the defenda,nt said sum of two hundred and seventeen dollars and the cost of this suit, and that execution issue for the same. It is further decreed that the contract between the parties to this suit, for the sale and purchase of said tract of land, tO'wit : a tract containing one hundred and sixty acres, more or less, lying in Monroe county, being th^ southeast quar- ter of the 30th section, 3d township, 2d range east, Hiwassee district, be and the same is hereby rescinded, and that the defendant be and he is hereby perpet- ually enjoined from enforcing collection of, or transferring the judgment recov- ered by him against the complainant before John Minis, Esq., on the 10th day of September, 1866, for three hundred dollars and costs of suit ; and from col- lecting or transferring the note for the second installment of the purchase money for said lands, to-wit: a note for five hundred dollars, dated May 10th, 1865, and payable at two years. It ;is further decreeed that the defendant be required to deliver up said note to the complainant to be cancelled, and that if necessary, a writ of injunction issue for that purpose. It is further decreed that the complainant have a lien on said tract of land for the amount of money and costs herein decreed in his favor against the defend- ant, with leave to apply for such furtheer orders as may be necessary to enforce the same, and the cause will be retained for that purpose. 278a. Purpose of the reference. The object of a refer- ence to the master is for the convenieace of the court, to as- certain disputed facts, and to make computations which would consume too much of the court's time. And where but a sin- '414 MANUAL 01* CHANCERY PRACTICE. gle item is in dispute, upon an exception to a report, it is tlie usual practice, upon tlie allowaiice of the exception, to modify the report by a decretal order, instead of sending it back to ■the master for correction.' 279. Separate order on arguing exceptions. It is per- haps more formal to dispose of the argument of the excep- tions before proceeding to a further hearing of the cause. In that case the order may be as follows : William Jones vs. 'if})sfepli Wilson. '"■'"(in'ttis itlth day of December, 1868, before the Honorable O. P. Temple, Cliancellor, etc., came on for argument, the exceptions taken by the defendant 'to the report of the master made in this cause to the present term of the court. And the court being of opinion that the first exception taken, as aforesaid, being for that the master, in and by his said report, has stated that the com- plainant paid said defendant on the 10th day of December, ^8S'J, $210.00, and ' charges the defendant with the same and interest thereon, is sufficient, the same is, sustained. And the court being of opinion that the second exception taken as aforesaid, is insufficient, the same is overruled. And upon the third excep- tion taken as aforesaid, being for that the master, in and by said report, stated the value of the permanent improvements erected by the complainant on the tract of land in, controversy in this suit, at $350.00, the court orders that two hundred dollars and no more be allowed for said improvements, that appearing 'to be their reasonable value. 280. Form of decree confirming report of sale and divesting and vesting title. .Jacob GivenS; adm'r of Zachariah Givens, dec'd., vs. James Givens, Jonas Givens, William Erwin and wife, Martha, alid others. Be it remembered that this cause came on to be heard before the Honorable 0. 'P. Temple, Chancellor, etc., on this 10th day of June, 1869, on the plead- ings and proof, and the report of the master to the present term of the court, which report is in the words and figures loUowing : (Here copy the report.) And said report being unexcepted to is in all things confirmed. It is there- ford decreed that all the right, title and interest pf '^he said Jacob Givens, James Givens, Jonas Givens and William Brwin and wife Martha (heirs at law of Zachariah Givens, deccfised), in and to said tract ' of land, be divested out of them and vested in said John Doe, subject to the lien aforesaid for the unpaid purchase money; and that on paying the legal fees therefor, he be allowed a copy of this decret; fbv re^lsftation as a muniment of title to said' land. ^Taylor v. Read, 4 Paige, 568. MANUAL OF CHANCERY PRACTICE. 415 And it is referred to the master to hear proof and report to the present term of the court what would be a reasonable fee to W. B. Reese, Esq., for his ser- vises as solicitor in this cause. All further questions aj-e reserved till the com- ing in of said report. 280a; Proper decree upon confirmation of report of Sale. Where there is no doubt as to the responsibility of the pur- chaser and his sureties, it is a very good plan to divest and vest title, as this course saves the trouble and expense of the execution of a conveyance by the master. But when there is any doubt as to the solvency and promptness of the pur- chaser, it is better not to divest and vest title: For, in that case, if it becomes necessary to decree thiat the land sh^ll be resold to pay the purchase money, the party who purchased at the first sale will have the right to redeem. But it seems that without divestiture and vestiture of title, a purchaser at a master's sale acquires nd equity by a confirmation of the report, unless he has paid the purchase money. In such , a case the better plan would seem to be to simply confirm the report, with a direction that, upon payment of the -notes given for the 'purchase money, the master shall execute the deed to the purchaser. For, in that case, if a re-sale for the unpaid purchase money becomes necessary, no right of re- demption will exist, as no equity is acquired by such sale and contilrniation.^ 281. Effect of sale before confirmation. Upon this sub- ject the decisions made before 289. Reciting facts in decrees. 290. Decrees where property is to be sold,, or title thereto is to be transferred, or a release or acquittance executed. 291. Decree upon prosecution, attachment, replevy and delivery bonds. 292. Decree for sale of property free from right of redemption. 293. Decree must follow pleadings and proof, and Jcannot be had on proof alone. 294. Granting relief beyond the prayer. 295. Relief between co-defendants. 296. Forms of final decrees. 1. Generally, 2. Form of decree for a divorce. 3. Decree as to application of a fund. 4. Decree for specif c performance. 297. Rectifying decrees. 298. Entering decrees nurlc pro tunc. 299. Reviving decrees. 300. Lien of decrees. 301. Lien for purchase money of land sold by decree of chancei-y. • 302. Enforcing decrees. 1. By process of contempt. 2. By sequestration. 3. Other modes of execution. 302a. Putting a purchaser into possession. 303. Forms of process for the execution of decrees. 1. Fi. fa. or common execution. 2: Writ of possession. 3. Writ enjoining a party to perform a decree. 4. Distringas against a corporation. 5. Writ of sequestration. 304. Powers and duties of sequestrators. 305. Effect of a sequestration. 306. Manner in which parties claiming, by title paramount, the property seized, must apply for redress. 307. Abatement and revivor in eases in which there is a squestration. MANUAL OF CIIANCEKY PRACTICE. 429 308. Manner of executing final process. 309. Costs in chancery. ,310. Decrees on notes'given for purchase money. 311. Porm of a decree upon notes given for purchase money, and for sale of land without barring the right of redemption. 312. Equities arising, against a purchaser, or between purchasers, after the sale. [As to the general nature of decrees and the distinction between interlocutory and final decrees, see section 250, ante.) 288. Further hearing of a cause after the rendition of one or more interlocutory decrees. In interlocutory ' decrees, as already seen, further . directions are usually reserved, under the practice in England.^ This reservation will be continued from time to time, if necessary, in successive interlocutory decrees.^ In Tennessee it is also usual to make an express reserva- tion in an interlocutory decree, of such matters as are not therein adjudicated. But it is believed that under our liberal practice, a further hearing may be had upon questions involved in a cause, which are left undetermined by an interlocutory decree, although there may be no express reservation of any matter in such interlocutory decree. "Where, at the hearing of a cause, any of the matters in question between the parties is reserved till the master makes his report, the court will not determine those matters in a summary way upon motion, but the cause must be set down for further hearing upon the matters reserved. But a mere provisional order, (such as the appointment of a receiver,) not affecting the question reserved between the parties, may be granted upon motion.^ Of course questions which arise in the progress of the cause upon matters subsequent to the rendition of an inter- Jocutory decree, may be adjudicated without any express reservation of them. Indeed a question cannot be well re-, served before it has an existence. 'See ante, 250. 'Seaton on Decrees, 36. 'Cook V. Gwin, 3 Atk., 689. 430 MANUAL OF CHANCERY PRACTICE It may be remarked that a court of chancery has the inherent power to make all such orders and decrees as are, necessary to enforce its decrees, and such power is not lost by failing to reserve it in the decree.' After a final dispostion of a cause is made, and no further control is reserved over it by the court, no further decree or order can be made in it. Thus, a writ of possession cannot be ordered to put the purchaser into possession of land sold by decree in chancery, unless the writ is applied for before the cause is out of court.^ 289. Reciting facts in decrees. Decrees need not recite the facts upon which they are based, but only the conclu- sions to which the court has come.' But this provision does not prohibit parties from stating the facts in the decree, plainly and succinctly, nor the court from directing it to be done.* It may sometimes be a necessary precaution to show in a decree that certain records were read on the trial, or that certain depositions on file were not read.* 290. Decrees where property is to be sold, or title thereto is to be transferred, or a release or acquittance is to be executed. The decree may divest the title to property, real or personal, out of any of the parties, and vest it in others, and such decree shall have all the force and effect of a con- veyance by such parties, executed in due form of law.' The court may also appoint a commissioner to execute all necessary conveyances, releases and acquittances, either in his name or in the name of the parties, as the court may think proper; and the instrument so executed will be as valid as if executed by the party.'^ ^Post, 310, 312. 'Planter's Bank v. Fowlkes, 4Sneed, 461. See also Vanbibber v. Sawyers, 10 Hum., 81; Franklin v. Franklin, 2 Swan, 521. "Code, 4476. *Code, 4477. ^See ante, 249. *Code, 4484 and note. 'Code, 4485. MANUAL OF CUANCBET PRACTICE. 431 If the decree direct a conveyance, release, or acquittance to be made, and the party against whom tlie decree is ren- dered fails or refuses to execute the same within the time specified in the decree, or in a reasonable time, if no particu- lar time is thus specified, the decree operates in all respects as if the conveyance, release or acquittance was made.' In all suits instituted according to law to sell the real estate of decedents for the payment of debts, or to sell lands for partition, the court may decree a sale of lands lying in any part of the State.^ The courts of this State having jurisdiction to sell lands, instead of ordering parties to convey, may divest and vest title directly by decree, or empower the clerk to make a title.- The decree, or deed of the clerk, as the the case may he, shall have the same force and effect as a conveyance by the party, and*sTiall be registered.* And in such cases where the sale is made at the voluntary instance of parties, the decree or deed of the clerk shall im- ply a covenant of seizin and warranty of title by the parties whose interest is sold, their heirs and representatives, unless otherwise provided in the face of the decree." A sale by the master under a decree made at the volun- tary instance of the parties, is but a mode of sale by the par- ties themselves, and not merely a sale by the law in invito of such interest as the party has ; therefore the rule caveat emp- tor does not apply." Still an implied warranty of title to real estate does not exist except where it is created by ex- press statute. But, upon well settled principles, if the defect in the title is discovered and the application to set aside the sale is made before confirmation, the court will not compel the purchaser to complete the purchase, but will set aside the sale, even in cases where the sale is not made at the volun- 'Gode. 4486. 'Code, 4102. 'Code, 4103. EADEBicK. Clerh and Master. If the execution be against an executor or administrator in his representative capacity, the command should be "That of the goods and chattels, rights and credits of E. F., de- ceased, in the hands of A. B., administrator (or executor) of said E. F., deceased, to be administered, you make," etc. 'Planters' Bank v. Fowlkes, 4 Sneed, 461. 'See Vanbibber v. Sawyers, 10 Hum., 82. 446 MANUAL OF CHANCKRY PRACTFCE. If the execution be against a corporation, the words " and choses in action" should be added after the words lands and tenements, if the plaintiff applies for that kind of an execu- tion.^ 2. Writ of possession. The S^ate op Tennessee. To the Sheriff of Knox County : Whereas, on the 12th day of October, 1869, in our Chancery Court at Knox- ville, in a certain cause therein depending, wherein A. B. is complainant and C. D. defendant, it was ordered and decreed that a writ of possession issue to put said A. B. into possession of a certain tract or parcel of land, to-wit: (here describe the land). You are tlierefore hereby commanded to talf e with you the force of the countj', if necessary, and cause the said A. B. to have possession of said tract of land, and that you remove said C. D. therefrom and give said A. B. peaceable posses" sion thereof (This last clause should not be inserted unless the decree or order specifies who is to be removed from the possession). And return to said court at a court to be held at Knoxville on the 2d Monday of April next, how you have executed this writ. Witness, D. A. Deaderick, clerk and master of said court, at office in Knox- ville, the 2d Monday of October, 1869. D. A. Deaderick, Clerk & Master. If the writ of possession be for personal property, the nec- essary changes will readily suggest themselves. In that case the command would be to "take the property out of the pos- session of the defendant and deliver it to the plaintiff." 3. Writ evjoining a party to perform a decree. Independently of the provisions of sections 4488 and 4478- 4481 of the Code, it is a general principle that courts of chancery have power to issue all process necessary to carry their decrees into effectual execution. And in England it is a common practice for the court to award a mandate to enjoin the performance of the decree. This is in effect the same as serving a copy of the decree under the provisions of sections 4480-4481 of the Code, and if not, the more convenient practice would surely furnish 'Code, 3000. MANUAL OF CHANCERY PRACTICE. 447 recoi'd evidence in the case of at least as permanent a nature as can be furnished under the other practice that the party has notice of the decree. The writ of injunction is a judicial process, by which a party is required to do a particular thing, or to refrain from doing a particular thing. The process is rather preventive than restorative ; that is, it is oftener used to prevent a med- itated wrong than to redress an injury already done ; but it is by no means confined to the former object.' The writ is in the following form : The State of Tennessee. To the Sheriff of Knox County : Whereas, by a certain final decree, rendered in our Chancery Court at Knoxville on the 12th day of October, 1869, in a certain cause therein depend- ing, wherein A. B. is complainant and C. C, E. F., G. H. and J. K. defendants. It is ordered and decreed that, (here insert the ordering part of the decree,) as hy said decree remaining of record in our said Chancery Court doth fully appear. You are therefore hereby commanded to make known to the said C. D. and E. F. that they are strictly enjoined and commanded that they perform, fulfill and execute all and every the matters and things specified and contained in said final decree, in all things so far as the same relates to or concerns them respectively, according to the true meaning and import of the said decree and of these presents ; and hereof shall not fail at their peril. Herein fail not ; and make return of this writ to said Court on the 2d Monday of April next. Witness, D. A. Deaderick, Clerk and Master of said Court, at office in Knox- ville, the 2d Monday of October, 1869. D. A. Deaderick, Clerk and Master. 4. Distringas against a corporation. The State op Tennessee. To the Sheriff of Knox County : Whereas, by a certain final decree, rendered in our Chancery Court at Knox- ville, on the 15th day of October, 1869, in a certain cause therein depending, wherein John Doe is complainant and the Mayor and Aldermen of our city of Knoxville defendants ; it is ordered and decreed that, (here insert the ordering part of the decree, ) all. of which doth fully appear of record in our said Chancery Court. You are therefore hereby commanded to make a distress on the goods and chattels, lands and tenements, and choses in action of the Mayor and Aldermen 'See Danl. Ch. P-., 1809. 448 MANUAL OF CHANCERY PRACTICE. of our said city of Knoxville, within your county; so as that neither the Mayor and Aldermen- aforesaid, nor any other person or persons for them may lay his, her or their hands thereon, until our said Court of Chancery shall make other order to the contrary; and in the meantime you are to answer to us for said goods and chattels, and choses in action, and the rents and profits of said lands and tenements, so that said Mayor and Aldermen may be compelled to obey and perform said decree, and clear their contempts against the State in failing and refusing to obey and perform said decree. Herein fail not; and make return of this writ to said Court on the 2d Monday of April next. Witness, D. A. Deaderick, Clerk and Master of said Court, at office in Knox- ville, the 2d Monday of October, 18G9. D. A. Deaderick, Clerh and Master. A distringas is never used in England as final process. But it is frequently used as mesne process to compel a corporation to answer. As a corporation cannot be attached for con- tempt, writs of distringas and sequestration are resorted to when it is necessary to compel them to answer. The practice is to issue an alias and plunes distringas if necessary, and if the last one proves ineftectual, a commis- sion of sequestration may be obtained. And, in such case, the sequestration cannot be discharged till the corporation has done what it is required to do,, and paid the costs of the several distringases, and of the sequestration; but upon their doing this they may, upon motion, get the seque.3tration discharged.' But in Tennessee these processes cannot be used as mesne process. 5. ■ Writ of sequestration. This is a writ of commmis.sion sometimes directed to the sheriff, but usually to four or more commissioners of the complainant's own choosing. This writ is very effective where the defendant has effects which cannot be reached by other process. It was first used in Lord Coventry's time, when Sir John Read lay in the Fleet for disobedience to a decree which he would not pay. Upon it being represented to the Lord Keeper that Sir John had 10,000L in an iron chest in his chamber, the Lord Keeper 'See Danl. Ch. Pr., 535-6. MANUAL OF CHANCERY PRACTICE. 449 authorized men to go and break up the iron chest and pay ' the decree and costs out of the money, and leave the rest with Sir John to discharge his commitment.' This writ is now also used in England as mesne process, to compel an answer, but it is not used for this purpose in Tennessee, our only process to compel an answer being an a,ttachment for contempt.^ The following form will serve as a guide in issuing the writ: The State of Tennessee. To John Bell, William Smith, Thomas Wilson and James Brown : Whereas, by a certain final decree, rendered in our Chancery Court at Knox- ville on the 15th day of April, 1869, in a certain cause therein depending, wherein A. B. is complainant and C. D. defendant: It is ordered and decreed that, (here insert the ordering part of the decree. Also recite the order for the issuance of the writ of sequestration, preceding it with a recital of the issuance of the attachment, if one has issued, and that the defendant could not be found as appears from the return of the sheriff,) all of which doth fully appear of record in our said chancery court. Know ye, therefore, that we, in consideration of your prudence and fidelity, have given, and by these presents do give to you, any three or two of you, full power and authority to enter upon all the messuages, lands, tenements and real estate whatsoever, of the said C. D:, and to take, collect, receive and sequester into your hands, not only all the rents and profits of said messuages, lands, ten- ements and real estate, but also all his goods, chattels and personal estate what- soever ; and, therefore, we command you, any three or two of you, that you do at certain, proper and convenient days and hours, go to and enter upon all the messuages, lands, tenements and real estate of the said C. D. ; and that you do collect, take and get into your hands, not only all the rents and profits of all his real estate, but also all his goods, chattels and personal estate, and keep the same under sequestration, in your hands, until said C. D. shall obey and per- form said decree, and clear his contempts, and our said Court make other order to the contrary. Witness, D. A. Deaderick, Clerk and Master of said Court, at office in Knox- ville, the 2d Monday of October, 1869. D. A. Deadebick, Clerh and Master. 304. Powers and duties of sequestrators. The seques- trators may take all the goods and chattels in the possession of the defendant, or which they can come at without a suit. But property exempt from execution, seizure, or attachment, of course, could not be taken.^ 'Barton's Suit in Equity, by Holcombe. 88, and note. ^Ante, 65. 'Danl. Ch. Pr.', 1259; Code, 2108a. 29 450 MANUAL OF CHANCERY PRACTICE. A chose in action in the hands of a third party may be taken, if he admits it to belong to the party against whom the sequestration has issued. And the court will in such case order it to be paid into court.' But if the person in whose hands such chose in action is, disputes the amount of it, or the title of the party whose property is sequestered, the court will not make such order, and it is doubtful whether it will even authorize the seques- trators to bring suit for it. Sequestrators may break open doors in the discharge of their duties, and may open boxes and rooms that are locked where the keys are denied them, even upon a sequestration used as mesne process to compel an answer, and may schedule the goods in such box or room.^ But goods taken on a sequestration as mesne process are only in the nature of a pledge to answer the contempt, and the writ does not authorize the sequestrators to remove the goods, but only to take and prevent the defendant from en- joying them till he has cleared his contempt. But under a sequestration to enforce a decree, thei sequestrators may re- move the goods.^ The court will order the sale not only of perishable com- modities, but of goods, such as rents paid in kind, or the natural produce of a farm, or household goods and furniture; but will not sell terms of years or leasehold estates, or any subject which passes by title and not by delivery, although it will direct the profits to be applied. The application for a sale may be made either by petition or motion.'' The sequestrators may not only enter into possession of such parts of the defendant's real estate as are in his own occupation, but may enter into the receipt of the rents and profits of such estates as are in the occupation of tenants. If the tenants refuse to attorn, upon that fact being returned by the sequestrators, the court will, upon motion, of which the 'Danl. Ch. Pr., 1261. =Danl. Ch. Pr., 1261-1262. 'Danl. Ch. Pr., 1262-1263. *Danl. Ch. Pr., 1263-1264. MANUAL OF CHANCERY PRACTICE. 451 tenants must have notice, order them to attorn and pay their rents to the sequestrators. This order should be made upon the tenants by name, and not upon the tenants of the de- f'endant generally. The court will also, in a proper- case, give the sequestrators authority to lease out the property.' A fraudulent alienation of property will not afiect the se- questration, and where there has been an alienation, the court will sometimes order the alienee to be examined -pro interesse suo, unless he shows good cause to the contrary. Sequestrators are accountable for all that they receive, and are bound, from time to time, to make returns to the court of what comes to their hands under the sequestration. The sequestrators ought not, of their own authority, to apply the proceeds they receive to the payment of the decree, but pay it into court, to be so applied by order of the court.- The court will put a sequestrator in possession, in the same manner that it will a receiver.^ 305. Efifect of a seijuestration. A sequestration binds the lands of the defendant from the time it is awarded.* "Where the land or its profits is the subject of the suit, the title is bound from the institution of the suit, and a pur- chaser pendente lite will not be protected, though he paid a bona fide consideration for it.^ 306. Manner in which, parties claiming, by title para- mount, the property seized, must apply for redress. It is a contempt of court to disturb sequestrators in their pos- session, and if they are forcibly dispossessed, the coart will award an injunction to compel the restitution of that of which they have been dispossessed. And of course would in a proper case, award a writ of possession, or any other pro- cess deemed sufficient to accomplish the object. The court will not permit a suit to be brought against a sequestrator, any more than against a receiver, for the pos- 'Danl. Ch. Pr., 1264-1265. "Danl. Ch. Pr., 1266. "Danl. Ch. Pr., 1266-1267. See ante, 193. «Danl Ch. Pr., 1268. »Danl Ch. Pr., 1267. 452 MANUAL OF CHANCERY PRACTICE. session of the property, without leave of the court first obtained, but will restrain such suit by injunction.* Under the practice in England, a person claiming by title paramount, either real or personal propei'ty sequestered, should apply to the court to direct the plaintiff to file inter- rogatories for the examination of the claimant as to his title in the property, which is called an examination pro interesse suo. This order may be obtained either by motion supported by affidavit, or by petition under oath stating the facts. The order will sometimes direct property which has been seques- tered to be restored, in the meantime, to the applicant, on his giving security.^ It would seem that for the sake of uniformity in practice, if tor nothing else, the application for an examination pro interesse suo should be made by petition. It is unusual to permit a stranger to the suit to make a motion in the cause. Sometimes instead of ordering an examination pro interesse suo, the court will give the party leave to try his title at law, and will sometimes refer it to the master to inquire and re- port whether the party claiming is entitled to any interest in the property ; and in a case where the right of the applicant was clear and undisputed, the court at once made an order to restore the property to him, without either directing any ex- amination pro interesse suo or make any reference to th3 mas- ter.' It would seem to be in harmony with our practice in Ten- nessee to refer the question as to the right of the claimant to the master to take proof and report, instead of directing an examination pro interesse suo. In all orders for the plaintiff" to examine a party ^^ra inter- esse suo, there should be a time limited within which the interrogatories must be exhibited ; the interrogatories must be settled by the master, and if the claimant, after the inter- rogatories have been exhibited and settled, neglect to put in 'Danl Ch. Pr., 12V0. »Danl. Ch. Pr., 1268-9. »Danl. Ch. Pr., 1271. MANUAL OF CHANCERY -PRACTICE. 453 his examination, tlie court will direct him to do so, and to procure the master's report within the time specified.' When the examination has been put in, the plaintiff, if he disputes the truth, must reply to it. If it be not replied to, it will be conclusive, and the claimant may then apply for a reference to the master to look into the interrogatories and the examination, and to certify whether he has made out a title or not. If the examination is replied to, leave will be given to either party to examine witnesses, and after the proof is taken and publication passed, an order is made to refer it to the master, to look into the examination and depositions, and report whether the claimant has piade out any and what interest in the premises, or in any and what part thereof. When it appears that a party who has been examined pro interesse suo has a plain title to the property, and \% not affected by the sequestration, then it is to be discharged against him, with or without costs as the court shall deter- mine upon the circumstances of the case, and so vica versa. An infant may be admitted to be examined -pro interesse suo by guardian ; and a person may, in England, be admitted to make out his claim by means of such an examination in forrna pauperis."^ 307. Abatement and revivor in cases in which there is sequestration. "Where the defendant dies the sequestration abates with the suit, but being in the nature of an execution it may be revived with, the suit or decree. But it seems that where the decree is for a mere personal demand, the seques- tration can only be revived against the personal representa- tive, and not against the heir, unless the decree is for a cove- nant in which the heir or the land itself is bound.^ But to authorize the revival of the sequestration against the heir, the suit must be revived, and must be revived not only against the personal representative, but against the heir. A revival of the suit against the personal representative will not authorize a revival of the sequestration against the heir. 'Danl. Ch. Pr., 1272. »Danl. Ch. Pr.. 1272-3. ^Danl. Cb. Pr., 1274. 454 MANUAL OE CHANCERY PRACTICE. But it seems that no ordei' is necessary to revive the seques- tration against either the personal or real representative. The revival of the suit revives the sequestration.^ A sequestration against the lands of a married man will not bind his wife's dower after his death, even though the marriage took place after the sequestration issued.^ The proper course, where there is an abatement of the suit by the death of the plaintiff, appears to be for the party whose property is sequestered, to move that the representa- tive of the plaintiff may revive the suit within a given time, or else the sequestration may be removed. But where the abatement is by the death of the defendant, if the sequestra- tion is on real estate, and the plaintiff' doe-> not revive the suit against the real representative, it seems that the person claiming the land may proceed by ejectment to recover pos- session of it, and that the court will not restrain him.* 308. Manner of executing final process. The manner of executing process for contempt issued to enforce final de- crees has been sufficiently shown in section 302, sub.-see. 1, ante. The manner of executing process of sequestration to en- force decrees has also b6en shown in sections 304-306. As to executing a distringas, see section 303, sub.-see. 4, ante. Afi.fa. is executed in the same manner as when issued from a court of law ; that is, by levying upon and selling property of the party against whom it is issued sufficient to satisfy the same and costs, if sueh property (subject to exe- cution) is to be found ; the personal property of the defend- ant to be exhausted before levying on real property. A levy on personal property is made by taking it into the officer's possession or having it vinder his control. A levy upon land is made simply by writing the levy on the execution with such a description of the land as is sufficient to identity "it. If the sheriff" cannot find sufficient property of the defend- 'Danl. Ck Pr., 1275. .... »Danl. Ch. Pr., 1274. ; ;, , '. 'Danl. Ch. Pr., 1275-76. K-r MANUAL OF CHANCEKT PEACTICB. 455 ant to satisfy the execution, it is his duty to summon as gar- nishee any person supposed to owe the defendant a debt sub- ject to garnishment, or to have in liis possession or under his control any property, debts, or effects of the defendant sub- ject to garnishment.! As to the form of the garnishment and return in such case, the necessary changes in the forms given in sec. 60, sub. -sec. 4, ante, will .readily suggest them- selves. It is not deemed necessary to treat here of delivery bonds, advertisement and sale of the property levied on, notice to defendant in possession of land, return of the execution, the issuance of alias and pluries executions, or of a venditioni ex- ponas or order of sale. These matters are of such frequent occurrence that the practice is familiar, and moreover information in regard to them is of easy access in the Code, the Digests and the His- tory of a Lawsuit. A writ of possession is also executed in the same manner, as if issued from a court of law. It is the duty of the sheriff in executing this writ to re- move the tenant entirely off the premises, (unless he quietly and peaceably yields the possession to the plaintiff" and con- sent thereto), and deliver the full and actual possession of the premises to the plaintiff.^ An injunction to enforce a decree should be served like any other injunction, by reading it to the party, and if he evade or attempt to evade the service, it is presumed that' leaving a copy at his residence and stating the facts in the return would be a sufficient service of an injunction of this kind, as well as of an injunction used as mesne process.^ 309. Costs in chancery. "Where the bill is dismissed for want of prosecution the plaintiff shall pay the costs.* Upon the final decree in a cause, the costs shall be paid by •Code, 3087-3090. 'Faruaworth v. Fowler, 1 Swan, 1. 'Code, 4443; Hilliard on Inj., ch. 1, sec. 117. *Code, 4494. 456 MANUAL OF CHANCERY PKACTICE. the party against whom the court shall adjudge them in its discretion.' Upon interlocutory proceedings it is provided that costs shall be paid in the following cases : (1.) When the plaintiff amends his bill after copy issued, he shall pay all costs occasioned thereby.^ (2.) When the defendant's answer is excepted to for in- sufficiency, and a rule is given him to file a sufficient answer within one month, a sufficient answer offered within the month is to be received without costs ; but if the defendant neglect or refuse to put in a sufficient answer, or put in an- other answer which is adjudged insufficient, no further or other answer shall be received but upon payment of costs. (3.) On overruling or sustaining exceptions to an answer, the unsuccessful party shall pay the other three dollars. (4.) Upon a plea or demurrer argued and overruled, costs shall be paid as where an answer is adjudged insufficient; but if a plea or demurrei; be allowed, the defendant shall recover the same amount from the plaintiff.' Such are some of the provisions of the Code. But the costs allowed upon the argument of a plea or demurrer, or of exceptions to an answer, are never claimed, the profession considering it ungenerous to claim them. It is also provided in sec. 4320, that the court may charge the defendant with any costs occasioned by the failure to i-ely upon the former plea or demurrer, (instead of relying in his answer on the matters proper for a plea of demurrer,) or to set down the matters of demurrer in the answer, for argu- ment at the proper time, which is the next term of the court after the answer containing such matters of demurrer is filed. The discretion of the court in adjudicating costs, is not an arbitrary, capricious, blind discretion, but a legal discretion resulting from a view of the case, taken in combination with all its circumstances, and calling to its aid the issue of like 'Code, 4493. As to the nature of this discretion see Clark v. Clark, 4 Hay., 36; Perkins v. McGavock, 3 Hay., 255. ^See ante, 115, sub-sec. 2. 'Code, 4492, 4397, 4405. MANUAL OP CHANCERY PRACTICE. 457 questions, heretofore upon cases as nearly analogous as can be found.' A trustee pays no costs when he is in no default and when he is brought into court unnecessarily.^ The successful party in all civil actions, is entitled to full costs, unless otherwise directed, for which judgment shall be rendered.^ In cases of non-suit, dismission, abatement by death of plaintiff, or discontinuance, the defendant is the successful party within the meaning of section 3197.^ All costs accrued at the instance of the successful party, which cannot be collected out of the other party, may be recovered on motion, by the person entitled to them, against the successful party.^ The necessary fees paid by the successful party, in pro- curing copies of deeds, bonds, wills, or other records, filed as part of the testimony, shall be taxed in the bill of costs.* Postage paid by the officers of the court, or by the parties in sending process, depositions and other papers, being part of the record, by mail shall be taxed in the bill of costs, as the other costs.' "When a plaintiff suffers his action to abate by the death of the defendant, or other cause ; or where the suit abates by the death of the plaintiff', and his representatives fail to re- vive the same, judgment for costs may be rendered against such plaintiff or representatives, in the name of the officers of court, and, if against a representative, shall be paid as other claims against the estate.* Where a suit is dismissed from any court for want of juris- diction, or because it has not-been regularly transferred from an inferior to a superior court, the costs shall be adjudged against the party attempting to institute or bring up the cause. 'Clark V. Clark, 4 Hay., 36; McGavock v. Perkins, 3 Hay,, 253, 'Perkins v. McGavock, 3 Hay., 255. 'Code, 3197, and note, *Cbde, 3201, sCode, 3204, «Code, 3206. 'Code, 3207. ^Code, 3209. 458 MANUAL OF CHANCERY PRACTICE - JSTot more than two witnesses called to prove the same fact shall be taxed in any bill of costs against the losing party, except in case of witnesses called to attack or sustain the character of a witness or party .^ If more than the number of witnesses allowed are exam- ined in proof of any particular fact, a motion shall be made at the term at which the cause is tried, and the court shall instruct the clerk as to the taxation of costs; and such ■ motion shall not be made otherwise, without good cause shown.^ The defendants against whom judgment has been recov- ered are entitled, as between themselves, to a taxation of the costs of witnesses whose testimony was obtained at the in- stance of one of the defendants, and inured exclusively to his benefit.' Costs omitted in taxing the bill of costs may be re-taxed at any time, upon application to the court; but if the judg- ment for costs has been paid, the party against whom the re- taxation is asked shall have five days' notice of the appli- cation.* If the taxation of costs be excessive, by charging the costs of witnesses who were not examined, or by charging to an improper party, or taxing costs contrary to law, or the taxa- tion is otherwise erroneous, the party aggrieved may move the court for a re-taxation, setting forth the particulars in which the clerk has erred. ° The law of costs shall be construed remedially, and not as the penal law. And if any case shall occur, not directly or by fair implication embraced in the express provisions of the law, the court may make such disposition of the costs as, in its sound discretion, may seem right." 'See Code 3213, as amended by 3213a. 'Code, 3214. 'Code, 3210. *Code, 3211. A judgment erroneously entered as to costs may be corrected at the next term, on motion. Maupin v. Whitson, 2 Heis., 1. ^Code, 3214 and note. 'Code, 3219, 3220. As to costs adjudged against the State, see Code, 3220o. MANUAL OF CHANCERY PRACTICE. 459 310. Decrees on notes given for purchase money. Every court, and especially a court of chancery, must have an in- herent power to enforce its judgments and decrees. A court of chancery, by virtue of this inherent povrer of enforcing its decrees, has under its control all sales made under its order till a final disposition is made of the cause, and may make any order that may be necessary for the enforcement of the decree. The purchaser at such sale becomes a party to the suit, as to everything that relates to the sale, and he being a party, his sureties become subject to all his liabilities. Therefore, a decree may be rendered by motion against the purchaser and his sureties for purchase money due and unpaid.' And the purchaser being a party to the suit is not entitled to notice of the motion.^ And v^here the principal is dead, the motion may be made against one or all the sureties, and they are in court and not entitled to notice in the absence of a statute requiring it.^ It may also be made against the personal, representative of the deceased, but not without scire facias or notice, A scire facias is the more regular mode of proceeding, but a notice which fully informs the party of the nature of his liability, and the time, place and manner in which the plaintifi' will seek to enforce it is sufficient. The parties to such note are jointly and severally liable. The purchaser and his sureties are not such parties to the suit ^s to make a revivor neces- sary when they die.* ^ ' Where property' has been sold by decree of the circuit court, in a case where it has concurrent jurisdiction, it has the same power.* It is indeed objectionable and erroneous to resort to any .'Deaderick v. Smith, 6 Hum., 146; Vanbibber v. Sawyers, 10 Hum., 82; Blackmore v. Barker, 2 Swan, 341 ; Still v. Boon, 5 Sneed, 381. ^Blaokmore v. Barker, 2 Swan, 342. "Whiteside w. Latham, 2 Cold., 91. *Dibbrell v. Williams, 3 Cold., 528. "Still V. Boon, 5 Sneed, 580. 460 MANUAL OF CHANCERY PRACTICE. other court than that in which the sale is made, for the pur- porse of enforcing payment.' And such judgment or decree cannot be enjoined by another court. The application for relief must be made to the court in which the proceeding is pending.^ An appeal from such judgment or decree lies to the Supreme Court.^ Where the sale had been confirmed, title divested and vested, and one of the notes executed for the property re- mained unpaid, but had been delivered by the master to one of the parties in interest upon a final adjustment of the matters in the cause, and a final disposition had been made of the cause, it was held that the court had divested itself of control over the parties and the cause, and had no jurisdiction to render a decree on the note.'' 311. Form of a decree upon notes given for purchase money, and for sale of land without barring right of redemption. iTacob Givens, adm'r of Zachariah Givens, dec'd., vs. James Givens, Jonas Givens, William Erwin and wife, Martha, and others. Be it remembered that in this cause on this 7th day of June, 1870, before the Honorable 0. P. Temple, Chancellor, etc., Stephen P. Hale, the Clerk and Master of this Court, produced the two notes, each for seven hundred and fifty dollars, dated March 1, 1869, and payable respectively at six and twelve months from their date, executed to him by John Doe, with Joseph Smith his security, for the tract of land sold by the Clerk and Master to said John Doe, under the decree rendered in this cause at the December Term, 1868, of the Court, and moved the Court for a decree against said purchaser and his said suretj', for the balaijce, (or amount as the case may be,) due on said notes. And it appearing to the court from an inspection of said notes and the credits thereon, that there is (a balance of) one thousand dollars, principal and interest, due on said notes, it is decreed that said Stephen P. Hale, as Clerk and Master of this court, recover of said John Doe and his said surety Joseph Smith, said sum of one thousand dollars and costs of this motion. And it further appearing from an inspection of the record in this cause, that a lien for the unpaid purchase money was retained on said land, to-wit: a. tract of one hundred and sxty acres, more or less, lying in the 8lh civil district of 'Deaderick v. Smith, 6 Hum., 147; Still v. Boon, 5 Sneed, 380. ''Whiteside v. Latham, 2 Cold., 91; Smith v. Deaderick, 6 Hum., 141, 'Eagan v. Phister, 5 Sneed, 298. *Vanbibber v. Sawyer, 10 Hum., 81; Majors v. McNeeley, 7 Heis., 299. MANUAL OF CHANCERY PRACTICE. 461 Monroe county, being the southeast quarter of the 29th section, 3d township,' 2d range east, Hiwassee district; it is decreed that said land be subjected to the satisfaction of this decree, and that unless this decree is satisfied by the pay- ment of the money within three months from this date, the master, after giving thirty days! notice thereof by advertisement at five public places in Monroe county, one of which shall be at the courthouse door in Madisonville, and another in the civil di^strict in which the land lies, and causing said advertise- ment to be published for four successive weeks in the Sweetwater Enterprise, shall proceed to sell said tract of land, at public sale, at the courthouse door in Madisonville, to the highest and best bidder, for cash in hand. He will report hereof to the next term of tlie court. It is further decreed that in the event the proceeds arising from the sale of said tract of land shall prove insufficient to satisfy this decree, execution may issue for such balance as may remain unsatisfied. Where the clerk and master is personally interested it is proper to appoint a special commissioner to sell the property. But it is presumed that where his Interest is only in his official capacity, there is no impropriety in his making the sale. 312. Equities arising against a purchaser or between purchasers after the sale. Where the fund is in court, the court will protect it from the rapacity of the purchaser, or other party who is before the court. Thus where an inexperienced young man, in necessitous circumstances, who was entitled to a portion of the fund, gave the purchaser an order to the clerk and master for a certain amount of the fund; and the purchaser received a credit on his note for the lull amount o± the order, but paid less money for the order than it called for; it was held, that upon these facts being made to appear to the court by the party of whom advantage had been taken, the court would compel the purchaser to pay the full amount of the order before decreeing him the title to the lands.' And where land adjoining the city of ]S"ashville was laid off into lots with intersecting streets and sold to different purchasers, and some of the purchasers in improving their lots closed some of the streets to the injury of other of the purchasers, the court ordered them to be opened upon the petition of the injured parties, the case being still in court.^ 'Deaderick u. Watkins, 8 Hum., 520. 'Leake v. Cannon, 2 Hum., 169, and see Spence i'. Armour, 9 Heis., 167. CHAPTER XVI. MISCELLANEOUS MATTERS. 314. Piinisliment of contempts. ■S15. Rules of practice. 31G. Incompetency of chancellors. 31Y. Interchange. 318. Special chancellors. 319. Special terms of court. 320. Effect of a decree by a court de facto. 321. Doctrine of lis pendens. 322. Doctrine of laches. 323. Appropriation of payments. 1. Generally. 2. In cases of running accounts between parties. 3. Running accounts with a firm before and after a change of members. 323a. Consolidation. 314. Punish.ment for contempts. {See sections 239, 240, 65, ante). " Every court has power : (1.) To enforce order in its immediate presence, or as near thereto as is necessary to prevent interruption, disturbance, or hindrance to its proceedings. (2.) To enforce order before a person or body acting under its authority. (3.) To compel obedience to its judgments, orders, and process, and to the orders of a judge out of court in an ac- tion or proceeding therein. (4.) To control, in furtherance of justice, the conduct of its of&cers and all other persons connected with a judicial pro- ceeding before it in every matter appertaining thereto. (5.) To administer oaths wherever it may be necessary in the exercise of its powers and duties. (6.) To control its process and orders. (7.) To appoint guardians ad litem for infants."' 'Code, 4099. MANUAL 01' , CHANCERY PRACTICE. 463 " For the eft'ectual exercise of its powers, every court is vested with power to punish for contempt, as provided for in this Code.'" " The power of the several courts of this State to issue at- tachments, and inflict punishments for contempts of court shall not be construed to extend to any except the following cases : (1.) The willful misbehavior of any person in the presence ot the court, or so near thereto as to obstruct the adminis- tration of justice. (2.) The willful misbehavior of any of the officers of said courts, in their official transactions. (3.) The willful disobedience or resistance of any officer of said courts, party, juror, witness, or any other person, to any lawful writ, process, order, rule, decree or command of said courts. (4.) Abuse of, or unlawful interference with the process or proceedings of the court. (5.) "Willfully conversing with jurors in relation to the merits of the cause in the trial of which they are engaged, or otherwise tampering with them. (6.) Any other act or omission declared a contempt by law."2 " The punishment for contempts may be by fine or impris- onment, or both; but where not otherwise specially provided, the circuit, chancery, and Supreme courts are limited to a fine of fifty dollars^ and imprisonment not exceeding ten days, and all other courts are limited to a fine of ten dollars."^ "But if the contempt consists in an omission to perform an act which it is yet in the power of the person to perform, he may be imprisoned until he performs it."* " If it consists in the performance of a forbidden act, the person may be imprisoned until the act is rectified by placing matters and persons in statu qua, or by the payment of damages."* 'Code, 4100. 'Code, 4106 and notes. »Code, 4107. *Code, 4108. ^Code 4109. 464 MANUAL OF CIIANCEBY PRACTICE " Upon an attachment to answer for a contempt, except in not performing a decree, the officer executing the process shall take bail from the defendant, as in other cases ; and the court ordering the attachment shall specify the penalty of such appearance bond."' "If the penalty is not fixed by the court, it shall be two hundred and fifty dollars."^ In the case of the State v. Galloway, 5 Cold., 326, it was held that the courts of Tennessee have no power to punish as contempts, the acts and omissions of parties and persons other than such acts and omissions as are prescribed by the Code, or other statutory enactments; that the 6th sub-section of section 4106 of the Code does not bestow the power to punish contempts at common law, other than such as are made punishable by statute; and that as the Code had cut oft" the indefinite and gener'al jurisdiction of the courts to punish for contempts; it is held that the alleged cause of contempt must be set out upon the face of the judgment, as the ground of jurisdiction upon which the judgment must rest for its validity. But that the sub-sections of section 4106, which declare and limit the punishable causes of con- tempt are to be construed to have a liberal application to the cases which arise in the exigencies of the courts. It was fur- ther held that the judgment of conviction for contempt is not subject to revision, by appeal, writ of error, or other- wise, by any other court, co-ordinate or superior; but that the person convicted may be released from imprisonment upon a writ of habeas corpus, if the judgment of conviction is void on its face. It was further held that the act of a judge in discharging or refusing to discharge a prisoner upon a writ of habeas corpus is not subject to revision.' 315. Rules of practice. The chancellors of the State, or a majority of them, may make such rules as they may deem beneficial and proper to regulate the practice of the chancery courts, not inconsistent with the provisions of the Code; and 'Code, 4110. 'Code, 4111. 'State V. Galloway, 5 Cold., .326. MANUAL OF ; CHANCERY PRACTICE. 465 tlie rules thus agreed upon shall he ohligatory on all the chancery courts.' In the absence of any such action by the chancellors as a body, each chancellor may make rules and regulations of practice for the purpose of expediting business fti his own chancery division.^ Rules thus, made by the chancellors of the State are as ob- ligatory and inflexible as a statute enacted by the Legisla- ture.' But the rules prescribed by statute or made by the chan- cellors, in pursuance of the power given by statute to expe- dite and facilitate the preparation of suits, are not so impei'- ative and inflexible in their nature that upon sufficient cause shown it shall not be in the power of the respective chancel- lors to relax them in particular cases. But a strong case should be made to authorize such a practice. Where, how- ever, an affidavit upon which an order relaxing such a rule was made was not made a part of the record, the Supreme Court presumed that sufficient grounds appeared to the chan- cellor to authorize him to make the order, the contrary not appearing.* 316. Incompetency of chancellors. 'No judge or chan- cellor shall be competent, except by consent of all parties, to sit in the following cases : (1.) When he is interested in the event of the cause. (2.) Or connected with either party, by affinity or consan- guinity, within the sixth degree, computing by the civil law. (3.) Or has been of counsel in the cause. (4.) Or has presided' on the trial in an inferior court.' The parties may, by consent, select some member of the bar to preside as judge or chancellor in all civil cases where the regular judge or chancellor is incompetent; and this con- 'Code, 3935. The present rules were prepared by the chancellors, and made an act of assembly. ■ ■ ^Code, 3936. "Maultsby v. Carty, 11 Hum., 368; Lannum v. Steel, 10 Hum., 282. *Marsh v. Crawford, 1 Swan, 116; Lowe v. Morris, 4Sneed, 72. *See Code, 3913; Beams v. Kearns, 5Cold., 217; Waterhouse w. Martin, Peck, 374; Code, 3930/ addenda. 30 466 MANUAL OF CHANCERY PEACTICE. sent, entered of record, shall vest the person selected with the full power and authority of the regular judge or chan- cellor in the particular case.' When ^ny chancellor is incompetent to try any cause in his court, he may notify any one of the circuit judges, whose duty it shall be at the next term of the circuit court of the county in which the incompetency exists, and while holding said court, to hear and determine the cause as chancellor, for which purpose the clerk of the chancery court shall bring before him all the papers in the cause, and the necessary en- tries shall be made on the minutes of the chancery court and signed by the circuit judge presiding.^ Any circuit judge may, also, during the sittings of a chan- cery court, upon notification of a cause iu which the chan- cellor is incompetent, take the place of the chancellor on the bench and hear and determine the cause as chancellor, the ne'cessaiy entry being made on the minutes of the court and signed by him.' As a further provision to prevent delay in cases of incom- petency, it shall be the duty of the circuit judges and chan- cellors in this State, whenever there is a cause before them, by appeal or otherwise, in either of their courts in which they are interested, at the request of the opposite party, to transfer such cause to any court in an adjoining district or circuit which such adverse party may choose ; and the origi- nal papers, with a certified copy of all orders, shall be imme- diately transmitted to the court to which the venue is changed.^ "Whenever it shall happen that the judge of any court of law or'chancery in this State is incompetent from any cause to try any case pending in his court, and the parties thereto can not agree upon some member of the bar to try the same, it shall be the duty of the judge, upon the application of both parties, to cause the same to be transferred to the near- est court having jurisdiction of such case where the like in- 'Code, 3921. But see Code 3930, ei seq. 'Code, 3922. "Code, 392,^ *Code, 3924. MANUAL OF CHANCERY PRACTICE. 467 competency of the presiding judge does not exist, where the same shall be tried as though it had originated in said court : Provided, the presiding judge or chancellor is of opinion it is a proper case for such change.' The fact of a case being heard by a chancellor who is in- competent would not render the decree void or even errone- ous.^ But if the chancellor should willfully hear a cause which he knew himself to be incompetent to hear, he would be sub- ject to impeachment. 317. Interchange. The circuit judges may interchange with each other, one or more courts, or parts of courts, when causes exist making an interchange necessary, or for mutual convenience ; and in the absence of the judge of any circuit, his death or inability to hold court, any circuit judge may hold court in his stead.' Chancellors may also interchange with each other and with judges of the circuit, criminal or other special courts, under the same circumstances and to the same extent.'' And in all such cases, the judge or chancellor holding court in the circuit or division of another, shall have the same power and jurisdiction as the judge or chancellor in whose place he is acting.'* 318. Special chancellors. When any of the judges of the circuit or county courts, or either of the chancellors, is unable, from sickness or other physical debility, to attend and hold any of the courts at the time and place rec[uired by law, such judge or chancellor, or in case of his inability to do so, the clerk of the court, shall certify the facts to the governor, 'Code, 392405, and see Code 39246. 'Post, 320. 'Code, 3916; and see 3924a. *Code, 3917. "Code, 3918. When any chancellor of any division in this State shall, by in- terchange, hold the chancery court in another chancery division, the chancellor assigned to hold the courts in said last-mentioned chancery division, may hold any other courts in said last-mentioned chancery division at the time fixed by law, while said firstrmentioned chancellor may be engaged in holding court by interchange as aforesaid. Code, 3918c. 468 MANUAL OF CHANCERY PRACTICE. wlio shall commission some person of competent law knowl- edge, to attend and hold said courts.' : The person so commissioned shall have all the power and authority of a regular judge or chancellor in whose place he is appointed, and shall continue to hold the courts, and exer- cise the duties of the office, until notified by the regular of- ficer that he is in a condition to resume his functions.^ They shall also have the same power to interchange With other judges and chancellors, as the regular officers in whose place they are commissioned.^ 319. Special terms of court. The judge or judges, and the chancellor of any court may appoint a special term of court whenever it is necessary for the dispatch of business.'' The special term may be appointed, either at the regular term by entry of record to that effect, designating the time, or, in vacation, by publication in some newspaper in the circuit or district, and giving notice in writing to the clerk of such court at least thirty days before the commencement of the s|»ecial te.rm.'' It shall be the duty of the sheriff's, clerks, attorneys, suitors, and of all other persons concerned, to attend such special terms in the same manner as the regular terms. ^ When, from any cause, the judge of any court of record in this state (except the Supreme Court,) fails to attend, or if in attendance, cannot properly preside in a cause, or causes, pending in such court, the attorneys of the court, who are present, and are residents of the State, shall elect one of its number, then in attendance, to hold the court for the occasion, who shall have all the qualifica- tions of a judge of such court, and who shall, accordingly, preside and adjudi- cate. 1 . The election shall be held by the clerk, and in case of a tie, he shall give -the casting vote. 2. The person elected shall, during the period that he acts, have all the' powers, and be liable to all the respoiisibilities of a regular judge. 5. If the person first elected fails or refuses to act, or cannot properly preside, another election shall be held in like manner, from time to time, until a suitable person is chosen who can and will preside. This act is constitutional. Halliburton v. Brooks, 7 Bax., 318. Code, 3930a. In the election of a special j udge to try a particular cause, the counsel concerned in the case shall not vote. Code, 3930c. For further provisions on this subject, see Code, 39306, 3930c?, 3930e, 3930/- (in addenda). ^Code, 3928. . - , , ! 'Code, 3929.- , . , ^Code, 3940. < ■ ,, . . . '■ ^ '■■ .■ ■.. ^Code, 3941. Eeainsc, Kearhs, 5 Gold., 218.^ "Code, 3942. .•,•/•■,',;, ,'J •Mani;al of chancery practice. 469 The judges" and chancellors shall have and exercise the same powers at such special terms, and all the business of the court, of every nature and kind, shall he conducted as at the regular terms.' It is presumed that in section 8941, quoted above, the word district is improperly used for division. There is not a news- paper in every district. The word division, as applicable to the chancery court, would be in harmony with the word circuit, as applicable to the circuit court. A special term is a distinct term, and not a continuation of the next preceding regular term.^ But under the act of 1827, ch. 79, sec. 4, it was held that -the object of the statute was to enable the judges, by ap- pointing special terms, to dispose of the unfinished business ot the preceding regular term; and was not intended to au- thorize the courts to dispose of civil cases at the special term which did not stand for trial at the preceding regular term.' 320. EflFect of a decree by a court de facto. In the case of Venable & Co. i'. Curd & White, 2 Head, 582, the Legis- lature, having changed the time of holding the circuit court of Henry county, the judge, in ignorance ot the change; held the court at the wrong time, and at the term thus held at the improper time, said case was tried, and a judgment rendered which was sought to be reversed by writ of error. The Supreme Court said : " The plamtift's in error, after the adjournment of the term, having discovered that the court had been holden at the wrong time, have obtained a writ of error ; and now allege that said judgment is erroneous and void., ■ "We do not think so. The circuit judge in this case, acted under color of legal authority, and no objection was made to the jurisdiction of the court, or the power* of the judge to act at the time the judgment was rendered. ' "It is not pretended the judgment is not just, or that they were in any way surprised upon the trial; but, on the contrary, •Code, 3945 and note. 'Stagg V. State, 3 Hum., 374. 'McKinley v. Beasley, ."5 Sueed, 172. 470 MANUAL OF CIIANCBEY PRACTICE. the record shows that the parties appeared by their counsel, and no exception whatever was taken, either to the authority of the court, or the course of proceeding in the case. " The public acts of officers de facto, are often valid, though the authority under which they act is void. Public convenience as well as public justice requires that they should be supported. Indeed, no principle is better settled in the English and American law, than that the acts of the officers de facto are valid, when they concern the public, or the rights of third persons, who have an interest in the act done, and the rule has been adopted to prevent a failure of justice. But a different rule prevails, where the act is for the benefit of the officer, because he shall not take advantage of his own want of title, which he must be cognizant of; but where it is for the benefit of strangers, or the public, who are pre- sumed to be ignorant of such defect of title, it is good. "The consequences of holding a contrary doctrine would be alarming, and it would be very easy to see the most serious results would follow. "In England upon a writ of error, the question whether the judges in the court below are properly judges or not, can never be decided; it being sufficient if they are judges de facto.^ "We have been referred by the counsel of the plaintifts in error, to Gregg v. Cook, Peck's Rep., 82, and Brown v. JS^ewby, 6 Yer., 395. But it is manifest that in these cases as also in Smith v. ITorment, 5 Yer., 2tl, the doctrine as to the force and effect of the judgments and decrees pronounced by judges de facto, was not considered. "There can be no doubt whatever, upon reason and authority, that a judgment given by a judge de facto, sitting and holding a court at the proper time and place, is as valid and fr.ee of error as a judgment pronounced by a judge rightfully in office. "If so, upon what reason shall we hold that the judgments and decrees of a judge regularly in office are erroneous, be- cause he held his court under color of a law that turned out to be repealed or invalid ? '2 T. E., 87; Bac. Ab., 36. MANUAL OF CHANCERY PKACTIOE. 471 * * "The circuit judg3 lias not been put to answer for any illegal exercise of power, and the plaintiffs in error can- not, in this collateral way, call in question his authority."' 321. Doctrine of lis pendens. The rule on this subject is, that any interest acquired in the subject matter of the suit while it is pending will be regarded as a nullity as to the plaintiff's title which may be established by judgment or decree in the suit. The rule is generally placed on the ground of notice, either actual or constructive. That the law presumes that judicial proceedings during their continuance, are publicly known throughout the realm. But the rule is founded more upon the necessity for it to give effect to the proceedings of courts, than upon any presumption of notice. Without such a principle, all suits for specific property might be rendered abortive, by successive alienations of the property in suit; so that at theend of one suit, another would have to be com- menced ; after that, another, by which it would be rendered almost impracticable for a man ever to make his rights available by resort to the courts of justice. Whether this rule is founded on the idea of notice, or is a positive, arbitrary rule, suggested and sanctioned by policy or neces- sity, there is certainly no principal more essential to the administration of justice, than the doctrine of lis pendens, though attended with occasional hardships. But if extended beyond its proper limits, it would become unjust and per- nicious. The principle of the rule is to prevent any obstruction be- ing thrown in the way of the execution of a judgment after it has been pronounced at the end of a litigation in the oour!:s by intervening rights acquired to the thing sued for. The judgments of sister States cannot be executed here by process, and therefore the reason of the rule does not apply to them. The phrase thrown out in the books that " lis pen- dens is notice to all the world," must be limited in its cou- 'Venable v. White, 2 Head, 582. See also Pearce v. Hawkins, 2 Swan, 87; Keileyv. Story, 6 Heis., 206; Henslie v. State, 3 Heis., 205. 472 MANUAL OF CHANCERY PRACTICE.' sti*uction to all persons within the State where the suit is pending.^ The principle of lis pendens is, that the specific property- must be so pointed out by the proceedings as to warn the whole world that they meddle not with it at their peril. The doctrine does not apply in a case where the court has no jurisdiction of the thing in controversy; and it applies only to rights or interests acquired from a party after the institu- tion of a suit, and not to the case of a right previously, con- tingent or conditional becoming perfect. Lis pendens is notice only in relation to the property which is the immediate subject of the suit, and can only aft'ect a purchaser from the party to the suit of the subject of contro- versy. The notice does not conthiue after a final decree or judg- ment. Notice to a purchaser arising from a bill filed is notice of what the bill contains, and nothing more.^ But where the description of lands, though general, was sufficient to put the party upon inquiry^ it was held to be good notice.^ 322. Doctrine of laches, A defense peculiar to courts of equity is that founded upon the mere lapse of time, and the staleness of the claim, in cases where no statute of limita- tions directly governs the case. In such cases, courts ot equity act sometimes by analogy to the law ; and sometimes act upon their own inherent doctrine of discouraging, for the peace of society, antiquated demands, by refusing to in- terfere, where there has been gross laches in prosecuting rights, or long and unreasonable acquiescence in the asser- tion of adverse rights.* Where a demand is made after a great lapse of time, it is always a consideration entitled to weight, that the party 'Shelton V. Johnson, 4 Sneed, 680. 'Adams Eq., 157, and note. 'Green v. Slayter, 4 Johns. Ch. Rep., 38; Fitzgerald v. Cuminings, 1 Lea, 239; White -v. Railroad, T Heis., 518. See also' Mathenyr. Hughes; -10 Heis., 401; Spence ex parte, 6 Lea, 391 ; Rogers w. Dibrell, 6 Lea, 69; Vaughn d. Vaughn, 12 Heis., 472; Exchange «. Andrews, 12 Heis., 306. •Sto. Eq. Jur., 1520. ' MANUAL OF CHANCERY PRACTICE. 473 making it has been, during the whole time, laboring under a legal disability. But in many instances parties in such a sit- uation do not wholly escape the consequences of neglect or inattention on the part of those whose duty it was to protect their interests. It is difficult to eliminate any general prin- ciple from the multitude of cases to be found in the books upon the subject of laches. Each case has been made to de-^ pend, in a great degree, upon its special circumstanicess, and too much, perhaps, upon the particular consequences which might arise from the decision. In reason, laches should be imputed rather to an adult male than to a married woman ; to a married woman, ordi- narily, rather than to an infant ; and to either of the two last rather than to an idiot. But no general rule of a practical nature can be safely laid down, nor is it to be expected that abstract justice, after a great lapse of time, can in all cases be reached for all parties concerned in a cause. The proceedings of courts of justice of general jurisdic- tion should have greater benefit from presumptions and the caring hand of time than acts and omissions in private trans- actions. Representation in courts of justice is a necessity of civilized society, and the acts or neglects of the representa- tive must, in some degree, be binding upon the party repre- sented.^ In cases in which courts of equity exercise a concurrent jurisdiction with courts of law, the length of time required by the statute of limitations to bar the claim in a court of law, will be applied in analogy to such statute of limitations, although the statute may not by its express provisions ex^ tend to suits in courts of equity. But in those cases which are cognizable exclusively ill courts of equity, such, for example, as cases of express trusts, if the statute of limitations does not expressly embrace suits in equity, the bar of time will not be applied in analogy to such statute. But in this latter class of cases, i. e., cases cognizable ex- clusively in courts of equity, lapse of time will form a bar in- dependently of any statute of limitations.^ ; 'Winchester ,v. Winohes^.er, 1 Head, 485^ . , 'LaSevty v. Turley, 3 Sii«ed, 176. 474 MANUAL OF CHANCERY PRACTICE. There is no precise time fixed for this equitable bar, but our courts have most generally held twenty years to be the period within which equitable or trust claims must be en- forced, and after that time, they will be regarded as too stale lor favorable consideration in a court of equity. In some cases a shorter time has been held sufficient, and in others a miich longer one will not protect the trustee. Every case of exclusive equitable cognizance must be con- sidered upon its own circumstances with regard to the eft'ect of lapse of time. There is no arbitrary, unyielding period fixed as in the limitation by statute.' 323. Appropriation of payments. 1. Generally. The general rule in respect to the appropriation of payments is, that a debtor, owing diftereut debts to the same person, has the right to apply the payment, at the time when made, to either ; but, if he fails to do so, and the payment be general, the creditor may apply it; and where no appropriation is made by either partyj the law will apply it according to the intrinsic justice and equity of the case. But the right of the creditor to apply a general payment is not unlimited. There are cases in which he will not be allowed to apply the pay- ment to which account he pleases, although the debtor may not have declared, at the time of payment, to which of two accounts he intends the money to be applied.^ If the debtor does not make the appropriation by directing either at, or previously to, the time of payment to what debt it is to be applied, he loses all power to make the appro- priation.' Where the application is not made by the parties, and it becomes necessary to direct it by a court of justice, it ought to be applied to the debts which lie heaviest on the debtor, and which it concerned him most to discharge. 'Lafferty v. Turlej-, 3 Sneed, 176. The principles of this case are recognized in McJ<;win v. Gillespie. 3 J^ea, 206; Underhill v. Nelson, 1 Lea, 99; Bains Vi Perry, 1 Lea, 40; Haj'nes v. Swan, 6 Heis., 560; M. & 0. R. R. v. Wisdom, 5 Heis., 126; and numerous other Tennessee cases. 'Bussy t). Gant's adm'r., 10 Hum., 2.38; Pointer v. Smith, 7 Heis., 149; Ful- ton V. Davidson, 3 Heis., 649; Type Foundry v. Wisdom, 4 Le», 698. 'Reynolds v. McFarland, 1 Tenn., 488. ' MANUAL OF CHANCERY PRACTICE. 475 The doctrine upon this subject, both of the English and American courts, seems to have been borrowed from the civil law^s.' And, notwithstanding there are contradictory and conflict- ing authorities on this subject in the English and American courts, the doctrine of the Roman or civil law is, or at least ought to be, held- to be the true doctnne to govern in our courts. There is a great weight of common law authority in its favor, and in the conflict of judicial opinion, that rule may fairly be adopted which is most rational, convenient and consonant with the presumed intention of the parties.^ The whole doctrine of the Roman law on the subject turns upon the intention of the debtor, either express, implied or presumed; express when he has directed the application of the payment, as in all cases he had a right to do; implied when he knowingly has allowed the creditor to make a par- ticular application at the time of payment, without objection ; presumed, when in the absence of any such special appropri- ation, it is most for his benefit to apply it to a particular debt.3 If the creditor has a right, in any case, to elect to what debt to appropriate an indefinite payment, it seems proper that he should have it, only when it is utterly indifterent to the debtor to which it is applied, and then, perhaps, his con- sent that the creditor may apply it as he pleases may fairly be presumed.'' The leading rules of the Roman law on this subject (rest- ing, as before stated, on the intention of the debtor, express, implied or presumed) are as follows : (1.) The debtor has the power of declaiming on account of what debt he intends to apply the sum which he pays. And although, regularly the interest of a debt should be paid before the principal, yet if the debtor, upon paying a sum of money, has declared that he payed it on account of the principal, the creditor who has agreed to receive it can- not afterwards contest such applicatioia. 'Bussy V. Gant, 10 Hum., 238. 'Sto. Eq. Jur., 459(i. 'Sto. Eq. Jur., 459d.- ■ ial testimony such as would have caused a diiierent decree he discoyered so late before the hearing that the deposition of the witness could not be taken, nor the attendar.ce of the witness en- forced; (this was while it was the practice to take the testi- mony viva voce;), and if, also, the person who is to use it is. so circumstanced for any cause that he cannot make an, affi- davit to postpone the hearing, then the court will listen to an application for a bill of review. But leave to file a bill of review on account of newly dis- coved evidence will not be granted if negligence is the cause of not discovering the evidence in time.' 342. At what time a bill of review may be brought. 1^0 bill of review shall be brought, or a motion made there- for, except within three years from the time ot pronouncing the decree ; saving to infants, married women, persons of un- sound mind, imprisoned, or beyond the limits of the United States, a right to a bill of review within three years after such disability is removed.^ 343. What decrees may be reviewed. In the case of Clark V. Clark, 4 Hay., 36; Judge White was of opinion that a bill of review would not lie to reverse a deree for costs, but Judge Haywood was of a different opinion. Judge Roane expressed no opinion on the point. The case ^ent off on other grounds, the court being unanimous in the opinion that upon the decree for costs sought to be reviewed there was not such error assigned and shown to exist, as was ground for a bill of review. 'Young V. Henderson, 4 Hay., 189. The new evidence must not be a mere accumulation of witnesses to the same fact but some stringent) written evidence or newly discovered papers. If the nature, of the new matter is such that the party, or his solicitor, with, proper diligence, might haye had it upon the former trial, no relief will be granted. The enquiry is not what the applicant knew, but what, by due diligence, he might have known. See Berdannati v. Sexton, 2 Tenn. Ch., 704; Buraon v. Dosser, 1 Heis., 761; Z Atk., 35. Errors not specifically pointed out cannot be relied upon. Livingston v. Noe, 1 Lea, 6".i; Brown V. Severson, 12 Heis., 383; Carmichael ». Snodgrass, 6 Lea, 183. ■ 'Code, 3120; Winchester v. Winchester, 1 Head, 460. MANUAL OF CHANCERY PRACTICE. 501 A Hll of review may be brought after one bill of review already filed; as if upon a bill of review a decree has been .reversed, another bill of review may be brought upon the decree of reversal. But if a demurrer has been allowed to a bill of review, a new bill of review upon the same ground will not be allowed.* A bill of review is in the nature of an original bill, and can- wot be resorted to in the Supreme Cburt, as. the jurisdiction of that court is appellate only.^ A bill of review will not lie to correct an error in the cal- culation of costs, as the erroi*. could be corrected by a new calculation by dii-ection of the court, without a bill of review.' " A bill of review lies only after a final decree ; for the court may, if the decree be only interlocutory, afterwards and before a final decree vary or rescind it. But a decree is final in the sense of the rule which finally adjudicates upon all the merits of the controversy, and leaves nothing farther to be done btit the execution of it. Thus for example, a decree of foreclosure and sale, upon a bill brought by a miortgagee for foreclosure and sale, (according to the practice in many States in America,) is final, and the sale is but in the nature of an execution."* IS'ow, in the section just quoted, it surely could not have been intended tO take the position that an interlocutory 'decree, adjudicating any of the rights. of the parties, could, without a bill of review, be altered or rescinded by the court at a subsequent term. It is highly proper that the rights of parties should be settled so far as it can be done, by a single decree; and it is 'Sto. Eq. PI, 418. , , 'Cox ». Breedlove, 2 Yer., 499; Wilson c. Wilson, 10 Yer., 200. 'Younpi; ». Henderson, 4 Hay., 189. *StO Bq. PI., 408a. In Tenhessee none but final decrees can be revised by bill of review. L.-& M. R. R. v Rainey, 7 Cold., 420; Johnson v. Hanner, 2 Lea,, 10; Livingston c. Npe, 1 Lea, 56; Arnold v. Moyers, 1 Lea, 308; Saundefs v. Gregory, 3 Heis., 579. An order appointing a receiver at cham- bers or in term time, cannot be revised by a bill of review. Johnson v. Hanner, 2 Lea, 10. -502 MANUAL OF CHANGBRY PRACTICE. presumed that when the section in question was penned, an interlocutory decree settling a portion of the questions in controversy was not had in view. But it may be remarked, that it seems to be settled that a bill of review will not lie, any more than an appeal, upon an interlocutory decree, although it settles a portion* of the questions involved. A decree, however, which is final upon the merits of the controversy between the parties, is such a decree as may be reviewed without waiting for ulterior pro- ceedings. It is so held in the Federal Courts, at least.' The authorites cited in support of the section above quoted from Sto. ^q. PI., are Whiting v. Bank of the United States, 13 Peters, 6; Pay v. Law, 3 Craneh, 179; Jenkins v. Eldridge, 3 Story, 299, . , The author has not 3 Story at hand. The case in 3 Craneh has no application to. that portion of the section above quoted which speaks of the power of the court to alter or rescind interlocutory decrees. The only question there decided is that a decree for a sale under a mortgage is such a final decree as may be appealed from under the act of Copgress allowing appeals. In thfe case in 13 Peters it was held that a decree of fore- closure and sale under a mortgagees a final decree upon the merits of the controversy, and that a bill, of review or ap- peal will lie upon it without and independent of any ulterior proceedings; that the ulterior proceedings are but a mode of executing the decree, like the award of an execution at law, and that a bill of review would not lie for errors in the sale under the decree. There is nothing in the decision in this case any more than in the one referred to in 3 Craneh,. upon the question of the power of the court over interlocutory decrees at a term sub- sequent to their rendition. But the question as to the power pf the chancellor to make a final decree annulling in eft'ect an interlocutory decree made at a previous term, is one of no practical consequence so far as the action of the Supreme Court is concerned, when 'Whiting V. Bank of U. S., 13 Peters, 6. MANUAL OF CHANCERY PKACTICE. 503 the case is taken there to be reinvestigated upon its merits ; as such interlocutory decree is, in such case, no obstacle ^n the way of the Supreme Court.' 344. Joinder of matters of error apparent and new matter. Matters of error apparent and new matter may be joined in the same bill of review. And if a bill of review uniting both the grounds of errors of law and newly discovered matter is so radically defective in its form that it cannot be maintained upon one of the grounds, it does not by any means tollow that it may not be maintained upon the other ground. The bill may be regu- larly filed and the complainant entitled to relief upon one ground, and it may be irregularly filed upon the other, so that upon the latter ground he would be entitled to no re- lief. In such case the chancellor may order so much of the bill as relates to the ground upon which it is radically defec- tive or irregularly filed to be struck out. But if the bill is properly filed and maintainable on one ground only, a de- murrer to the whole bill, will not lie, neither can such bill be ordered to be taken from the files.^ 345. Effect of a demurrer to a bill of review. As a de- murrer cannot be good in pai't and bad as to the rest, but ■must stand or fall together, therefore where a bill of review joins matters of error apparent with new matter, if the bill is maintainable upon one of the grounds, though radically defective as to the other, a demurrer to the whole bill will be overruled.^ The formal demurrer to a bill of review is like the plea of in nulla est erratum in a writ .of error at law. It affirms the correctness and validity of the original decree ; it places the matter upon that ; it raises no question as to whether leave to file it was obtained, but takes that for granted by botii parties and by the court. If objection is to be made to filing the bill on the ground of want ot leave of the court to file 'Morris v. Richardson, 11 Hum., 392. 'Colvillet;. Colville, 9 Hum., 526; Winchester v. Winchester, 1 Head, 460; Berdannati v. Sexton, 2 Tenn. Ch., 702. 'Colville V. Colville, 9 Hum., 527. 504 m^SlTsual of chancery practice. it, the objection may be taken by motion to take it from the files, but not by demurrer. And upon a motion to take it from the files for want of leave to file it, the court, instead of ordering it to be taken from the files, will, in a proper case for the bill to be filed, grant leave to file it.' 346. Leave of court to file the bill. 1. When necessary. A bill of review for errors of law apparent on the face of the decree may be brought as a matter of right. In such case no leave of court is necessary. But a bill of review brought upon the discovery of new matter or new evidence of matter already in issue is not a matter of right, and it can not be filed on this ground without leave of the court first obtained.^ A bill of review for matters of error apparent may be filed by persons within the saving of the statute within the time allowed after the removal of the disability without the necessity of obtaining leave of court, as well as it may be filed without such leave before the expira:tiou of the time required to form the bar in ordinary cases." 2. Hoi^ obtamed. When leave of court is necessary it must be granted in open court, not at chambers.^ Leave to file a bill of review upon the ground ot newly discovered facts or evidence will not be granted except upon an affidavit, showing that the new matter could not be pro- duced or used by the party claiming the benefit of it, in the original- cause. The affidavit must also state the nature of the new matter, in order that the court may exercise its judg- ment xxpon its relevancy and materiality.' 'Dance v. McGregor, 5 Hum., 4S3. ^Colville w. Colville, 9 Hum., 524; Young u. Henderson, 4 Hay., 189; Long V. Cranberry, 2 Tenn. Ch., 86; Knight v. AtkissOn, 2 Tenn. Ch., 389. 'Winchester v. Winchester, 1 Head, 460. Granting leave to file a bill of re- view, it seems, rests in the sound discretion of the court. Harris v. Edmond- son, 3 Tenn. Ch., 214; Winchester v. Winchester, 1 Head, 460. ^Colville V. Colville, 9 Hum., 524; Dance v. McGregor, 5 Hum., 428. ^Colville V. Colville, 9 Hum., 524. MANl.'AL OF CHANCERY PRACTICE. 505 The affidavit must satisfy the court that the new matter could not,, by reasonable diligence, have been produced, or used by the party, at the time when the decree was made. And the court must be further satisfied not only that the matter is new., but that it is relevant and material, either as evidence of matter formerly in issue, or as constituting a new issue; and is of such a nature that, if it had been before the court on the hearing of the original case, might probably have led to a different decision.' As to the effect of filing the bill for new matter without fitst obtaining leave of the court, and as to the mode of mak- ing the objection, see section 345, ante. As regards the mode of making the application- to file a bill of review, perhaps the better practice is to prepare the bill, and let the party make affidavit to the truth of the alle- gations, and then present the bill to the court, and ask leave to file it. In the case of "Winchester v. "Winchester, 1 Head, 460, the application yj&s by petition, supported by an affi- davit, and an offer to secure costs and other sums of money which might be required to be paid ; and security was also given for costs of the bill filed as of common right — the bill containing matters of error apparent, in regard to which it could be filed without leave of court; and new matter, in re- gard to which it could not be filed without leave of court — it was very properly held that to this mode of proceeding there was no valid objection.^ It may be remarked, for the benefit of the young lawyer, that where a bill of review joins matters of error apparent, with new matter, the bill should be filed whether the court grants leave to file it as to the new matter or not. The refusal of the chancellor to grant leave to file it will not affect that portion of the bill which relates to the matters of error apparent. A bill in which the two grounds are joined might be filed, and no leave of court be asked unless the other side moves to strike out that portion which relates to new matter. If •Frazier v. Sypert, 5 Sneed, 100. "As to the manner of making the application, see Winchester v. Winchester, 1 Head, 460; Long v. Grauberry, 2 Tenn. Ch., 86. 5Q6 MANUAL OF CHANOKRY PKACXrCE. sncli motion is made, a motion to grant leave to file the bill as to the. new matter-is then in order.' Btit it is always best to obtain leave ot the court .to file the bill as to the new matter, without waiting for the opposite party to move to strike it out. 3. Discretionary power of the court in granting or witholding leave. The granting of leave to bring a bill of reyiew for new matter is not a matter of right, but rests in the sound discre- tion of the court. And it may be refused, even when the facts, if admitted, would be sufficient to change the decree, when the court, looking to all the circumstances, should deem it productive of mischief to innocent parties; or for any other cause, unadyisable.^ 347. Who may bring a bill of review, l^o persons, ex- cept the parties and their privies in representation — such as heirs, executors; and administrators^can have a bill of re- view, strictly so called; but other persons in interest, and in privity of title or estate, who are aggrieved by the decree, such as devisees, and remaindermen, are entitled to maintain an original bill in the nature of a bill of review, so far as their own interests are concerned. No persons but those having an interest are entitled to maintain a bill of review. And even persons having an interest in the cause, if not ag- grieved by the particular errors assigned in the decree, can- not maintain a bill of review, however injuriously the decree •may affect the rights ot third persons ; but, with this excep- tion, all the parties to the original bill ought ordinarily to join in a bill of review.^ 348. Who should be made defendants to a bill of review. All the parties to the original bill, who will be affected by the bill of review should be niade parties, as no one ought to be affected by a decree without first having an opportunitj'^ of being heard.^ ^Anie, 345/ 'Frazier v. Sypert, 5 Sneed, 100 ; Winchester v. Winchester, 1 Head; 460. ^Sto. Bq. PL, 409; Fitzgerald v Cummings, 1 Lea, 240. *Sto. Eq. PI., 420; Fuller v. McFarlatid, 6 Heis., 82. MANUAL OF CHANCEKY PRACTICE. 507 349. In what court to be filed. A bill of review, (for errors apparent, at least,) must be filed in the same court in which the decree, sought to be reviewed, was rendered. One court of concurrent jurisdiction cannot be allowed to review the records and decrees of another, upon supposed errors of law.i 350. Prame of a bill of review. In a bill of review it is necessary to state the former bill, and the proceedings there- on ; the decree, and the point in which the party exhibiting •the bill of review conceives himself aggrieved by it ; and the ground of law or matter discovered, upon which he seeks to impeach it.^ ' The bill may simply pray that the decree may be reviewed, and reversed in the point complained of, if it has not been carried into execution. If it has been carried into execution, • the bill may also pray the further decree of the court to put the party complaining of the former decree into the situa- tion in which he would have been if that decree had not been executed. If the bill is brought to review the reversal of a former decree, it should pray that the original decree may stand. The bill may also, if the original suit has become abated, be at the same time a bill of revivor. A supplemental bill may likewise be added, if any event has happened which requires it ; and particularly; if any person not a party to the original suit becomes interested in the subject, he must be made a party to the bill of review by way of supplement.^ The following form will assist the young lawyer in framing a bill of review : To the Hon. 0. P. Temple, Chahcetlor, etc., holding the Chancery Court at Knoxville : ..John Smith, a citizen of the State of Virginia, complainant, vs. 'Thomas Wilson, a citizen of Knox County, defendant. . The complainant respectfully shows to the court, that on the 1st day "pf March, 1869, the said Thomos Wilson filed his original bill in this honorable court, charging in substance that, (recite the substance of the allegations and prayer of the bill briefly.) 'Anderson v. Bank, 5 Sneed, 665. ''Frazier w. Sypert,' 5 Sneed, 100. ■ »Sto. Eq, PL, 420. 508 MANUAL OF CHANCERY PRACTICE. Thereupon, tjve complainant in his presetit bill, answered said originalbill, and testimony was taken : That on the 15th day of October, 1869, said cause came on to hearing, when it was decreed, (here recite briefly the decree complained of.) Complainant shows and insists thai he is aggrieved by said decree, and that he Ought not to be bound thereby, nor should any such decree have been made or pronounced against him ; neither ought he to pay, etc., as by said decree is ap- pointed ; but he insists that said decree is erroneous and ought to be reversed. And he assigns and shows the following errors therein; (here assign the . errors,) for all which said errors and imperfections in said decree, complainant brings this his bill of review. He prays that process issue to cause the defendant to appear and answer this bill. That said decree and all proceedings thereupon maybe reviewed and reversed. He also prays for general relief. Thomas L. Williams, Sol. Sometimes it will be necessary to pray for and obtain a supersedeas to stay proceedings in execution of the decree till the bill of review can be heard. An injunction has, in some cases, been resorted to, and the practice gone unchallenged. But that the court ought not to enjoin its own proceedings, (though it may suspend its own order,) see sub-section 5 of section 223, ante. The same object can usually be obtained by an order sus- pending the execution of the decree, or a supersedeas to stay the execution thereof, as. by an injunction. It such relief is desired, it should be prayed for in the bill.' 350a. Second bill of review. After one bill of review has been dismissed on demurrer, another will hot be allowed, although error may be patent. There must be end to litiga- tion sometime.- But a bill of review may be brought after one already filed, to review a decree of reversal under a former bill of review.' 350ft. Defenses to a bill of review. The usual defense to a bill of review for error apparent on the tace of the decree is by demurrer. The defendant may plead the decree, and demur against opening the enroUmen^t to a bill of re- 'A bill of review should be sworn to by the complainant. Berdannati v. Sex- ton, 2 Tenn. Ch. Y05. "Knight D. Atkisson, 2 Tenn. Ch. 388; Sto. Eq., PI., 408. ^Sto. Eq. PI., 408. MANUAL OF CHANCERY PRACTICE. 500; view, brought foe errors . apparent, and on the plea and demurrer the court will judge whether there are grounds for opening the enrollment.' To a bill of review foi* new matter, or newly discovered evidence, the defendant may plead, answer or demur, as in the case of an original- bill.^ Where the bill of review is for new matter, and is filed without leave of the court first obtained, it will be dismissed on motion or demurrer.^ 351 . Original bill impeaching a decree for fraud. An original bill impeaching a decree for fraud, is in the nature of a bill of review. Where a decree has been obtained by fraud and imposition, it annuls the whole consideration of a court of equity, and the court will restore the parties to their former situation, whatever their rights may be, but a decree cannot be set aside for fraud by petition only, after the decree has been enrolled. It requires a bill.'' A bill to set aside a decree for fraud, may be filed without leave of the court being first obtained for the purpose, the fraud used in obtaining the decree being the principal point in issue, and being necessary to be established by proof, before the. propriety of the decree can be investigated.^ The worst of frauds is a false statement upon oath in a bill exhibited to a court of equity, by which an abuse upon the justice of the country is perpetrated.'^ This being so, it of course follows that a party would be relieved against a decree founded upon a judgment 'pro con- fesso, procured without service of process, by falsely repre- senting the defendant to such bill, (under oath,) as being beyond the jurisdiction of the court. A decree obtained without making those persons parties 'Danl. Ch. Pr., 17.^2. 'Sto. Eq. PI., 636 ; Danl. Ch. Pr. 1738. 'Knight V. Atkisson, 2 Tenn. Ch., 385. For further information on tfie sub- ject of proceedings under bills. of review, see Milliken's Dig., 575, sub-sec. 12. *Sto. Eq. PI., 426; Haskins v. Rose, 2 Lea, 709; Haynes v. Powell, 1 Lea, 353; Drake v. Drake, 12 Heis., 706; Talbot v. Provine, 7 Bax., 511 ; Walker v.. Day, 8 Bax., 77. ^Sto. Eq. PL, 426. «Overton v. Perkins, M. & Y., 371. 510 MANUAL OF CHANCERY PRACTICE. to the suit, in which it is had, whose rights are atteeted thereby, is fraudulent and void as to those parties. And even a purchaser under it, having notice of the defect, is not protected by such decree. Therefore, where a decree has been made against a trustee, the cestui jjue trust not being before the court, and the trust. not discovered; or where a decree has been made against a person, who has made some conveyance or encumbrance not discovered; or where a decree has been made in favor of or against an heir, when the ancestor has in fact disposed by will of the subject matter of the suit; the concealment of the trust, or subsequent conveyance, or incumbrance, or will, in these several cases, ought to be treated as a fraud.' 352. Frame of a bill to set aside a decree for fraud. A bill to set aside a decree for fraud, must state the decree, and the proceedings which led to it, with the circumstances of fraud on which it is impeached. The prayer must neces- sarily be varied according to the nature of the fraud or other improper means used, and the extent of their operation in obtaining an improper decision of the court.^ 353. Supersedeas of interlocutory orders. The Supreme Court in term, or either of the judges in vacation, may grant writs of supersedeas to an interlocutory order or decree, or execution issued thereon, as in case of final decrees, and may require the pai'ty applying, to give bond with good security, payable to the opposite party, conditioned to pay the amount of the interlocutory order or decree if so required upon final hearing, aud further to pay all such costs and damages as the opposite party may sustain.' 'Sto. Eq. PI., 427; McGavock v. Bell, 3 Cold., 517; Livingston v. Noe, 1 Iiea, 64. In order to set aside a decree for fraud, actual, p6sitive fraud must be charged and shown, mere coustruetive fraud is insufficient. The fraud must be established by proof, before the decree can be investigated. Drake v. Drake, 12 Heis., 706; Jones v. Wilhamson, 5 Cold., 371; Randall w. Payne, 1 Tenn. Ch., 143; Sto.Eq. PI., 426a. Under a bill to impeach a decree for fraud, the pro- curement of the decree, the entire proceedings in the original cause, are open to examination not to determine whether there was error in the decree, but whether it was procured by undue means. Eaton v. Dickinson, 3 Sneed, 398; Talbott V. Provlne, 7 Bax., 502; Drake v. Drake, 12 Heis., 706. »Sto. Bq. PI., 428; 5 Cold., 371. 'Code, 3933, and notes. MANUAL OP CHANCERY VllACTICB. * 511 The clerk of the Supreme Court, upon issuing the super- sedeas in such case, shall transmit to the chancery court a copy of the petition and supersedeas, to be filed in the cause, and to. constitute a part of the record.' In the case of Williams v. Boughner, the Supreme Court, by virtue of the foregoing .provisions, superseded an order of chancellor, made at chambers, granting an injunction.^ But in the case of the McMinnville & Manchester R. E. Co. and Marberry v. Huggins, et al., it was held that those provisions do not confer upon the Supreme Court the power to supersede an order, granting or dissolving an injunction.' It was there held by a majority of the court, that the proper office and functions of the writ of supersedeas is merely to stay proceedings. That the supersedeas provided for in section 3933 of the Code, does not operate as an appeal or writ of error, to bring the cause into the Supreme Court. That the cause remains in the inferior court, and that the supersedeas when granted, merely suspends the operation of the decree until final hearing, but does not reverse it. That if the decree is one which is of a nature to be actively enforced against the party, then it may be suspended. But it would only be suspended, not reversed, by the super- sedeas. That a supersedeas could only be applied to such decrees as are susceptible of being executed by some affirmative action or process of the court. But if the decree or order be merely negative or prohibitory in its character, it may in a proper proceedings be reversed, but is not a proper subject for the operation of a supersedeas; for there can be no proceedings under it to be stayed. That the right to grant appeals from interlocutory decrees is confined to the court below, and thp fact that a supersedeas can have no effect or operation on an interlocutory decree does not authorize the Supreme Court to give the supersedeas the efiect of an appeal or writ of error. The opinion of the majority of the court proceeds to say : 'Code, 8934 ''Ante, 203; Williams v. Boughner, 6 Cold., 487. n CoM., 217. 512 • MANUAL OF CHANCEKY PRACTICE. % '^ If a case could be supposed in wMcli a writ, being in form an injunction, migbt bave in practical effect an. affirm- g,tive action or operation, so as to require us to supersede it, the orders granting and dissolving tbe injunction in the present case are not of that nature. * * * * " This court has, in several instances, acted upon petitions of this nature, and granted supersedeases to orders of chan- cellors granting and dissolving injunctions. But it has al- ways, so far as we are advised, been done without objection being taken to the jurisdiction, and we are satisfied that the jurisdiction in cases of this kind can not be assumed. " The order directing that the possession of the road be restored to Huggins and Price, was an order of a nature to be affirmatively and actively executed, and a supersedeas might in a proper case issue to the execution of such order. But it appears from the record presented to us that it has been already executed or complied with, and that Huggins and Price are in the possession of the road. A supersedeas to this order would be ineffectual, and we can not give to a supersedeas the effect of a writ of restitution." To understand the foregoing extracts from the opinion, it may be necessary to state that the case was one in which, by a writ of injunction issued under a fiat granted upon the prayer of the original bill, Mayberry had been put in posses- sion of the road; that upon a dissolution of the injunction, the possession of the road was restored, to Hviggins and Price. A cross bill was then filed by Huggins and Price upon which they obtained an injunction, enjoining the clerks of the circuit courts of the different counties through which the road runs from issuing any process in the name of the governor of the State, or of any one else, for the purpose of depriving them of the possession of the road ; and enjoin- ing the sheriffs of said counties from executing any warrant issued by the governor or any pi'ocess issued by said clerks for such purpose ; and enjoining the railroad company from commencing other suits or proceedings against said Huggins and Price, and from interfering with their possession. An answer to the cross bill had been filed and a motion to dis- MANUAL OF CHANCERY PRACTICE. 513 solve the last mentioned injunction had been made and dis- allowed. The singular proceedings in this singular case had all been had at chambers. By the application to the Supreme Court it was sought to have the action of the chancellor in dissolving the injunction and restoring the possession of the road to Huggins and Price, and his action in granting and in refusing to dissolve the injunction on the cross bill, revised and reversed, and the possession of the road again delivered to the railroad com- pany and Mayberry. It may be proper to remark that Judge McClain delivered an opinion in which he concurred with the majority of the court in the result arrived at, but not in the reasoning. The grounds taken in his opinion are as follows : (1.) That the power to supersede interlocutory orders and decrees, or executions thereon, conferred by section 3933 of the Code, does not extend to interlocutory orders or decrees of a chancellor at chambers, but only to orders or decrees made by the court. (2.) That the jurisdiction to grant the supersedeas is mere incident to appellate jurisdiction, and extends only to that class of orders and decrees mentioned in section 3157 of the Code, from which an appeal may, in the discretion of the chancellor, be taken. 354. Certiorari. The writ of certiorari is seldom resorted to in the Supreme Court, except as auxiliary to its appellate jurisdiction for the purpose of bringing up a perfect tran- script on suggestion of diminution. A writ of error will usually accomplish all that could be effected by a certiorari in removing a cause to that court. But in one case a certiorari was resorted to with effect for the purpose of removing a cause to the Supreme Court. The case of Kearney v. Jackson & Smith, 1 . Yer., 294, is the one alluded to. In that case there had been a provisional injunction, en- joining, the collection of money, which was dissolved upon the- hearing of the cause. 33 514 MANUAL OF CHANCERY PRACTICE. The complainant prayed an appeal, which was granted, but the clerk neglected to enter the appeal. It was held that, upon a petition for certiorari and superse- deas, the Supi-eme Court could place the party in the situa- tion he would have occupied, had he not been deprived of his appeaL Judge Peek, in delivering the opinion of the court, said: " It is said, that when an injunction is dissolved by an in- ferior jurisdiction, this court cannot restore it; that is true where the dissolution is interlocutory only. But here the dissolution of the injunction is the consequence of a final dis- position of the cause, from wliich the party was entitled to his appeal, the effect of which would be not to restore the injunction, but to continue it until the final hearing in the tribunal appealed to — because this dissolution is not an inter- locutory order, but the consequence of a final decree." All of the reasoning of the opinion cannot be given here, but the decision was that the certiorari and supersedeas should be granted, and that the record when brought up (the 'appli- cation being granted upon petition merely, the record not being ready for presentation) should be filed as if brought up by appeal. 355. Who may take an appeal- Any one or more of the parties to a judgment or decree may pray and obtain an ap- peal therefrom, -the judgment remaining in full force against such of the parties as do not appeal.^ 356. Execution of appeal bond, or taking the pauper oath as a substitute. The party appealing must give bond with good security for the successful prosecution of the ap- peal. " Where decrees are for a specific sum of money and against the party in his own right, the appeal bond shall be for the amount of the decree, and damages and costs."- 'Code, 8159. 'Code, 3164. But the Code, sec. 3164a, provides that, "In all cases in which by decree of any court of equity real estate is ordered to be sold, prays and ob- tains an appeal to the Supreme Court, he shall be required to execute a bond in an amount sufBcieut to pay costs of the cause in the court below and Supreme Court." Construed in Brown v. Jacobi, 12 Hels., 92; Kinsey b. Stanton, 6 Bax., 92; Staub v. Williams, 1 Lea, 123. MANUAL OF CHANCERY PRACTICE. 51,5 111 the case of an appeal from any other kind of decree, the court will have to direct what shall be the condition of the bond, as the statutes are silent on the subject. Our chancery courts, in Tennessee, frequently grant ap- peals upon condition that the party praying the appeal shall execute bond with good and sufficient security within a cer- tain specified time allowed him for the purpose, which is rarely, if ever, more than two months from the date of the decree.' " The practice of chancery courts, allowing leave to give security for appeals, and taking bond before the nlaster in vacation, is reprehensible ; but it has grown into such a gen- eral practice, and been sanctioned by so long usage, that it will not now be changed unless by the intervention of the Legislature."^ But where time is allowed for giving the bond, the clerk and master has no authority under such order to administer " the pauper oath" in lieu of an appeal bond. The pauper oath, as a substitute for an appeal bond, must be taken in court.' The taking the borfd or administering the oath is a judic- ial act of the court. Hence, the reason for the bond or oath being taken in court.^ 'McCorner v. Jenkins, 2 Heis., 633; Andrews v. Page, 2 Heis., 634. Now regulated by Code (addenda), 31646, which provides that "in all cases in the inferior courts of this State, wherein an appeal to the Supreme Court may here- after be prayed and granted, upon the terms now imposed by law, and the party appealing 'is a resident of .another county or State, or is unable by reason of physical inability to be present, the court granting said appeal may, in its dis- cretion, allow the appellant time, in no case exceeding thirty days, in which to give bond or file the pauper's oath for the prosecution of said appeaV&tid such appeal bond approved by the clerk of the court from which the appeal is taken, or the pauper oath filed with said clerk, within the time allowed by the court, shall render said appeal as effectual as if done as now required by law, during the term of the court at which the judgment appealed from was rendered." =McPhatridge v. Gregg, 4 Cold., 324. See Code (addenda), 31646. "McPhatridge v. Gregg, 4 Cold., 324; Henly v. Claiborne, 1 Lea, 224; Morris V. Smith, Thorap. Cases, 43. But now see Code, (addenda,) .31646. *MoPhatridge v. Gregg, 4 Cold., 324; Andrews v. Page, 2 Heis., G41 ; Pavis i\ Dyer, 5 Sneed, 6T9. But see Code, 31646. All the plaintiffs must join in, tak- ing the pauper's oath, or those who do not must give bond. And where, one af 510 MANUAL OF CIIAXCERY PRACTICr. Autl as tUe practice of delegating to the master the exei'- cise of the judicial aiuhority to administer the oath out of term is not, like the practice of delegating the power to take the appeal bond, sanctioned and made good by inveterate usage, it is not to bfe allowed. 357. Form of appeal bond. We, Jolin Doe and Richard Eoe, acknowledge ourselves indebted to John Smith in the sum of one thousand dollars; to be void, if the said John Doe shall prosecute, with effect, an appeal to the next term of the Supreme Court of Ten- nessee, at Knoxville, by him prayed from a decree rendered against him in favor of said John Smith, in the Chancery Court at Knoxville, on the 27th day . of April, 1870, fpr the sum of five hundred dollars and the costs of suit, or in case of failure, shall pay and satisfy the amount of said decree, and the dam- ages and costs which may be adjudged against him in the premises, by the Su- preme Court. John Doe, Richard Rob. This, 28th day of April, 1870. The above form is applicable to a case where the decree is for a specific sum of money against the party in his own right, where the decree, is of a different kind, the condition of the bond will have to be fixed by the court, as there is no statute fixing it; and when the court directs what the condi- tion of the bond shall be, the necessary changes in the above form, to adapt it to the case, can readily be made. 358. What decrees may be appealed from. The chan- cellor or circuit judge may, in his discretion, allow an appeal from his decree in equity causes, determining the principles involved, and ordering an account, or a sale, or partition, be- fore the account is taken, or the sale or partition is made ; or he may allow such appeal on overruling a demurrer ; or he may allow any party to appeal from a decree which settles his rights, although the case may not be disposed of as to others.' several applicants fails to either take the oath or give bond, the appeal as to him will be dismissed. Morgan v. Hannah, Thomp. Cases, 44; Grills v. Hill, 2 Sneed, 711 ; McPhatridge ». Gregg, 4 Cold., 326. Where the husband and wife sue jointly, the wife need not join in the affidavit, or give bond. See same an- t'liorities. 'Code, 3157. This statute varies the general rule that an appeal will lie only from a final decree. See notes under that section. MANUAL OF CHANCERY PRACTICE.' 517' But with these exceptions neither an appeal nor writ of error will lie upon an interlocutory decree,' A judgment against a purchaser for the purchase money of property sold under a decree of the chancery court, is such a final judgment or decre3 as may be appealed from, or be taken to the Supreme Court by writ of error as a matter of right.^ In divorce cases, an appeal is tlie only mode of revising errors.' 359. Effect of an appeal. 1. In annulling the decree, and transferring the case to the Suprem.e Court. " An appeal ope- rates, not only as an immediate transfer of the cause to the appellate court, so as to put an end to all further control of the inferior court, but it likewise operates to annul the judg- ment of the inferior court, which in legal contemplation ceases to exist after the grant of the appeal."^ " Tlie effect of the appeal 'is to annul and make void (or at least suspend) the judgment appealed from. The suit is the same suit prosecuted in a different forum.' * * * The cause stands for hearing de novo, and upon the death of a party, if an abatement take place, it is an abatement of the suit which was then pending in this court, and not of the appeal."' " It is ti;ue the principle is maintained in the books that an appeal to a superior tribunal, in contradistinction from a writ of error, has the effect of annulling the judgment of the inferior court ; and this principle has been held applicable to appeals from a court of chanecry, as well as from courts of law." But this principle must be understood with some just limitations and necessary restrictions. It must be taken to apply to only such matters as may have been appealed from. The proceedings in a cause may, in their nature, be divisi- 'Delap V. Hunter, 1 Sneed, 101. As to what is a final decree see ante 250. ^Eagan v. Phister, 5 Sneed, 298. 'Code, 3158. ^Furber v. Carter, 2 Sneed, 1 ; Cosset v. Miller, Z Sneed, 73 ; Wood v. Cooper, 2 Heis., 454; Gilchrist v. Cannon, 1 Cold., 590. ^Maskall v. Maskall, 3 Sneed, 208. And see Gilchrist v. Cannon, 1 Cold., 590; Wood v. Cooper, 2 Heis., 454. ^Furber u. Carter, 2 Sneed, 1 ; Maskall v. Maskall, 3 Sneed, 208. 518 MANUAL OF' CHANCERY PRACTICE. We, or the same suit may contemplate difterent objects. It would be most absurd to hold, in a ease where some of the objects in view had been obtained and definitely settled by the judgment of the inferior court, and to the mutual satis- faction of all the parties, that an appeal upon some distinct Collateral matter should have the effect to annul and vacate the proceedings thus conclusively determined, and not em- braced, or intended to be- embraced, by the appeal. And the absurdity of such a doctrine is more apparent in a case where third persons may have acquired rights on the faith of the determination of the inferior court during the pendency of the suit in that tribunal, as in the case before, us. "We hold that svich is not the rule, and that the appeal only anijuls or vacates such orders, judgments or decrees as in legal contemplation are appealed from ; and that, conse- quently, the abatement of the suit in the appellate court ope- rates only as an abatement in respect to the matters appealed from ; or, at all events, that it works no abatement as re- spects the rights of third persons acquired under the judg- ments or decrees of the inferior tribunal which were acqui- esced in and not appealed from."' 2. From a decree dismissing a .petition for writ of error coram nobis. An appeal from a decree dismissing a petition for a writ of error coram nobis, does not take the original suit to the Supreme Court, and the Supreme Court cannot in such case look to the errors of law arising upon the record, but only to the matters arising upon the petition. The appeal must be taken to apply to only such matters as have been appealed from, and it brings up to the Supreme Court for revisal only the action of the chancellor in dismissing the petition. To hold otherwise, would authorize the court upon a writ of error coram nobis to revise its own judgmentsupon matters of law arising upon the record. The appeal from the decree dis^ missing the petition necessarily brings up the record of 'Gilclirist V. Cannon, 1 Cold., 581. MANUAL OF CHANCERY PRACTICE. 519 tiie original suit to the Supreme Oo,urt to adjudicate the errors of fact assigned, but for no other purpose.' 3. From decree upon a cross bill. In the case of Woodrum y. Kirkpatrick, 2 Swan, 218, there was a bill and cross bill. At the hearing of the cause the chancellor dismissed the original bill, and rendered a decree upon the cross bill. Both parties appealed from the decree rendered upon the cross bill, but there was no appeal, there being no appeal from the decree dismissing the original bill. Held, that the whole case, both as to the bill and cross bill^ was before the Supreme Court for examination. The decree was reversed, both as to the bill and cross bill, and relief was granted upon the original bill. 4. From, proceedings had, at a term subsequent to the rendition of. the final decree. Where there had been a final disposition of a cause as to all the objects of the suit, and the bill was retained in court for further orders, but this was done alone for the pur- pose of protecting the persons interested in the trust about which the suit was instituted, and for the preservation of the trust property, and not for any further action in reference to the original objects of the proceeding; subsequently to the adjournment of the term of the court at which the final decree was rendered, the complainant filed a petition praying the court to set aside and declare void the previous decrees and orders, etc., etc. After some proceedings were had on the petition, it was dismissed by the court, and the complainant appealed. Held, that after the term at which the final decree was rendered had elapsed, the decree, if erroneous, could only be corrected or reversed by writ of error or bill of review, and that the petition and proceedings thereon previous to its dis- missal, were irregular and void; and that the appeal from the decree dismissing the petition did not bring before the Supreme Court any of the decrees pronounced in the cause 'Patterson v. Arnold, 4 Cold., 364. 520 MANUAL OF CHANCERV PRACTICE. prior to the filing of the petition, any more than would an appeal from a decree dismissing a bill of review have that effect, when the bill is filed after the time for filing the bill has elapsed; this fact appearing on its face.' 360. Transcript of the record. There is no law requiring a transcript to be made and transmitted to the Suj)reme Court in cases of appeal, but the clerks are not in the habit of availing themselves of the immunity whicl^ they might claim from this oversight of the Legislature. In cases of appeal in the nature of a writ ot error, (which can never happen in a chancery court except where an issue of fact has, upon the application of one of the parties, been submitted to a jury,) it is made the duty of the clerk to make out and transmit by mail to the clerk of the Supreme Court, a transcript of the record, in forty days after the entry of the appeal, unless the entry has been made within forty days of the regular term of the Supreme Court, or during such term, and then he must make it out forthwith, and transmit it without delay.^ The certificate of the postmaster of his county,' that the transcript has been deposited in the postoffice within the time prescribed, is presumptive evidence of the required transmis- sion.* 361. Requisites of the transcript. 1. Mechanical execu- tion. By the 2d rule, adopted by the Supreme Court on the 26th of May, 1868, "All transcripts from the infei'ior courts, shall be written in a large, plain hand, upon law paper, in length fourteen inches, with half an inch between the lines, having a blank margin on the left of every page, and the Avhole firmly attached at the top, so that no part can be detached without mutilation ; and no paper attached to any sheet or page of the transcript by wax, paste, or otherwise, will be recognized as part of the record." 'Franklin u. Franklin, 2 Swan, 521. 'Code, 4041. '"His county,'' meaning the county of the clerk. *Code, 4042. MANUAL OF CHANCERY PRACTICE. 521 2. Order of entering the proceedings in the transcript. By the 3d rule, adopted by the Supreme Court on the 26th of May, 1868, " Clerks shall make out transcripts so that process, pleadings, rules, orders, decrees, judgments and steps of whatever kind shall be entered in the order of sequence as they occurred in the progress of the cause. The date of issuance of process, and of the filing of pleadings shall fol- low the entry of each process and j)leading; and the date of rules made in the clerk's office, and the date and terms of rules, orders, decrees, judgments, and steps of every kind, made in Coui't, shall precede the -entry of the same respect- ively in the transcript; and the clerks shall make a minute and pei-fect index of the contents of the transcript." " In case there be any failure, omission or defect, as to any of these particulars, by the 'clerk ot the inferior court, he shall not be allowed any costs for the transcript whereiu such- failure, omission or defect occurs." 3. What the transcript must contain. In enumerating the matters which are necessary to be copied into the transcript, it will not be attempted to enum- erate them in the order in which they are to be copied into the record — sufficient directions having already been given in that respect — but they will be grouped in such manner as may seem most convenient in arrangement. The transcript must contain : (1.) All the pleadings, with the endorsements thereon, showing when they were filed, etc., and all affidavits, exhib- its, orders, etc., annexed to any of the pleadings. This embraces bills of every kind ; original, cross, amended, supplemental, and every other kind of bills; demurrers, pleas, replications, petitions and answers; exceptions to an- swers, and the action of the master and of the chancellor upon exceptions to answers; the action of the chancellor or judge, at chambers, upon an application for an injunction or other extraordinary process, etc. (2.) All bonds (arid the " pauper oath " when taken in lieu of a bond) takeu in the progress of the cause; such as prose- 522 MANUAL OF CHANCERY PRACTICE. cution, injunction, refunding, attachment, replevy, and ap- peal bonds; bonds of receivers, of administrators appointed by the chancery court, of special commissioners, etc. (3.) All the process issued in the cause, and endorsements thereon, showing when issued, and the sheriff's returns. This embraces original, alias, pluries and counterpart subpoe- nas to answers; original, auxiliary and judicial attachments, injunctions, scire faeiasea, etc. (4.) The depositions read at the hearing of the cause, in- terrogatories upon which depositions were taken, commis- sions to take depositions, and instruments, documents and records, filed and read as evidence in the cause ; also issues of fact and the verdict thereon. (5.) Orders made in the cause by the chancellor at cham- bers. (6.) The orders and entries in the cause, made on the rule docket. (7.) All the entries in the case on the minutes. (8.) The reports of the master upon matters of reference, and exceptions thereto. (9.) The bill of exceptions, if any. (10.) The bill of costs. (11.) The index. K"othing need be copied into the transcript except what is in legal contemplation a part of the record. And if a mat- ter is copied into the transcript which is not a part of the record, the Supreme Court will not look to it in the decision of the case, nor allow the costs of transcribing the same, to be taxed in the bill of costs. By the 4th rule, adopted by the Supreme Court on the 26th of May, 1868, "Unless there be a question tipon the same, no notice to take depositions, nor caption of any deposition, nor affidavit, nor any other unnecessary paper shall be inserted in the transcript; nor shall any fee for such matter be al- lowed by the clerk." It is presumed that it was not intended by this order to dispense with inserting affidavits which are annexed to and form a part of any pleading. Such an affidavit is usually a vital part of the pleading to which it is annexed. MANUAL OF CHANCERY PRACTICB. 523 ' If aeause is remanded by the Supreme Court, upon being taken up again lor the correction of errors, the transcript of the record previously sent up shall, together with the subse- quent proceedings in the court below, constitute a full record.^ "It is objected that the rules that were taken in the cause do not appear in the record, and that it does not appear that publications have been made against absent defendants, or that decrees fro confesso have been regularly taken. It is not necessary to copy into the record the rules that were taken in bringing the case to a hearing, unless some question has been made in reference thereto in the court below. "^ ' STevertheless, it may be remarked that it might be difficult for the Supreme Court to know what questions were made in the court below, unless they were questions which, by the practice of the Chancery Court, are required to be raised by exceptions in writing and which become a part of the record. The clerks ought to make perfect transcripts of the record of a case which is taken to the Supreme Court ; it might be well enough to use caution in making decisions or rules en- couraging a contrary practice. The clerk will find it difficult to certify, conscientiously, that the transcript is a true and perfect transcript of the record, when it is in fact well known to him that it is imper- fect. And if the clerk should forget that a question was made in the court below, or should not observe the making of it, or should find it convenient to wink when the question is made, so as not to see it, the party making the question would be in a bad fix. A party dissatisfied with a decree is entitled to have a re-examination in the Supreme Court of the whole matter of law and fact appearing on the record.' If it can be said that a part of the record is unnecessary, it is hard to see why it may not be said that it is all unneces- sary. ■ !■ ;. But it may be remarked that as the transcript was evi- 'Code. 3171. As to what forms a. part of the record see ante 249, 324. ^Sparks v. White, Y Hum., 91. 'Code, 3155. 52 i MANUAL OF CHANCERY PRACTICE, dently imperfect ia the case in question in not containing the entries on the rule docket, it was right to presume u favor of the regularity of the orders necessary to bring the case to a hearing ; but it does not follow that because the Supreme Court may choose to decide as best it can upon an imperfect record, it is unnecessary for the clerks to make perfect ones in other cases. Upon the whole, it is much better for the clerk and master to insert too much than not enough in the transcript. 4. Form of the transcript. After having shown what matters the transcript must con- tain and the order in which those matters are to be set forth, it seems scarcely necessary to give a form; but for the sake of illustration, the form of such a transcript as would be re- quired in one of the imaginary cases treated of in this work is here given. ■ Form. Transcript of the record in the case of Jacob Glvens, administrator of Zach- ariah Givens, deceased, vs. James Giveus, Joseph Johnston, John Smith, Wil- liam Erwin and wife, Martha Erwin, and Jonas Givens. Prosecution bond. (Here copy the bond). indorsements on the prosecution bond- (Copy the endorsements). Original, bill. (Copy the bill and affidavit annexed to it. Any exhibit or affidavit annexed to th^ bill should be copied as a part of it. Also any order of a chancellor or judge endorsed on the bill granting extraordinary process, or appointing a re- ceiver, administrator, etc). indorsements on the bill. (Here copy the endorsements, showing when the bill was filed, etc.) MAXUAL OF CHANCERY PRACTICE. 525 Entries on the rule docket, May 1st, 1868. (Here copy such entries as were made before or at the time the subpoena to answer issued. Such as the entries showing the issuanoe-of the process and the making of the order of pubUcation as to non-residents.) Subpcena to answer. (Here copy it. See sec. 54, ante.)- Endorsements on the subpcena to answer. (Here copy them, showing the date of the issuance of the process, and show- ing the sheriff's return. Counterpart subpcena to answer. (Copy it. See sec. 54, ante.) Endorsements on the counterpart subpcena to ansioer. (Copy them.) Entries on the rule docket, May 2()th, 1868. (Copy them.) Order pro confesso, (Copy it. See sub-sec. 1 of sec. 244, ante.) In copying orders and decrees made in a cause at any term of the court, those orders and decrees should be preceded by the caption of the term at which they are made, copied from the minutes, thus: State or Tennessee: Be it remembered, tha", at a Chancery Court, begun and held at the courthouse in Madisonville, on the 1st Monday of June, 1868, present and presiding the Hon. 0. P. Temple, Chancellor of the Chancery Division, the following proceedings were had, to-wit: Thursday, June the 4th, 1868. Jacob Givens, adm'r of Zachariah Givens, deo'd., vs. James Givens, Jonas Givens, and others. (Copy the order.) 626 MANUAL OF CHAIfCBIlY PRACTICE. Order setting aside the order pro confesso. Friday, June the 5th, 1868. (Cop3' it. See sub-sec. 2 of sec. 244, ante.) The answer. (Cop}- it. See sec. 101, ante.) JEndoi'sements on the answer. (Copy them.) Order of reference. June 6th 1868, (Copy it. See sub-sec. 1 of sec 253, ante.) m Meport of the Master, December Term, 1868. (Copy it. See sec. 255, ante.) Copy of the administrator's settlement filed as evidence. (Copy it.) Deposition of Joseph Thompson. (Copy it.) Note filed as evidence by John Smith. (Copy it.) Note filed by Joseph Johnson. (Copy it.) Decree Dec. bth, 1888. Be it remembered, tiiat at a Cliancery Court, begun and held (copy the cap tion of the record of the term. Then copy the decree. See sec. 257, ante.) Report of Sale, June Term, 1868. (Copy it. See sec. 275, ante.) MANUAL 01? CIIANCEKY PllACTICE. 527 Decree, June 11th, 1868. (Copy the caption of the record of the term and then copy the decree. See sub-sec. 3 of sec. 296, ante.) Appeal bond. (Copy it.) Bill of costs. (Copy it.) I, Stephen P. Hale, Clerk and Master of the Chancery Court at Madisonville, do certify that the foregoing is a true and perfect transcript of the record and bill of costs remaining in my office, in the case of Jacob Givens, administrator of the estate of Zachariah Givens, deceased, against James Givens, Joseph Johnston, John Smith, William Erwin and wife, Martha, and Jonas Givens. Given under my hand and seal of office, this 1st day of July, 1869. Stephen P. Hale, C. & M. [seal.] Index. (Here make a minute and perfect index of the transcript, showing the page on which each item is found.) The index should be arranged alphabetically, thus: Index. Page. ", Answer — Appeal Bond — Etc. In making a transcript, the headings to the different items should be written in a large, plain hand, and each heading should be in a line to itself, so that sufficient space to give it prominence shall be left between it and the body of the item. Where there are different items in one, as, for instance, where there are different instruments in a bill of exceptions, or exhibits to a bill, like headings should be used. 362. Practice where the appellant fails to prosecute his appeal. "Where an appellant fails to prosecute his appeal, and to bring up the transcript to the term of the court to 528 MANUAL OF CHAKCERY PEACTICB. which the record ought to be certified, the appellee may bring up the transcript and move for an affirmance of the ■judgment. 1 Whether or not the appellant has the right, on the motion of the appellee for affirmance, to assign errors was not de- cided in this case , but it was held, that as a party may omit to prosecute his appeal because of an adjustment of the mat- ter in litigation, after the grant of the appeal, or for other sufficient cause; notice of the intention of the appellee to bring up record at a subsequent term, and move for 'an af- firmance, ought to be given to the appellant or his attorney. 363. Effect of an abatement after appeal taken. That the effect of an appeal is to annul the decree appealed from, and that if an abatement take place, it is an abatement of the suit and not of the appeal; see sub-section 1 of section 359, infra, and authorities there cited. But that the abatement operates only as an abatement of the matters appealed from ; and works no abatement respect- ing, the rights of third persons acquired under decrees acqui- esced in and not embraced in the appeal; see same. 364. Effect of voluntary dismissal of an appeal. It, alter an appeal is taken, the appellant voluntarily dismisses it, he thereby, in effect, agrees to acquiesce in the decree in the court below, waives his right to a hearing in the Supreme Court, and leaves the case precisely as it was before the ap- peal was taken.^ 365. Exceptions to depositions. Where there is no ex- ception to a deposition, either special or general, in the court below, none can be taken in the Supreme Court, even for in- competency apparent on the record. But a general exception will raise the question of competency.^ 366. When the case is heard in the Supreme Court. All appeals, and appeals in the nature of a writ of error, taken from the final judgment or decree of an inferior court, 'Furber v. Carter, 2 Sneed, 1. 'Maskall v. Maskall, 3 Sneed, 210 ; Franldiii v. Franklin, 2 Swan, 524. 'Gunn V. Mason, 2 Sneed, 645; Birdsong v. Birdsong, 2 Head, 299. MANUAL OF CHANCERY PRACTICE. &29 at anytime before the sitting of the Supreme Court, shall stand for hearing at the first term, without notice to the op- posite party.^ An appeal, appeal in the nature of, a writ of error, or writ of error, may be prosecuted from any final judgment or decree rendered in an inferior court during the term of the Supreme Court, the record being filed in the court, and the opposite party, or his counsel, notified five days before the hearing.^ 367. How the case is heard in the Supreme Court. " Either party dissatisfied with the judgment or decree of the circuit or chancery court, in a matter of equity, tried accord- ing to the forms of the chancery court, may appeal to' the Supreme Court, and have a re-examination in that court of the whole matter of law and fact appearing in the record,"^ ' "Issues of fact in chancery,, made up on demand of either party, and tried by jury according to the forms of the court of law, are not embraced in the foregoing section, and errors in the proceedings therein had, can only be corrected as errors are corrected in actions at law."* 368. What kind of decree may be rendered by the Supreme Court. On affirmance of decree in equity cases for money, interest shall be recovered at the rate of six per cent per annum.' The appellate court shall, in all cases, render judgment against all or any of the obligors in the appeal bond for the amount of the judgment, with interest, costs and damages in such cases.^ ■ If the judgment or decree of the inferior court is reversed, the appellate court shall give such judgment or make such decree as should have been rendered in the inferior court, 'Code, 4514. 'Code, 4515. 'Code, 3155 and notes. *Code, 3156. ^Code, 3165. "Code, 3166. 34 530 MANUAL OP CHANCERY PRACTICE; , and shall issue exebution- without a procedendo, except where the damages t<) be assessed are uncertain, in which case the cause shall be remanded for further proceedings.' In equity cases,' the court may retain the cause to take accounts or ascertain facts, or remand at its discretion.^ In chancery cases, where the court reverses the decree below sustaining a demurrer, the cause may be remanded to the inferior court for further proceedings.' The court shall also, in all cases where, in its opinion, com- plete justice cannot be had by reason of some defect in the record, want of proper parties, or oversight without culpable negligence, remand the cause to the court below for further proceedings, with proper directions to eiFectuate the objects of the order, and upon such terms as may be deemed right.^ No judgment, decision or decree of the inferior courts shall be reversed in the Supreme Court, unless for errors which affect the merits of the judgment, decision or decree complained of.° 368a. Remanding a cause for further proof. "Where the evidence is unsatisfactory upon a vital question in the cause, and there is a reason to believe that more satisfactory evidence can be adduced by the parties, on that point, the Supreme Court will remand the cause for additional testimony." 369. When an appeal in the nature of a writ of error lies. "An appeal in the nature of a writ of error, lies at the instance of either party, from the judgment or decree of the court of chancery, or of the county or circuit court in equity causes, in all cases tried according to the forms of chancery,"^except divorce cases' — " upon the same terms and subject to the same regulations as an appeal from similar judgments or decrees."* ' 'Code, SieT, and note. 'Code, 3168. »Code, 3169. *Code, 3170. 'Code, 4516 ^Grider v. Harbeson, 6 Cold., 214; Cowan v. Dodd, 3 Cold., 284. 'Code, 3158. 8Code, 3174. MANUAL OF CHANCERY PRACTICE. 531 Either party to an action at law in tlie circiiit court, or to an issue of fact tried by a jury in the ehancery court at the instance of the parties, may, at the term at which final judg- ment is rendered, or a decree from which an appeal may be allowed is, entered, pray an appeal in the nature of a writ of error to the Supreme Court.' The T)bnd required from the appellant, and the proceedings in the appellate court, upon an appeal in the nature of a writ of error, are fhe same as those prescribed upon an appeal.^ This mode of redress was unknown to the common law, and was introduced into our system by the act of 1811.^ 370. Effect of an appeal in the nature of a writ of error, and of an abatement or dismissal thereof. An ap- peal in the nature of a writ of error as well as an appeal, immediately on the adjournment of the term of the court at which it is granted, transfers the case to the Supreme Court, so that the inferior court can take no further action in the case while the appeal is pending.'' An appeal in the nature of a writ of error is intended to operate as a writ of error and supersedeas at common law would do. It suspends the judgment or decree of the infe- rior court, but does not abrogate it until judgment shall be pronounced in the Supreme Court ; and if it is abated or dis- missed the judgment below remains in full force.^ 371. "Writ of error. 1. When it lies. A writ of error lies in all cases where an appeal in the nature of a writ of error lies.''' Where an appeal in the nature of a writ of error is dis- missed on the ground that the record was not brought up within the time prescribed by the rules of the -court, the ap- pellant may, notwithstanding, prosecute a writ of error within the same time and under the same regulations as if 'Code, 3174. 'Code, 3175. 'Banks v. Brown, 4 Yer., 198. ♦Decatur Bank v. Berry, 3 Hum., 590 ; Staggs v. State, 3 Hum., 372. 'Thomasson v. Kercheval, 10 Hum., 322; Furber v. Carter, 2 Sneed, 1. 'Code, 3176, and notes. 532 MANUAL OF. CHANCEEY PRACTICE. .110 appeal in the nature of a writ of error had been taken in ■the case.^ > • 2. How obtained. It may be moved for and obtained in the appellate court, or issued by the clerk of the appellate court in -vacation, upon a transcript of the record being filed in his office and bond given as required by law.^ It seems that it may also be granted by a judge of the ap- pella,te court, though there is no express provision to that effect.^ 3. Within ichat time applied for. The application, if made to the clerk of tte Supreme Court, must be made within one year after the rendition of the judgment or decree/ If made to the appellate court or a judge thereof, it must be made within two years after the judgment or decree.-' Infants, married women, persons of unsound mind, im- prisoned, or beyond the limits of the United States, may prosecute writs of error within the time larescribed after the disability is removed.' 4. Notice of the application and issuance of writ. If the writ of error is sued out after the term of the court at which the judgment complained of was rendered, five days' notice in writing, shall be given to the adverse party of the intention to apply for the writ." The writ is simply a matter of form where the record is £]ed ; it is, under our practice, never in fact made out.* 'Code, 3185, and notes. ^Code, 3177, and notes. 'Code, 3181. ^Code, 3180. ^Code, 3181. "Code, 3182. 'Code, 3183, and note. «Bell V. Brown, 5 Yer., 107. MANUAL OF CHA^fCEEY PRACTICE. 533 Some of the clerks issue what they call' a writ of error, which is in fact not a writ -at all,' hut a notice to the opposite party. A writ of error, as we have seen, if issued at all, issues to the judgeor judges of the court in which the judg- ment complained of has heen rendered.' But it is presunied that the only ijeason why notice of the application is required to he given, is that the opposite party may have notice of the removal of the case to the Supreme Court, and as the so-called writ of error issued hy some of the clerks accomplishes that object, it would perhaps be held isufficient as a notice, and the writ might be considered as granted at the expiration of five days from the service of the notice. The Legislature ought to have exercised a little common sense on the subject, and instead of requiring notice to be given of the intention to apply for the writ, should have pro- vided for the issuance of, notice by the clerk of the Supreme Court, in cases where the opposite party is a resident, and for publication by him in cases of non-resident parties, notifying the opposite party of the fact that the writ of error has been granted. Where the opposite party is a non-resident, or his resi- dence unknown, this statute throws an obstacle in the way of .resorting to this remedy, which is absolutely insurmount- able. . , , , , If the lawyers do not take advantage of it by moving to dismiss the writ of error for want of notice being given of the intention to make the application, that is no apology for permitting the provision to reniain on the statute book. 5. The bond, and the proceedings in the appellate court. ' The bond 'required from the applicant for the writ of errorj and the proceedings in the appellate court thereafter, are the same as upon an appeal as provided in the Code.^ ; But a writ of error may- be. obtained without a, supersedeas upon bond for costs alone, or upon the pauper oath.^ ^Ante, 335, sub-sec. 3. 'Code, 3184. •Code, 3n8a. 534 MANUAL OF: CHANCERY PEACTICEi 6. Effect of a -writ of error. Although a writ of error removes the case into the appel- late court for the purpose of correcting the errors which the record may show in the proceedings below, it does not supersede the execution of the judgment or decree, unless a judge of the Supreme Court is of opinion, from inspect- ing the record, that there' is error and shall order a super^ sedeas to issue.' 372. Effect of reversal upon a writ of error. If the judgment or decree below has been executed by a sale of the property cither real or personal, before the writ of error is obtained and supersedeas granted, the right, title and interest of any purchaser, previously acquired, under the judgment or decree, shall not be disturbed or affected by the reversal of such decree.^ 373. Difference in effect of an appeal, an appeal in the niature of a writ of error; and a writ of error. We have already seen that an appeal annuls the judgment or decree of the court below ; that an appeal in the nature of a writ of error, or a writ of error and supersedeas merely suspends it; and that a writ of error without & supersedeas does not even suspend it. Upon an appeal, the suit is thc; same suit prosecuted in a different forum ; but a writ of error or appeal in the nature of a writ of error is ];egarded as a new suit,, brought by the unsuccessful party t,o reyerse a judgment in the court below.^ A distinction between, an, appeal and a writ of error, or an appeal in the nature of a writ of error, which has been recognized is, that upon an appeal the cause is tried de novo in the appellate court. It effects a thorough re-examination of the case both upon the law and the facts, while a writ of error or an appeal in the nature of a writ of error, only effects an examination in the appellate court, ,of si^ch errors as are apparent in the record, but not a re-examination or re-trial, of the entire case. 'Code, 3178, and note. 'Code, 3186, and note. 'Maskall v. Maskall, 3 Sneed, 208. MANUAL OF CHANCEKY PEACTICE. 535 To illustrate : Upon an appeal in a chancery cause tried according to the forms of the chancery court, the Supreme Court re-tries the whole case, just as a chancery court would try it, and renders such decree as the law and the facts of the case warrant. An appeal is properly applicable to such a case. But where an issue of fact is made up on demand of either party, and tried by a jury according to the forms of a court of law, if the Supreme Court should be of opinion that the jury erred in weighing the evidence, the Supreme Court cannot' find the facts for itself and render a decree in accordance with its view of the facts, but must remand the cause to here-tried bythejurjr. The Supreme Court does not re-try the case. Hence an appeal is not applicable in such case. Upon common law principles, a writ of error; or an appeal in the nature of a writ of error, would not be applicable to a case tried according to the forms of a court of chancery, where there is to be a re-trial of the case in the Supreme Court, and not merely a reversal of the decree and a remand- ing of the case to be re-tried in the, chancery court, in case there is error in the record. But by statute the writ of error and appeal in the nature of a writ of error have been "extended to the former class of cases. A party bringing his cause into the Supreme Court will be 'taken to have adopted one of the three modes recognized by law. If instead of praying in the court below for an appeal in the nature of a writ of error, he prays for an appeal simply, and the record is sent up and filed it may be cou'- sidered as a writ of error obtained by filing the record.^ =Code, 3156. 'Bell V. Brown, 5 Yer., 107. CHAPTER XVIII. EULES OF PRACTICE OF THE CHANCERY COURTS. ADOPTED BY THE CHANCELLORS, 1858. Rule I. The residence of complainants and defendants • shall be stated in all bills. Rule II. AH papers and documents referred to in a bill or answer, and prayed to be made a part thereof, must be filed with it. Rule III. Upon process for contempt for want of appear- ance or answer, bail may be takeil; and if, upon return thereof, the defendant fail to appear, an alias attachment may issue, upon which no bail shall be taken. Rule IV. The bail-bond in such cases shall be in the pen- alty of two hundred and fifty dollars) unless otherwise or- dered by the court, and shall be made payable to the State; and if the defendant fail to appear and clear his contempt, or to show good cause for not appearing, the bond shall be for- feited, and recovery thereon had for the benefit of the party aggrieved, by scire faciqs, conformably to the practice in such cases at law. - • Rule V. The chancellor may grant a habeas corpus, where a person is in confinement upon an alias attachment, for want of appearance or answer ; but no writ of habeas corpus shall issue, except on the petition and affidavit of the person confined, his agent or attorney. Rule VI. The clerk and master shall note upon the bill and answer the day on which each is filed. KULES Oi' CIlANCEKY PEACTICE. 537 Rule VII. The defendant may, at any time after the bill is filed, move to dissolve an injunction, giving at teast one day's notice by motion in open court, or five days' notice in writing; but if the motion is based upon the defendant's an- swer, the answer must be tiled at least three days previous to the motion, unless the chancellor, in his discretion, should order otherwise. Rule VIII. In all injunction cases, where exceptions are filed to the answer, the same shall be brought before the clerk and master by the party excepting, and . be heard by him, before a motion be. made to dissolve the injunction, or they shall not be noticed upon the motion to dissolve. Rule IX. If a defendant obtain time to answer the com- plainant's bill, he shall not tile a plea or demurrer, unless the order giving time expressly embrace those modes of defense. Rule X. The clerk and niaster may issue an attachment " against a defendant for want of an answer, wh«re the time for answering has expired. Rule XI. Upon -exceptions being filed to depositions, the clerk and master shall imniediately consider and decide them., writing upon them " allowed," or " disallowed," as the case may be, and signing his name thereto. Either party may appeal from the decision of the master to the chancellor in court, to be heard, upon motion, within the first three days of the term, unless the cause is sooner called. Rule XII. The commissioner before whom a deposition is taken is required to annex a bill of the costs of taking the same. Rule XIII. Proof of notice to take deposition's may be made either before the clerk and master or befor,e the com-^ niissioner taking the deposition, by the affidavit of a compc^ tent witness or the return of a proper officer. If either party reside out of the State, notice may be Served Upoii his agent or attorney. j ■.■ . . '^ ; 538 RULES OP CHANCBKY PEACTICE. Rule XIV. N'o new proof shall be taken in a cause after it is set' for hearing without leave of the court first obtained upon affidavit, setting forth specially the facts expected to be proved by the witness. Rule XV. All deeds, transcripts of records, or other writ- ten documents intended to be ofiered as testimony on the hearing of a cause by either party, shall be filed with the clerk before the cause shall be heard, and, if filed during the term at which the cause is heard, notice thereof, at least one day, shall be given to the adverse counsel. Rule XVI. When a party intends to produce vica voce tes- timony on the hearing of a cause, he shall give notice thereof to the adverse party one day before the hearing. Rule XVII. A witness, once examined in chief in a cause, for either party, shall not be re-examined to the same facts by the same party, unless by order of the court, or of the clerk and master, on sufficient cause shown by affidavit. Rule XVIII. If exceptions be filed to an answer for in- sufficiency, or for scandal, or impertinence, the clerk and master shall examine and report upon them with all con- venient speed; and if either party be dissatisfied with his report, he may appeal to the chancellor in court. Rule XIX. After the minutes of the preceding day shall be signed by the chancellor,, the clerk shall call over the names of the counsel, which shall be placed on a list ; and when the name of the counsel is called, he may bring before the court such motions as he may wish to make on that day. Rule XX. In cases where money or movable chattels are not the subject of a decree, and in cases where the chancel- lor is of opinion that the matter is doubtful and difficult, and ought to be re-heard in the Supreme Court, either party praying an appeal may, by leave of the court, take his apr peal, upon giving bond with security for the payment of the costs in chancery and the costs of the Supreme Court. In all other cases, the appellant must enter into bond with good ei;lbs, of chancery practice. 539 security to prosecute his appeal with effect, or, in case of fail- ure, to pay to the appellee the money that may be decreed by the Supreme Court, and all costs, and damages the appel- lee may sustain by such appeal, and all the costs of the Chancery Court. Rule XXI. "When a cause is called for trial, the counsel shall produce and read to th% court a brief, plainly showing the points in the cause raised by the pleadings and evidence, together with the principal authorities relied on in argu- ment ; otherwise the court may, in its discretion, delay the trial until , this rule is complied with. Rule XXII. "When a matter is referred to the clerk and master to take an account and report, he shall assign a day and place to hear the parties, and shall issue a notice to the parties, to be served at least five days before the day assigned in which it shall be expressed that if the party fail to attend in pursuance thereof, the account will be proceeded with ex parte; and upon the notice being returned executed, the clerk and master shall proceed to take the account and report thereon, examining such proof as shall be before him, and shall return the report to the next term of the court, or as in and by the order to him directed. Rule XXIII. Service of the notice may be on the party or his counsel by delivering a copy thereof 6r leaving the copy at his usual place of residence or business. If the parties are numerous, the notice may be served upon some one or more of them or the counsel, to be designated by the clerk. Rule XXIV. The master may, upon the special affidavit of either party, showing sufficient cause, adjourn the matter of reference to another day, prior to the commencement of the next term of the court, at which time he shall proceed and complete his report. Rule XXY. If either party fail to attend, the account shall be closed, and no other testimony shall be heard unless the absent party shall, within ten days after closing the account, by special affidavit, show that he has material testimony. 540 RVLES OF CHANCERY PRACTICli. which was not before the clerk and master at the time fixed for the reference, and which he could not by proper diligence have produced according to the provisions of the first notice; in which c^se, the clerk may open the reference for the re- ception of the proof, upon notice as above. RuLfi XXVI. If, upon notice duly served five days as above, the parties fail to attend, the master may proceed to examine the matter referred, and report thereon to the court. • EuLE XXVII. Upon a reference, a witness cannot be ex- amined, either by the master or the party whose witness he is, to the same matter to which he has been examined in - . . ■ ' ■■■ ■ . * chief before the heanng of the cause, without an order from the court, or of the clerk and master, upon afiidavit showing suflicient cause, but he may be examined .touching any other matter. , Rule XXVIII. A witness onCe examined by the master may be re-examined by the master, at his discretion. Either party may also be examined upon interrogatories before th^ master (without an order), the master settling the interroga- tories; and the master may exaniine either party vioa voce, if he thinks proper, which examiinatioii shall be reduced to writing, Rule XXIX. After all the evidence has been produced be- fore the master, under the foregoing rules, he shall proceed without delay to make his report, which he shall file in the office as early as he fcan with convenience, subject to the ex- amination of both parties and their counsel ; and if the same is not satisfactory, either party may file exceptions, which shall set forth the particular points, in the report complained bf as erroneous. , ,.. Rule XXX. The exceptions to the master's report shall be filed on bv before the second day of the term to which the J-eport is made returnable, unless the cause is soonet reached (in the docket, and, in ■ that event, the -exceptions must be filed at the calling of the cause; and, in either case,- the ex- BITLES OF CH4NC]?RY PRApTICB, 54X ceptions shall be immediatelj'^ get down by the clerk for argu- ment, and shall be disposed of by the court when the cause is reached for trial. Rule XXXI. If the clerk and master fail to comply with an order of reference made by the court, under the provis- ions of law, and the rules as above, he shall forfeit and pay ten dollars for every such failure, unless he showby oath, to the satisfaction of the court, he has been guilty of no con- tempt, or culpable neglect of duty. Rule XXXII. When sales are made under the direction of the master, pursuant to a .decree of the court, the amount paid into the master's office by the purchaser, shall there re- main until the confirmation of the report, and until an order is obtained to pay over the amount to the person thereto en- titled- RuLE XXXIII. If the purchaser of property sold at mas- ter's sale fail to make payment, or comply with the terms of sale, the master may again expose the premises to sale, on the same day, or after, and if aft6r giving due notice of time and place, according to the directions contained in the decree. Rule XXXIV. Every petition for re-hearing- shall contain the special matter or cause on which a re-hearing is applied for, be signed by counsel, and the tacts therein stated, if not appearing from the proceedings in the court, shall'be verified by oath or affirmation. Such petition must be presented to the court during the term at which the decree complained of is entered upon the minutes of the court. AN ACT TO REVISE ,THE RULES.OP CHANCERY PRACTICE, 1811. Section 1. Be it.enq.cted by the General Assembly of the State of Tennessee, That the rules of practice of the chancery courts of this State shall be as follows, and all other^rules of practice of said courts heretofore in force, and all sections of an act entitled the Code of Tennessee, inconsistent with 542 EULES OF CHANCERY PRACTICE. the Same, or so far as the two are inconsistent, be and the same are hereby repealed, and the rules submitted to this General Assembly by the chancellors of th« State, be adopted asherein set out by rules, heads and sections, as follows: KuLE I. Pleadings and exceptions thereto. Sec 1. The resi- dence of complainants and defendants shall be stated in all bills,, if the same are known, and if unknown, then so stated. Sec 2. A»ll papers and documents peferred to in pleadings or depositions, as exhibits, shall be filed in the master's office at the time the pleadings or depositions are filed, unless by special order of the chancellor or master, it is otherwise ordered, but the same shall be filed at any time thereafter upon the order of the chancellor or master, and no pleadings or depositions shall be received and filed by the master until this rule shall have been complied with: Provided, however, the paper is not of record in the court. Sec. 3. The master shall note upon the pleadings, or other papers filed in his ofiice the date of the filing. Sec. 4. If exceptions be filed to an answer for insufficiency, or for scandal or impertinence, the clerk and master shall examine and report upon them with all convenient speed; and if either party be dissatisfied with his report, he may appeal to the chancellor in court. Sec 5. Exceptions to answer for insufficiency shall be filed within twenty days after notice served of the filing of the answer. . The party filing the exceptions shall set them down for hearing before the master within ten days after they are filed, and upon failure to do so, the answer shall be deemed sufficient. Upon the exceptions being set down for hearing, the master shall act upon them immfediately, and if allowed, he shall notify the defendant's solicitor to file a sufficient answer within thirty days, from which order the defendant may, within said time, appeal, but if the defendant, in obedience to said order, shall file an answer deemed sufficient by the master, he shall notify the complainant's solicitor, and he may appeal within ten days after the notice. RULES OE CHAKCBRY I'RACTICB. 543 Upon appeal SO taken, the chancellor shall act imme- diately, or as soon as convenient. Sec. 6. Exceptions filed shall not delay taking depositions, or otherwise preparing the cause for hearing. Sec. 7. If a defendant obtain time to answer the complain- ant's bill, he shall not file a plea or demurrer unless the order giving time expressly embrace those modes of defense. Rule II. Depositions, evidence, etc. Sec. 1. The Commis- sioner before whom a deposition is taken, is required to annex a bill of costs of taking the same. Sec 2. Proof of notice to take depositions may be made either before the master or before the commissioner, by the affidavit of a competent witness, or the return of a proper officer. Sec. 3. If either party reside out of the State, notice may be served upon his agent or solicitor. Sec. 4. After a cause is set for hearing, the same shall be opened to both parties for proof without leave of the court, and without remanding the cause to the rules, but each party must take his proof in chief within four months, and the rebutting proof within two months : Provided, the chancellor or master may extend the time upon sufficient cause shown by affidavit, upon terms. Sec. 5. All exceptions to depositions for want of notice, because not filed in reasonable time, or for other cause going to the admissibility thereof, except objections to the compe- tency of the witness, or his evidence, shall be made and disposed of before the commencement of the hearing or trial, other- wise they will be considered as waived. It is the duty of the clerk to act upon the exceptions made before the hearing forthwith; and from his decision an appeal lies to the chancellor or judge, to be disposed of before the cause is heard or tried. Sec. 6. A witness once examined in a cause, by either party, shall not be re-examined as to the same facts by the same party, unless by order of the court, or of the master, on sufficient cause shown by affidavit. 644 KULES OP CHANOKRY PUACTrCE *-■ Rule III. Decrees. Sec. 1. Each decree shall be written upon not less than a half sheet of paper, and in ink, acd the date of its entry endorsed upon the same. Sec. 2. Each decree in a cause, as it is entered, shall be seenrely fastened together at the top with the other decrees in the same cause by the master. • Exile IV. Accounts, reports, exceptions, etc. Section 1. When a matter is referred to the master to take an account and make a report, the court may, in the decree, fix the time in which the account shall be taken, and the report made, and upon whom the notices of taking the same shall be ex- ecuted, if, in the discretion of the court, auy notice is neces- sary. Sec. 2. If the decree does not fix the time within which the account shall be taken, and the report made, the same shall be made to the succeeding term upon the following rules, viz. : The master shall assign a time and place to consider the same, and shall issue a notice thereof to the parties interested in the account, and to be affected by it, and also to their re- spective solicitors, if both the party and solicitor reside in the county, and if the solicitor reside in the county and the party does not, then to the solicitor, and y?ce versa. In all cases in which the party is a non-resident, then the notice shall be served upon his solicitor. Sec. 3. Said notice shall be executed five days before the day assigned, and it shall be expressed in the notice that if the party, or his solicitor, as provided above, shall fail to at- tend, the account will be proceeded with ex parte. Sec. 4. If the parties or their solicitors attend, the master may, upon afiidavits of either party showing sufficient cause, adjoUrn the matter from day to day, or. to another day prior to the time he is required to file the report, at which time, unless he adjourn the same, he shall proceed to take the ac- count,-' and make the report. Sec. 5. If the parties are numerous, the notice shall be served upon such, of them as the decree or master may designate. RULES OP CHANCERY PRACTICE. 545 Sec. 6. After the evidence has been closed, the master shall proceed -without delay to make the report in writing, in ink, with the pages marked thereon. Sec. 7. In said report he shall refer by page to the partic- ular parts of the record upon which he bases each item al- lowed. Sec. 8. Said report, when completed, shall be filed five days before the first day of the succeeding term, and the fact shall be noted upon the hearing docket, and also upon the chancellor's docket, opposite the cause. Sec. 9. If either party fail to attend, the account shall be closed, and no other evidence shall be introduced or heard, unless the party offering it shall, within ten days, by special affidavit, show that he has material evidence which was not before the master at the time fixed for taking the account, and which he could not by proper diligence have produced according to the provisions of the notice, in which case the master may open the account for the reception of evidence upon the same notice prescribed for the original account : Provided, however, the court, at any time before confirmation, may, in its discretion, open the account for additional evi- dence. Sec. 10. Upon a reference, a witness cannot be examined, either by the master or the party whose witness he is, to the same matter, to which he has been examined in chief before the hearing of the cause, without an order of the court or of the master upon affidavit, showing sufficient cause therefor, but he may be examined touching any other matter. Sec. 11. A witness once examined by the master may be re-examined by him, at his discretion. Sec 12. The exceptions to the master's report shall be filed on or before the second day of the term to which the report is made returnable, unless the cause is sooner reached on the docket, and in that event,, the exceptions must be filed at the calling of the cause ; and in, either case, the exceptions shall be immediately set down by the clerk for argument, and shall be disposed of by the court when the cause is reached for trial. Sec. 13. The exception shall clearly and distinctly stat« 35 546 KTJLBS OP CHANCERY PKAOTICB. the matter or item excepted to, and shall refer to the page or pages of the report which show the item or matter excepted to, and shall also refer to the page or pages of the 'deposi- tions, or other part of the record, by which it is sought to impeach the report. Sec. 14. After the time allowed for filing exceptions shall have expired, and none have been filed, the report may he confirmed, unless for good cause shown a longer time is al- lowed. Sec. 15. All exceptions to reports shall be heard and dis- posed of as other motions, provided they shall be disposed of when the cause is reached. E.ULB V. Pro confesso, proceedings upon, etc. Sec. 1. It shall not be necessary to give notice to a party upon a refer- ence for an account when the cause is standing upon a pro confesso decree against such party, unless said party resides in the county. Sec 2. In all cases in which a pro confesso decree is set aside, pending the cause, and the party allowed to answer, upon filing the answer the defendant shall have the right to cross examine the witnesses, whose deposition has already been taken, without any leave of the court, and may have all proper process to compel their attendancte, but must give notice to the opposite party of the time 'and place, as in other cases of taking depositions. KtrLB VI. Injunctions, granting and dissolving. Sec. 1. In all cases of injunction bills in which the oath of the defend- ant to answer is waived, he may, nevertheless, for the pur- pose of a dissolution of the injunction, swear to his answer without leave of the court ; and upon notice to dissolve upon bill and answer, the answer may be looked to for that pur- pose as fully as if permission of the court had been obtained. Sbo. 2. The notices of a motion to dissolve an injunction shall, in all cases, state upon what the motion is based, whether for want of equity on the face of the bill or upon bill and anwser. Sec. 3. Upon the hearing of a motion to dissolve an in- junction upon bill and answer, the fact that the answer has RULES OF CHANCERY PKACTIOB. 547 been excepted to, or that the time to :fi.le exceptions has not elapsed, shall not postpone the hearing of the motion to dis- solve, but the chancellor may, without passing upon the ex- ception, dispose of the motion to dissolve. Sec. 4. If in a bill tendered for a fiat for an injunction the complainant admits any money to be due the defendant, or fails to allege any sufficient equity against any part of the matter sought to be enjoined, the judge or chancellor shall either order the issuance of the injunction as to so much only as to which there is sufficient equity, or in case the whole matter is enjoined, it shall, besides the bond required by law,- be also required that the complainant pay into court the amount admitted to be due, or otherwise perform the fiat as to any part of the matter sought to be enjoined, and as to which no injunction is ordered before injunction issue. Rule VII. Contempt. Sec. 1. If a contempt is (jomitted in the presence of the court, the offending party may be ar- rested by the officer waiting upon the court upon the verbal order of the chancellor without process or notice, and the contemner shall not be bailable, but the court may proceed at once to fine or imprisonment, or both, but the minutes shall show the penalty inflicted and the matter of contempt. Sec. 2. In all cases of contempt committed not in the pres- ence of the court, the mode of proceeding shall be as fol- lows: Sub-sec. 1. A petition shall be filed stating the contempt complained of, supported by &,ffidavit, together with such ex- hibits and returns of officers or certified copies thereof as may fully show how the contempt arose. 2d. Thereupon the chancellor, if sufficient cause is shown, shall order the issuance ol an attachment for the body of the contemner, fixing in said order the time and place of the ap- pearance to answer, and also the amount and character of the bail bond to be taken. 3d. The chancellor, upon, the appearance and answer of the contemner or production of his body and refusal to an- swer, shall hear said proceedings at the time and place desig- nated, unless upon cause shown he shall give further time 548 RULES OF CHANCERY PRACTICE. upon the petition, affidavit and exhibit, and answer thereto in case the contemner answers, and if he fails to answer, then upon the case made by the petition. 4th. In case the contemner does not appear as required by his bond, judgment shall be rendered against the parties thereto for the full amount thereof, and in case an alias at- tachment be issued and the contemner be arrested, no bail shall be taken unless the contemner show good cause for his default either before the commissioner in vacation or before the chancellor in term time. 5th. If a forfeiture is taken upon the bond and the term of the court is passed, the chancellor shall certify the fact, together with the papers, to the master, who shall immedi- ately enter judgment upon the bond for the amount of the same against the principal and his sureties, and also for costs, and award a fieri facias, and the same when collected shall be paid into court, and all, or so much thereof as is deemed proper ^3J the court, shall be awarded to the injured party, and the balance shall be paid by the master into the treasury of the State. 6th. If a witness, after having been duly summoned, fails to appear before the master upon return of an officer or proof by affidavit of such service, the master shall issue an instanter attachment for him, and designate therein the penalty of the bond conditioned for his appearance before the chancellor at a time and place to be specified if prac- ticable, or before the court at the next succeeding term, if it be not then in session, to show cause why he should not be fined or committed according to law. Sec. 7. If a witness should appear- and refuse to answer legal interrogatories, he shall be committed by the court or ■ master, until he consent to give his testimony. Sec 8. The master may, on application of complainant, issue an attachment against a defendant for want of an answer, where the time for answering has expired. Sec. 9. If the clerk and master fail to comply with an order of reference made by the court under the provisions of law, and the rules as above, he shall forfeit and pay fifty dol- bulbs' of chanceey pkacticb. 549 lars for every such, failure, unless he show by oath, to the satisfaction of the court, he has been guilty of no contempt or culpable neglect of duty. Rule VIII. Continuance. Sec. 1. Repealed. Sec. 2. When a cause shall be continued by consent, the chancellor may tax the costs as he may deem proper, or reserve the same until final dfecree. Rule IX. Motions. Sec. 1. The court may hear motions at such times as may be convenient. Rule X. Searing. Sec. 1. The complainant or his solici- tor, before presenting a cause for hearing shall cause all the depositions and other papers intended t6 be used by hina on the trial, except the pleadings, to be neatly put together in one or more packages, and securely fastened together at the top, and the same paged, and a general index of the contents made at the conclusion or beginning thereof. The defendant or his solicitor shall in like manner prepare all papers and depositions intended to be used by him. Sec. 2. When a cause is called, each solicitor shall produce and read to the court, a brief written with' ink, plainly show- ing the point in the cause raised by the pleadings and the proof, together with the authorities relied on in argument, otherwise the court may, jn its discretion,- delay the hearing until the rules are complied with. Rule XI. Proof, trials, term, etc.. Sec. 1. Whenever the term of a court shall c6ntinue for a sufficient time, all pro- cess which shall have been issued for more than five days before the first day ot the term, may be made returnable to any Monday of the term,' and if the same shall be executed five days before such return day, the defendant shall cause his appearance to be entered and make defense or obtain time therefor within three succeeding days, and the cause shall stand to be proceeded in at that term. Sec. 2. If such process is executed within the five days before such return day, then the same shall be returned to the succeeding Monday, and the defendant allowed the three 550 KULBS OP CHANCERY PRACTICE. succeeding days thereafter to cause his appearance to be entered and make defense or obtain time therefor, and the cause shall stand to be proceeded in at that term. Sec. 3. The foregoing rules shall also apply to cases in which publication is made for a defendant. Sec. 4. Alias or mesne process taken out at any time, may be returnable to any Monday of the term, and if executed five da;ys before the return day, the defendant shall have the first three days of the term, if the court hold so long, other- wise on the first day of ,the term in which to cause his appearance to be entered, or to make defense or to obtain time therefor, and after said three days or said first day as the case may be, the same shall stand to be proceeded. in for all purposes. Se.c 5. If said alias or mesne process shall be executed within the five days before the return day, the cause shall stand over to the succeeding Monday, and then to be pro- ceeded in as in Section IV, above. Rule XII. Corporations. Sec 1. Any person opposing the organization of a corporation, shall be required to make defense by plea, motion to dismiss, demurrer or answer, as in other cases in chancery. Sec 2. If the opposition is made by answer, the same shall be put in under oath, and shall state in brief the causes why said organization should not be allowed. Sec 3. The petition and answer shall, merely operate to make the issue or issues. Sec 4. All the evidence in such cases shall be by deposi- tions taken as in other suits in equity. Sec 5. All applications for the organization of corpora- tions shall be put upon the rule docket, and if not opposed, shall be heard upon motion.' Applications which are opposed shall be put upon the hearing docket, upon the filing of the answers, and shall in all, respects be proceeded in as, in Qther causes in equity. . : . Rule XIII. Enrollment, Sec 1. Upon the filing of any paper in a cause, including the pleadings and exhibits, the master shall cause the same to be copied into well-bound RULES OF CHANOBRT PRACTICE. 551 books, noting upon the rule docket the book and pages into which the same have been transcribed. Sec. 2. Any paper lost or mislaid may be supplied from the enrollment book ; the master certifying that the same is a full, true and perfect copy, and shall be used on the trial of the cause, or the enrollment book itself may be used. Sec. 3. The enrollment herein provided shall supersede all other enrollments now provided by law, and the fee of the enrollment shall be included in the bill of costs. Rule XIV. He-sales. Sec. 1. If the purchaser of prop- erty sold at the master's sale fails to mal^e payment pr comply with the terms of sale, the master may again expose the property to sale, on the same day, or after giving due notice of the time and place, according to the directions con- tained in the decree. Rule XV. Be-hearing. Sec. 1. Every petition for re- hearing shall contain the special matter or cause on which a re-hearing is applied, for, be signed by counsel, and the facts therein stated if not appearing from the proceedings in the court, shall be verified by oath or affirmation. Such petition must be presented to the court during the term at which the decree complained of is entered upon the minutes. liTiDEx:. ABATEMENT. See Plea in Abatement. Revivor. Page. Of suits in equity 301 Form of order abating suit ^ , 370 In cases where there has been a sequestration 453, 454 Of suit and not of the appeal, when 517 Effect of after an appeal 528, 531 ACCOUNT. Parties to a bill seeking 38, 39 Plea of stated and settled ^ " , 150-152 Ex parte settlement by executor or administrator prima facie cor- rect . 151 When accounts and settlements will be re-opened 151 Settled account corrected, when ^ 250 Settlements of guardians and administrators only, prima facie cor- rect ^ —250 ..From another county or State 251 Book account , 251 Commissioner to take 293 Form of an order for 383 The master shall fix time and place, and give notice to the parties. — 402 Application of payments in cases 'of running accounts 477 Application of payments in running accounts before and after change of members 478 ADDRESS OF BILL. Form of 58 ADMINISTRATION. Administration, bill to transfer . ^ 5 Cases of, necessary parties 34-38 Land may be sold to pay debts, when— ——- 393 Of insolvent estates— 394 ADMINISTRATORS AND EXECUTORS. . Administrator, bill to appoint 5 May i?ie when 9 Parties to bill to foreclose mortgage, when 25 Administrator of dead mortgagor a party, when 26-27 Administrator when a necessary party to redeem mortgaged land-i27, 28 554 INDEX. ADMINISTRATORS AND EXECUTORS— Continued. Page. Necessary parties, when 34-38 When parties to bill to enforce vendor's lien 10-42 Form of bill to appoint administrator 66 When their settlements will be re-opened : 151 Settlements of prima facie correct 151, 250 Effect of pro confesso against l 228 Appointment of . 292 Court may order him in vacation to sell perishable property 292 Bond required ^ 292 . Is a party to the proceedings and bound by any decree in the cause— 295 Under the same responsibilities as a receiver 293 Takes up the defense where he finds it at death of decedent 304 Form of order appointing ^ 367 May sell land and pay debts, when 393 Must be an account with the administrator and the heirs must be be- fore the court ,. , 394 ADMISSIONS AND CONFESSIONS. See Evidence. Of parties in their pleadings 237 Admissions in the bill 237 In an answer 237 Admissions by argreement 239 ADJOURNMENT. Clerk and Master may adjourn court 309 Of a matter of reference 403 ADVERSE POSSESSION. A defense in courts of equity when 157 ADVERTISEMENT. For next of kin and creditors to come forward 381 AFFIDAVIT. See Oath. Swearing to Pleadings. Form of tp bill 62 Form of to answer .. 176 AGENCY. Necessary parties, in cases of 42, 43 AGENTS. Necessary parties, when 42, 43 Service of process on 84, 85 INDEX. 555 ijLIBN. Page. When can sue , 8 .ALIMONY. Eight of extinguished by death of husband 302 ALLEGATA AND PEOBATA. Must correspond . ^-_;j 434 AMENDMENT. To bring in new parties, when allowed 15 Defect of non-joinder clired by-^ 17 Made when certain parties are discovered 17 "When demurrer is sustained for nonjoinder and misjoinder, the bill stands over for amendment (note 1) 48 When demurrer has be6n allowed . 129, 130 Anlending pleas — ' - '. 137 Exceptions to answers may be amended . 182, 194 Amending bill postpones time of answering 184 Amendment of pleadings in general 193, 194 By defendant allowed with greater caution than by plaintiff 194 Of amending bills -^ 194, 198 English practice 194 Practice i-n Tennessee — - — 196 Amending bills where plaintiff is a minor 198 To what time the amendment of a bill relates — 198, 199 Bond and process on filing amended bill , , 199 Form of amended bill— : 200 Of pleas, demurrers and answers : 200, 202 Form of order granting leave to amend bill 369 ANSWEE. See Pleadings. Answer by married women, hq,w made — — -- — 11 Nonjoinder and misjoinder of parties when relied on in answer 47 Evidence so far as responsive 60 Subpoena to ; 76 Proceedings to compel 90 Cannot be filed while in contempt (note 5) 91 Deficient, how treated (note 1) 92 By persons under disability— ■ 102-104 Obtaining time to answer 105-106 A plea considered an answer, when — , , 106 If defendant get time to answer he is restricted to that mode of de- fense ■ ■ 106 Length of time usually granted 106 Defense by —- 107 556 INDEX. AiiSWEBr- Continued. Page, What defenses may be incorporated in 107 Time after amendment of bill, in which to answer HI Answering as to the discovery or relief and demurring as to the other 122-123 Should not be excepted to till the demurrer has been decided -131 In support of plea should not be excepted to when 135 Ordering plea to stand for answer — ; — 136 Pleas ordered to stand for an answer is allowed to be a sufficient an- swer 136 Statute of limitation may be relied on in answer 141 Plea of other statutes must be supported by aBswer, when 143 Plea of former judgment may be relied on in answer 147 Plea of release may be relied on in answer 149 Plea of stated account must be supported by answer 151 A stated or settled account may be relied on in answer 152 Defense of innocent purchaser may be made by answer 153 Nature and substance of an answer- 167 What it should contain 168-173 Must confess, deny or traverse all the material parts of the biU 169 Matters that need not be answered , 168-173 Particular allegations must be answered with particularity 170 Answer that is evasive is no answer 170 Defendant not bound to answer as to his own title 173 At what time an answer may be filed 173 Each defendant may answer separately — 173 Form of an answer 173 Forms, titles arid commencements of answers in particular cases-174, 175 By an infant ^ 174 Where the title misstates the names of defendants 174 By a lunatic or idiot 175 Signing and swearing to answers 175, 176 ^__^orm of affidavit to an answer 176 New practice as to titles and commencement of answers 176 Who may administer the oath 176 Obtaining order to file answer without oath or signature 177 Must be signed by counsel - 177 Answer without oath must be signed by defendant 177 Answers of- foreigners, deaf-mutes and blind persons 178 Filing answers and notice thereof-- 178, 312, 313 Exceptions to- -, 178-181 Must be in writing and signed by counsel 179 May be amended in case of mistake : 180, 182 Of exceptions to answers generally- 181, 182 Form of exceptions to answers ■ 182 General information on the subject of 183, 184 Not signed may be taken from the files^ 183 How a corporation answers 183, 184 IfTDBX. 557 ANSWEB^ContiTiMei. Page. Amending bill postpones time of filing answer 184 Cannot be filed while defendant is in contempt - 184 Defendant may witbdraw answer and demur, when 184 Married woman answers as feme sole, when 184 Filing answer as cross-bill 184, 185 Stands upon same footing as a cross-bill 185 Bond for costs and issuance of process necessary 185 New parties cannot be brought in by same 185 Cannot be amended to allow defendant to .plead statute of limitations- 194 Amendment of answers, demurrers and pleas ■- — 200-, 202 As evidence ■■ 227 Admissions in the answer — . 305 Pacts stated in considered true, when cause set for hearing on bill and answer 306 Containing matters of demurrer set for argument, when 307 Clerk and Master may extend time in which to answer 309 APPEAL. See Error, Writ of Error, Appeal in the Nature of Writ of Error. Effect of upon the dissolution of an injunction 355 What it carries up 376 When allowed in certain cases 409, 460 Who may take an appeal 514 Execution of an appeal bond or taking the pauper oath 514 . Within what time bond must be given 515 Oath must be taken in court 515 Form of appeal bond 5 What decrees may be appealed from 5' Effect of an appeal ' 517 In annulling the decree and transferring the case to Supreme Court— 517 From a decree dismissing a petition for writ of error coram nobis — 518 From a decree upon a cross bill 519 Prom proceedings had at a term subsequent to the rendition of the final decree -— 519 Practice where appellant fails to prosecute his appeal 527 Effect of an abatement after appeal taken 528 Effect of a voluntary dismissal of an appeal 528 When the case is heard in the Supreme Court 528 How the case is heard in the Supreme Court 529 What kind of a decree may be rendered by- Supreme Court--; 529 Remanding cause for further proof 530 In the nature of a writ of error 530 Effect of in the nature of a writ of error 531 Of an abatement or dismissal thereof 531 Difference in effect of an appeal,- an appeal in the nature of a writ of error and a writ of error -^ ■---■ 534, 535 558 INDEX.' APPEAL IN THE NATURE OP A WRIT OP ERROR. See Appeal, Writ of Error. APPEARANCE AND DEPBNSE. Page. When to be made 86 Who (as respects the condition and character of the defendant) must defend, and how 102 By persons under disability 102-104 Time within which it must be made 104-105 Obtamingtime for 105-106 APPROPRIATION OP PAYMENTS. See payments. ASSIGNMENT. See Assignee. Pendente lite not permitted to affect the rights of others 213 Parties where there has been an assignment pendente lite 30 ASSIGNEE. See Assignment. Pendente lite a party, when 3o file bill without making the creditors parties 30-31 ASSIGNEE IN BANKRUPTCY. Party in certain cases 26 May be enjoined when :- 332 ATTACHMENT. Service by judicial attachment . 4 In lieu of personal service 5 Bills praying — ^by whom granted 62 The chancellor or judge's duty in granting or refusing fiat for 65 Form of bond for 71 Writ of, when tested 76 Form of- . 77 Lien oi 78 General instruction as to writs of . 80 Execution of the writ — duty of oflScer 81 What constitutes levy of (note 3) 81 Upon what property to be levied 81-82 Return of where service is by garnishment 82-83 Grounds for 87 For contempt, to compel answer 90-91 ■Form of, for contempt 91 Decree in certain cases final, when 96-98 Falsity or non-existence of ground of attachment, matter in abatement (note 8) 110 INDEX. 559 ATTACHMENT— Contowed. Page. Irregularity in cannot be relied on in the answer 111 Applied for without notice- l 295 For contempt, procedure for 361 Order of publication, form of 372 Decree upon attachment bond 432 ATTACHMENT FOR CONTEMPT. See Contempt. ATTORNEY. Not parties when 43 Liable for costs for scandal and impertinence 60 Roll of attorneys to be called 374 What matters they shall bring before the court the first term 374 Court may appoint to represent persons under disabihty 396 AWARD. Plea of 1 152 ■ be set aside for fraud, accident or mistake 152 BAIL. See Bonds. Officer to take upon an attachment for contempt, when 464 The court shall specify the amount of the bond 464 BANKS. Charter need not be proven 229, 244 BANKRUPT. Cannot sue, when 8 BANKRUPTCY. U. S. District Court has exclusive jurisdiction of 332, 333 BENEFICIARIES. See Parties. ■ become parties, when 14 Parties to bills in chancery, when '. 20, 21 When they may sue without making other beneficiaries parties 21 When very numerous : 21 Made parties by petition, when 23 When parties to bill to foreclose mortgage 25 560 INDEX. BIDDINGS, APPLICATION TO OPEN. See Opening Biddings. Page. Done by petition 'SIS, 423 Before confirmation : 422 After confirmation 423 May be re-opened, after re-sale,before and after confirmation (note 3) -423 Form of proposition to advance 425 Form of petition to open 425 Party applying for must comply before the same will be opened 427 . Notes of purchaser under to bear date of original sale 427 Form of decree 426 BILLS IN EQUITY. See Pleadings. Suits commenced by ; 2 Bills frequently called petitions- 2 Distinction between and petition 3 Bill to divest and clear up title to land, where filed 4, 5 Bill to enjoin proceedings at law, where filed : 5 Bills against non-residents or persons whose names are unknown 5 Where to file bill when attachment of property is in lieu of personal service- 5 Where to file bill for appointment of an administrator . 5 Where to file bill to sell land to pay debts 5 Where to file bill to foreclose a mortgage (note 1) 5 Where to file bill to transfer the administration of an estate to chancery court 5 Application for dower, where filed 6 Bill for divorce, where filed 6 Bill for partition, where filed 6 Bill to sell property of persons under disability, where filed 6 Bill to enforce payment of legacy or distributive share, where filed 6 Bills, when may be filed 1 Bills subject to demurrer if filed too soon 7 Bills prematurely filed will be abated 7 Bill, who may file 7 Bill to remove cloud • 10 Bill quia timet 10 Bill to declare future rights 11 Against whom bills way be filed 11 Bills, what kind maybe brought 12 Bill for damages to land cannot be sustained, under act of 1877 (note 1)12 Bill 'Will lie for breach of warranty, under the act of 1877 (note 1) 12 Bill for purely legal demand (note 1) '. 12 Who may join in to divest and vest title 15 Bill cannot be filed by parlies having inconsistent and hostile claims— 15 ' Lack of interest in one of several complainants makes bill demurra- ble--: — — — - — . — r 15 INDEX. 561 BILLS IN ECimTY—Contimied. Pgae. Framed to avoid making certain persons parties 16 .Bill demurrable for want of interest in a sole complainant 17 Bill may be filed for complainant and others in certain cases (note 3)-l7 Bills must state that it is filed for the benefit of complainant and others, when 18 May be filed by creditor'for himself and others ~ 18 Bills by members by voluntary association must be in behalf of all parties in interest 18 Maybe filed by single citizen to prevent the sale of school lands ^-19 Bills of peace, when allowed 19 When sustainable; when all the parties are not in privity 19 Bills to enforce execution of trusts, and not make all beneficiaries parties 23 Bill to forclose mortgages, who are parties 24, 25, 2B, 27 Bill to enforce vendor's lien, who are parties 25 Bills to redeem mortgaged property, who are parties. 27, 28, 29 Bills to attach or sell property when the legal and equitable title are in different parties 29 Bill to cancel an instrument, parties to 29 Bill to redeem land sold, parties to 30 Bill for specific, performances, parties to 32, 33 Bill for rescission of contract 32, 33 Bill to have benefit of a charge on an estate, or to set it aside 33 Bill seeking an account, necessary parties 38, 39 Bill of discovery, necessary parties 39, 40 Bill to enforce vendor's lien, parties 40, 42 Bill for subrogation, parties 44 Officers should not be parties, when (notes 1, 2) 44 Bill to remove trustee and appoint another 45 In the name of the State, parties to 46 To test the title of a circuit judge, who are parties 46 To impeach decree, parties 46 Different kind of bills 48 Original bill 48 Bills not original 48, 49 Bills, original praying relief 49 Bills, original not praying relief 50 Bills, the ordinary for relief 50 Of the prayer of a bill 51 Bill of interpleader, nature and requisites of — 55 Bill oi discovery, definition and purposes 56 Creditor's right ot discover}' 'in certain cases 57 Bill, fotm of • 58 Bills, signing and swearing to 60, 61 Bill, sworn to before whom 62 Bills praying attachment, injunction or ne exeat 62 Bill injunct;ion, form of- 64 36 562 INDEX. BILLS IF EQUrrr—ConUHued. Paue. Bill of divorce, foim of 66 Bill to have an administrator appointed, form of ^ 66 Bill to sell property of persons under disability, form of 67 Bill to enforce wife's equity, form of 69 Bill of interpleader, form of 69 Bills, filing same 70 Piling bill commencement of suit il Bill, copy of to be issued with subpnena to answer 75, 76 Bill, a lien without attachment, when 78 Answer as cross-bill 1?4 Cross-bill, nature and use 185 Cross-bills generally- 188 Proper time of filing cross^biil 189 Form of cross-bill 191 Original and cross-bill usually heard together 192 Amendment of- ' ' 194, 198 Amending when plaintiff is a minor 198 To what time amendment of a bill relates 198, 199 Form of amended bill 200 Of bills of revivor and supplement 204, 206 Supplemental bills to supply defects in the fra:me of original bills 206, 207 Supplemental bills to bring before the court matters occurring after the filing of the bill- 208 Supplemental bill to bring new matters before the court 208 Supplemental bill to bring in new parties 209 Supplemental bill by the defendants ' 209 Supplemental bill after decree 209 Frame of supplemental bill 210 Hearing of a supplemental bill 211 Form of a supplemental bill 211 . Original in the nature of a supplemental bill , .212 Frame and nature of an original, in the nature of a supplemental bill-214: Bill of revivor -_214 Frame of bill of revivor 217 Form of a bill of revivor 218 Original bills in the nature ot a bill of revivor 219 Difference between a bill in the nature of a bill of revivor and a bill in the nature of a supplemental bill 220, 221 Frame of a bill in the nature of a bill of revivor 221 Admissions in the bill 237 May be returned to rule day, wheil 301 Bill and answer — cause set for hearing on 305 Form of orderto amend ' 369 Must be amended, when 434 Bill to impeach a decree for fraud 509 Frame of a bill to impeach a decree for fraud 510 Parties to the bill 510 INDEX. 563 BILL OP INTERPLEADER. See Interpleader. BILL OP REVIEW. Page, Nature and objects of 496 What matters are grounds for, generally 497 For error apparent on the face of the decree 498 Party applying for must have been aggrieved 499 On account of new matter 499 On account of new proof 499 When leave to file must be obtained (note 4) 499, 500 At what tipe it may be brought 50o What decree may be reviewed : 500-503 A second bill of review may be brought 501-508 Does not lie in Supreme Court ■ 501 Joinder of matters of error apparent and new matter 503 Effect of a demurrer to a bill of review 503 Motion to take from the files 504 Leave of court to file — when necessary 504 How-obtained 504 What the affidavit must show - 505 Discretionary with the court to grant or refuse leave to file 506 Who may bring it , 506 Who should be made defendants to: 506 In what court to be filed . 507 Prame of a bill of review 507 Form of 507, 508 Who should swear to the same (note 1) 508 .Decree under may be reviewed 501, 508 Defenses to ! 508 BILL OP REVIVOR. See Revivor. Abatement. Of bills of revivor generally 204-206 Bills of revivor 214 In what cases a revivor is proper and necessary 215, 216 Frame of 217, 218 Form of 218 Original bill in the nature of- 219 Difference between a bill in the nature of a bill of revivor and a bill in the nature of a supplemental bill 220 Frame of a bill in the nature of 221 Bills of revivor and supplement 221 May be filed and returnable, when 301 BILL, SUPPLEMENTAL. Of bills supplemental, generally 204-206 Supplemental bills to supply defects in the frame or structure of original bills 206-2 564 INDEX. BILL, SUPPLEMENTAL— CoreM/met?. Page. To bring before the court matter ooourring after thg filing of a bill — 208 Bringing new matters before the court 208, 209 To supply new parties 209 Supplemental bill by defendant 209 After decree 1 209, 2.10 Frame of supplemental bill 210 Hearing of the bill 211 Form of a supplemental bill 211 Original bill in the nature of 212 Frame and nature of an original bill in the nature of a supplemental bill 1 . 214 Difference between a bill in the nature of a bill of revivor and a bill in the nature of a supplemental bill 220 Bills of 'supplement and revivor 221 May be filed and returned, when 301 BILL, CROSS. See Cross-hill, Bills. BILL OP EXCEPTIONS. See Record, Transcript. What is a part of the record without a bill of exceptions and what is not . 376 Parol evidence made a part of the record by bill of 377 Rejected depositions made ,a part of the record by 377, 378 BONA FIDE PURCHASER, DEFENSE. See Purchaser, Innocent Purchaser. BONDS. Payable to public officers, how sued on (note 2) 44, 45 Bond for costs, form of 70, 71 Bond for attachment, form of ^--71 Bond for injunction 72 Form of bond for injunction 73 Form of ne exeat : 83 Ne exeat, to whom payable , 83 Defendant in contempt cannot give a second bond 90 May be reduced by the chancellor 274 Required of an administrator, when 292 Refunding bonds where injunction dissolved 323, 359 Judgment on injunction bond _. 357 Injunction bonds .: 357 Form of a refunding bond 368 Decree upon prosecution bonds 432 Decree upon attachment 432 INDEX. 565 BONDS— Continued. Page. Decree upon replevy and delivery -.-^ 432 Executing appeal bond 514 Form of ' : 516 BOOKS TO BE KEPT BY C. & M. Rule docket 299 Memorandum book, 299 Book in which to note the taking and filing of depositions 299 BOOKS AS EVIDENCE. See Evidence. Legislative journals 243 Copies of printed books, in the State Library 245 Judicial records . 245 Corporation books ' 250 Book accounts —251 BRIEF. Chancellor may demand 3(5 CAPTIONS. Form of to depositions 264 Form of to transcript 524 CAUSE. See Suits in Eqiiity. Will be retained in court, when 7 Who may commence 1 May be revived '. 301 When, how and by whom revived 302 Defense to application to revive 304 Setting for hearing on bill and answer 304 To prepare for hearing 273 Are at issue, when 305 After pro confesso taken— set for hearing at the return term 307 Opening for proof 309 Order of hearing- 374 Manner of hearing 374 Further hearing after interlocutory decree 429 When cause is at an end no further decree can be made in it 430 Consolidation of causes 4Y9 Remanding for further proof 530 COVEAT EMPTOR. See Purchaser. Does not apply to judicial sales made at the instance of parties 431 566 INDEX. CERTIFICATE Page. Of notary public as evidence 250 Form of to depositions 264 CERTIORARI. Writ of 513-514 CHANCELLOR. See Judge. Chancellors and judges act for the whole State (note 4) 62, 63 Power to grant extraordinary process G2, 63 Their duties in granting J?o< (note 4) 62, 63, 65 May make orders and decrees to prepare causes for trial 273, 274 May regulate masters' proceedings ^ 274 May hear appeals from the action of the master 274 May reduce or discharge levy made or bond taken, when 274 Decrees in his breast till court adjourns 437, 438 Incompetency of 465-467 Decree by incompetent chancellor not void 467 Right to interchange 467 Special chancellors 467 Chancellor dejacio 469 CHAMBERS. See Chancellors. Order at may be made by chancellors, when 273-275, 292-294 Chancellor may appoint administrator 292 May dissolve or modify injunctions 293 Appoint commissioners 293 May grant habeas corpus—- 294 Extraordinary process may be granted 294 CHARGE AND DISCHARGE. Where the answer.contains matters of 434 CLAIMS. Of allowing claims where decree reserves all matters not referred — -405 Are b'arred by laches 472 Trust claims within what time must be enforced 474 CLASS. See Parties. One of may sue for himself and others 17-18 CLERK AND MASTER. Must endorse on bills when filed 71 Shall require bond and security for costs 1 71 INDEX. 667 CLERK AND MASTER- Continued. Page. Endorsement of C. & M. only prima facie evidence of when bill is filed J- 71 May appoint commissioner to take bonds, when — , 72 In taking injunction bonds discharges a judicial act 72 ■ To issue subpoena to answer and copy bill — one to each county 75-76 , To enter bill on rule docket when filed 75 May issue attachment for contempt 90-91 May grant time in which to answer 103 May grant an order pro confesso (note B) 9i5 Shall give notice when exceptions to answer is sustained 111 Shall note on the answer when filed and give notice to plaintiffs coun- sel 178 Chancellor may regulate proceedings of 273 Required to keep rule docket 299 Required to keep a memorandum book 299 Required to keep a book in which to note the taking and filing of dep- ositions -r 299 Required to report the amount of money in his office -299 Rules, orders and notices made by him to be kept in a well bound book 1 299 Entering suggestions and proof of death 300 Issuing process to revive in oases of abatement 300 May make order of publication and require defendant to appear at a rule day 304 Orders that may be made by 308-311 Making and setting aside orders pro confesso 308 Appointing guardian ad litem 308 Order for taking depositions 308 May open causes for proof. .—309 Extend time in which to answer 309 May make rule on plaintiff to take step in cause 309 Appoint special commissioner .i 309 Order upon non-resident parties to answer interrogatories 310 Power to administer oaths and take depositions 310 To take probate of the attendance of witnesses 311 To appoint deputy • 311 To perform functions of masters in chancery 311 To issue process, hear exceptions 311 To adjourn court in the absence of chancellors 311 Notice to be given by him of the proceedings in his office 312 Report of upon a decretal order 385 To execute orders of reference without delay . 402 Shall fix time and place and give notice to parties 402 May adjourn matter of reference 403 May reopen the reference, when 403 Examination of the matter of reference where the parties do not at- - tend 403 568 INDEX. CLERK AND MASTSR— Continued. Page. Examination of parties before the master 404 Re-examination of witnesses on reference ^-404 Failure of to comply with the order of reference 404 May be fined and removed from office ,--405 Must conform to the decree of reference-— 405 Duties in regard to receiving and paying out money, generally 405 Misdemeanor to fail to pay over— penalty 406 ^Proceeds of the property of married women 40G May resell property same day of sale 407 Duties as to making reports 408, 409 What his reports should contain 409 Report a nullity when 410 To what court to be made 410 CLERK OF COURT. Not a party to bills in chancery 48 May be enjoined without being made a party 327 CO-DEFENDANTS. Relief between 435 Must resort to cross-bill, when 435 COMMISSION. To take deposition, issuance and form 261 COMMISSIONER. When he may file bill to set aside fraudulent convej'ance 22 To take depositions 252 Has all the powers of a court 263 May inflict penalties 263 To take an account or serve process 293 Clerk and master may appoint 309 Order of reference may be made to 381 Bond required ,-^81 Court may appoint to execute conveyance, when 430 CONDUCT OF CAUSE. See Cause. Suit. CONFIRMATION. See Sales. Decrees. Proper decree upon report of sale 41.') Effect of sale before 415-422 Effect of confirmation 422 Form of decree confirming report of sale and divesting and vesting title 414 INDEX. 5^J9 CONSOLIDATION. OP CAUSES. Page, A mere matter of convenience 479 Effect of -ii^O CONTEMPT. See Attachment. Process of to compel answer 90, 91 Party in contempt cannot answer, plead or demur (note 5) 91, 110 Cannot be heard in the principal cause till he yield obedience to the in- junction (note 5) 91 Form of .attachment for ^ 91 Defendant in contempt cannot answer 184 Procedure by attachment for 361 Enforcing decrees by process of 442 Punishment for 402-464 CONTINUANCE. When and how obtained-- 3(4 CONTRACTS. Joint and several may be enforced against one or more of the parties liable 31 To have effect according to the intention of the parties 1-149 CONVEYANCE. See Deed. Decree. COPY-BILL To be issued, one to each county 75, 76 CORAM NOBIS. See Writs. Applied for by petition 318 In what cases the writ lies 483 When and how obtained 484 When the order granting will operate as a supersedeas 485 Notice of suing out the writ 485 Power of the court to prescribe rules in proceedings upon error coram nohis 486 Assignment of errors and issue thereon 486 Decree upon writ of 487 Form and requisites of the petition 438, 491 The order for 492 Form of the writ 492, 493 570 INDEX. ' CORPORATIONS. Page. How can sue and be sued. 11 Members of parties, w-lien -. 39 Service of process on 84, 85 Answer, how 104 Bank charter need not be proven 229 Town charter must be proven 229, 244 Books of as evidence '• 250 Distringas against 44-7 ■ ,( COSTS. Form of bond for 11 Judgment for , ■ 4.S2 In chancery 455-458 COUNTERPART OP WRIT. How obtained TV COURT DE PAOTO. See De Facto. COURT OP CHANCERY. Acts ordinarily in personam 4 Acts sometimes in rem (note 1) 4 Has power to sell land anywhere in the State, in certain cases (-note l)-5 Jurisdiction increased 12 Have jurisdiction of purely legal demands (note 1) 12 Will see that necessary parties are brought before them 15 Will frame decree to make a finality of all matters, when all the parties are before the court 17 Will protect the interests of parties not properly before the court 22 Will permit a few to sue on behalf of all 23 Will permit beneficiaries to become parties by petition , 23 Things of which they will take judicial knowledge 229 Special term 469 COURTS— FOREIGN. Not deemed courts of record, but as of record 144 COURT, SUPREME. See Supreme Court. COURT, U. S. Cannot enjoin proceedings in a State court 332 A citizen of another State may remove his suit to a U. S. cou:t- 333 Effect of a transfer to a U. S. court . l'M5 • Index. 571 coveeture. See Married Women. Pleas. Page. Plea of— form 158 CREDITOR Of an estate party, when IS May file bill for himself and others 18 When not a party 22-23 When necessary parties 2H Right of discovery in certain cases 57 CRIMINAL PROCEEDINGS. Injunction not granted to stay proceeding in criminal matters — 339 CROSS-BILL. See Bills. When must be answered 111 Filing answer as cross-bill 184 New parties cannot be brought in by answer as cross-bill 185 Regarded as an answer unless bond for. costs be given, and process issue 185 If defendant answers it, he waives the issuance of process ---185 Definition and purpose of a pure cross-bill 185-188 No leave of court necessary to file 188 Of cross-bills generally 188 May bring in new parties to 189 Proper time to file ..— 18ti, 190 Bond for costs must be given, and process issued 191 Form of cross-bill 191 Original and cross-bill heard together 192 Incorporates itself with the original bill 192 CUSTOM. How proved 244 DEATH. See Abatement. Revivor. Entering suggestion and proof of 300 DEBT. Form of decree for and sale of land to pay same, free of redemption-391 Facts necessary to appear to authorize a decree for sale to pay 393 DEBTOR. See Parties. Of an estate a party, when =. ]6 Debtor, of complainant's debtor joined as defendant 16 572 INDEX. * DECREE. See Judj/meni. Page. Will be framed so as to settle all questions when all tlie parties are before the court 17 May for parties by virtual representation 22 Bill to impeach — parties ; 46 May be made saving the rights of parties — when-i 46 Proper decree when plea or demurrer is sustained for non-joinder (notel) ' - 48 Proper decree in bill of interpleader j 55 Eifect of without pro confesso 95 Effect of final decrees, and setting aside final decrees, on judgments pro confesso taken without personal service 96-99 "When taken without personal service are final, when ; and may be set aside, when 96-99 How to set aside decree "taken without personal service 98-99 Decree without pei-sonal service conveys good title when 99 Former decree in equity, plea of 147, 148 Binds infants 148 To prepare cause for hearing 27.S General nature of and distinction between interlocutory and final de- crees : 378 Decree or order of reference, when necessary 379-380 Erroneous to grant before legal questions are settled 380 Of reference for the protection of absent parties ^ 380 Of reference to supply defect in evidence 381 Nature of interlocutory decrees and decretal orders 382-383 Facts may be briefly recited in a decree 382-430 Form of decretal order 383-385 Form of decree confirming report of the master and ordering the sale of land ^ 387 Form of decree for sale of land of persons under disability — *- 387 Form of decree for account in favor of legatee against executor 388 Form of decree for general account between parties 388 Form of decree for an account upon, and declaration of lien for note for specific articles 389 Form of decree for an account upon the rescissions of a contract for the sale of real estate , 389 Form of decree for debt, and sale of laud attached, in bar of the right of redemption 391 Form of decree for a partition of lands 392 Form of decree for reference as to the necessity of sale of land for partition 392 Facts necessary to appear to authorize a decree for the sale of prop erty 393 In case of a sale to satisfy a debt — 393 In coiirse of administration where the personal assets have been ex- hausted 393 . INDEX. 573 imCKEE—Continned. In the administration of insolvent estates 394 In case of sale for partition :— 395 In case of sale of property of persons under disability -f 395 Shall embody reports and decision of the court 409 Form of a decree allowing soine, and disallowing some exceptions 412 Form of decree confirming report of sale and divesting and vesting title ■ 414 Proper decree upon confirmation of report of sale-—' 415 Form of decree opening biddings ' 4?G Further hearing after interlocutory decree 429 Decrees where property is to be sold, or title transferred or a release or acquittance is to be executed 430 Effect of a decree divesting and vesting title 430-431 When decree operates as a conveyance j 431 Upon prosecution, attachment, replevy and delivery bonds 432 For the sale of property free fi-om redemption 433 Must follow pleadings and proof 434' Cannot be founded on proof alone 434 Between co-defendants 435 Forms of final decrees, generally 435 Rectifying decrees 437 Cannot be corrected after adjournment of court, when 43'7-438 Entering nunc pro tunc 438-440 Reviving decrees _. 440-441 Lien of 441-442 Lien attaches to after acquired lands 442 Lien for purchase money of land sold by decree 442 Enforcement o£ . 442 By process of contempt 442 By sequestration 444 Other modes of execution 444 Writ enjoining a party to perform a decree 44ti On note for purchase money 459-460 Form of upon notes for purchase money and for a sale of land with- out barring the equity of redemption 460 Decree by incompetent chancellor not void 467 Effect of by a defacto court 469 Decree upon a writ of error coram nobis 457 Decrees and orders that may be re-heard 491 574 INDEX. DECREE— Continued. Page. Decree under bill of review may be reviewed 501. 508 Impeaching for fraud 509 Supersedeas of 510 What decrees may be appealed from 516 "What kind may be made by the Supreme Court 529 DEEDS. See Decrees. Recitals in, as evidence -* — 249 Of the clerk and master — effect of L.4S1 Copies of as evidence 247 Court may direct clerk or commissioner to make-- 430 DE FACTO. Effect of a decree by a court de facto 469 DEFECTS. In judgments, how corrected 438 DEFENSE. See Appearance and Defense. Who (as respects tbe condition and character of the defendant) must make defense, and how-_ . 102 By persons under disability 102, 104 Time within which defense must be made 104-105 Obtaining further time to make 105-106 Of one defendant not binding on another 106 Different modes of 107-109 Time and order of making different kinds 109-112 The adoption of any one defense is a waiver of those preceding it 111 To application to revive 304 DEFENDANT. See Parties. Who may be made 11 Compelled to answer process of contempt 90, 91 Cannot answer while in contempt 90 91 One not bound by the defense of another 106 May make rule on plaintiff to prosecute his suit 164 May file supplemental bill, when 209 Shall have reasonable time in which to pay decree before sale of his property -• 1 393 INDEX. 575 DELIVERY BOND. See Bonds. t DEMURRER. Page. Lies to bill filed prematurely 1 For want of jurisdiction will not lie, except in certain cases 12 Want of interest in one of several complainants, cause of 15 "Want of interest in sole complainant, ground of —17 Does not lie to bill to impeach a decree, when 46 When it lies for non-joinder and mis-joinder of parties 46, 47, 48 Proper decree sustaining for non-joinder (note 1) 48 None can be received while defendant is in contempt 91 Not permitted, when • 106 Defense by ' 107 Overruled by plea or answer, when 111 Of the different grounds of demurrer llS-116 General or special ^ , : 116 Several defendants ma,y join-. . 116 Does not lie to a plea 116 Some general principles concerning . 116 May be to whole bill or to a part 115 Demurrer to whole bill, and good only as to a part, will be overruled- 115 May be relied on in the answer 116 For formal defects not allowed 116 Required to be special now 117 Must not be too extensive or too limited 117 Lies to a bill wanting in equity, although the causes be not technically sufficient . 117 Must be founded on some point of law 117 Separate demurrers to separate paragraphs of a bill, bad 117 Bad if it does not designate the part of the bill it applies to 118 Demurrer for want of equity, admits the jurisdiction 118 Lapse of time and stale demand, ground of 118 Defendant, improperly a party, may demur 118 If notes mentioned in the bill are in the record, not demurrable 118 Defendant cannot confer j urisdiction by failing to demur 118 Will be overruled where bill can possibly be sustained 119 Where demurrer, for want of parties, is sustained, bill lies over for amendment 119 May be made' after motion to dismiss is overruled 119 Demurrer embodied in answer must be acted on -before the hearing 119 What a demurrer admits 119-120 Requisites a.s to the frame of a demurrer ^ 120 What is a speaking demurrer 120 Speaking demurrer fatal in law 120 Answer cannot be in aid of demurrer 120 Demurrer must be signed by counsel, or the defendant 121 Form of demurrer , .121-122 576 iNDHx. DBMUERERS— ConWnMcd. Page. Demui-ring either to the discovery or relief, and answering to the other . 122-123 To discovery, because it subjects defendant to a penalty or forfeit- ure - '- ^-124-125' To discovery because the defendant has equal rights with the ijlaintifif-126 To discovery on account of the immateriality of discovery sought 126 To discovery on the ground of professional confidence \2& To discovery because defendant has no interest 127 To discovery for want of privity of title between plaintiff' and defend- ant 127 To discovery because it relates only to the defendant's case 127-128 Effect of allowing a demurrer 129-130 Effect of overruling a demurrer 130 When a second demurrer will be allowed 130 Statute of limitation may be raised by demurrer, when l4l Plea of other statutes raised by demurrer 143 Plea of former judgment may be relied on by demurrer or in answer- 147 Plea of a release may be raised by demurrer 149 A stated or settled account may be relied on by demurrer 152 May withdraw answer and demur, when • 184 Amendments of demurrers 200-202 May be filed after answer, when 201 Shall be set for argument, when 306, 374 When incorporated in answer, shall be set for argument, when 307 Where set for argument 307 Effect of, to bill of review 503 DEPOSITIONS. See Evidence. When necessary to have an order and commission taken 252 When may be taken 253 Before suit is brought 253 After suit is brought but before issue 251 After issue joined 254 ' Of a female, how taken (note 3) 254 Where an infant is interested, will be suppressed, when 254 Deposition of parties to the suit 255 Taken upon notice and by consent 256 Necessity of notice 256 Form and I'equis'tes of notice 257 Service and.proof of the notice 257 Upon whom to be served '■ 258 Notice in case of non-resident parties 258 Taken uj/on interrogatories 258 By whom depositions may be taken 261 Form of commission to take depositions 261 INDEX. 577 DEPOSITIONS— Cora^mnei. Page. How attendance of witness procured 262 Form and authentication of 264 Enveloping and transmitting 266 Piling and opening 266 Exceptions to 267 Effect of allowing exceptions to, by the clerk and master 269 Betaking depositions 269 Depositions taken in another cause 270 Reading depositions 271 Party who takes not bound to use 271 Are a part o'f the record i 272-376 May be taken pending an appeal and exceptions to an answer 305 Order for taking by clerk and master 308 Of non-resident parties on interrogatories 309 Reading and declining to read 375, 376, 377 How rejected depositions are made a part of the record 377, 378 Exceptions to in Supreme Court 528 DEPUTY. Clerk and master may appoint a deputy ■• 311. DEVISES. Executory, to persons not in being, may be barred, when and how 22 DISABILITY. See Infants, Idiots and Lunatics. Married Women. To maintain suits in equity, what constitutes 7 DISBURSEMENT. See Funds. Money. DISCOVERY. See Bill. Bill of, necessary parties 39, 40 Bill of discovery, definition and purpose 56 Creditors right of in certain cases 57 Of demurrers to , 122, 128 Demurrer to because it subjects the defendant to a penalty or forfeit- ure 124,125 Demurrer to because defendant has equal rights with the plaintiff 126 Demurrer to on account of immateriality ... 126 Demurrer to because a ruatter of professional confidence 126 - Demurrer to because defendant has no interestj 127 37 " 578 INDEX. BiaCOYE'RY— Continued. Page. Demurrer to be'cause there is no privity of title 12Y Demurrer to becauseit relates to the delendant's case 127 Proper manner of taking objectioris-to matters of discovery 128, 129 What discovery the plaintiff is entitled to 239, 240, 241 Defendant's rights in matters of discovery 239, 241 DISMISSALS. See Motions. DISMISSAL OF APPEAL. See Appeal. Effect of a voluntary dismissal 528 Effect of dismissal of appeal in the^nature of a writ of error 531 DISMISSAL OP BILL. See Bills. Motions. Of motion to dismiss '. 163 Of motions to dismiss for causes arising subsequently to the filing of the bill ^ 163 Motions to dismiss by plaintiff or by consent 165 Motions to dismiss generally 166 DISTRIBUTEE OR LEGATEE. May file bill to enforce collection of legacy 6 May sue, when 9, 14 DISTRINGAS. Against a corporation 447 How issued 448 DISSOLUTION. See Injunctions. DISTRICTS AND DIVISIONS. Difference between explained 6, 469 DIV-ESTING AND VESTING. See Title. Decree. DIVORCE. Bill for, where filed 6 Form of bill for divorce 66 Publication where defendant is a convict 88 ind"ex. 579 ■B1Y0B.CE— Continued. Page. Bill for may be heard without service of process or publication, when -88 Effect of ^ro confesso in divorce cases 228 Bill tor cannot be revived, when 302 Form of decree for ,-436 DOCKET. Rule docket must be kept 299 Trial docket shall show in what causes references have been made — 404 DOCUMENTS. In the possession of a party will be ordered to be produced 339 - Impeached for'fraud may be ordered to be brought into court 241 Production of documents in possession of persons not parties to the suit 241 Proof of documents produced on notice — 241, 242 Effect of an order to produce 242 Proof of documents generally 242 In offices of heads of departments 245 DOWER. Widow entitled to in mortgaged property (note 5) 25 Right of may be enforced against whom 27 When dower has not been allotted, widow a necessary party 36 Cannot be defeated by fraudulent conveyance 153 A sequestration against land will not bind 454 ELECTION BETWEEN REMEDIBS.- Motion to require plaintiff to elect 363 Cases of special election 364 Time and manner of procuring order to elect 365 Effect of an order to elect 365 ELECTION BETWEEN RIGHTS. See Election Between Remedies. ENFORCEMENT OF DECREES. See Decrees. Enforcing decrees 442, 444 By process of contempt 442 By sequestration 44 Other modes of execution 444 ENROLLMENT. See Decrees. Effect of orders and decrees -437 580 INDEX. EQUITY. Page. Form of bill to enforce wife's equity 68 Arising against purchasers after sale 460 Arising between purchasers after sale 460 ERROR. See Appeal. Writ of Error. Different modes of correcting ■ 483 What releases 483 What forms a part of the record 483 ESTATE. Parties by representation of interest in 21 Subsequent, vested or contingent, bound by decree, when 22 Effect of sale before confirmation 415-422 Effect of confirmation — 422 EVIDENCE. See Depositions. Endorsement on bill by clerk and master onlj prima facie evidence of time bill was filed , 71 Rules of evidence, and the method of obtaining and takjng in gen- eral 224, 225 Testimony to be in writing 224 Parol testimony allowed, when 225 Amount of evidence required in support of a bill when denied by answer ^ 225, 226 Exceptions to the rule 225 Allegations and proof must correspond 226 What facts are in issue 226 The answer as evidence 227 Sources of evidence ' 228 Things of which the court will take judicial knowledge— • 229, 231 Bank charter need not be given in evidence --229 Charter of a town must, be proven 229 Different kinds of presumptive evidence 231 Conclusive presumptions 231-233 Disputable presumptions of law 233-236 Presumptions of facts 236 Admissions of parties in pleadings and agreements 237 Admissions in the bill 237 Admissions in the answer 237-238 Admissions by agreement of parties 239 When documents in possession of a party will be ordered to be pro- duced 239 Part of a record cannot be read without reading the whole 238 Production of documents in possession of persons not parties to the suit 241 INDEX. 581 EVIDENCE— CoTifonMerf. Page. Production of documents produced on notice 241 Effect of an order to produce -—242 Proof of exhibits and other documents generally 212 Legislative proceedings 243 Journals ^ 243 Statutes, resolutions and orders 243 Executive acts 244 Documents in oflSces of heads of departments 245 Copies of printed books in State library 245 Judicial records 245 Of the State 245 "Of sister States and of the United States 245 Of foreign countries^ 245 Proceedings before justices of the peace 246 Foreign laws -^ -244 Office papers and records 247 Contents of papers and records proved by parol testimony, when 247 Registered writings 248,249 Recitals in a deed 249 A receipt as evidence 250 Settlements of guardians and administrators 250 Certificate of a notary public ^ — 250 Corporation books 250 Accounts from another county or State 251 _ Time of filing documentary evidence 251 Inspection in aid of proof 252 Original record may be read in evidence in court where suit is pend- ing, and it is not necessary to file a transcript (note 1) 252 When necessary to have an order to take depositions 252 When depositions may be taken 253 Deposition of female, how taken (note 3) 254 Deposition of parties to a suit 255 Taking depositions by consent and upon notice 256 Form and requisites of notice- 257 Upon whom to be served 258 Notice in case of non-resident parties 258 Taking deposition on interrogatories 258 See Depositions. How parol testimony is made part of the record 377 Reference to supply defect in evidence 381 Character of required to sell property of persons under disability— -396 EXAMINATION. See Witness. Of witnesses 263 Witness once examined may be re-examined, when 269 Of party pro in teresse suo where property claimed by paramount title-452 , Of a cause in Supreme Court 534 582 INDEX. EXAMINATION OF PARTIES BY THE MASTER. Page. See Clerk and Master. EXCEPTIONS. See Depositions. To depositions 267, 268 Effect of allowing to depositions _ 269 To deposition in Supreme Court 528 EXCEPTIONS TO ANSWER. See Answer. Exceptions to answers 178-181 Of exceptions to answers generally , 181 Miist be in writing and signed by counsel 179 May be amended 180, 182 Form of exceptions 182 EXCEPTIONS TO MASTER'S REPORT. See Report. Any person interested may except to 408 What the e?cceptions must show 409 When same shall be filed 409 Form ot 412 Form of decree allowing some and disallowing others 412 Form of decree disposing of 414 EXCEPTION TO READING EVIDENCE' AND EXHIBITS. See Evidence. EXECUTION. Effect of injunction upon ^ 341,342,355 Issue without scire facias 440 Form of .445 What judgments and decrees may be enforced by 444 Issues against what property 444 How levied 454 Court may suspend or supersede 508 EXECUTOR. See Administrator. Of another State or county can sue and be sued, when 38 EXECUTOR DE SON TORT. Suit may be revived against, when 217 INDEX. 583 EXHIBIT. Page. Proof of generally 242 FACT. See Issve of Fad and Trial by Jury. PEES. Court to fix for counsel appointed for infants, when ■ 396 FEME COVERT. See Married Women. FIAT. Form of for injunction ^ 1 -. —65 Mode of granting 65 Where the object of the bill is to enjoin » money demand 65 The chancellor or judge's duty in granting or refusing 65 FIERI FACIAS. See Execution. PINE. Court may fine the clerk and master,. when 404 FOREIGN LAWS. ■^ How proved : 244 FOREIGN GOVERNMENT. May sue, when 8 FORMA PAUPERIS. In lieu of bonds for costs, injunctions and attachments 71 Who may and who may not sue in fvrma pauperis 73, 74 Form of the oath 73 FORMS. Of bills in chancery 58 Of aflBdavit to bill 62 Of a bill of injunction 64 Of fiat for injunction 65 Of a bill of divorce 66 Of a bill for an administrator 66 Of a bill to sell property of persons under disability ■ 67 Of bill to enforce wife's eq,tiity 68 Of bill of interpleader 69 584 INDEX. FOHUS—Coniimted. Page Of attachmeut bond ■— , 71 Of a cost bond 71 Of bond for injunction to enjoin a money demand after judgment 73 Of a bond where suit at law is enjoined before judgment 73 Of pauper's oath ■ 73 lOf subpoena to answer 76 Of an attachment 77 Of an injunction to restrain the enforcement of a judgment 78 Of the writ ne exeat 80 General direction as to form of writs of attachment, injunction and ne exeat '. 80 Of garnishment ' 82 Of ne exeat bail bond 83 Of order of publication 89 Ot attachment for contempt 91 Of demurrer 121-122 Of statute of frauds 158 Of plea of infancy to a bill with a next friend 158 Of plea of coverture of complainant 158 Of plea of another suit pending 158 Of an answer 173 Of particular answers 174, 175 Of affidavit to answer 176 Of exceptions to answer 182 Of cross-bill 191 Of amended bill: 200 Of a supplemental bill 211 Of a bill of revivor 213 Of commission to take depositions , . 261 Of deposition , 264 Of notice to dissolve injunction 296 Of scire facias to revive 303 Of petition to be made a party 321 Of various interlocutory orders 366 Of orders pro confesso — '. 1 1-366 Of order setting aside ^ro confesso 367 Of order appointing guardian ad litem 367 Of order appointing administrator 1 367 Of order dissolving an injunction . 368 Of a refunding bond 368 Of order granting leave to amend bill » 369 Of order permitting stranger to become a party 369 Of order for scire facias upon suggestion of death 370 Of order abating a suit — - , 370 Of order appointing a receiver 371 Of order of publication for creditors to file claims 372 Of order of publication in attachment cases 372 INDEX. 585 FORMS — Continued. Page. Of deeretal orders ^ 383 Of-an order for an account , 3B3 Of an order as to the propriety of selling the property of a person -under disability _- 384 Of a report on a decretal order for an account 385 Of a report upon a reference as to propriety of selling land of persons under disability ^ -.386 Forms of interlocutory decrees 387 Of decree confirming report of the master, and ordering sale of land to pay liabilities of an estate 387 Of decree ordering sale of land of persons under disability 387 Of a decree for an account in favOr of legatee against executor 388 Of a decree for general account between parties 388 Of decree for an account upon, and declaration of lien for note, for specific articles-- 389 Of decree for an account upon the rescission of a contract 389 Of decree for debt, and sale of land attached, in bar of the right of re- demption 391 Of decree for partition of lands 392 Of reference as to necessity of sale' for partition 392 Of a report of sale * 410 Of reports in cases of account 410 Of exceptions to a report 1 412 Of a decree allowing some and disallowing some exceptions 412 Of decree disposing of exceptions 414 Of decree confirming report of sale, divesting and vesting title 414 Of propositions to advance the biddings 425 Of petition to open the biddings 425 Of decree opening biddings 426 Of final decrees generally 435 Of a decree for a divorce 436 Of a decree as to the application of a fund 436 Of a decree for specific performance 437 Of an execution 445 Of writ pf possession 446 Of an injunction requiring the performance of a decree-- 447 Of distringas against a corporation . x 447 Of writ of sequestration 449 Of a decree upon purchase notes, and for sale of land without barring the right of redemption 1 460 -Of petition- for writ of enm coram nobis > 488-491 Of notice for writ of error coram nobis 489 Of a writ of error coram nobis 492, 493, 494 Of petition for a new hearing 496 Of arbill of revi&w-— — -. .— . — 507 Of an appeal bond 516 Of transcript ^ 524 586 INDEX. FRAUDS. Page. Pleas of the statutes of- 142, 143 Form of plea of 158 Docuijnents impeached for may be ordered to be brought into court— 241 Impeaching decree for 509 FRAUDULENT C0NVP:;YANCE. See Deeds. Decrees. FUND. See Moneys. Duties of the master as to receiving and paying out 405 Of married T7omen, how paid out 406 Of infants and persons of unsound minds 407 Form of decree for application of 436 Court will protect from rapacity of purchaser 461 GARNISHMENT. / Service of process by 82 Form of : 82 How returned . 82 Execution by garnishment 455 GUARDIAN. May sue and defend for ward , 10 Subject to the control of the court, when 10 Entitled to collect money recovered by judgment 10 Settlements prma/acie, correct —250 Shall not purchase, when 397 Shall receive moneys of his ward 407 GUARDIAN AD LITEM. Defends suit only 10 The court will appoint, when 11, 311 Clerk and master may appoint 308 Appointment — duties and powers 311, 312 May waive process on himself, but not on his wards 312 Form of order appointing 367 HABEAS CORPUS. Granted, when 294 Applied for by petition 318 Action of judge in case of, not subject to revision 464 INDEX. 587 HEARING. Page. See Cause. Suit in Chancery. HEARSAY. See Evidence. An answer founded upon not sufficient to . remove complainant's equity ^^--350 HEIR. Pioper party to a bill to foreclose mortgage, -when 25, 26, 27 When a necessary party to redeem mortgaged land 21. 28 Necessary party, when M-'AS When party to bill to enforce vendor's lien 40-42 When a party to a bill seeking an account ^ 48 Must be before the court when his land is sold 394 HUSBAND AND WIFE. See Married Women. Shall be joined as plaintiffs, when 43 The husband of a female plaintiff may make himself a party, when and how 303 IDIOTS AND LUNATICS. Sue by their guardians 9 Form of bill to sell property of 67 Service of process on 84-85 How they defend a suit 102-104 Form of answer by 175 Effect oi pro confesso against 226 Proceeds of sale of property of 407 IMPEACHMENT. Of chancellor -.467 Of a decree for fraud 509 Of a witness 375 IMPERTINENCE. See Pleadings. Impertinence and scandal will be expunged from the pleadings 53, 54 Time for referring pleadings for 54 IMPRISONMENT. See Contempt. 588 INDEX. INCOMPETENCY. See Chancellors. Page. Of Chancellors 464-467 INCUMBRANCE. iSee Liens. Lis Pendens: Bills. INFANT. May sue and defend by his regular guardian 10, 11 Infants to be defendants, when 12 Joining them as plaintiffs is error, when 12 Safer rule to make them defendants (note 3) 13 Form of bill to sell property of 67 Must be served with process (note 1) 81 Service of propess on 84, 85 How they defend suit 102-104 Must answer in person, when: : 102, 396 Bound by decree in equity 148 Infancy form of plea 158 Form of answer by 174 Name may be stricken out as plaintiff and be made a defendant 199 Effect oi pro' confesso against 228 Decree to sell property of -, 395 Proceeds of sale of 407 INJUNCTION. Bills praying, by whom granted — 62 Bill of, form of--- 64 If the application is refused, no other application shall be granted except by the court in which the bill is filed 65 If refused the bill may still be filed and the application renewed to the court 65 If refused, the chancellor endorses his refusal on the bill 65 Bond for, nature and requisites ; 72 Form of bond 73 Form of an injunction 78-447 General instruction as to writs of 80 Service of 81 Dissolving and modifying injunction 293 Five days' notice to be given-... 293 Appearance waives notice 293 Applied for without notice 295 Form of notice to' dissolve 1 296 Affidavits may be heard to resist application to dissolve 322 Refunding bond required 323 Motions for, where parties are already before the court 324 INDEX. 589 INJUNCTION— Conhnwerf. Page. Motions for, against parties not before the court 326-328 In favor of or against persons not parties to the suit 328 In what cases an injunction will be granted generally 329 To stay sale of land mortgaged for the payment of loaned money 330 To stay legal proceedings 331 To stay legal proceedings in a foreign court 331 To stay legal proceedings in a Federal court or court of a sister State 332 335 Not granted to stay proceedings in a court of chancery or of a court exercising chancery powers conferred by statute 335 Not to compel the performance of an act 337 Not granted to restrain a party from selling without disclosing the ex- istence of a vendor's lien 339 Not granted to stay proceedings in a criminal matter 339 Successive applications for an injunction 339-341 Bill must state that it is the first application for 339 Where second application is made for 339, 340 Effect of an injunction 341 Must be obeyed, though erroneously issued 341 Acts in personmn upon the defendant 1 342 At what time it takes effect 348 Defendant bound by, if he knows its contents, though not served 343 Effect in releasing errors 344 Releases errors in judgments 344 But does not release clerical errors 344 Effect of a transfer of the case to the U. S. Circuit Court 345 Motion to discharge or dissolve an injunction 345 .Dismissal of suit discharges 345 When the motion to dissolve may be made 346 Motion to modify may be made, when ' 347 Motion to dissolve before answer 347 The motion admits the allegations in the bill to Be true 347 A ground of demurrer may be relied on to dissolve 348 Motion to dissolve on answer generally 348-353 Motion to dissolve upon answer where oath is waived and upon an- swer of a corporation 353 Motion to dissolve where only part of the defendants have answered— 343 Effect of a dissolution 355 Effect of an appeal upon the dissolution of an injunction 355 Reviving injunctions 356 Injunction bond, and judgment on upon dissolution 357 Refunding bouds 359 Violation of injunctions- 360-361 Remedy for violation of an injunction 361 Procedure by attachment for contempt 361-363 Form of order dissolving 368 How an injunction to enforce a decree is served 455 590 INDEX. INNOCENCE. Page. The presumption of 233 INNOCENT PURCHASER. See Purchaser. Plea of, generally 152-157 What must be averred 153 What constitutes, (note 7) 154 Form of plea 160 Take title superior to creditor, when -342 Gets a good title though a sale is made in violation of an injunction — 343 INSOLVENCY. See. Administration. INSOLVENT ESTATE. See Administration. I Suggestion of insolvency and publication operates as an injunction when .S27 What facts must appear to authorize sale of land in case of 394, (note 1) '. 395 INTERCHANGE. See Chancellors. Of chancellors 467 INTEREST. To be at six per cent, when decree is affirmed by Supreme Court 529 INTERLOCUTORY APPLICATIONS. See Motions. Petitions. General nature and manner of making 315-316 When a petition is necessary and proper 316-319 INTERPLEADER, BILL OF. See Bills. Nature and requisites 55 Form of bill . gg INTERPRETERS. May be used in answering for foreigners 178 To take depositions 263 INDEX. 591 INTERROGATORIES. Page. IRREGULARITIES IN PROCEEDINGS. See Interlocutory Applications. Motions. Petitions. Decrees. IRRELEVANCY. Irrelevant matter in a bill will not effect right to relief 434 ISSUE. See Cause. Suit. Jury. On pleas when and how taken 135, 136 What facts are in issue—! 226 None upon interlocutory applications 322 ISSUE OF PACT AND TRIAL BY JURY. See Jury. Provisions regulating i__ 398 Former practice 399 Effect of the verdict 40.0, 401 JUDGE. See Chancellors. Bill to try his title — parties 46 Acts for the whole State, (note 4) 62 Power and duty in granting fiat, (note 2) 62," 63, 65 JUDGMENT. See Decrees. Plea of former judgment must show what 144, 145, 146, 147 Plea of former judgment may be relied on in the answer or by de- murrer 147 Of magistrates, how proved 246 Injunction against releases errors 344 But not of a clerical error 344 Upon injunction bond 357 May be corrected when 437, 438 Entering nunc pro tunc 438-440 JUDGMENT PRO C0NFE8S0. See Pro Confesso. When can be taken 92. 93 A matter of discretion with the ctJurt 93 592 TNDBX. JUDGMENT PRO CO'SF'ESSO— Continued. Page. May be taken when party in contempt 93 Effect of- 93,94 Effect of where against one of several joint defendants (note 1) 94 Effect of decree without 95 Of setting same aside, what necessary, and how done 95, 96 No proof necessary after talking in certain cases (note 1) 95 Setting aside not to delay the hearing 96 When set aside with leave to answer, no other defense can be made, (note. 4) 96 Effect of final decree, and setting aside final decrees, founded on judgments ^ro confesso, without personal service of process 96-99 Maybe taken after plea or demurrer is overruled, unless . defendant answer '~ — ^^- 111 JUDICIAL NOTICE. Of what things the court will take judicial-notice 229 JUDICIAL RECORDS. How proved 245 JURISDICTION. As to amount involved 3 As to theamourit involved (note 4) 3 As to place of bringing suit^ 4 As to subject matter of suit — ^ L 12 Of chancery courts increased 12 Act increasing jurisdiction of chancery court, constitutional 12 Objections to, when taken 109 Objections to, how taken 110 Cannot be conferred by failing to demur — 118 Of Supreme Court to grant supersedeas 296 JURY. Issue of tact and trial by 398 Former practice 399 Effect of verdict 400, 401 JUSTICES OF THE PEACE. Proceedings before, how proved 246 ,LACHES. See Limitations. Bars action, when-—: 1 Doctrine of- 472, 474 INDEX. 598 LAND. See Sale. Purchaser. Redemption. Court may sell anywhere in the-State, when-i 431 How the court may decree a conveyance 431 LAWS POEEIGN. See Foreign Laws. LBGAOY. See Distributee and Legatee. Bill to enforce payment of 6 LEGATEE. Residuary legatee when not a necessary party , 20 When a party in administration cases 34-38 LEGISLATURE. Proceedings of, how proved 243 LEVY. See Execution. Attachment. Of writ of attachment, what constitutes, (note 3) , 81 Duty of ofiScer levying attachment , 81 By service of garnishment 83 May be discharged by the chancellor when 274 LIEN. See Purchase Money. Lien of attachments 78 Of bill when there is no attachment, when, (note 1) 78 Of a decree in chancery . 441-442 Attaches to after acquired lands 442 For purchase money of land sold by decree 442 By lis pendens 471 LIMITATIONS. See Laches. Stale Claims. Bars action if not commenced in time _ 7 Plea of the statute of- 141, 142 May be relied on in plea or answer 141 Plea of the statute of, must be supported by answer 142 Plea of the statute of must be sworn to ■ 142 A great lapse of time a defense without the aid of a statute 157 38 59-1: INDEX. LIMITATIONS— CoraimMci. Page. Defendant cannot amend answer to plead it 194- Doctrine ot laches and stale claims 472-474 Independent of any statute in courts of equity — 473 There is no arbitrary period fixed 474 LIS PENDENS. See Lien. Doctrine of 471-472 Is notice only in relation to property which is the subject of the suit— 472 LOCAL JURISDICTION. See Bills in Equity. Jurisdiction. LUNATICS. See Idiots and Lunatics. MARRIED WOMEN. Cannot ordinarily sue 8 May sue by next friend 8 Wife may sue and be sued when 9 Wife may sue jointly with her husband, when, (note 1). May sue for homestead, when 10 May file bill quia timet,hy next friend — '. 11 May file bill by next friend to declare future rights U How they defend suits 11 Not error to join with husbands as plaintiffs, when 13 When a party to bill in chancery 43 Form of bill to sell property of : 67 Form of bill to enforce wife's equity 68 How they answer and defend suits . 103-104 Answers as feme sole, when 184 Decree to sell property of 395 Proceeds of sale of property of 406-407 MASTER IN CHANCERY. See Clerk and Master. MECHANIC'S. LIEN. See Parties. Who are parties to bills .to enforce 25 MEMORANDUM BOOK. Clerk and Master must keep 299 INDEX. 595- MINUTES. ■ See Record. PagB". Reading of the minutes ^ 374 MISJOINDER. May be raised by demurrer, plea or answer 46, 47, 48 Objection for, when taken 46 Ground of demurrer (note 1) 48 Motion to dismiss for 163 MISTAKE. See Error. Correction of in orders and decrees 437 MONEYS. See Funds. Receiving and paying out money, generally 405 Belonging to married women 1 406 Of infants and persons of unsound mind 407 Court will protect from rapacity of purchaser or other parties-^ 461 MORTGAGE. See Parties. To foreclose, who are necessary parties 24, 25, 26 27 Persons having legal or equitable interest in, parties ' 25 Parties to a bill to redeem mortgaged property 27, 28 29 MOTIONS. See Interlocutory Applications. Suit commenced by 2 Motions u.sually interlocutory 3 Cannot be entertained if the court has divested itself of the cause and parties ; 3 Motions against officers and their sureties based on proceedings which - have been had in court , ■ 3 To prepare causes for hearing ; 273 For interlocutory orders—., . 295 To revive suit, when 302 303 Of motions to become parties to suits < . 323 Of repeating motions 323 For an injunction against parties before the court 324-325 For an injunction against parties not before the court- 326-328 To discharge or dissolve an injunction 345-347 596 INDEX. MOTIONS— Continued. Page. To dissolve an injunetion before answer 347 To dissolve an injunction upon answer generally --: 348-353 To dissolve injunction upon answer where oath is waived 353 To dissolve injunction where only part of the defendants have an- swered -• : 353 To require plaintiff to elect between remedies- 363 MOTIONS TO DISMISS. Defense by 107 Grounds for 163 For causes arising after the filing of the bill 163-165 Because plaintiff fails to prosecute his suit 164 By the plaintiff, or by consent— 165, 166 By motions to dismiss generally 166 MOTION TO TAKE PLEADING OFF FILE. Because not signed by counsel -. 60 Causes for motion to take pleadings from the file 323-324 To take bill of review from the file --504 MULTIFARIOUSNESS. What is, and what is not (note 1) 52, 53 Objections for, how taken 107, 108, 112 Motion to dismiss for- ' 163 MUNICIPAL CORPORATIONS. See Corporation. NB EXEAT. Bills praying, by whom granted 62 Bill for, what it must state 63 Bill for, must be sworn to 63 How prayed for — 64 Can the writ now be granted in Tennessee ? (note 1) 64 Must fix amount of bail 65 Definition and purposes , 79 Form of the writ 80 General instruction as to writs of— 80 Service of the writ, how done 83 Return of the writ 83 Porin of bail to be taken . 83 Applied for without notice 295 INDEX. 597 NEW TRIAL. . .Not. more than two shall be granted to same party upon an issue of fact —— -— 399 NEXT FRIEND. Must be sui juris (note 6) 8 Must give bond for costs (note6) - 8 Cannot file bill without, consent of feme covert 9 May bring suit for infant without his consent 9 May bring suit for imbecile 9 When court will direct inquiry as to 10 Shall not purchase, when 397 NOTARY rUBLIC. Certificate of as evidence 250 NON-JOINDER OP PARTIES. May be relied on by demurrer, plea or answer 46, 47, 48 Motions to dismiss for 163 NON-RESIDENTS. Where to file bills against 1 A certain class defendants, when (note 4) 16 May appear and defend, when 97,98, 99, 110 NOTE. Where bidding has been re-opened, must bear date of original sale-^- -427 Decrees on for purchase money 459, 460 NOTICE. To take depositions 256 Form and requisite of 257 Service and proof of 257 Upon whom to be served 258 In case of non-resident parties 258 Of appHcation to dissolve or modify injunction 293 Of application for extraordinary process 294 Of motion for interlocutory order 295 Of application for commissioner to take an account 295 Of application for receiver 295 Of application for habeas corpus, when : 295 What is reasonable notice 296 Form of to dissolve an injunction ,- — __ — 296 Notice to be given by the clerk and master of proceedings in his office-312 598 TNDEX. ISOTICE— Continued. Page. Of time and place of taking an account 402 , Service of the notice 403 Of suing our a writ of error coram nobis — 485 Form of notice for writ of error coram nobis 489 NUNC PRO TUNC. Entering decrees 438-440 OATH. Who may administer 62 Form of to bill 62 Form of pauper oath 73 Who can and who cannot take ^ 73, 74 Who may administer to an answer 176 Order to file answer without : 177 OFFICER. Motions against, on what based- 3 . Parties to suits, when (note 1, 2) 44 Bonds payable to how sued on (note 2) 44, 45 Duty in executing attachment and other writs — : 81 OFFICER DE FACTO. Acts of valid, when 469 OPENING BIDDINGS. See Biddings. May be done by petition 318-423 Before confirmation . 422 After confirmation 423 May be reopened after resale, before and after confirmation (note 3)— 423 Form of proposition to advance 425 Form of petition to open 425 Persons applying to reopen biddings required to comply before same will be opened .^^., 427 Notes to bear date of the original sale 427 Form of decree 426 OPENING REFERENCE. See Reference. OPINIONS. Once proved to exist presumed to continue 236 INDEX. 599 ORDERS. , Page. To prepare cause for hearing 273 Forms of interlocutory orders—- ,366 Pro confesso 366 Setting aside pro confesso 1 367 Appointing guardian ad litem 367 Appointing an administrator 367 Dissolving an injunction 368 Granting leave to amend bill 369 Permitting stranger to become a party 369 For scire facias upon suggestion of death 370 For abating a suit 370 Of revivor 370 Of order appointing a receiver 371 Of publication to creditors to file claims ^^372 Order of publication in attachment oases 372 Of reference, whtn necessary --379 Form of decretal order 383, 385 Supersedeas of 510 ORDER AT CHAMBERS. See Orders. Chambers. ORDERS IN THE OFFICE OF THE CLERK AND MASTER. See Clerk and Master. Orders that may be made by the clerk and master 308-311 Making and setting aside _pro confesso 308 Appointing guardian ad litem 308 Orders for taking depositions 308 Opening causes for proof 308 Other acts : 308 Extending time in which to answer 308 Rule on plaintiff to take step in cause 308 Appointment of special commissioner 309 Order upon non-residents to answer interrogatories 310 To administer oa,ths and take depositions 310 • To appoint a deputy — ; 311 To take probate of the attendance of witnesses 311 To perform the functions of a master in chancery - 311 To issue process, hear exceptions, etc ■- 311 To adjourn court in the absence of the chancellor 311 ORDER OF REFERENCE. See Reference. 600 INDKX. PARTIES. . Page. General rule as to 13, 14 Persons interested in the object of a suit, necessary 13 Lack of, makes sales void, when 14 Rule as to, prescribed by courts of equity themselves 14 Beneficiaries, having an apparent interest, may become parties 14, 15 Parties complainant must have a community of interest 15 Cannot join who have hostile claims 15 Want of interest in one of .several complainants, cause of demurrer- 15 Persons apparently having an interest, may be made parties 15 Parties, difference between necessary and proper 15 Properly plaintiffs, maybe made defendants, when 15 Necessity of making certain persons parties avoided by frame of bill- 16 Persons consequentially interested, not necessary parties 16 Persons having no privity of interest, parties, when 16 Persons claiming under paramount title not necessary parties 16 Persons claiming under prior titles not parlies, when 16 Mere scintilla jurisin plaintiff sufficient IV When unknown to complainant IT When parties are too numerous 17 One person may sue for himself and others (note 3) 17 Parties, where numerous, what required 18-19 Party may sue fortimself and others 18-19 Residuary legatee, when not a necessary party 20 General rule as to trustees and beneficiaries 20-21 Persons seemingly have no interest are sometimes made parties prop- erly , 21 Parties by representation of interest 21-22 Virtual representation of parties 22 Parties not properly before the court will be protected by the court — 22 Creditor, when not necessary ' 22-23 Trustee, when alone a party 23 A few may sue on behalf of all, when 23 Parties who sue for themselves and others, should be in the attitude to properly represent them — '- 23 Beneficiaries may become parties, when 23 Incidentally connected with the relief sought 24 Parties having prior or subsequent liens 24 Mortgagors and mortgagees parties, when 24, 25, 26, 27 Mortgagors and mortgagees not parties, when 124, 25, 26, 27 Parties to bill to enforce vendor's lien 25 Parties to a bill to enforce mechanic's lien : 25 Parties to bill to foreclose mortgage 24, 25, 26, 27 All persons having interest in the equity of redemption necessary parties 26 Assignee in bankruptcy party when 26 Administrator of dead mortgagor party, when 26, 27 Heirs necessary parties to bill to foreclose mortgage, when 27 INDEX. 60] PARTIES— Co?ii!mM«d Page Parties to a bill to redeem mortgaged property 27, 28,29 Parties, where property is sought to be attached or sold, the legal and equitable title being in different parties 29 Parties to a bill to cancel an instrument 29 Parties to redeem land that has been sold '- 30 Parties where there has been an assigniaent pendente lite-. 30 Who are, where there has been an assignment for the benefit of cred- itors 30 Parties where there are joint interests, claims or liabilities 31, 32 Parties to a bill for specific performance 32, 33 Parties to a bill for rescission of contract ^ 32, 33 Parties to a bill have benefit of a charge on an estate or to set it aside -i 33 Where there has been an assignment of a chose in action 34 In case of administration 34—38 To a bill seeking an account-1 38, 39 To bills of discovery 1 ^1 39, 40 To a bill to enforce vendor's lien 40-42 Holders of notes secured by vendor's lien parties to a bill to enforce, (note 1) 42 Parties in cases of agency , 42, 43 Agents, when necessary parties- , 42, 43 An attorney not, when 43 When married woman is a party 43 Clerk of court not 43 Public officers, when (note 1, 2) 44 To bill for subrogation 44 To bill to remove trustee and appoint another 45 Who are parties to a bill 45 Persons not parties against whom no pi-ocess is prayed 45 To a bill in the name of the State -- 46 To test title of circuit judge 46 To bill to impeach decree 46 Joining parties who have no interest, eflfect of 46, 47, 48 Failing to join necessary parties, effect of 46, 47, 48 Misjoinder of, ground of demurrer, when (note 1) 48 New parties cannot be brought in by answer as cross-bill 185 Persons may file petition to be made parties 317 When a stranger may become a party by petition 319-320 Form of petition, to be made a party 321 Motions to be made parties 323 Eeference for the protection of absentees and those under disability-381 PARTITION. Bill to partition land where, filed : 6 Form of decree for , 392 Form of decree for reference as to the necessity of sale for partition-392 In case of sale for partition 395 602 - INDEX. PARTNERS. Page. All of them must be joined as parties 32, 39 If one die pending a suit no revivor is necessary (note 4) 21Y PAUPER OATH. See Oath. Form of 73 Who can and who cannot take 73, 74 In lieu of appeal bond 514 When taken 515 PAYMENTS. Appropriation of, generally 474 In cases of running accounts between parties 477 Running accounts with a firm before and after a change of members-478 PERFORMANCE. See Specific Performance. PETITION. See Interlocutory Apvlications. Suit commenced by 2 Seldom used as an original proceeding 8 Will not be entertained after case at an end 3 Beneficiaries may file petition to be made parties, when 23 Of swearing to, and signing -' 60 May be used to get new parties before the court 316-319 Interlocutory applications- made by 316 Bond for costs required 317 Writ of error coram nohis applied for 318 Stranger may be made a party by 318 Petition to be made a party to a cause 321 Signing and swearing to 322 No process issues upon 322 Form of to open biddings 425 Form of for writ of error coram nolns 488-491 Form of for a new hearing 496 PLEAS. Ground of plea in abatement to bring suit in wrong county 4 Non-joinder and misjoinder of parties — when pleaded 1 47 Proper decree sustaining for non-joinder, (note 1) 48 Plea cannot be received while defendant is in contempt 91 Considered an answer, when 106 IXDEX. 603 PLEAS— Continued. . Page. Defense by plea in bar 107 May be set down for argument = 116 Cannot be demurred to -" 116 Definition of pleas 131 Of pleas in general 131-133 Affirmative plea 131 Negative plea 131 Negative pleas must be supported by answers 132 Anomalous plea 132 What matter may be pleaded 132 May be to different parts of same bill 132, 133 Several matters may be pleadeil 132 Double plea not allowed without order of court 132 When good and when bad 133 The course of procedure on a plea 133, 134 Setting down plea for argument 134 Where pleas is required to be sworn to 135 Allowing pleas and taking issue on ; --135 Ordering plea tostand for answer 136 A plea allowed to stand for an answer is deemed a sufficient answer— 136 Overruling pleas ^ 137 AiAending pleas and pleading de novo 137 Of'the different kind of pleas 137 To the jurisdiction 137 To the person of the plaintiff or defendant , 137 To the bill . 137 In bar of the suit , 137 Difference in effect'of plea in abatement and plea in bar--- 138 Causes of pleas in abatement 138, and (note 1) 139 Further division of pleas in abatement 139, 140 Pleas in bar classified and explained 140 When plea in abatement must be filed and verified 141 Plea of the statute of limitations 141, 142 Plea of the statute of limitations must be supported by answer, when-142 Pleas of statute of limitations must be sworn to (note 2) 142 Plea of the statute of frauds '■ 142-143 Plea of other statutes 144 Plea of former judgment — what it must show (note 1)— 144, 145, 146 147 Plea of former judgment may be relied on in answer or by demur- rer * 147 Plea of a former decree in equity — requisites 147, 148 • Plea of release 148, 149 Plea of release may be relied on in demurrer or answer 149 Pleas of stated accounts, and settled accounts 150-152 Plea of stated or settled account must be supported by answer 151 Plea of an award 152 Plea of innocent purchaser, generally 152-157 604 INDEX. PLEAS.— Continued. Page. What must be averred ^ 153 Plea of title in the defendant 157 Plea of length of time and adverse possession 157 Form of a plea of another suit pending 158 Form of plea of infancy to a bill filed without a next friend 168 Form of plea of coverture of the complainant 158 Form of plea of the statute of frauds 158 Suggestions as to forms of ' 159 Porrn of plea of innocent purchaser ^160 Of swearing to pleas 160-163 Suggestions as to swearing to pleas 161 How to determine whether a plea shall be sworn to 162 Pleas supported by answer must be sworn to — 162 May be amended, when 200-202 Amendments to answers under bath allowed with great caution 201 A release may be put in issue by an amended answer 202 Shall be set for argument when 306, 374 Where set for argument ■ — 307 PLEA IN ABATEMENT. Ground of to bring suit in wrong county 4 Will lie to bill prematurely filed- — .._- ^ 7 Serving process on Sunday ground of (note 1) 86 Defense by 107 Falsity of ground of attachment (note 8) .• 110 Cause of abatement (note 8) HO Grounds of plea in abatement-- 138, and (note 1) 139 Further division of pleas in abatement 139, 140 When it must be filed ^-. 141 Must be verified '- 141, 160 PLEADINGS. See Bill. Answers. Must be free from scandal and impertinence 53, 54 Time of referring for scandal and impertinence 54 Amendment of in general 193, 194 To what time the amendment relates 198, 199 Bond and process upoh filing amended bill 199 Amendment of demurrers, pleas and answers 200-202 What facts are in issue . 226 Decree must follow 434 POSSESSION. See Writs. Will not be disturbed by courts of equity after a great lapse of time— 157 Writ of cannot be awarded, when 430 Putting purchaser into 445 Form of writ of 446 INDEX. 605 POSTAGE. Page. When allowed as costs 457 PRACTICE. Rules of- 464-465, 536-544 PRAYER. Of tlie prayer of a bill 51 Decisions on the subject cited (note 4) 51 Granting relief beyond the prayer 434 PRESUMPTIONS. See Evidence. Different kinds of presumptive evidence 231 Conclusive presumptions 231 Disputable presumptions of law 233 Presumptions of facts ^ 236 PROBATE. Of the attendance of witnesses 311 PRO CONFESSO. Maybe taken, when 92, 93 Discretionary with the court 93 May be taken when party is in contempt 93 Effect of- . 93, 94 Effect of when against one of several joint defendants (note 1) 94 Effect of decree without 95 Setting aside, what necessary 95^ 96 Setting aside must not delay the hearing 96 Effect of final decrees, and setting aside final decrees, taken on judg- ments ^ro confesso, without personal service 96, 99 May be taken after plea or demurrer is overruled, unless defendant answer 111 Effect oi pro confesso as evidence 228 Cause set for hearing after jjro confesso 307 Effects of, againts infants and persons of unsound mind 307 Made and set aside by clerk and master 308 Form of the order 366 Form of the order setting aside > 387 PROCESS. The service of 81-86 How and upon whom served (note 1)-; , 81 Service on infants, lunatics, corporations and agents 84, 85 606 INDEX PROCESS— CoM^muerf. Pagk. Service of by garnishment 82 Service of ne exeat 83 Issued and served on Sunday, when — '--' 85 When returnable 86 Returnable to rule day, when __ 86 When personal service is dispensed with 86-88 When necessary to dispense with personal process 88 Service by publication 88, 89 Proscess of contempt 90, 91 Decrees taken without personal service set aside, -vvhen and how 96-99 Process and bond on filing amended bill 199 Extraordinary process examined by the court in vacation 274 Court may appoint commissioners to serve 293 Granting extraordinary process 294 No process issues upon a -petition 322 Manner of executing final process 454 PRODUCTION OF DOCUMENTS. See Documents. PRO INTERESSE SUO. Application of an examination, how made 452 , Purpose of the examination 452, 453 An infant may be examined by guardian 353 PROSECUTION BOND. See Bonds. PROTEST. As evidence of notice of dishonor 250 PUBLIC ACTS. See Documents. Of officers de facto valid, when 469 PUBLICATION. See Process. Service of process by-., 4 . In lieu of personal service 88, 89 When the order may be made 89 Form and requisites of the publication 89 Evidence of the pubhcation 88, 89 Clerk and master may make, when 304 For creditors to file claims, form of 372 In attachment cases, form of 372 INDEX. 607 PUBLIC OFFICER. ' ■ Page, See Officer; PUIS DARRIEN CONTINUANCE. See Pleas. Cross-bill. Matter arising after plea or answer cannot be pleaded 132 Facts necessary to be put in issue by bill in the nature of 201 Form of a cross-bill in the nature of a plea puis darrien continu- ance -r 191 PUNISHMENT. See Contempt. ■ For contempt 462-464 PURCHASE. See Purchaser. PURCHASER. See Innocent Purchaser. Sale. May apply to be relieved of his purchase by petition 318 Acquires no equity without a divestiture and vestiture of title 415 Statutes of before and after confirmation 415-422 The rights and liabilities of purchasers and their securities (note l)--423 Mode by which he may apply to have a sale set aside (note 1) 424 Where biddings opened must comply before biddings are opened 427 Notes to bear date of original sale , 427 Not necessary to revive suit against a purchaser's representative 441 Putting him into possession 445 Become parties to suits by their purchase 459 Equities arising against a purchaser or between purchasers after sale-461 PURCHASE MONEY. See Sale. Decree. Lieu to secure 442 Decrees on notes for 459 RECEIPT. See Evidence. As evidence of release 150 As evidence 250 RECEIVERS. Appointing 275 Who has the power to appoint : 275 608 INDEX. RECEIVERS— C'o)i«m(ecZ. Page. Shall give bpnd i- 275 What a receiver is 275 Prayer in the bill for, not necessary 276 A receiver an officer of the court 277-292 In what cases a receiver will be appointed 277-281 Who may be a receiver , 282 Notice of application for a receiver 295 Time and mode of applying for the appointment of a receiver — 283t285 Effect and consequences of the appointment 285 Is appointed on behalf of all parties 285 Who procure the order to put a receiver in possession 286 Possession of a tenant will not be disturbed 287 • Contempt of court to attempt to disturb possession of 287 Is protected against suits at law ' 287 Remedy where a party has been injured by the appointment of 287 Powers and duties of- 288-291 To act under the directions of the court 288 To report and settle onee a year (note 2) 288 Must act under orders of the court 288 Has no right to bring or defend a suit 289 Liabilities of 291-292 Must not deposit money to his individual credit 291 Property in his hands is in custodia leyis 292 Compensation of 292 Form of order appointing 371 RECORD. See Bill oj Exceptions. Transcript. What is a part of without a bill of exceptions, and what is not 376 What it embraces 377 What forms a part of 483 Transcript of 520 RECORDS. As evidence 247 Judicial 245 Original may be read as evidence in court where suit pending (note 1) 251 Depositions are a part of 272 REDEMPTION, EQUITY OP. All persons having interest in, are necessary parties 26, 27, 28 Parties to a bill to redeem mortgaged property 27, 28 Parties to redeem land sold 30 Does not exist, when 415 Decree for sale cutting off redemption 433 Only land sold for debt subject to 434 INDEX. 609 EE-EXAMINATION. Page. See Witness. Deposition. REPEEENCE TO THE MASTER. Decree or order of, when necessary 379 Erroneous to allow before settling legal questions 380 For the protection of absent parties, and those under disability 380 To supply defect in evidence . 381 May be made to a special- commissioner , 381 Bond required 381 Form of, to take account 383 Form of, as to the propriety of selling property of a person under disability 384 Form of report L- 385 Form of report upon a reference to the propriety of selHng property of persons under disability '. 386 Report of the master upon a decretal order 385 To be executed without delay 402 • be adjourned by the master 403 ■ be re-opened 1 403 Where the parties do not attend- 403 Re-examination of witnesses on reference 404 Failure of master to comply with the order of 404 Trial docket shall show in what cases order may have been made 404 The master must conform to decree of reference 405 Duties of parties in matters of reference 405 Purpose of the reference , 413 REFUNDING BOND. See Bonds. REGISTERED WRITINGS. '. writings as evidence 248, 249 REGISTRATION. Effect of 248 I Of a decree or clerk's deed , 531 Of a decree or judgment from another county 441 To bind equitable assets -—442 RE-HEARING. , Applied for by petition 318 Causes for which a re-hearing will be granted tSD What decrees and orders may be re-heard 491 Time of applying for a re-hearing 494 Form and requisites of a petition for 'laS, 496 39 tilO INDEX. ■RELEASE. P Plea of ] May be relied on in demurrer or answer ^-1 KELIEP. See Bills. 'i^ Prayer. Demurrer to relief sought 122-123 Must correspond with prater -Jl-U Granting beyond the prayer of the bill i'.i-t Between co-defendants -i'M REMANDING A CAUSE. For further proof of 530 REMAINDERMAN. See Parties. May file billto remove cloud 10 REPLEVY BONDS. See Bonds. Death or destruction of property no defense to liability on 433 REPLICATION. None after answer allowed 305 • REPORT OP THE MASTER. Of the master upon a decretal order 385 Form of, directing an account , Hgo B'orm of a report upon refprence as to the propriety of sellinn; prop- erty of persons under disabitity 3S(i Making reports and fihng exceptions thereto " 408, 409 What the report should contain 40!) If the master report upon matter not referred to him it is a nullity 410 To what term to be made 410 Form of report of sale 410 Form of report in cases of account 410 Form of exceptions to report of . 412 Proper decree upon confirmation of report of sale 415 RESCISSION OF CONTRACTS. See Decrees. Form of decree upon rescission of a contract 389 INDEX. fill REVERSAL OP DBCRKE. Page. See Kill 0/ Review. REVIEW. REVIVOR. See Bill 0/ Review. See Abatement. Bills of L ,— — L 214 In what cases necessary and proper 215 By and against whom suits may he revived 216, 217 To revive in case ,of abatement by death or marriage 300 Bills .of may be filed at any time; and propess returned to a rule day-301 What suits maybe revived — , 301 Doctrine in certain cases discussed 302 When, how and by whom suits may be revived 302 By motion ^ 1-302,303 By scire facias ^. — , 303 Defense to the application to revive 304 Reviving injunctions 356 Form of order of revivor 370 Not necessai'y against a purchaser's representative 441, 459 In cases where.there has been a sequestration 453, 454 REVIVING DECREES. Of reviving decrees 440-441 ROLL OP COUNSEL. Shall be called by clerk and master, when 374 RULES. What is rule day 298 Rule docket, clerk required to keep 299 Defendant may make rule on plaintiff to take step in cause 163, 164 Suggestion and proof a death of a party at rules 300 Process maybe made returnable and suit revived on a "rule'day 301 Order of publication may require defendant to appear on a rule day-304 RULES OF PRACTICE. ' See Practice. Rules of 4 -464-465 Old rules -*-536-541 Revised rules t 541--544 612 INDEX. SALES IN CHANCEEY. Pagk. Cannot be ordered till amount of debt isestablished by decree 393 A reasonable time shall be given defendant to pay money in court be- fore sale 393 Facts necessary to authorize sale of property 393 In case of sale to pay debts 393 In course of administration where personal assets have been ex- hausted -■ 393 In the administration of insolvent estates 394 In case of sale for partition : 395 Of property of persons under disability 395 Master may re-sell same day of sale, when 407 Form of report of sale 410 Form of decree . co nfirming report of sale, and divesting and vesting title ^ : 414 Proper decree upon confirmation of report of sale 415 Effect of sale before confirmation 415 When perfected (note 1) -' 416, 41S Effect of confirmatioH 422 Status of purchaser before and after confirmation 415 .422 Opening biddings before confirmation —422 Opening biddings after confirmation 423 Mode of applying to set aside sale and open biddings 423 Mode by which purchaser may apply to set sale aside 424 Court may order sale of land anywhere in the State, when 431 Conveyance Of titles, how done 430-431 Sale at the voluntary instance of parties is but a mode of conveyance, effect of 431 Decree for sale of property free from redemption 433 Equities arising against a purchaser or between purchasers after sale-461 SCANDAL AND IMPERTINENCE. See Impertinence. Pleadings. Will be expunged fi?om pleadings—, 53, 54 Time for referring pleadings for 54 Attorney liable for costs for inserting in pleadings 60 SCIRE FACIAS. See Revivor. To revive on death of defendant or marriage of a female 300 To revive suit H02, 303 Form of scire facias 303 Defense to the application to revive 304 Not necessary when 355 Fotm of order for 370 When necessary and when not 440-441 INDEX. 613 SEALS. Page. Abolished except as to corporations 148 SECURITY. See Bonds. On bonds for costs — liabilities 432 Order of their liability . 432 On purchase notes become parties \ 459 SEQUESTRATION. Enforcing decrees by 444 Writ of after distringas 448 Writ of 448 Form of the writ 449 Powers and dutiesof sequestrators — 449-451 Effect of a sequestration 451 Manner in which parties claiming, by title paramount, the property seized, must apply for redress : 451 Contempt of court to disturb sequestrators 451-453- Abateinent and revivor in cases in which there is a sequestration— 453, 454 SERVICE OP PROCESS AND NOTICES. See Process. Of process 81-86 Subpoena to answer 81 Upon whom process must be served and how (note 1) 81 On infants, lunatics, corporations and agents of absent principals--84, 85 By garnishment 82 Of ne exeatwvit 83 On Sunday, when allowed '. ; 85 When personal service is dispensed with : 86-88 By publication , 88,89 Decrees taken with personal service may be set aside — when and how done , 96-99 SETTLEMENTS. Of guardians and administrators as evidence : 250 In writing effect of as evidence — 149 614 INDEX. SETTING CAUSE FOR HEARING. Page. Setting cause for hearing 304 On bill and answer = 305 SIGNATURE. To bills necessary 60 Order to file answer without 111 To petition 321 SPECIAL CHANCELLOR. See Chancellor. When and how appointed 467 SPECIAL COMMISSIONER. See Commissioner. Order of reference may be made to -381 SPECIAL TERMS OF COURT. Special terms 468-469 Is a distinct term and not a continuation of a former 469 SPECIFIC PERFORMANCE. Form of decree for-- 437 STALE CLAIMS. See Litniiations. Doctrine of stale claims and laches —472-474 STATE OR' GOVERNMENT. Divided into districts or divisions 6 STATUTES. Act of 1877 construed , 12 How pleaded ^141-144 How proved 243 r. INDEX. 1315 STAY OP PROCEEDINGS. Page. See Injunctions. Stay of proceedings 192 STRANGER. May become a party, when and how — '.19-320 SUBROGATION. Parties to bills for i4, 45 SUBPOENA. Issuance of subpcena to answer 75 One to each county 76 Shall be accompanied by one copy bill for each county 76 Form of- 76 When tested 76 How counterpart is issued 77 Service of 81 How and upon whom served (note 1) i