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CORNELL UNIVERSITY LIBRARY 
 
 924 085 503 864 
 
Cornell University 
 Library 
 
 The original of tliis bool< is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924085503864 
 
A MANUAL 
 
 EQUITY PLEADING 
 
 AND PRACTICE 
 
 BY 
 
 ,B. M. THOMPSON, 
 
 Jay Professor of Law in Michigan Uniyer^-ity. 
 
 ANN ARBOR: 
 
 The Inland Press, 
 
 1897. 
 
6^^'^^^ 
 
 Entered according to Act of Congress in the year 1897, by 
 
 BRADLEY M. THOMPSON 
 
 In Ihe office of the Librarian of Congress, at Washington, D. C, 
 
TO THE STUDENTS OF THE LAW DEPARTMENT OF 
 MICHIGAN UNIVERSITY. 
 
 The following manual is intended simply as an 
 introduction to the -study of Equity Pleading and 
 Practice, and to the course of lectures delivered upon 
 that subject. The manual has been divided into 
 lectures for the purpose of indicating the ground 
 which a particular lecture will cover. The student 
 is requested to master the printed synopsis before 
 attending a given lecture. The lectures will not be 
 confined to the synopsis, and the student will be 
 quizzed and examined both upon the manual and 
 the lectures actually delivered. The court rules are 
 to be considered a part of the manual, and are to 
 be studied in connection with the lectures. 
 
 The suit in equity contained in this manual is a 
 synopsis of "Barton's Suit in Equity," and the 
 student is advised to consult that work. The first 
 two lectures following the Suit in Equity are taken 
 very largely from the opening chapters of the second 
 
IV INTRODUCTORY. 
 
 part of Lube's equity pleading. I have not aimed 
 to be original but have endeavored to assist the 
 student in mastering some of the difficulties of 
 equity pleading. 
 
 B. M. Thompson. 
 
 TJnivehsitt of Michigan, 
 March 1, 1897. 
 
A SUIT IN EQUITY. 
 
 The jurisprudence of the United States, and of many 
 of the several States, is divided into two departments, 
 Common Law and Equity. These two departments 
 grew up side by side in England and came to us as 
 a part of our fatherland inheritance. The powers of 
 the High Court of Chancery in England, at the time 
 of the revolution, except in so far as they have been 
 modified since by statute, or an inapplicable to our 
 institutions, are still in force in the United States. 
 
 Before entemg upon the subject of equity pleading, 
 we shall call attention to the method of administer- 
 ing justice in a Court of Chancery, by giWng a sketch 
 ^of a suit in equity from its commencement to its close 
 under the present practice in those States where equity 
 practice has been kept distinct from common law 
 practice. 
 
 COMMENCEMENT OF A SUIT IN EQUITY. 
 
 A suit in equity is commenced by filing in tlie court 
 having jurisdiction of the subject matter and of the 
 parties, a bill, or petition, setting forth in a full, clear 
 and methodical manner, the facts and circumstances- 
 upon which the complainant bases his claim for aid 
 and relief, and praying that he may be given such 
 
2 A SUIT IN EQUITY. 
 
 specific relief, as he believes he is entitled to or such 
 general relief as is agreeable to equity and good con- 
 science. The bill, or petition, in equity takes tlie 
 place of a declaration at common law. The party who 
 commences the suit is called the complainant, or plain- 
 tiff, and the party against whom the suit is brought 
 is called the defendant. After a suit has been com- 
 menced it is referred to by its title, the names of the 
 parties, e. q. John Doe vs. Richard Roe; V or VS is a 
 contraction for versus, against. 
 
 PARTS OF A BILL. 
 
 The form of a bill in equity is not du,e to any sta- 
 tute, but to the practice of the court and has been 
 established by long usage. It was formally supposed 
 that a bill should consist of nine parts, and, although 
 at no time were they all essential, and some of them 
 have been superceded by the rules of court, it is still 
 desirable that the student should be familiar with the 
 old division. Those parts consisted of: i. Address; 
 2. Introduction; 3. Premises or stating part; 4. Con- 
 federating part; 5. Charging part; 6. Clause of Juris- 
 diction; 7. Interrogating part; 8. Prayer for relief; 9. 
 Prayer for process. 
 
 The following is an example of an early form of a 
 bill in equity filed by an infant for the purpose of com- 
 pelling the executors of the last will and testament 
 of a deceased person to pay over, for the benefit of the 
 complainant, the amount of a specific legacy given 
 him in such will. For convenience we have desig- 
 nated by number the several parts of the bill. 
 
A SUIT IN EQUITY. 6 
 
 FORM OF AN ORIGINAL. BILL.' 
 
 I. — The Address of the Bill. 
 
 To the Right Honorable Edward Lord Thurlow, 
 Baron Thurlow, of Ashfield, in the county of Suffolk, 
 Lord High Chancellor of Great Britain. 
 2. — The Introduction. 
 
 Humbly complaining, showeth unto your Lord- 
 ship, your orator, James Willis (son of John V/illis, 
 of Babbington, in the county of Essex), an infant 
 under the age of 21 years, to-wit, of the age of six 
 years or thereabouts, by his said father, and next 
 friend. 
 
 3. — The Premises. 
 
 That, Thomas Atkins, Esq., of Taunton, of the 
 county of Somerset, being seized and possessed of a 
 considerable real and personal estate, did, on or 
 about the fourth day of March, in the year of our 
 Lord, 1743, duly make and publish his last will and 
 testament, in writing; and thereby amongst other 
 things devised and bequeathed as follows (here are 
 recited such parts of the will as constituted the be- 
 quest, which was of eight hundred pounds): Ana 
 that the said testator departed this life, on or about 
 the 20th day of December, 1748, and upon or soon 
 after the death of the said testator, to-wit, on or about 
 the 8th day of January, 1750, the said Edward Willis 
 and William Willis duly proved the said will in the 
 perogative court of the Archbishop of Canterbury, 
 and took upon themselves the burden and execution 
 
 •Barton Suit In Equity, 57. 
 
4 A SUIT IN EQUITY. 
 
 thereof; and accordingly possessed themselves of all 
 the said testator's real and personal estate, goods, 
 chatties, and effects, to the amount of fifteen hundred 
 pounds and upward. And your orator further show- 
 eth, that he has, by his said father and next friend, 
 • at various times, since his said legacy of eight hun- 
 dred pounds, became due and payable, applied to the 
 said Edward Willis and William Willis, requesting 
 them to pay the same for the benefit of your orator; 
 and your orator well hoped th^t they would have 
 complied with such request, as in conscience and 
 equity they ought to have done. 
 
 4. — The Confederacy. 
 
 But now, so it is, may it please your Lordship, that 
 the said Edward Willis and William Willis, combin- 
 ing and confederating together, to and with divers 
 other persons, as yet unknown to your orator (but 
 whose names, your orator prays, when discovered, 
 may be inserted herein, as defendants and parties to 
 this suit, with proper and sufficient words to charge 
 them with the premises), in order to oppress and in- 
 jure your orator do absolutely refuse to pay, or se- 
 cure for your orator's benefit, the legacy of eight hun- 
 <ired pounds aforesaid, or any part thereof; for reason 
 whereof, the said confederates sometimes allege and 
 petend that the testator made no such will, nor any 
 other will to the effect aforesaid; and at other times 
 they admit such will to have been made by such tes- 
 tator, and that they proved the same, and possessed 
 themselves of his real and personal estate — ^but then 
 
A SUIT IN EQUITY. 5 
 
 they pretend that the same was very small and in- 
 considerable, and by no means sufficient to pay and 
 satisfy the said testator's debt, legacies and funeral 
 expenses; and that they have applied and disposed 
 of the same toward satisfaction thereof; and at the 
 same time the said confederates refuse to discover 
 and set forth what such real and personal estate 
 really was, or the particulars, thereof, or how much 
 thereof they have so applied, and to whom, and for 
 what, or how the same has been disposed of particu- 
 larly. 
 
 5. — Charging Part. 
 
 Whereas, your orator chargeth the truth to be, 
 that the said testator died possessed of such real and 
 personal estate, to the full value" aforesaid; and that 
 the same was much more than sufficient to pay all 
 the just debts, legacies, and funeral expenses of the 
 •said testator; and that the said confederates, or one 
 of them, have possessed and converted the same to 
 their own uses, without making any satisfaction to 
 your orator for his said legacy. All which actings, 
 pretences, and doings of the said confederates are 
 contrary to equity, and tend to the manifest injury 
 and oppresion of your orator. ' 
 
 6. — Clause of Jurisdiction. ( (ry^^^^^^^-^ 
 
 In tender consideration whereof, and for that your 
 orator is remediless by the strict rules of the common 
 law, and relievable only in a court of equity, where 
 matters of this nature are properly cognizable. 
 
b A SUIT IN EQUITY. 
 
 7. — Interrogating Part. 
 To the end, therefore, that the said confederates 
 may, respectfully, full, true, direct, and perfect . an- 
 swer make upon their respective corporal oaths, ac- 
 cording to their respective knowledge, information, 
 and belief, to all and singular the charges and mat- 
 ters aforesaid — as fully in every respect as if the same 
 were here again repeated, and they thereunto particu- 
 larly interrogated; and more especially, that they may 
 respectfully set forth and discover, according to the 
 -best of their knowledge,, information, and belief, 
 whether the said testator, Thomas Atkins, duly made 
 and published such last will and testament in writing 
 of such date, and of such purport and eflfect aforesaid ; 
 and thereby bequeathed to your orator such legacy 
 of eight hundred pounds aforesaid, or any other, and 
 what last will and testament, or any other, and what 
 date, and to any other, and what purport and effect, 
 particularly; and that they may produce the same, or 
 the probate thereof, to this honorable court, as often 
 as there shall be occasion; and whether by such will, 
 or any other, and what will, the said testator appointed 
 any, and what other, executor by name; and when 
 said testator died, and whether he revoked or altered 
 said will before his death, and when, before whom, 
 and in what manner; and whether the said confeder- 
 ates, or one of them, and which of them, proved the 
 said will, and when, and in what court; and that they 
 may respectfully set forth whether your orator, by 
 his said father, and next friend, hath not several times 
 since his said legacy became due and payable, applied 
 
A SUIT IN EQUITY. 7 
 
 to them to have the same paid, or secured for his bene- 
 fit, to that purpose and effect, or how otherwise; and 
 whether the said confederates, or one, and which of 
 theln, refused and neglected, to comply with such re- 
 quests, and for what reasons respectfully, and whether 
 such refusals was grounded on the pretences herein- 
 oefore charged, or any, and which of them, or any 
 other, and what pretences particularly. And that the 
 said confederates may admit assets of the said testator, 
 came to their hands sufficient to satisfy your orator's 
 said legacy and subject to the payment thereof. And 
 that, etc. (requiring a full statement of effects came to 
 their hands, and the disposals thereof, etc., that the 
 plaintiff may show he has a right to the payment of 
 his legacy, in case it should be controverted). 
 
 8.— Prayer for Relief. c-iU^-'i^'^ J^ 
 
 And that the said confederates may be compelled, 
 by a decree of this honorable court, to pay your ora- 
 tor's said legacy of eight hundred pounds, and that 
 the same may be placed out at interest, for your ora- 
 tor's benefit, until your orator attains the age of 
 twenty-one years, and that the said eight hundred 
 pounds may then be paid him; and that, in the mean- 
 time, the interest thereof may be paid to your ora- 
 tor's said father, toward the maintenance and educa- 
 tion of your orator; and that your orator may have" 
 such further and other relief in the premises as the 
 nature of his case shall require and as to your Lord- 
 ship shall seem meet. 
 
b A SUIT IN EQDITY. 
 
 9. — Prayer for Process. 
 
 May it please your Lordship to grant unto your 
 orator his majesty's most gracious writ or writs of 
 subpoena, to be directed to the said Edward Willis 
 and William Willis, and the rest of the confederates, 
 when discovered, thereby commanding them, and 
 every one of them, at a certain day, and under a cer- 
 tain pain, therein to be specified, personally to be and 
 appear before your Lordship, in this honorable court; 
 and then and there to answer all and singular the 
 premises aforesaid, and to stand to perform and abide 
 such order, direction and decree therein, as to your 
 Lordship shall seem meet; and your orator shall ever 
 
 pray. 
 
 A. ROSE, Solicitor for Complainant. 
 
 I. ADDRESS OF THE BILL. 
 
 In England the bill was addressed to the "Lord 
 Chancellor or other person having for the time the 
 custody of the great seal. In a circuit court of the 
 United States: "To the Judges of the Circuit Court 
 of the United States within and for the District of 
 
 , sitting in equity." In this state the bill is 
 
 addressed: "To the Circuit Court for the County of 
 , in Chancery." 
 
 II. THE INTRODUCTION. 
 
 This part of the bill should state the name, descrip- 
 tion and residence of the complainant in full and the 
 character in which he sues, whether in his own behalf 
 or en autre droit} This is necessary to fix the identity 
 
 iln another's right, as when the bill Is Hied by an adminis- 
 trator, trustee, etc. 
 
A SUIT IN EQUITY. 9 
 
 of the parties and to enable the defendant to resort 
 to the complainant for his costs or to enforce compli- 
 ance with any order that may be made by the court 
 during the progress of the proceedings. 
 
 III. STATING PART. 
 
 This part of the bill should contain a full narrative 
 of all the facts and circumstances of the complain- 
 ant's case. It is upon this part of the bill that he must 
 ground his right to relief. It must show that the 
 court has jurisdiction to hear and detennine the mat- 
 ter in controversy and assuming that the statements 
 made are true, that the complainant is entitled to the 
 aid and assistance of the court. The testimony neces- 
 sary to establish the facts stated is not to be set out, 
 but the facts themselves must be affirmed, that the com- 
 plainant may introduce his proof, for no evidence will 
 be considered by the court not having reference to 
 some fact put in issue by the pleadings. The com- 
 plainant is not required, however, to set forth any fact 
 of which the court is bound to take . judicial notice. 
 Facts are to be stated, not conclusions of law. 
 
 IV. CHARGE OP CONFEDERACY. 
 
 This part of the bill charges that the defendants 
 intending to injure and defraud the complainant have, 
 with divers other persons at present unknown to the 
 complainant, but when known he prays may be made 
 defendants to his bill, confederated and combined to- 
 gether for the purpose of injuring and defrauding him 
 of his nghts. This clause is never necessary unless 
 there has been in truth an actual conspiracy upon 
 
10 A SUIT IN EQUITY. 
 
 which fact the complainant relies as making a part of 
 his case. It is said to have arisen from a two-fold 
 error; first, that parties could not be added to the bill 
 by amendment, whereas there neverwas a time when 
 this could not have been, done; and, second, that an 
 allegation of a confederacy would be sufficient of it- 
 self to sustain the jurisdiction of the court, but a sim- 
 ple confederacy and combination was never suffi- 
 cient to give the court of equity jurisdiction. 
 
 V. CHARGING PART. 
 
 This part of the bill alleges the pretences which -it 
 is supposed that the defendant will make as his de- 
 fence to the case made by the complainant in the stat- 
 ing part of his bill. It is used for the purpose of ob- 
 taining a discovery of the defendant's case, or to put 
 in issue some matter which it is not for the interest 
 of the complainant to admit. The example given by 
 Lord Redesdale (Mitford's PI. and Pr. in Eq. 36) is 
 as follows: He states the case of an heir filing a bill 
 upon any equitable ground, and who apprehends that 
 his ancestor has left a will. He may state, by way of 
 pretence, that the defendant claims under such will, 
 and thus make it a part of his case, without admitting 
 it; and the heir then denies the existence or due execu- 
 tion of the will and charges that it is fraudulent. Un- 
 der the rules of the supreme court and those of most 
 of the states retaining chancery practice, this portion 
 of the bill may be inserted in the stating part or alto- 
 gether omitted. 
 
A. SUIT IN EQUITY. 11 
 
 VI. AVERMENT OF JURISDICTION. 
 
 This clause avers that the acts complained of are 
 contrary to equity, that the complainant has no rem- 
 edy at law and can only obtain relief in a court of 
 equity. This averment was intended originally, ap- 
 parently, to give the court jurisdiction, but it no 
 longer answers that purpose, if it ever did. No mere 
 assertion of the complainant will give the court juris- 
 diction. If the facts and circumstances set forth do 
 not make a case coming within the jurisdiction of the 
 court, the suit will not be entertained, and if they 
 do, the court will entertain the bill without any alle- 
 gation on the part of the complainant that the court 
 has jurisdiction to hear and determine the matter and 
 ought so to do. This clause seems therefore equally 
 nugatory with that of confederacy. 
 
 VII. INTERROGATING PART. 
 
 The bill having up to this point been drawn with 
 a view of showing that the complainant is entitled to 
 relief and that the court has jurisdiction to grant such 
 relief, now prays that the defendants may answer all 
 the matters therein set forth, not only according to 
 their positive knowledge of the facts stated, but also 
 according to their remembrance, the information 
 they may have received, and the belief they have been 
 able to form on the subject. At the first this clause 
 closed with this general request, that being supposed 
 sufSEcient to procure the discovery sought for. But 
 it was soon found that the ingenious solicitor could 
 answer in such general terms that the substance of the 
 question would not be touched. To meet this diffi- 
 
12 A SUIT IN EQUITY . 
 
 -culty it became customary to set out specific interroga- 
 tories covering every specific fact mateiial to be an- 
 swered, and also as to all facts and circumstances sur- 
 rounding the main fact. The defendant cannot be in- 
 terrogated as to any fact not charged in the bill. He 
 is simply required to answer the complainant's case 
 and these interrogatories are to enable him to do so 
 fully and fairly. He cannot be required to do more 
 than that, therefore he is not required to answer any 
 interrogatory the answer to which would not be re- 
 sponsive to some fact charged in the bill. 
 
 Since in most of the states parties may be examined 
 •as witnesses, it is customary now, in most cases, to ex- 
 pressly waive an answer under oath, and to omit in- 
 terrogatories altogether. 
 
 VIII. PRATER FOR RBUBP. 
 
 The prayer for relief is usually, first, a special prayer 
 for the particular relief that the pleader thinks he is 
 •entitled to, and then for general relief, so that should 
 the court refuse to grant the specific relief asked, he 
 Tnay obtain such relief as the court thinks he is entitled 
 to. It is therefore never proper or safe to omit a 
 prayer for general relief. Indeed, unless the plaintiff 
 asks for an injunction or a ne exeat^ the prayer for 
 general relief is sufficient to entitle him to such a de- 
 cree as his case merits, provided the relief asked for 
 at the hearing is authorized by the facts stated in the 
 bill. If an injunction or a writ of ne exeat is desired, 
 it must be specially prayed for. 
 
 'Name of a writ commanding that tlie defendant depart not 
 "the Jurisdiction of the court. 
 
A SUIT IN EQUITY. 13 
 
 IX. PRATER FOR PROCESS. 
 
 The bill in the last place prays that a writ of sub- 
 poena may issue requiring the defendants to appear 
 and answer the matters alleged against them, and 
 abide the determination of the court on the subject. 
 The prayer for process in the bill should contain the 
 names of all the defendants named in the introduc- 
 tory part of the bill, and if any of theiii are known 
 to be infants under age, or otherwise under guardian- 
 ship, should state the iact so that the court may take 
 order thereon as justice may require. When a cor- 
 poration is made defendant, the bill should pray that 
 it appear according to law. If an injunction or a 
 writ of ne exeat is desired, there must be a special 
 prayer therefore, and it must be also asked for in the 
 prayer for process. 
 
 JURAT AND SIGNATURE. 
 
 The bill of complaint need not be signed by the 
 complainant but it must be signed by his solicitor. 
 Certain bills, bills for divorce and those asking an 
 injunction, for instance, must be sworn to. 
 
 Chancery, rule two of this state, prescribes that the 
 oath administered to the party shall be in substance 
 as follows: "That he has read the bill, or heard it 
 read, and knows the contents thereof, and that the 
 same is true of his own knowledge, except as to the 
 matters which are therein stated to be upon informa- 
 tion or belief, and as to those matters he believes it 
 to be true, and that the substance of the oath shall be 
 stated in the jurat." 
 
14 A SUIT IN EQUITY. 
 
 The following is the form of the ju.at when the 
 bill is sworn to by the complainant: 
 
 STATE OF MICHIGAN, ) 
 County. ) ' 
 
 Personally appeared before me X. Y., a , 
 
 this day of , D. E., who, being sworn, 
 
 deposeth and says, that he is the complainant named 
 in the foregoing bill of complaint; that he has read 
 said bill of complaint (or has heard read), and knows 
 the contents thereof, and that the same is true of his 
 own knowledge, except as to those matters therein 
 stated to be upon his information or belief, and as to 
 those matters he believes it to be true, and further 
 saith not. X. Y. 
 
 Add Official Character. 
 
 Chancery, rule one of Michigan, requires every bill 
 of complaint to be divided into paragraphs numbered 
 consecutively, and that each paragraph shall cojitain> 
 as near as may be, a separate and distinct allegation. 
 When there is no such specific rule the bill need not 
 be divided into pragraphs, but the practice is to be 
 commended as it permits a ready reference to any part 
 of the bill in case of amendment or upon the argument. 
 The statute of this state requires ^hat all pleadings 
 and proceedings shall be fairly and legibly written. In 
 entitling and endorsing papers, made by either party, 
 the complainant's name must be placed first. At least 
 one copy of the bill should be made and retained as an 
 office copy. 
 
 SUBPOENA TO APPEAR. 
 
 The pleader having carefully prepared the bill, 
 files it with the Register of the Court and obtains a 
 
A SUIT IN EQUITY. 15 
 
 subpoena. Formerly a subpoena might issue before 
 the bill was filed but now under the U. S. rules and 
 the rules of this state the bill must first be filed. In 
 this state a subpoena issues as a matter of course but 
 in the United State court a praecipe^ must be filed with 
 the clerk. (U. S. rules 7, 11, 12. Mich, rule i.) 
 
 The subpoena is a writ under the seal of the court 
 directed to the defendant requiring him to appear 
 on a day certain and answer the bill. Under rule 12 
 of the Supreme Court of the United States the names 
 of all the defendants may be entered in the same sub- 
 poena, or, at the election of the complainant, separate 
 subpoenas may be sued out for each defendant, except 
 that the names of husband and wife must appear in 
 the same subpoena. Under the Michigan rules tlie 
 subpoena must contain the names of all the defend- 
 ants. It must be signed by the Register and endorsed 
 with the name of the solicitor. (Mich, rule 4.) 
 
 FORM OF SUBPOENA. 
 
 In the name of the People of the State of Michigan. 
 To D. . . . E. . . ., . . . ., Greeting: 
 
 You are hereby notified that a Bill of Complaint 
 has been filed against you in the Circuit Court for the 
 County of , in Chancery, by A. B., as complain- 
 ant, and that if you desire to defend the same, you are 
 required to have your appearance entered with the 
 Register of said Court at his office in the Court House, 
 
 in the City of , in person or by solicitor, within 
 
 fifteen days after service of this subpoena upon you. 
 
 lA written request that the Register Issue » subpoena In the 
 suit. 
 
16 A SUIT IN EQUITY. 
 
 Hereof fail not under the penalty of having said bill 
 taken as confessed against you. 
 
 The return day of this writ is the day of 
 
 , A. D. 189 . 
 
 Witness, The Honorable A. B., Circuit Judge at 
 
 , this .... day of in the year of Our Lord 
 
 one thousand eight hundred and ninety- 
 
 C. D., , Register. 
 
 Underwriting: A personal decree is sought 
 
 against the defendants , and the bill is filed 
 
 to reach interests in property, and not to obtain any 
 further relief against the remainder of the defendants. 
 
 Solicitor for Complainant. 
 Business Address 
 
 The foregoing "underwriting" is required by Mich, 
 rule 4 and was adopted to remove the danger of mis- 
 takfr among defendants ignorant of the meaning of 
 the command of a subpoena. .There was no under- 
 writing to the original subpoena. 
 
 The day upon which the subpoena may be made 
 returnable is fixed by rule. Michigan rule 4. a. pro- 
 vides that it shall be made returnable on a day certain 
 (except Sunday) not less than ten days from the issu- 
 ing thereof. The subpoena is to be served on or be- 
 fore the return day by delivering to the defendant a 
 copy inscribed copy and sljowing the original, under 
 the seal of the court, at the time of such delivery, to 
 the defendant. Rule 4. b. It may be served in any 
 part of the state. The service need not be made by 
 an officer of the court, but if made by an individual, 
 
A. SUir IN EQUITY. 17 
 
 such service must be shown by affidavit. If it is made 
 by an officer, he makes his return of service on the 
 subpoena. 
 
 OFFICERS' RETURN. 
 STATE OF MICHIGAN, ) 
 ..County. P^' 
 
 I hereby certify and return that on the .... day of 
 
 , A. D. 189 , I served the within subpoena and 
 
 underwriting personally on 
 
 by deUvering to him, said defendant, at , in said 
 
 County, a true copy of the within subpoena and under- 
 writing inscribed "copy" and subscribed , 
 
 complainant's solicitor, and at the same time I showed 
 
 said , defendant, the original subpoena and 
 
 underwriting, with the seal of the court impressed 
 thereon. 
 
 Dated this .... day of , 189 . 
 
 Sheriff. 
 When the subpoena has been properly served, the 
 defendant is bound to appear and answer the charges 
 preferred against him in the bill, ' within the time 
 limited by the practice of the court, or, if required 
 by the complainant, compulsory process will be 
 awarded against him for his contempt in neglecting 
 the requisitions of the subpoena. Appearance is the 
 formal proceeding by which the defendant submits 
 himself to the jurisdiction of the court, and it is 
 necessary in every case before a decree can be ren- 
 dered against him that he appear. Formerly when 
 the defendant did not voluntarily appear after being 
 served with a subpoena, a number of successive pro- 
 cesses were resorted to, ending in a sequestration of 
 
18 A SUIT IN EQUITY. 
 
 his property, for the purpose of compelling an appear- 
 ance. At the' present time in all the states there are 
 statutory enactments making the process of the courts 
 more effectual, and providing under certain circum- 
 stances that the appearance of the defendant may be 
 entered by an order of the court and the bill taken 
 pro confesso} Process for effecting the compulsory 
 appearance has fallen into disuse since the enactment 
 of these statutes. Only one is in use in this state- 
 attachment — and that is only resorted to when the an- 
 swer of the defendant is essential to the complainant. 
 
 Under the Michigan practice a defendant desiring 
 to defend a cause, or to have notice of the proceedings 
 therein, shall cause his appearance to be filed or en- 
 tered in the ofSce of the Register of the court within 
 fifteen days after service of the subpoena upon him 
 and within the same time shall serve upon the com,- 
 plainant's solicitor notice of such appearance. (Rule 
 S-'a. b.) 
 
 Such notice shall be entitled in the cause and ad- 
 dressed to the solicitor and may be in the following 
 form: 
 
 "Take notice, that the defendant, , hereby 
 
 appears in the above entitled cause and demands a 
 copy of the bill of complaint therein. 
 
 Dated 
 
 Yours, etc., 
 
 Solicitor for Defendant. 
 The practice in the United States Court is regulated 
 by Rules 2, ii, 12. 
 
 If the defendant does not appear within the time 
 
A SUIT IN EQUITY. 19 
 
 prescribed and give notice of such appearance, the 
 complainant may enter or file an order entering the de- 
 fendant's appearance and also taking the bill as con- 
 fessed. (Rule 7.) Before such step is taken by the 
 complainants proof should be filed showing that he 
 has a right to such order. The returns of the officer 
 making the service of the subpoena is sufificient proof 
 of that fact. Proof of non-appearance may be made 
 by affidavit 
 
 TITL.E1. 
 
 AFFIDAVIT OF NON-APPEARANCE. 
 
 The Circuit Court for the County of , In Chan- 
 cery. 
 
 County, ss. 
 
 A. B., solicitor for the complainant, in the above 
 entitled cause, being first duly sworn, says : That the 
 bill of complainant in this cause was filed on the .... 
 
 day of , 189 , and that on that 
 
 day a subpoena was issued therein returnable on the 
 
 .... day of , 189 , which was duly served on 
 
 the defendant on the .... day of , 189 , as ap- 
 pears from the return now on file. Deponent further 
 says that more than fifteen days have elapsed since 
 the return day of said subpoena, and that the defendant 
 has not entered or caused his appearance to be en- 
 tered in said cause. 
 
 Subscribed and sworn to before me this 
 
 day of , 189, .... 
 
 > 
 
 Notary Public in and foU 
 County, Michigan. 
 
20 A SUIT IN EQUITY. 
 
 TITLE. 
 
 OEDER PRO CONFBSSO. 
 
 On filing due proof of personal service of the sub- 
 poena issued in this cause on the defendant Richard 
 Roe, therein, on or before the return day thereof, that 
 said defendant has not appeared and more than twenty 
 days having elapsed since said return day on motion 
 of A. B., solicitor for complainant, it is ordered that 
 the bill of complaint filed in this cause, be and the 
 same is hereby taken as confessed by the said defend- 
 ant Richard Roe. 
 
 A. B., 
 Solicitor for Complainant. 
 
 After the defendant's default has been entered and 
 the bill, taken, pro confesso, the suit then proceeds ex 
 parte.^ 
 
 The defendant having appeared, proceeds, to de- 
 fend himself against the allegations of the complain- 
 ant's, bill. The character of his defence will depend 
 upon the nature of the case made in the bill, and is 
 either by disclaimer, by demurrer, by plea, or by an- 
 swer. All of these several defences may be joined, 
 if some one of them is the appropriate defence to some 
 part of the bill. ^^^^^^^^ ^ ^ cL\w.-^ 
 
 If the defendant has no interest in the subject matter 
 of the suit, he may avoid the plaintiflf's claim by a dis- 
 claimer, which is a renunciation on his part of all in- 
 terest or claim in the subject-matter of the plaintifif's 
 
 »On behalf of one side. By one party. When a proceeding is 
 Instituted or carried forward by one party and no opportunity is 
 given the other to be heard. It is said to be ex parte. 
 
A SUIT IN EQUITY. 21 
 
 claim. For instance, suppose the bill is filed by A 
 to quiet his title to a certain messuage, and B .is 
 charged with claiming title to, or an interest in, said 
 land, when in point of fact he has no interest and 
 claims none, he may defend by filing a disclaimer. 
 The disclaimer may be in the following form : 
 
 In the Circuit Court for County of , In Chan- 
 cery. 
 
 John Doe, 
 
 Complainant, 
 vs. 
 Richard Roe, 
 
 Defendant. 
 
 The disclaimer of Richard Roe, the defendant, to 
 the bill of complaint of John Doe. 
 
 The defendant saving and reserving for himself now 
 and at all times hereafter, all manner of advantage 
 and benefit of exception and otherwise that can or 
 •may be had or taken to the many untruths, uncertain- 
 ties, and imperfections in said complainant's bill of 
 complaint contained, for answer thereto, or unto so 
 much, or such part thereof as is material for this de- 
 fendant to make answer unto, he answers and says: 
 that he doth fully and absolutely disclaim all manner 
 of right, title, and interest whatsoever, in and to the fol- 
 lowing described real estate, viz.: (describe land) be- 
 ing the same real estate mentioned and described in 
 said bill of complaint, and to each and every part and 
 parcel thereof. And this defendant further answer- 
 ing says, that he never had or claimed or pretended 
 to have any title to or interest in said land. 
 
 And this defendant denies all and all manner of un- 
 lawful combination and confederacy wherewith he is 
 
22 A SUIT IN EQUITY. 
 
 hy the said bill charg-ed, without this, that any other 
 matter, cause or thing, in the said complainant's said 
 bill of complaint contained, material or necessary for 
 this defendant to make answer unto, and not herein 
 and hereby, well and sufficiently, answered, confessed, 
 traversed and avoided, or denied, is true to the know- 
 ledge or belief of this defendant; all of which matters 
 and things this defendant is willing to aver, maintain 
 and prove as this Honorable Court shall direct; and 
 asks to be hence dismissed with his reasonable costs 
 and charges in this behalf sustained. 
 A. B., Solicitor for Defendant. RICHARD ROE. 
 
 Upon this disclaimer being filed the complainant 
 is entitled to a decree against such defendant. 
 
 DEMURRER. 
 
 If there appears on the face of the plaintiff's bill 
 any defect or objection which can be offered in bar 
 of his suit, it should be presented by a demurrer. A 
 demurrer admits the facts as alleged in the bill to be 
 true, but denies that they are sufficient lo require the 
 defendant to answer. The demurrer may be to some 
 part or to the whole bill : 
 
 TITLE. 
 
 The demurrer of Richard Roe, the defendant to the 
 bill of complaint of John Doe.' 
 
 This defendant, by protestation, not confessing any 
 of the matters in and by said bill complained of to be 
 true in manner and form, as the same are set forth, 
 says that he is advised that there is no matter or thing 
 in said bill, good and sufficient in law, to call this de- 
 fendant to account in this Honorable Court for the 
 
A SUIT IN EQUITY. 23 
 
 same; but that there is good cause of demurrer there- 
 unto, and he does demur accordingly, and for cause 
 of demurrer says, that said bill, in case the same were 
 true, contains no matter of equity whereon this court 
 can ground any decree, or give complainant any relief 
 as against this defendant. Wherefore, and for divers 
 other errors in said bill contained and appearing on 
 the face thereof, this defendant does demur thereto, 
 and humbly craves the judgment of this Honorable 
 Court, whether he is compellable or ought to make 
 any answer thereunto otherwise than as aforesaid. 
 And this defendant prays to be hence dismissed with 
 his costs and charges in this behalf most wrongfully 
 sustained. 
 A. B., Solicitor for Defendant. 
 
 The above form of demurrer extends to the whole 
 bill. When the demurrer does not extend to the 
 whole bill, it should designate the particular part which 
 it is intended to embrace, for otherwise the court would 
 be compelled to examine the whole bill to discover the 
 part covered. In case only a part of the bill is de- 
 murred to, an answer to the remainder of the bill may 
 be coupled with the demurrer; 
 
 TITI^B. 
 
 The demurrer of Richard Roe to that part, includ- 
 ing paragraphs numbered 3, 4 and 5, and his answer 
 to the residue of the bill of complaint of John Doe. 
 (Set forth the demurrer as above, and add:) 
 "And as to the residue of said bill, this defendant 
 not waiving his demurrer, but relying thereon, and 
 
24 A SUIT IN EQUITY. 
 
 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 
 thereto, or to so much thereof as this defendant is 
 advised is in any wise material or necessary for him 
 to answer unto, answers and says that, etc." 
 
 The foregoing forms are the old formal demurrers. 
 Michigan rule 9. a. makes the following form suffi- 
 cient. 
 
 "The defendant says that the complainant has not 
 stated such a case in his bill as entitles him to relief 
 in a court of equity for the following reasons : (adding 
 briefly, but plainly, the special reasons in matters of 
 substance in a general demurrer, as well as matters 
 of form in a special demurrer." 
 
 Rule 9. b. also provides that to the demurrer shall 
 be added the individual certificate of counsel having 
 principal charge of the cause for the party demurring, 
 that such demurrer is not interposed for delay and is 
 in his opinon well founded. If the demurrer is not 
 accompanied by such a certificate it may be stricken 
 from the files. 
 
 Every species of defence to a bill in equity is re- 
 quired to be signed by counsel as evidence of its pro- 
 priety and sufficiency. Since a demurrer alleges no 
 facts, but rests upon matters appearing in the bill, it 
 need not be signed by the defendant. The rules of 
 the United States Supreme Court, and of many of the 
 state courts, require that the counsel for the defendant 
 shall file with the demurrer his certificate that in his 
 opinion it is well founded in point of law, and also the 
 
A SUIT IN EQUITY. 2,5 
 
 afBdavit of the defendant that it is not interposed for 
 delay merely. 
 
 When the defendant demurs to the whole bill, a 
 question of law is presented to the- court which is 
 brought on for argument. If the court sustains the 
 demurrer that will end the proceedings, unless under 
 an order of the court the complainant anicnds the bill 
 and cures the defect pointed out by the demurrer. • In 
 case the demurrer is overruled, the defendant must 
 plead to, or answer the bill. (Mich. Rule 9. d. e.) 
 
 A PLiBA. 
 
 If there is some defect in the complainant's case, 
 which does not appear upon the face of the bill, that 
 constitutes a special defence to his recovery, it may 
 be taken advantage of by plea. A plea is defined as 
 a special answer, showing or relying upon one or more 
 things, as a cause why the suit should be either dis- 
 missed, delayed or debarred; it does not, like a de- 
 murrer, rest on facts charged in the complainant's 
 bill, but alleges other facts, to which the complainant 
 may reply. The ofHce of the plea is to bring forward 
 a fact which, if true, displaces the equity of the bill. 
 
 Pleas have been arranged under four classes, i. 
 To the jurisdiction. 2. To the person of the plain- 
 tiff. 3. To the bill or the form thereof. And, 4. 
 In bar. 
 
 The form of a plea, like that of a demurrer, com- 
 mences with a protestation against confessing the 
 truth of any matter in the bill. It should distinctly 
 show whether it goes to the whole bill or only a part 
 of it. The defendant's grounds of objection to the 
 
26 A SUIT IN EQUITY. 
 
 jurisdiction of the court, the person of the plaintiff 
 or in bar of suit, must be supported by averments, 
 so clear, positive and distinct of every fact and cir- 
 cumstance essential to render it a complete equitable 
 bar, that the complainant may be enabled to take issue 
 upon its validity. 
 
 1. A plea to the jurisdiction does not dispute the 
 right of the complainant in the suit, but asserts that 
 his claim is not a fit subject of cognizance in a court 
 of equity, or, that some other tribunal is vested with 
 the proper jurisdiction. Most jurisdictional defects 
 can be reached by a demurrer; but the truth may not 
 appear on the face of the bill. For instance, the Cir- 
 cuit Court of the United States has no jurisdiction to 
 hear and determine causes between citizens of the 
 same state, and if the bill should allege that the com- 
 plainant and defendant were citizens of different states, 
 the fact that they were citizens of the same state could 
 only be contested by the defendant by a plea to the 
 jurisdiction. The plea rriust contain something more 
 than a mere allegation of a want of jurisdiction, juris- 
 diction will be presumed unless the specific fact is 
 pointed out which deprives the court of jurisdiction. 
 
 2. A plea to the person merely disputes the right 
 of the complainant to sue; for instance that he is an 
 infant, an idiot or a lunatic. 
 
 3. The usual plea to the bill or the frame of the 
 bill are either, i, the pendency of another suit for the 
 same matter in another court of equity, or, 2, the want 
 of proper parties to the bill. 
 
 4. Pleas in bar are, i, pleas founded on some bar 
 
A SUIT IN EQUITY. 27 
 
 created by the statute. The most usual of this char- 
 acter are the statute of limitations and the statute of 
 fraud. 2. Pleas founded on matter ol record, that 
 there has been a judgment at law of a court of record 
 between the same parties for the same cause of action, 
 or a final decree or order of a court of equity in a 
 suit between the same parties and for the same sub- 
 ject matter. 3. Pleas of matter in pais^ are pleas of 
 stated account, of a release, of a purchase for a valu- 
 able consideration without notice, etc., etc. 
 
 TITLE. ' 
 
 PLEA TO BILL. 
 
 The plea of Richard Roe, the defendant to the bill 
 of complaint of John Doe. 
 
 This defendant, 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 does plead thereunto, and for cause of plea says,, 
 that heretofore, and before complainant exhibited his 
 present bill in this Honorable Court, ou the 9th day 
 of February, 1885, the said complainant did exhibit 
 his bill of complaint in this Honorable Court, against 
 these said defendants for the same matters and to the 
 same effect and for the like relief, as the said now 
 complainant doth by his present bill demand and set: 
 forth; to which said first bill these defendants did put 
 in there joint and several answers, and the said com- 
 
 iThe words In pais, strictly mean in the country, their second- 
 ary meaning is. In fact, out of court, some fact or oircumstanco- 
 •which works an estoppel. 
 
:28 A SUIT IN EQUITY. 
 
 ■plainant thereunto did reply; and other proceedings 
 -were thereupon had, and the said former bill is still 
 pending in this court, and the matters thereof unde- 
 termined; and, therefore, this defendant does plead 
 4:he former bill, answer and proceedings, in bar to the 
 -present bill; and humbly prays the judgment of this 
 Honorable Court, whether it behooves him to make 
 any other or further answer thereto than as aforesaid, 
 and prays to be hence dismissed with his reasonable 
 costs and charges, in this behalf most wrongfully sus- 
 tained. 
 
 RICHARD ROE. 
 A. B., I Solicitor for Defendant. 
 
 The rules of the United States Courts and the 
 Michigan rules require that the plea shall not be filed 
 except upon the certificate of counsel that in his 
 •xjpinion it is well founded in point of law and 
 supported by the affidavit of the defendant stating 
 that it is not interposed for delay merely and that he 
 believes it to be true in fact. (U. S. Rule 31; Mich. 
 Rule 8. a.) 
 
 . In case the complainant thinks the plea insufficieiit 
 "he may notice it for hearing, when the question of its 
 validity will be passed upon by the court. If the 
 court sustains the plea as good in form and substance, 
 the complainant may take issue as to the truth of its 
 ^alleged statements of fact by fiUng a replication. 
 
 TITLE. 
 
 The replicationof John Doe, complainant to the 
 plea of Richard Roe, defendant, this repliant saving 
 
A SUIT IN EQUITY. 29:- 
 
 and reserving to himself now arid at all times here- 
 after, all and all manner of advantage of exception- 
 which may be taken to the manifold insufficiencies of 
 the said plea, for replication thereunto, says, that he 
 will now maintain and prove his bill of complaint to 
 be true, certain and sufficient in the law to be answered 
 unto; and that the said plea is uncertain, untrue and. 
 insufficient, to be replied unto by the repliant without 
 this, that any other matter or thing whatever, in said 
 plea contained, material or effectual in the law, to be 
 replied unto, and not herein and hereby well and suf- 
 ficiently replied unto, confessed and avoided, traversed 
 or denied, is true; all which matters and things the- 
 repliant is and will be ready to aver, maintain and 
 prove, as this Honorable Court shall direct, and hum- 
 bly prays that as in and by his said bill he has already 
 prayed . 
 A. B., Solicitor for Complainant. 
 
 The repUcation admits that the plea is good in form^ 
 and substance and puts in issue the truth of its allega- 
 tions of fact, and the parties proceed to take proofs- 
 the same as when a replication is filed to an answer. 
 
 If upon argument the plea is overruled the defend^ 
 ant must answer, and in default of his answering the 
 bill, or, so much thereof as was covered by the plea, 
 will be taken pro confesso. 
 
 If upon argument the plea is allowed the complain- 
 ant may be permitted to amend his bill. In case the 
 bill is not amended the bill, or so much as was covered- 
 by the plea, will be dismissed. 
 
 If upon an issue of fact, the facts stated in the plea^ 
 
30 A SUIT IN EQUITY. 
 
 are determined for the defendant, they shall avail him 
 as far as in law and equity they ought to avail him. 
 
 If upon an issue of fact the facts are determined for 
 the complainant, the effect shall be the same as though 
 the bill or so much thereof as is covered by the plea 
 was taken pro confesso. (U. S. Rules 2)Zi 34; Mich. 
 Rule 8.) 
 
 ANSWER. 
 
 If there is nothing in the bill of the complainant 
 to which the defendant is able or willing to demur; 
 and if he have no extrinsic matter, which he can offer 
 by way of plea; or if his plea or demurrer has been 
 overruled, he may proceed to controvert the claims 
 of the plaintiff by filing an answer to the bill. The 
 answer need have no particular form as to that part 
 which sets forth the defendant's case. It is usually 
 drawn so as to admit in the first instance all the alle- 
 gations contained in the complainant's bill which are 
 true, and then follow denials of all the allegations 
 made which are in dispute. If there are any state- 
 ments in the bill upon which the defendant has no 
 knowledge or information, he states that fact and 
 leaves the complainant to his proofs. Then follows a 
 statement of all facts and circumstances constituting 
 the defendant's defense. If the bill contains interroga- 
 tions, each interrogatory is to be answered separately 
 and the answers numbered to correspond with the 
 numbers of the interrogatories. When the defendant 
 submits to answer at all, he must make a full, frank 
 and explicit answer as to all matters material or neces- 
 sary to be answered, resting within his own personal 
 knowledge, or upon information and belief. 
 
A SUIT IN EQUITY. 31 
 
 TITLE. 
 
 ANSWER. 
 
 The answer of Richard Roe, defendant to the bill 
 of complaint of John Doe. 
 
 This defendant, now and at all times hereafter, re- 
 serving all manner of benefit and advantage of excep- 
 tion to the many errors and insufficiencies in said bill 
 contained, for answer thereto, or unto so much, or 
 such parts thereof as this defendant is advised is mate- 
 rial for him to make answer unto, he answers and 
 says (here follows a full and explicit answer to all the 
 allegations in the bill and answers to the interroga- 
 tories), and this defendant denies all unlawful com- 
 bination in said bill charged, without this, that any 
 other matter or thing material for him to make answer 
 to, and not herein sufficiently answered, avoided or 
 denied, is true to the knowledge or belief of this de- 
 fendant. All which matters and things this defendant 
 is ready to aver and prove as this court shall direct, 
 and prays to be hence dismissed, with his reasonable 
 costs and charges, in this behalf most wrongfully sus- 
 tained. 
 
 RICHARD ROE. 
 A. B., Solicitor for Defendant. 
 
 The answer must be signed by the defendant and 
 must be sworn to, unless his answer under oath is 
 waived in the bill. 
 
 Neither a sworn answer nor a sworn bill in this 
 state has the force of evidence except as to admissions, 
 and except upon the hearing of motions and petitions. 
 
32 A SUIT IN EQUITY. 
 
 (Rule lo.) At common law a sworn answer is evi- 
 dence. 
 
 The answer should be divided into paragraphs, each 
 containing a separate and distinct allegation. This is 
 required in Michigan. (Rule lo.) 
 
 VERIFICATION. 
 
 On this day of 189. ., 
 
 before me personally appeared Richard Roe, and made 
 oath that he had heard read the foregoing answer by 
 him subscribed and knows the contents thereof, and 
 that the same is true, of his own knowledge, except as 
 to those matters therein stated to be upon information 
 and belief, and as to those matters he believes them to 
 be true. 
 
 Notary Public, County, Michigan. 
 
 The defendant may claim in his answer the benefit 
 of a general demurrer. In case he desires to do so he 
 inserts, immediately preceding the closing part given 
 above, the following: 
 
 "And this defendant submits to this Honorable 
 Court that all and every of the matters in the said 
 complainant's bill, mentioned and complained of, are 
 m.atters which may be tried and determined at law, 
 and with respect to which the said complainant is not 
 entitled to any relief from a court of equity; and this 
 defendant hopes that he shall have the same benefit of 
 this defence as if he had demurred to said bill of com- 
 plaint." 
 
 If the complainant conceives that the admissions in 
 the defendant's answer are alone sufficient to entitle 
 
A SUIT IN EQUITY. 33 
 
 him to such a decree as he desires he may set down 
 the cause for hearing upon bill and answer. 
 
 If the discovery contained in the answer is incom- 
 plete, or the allegations contained in the bill are in- 
 sufficiently replied to, the complainant may prefer ex- 
 ceptions to the defendant's answer and require it to 
 be more full and particular. The exceptions must be 
 in writing and signed by counsel, and they must also 
 state with precision and accuracy, the points in which 
 the defendant's answer is defective, or they will be 
 rejected as vague and impertinent. Care must be 
 taken also to omit no point to which an exception 
 would lie, as the rules of the court do not permit any 
 others to be afterwards added. It may be stated gen- 
 erally that any answer will be considered insufficient 
 in which the defendant does not fully respond, accord- 
 ing to the best of his knowledge, remembrance or 
 belief, to every material allegation, charge or inter- 
 rogatory in the bill. 
 
 TITLE. 
 
 EXCEPTIONS TO THE ANSWER. 
 
 Exceptions taken by the said complainant John Doe 
 to the answer of the said defendant Richard Roe to his 
 bill of complaint in this cause. 
 
 First exception. — For that the said defendant has 
 not, according to the best of his information, knowl- 
 edge and belief set forth and discovered in his said 
 answer, whether, &c. 
 
 Second exception. — For that, &c. 
 
 In all of which particulars the complainant is ad- 
 
34 A SUIT IN EQUITY. 
 
 vised that the answer of the defendant is altogether 
 evasive, imperfect and insufhcient Wherefore said 
 complainant doth except therto, and prays that the 
 defendant may be compelled to amend the same, and 
 to put in full and sufficient answer to the complainant's 
 bill. 
 
 A. B., Solicitor for Complainant. 
 
 When exceptions are taken to the insufficiency of 
 the answer and the defendant does not amend his an- 
 swer, the exceptions are referred to a master, who is 
 directed to report whether the answer is sufficient in 
 the points excepted to or not. If the master reports 
 it to be insufficient, the defendant must submit' to 
 answer more fully, unless by exceptions to such report 
 of the master, he appeals to the judgment of the court, 
 and obtains a determination in his favor. 
 
 The practice of taking exceptions to the answer has 
 been abolished in this state. Rule lo. f. provides that 
 all objections to an answer heretofore raised by excep- 
 tion shall be disposed of by the court on special mo- 
 tion. 
 
 INTBRLOCUTOET PROCEEDINGS. 
 
 During the progress of a suit in equity it frequently 
 becomes necessary to make what are known as inter- 
 locutory orders and decrees. The most important and 
 usual are those which relate to amendments of the 
 pleadings, the appointment of a receiver, payment of 
 money into court, issue of an injunction and reference 
 to a master. These orders are made by the court upon 
 motion made orally or upon petition in writing. 
 
A SUIT IN EQUITY. 35 
 
 AMENDMENTS. 
 
 In a court of equity matters of form are never suf- 
 fered to prejudice the rights of a party; and the Hberty 
 of an amendment, often upon condition, however, is 
 allowed to all kinds of pleading. If the bill has not 
 been sworn to, under the rules in this state, the com- 
 plainant can amend, of course, without the payment 
 of costs, before the demurrer, plea or answer is put in. 
 And in certain other cases he may amend, of course, 
 afterwards, but usually application must be made to 
 court by motion for leave to amend. The amend- 
 ments must have reference to matters existing before 
 the commencement of the suit; a matter which has 
 occurred since the commencement of the suit must be 
 brought before the court by a supplemental bill. 
 When amendments are made by leave of the court, or, 
 of course, a copy of the bill as amended is filed and a 
 copy of the amendments referring to the paragraphs 
 and folios amended is filed and a copy of such amend- 
 ments served. The amendment and original bill are 
 considered, for most purposes, as one, and make up 
 the same record. 
 
 TITLE. 
 
 Amendments to the bill of complaint in this cause, 
 made pursuant to an order of this court dated the 
 .... day of .... instant. 
 
 First. In the third line of the second folio of the 
 bill after the word "testator" interline "to-wit, on or 
 about the sth day of June, 1880." 
 
 Second. After the word "satisfaction" in the tenth 
 
36 A SUIT IN EQUITY. 
 
 line of the fifth folio insert the amendment marked 
 "A" which is annexed to the bill on file, and is as 
 follows: "After," &c. * * * 
 
 Third. Strike the names of C. D. and M. F. out 
 of the sixth line of the third folio. 
 
 Sir — Take notice that the foregoing is a copy of the 
 amendments as set forth. 
 
 F. L., Solicitor for Complainant. 
 To J. L., Solicitor for Defendant. 
 
 APPOINTMENT OF A RECEIVER. 
 
 Whenever in the progress of a suit a proper show- 
 ing is made to the court that there is danger of the 
 waste and destruction of property which is the subject 
 of the litigation, a receiver may be appointed, charged 
 with the duty of caring for such property. 
 
 PAYMENT OP MONEY INTO COURT. 
 
 Whenever it appears to the court that there is a 
 balance of money which it is admitted is due to the 
 complainant in the hands of the defendant, he will, 
 by an order of the court, be directed to pay it into 
 the hands of the register. And the court may make 
 a still further direction and order the money so paid 
 into court to be deposited or invested on good se- 
 curity. 
 
 REFERENCES. 
 
 Whenever it is necessary in the progress of a cause 
 to take an account, to investigate the title of persons 
 to property in suit, or make any other inquiries neces- 
 sary to satisfy the conscience of the court, or to per- 
 form some special ministerial act, such as to sell prop- 
 erty, etc., the court refers the matter to a circuit '^ourt 
 
A SUIT IN EQUITY. 37 
 
 commissioner. References are of such frequent occur- 
 rence, and so important, that they form the subject 
 of a subordinate system of practice. (See Hoffman's 
 Master in Chancery.) 
 
 There is such a variety of orders that in this short 
 synopsis we can only indicate what the practice is. In 
 case, for instance, the defendant has money in his 
 hands belonging; to the complainant, which the com- 
 plainant desires to have paid into court, he notifies the 
 defendant's solicitor that he will make a motion to that 
 effect. 
 
 TITLE. 
 
 NOTICE OF MOTION, ETC. 
 
 Sir: — Take notice that I intend to move this Hon- 
 orable Court, on the day of next, 
 
 at ten o'clock in the forenoon, or as soon thereafter 
 
 as counsel can be heard, at , in the city of 
 
 , for an order that the above named defend- 
 ant may, on or before the day of 
 
 next, pay into the hands of the register of this court, 
 in trust, in this cause, the sum of $...., admitted by 
 the answer of said defendant to be due. from him, and 
 that the same, when paid in, may be deposited in trust 
 by the register in such bank, or invested by him in 
 trust, in such manner as this court shall direct, with 
 costs. And for such further, or for such other order, 
 or relief, as the court may think proper to grant; 
 which motion will be founded on the biM and answer 
 
 in this cause. 
 
 L. M., Solicitor for Complainant. 
 To J. C, Solicitor for Defendant. 
 
38 A SUIT IN EQUITY. 
 
 At the time and place mentioned in such notice, an 
 oral motion is made and argument had. If the court 
 grants the motion, an order is entered m accordance 
 therewith, or such an order as the court deems proper 
 under the circumstances. 
 
 TITLE. 
 
 At a session of said court, held at , on 
 
 the day of , 1888. 
 
 Present, Hon. C. D., Circuit Judge. 
 
 On reading the bill and answer filed in this cause, 
 and on motion of L. M., solicitor for the complainant, 
 and on hearing J. C, solicitor for the defendant, in 
 opposition thereto: It is ordered that the defendant, 
 
 Richard Roe, do, on or before the day of 
 
 next, pay into the hands of the register of this court, 
 in trust, in this cause, the sum of $ .... , admitted by 
 the answer of said defendant to be due from him; 
 and that when such money be paid in, it be deposited 
 
 by said register in tlie First National Bank of 
 
 to the credit of this cause, there to remain until the 
 
 further order of this court. 
 
 C. D., Circuit Judge. 
 Another most iniportant interlocutoiy proceeding 
 is that of granting an injunction restraining the de- 
 fendant from doing some particular act or acts which 
 will do irreparable injury to the complainant. When 
 an injunction is issued during the pendency of the 
 suit, it is called a preliminary injunction; when it is 
 made a part of the final decree it is called a final in- 
 junction. When the bill prays for an injunction it 
 
A SUIT IN EQUITY. 39 
 
 will be granted if the court is satisfied that the plaintiff 
 is entitled to that 'relief . 
 
 TITLE. 
 
 In the name of the People of the State of Michigan : 
 To L. G., and to his counselors, attorneys, solicitors 
 and agents, and each and every of them, greeting: 
 
 Whereas, it has been represented to us, in the Cir- 
 cuit Court for the County of , in chancery, 
 
 on the part of C. D., complainant, that he has lately 
 exhibited his bill of complaint against you, the said 
 C. D., defendant, to be relieved, touching the matters 
 therein complained of, in which bill it is stated, 
 amongst other things, that you are combining and 
 confederating with others to injure the said complain- 
 ant, touching the matters set forth in the said bill, and 
 that your actings and doings in the premises are con- 
 trary to equity and good conscience; we, therefore, 
 in consideration thereof, and of the particular matters 
 in the said bill set forth, do strictly command you, the 
 said C. D., and the persons before mentioned, and 
 each and every of you, under the penalty of ten thous- 
 and dollars, to be levied on your lands, goods and 
 chattels, to our use, that you do absolutely desist and 
 refrain from selling, mortgaging and doing any other 
 act which will effect the title or change the possession 
 of the following described property, situated in the 
 
 city of , in the County of , and 
 
 State of Michigan, viz. (here follow description), until 
 the further order of this court. 
 
40 A SUIT IN EQUITY. 
 
 Witness the Honorable A. K., Circuit Judge, and 
 
 the seal of said circuit court, at , this .... 
 
 .... day of , in the year one thousand eight 
 
 hundred and eighty-eight. 
 
 D. F., Register. 
 L. M., Solicitor for Complainant. 
 
 The injunction should be served on the defendant. 
 Service is made in the same manner as service of a 
 subpoena, by the sheriff, who makes his return upon 
 the original writ. 
 
 REPLICATION TO ANSWER. 
 
 As we have already said, if the answer is such that 
 the complainant is satisfied that he can obtain the re- 
 lief he desires on the admissions made therein, he 
 notices the cause for hearing on the pleadings. If, 
 however, the answer controverts the facts charged in 
 the plaintiff's bill, or sets forth new facta and circum- 
 stances, which the plaintiff is not disposed to admit, 
 he files a replication to the defendant's answer. This 
 replication is identical with the replication to a plea— 
 already given — except where the word "plea" occurs 
 in that, the word "answer" is to be inserted. For- 
 merly, if the defendant's answer stated new facts, in 
 opposition to those alleged in tlie bill, the complainant 
 was accustomed to reply by a special statement of 
 other facts, not before charged. This produced a re- 
 joinder by the defendant. A sur-re joinder frequently 
 followed the rejoinder, and a rebutter the sur-rejoinder, 
 and so on as long as new f^acts were set forth by one 
 party and denied by the other. 
 
 Michigan Chancery Rule 12 requires the replication 
 
A SUIT IN EQUITY. 41 
 
 to be filed within fifteen days after service of the an- 
 swer. Otherwise the cause shall stand for hearing 
 upon bill and answer. That rule also provides that 
 the repHcations may be in substance as follows : 
 
 "The complainant says that, notwithstanding the 
 answer of the defendant, he is entitled to the relief 
 prayed for in his bill of complaint." 
 
 Upon the complainant filing a replication to the an- 
 swer the cause is at issue (Mich. Rule 13.) 
 
 TESTIMONY. 
 
 The cause being at issue, by the filing of a repHca- 
 tion, the parties may proceed to their proofs under 
 the rules of court for the purpose of establishing their 
 respective contentions. 
 
 There have been within the past few years such im- 
 portant and radical changes in this part of chancer) 
 practice that we will confine our attention to the prac- 
 tice in this state. Similar changes have been made 
 in other states. 
 
 Within ten days after the cause is at issue either 
 party may give notice and have the testimony taken 
 in open court. If neither party so elects, the testi- 
 mony shall, without further order, be taken before a 
 circuit court commissioner, unless the parties stipulate 
 to take it before some other person authorized to ad- 
 minister oaths. The complainant must put in his tes- 
 timony within thirty days after the ten days limited 
 by law for giving notice of taking proofs in open 
 court. The defendant then has forty days within 
 ■which he must put in his testimony. The complain- 
 ant has twenty days thereafter in which he may put in 
 
42 A SUIT IN EQUITY. 
 
 rebutting testimony. Each party must give the other 
 four clays' notice of the time and place of taking testi- 
 mony. The time for taking testimony may be ex- 
 tended by the court upon cause shown. (Rule 14.) 
 
 The testimony is taken orally. The questions upon 
 direct and cross-examination are asked by the respec- 
 tive solicitors and the questions and answers are writ- 
 ten out in full by the commissioner. If any question 
 is objected to, such objection is taken down by the 
 commissioner. The commissioner, however, does not 
 rule upon the objection, but takes down the answer 
 as though no objection had been made. The testi- 
 mony of each witness is read over to him and he then 
 signs it. 
 
 Within five days after the testimony is concluded, 
 the commissioner, at the request of either party, re- 
 turns and files the testimony and the exhibits with tlie 
 register. The testimony is closed when the time for 
 taking it has expired and no order closing proofs 
 need be entered. (Mich. Rule 14.) 
 
 In case witnesses reside out of the state or more 
 than thirty miles from the residence of the commis- 
 sioner, either party wishing to examine them may, 
 during the time the order to take proofs is in force, 
 present a petition to the register, stating the names 
 and residences of the witnesses and of the persons pro- 
 posed as commissioner, asking for the issuance of a 
 commission to take the testimony of such witnesses. 
 The adverse party, if he wishes, may join in such com- 
 mission. 
 
 Formerly all the testimony taken in chancery pro- 
 
A SUIT IN EQUITY. 43 
 
 ceedings was upon written interrogatories, but at the 
 present time it is only necessary to resort to written 
 interrogatories when the witnesses reside out of the 
 state. The interrogatories, direct and cross, are set- 
 tled by the commissioner, the practice being for the 
 solicitor, whose witness is to be examined, to serve 
 upon the opposing solicitor a copy of the direct in- 
 terrogatories and a notice of the time and place of 
 their settlement. And such solicitor may, at such 
 time and place, have cross interrogatories settled. 
 
 TITLE. 
 
 COMMISSION TO TAKE TESTIMONY. 
 
 In the name of the People of the State of Michigan : 
 To John Jackson, Notary Public, of the City of San 
 Francisco, in the State of California, greeting: 
 
 Know ye, that in confidence of your prudence and 
 fidelity, the said Circuit Court for the County of 
 
 , in Chancery, has, by a rule entered upon 
 
 the records thereof, in a certain cause now pending 
 in said Court, wherein A. B. is complainant and C. D. 
 is defendant, and now at issue, have nominated and 
 appointed, and do, by these presents, nominate and 
 appoint you, and give unto you full power and author- 
 ity, to examine upon oath (or affirmation) John Felix 
 and James Dale, of the City of San Francisco, in the 
 State of California, witnesses to be produced, sworn 
 and examined on the part and behalf of said com- 
 plainant, upon certain written interrogatories hereto- 
 annexed; and we therefore command you, that at a 
 certain day and place, to be by you appointed, you 
 
-44 A SUIT IN EQUITY. 
 
 do cause the said John FeHx and James Dale to come 
 before you, and then and there examine them, and 
 each of them, on his oath (or affirmation), first taken 
 before you (which oath or affirmation you may ad- 
 minister), touching the matters and things referred to 
 in said interrogatories; and that you cause the exam- 
 ination of said witnesses to be reduced to writing, and 
 to be subscribed by said witnesses, which examination 
 is also to be certified by you. And when you shall 
 have so taken the said depositions, you are to annex 
 the same, with any exhibits produced and proved be- 
 fore you, to this commission, and to return the sa|ne 
 into said Court, according to the direction of tliis 
 commission. And you are in all things to be governed 
 in the premises by the instructions hereto annexed. 
 
 Witness, the Honorable A. K., Circuit Judge of 
 said Circuit Court, at the Court House, in the City 
 
 of , in said County, this day of 
 
 , in the year of our Lord one thousand eight 
 
 hundred and eighty-eight. 
 
 L. D., Register. 
 
 C. G. and M. L., Solicitors for Complainant. 
 
 To such commission are annexed the interroga- 
 tories and cross interrogatories upon which the wit- 
 nesses are to be examined, as the sattie have been set- 
 tled by the commissioner. 
 
 Direct and cross interrogatories to be administered 
 to the witness John Felix in pursuance of the commis- 
 sion annexed. 
 
 DIRECT INTERROGATORIES. 
 
 First. What is your name, age, occupation and 
 place of residence? 
 
A SUIT IN EQUITY. 45- 
 
 . Second. Do you know the complainant and defend- 
 ant in this cause, and if so, how long have you known, 
 them? 
 
 Third. Do you know, &c., &c. 
 Lastly. Do you know or can you set forth any other 
 matter or thing which may in any wise tend to the 
 benefit of the complainant in this cause? If so, set 
 forth the same and all the circumstances and particu- 
 lars thereof, according to the best of your knowledge,, 
 remembrance and beHef, with your reasons at large. 
 L. G., Solicitor for Complainant. 
 CROSS INTERROGATORIES. 
 
 First. Did you, during the month of October, 1885,. 
 reside in the city of Sacramento, in the State of Cali- 
 fornia? 
 
 Second. Did you during the month of October,. 
 1885, and about the 15th, see the complainants at the 
 Park Hotel, in said City of Sacramento? 
 
 Third. If you answer yes to the third cross inter- 
 rogatory above, state if you had any conversation with 
 said complainant at said time and place? 
 
 Fourth. If you answer yes to the third cross inter-- 
 rogatory above, state such conversation in full. 
 
 Fifth. Did not the complainant say to you, &c.,. 
 &c. 
 
 Lastly. Do you know or can you set forth any 
 other matter or thing which may in any way tend to- 
 the benefit of the defendant in this cause? If so, set 
 forth the same and all the circumstances and particu- 
 lars thereof according to the best of your knowledge,, 
 remembrance and belief, with your reasons at large.. 
 M. M., Solicitor for Defendant. 
 
±& A SUIT IN EQUITY. 
 
 Upon the return of the commission, the register is 
 required to open and endorse upon it the date of its 
 receipt. He is also to notify the soHcitor in whose 
 behalf the testimony was taken of its receipt, and such 
 solicitor must notify the opposite solicitor. If there 
 has been any irregularity or informality in the taking 
 of the deposition which the opposing solicitor wishes 
 to take advantage of, he must do so by making a 
 motion to suppress the deposition, and give notice of 
 such motion to the other solicitor within the time pre- 
 scribed. 
 
 Proof having been closed and the testimony taken, 
 filed in the court, the cause is ready for hearing upon 
 pleadings and proofs. 
 
 Either party may notice the cause for hearing. Such 
 notice must be in writing and served upon the oppos- 
 ing solicitor. 
 
 TITLE. 
 
 NOTICE OF HEARING. 
 
 Sir — Take notice, that the above entitled cause will 
 be brought on for hearing at the next term of said 
 court, on pleadings and proofs (or on bill and answer, 
 or on &c., as the case may be), at the opening of the 
 court on the first day thereof, or as soon thereafter as 
 counsel can be heard. 
 
 Dated this day of 
 
 J. K., Solicitor for Complainant. 
 To M. M., Solicitor for Defendant. 
 
 The solicitor noticing the cause for hearing at any 
 
 term of court must furnish the register with a note of 
 
A SUIT IN EQUITY. 47 
 
 issue, SO that he may place the cause on the court 
 calendar. Causes in equity may be noticed during 
 term. In such case no note of issue need be given. 
 
 TITLE. 
 
 NOTICE OP ISSUE. 
 
 The above entitled cause will be brought on for 
 hearing at the next term of this court, notice having 
 been served on the part of the complainant on M. M., 
 Esq., solicitor for defendant. You will place said cause 
 on the issue docket of this court. This cause belongs 
 to the 4th class and is to be heard on pleadings and 
 proofs and is entitled to priority from July i, 1888. 
 
 J. K., Solicitor for Complainant. 
 To the Register of said court. 
 
 HEARING OF THE CAUSE. 
 
 Upon the hearing complainant opens the argument. 
 It is usual for the court to request the solicitor for 
 complainant to give a statement of the case made by 
 the bill and a statement of the testimony sustaining 
 the complainant's contention, and then to call upon the 
 solicitor for defendant to make a brief statement of the 
 defence, as shown by the pleadings and proofs. When 
 the court has obtained in this manner a clear concep- 
 tion of the case in all its bearings, the regular argu- 
 ment is made and the cause submitted to the court. 
 At the time the cause is submitted, or on some other 
 day, the court announces its decision. This decision 
 is frequently given orally, the solicitors being present. 
 Sometimes a written memorandum of the decision is 
 made and filed by the court, at the time he announces 
 
48 A SUIT IN EQUITY. 
 
 his decision, and sometimes the register makes a min- 
 ute of the decision in his minute-book. The party in 
 whose favor the decision is made then prepares a draft 
 of such a decree as he thinks he is entitled to in ac- 
 cordance with the terms of the decision, and serves 
 a copy upon the other solicitor, who has a right to pro- 
 pose amendments to it, if he thinks proper so to do. 
 The draft and amendments, if any, are then submitted 
 to the court, and the solicitors are heard upon the 
 settlement thereof. 
 
 When the decree has been settled it is entered by 
 the register upon the journal. It is considered as 
 entered from the time it is settled and filed with the 
 register. 
 
 A DECREE IN EQUITY. 
 
 Decrees in general consist of three parts: i. The 
 date and title. 2. The recitals. 3. The ordering 
 part, to which is sometimes added. 4. The declara- 
 tory part. When this latter part is made use of, it 
 generally precedes the ordering part. 
 
 The decree commences with the name of the court 
 and the place where it is held, the term <it which it is 
 pronounced and the title of the cause. It was the 
 practice at one time to recite at length the pleadings 
 and evidence in the cause, but how the decree merely 
 recites the substance of the pleadings and the facts on 
 which the court founds its judgment. After the re- 
 citals comes the ordering or mandatory part of the 
 decree, containing the specified directions of the court 
 upon the matter before it, which, it is obvious, must 
 depend upon the nature of the particular case which 
 
A SUIT IN EQUITY. 49 
 
 is its subject. When the suit seeks a declaration of 
 the right of the parties, the ordering part of the decree 
 should be prefaced by such declaration. 
 
 The following is the form of a decree as formerly 
 rendered by the Court of Chancery in England: 
 
 DATE AND TITLE. 
 
 This cause, coming on this day to be heard and 
 debated before the Honorable the Lord High Chan- 
 cellor of Great Britain, in the presence of counsel 
 learned on both sides, the substance of the complain- 
 ant's bill seemed to be that, &c. (Here the com- 
 plainant's bill is shortly recited.) Therefore, that the 
 said defendant may pay, etc, (the prayer of the bill), 
 and to be relieved, is the scope of the complainant's 
 bill ; whereto the counsel for the defendant alleged that 
 he by answer admits, etc. (the substance of the answer 
 stated); whereupon, and upon debate of the matter, 
 and hearing the answers of the defendants, etc., and 
 the proofs taken in this cause read, and what was 
 alleged by the counsel on both sides, his lordship de- 
 clared that, etc. (the decree of the court). 
 
 THURLOW C. 
 WINTER, for the Complainant. 
 
 DECREE AND ORDER OF SALE IN FORECLOSURE OF 
 MORTGAGE. 
 
 The following is the usual form of a final decree 
 and order of sale in this state in a suit to foreclose a 
 mortgage : 
 
50 A SUIT IN EQUITY. 
 
 TITLE. 
 
 At a session of said court, held at , on 
 
 the first day of October, one thousand eig-ht hundred 
 and eighty-eight. 
 
 Present, Hon. C. K., Circuit Judge. 
 
 This cause came on to be heard, and was argued 
 by counsel; and thereupon, upon consideration there- 
 of, it was ordered, adjudged and decreed as follows, 
 viz.: 
 
 On reading and filing the report of L. F., one of 
 
 the circuit court commissioners of county, 
 
 which report bears date the third day of August in the 
 year one thousand eight hundred and eighty-eight, 
 and was made in pursuance of an order of this court 
 heretofore made in this cause, referring it to one of 
 the circuit court commissioners of this county to com- 
 pute the amount due to the complainant on the note 
 an.d mortgage mentioned and set forth in the bill of 
 complaint, from which it appears that there was due 
 to the said complainant at the date of swd report, for 
 said principal and interest the sum of three thousand 
 and twenty dollars, and on reading and filing the affi- 
 davit of B. J., solicitor for complainant, showing the 
 regularity of the proceedings in this cause, to take 
 said bill of complaint as confessed; and on motion of 
 B. J., counsel for the complainant, it is ordered, ad- 
 judged and decreed, and this court, by virtue of the 
 authority therein vested, doth order, adjudge and de- 
 cree, that the said report, and all things therein con- 
 tained, do stand ratified and confirmed. And it is 
 
A SUir IN EQUITY. 51 
 
 further ordered, adjudged and decreed, that the de- 
 fendant pay or cause to be paid to said complainant or 
 to B. J., his soHcitor, the amount so reported due asi 
 aforesaid, together with the interests and costs, on or 
 before the first day of December, in the year one thou- 
 sand eight hundred and eighty-eight, and in default 
 thereof, that all and singular the said mortgaged prem- 
 ises mentioned in the bill of complaint in this cause, 
 and hereinafter described, or so much thereof as may 
 be sufficient to raise the amount due to the complain- 
 ant for the principal, interest and costs in this case, 
 and which may be sold separately without material 
 injury to the parties interested, be sold at public auc- 
 tion, by or under the direction of L. F., one of the cir- 
 cuit court commissioners of this county, at any time 
 after the first day of December, in the year one thou- 
 sand eight hundred and eighty-eight, that the said sale 
 be made in the county where the said mortgaged prem- 
 ises, or the greater part thereof, are situated; that the 
 said L. F. give public notice of the time and place of 
 such sale, according to the course and action of this 
 court, and that the complainant, or any of the parties 
 in this cause may become the purchaser; that the said 
 L. F. execute a deed to the purchaser or purchasers 
 of the mortgaged premises on the said sale; and that 
 the said L. F., out of the proceeds of said sale, pay 
 to the complainant, or his solicitor, costs in the suit 
 to be taxed, and also the amount so reported to be 
 due as aforesaid, together with the legal interest there- 
 on, from the date of said report, or so much thereof 
 as the purchase money of the mortgaged premises 
 
52 A SUIT IN EQUITY. 
 
 will pay of the same; and that the said L. F. take the 
 receipt for the amount so paid, and file the same with 
 his report; and that he bring the surplus iiioney arising 
 from said sale, if any there be, into court without de- 
 lay, to abide the further order of this court. And it is 
 further ordered, adjudged and decreed, that the de- 
 fendant and all persons claiming or to claim from or 
 under said D.. F., defendant, be forever barred and 
 foreclosed of and from all equity of redemption, and 
 claim of, in and to said mortgaged premises, and every 
 part and parcel thereof. And it is further ordered, 
 that the purchaser or purchasers of said mortgaged 
 premises at such sale, be let in possession theeof; and 
 that any of the parties of this case, who may be in 
 premises at such sale, be let in possession thereof; and 
 any person who, since the commencement of this suit, 
 has come into possession under them or either of them, 
 deliver possession thereof to such purchaser or pur- 
 chasers, on production of the circuit court commission- 
 er's deed for such premises, and a certified copy of the 
 order confirming the report of such sale, after such 
 order has become absolute. And it is further ordered 
 and decreed, that if the moneys arising from said sale 
 shall be insufficient to pay the amount so reported due 
 to the complainant with interest and costs and ex- 
 penses of sale as aforesaid, that said L. F., circuit 
 court commissioner, specify the amount of such defi- 
 ciency in his report of said sale, and that on the com- 
 ing in and confirmation of said report the defendant 
 ■D .F., who was personally liable for the debt secured 
 by said mortgage, pay to the complainant the amount 
 
A SUIT IN EQUITY. 53 
 
 of such deficiency, with interest thereon from the date 
 of such report, and that the complainant have execu- 
 tion therefor. The description and particular boun- 
 daries of the property authorized to be sold under and 
 by virtue of this decree, so far as the same can be as- 
 certained from the mortgage above referred to or from 
 the bill of complaint in this cause, are as follows, viz. : 
 Lot one in block two, according to the original plat 
 
 of the village, now city, of , in the county 
 
 of , according to the recorded plat there- 
 of in the register's office in said county. 
 
 C. K., Circuit Judge. 
 RECTIFYING DECREES. 
 
 After the court has formally announced its decision 
 and until the decree has been settled and entered, 
 either party feeling himself aggrieved may move the 
 court for a re-argnment of the cause or that certain 
 parts of the decision be modified. 
 
 After the decree has been settled and entered and 
 before it is enrolled, either party may petition the 
 court for a re-hearing. The petition must state par- 
 ticularly the objections which are conceived to lie 
 against the decree, that the court may be competent 
 to decide upon the propriety of the application; and if 
 the whole decree is objected to, the case of the peti- 
 tioner and the decretal part of the order are shortly 
 set forth, and an intimation is given of the decree 
 which the petitioner is advised ought to be entered. 
 If any of the facts stated in the petition do not appear 
 on the records of the court, they must be verified by 
 affidavit. The petition for re-hearing must be accom- 
 
54 A SUIT IN EQUITY. 
 
 panied by the certificate of two counsel, setting forth 
 that they have examined the case, and that in their 
 opinion the decree is erroneous for the reasons stated. 
 This precaution is taken as a security that the applica- 
 tion is not made for the purpose of delay merely. 
 
 AFTER ENROLLMENT. 
 
 The general rule is that a decree regularly obtained 
 and enrolled cannot be altered except by a Bill of Re- 
 view. 
 
 COSTS. 
 
 It is a general doctrine of courts of equity that costs 
 are entirely in the discretion of the court, to be awarded 
 or withheld according to the equity of each particu- 
 lar case. This discretion is not a mere whimsical one, 
 however, but is based upon certain fixed principles, 
 and as a general rule the prevailing party is entitled to 
 costs. When a party is entitled to costs, he must ap- 
 ply for them and have their payment made a part of 
 the order or decree. When a definite sum is allowed, 
 as on overruling a motion, no further proceedings are 
 necessary to fix the liability of payment upon the party 
 against whom the costs are given. In final decrees 
 the order is usually upon payment of costs to be taxed. 
 In that case the party in whose favor the costs are to 
 be allowed makes out a taxed bill of costs which he 
 thinks he is entitled to, verified by affidavits, serves a 
 copy upon the solicitor of the opposing party, with no- 
 tice that application will be made to the register to 
 have the same taxed at a certain time and place. At 
 such time and place the costs are taxed by the regis- 
 ter. 
 
A SUIT IN EQUITY. 56 
 
 TAXED BILL, OF COSTS. 
 TITLE OF CAUSE AND COURT. 
 
 COMPLAINANT'S BILL OF COSTS. 
 
 Solicitor's fee, by rule $30 00 
 
 Sheriff's fees 10 00 
 
 Register's fees 15 00 
 
 Circuit Court Commissioner's fees 28 00 
 
 Witness fees, viz.: 
 
 A. B., 2 days and 20 miles travel $4 00 
 
 C. D., I day and 10 " " 2 00 
 
 L. G., 5 days and 30 " " 8 00 — 14 00 
 
 $97 00 
 
 STATE OF MICHIGAN, ) 
 County. ( ^^• 
 
 L. C, being duly sworn, says that he is the solici- 
 tor for the complainant in the above entitled cause, 
 and that the several items of disbursement and fees 
 of officers of the court, charged in the foregoing bill 
 of costs, have been actually and necessarily incurred 
 or paid, according to his best information or belief. 
 
 L. C. 
 
 Subscribed and sworn to before me this 
 
 day of , 188... 
 
 X. Y., Notary Public. 
 
 BNROLLMIINT OF DECREE. 
 
 The decree is enrolled in the following manner: 
 The register of the court in which the decree is en- 
 teied attaches together the bill, pleadings and such 
 other papers as the general rules direct, together with 
 the taxed bill of costs therein, and annexes thereto 
 
56 A SUIT IN EQUITY. 
 
 a fair engrossed copy of the decretal order, signed by 
 the circuit judge and countersigned by the register 
 who entered the same. The register then annexes to 
 the papers so attached together his certificate, under 
 the seal of the court, wherein he certifies according to 
 the fact, the time when the papers were attached to- 
 gether, for the purpose of enrollment, and the names 
 of the parties at whose instance the same was done. 
 (Mich. Rule 24.) 
 
 BILL, OF REVIEW. 
 
 If, after the enrollment of the decree, any new mat- 
 ter of evidence be discovered, which could not have 
 been had or used when the decree was rendered, or if 
 any apparent error of judgment appear on the face 
 thereof, it may be reconsidered by means of a bill of 
 review. 
 
 When the bill of review is founded upon errors ap- 
 parent on the face of the decree, it may be filed with- 
 out leave of the court. When it is founded upon new- 
 ly discovered evidence, leave of the court must be first 
 obtained, and such leave will be given or withheld in 
 the discretion of the court. 
 
 The bill of review must recite the former bill and the 
 proceedings had under it and the former decree of the 
 court. If it is founded upon error apparent on the 
 face of the decree, such error is specifically pointed 
 out. If upon facts which have come to light -since 
 the hearing, those facts are stated, and when and how 
 they came to the knowledge of the complainant, after 
 which it is usual to add, just before the prayer for sub^- 
 poena: 
 
A SUIT IN EQUITY. 57 
 
 "For all which errors and imperfections in the said 
 decree, your orator has brought this his bill of review, 
 and humbly conceives he should be relieved therein. 
 In tender corisideration whereof, and for that there are 
 divers other errors and imperfections in said decree 
 and proceeding, by reason whereof the same ought to 
 be reviewed and reversed, added to, altered and amend- 
 ed, and that the said C. D. may answer the premises, 
 and that your orator may be relieved in all and singu- 
 lar therein, according to equity and good conscience. 
 
 May it please, etc.'' 
 
 Besides bills of review, there are two other classes 
 of bills which are exhibited subsequentl> to a decree, 
 namely: Bills to impeach a decree on account of 
 fraud, and bills to carry decrees into execution. If a 
 decree has been obtained by fraud, it may be im- 
 peached by an original bill without the leave of the 
 court, because the fraud used in obtaining the decree 
 being the principal point at issue, and necessary to 
 be established by proof before the propriety of the 
 decree can be investigated. When a decree has been 
 thus obtrined, the court will restore the parties to their 
 original situation, whatever their rights may be. The 
 prayer of such a bill must be varied to meet each case 
 — especially if the decree has been executed. 
 
 Sometimes from the neglect of the parties, or 
 other reason, it becomes impossible to carry a decree 
 into execution without the further order of the court, 
 This happens, generally, when the rights of parties 
 under the decree have become so entangled and em- 
 barrassed, from their neglect to proceed under it, by 
 
58 
 
 A SUIT IN EQUITY. 
 
 subsequent events, that it is necessary to have a de- 
 cree of the court to settle and ascertain them. This 
 is obtained by filing a bill in the nature of an origi- 
 nal bill to carry into execution the former decree. The 
 cour-t in such cases merely determines in what man- 
 ner the former decree shall be executed, so as to do 
 equity to all the parties. 
 
 APPEALS, 
 
 There is usually a court to which the party who 
 deems himself aggrieved by the decree of the court 
 in which the suit is commenced, may appeal, and if 
 both parties desire, both may appeal. In this state 
 an appeal is taken from the Circuit Court in Chancery 
 to the Supreme Court. This is a purely statutory 
 right, and the provisions of the statute must be strictly 
 complied with. 
 
 Notice of claim of appeal is to be filed with the regis- 
 ter, together with the bond provided for in the statute, 
 and notice that an appeal has been taken served upon 
 the opposite solicitor. When the appeal has been per- 
 fected, the register transmits the records to the Su- 
 prcme Court. 
 
 In the Supreme Court no further proofs are taken ' 
 and the cause is heard upon the same pleadings and 
 proofs as were before the Circuit Court, when it made 
 the final order, or decree, from which the appeal was 
 taken. 
 
 The practice in the Supreme Court and the enforce- 
 ment of a decree we shall omit and close our suit in 
 equity at this stage in the proceedings. 
 
Equity Pleading and Practice. 
 
 LECTURE I., 
 
 HISTORY OF EQUITY PLEADING. 
 
 Lube introduces the second part of his equity plead- 
 ingwith the following remark of Littleton : "And know, 
 my son, that it is one of the most honorable, laudable, 
 atid profitable things in our law, to have the science of 
 well pleading; and therefore, I counsel thee especially 
 to employ thy courage and care to learn this.'' 
 
 A little courage and much care are essential to suc- 
 cess in this branch of the law; a knowledge of plead- 
 ing cannot be absorbed by rubbing against good 
 pleaders , and it is one of the things that does not come 
 to those who simply wait. 
 
 Courts are instituted for the purpose of securing to. 
 every one the enjoyment of life, liberty and the pur- 
 suit of happiness. They have been defined to be 
 places where justice is administered. When a person 
 feels himself aggrieved, and he cannot otherwise have 
 redress, he applies to the courts to restore to him the 
 right that has been withheld, or to give him repara- 
 tion for the injury he has sustained. The courts in- 
 order that they may administer justice have laid down 
 certain rules which the suitor must conform to when- 
 he applies to the court for relief. They can not inter- 
 
'60 EQUITY PLEADING AND PEACTIOE. 
 
 iere upon the bare suggestion of an injury. It must 
 appear from the complaint that the suitor is entitled 
 "to relief and he must, afterwards, support the matters 
 set up in the application by competent proof. 
 
 When complaint is made to a court of justice the 
 "first step is to summon the defendant that he may have 
 an opportunity to present his side of the case. The 
 -defendant thus has an opportunity to appear and con- 
 test the plaintiff's right. This he may do by either 
 •denying the legality of the plaintiff's demand, admit- 
 ting his statement of the facts to be true or by denying 
 the truth of the plaintiff's statement of fact or of some 
 particular fact essential to his right to recover, or he may 
 allege some matter on his own behalf which operates 
 to avoid the plaintiff's demand by showing that no 
 cause of complaint ever existed, or, if it once existed, 
 has been subsequently removed. These several de- 
 fences go to the merits of the controversy. But in ad- 
 -dition to these defences upon the merits the defendant 
 may object to making any such defence, for the rea- 
 son that the plaintiff has not applied to the proper 
 court, that the court is without jurisdiction, or that the 
 "plainiff, for some reason not effecting the merits, is 
 not entitled to claim the assistance of the court, or that 
 there is some defect in the mode of proceedings which 
 will, ultimately render the proceedings abortive. 
 
 The disputations of the parties were at first, in the 
 law courts, delivered orally and taken down by the 
 ■clerk. If an objection was made which turned upon 
 the law governing the case the party making the ob- 
 jection appealed to the court and the question was 
 
EQUITY PLEADING AND PRACTICE. 61 
 
 decided by the court. If the objection turned upon; 
 a question of fact affirmed on one side and denied on 
 the other an appeal was made to the country, to a 
 jury, and a trial was had before a jury who determined 
 by their finding the truth of the matter in controversy. 
 These preliminary disputations of the parties were 
 called pleadings and the point in dispute tne issue. Af- 
 ter a time pleadings in the law courts were made in 
 writing, and they were in writing in the chancery 
 courts from the first. 
 
 You will note that the only object of pleadings is 
 to present the real question in dispute between the 
 litigants freed from all irrevelent and immaterial mat- 
 ter, so that the attention of the court or jury may be 
 confined wholly to the simple question presented. All" 
 the rules of pleading, however abstruce and compli- 
 cated they may appear, have this one object in view. 
 And all those rules when properly understood are seen 
 to be conducive to that end and are perfectly intelli- 
 gible when referred to the principle above stated. 
 
 Let us now apply these principles to the several 
 pleadings as they occur on the part of the plaintiflf 
 and defendant, taking up each separately: First, we 
 have the plaintiff's statement of the injury and his 
 application for redress. Here are two points to be 
 considered; first, the nature of the wrong sustained' 
 and how it is to be set out and, second, the plaintiffs 
 right to apply to the particular court and the form 
 of the application. 
 
 First, the statement of the injury. "Wrongs," says 
 Blackstone (3 Com. 2.), "convey to us an idea merely 
 
62 EQUITY PLEADING AND PEACTICE. 
 
 negative, as being nothing else but a privation of a 
 right." The plaintiff must, therefor, in his applica- 
 tion for redress, set out the right of which he has been 
 deprived. This leads to the consideration of rights, 
 which depend wholly upon legal or equitable relations, 
 established by contract, or, the law. Purely moral ob- 
 ligations are not enforced in the courts. All equit- 
 able rights rest for their foundation upon some legal 
 duty or obligation. The plaintiff must, therefore, in 
 his statement, set forth clearly the relation in which he 
 stands to the defendant from which the right flows of 
 which he claims he has been deprived, Now, rela- 
 tions let in three separate considerations : first, the par- 
 ties with their several disabilities and liabilities in law; 
 second, the subject matter, or contract, with the cir- 
 cumstances under which it was made; and third, the 
 legal and equitable rights incident to that relationship. 
 It is because of the infinite variety of relationship that 
 parties stand to each other that courts have found it 
 necessary to make so many and such precise rules for 
 presenting the simple question in controversy to the 
 end that such question may be made plain and intelli- 
 gible and that the matter may be brought to judgment 
 with convenient certainty. 
 
 The statement, therefore, consists of three points: 
 I. It must set forth the relation between the parties; 
 2 The right accruing to the plaintiff from that rela- 
 tion; 3. That such right has been withheld. The first 
 and principal point, therefore, with the plaintifif is to 
 show this right and, however complicated and diffuse, 
 a declaration at law, or a bill in equity may be, if it 
 
EQUITY PLEADING AJ^D PBACTICE. 63 
 
 is a good pleading, it is reducable to three proposi- 
 tions: The first proposition states a rule of law, that 
 a certain right flows from a certain relation; the sec- 
 ond, that the parties stand in that relation; and third, 
 that the plaintiff has been wrongfully deprived of the 
 right coming to him from such relation. 
 
 The first proposition, the rule of law, is proved, 1st, 
 b)^ the statute law, the question in such a case turning 
 frequently upon the construction of the statute; 2d, by 
 precedent, former decisions of the court, the question 
 turning upon the rule to be gathered from such prece- 
 dents; and 3d, by analogy, when the rule is to be 
 collected from decisions in analagous cases, or, deter- 
 mined from a consideration of the fundamental prin- 
 ciples of equity itself. 
 
 The second proposition is founded on the facts of 
 the case. The facts stated must be sufficient to estab- 
 lish the relationship claimed in law, and their truth 
 must'be estabHshed. Their truth is a question of fact, 
 their sufficiency is a question of law. The adequacy 
 of the facts to establish the relation is proved by show- 
 ing that under the law and precedent they are suffi- 
 cient to establish the relation claimed. The third is 
 a question of fact. 
 
 Next as to the application for redress. Every one 
 who has suffered a wrong is prima facie entitled to re- 
 dress; it is a maxim that the law does not suffer a 
 wrong without a remedy. But a court is not an inn 
 bound to supply every applicant with refreshments. 
 The law for the convenience of suitors and the prompt 
 despatch of business has established a variety of courts 
 
64 EQUITY PLEADING AND PRACTICE. 
 
 and to some of these courts it has given exclusive juris- 
 diction to hear and determine a certain class of cases. 
 The plaintiff, therefore, must make his application to 
 that court having cognizance of the wrong complained 
 of. Again, the pkintifif must have a right to bring 
 suit and the party sued must not be exempt from such. 
 The plaintiff's application must follow the forms which 
 the courts have established as being best calculated to 
 attain the ends of justice that the defendant may know 
 what and how to answer. It must be so framed that 
 the whole question involved and all the'parties in inter- 
 est may be brought before the court so that complete 
 justice may be done and no one harrassed unreason- 
 ably. And lastly, the application must not be made 
 if a similar application is pending between the same 
 parties in another court of competent jurisdiction. 
 
EQUITY P1.EADING AND PRACTICE. 65 
 
 LECTURE II. 
 
 PLEADING CONTINUED. 
 
 Having now considered what it is necessary for tlie 
 plaintiff to do and what his statement of his cause of 
 action must contain, and also what are the requisites 
 of his application for redress, we now turn to the de- 
 fendant's defence. The defence may be a denial of 
 the plaintiff's right to recover upon the merits, based 
 upon a denial of the statement of facts upon which the 
 suit is grounded, or, by confession and avoidance; or, 
 he may object to the application for redress for the rea- 
 son that the application has not been made to the pro- 
 per court, or, for any of the objections we have already 
 pointed out. The first defence, upon the merits are 
 called pleas in bar; the second, pleas in abatement, or 
 dilatory pleas, because, for the most part, their oper- 
 ation is merely temporary. 
 
 Objections to the^ application for redress must be 
 made, first, that is, the defendant must exhaust his 
 pleas in abatement before he pleads in bar. If he 
 pleads to the merits he will not be permitted afterwards 
 to plead in abatement. By pleading in bar he waives 
 all objections which it is within his power to waive. 
 
 I. If the complainant has commenced his suit in 
 a court which has not authority to hear it, the defend- 
 ant may object for that reason, which is called a plea 
 to the jurisdiction. 
 
66 EQUITY PLiEADING.AND PRACTICE. 
 
 2. The defendant may allege in abatement of tlie 
 suit. a. some legal disability on the part of the plain- 
 tiff, or, b, some exemption on the part of the defend- 
 ant, which shields him from prosecution. These are 
 called pleas to the person. 
 
 3. If there is any defect in the mode or form of 
 proceeding in consequence of which the merits cannot 
 be fully passed upon by the court as when there is a 
 misnomer, or want of parties, or want of certainty in 
 the statement of the cause of action, such defect may 
 be taken advantage of by plea in abatement. The 
 rules require, however, in this class of objections that, 
 if the facts by which the error complained of may be 
 cured, are within the knowledge of the defendant, he 
 must state them, give the plaintiff a better writ: Thus, 
 if there is a misnomer, he must set forth the correct 
 name, or, if there is a want of parties, he must point 
 out who has been omitted. 
 
 Next as to the defence upon the merits, the answer, 
 or pleas in bar. Since every cause of action is due to 
 the deprivation of some duty, or right flowing from 
 some legal relation, every defence to an action upon 
 the merits must be, either. 
 
 1. Confessing the relation to deny the right. This 
 is a general issue at law, called a demurrer. 
 
 2. Confessing that the right demanded would fol- 
 low from the relation assumed, to deny, generally, the 
 existence of the relation, which is the general issue in 
 fact, or, to deny some particular allegation upon which 
 the whole relation exists. 
 
EQUITY PLEADING AND PBACTICE, 67 
 
 3. Confessing the right and relation to deny thft 
 subtraction, or, 
 
 4. Confessing the subtraction to give some vaHd 
 reason to excuse the non-performance of the duty. 
 The two latter are called special pleas in bar. 
 
 Again: the reason assigned in excuse may be two- 
 fold, in reference to the two propositions concerning 
 the relation and the right. First, it may be some new 
 matter to invalidate the prima facie relation set out in 
 the complaint; or secondly, it may be some new matter 
 by means of which, supposing the relation to exist, 
 yet the right derived from it is gone; and here it is ob- 
 vious that the reason alleged must be of new matter; 
 for if the same statement appeared on the face of the 
 complaint, the defendant might at once deny the right; 
 which, as observed above, would be a demurrer, or 
 general issue in law. It has been before remarked 
 that relations may be considered with respect to the 
 parties, the subject matter, and the incidents. 
 
 1. First, then, to invalidate the relation, the new 
 matter may show, first, that the parties were incapaci- 
 tated from contracting the relation, or are incapable 
 to continue it. Secondly, that the subject matter was 
 insufficient or illegal, or had undergone some altera- 
 tion. Thirdly, that the right, being incidental, had not 
 accrued. 
 
 2. Second, the new matter may show that the 
 right, thought once existing, is barred by the act of 
 party; by the act of law; or, lastly, by the act of 
 God, or unavoidable calamity. 
 
 Upon examination, you will find that every possible 
 
68 EQUITY F1.EADING AND PRACTICE. 
 
 species of defence is included under the above heads, 
 and may be referred to some one of the foregoing 
 classes — a proof of the correctness of the principles 
 from which they are deduced. 
 
 Upon an attentive investigation of the four modes 
 of rebutting the complaint just enumerated, it will be 
 seen that the fourth is in a great measure resolvable 
 into the second; for it is manifest that whatever matter 
 is adduced to demonstrate that the relation is invali- 
 dated or its incidents altered, will tend to prove that it 
 is not the same as stated in the complaint, and there- 
 fore may be denied generally; and this, at first view, 
 would appear to be the shortest course. In effect, 
 many things which might be pleaded specially in ex- 
 cuse, are allowed to be given in evidence under the 
 general issue, in avoidance of the claim. But there 
 are three gi-and objects achieved by special pleas; first, 
 the law and the fact are kept distinct; second, the is- 
 sue is narrowed, by means of which the points to be 
 proved in evidence are considerably diminished, and 
 the parties saved expense; and third, the court and op- 
 posite party are apprised of the nature of the defence. 
 Wherever the attainment of these three ends, therefore, 
 is not materially obstructed, the court has given great 
 latitude in allowing the general issue to be pleaded. 
 
 From wha,t has been said above, it is clear that to 
 constitute a sufficient answer to any material allega- 
 tion in a pleading, the adverse party must either deny 
 the allegation altogether, or confess the fact, and avoid 
 the inference, viz. ; by setting up some new matter con- 
 sistent with such allegation, but which, if true, is an 
 
EQUITY PLEADING AND PRACTICE. 69 
 
 swer to it. If, however, he set forth matter inconsis- 
 tent with the allegation, by way of avoidance, this will 
 not be sufficient, without a direct denial of the allega- 
 tion. And this for two reasons; first, because as the 
 inconsistent matter is in effect a different statement, 
 both statements may relate to distinct subjects and so 
 be both true ; and, second, such denial avoids prolixity, 
 by tendering an issue at once, and gives the party an 
 opportunity to prove his allegations. 
 
 A denial of this kind, prefaced by matter of avoid- 
 ance, is called a traverse, and begins with the techni- 
 cal words ''absque hoc.'' The preceding statement is 
 termed the inducement, and such fonnal traverse is only 
 necessary when it is requisite to show that the point 
 traversed is material; otherwise a simple denial, ac- 
 cording to the second mode of defence, will be suffi- 
 cient. As the inducement, therefore, shows the ma- 
 teriality of the traverse if the inducement be bad, tlie 
 traverse will be insufficient. The inducement, how- 
 ever, cannot be met by a denial, because it is enough 
 for the opposite party to prove his allegation true 
 (which the traverse enables hiin to do), and then the 
 inducement being of inconsistent matter, if relating 
 to the same subject, must be false; or relating to a dif- 
 ferent subject, does not operate as an avoidance. This 
 is the meaning, of the rule laid down in the books, 
 that "a traverse cannot be taken after a traverse." 
 
 The immediate use and design of pleading is the 
 formation for an issue, which Lork Coke defines to be 
 "a single, certain, and material point, issuing out of the 
 allegations or pleas of the plaintiff and defendant, con- 
 
70 EQUITY PLEADING AND PfSACTICE. 
 
 sisting regularly upon an affirmative and negative." 
 As soon as this object is effected, therefore, in such 
 manner as to answer the whole of the precedent plead- 
 ing, the matter is brought to a close; and the party 
 who first arrives at that point is said to tender an is- 
 sue; and concludes by praying the judgment of the 
 court, if it be a question of law; or if it be a matter of 
 fact, he concludes to the country, i. e., he demands 
 a trial by jury; for if it be a disputed record, he appeals 
 to the record itself, and the adverse party joins issue 
 by doing the like. On the other hand, when a plead- 
 ing introduces new matter by way of avoidance or 
 excuse, it only concludes with a verification, because 
 such new matter may be contested as to its validity in 
 law or its truth in fact, or the other side may adduce 
 new reasons to invalidate it in turn. In this latter 
 case, the pleadings must advance one step further. 
 
 Having taken this view, we shall now proceed to 
 the plaintiff's reply to the defendant's plea, called the 
 replication. The replication being an answer to the 
 plea, we shall consider it with reference to the four 
 modes of defence already enumerated. It is manifest 
 that the first two constitute issues, there being an af- 
 firmation on one side, met by a denial on the other. 
 The replication in these cases, therefore, only joins 
 issue. 
 
 The third mode of defence, namely, the denial of 
 subtraction is always put affirmatively, by averring a 
 performance; because this is a proposition which ad- 
 mits of dispute both in law and in fact, and, therefore, 
 the opposite side should have an opportunity of an- 
 
EQUITY PLEADING AND PRACTICE. 7 I 
 
 swering it, which is done by assigning a particular 
 breach. _ This last mentioned replication bears a 
 strong analogy to that which is called a "novel assign- 
 ment," viz.: where the complaint not having been set 
 out with sufficient precision, it becomes necessary 
 from the evasiveness of the plea, to re-sign the cause 
 of the action with fresh particulars. 
 
 It is, however, the excusing non-performance (be- 
 ing the fourth mode of defence) which opens the widest 
 range for replication. The statement of excuse may, 
 like the statement of the right, be reduced to two pro- 
 positions, and of a similar nature. The first proposi- 
 tion is — 
 
 That certain incidents superadded to the admitted 
 relation, operate as a legal discharge to the otherwise 
 resulting liability. 
 
 The second — ^That such incidents affect the acknowl- 
 edged relation. 
 
 Therefore, That the defendant is discharged from 
 liability. 
 
 The first proposition here is a question of law, and 
 may be met by demurrer; the second is a question of 
 fact, and may be denied or confessed, and avoided by 
 a new showing; or traversed, in a manner precisely 
 similar to that which we have described at large, when 
 treating of pleas in bar. 
 
 To the replication the defendant must again rejoin, 
 by taking issue or tendering issue, or adding new mat- 
 ter of avoidance; and so on, until the parties arrive at 
 the true and simple point of controversy. 
 
72 EQUITY PLEADING AND PEACTICE. 
 
 LECTURE III. 
 
 HISTORY OF THE COURT OF CHANCERY. 
 
 The origin of the courts and tribunals for the ad- 
 ministration of justice of any particular nation, ante- 
 dates the written history of that nation; for no matter 
 how rude and uncivilized a people may be, there will 
 necessarily arise among them many questions that 
 must be submitted for decision to some individual or 
 body of individuals. Among the Germans and Anglo 
 Saxons all legislative, executive and judicial power 
 was at first exercised by the people of each particular 
 community meeting together upon special or stated 
 occasions. The advent of kings and the growth of 
 royal prerogatives deprived the people of many of 
 their ancient powers. 
 
 It is not certain that the Anglo-Saxon kings ever sat 
 in a judicial capacity, and we know that justice was 
 ordinarily administered by courts in the several coun- 
 ties, towns or districts. 
 
 I Madox His., Exch. 92. 
 
 After the Norman conquest, however, the king was 
 regarded as the fountain of justice and he sometimes, 
 at least, sat as a court or as a member of a court to 
 administer the law. 
 4 Inst., 7. 
 I Spence. Eq. Jur., 330. 
 
 It was early determined, however, that while the 
 king might sit in the court, indeed was pi esumed to be 
 
EQUITY PLEaDING AND PfiABTICE. 73 
 
 always present, he was there as king not as judge and 
 spoke only "by the mouth of his judges." 
 
 12 Coke Rep., 63. 
 
 During the Norman period the Witenagemote of 
 the Anglo-Saxons was known as the King's Court, 
 the Curia Regis. It differed altogether from a modem 
 court and resembled rather a modern legislative body. 
 It included several distinct counsels. Some of which 
 have continued to the present day in a modified form. 
 The Select Counsel, Concilium Privatum, was a com- 
 mittee composed of the great officers qi the state and 
 leading members of the nobility, who were- nominated 
 by the king and sworn into office. With this council 
 the king consulted upon all important state affairs. It^ 
 still exists and is now called the privy counsel. 
 
 Hale's The Lord's House in Parliament, 4-13. 
 I Spence Eq. Jur., 238. 
 
 The judicial business coming before the Curia Regis 
 •was ordinarily referred to one of three permanent com- 
 •mittees, afterwards known as the Courts of Exchequer, 
 Common Pleas and King's Bench. The Court of Ex- 
 chequer assumed jurisdiction of all matters pertaining 
 to the revenue, the Court of Common Pleas of all civil 
 •disputes, in which the interest of the king was not in- 
 volved and the Court of King's Bench of all crimes 
 and other matters not falling within the jurisdiction 
 of either one of the other courts. 
 
 Hale's Lord's House in Parliament, 51, 55. 
 
74 EQUITY PLEADING AND PEACTICE. 
 
 One of the principal officers of the Kingdom wa& 
 the Chancellor. He was, probably, at fiist, the king's 
 private secretary, but at a very early date became in- 
 vested with many judicial powers and was given a 
 general superintendency over the other officers of 
 state, and had the custody of the king's great seal. 
 
 3 Blk., Com., 46, 47. 
 
 4 Inst., 88. 
 
 The Chancellor was a member of the Curia Regis 
 and of the privy counsel and, by virtue of his office, 
 exercised certain common law judicial powers. He 
 had authority to repeal letters patent granted by the 
 king, to hear petitions of right against the Crown, and 
 to hear and determine all personal actions to which 
 the king or his officers were parties and especially to 
 issue all writs by which all common law actions were 
 commenced. The Chancery, the Chancellor's Court, 
 was therefore a common law court as ancient as the 
 Kingdom itself. 
 
 Spence. Eq. Jur., 336. 
 
 Hale's, etc., 47. 
 
 3 Blk. Com., 47. 
 
 Bacon's Abr. "Ct. of Chy.," B. 
 
 Com. Dig. Chancy A. 1. :i. 
 
 The chancellor exercised very important functions- 
 aside from these common law powers. He was us- 
 ually, at first, a bishop or some other church dignitary, 
 and was the king's chaplain. Owing to his confiden- 
 tial relations with the king and his priestly character, 
 all matters which required the king to intervene and 
 prevent any hardship which might be occasioned by 
 
EQUITY PJ,EADLNG AND PRACTICE. 75- 
 
 the strict enforcement of rights in the common law 
 courts were naturally referred to the chancellor, and 
 he thus came to be called the Keeper of the King's- 
 Conscience. 
 
 Hargrave's Law Tracts, 427. 
 I Madox. Hist. Ex., 60. 
 
 No action at law could be commenced in the com- 
 mon law courts except by an original writ. These 
 writs were all framed by the chancellor's clerks, after- 
 wards Masters in Chancery, and were issued out of 
 the chancery, in the name of the king and under his 
 great seal. The writ was directed to the sherifif of 
 the proper county, requiring him to command the de- 
 fendant to right the wrong set forth in the writ, or ta 
 appear in one of the common law courts and answer 
 for his default. 
 
 I Spence Eq. Jur., 238. 
 3 Harvard Law Rev., 97. 
 I Madox 8s, 86. 
 
 All these original writs were framed by the masters- 
 upon the statement of facts given them by the suitors^ 
 and although they could not be issued except out of 
 the chancery, the judges of the law courts had exclu- 
 sive authority to pass upon their sufficiency and also- 
 as to what would be a good and sufficient defence to- 
 each particular cause of action. 
 
 I Spence, 325. 
 
 It soon happened that these writs became crystal- 
 ized, assuming a fixed rigid form, losing every quality 
 of elasticity. All ordinary causes of action were sup- 
 
76 EQUITY PLEADING AND PEACTICE. 
 
 plied with a writ, but if there was a new cause of ac- 
 tion, there was no remedy in the law courts, for the 
 reason that the common law judges would not allow 
 the form of any of the old writs to be changed or modi- 
 fied nor would they allow a new writ to be issued. 
 
 I Spence, 240. 
 
 To remedy this defect by enlarging the jurisdiction 
 •of the Common Law Courts, the statute of Westmin- 
 ster, the Second was passed (13 Ed. i. Chap., 24). It 
 provided that: "Whensoever from henceforth it shall 
 fortune in chancery, that in one case a writ is found, 
 •and in like case falling under like law, and requiring 
 like remedy, is found none, the clerks of the chancery 
 •shall agree in making the writ, or adjourn the plain- 
 tiffs into the next parliament; and let the cases be 
 v/ritten in which they cannot agree, and let them reler 
 themselves to the next parliament, by consent of men 
 learned in the law, a writ shall be made, lest it might 
 happen after that the court should longtime fail to min- 
 ister justice unto complainants." 
 
 This statute gave the chancery three new writs, in 
 •case, trover and assumpsit, and nothing more. 
 
 3 Blk. Com. SI. 
 
 I Spence. Eq. Jur., 325, 326. 
 
 Actions at law at this time were divided into two 
 general classes. Real and Personal. Real actions 
 were brought to determine the right to and the pos- 
 session of the various estates in land, and all these 
 proceedings were exceedingly technical, both in form 
 and procedure. Personal actions were divided into 
 
EQUITY PLEADING AND PRACTICE. 77 
 
 two classes, ex contractu and e.v delicto. And it neces- 
 sarily happened that there were a great many appli- 
 cations made by suitors whose cases did not fall with- 
 in the ground covered by any writ, and which were- 
 still meritorious and appealed to the conscience of the 
 king. Undoubtedly at first the king or the -chancellor 
 gave their personal attention to such cases and in one 
 way or another saw that substantial justice was done. 
 But in the reign of Edward III. we find the Court of 
 Chancery giving relief in cases not cognizable by tlie 
 law courts and requiring extraordinary remedies. By 
 an ordinance made in the 22d year King Edward III.^ 
 all matters of grace were referred to tho Chancellor,, 
 or Keeper of the Privy Seal. 
 
 I Madox, 62. 
 
 I Spence, Eq. Jur., 337. 
 
 I Storey Eq. Jur., Sec. 44 11. 
 
 Re-x vs. Hare, I Strange, 150. 
 
 After this ordinance of Edward III., suits in equity- 
 were instituted by a bill addressed to the chancellor.. 
 It was from a very early period written in English- 
 and hence was called an English bill, while the pro- 
 ceedings in the common law courts were written in 
 Latin. The earliest bill of which we have any record" 
 was filed in the reign of Henry V., and was written in 
 law French. 
 
 Hals vs. Hynchly, i Law Quar. Rev.,. 443- 
 3 Blk. Com., 318. 
 
 The bill contained a simple statement of facts upon 
 which relief was predicated. At first, the chancellor 
 after a personal examination of the bill, if he found 
 
78 EQUITY PLEADING AND PRACTICE. 
 
 the case meritorious, issued a subpoena requiring the 
 ■defendant to appear before the court of chancery and 
 -answer. Afterwards the chancellor required every bill 
 to be signed by the solicitor who prepared it, and rely- 
 ing upon his judgment issued a subpoena as a matter 
 •of course. 
 
 I Spence Eq. Jur., 368. 
 
 Evart vs. Williams, cited in 20 Eq., 230, note. 
 
 The writ of subpoena is said to have been invented, 
 "by John Waltham, Master of the Rolls, in the fifth 
 year of the reign of Richard II. It obtained its name 
 from the fact that it commanded the defendant to ap- 
 pear and answer the complainant, and abide the "order 
 •of the court under a certain penalty (subpoena) therein 
 inserted. In case the defendant neglected or refeused, 
 he was proceeded against for contempt of the court. 
 
 3 Blk. Com., SI, 443. 
 
 I Spence Eq. Jur., 338, 345, 369. 
 
 As we have seen above suits at law were commenced 
 by an original writ issuing out of the chancery, sum- 
 moning the defendant before one of the common law 
 courts. When the parties appeared in the law court 
 the pleadings were entered. At first the pleadings 
 were made orally and were written down by the clerk, 
 -afterwards they were reduced to writing and filed with 
 the clerk. In chancery the suit was commenced b)r 
 "bill or petition addressed to the chancellor, ,ipon 
 which the writ, subpoena, issued requiring the defend- 
 ant to appear and answer 
 
EQUITY PLEADING AND PEACTICE. 79 
 
 Not only did the Court of Chancery proceed in a 
 different manner in the commencement of suits, but 
 the relief which it afforded was more ample and com- 
 plete than the law courts could give. And this latter 
 circumstance tended materially to increase the num- 
 ber of its suitors. The machinery of the common law 
 courts to- either prevent wrongs or compel parties to 
 carry out their agreements was defective. The remedy 
 for a breach of a contract at law was a judgment for 
 damages, but the Court of Equity could compel the 
 defendant to fulfill his engagement by decreeing a 
 specific performance. The law courts were powerless 
 in most instances to prevent a threatened wrong; but 
 the Court of Chancery by injunction could restrain 
 the defendant from acting to the injury of the com- 
 plainant. 
 
 I Spence Eq. Jur., 344. 
 
 In the troublous times of Richard II., the Court of 
 Chancery protected the poor and weak against the 
 rich and powerful, assuming, in some Cdses, criminal 
 jurisdiction. 
 
 I Spence Eq. Jur., 358, note, 685. 
 
 Another important difference between the two 
 courts was their method of procedure in taking proofs. 
 No person who had an interest in the suit was at law 
 permitted to testify, nor could the plaintiff, at law, 
 compel the defendant to be a witness. In chancery 
 the defendant was required to answer the complain- 
 ant's bill under oath, and if the defendant desired to 
 
80 EQUITY PLEADING AND PRACTICE. 
 
 obtain the complainant's testimony, he could file a 
 cross bill. 
 
 I Blk., 382, 437, 446. 
 
 Evans vs. Becknell, 6 Ves., 174. 
 
 The Court of Chancery did not, like the law court.s, 
 sell justice. In those early times one of the principal 
 revenues of the crown was derived froi.i the sale of 
 justice, or rather, perhaps, a sale of the means of pro- 
 curing and obtaining justice. The final judgment of 
 the law court, when obtained, was, considering the 
 times, honest, fair and impartial. Every step, how- 
 ever, in a law suit had to be purchased with a fine, or 
 what we should now call costs. The suitor must pay 
 for his writ, for the privilege of pleading certain facts, 
 to hasten the trial, to hasten judgments, for the col- 
 lection of the judgment. Some of the amounts were 
 very considerable. It frequently cost more than one- 
 half of the demand in fines paid the king, to say noth- 
 ing of the amount paid the attorney, to collect a de- 
 mand. Madox, in his history of the exchequer, classi- 
 fies these court fines as follows : 
 
 1. Fines to have justice and right. 
 
 2. Fines for writs, pleas, trials and judgments. 
 
 3. Fines for expeditions of pleas, trials and judg- 
 ments. 
 
 4. Fines for delay thereof. 
 
 5. Fines payable out of the debt recovered. 
 
 Madox, Chap. 12. 
 
 The Court of Chancery did not hesitate to enjoin 
 parties from proceeding at law in certain cases and also 
 
EQUITY PLEADING AND PRACTICE. 81 
 
 to enjoin thfe collection of judgments obtained by 
 fraud. This jurisdiction brought the court in direct 
 conflict with the common law courts and the common 
 law lawyers. And the conflict was characterized bv 
 much bitterness on both sides. 
 
 Campbell's Lives of Lord Chancellors, Cap. 48. 
 Courtney vs. Glenville, Cro. Jac, 343. 
 Earl of Oxfords Cas. 2. White & Tudor, 642. 2 Swanst 22 
 note. ' 
 
 A somewhat similar contest arose in this country in 
 the State of Xew York in 1809. 
 
 Re Yates, 4. Johnson, 317. 
 Yates vs. Lansing, 5 Johns, 282. 
 Yates vs. Lansing, 9 John., 395. 
 
 At first the chancellor assumed that the law govern- 
 ing his powers was quite above that which trammeled 
 the action of the common law judges; that as the rep- 
 resentative of the King, wlip was hirhself the fountain 
 head of all authority, he was authorized and emposv- 
 ered to do equity and right, so far as he had the wis- 
 dom to comprehend right and justice. His conscience 
 was to be for him both law and precedent, and so Lord 
 Chancellor Ellesmere declared in the Earl of Oxford's 
 case that "the Chancellor sits in chancery according 
 to an absolute and uncontrollable power, and is to 
 judge according to that which is alleged and proved; 
 but the judges of the common law are to judge ac- 
 cording to a strict and limited powers." It was this 
 assumption of individual authority that caused Seldort 
 to declare that equit\- was according to the. conscience; 
 of him who was Chancellor, and as that was larger or 
 
82 " . EQUITY PLEADING AND PEACTICE. 
 
 narrower, so was equity, and that it was quite as 
 variable, uncertain and unsatisfactory as would be the 
 standard of measure, if you made the Chancellor's 
 foot such a standard. 
 
 The reproach of the uncertainty of the rules of equity 
 no longer exists. The Chancellor administers equity 
 hy rules ^f prncednre just as well defined as those nf 
 the common law courts and which weic devised for 
 the purpose of giving litigants their .ommon law- 
 rights, i. e., their legal rights. The cases? which occur 
 are various, but they are decided upon fi3,.v;d principles 
 and new cases are decided upon the principles whicl . 
 have been already determined by precedent in the same 
 manner as law courts are controlled by precedent. 
 Both the law and the equity court, are equally bound 
 by, and equally profess to interpret the law according- 
 to the intent of the legislature, and all the rules for 
 construing statutes are common to both Courts of 
 Equity and Law. 
 
 Gee vs. Pritchard, 2 Swanst, 402. 
 Hargrave's Law Tracts, 325. 
 3 Blk. Com., 433. 
 1 Story Eq. Jur., 319. 
 
 At the present time, however, in many of the states 
 the distinction between actions in chancery and at law- 
 have been abolished. In others the same courts sit 
 both as a court of law and chancery. While in only 
 a few are the courts kept entirely separate and dis- 
 tinct, and in those there is no conflict between the 
 common law court and the court of chanc-ery. 
 
EQUITY P1,EADING AND PKACTICE. 83 
 
 LECTURE IV. 
 
 PLEADING AND PRACTICE. 
 
 By chancery pleadings we understand the written 
 allegations of the respective parties; the plaintifif's 
 statement of the facts upon which he relies in order to 
 obtain the aid of the court, and the defendant's reply 
 thereto, his defence. 
 
 By the practice of the court we are to understand 
 all of the various proceedings in the suit, outside the 
 pleadings, . from its commencement to its final deter- 
 mination. In theory and upon principle, pleadings 
 and practice are entirely separate and distinct, and 
 that fact should be constantly kept in mind, but since, 
 in the conduct of a suit, there is necessarily a step 
 taken in pleadmg followed by one in practice, it will 
 be more convenient and satisfactory to consider plead- 
 ings and practice together, as questions touching the 
 one or the other naturally arise in the conduct of a 
 suit. 
 
 The following definition has been given of a bill in 
 equity Cursus Cancellarae 36): "A bill in equity is 
 in the nature of a declaration at common law, wherein 
 the complainant is to set forth the circumstances of his 
 case for some fraud, force, or injury done him, praying 
 relief of the court, for that he has no remedy by the 
 common law; and also process of subpoena against 
 the defendant to compel him to answer the charge of 
 the bill." We have already called your attention to 
 the fact that in setting forth the wrong that has been 
 done him the plaintifif does no more than to show that 
 
84 KQUITY PLEADING ANU PRACTICE. 
 
 he has been deprived of a certain right, ^vhich belongs 
 to him by virtue of certain relations that exist: that 
 rights are incident to relations and that to prove the 
 right 3'ou must show tliat the relation to which the 
 right is incident exists. Relations again must be con- 
 sidered with reference : i st, to the parties with their 
 several liabilities and disabilities; 2d, the subject mat- 
 ter of the contract, the circumstances under which it 
 was executed and the nature of the property in litiga- 
 tion; and lastly, the legal and equitaijle incidents, 
 right's, the withholding of which is the cause of com- 
 plaint. 
 
 In speaking of relations Lube says: "Relations may 
 be divided into primary or original — secondary or 
 derivative — and collateral. The first are those which 
 subsist between the original parties; the second are 
 such as are derived therefrom, either by the transmis- 
 sion of interest, or the transfer of title or liability. 
 Thus there is a primary relation between the mort- 
 gagor and mortgagee; but if the mortgagor assigns 
 his equity of redemption, there then arises a new or 
 secondary relation between the mortgagee and the 
 assignee of the equity. A collateral relation is that 
 which exists betv,een two or more derivative parties. 
 
 n D E R A 
 
 Thus in the figure above, let O and T stand for the 
 parties to the original relation; let T be tenant for life. 
 
EQUITY PLEADING AND PEACriCE. 85 
 
 and R a remainderman : let A be an assignee, or alienee 
 of T"s interest; let H represent the heir at law to O; D 
 be his devisee and E executor. Here there will be a 
 secondary relation between O and A, in respect of the 
 privity of contract between T and A. There ^\■ill be 
 also a secondary relation between O and R, in respect 
 of the privity of estate between T and R. Between T 
 and H there will be a secondary relation, in respect of 
 the privity of blood between O and H. So between T 
 and D, in respect of the privity of interest between O 
 and D; and in like manner between T and E. on ac- 
 count of the pric'ity of representation between O and E. 
 Again, H, D, and E on one side, and A and R on the 
 other, stand in collateral relations to each other. 
 Other derivative relations might be enumerated; but 
 this will suffice at present for the purpose of illustra- 
 tion. The right understanding of these particulars 
 is in the first place essential to the determination of 
 the necessary parties to the suit, and the importance 
 of this doctrine will be still further apparent when we 
 come to freat of Supplemental Bills and Bill of Re- 
 vivor. 
 
 The original relation may arise, either, ist, out of a 
 specific contract, the incidents of which must depend 
 upon the terms of agreement, as in those cases where 
 a specific performance is sought to be enforced; or, 2d, 
 the relation may be such as though arising from con- 
 tract between the parties, is nevertheless recognized 
 and ascertained by the law, which attaches to it cer- 
 tain essential incidents and ingredients — such as the 
 relation of partnership, of mortgagor and mortgagee, 
 
86 EQUITY PLEADING AND PHACTICE. 
 
 and the like ; or, 3d, it may be produced by the act of 
 a third person, as in the relation of executor and lega- 
 tee; or, 4th, it may arise by the operation of law, as, 
 for example, the relation between tenant in dower 
 and heir at law. 
 
 In the first instance, as the nature of the relation is 
 to be collected from the words of the contract, if the 
 agreement be in writing, it must in general be set out 
 verbatim in the bill; if not in writing, then such col- 
 lateral circumstances must be stated as raise a strong 
 presumption in favor of its existence. On this point 
 of the specific performance of parol agreements, vari- 
 ous rules have been laid down in equity, with which 
 the student should make himself acquainted, in order 
 to frame his bill in cases of this nature. In the state- 
 ment of specific contracts, the agreement must also 
 be shown to be of such a kind as not to militate with 
 general policy, [a] and that the stipulations contained 
 in it are such as a court of equity ought in conscience 
 to enforce. [&] The circumstances und^r which the 
 agreement was made, form therefore, in most in- 
 stances, a material part of the statement; and every 
 fact should be set out, by way of inducement, tending 
 to show that the consideration was valid and the terms 
 fair and equitable; for it is a maxim, "that he that 
 would have equity should do equity." 
 
 In the second case above noticed, where the relation 
 is one recognized by law, all the legal requisites to form 
 such relation and the liabilities resulting from it, shoiild 
 
 [o] 9 Ves. 608. I Vern. 5. 
 [6] 2 Anst. 543. 
 
EQUITY PLEADING AND PEACTICE. 87 
 
 be well understood, that the draftsman may be able to 
 bring the case in the bill within the meaningf of the 
 law, and show such a breach as constitutes an injury 
 cognizable in equity. As this kind of relation is 
 founded in like manner as the former, on the contract 
 of the parties, it will be subject to the same rules with 
 regard to the equity of consideration and origin. 
 
 The same observations will apply to the 3d and 4th 
 classes above enumerated, with this additional remark 
 —that all the circumstances that led to the existing re- 
 lation, must be succinctly alleged by way of preamble, 
 both for the advantage of clearness of statement, and 
 also in order to deduce the complainant's title. 
 
 This last is essential to every bill, and in general, 
 it is to be remarked, there are four things indispen- 
 sably requisite to be shown in the stating part, namely, 
 ist, the complainant's interest [a] in the thing de- 
 manded; 2d, his title [b] to sue; 3d, the defendant's 
 interest; [c] and 4th, his liability; [d] for though there 
 cannot be a title or a liability without an interest, 
 there may be an interest without either. Thus, an 
 executor, before he has proved the will, has an interest 
 in the testator's chattels, but not such as to give him 
 a title to sue; [e] so also an assignee has an interest in 
 the thing assigned, although not liable to be sued fof 
 breach of covenant, unless such covenant runs with 
 
 [o] 2 Atk. 210. 
 
 [6] I Vern. 105. 9 P. Wms. 371. 
 
 [f] 2 Eq. Ca. Ab. 78. 2 Vern. 380. 
 
 [d] I Vern. 180. i Ves. 56. 
 
 W I P. Wms. 173, 176. I i 
 
i<6 EQUITY PLEADING AND PRACTICE. 
 
 the land, [a] We do not here speak of the title or 
 liability with reference to those defects which are the 
 proper subject of abatement; but the title and liability, 
 as derived from the very relation itself, and which 
 therefore must appear on the face of it, if the relation 
 be adequately stated. It is necessary, however, to 
 observe, that the title thus deduced, Inust not appear 
 by the bill to be affected by any personal disabiHty; 
 and the defendant must be liable in the court of equity 
 where the suit is instituted. 
 
 In deducing the title in the third class of original 
 relations, it will be seen that such a preamble is neces- 
 sary as will show that the person creating the relation 
 had the power to do so, whether by law or by express 
 pozvcr in a deed, In the first case the capacity in law 
 is all that need be stated — as, for example, "that the 
 testator was, at the time of making his will, and at his 
 death, sel:scd of or entitled to freehold estate, and pos- 
 sessed of personal property; and being of sound and 
 disposing mind, made and published his will, with the 
 usual formalities." With regard to the execution of a 
 pozver created by deed, it will in general be requisite 
 to set out the power in hoec verba, since a question 
 may turn on its extent or validity; and if the latter be 
 likely to be contested, the preamble should go back to 
 the origin of the instrument containing the power. 
 Indeed, the student will observe that the preamble 
 must, in a great measure, depend upon his discretion, 
 always making it consistent with clearness of explana- 
 tion, and such as. may assist the complainant's title, 
 laYi Ves. s6. 
 
EQUITY PLEADING AND PRACTICE. 89 
 
 by discovery from the defendant, if any ambiguity in 
 the title render such detail necessary; but upon the 
 face of the statement, at least a prima facie title must 
 appear. In like manner, the draftsman must use his 
 discretion as to \\hether the whole or any part of the 
 instrument creating- the relation be set out totidcm 
 -verbis; having this general rule to guide him, that it is 
 usually unnecessary, and therefore improper, to state 
 more than the substance, unless where the duty 
 claimed depends upon the very words of the instru- 
 ment. 
 
 With respect to relations arising by operation of 
 law, we need only observe that the progress of the 
 operation should be traced from the prior relation to 
 its subsequent effect, and the circumstances must be 
 shown to be such as that the legal results necessarily 
 -ensue. 
 
 The relation having been clearly set forth, then fol- 
 lows the statement of the wrong which the plaintiff 
 has suffered, which is no more nor less than the neglect 
 or re'fusal of the defendant to perform his legal duty 
 to the plaintiff, or when the situation of the parties is 
 such, from fraud, accident or any other cause that 
 manifest wrong or irreparable injury will result unless 
 the court of equity interposes. 
 
90 EQUITY PLEADING AND PRACTICE. 
 
 LECTURE V 
 
 PARTIES TO THE SUIT. 
 
 It is necessary, first of all, for the pleader to deter- 
 mine what persons he -will make parties to the suit. 
 
 It is a rule of law, recognized by all courts, that no 
 one's rights, either of person or property, shall be 
 adjudicated unless he is present in court. Every one 
 is entitled to be heard, to have his day in court. It 
 follows, therefore, from this rule that every person 
 against whom the pleader desires to obtain a personal 
 decree, that is a decree requiring him to do or refrain 
 from doing some particular act, must be made a party. 
 Again a court of equity insists that all persons whose 
 interests will be affected adversely by the decree shall 
 be before the court, to the end that one suit may put 
 at rest forever the controversy in all its ramifications. 
 Combining these two rules we have the general rule 
 as 'to the proper parties to a suit in equity. "All per- 
 sons having an interest in the subject and object of the 
 suit, and all persons against whom relief must be ob- 
 tained in order to accomplish the object of the suit, 
 must be made parties.'' 
 
 Stevenson v. Austin, 3 Met. 474, 480; West v. Randall, 2- 
 Mason 181; Walkins v. Worthington, 2 Bland 509; Rumee v. 
 Clark, 7 Crahch 74; Williams v. Bankhead, 19 Wal. 563; Mc- 
 Arthur v. Scott, 113 U. S. 340; Brown v. Circuit Judge, 75 
 Mich. 274. 
 
 The parties to a suit in equity are styled plaintiffs 
 
EQUITY PLEADING AND PKACTICE. 9t 
 
 and defendants as at law, but while at law the inter- 
 ests of all the plaintiffs is adverse to that of all the 
 defendants, in equity the interest of the party does not 
 determine the question as to whether he is plaintiff 
 or defendant. It frequently happens that some of the 
 defendants to a suit have interests which are identical 
 with those of some of the plaintiffs. It is desirable- 
 that all the persons having interests that will be af- 
 fected in the same manner should be arranged on the- 
 same side, but it is far from necessary, and if any 
 person whose natural position is among the plaintiffs 
 refuses to so appear he can be made a defendant, and 
 the fact that he is a defendant will not affect his rights- 
 The court in ascertaining and determining the rights- 
 and interests of the several parties to the controversy 
 does so without considering at all the fact as to whether 
 they are plaintiffs or defendants. 
 
 Center v. Dawson, 2 Bland 264; Fawkes v. Pratt, i Pere* 
 Wm. 593; Bedford v. Leigh, i Dickens 707. 
 
 "All persons having an interest in the subject matter 
 of the suit" refers to those having an interest which 
 will be affected by the decree rendered. 
 
 Mich. St. Bk. V. Gardner, 3 Gray, 305. 
 
 Parties to a suit are sometimes designated as nonp- 
 iual, proper or necessary and indispensable. A nominal' 
 party is one who has no legal or equitable interest to- 
 be affected by the decree, but who stands in such a 
 relation to some of the other parties that he is made a-. 
 party for the sake of conformity. 
 
 Marco v. Hicken, 15 U. S. App. 55, 75. 
 
"92 EQUITY PLEADING AND PRACTICE. 
 
 A proper or necessary party is one who has such 
 an interest in the suit that he should be made a party 
 .to enable the court to adjust all the rights involved. 
 
 An indispensable party is one whose interests are 
 such that a decree cannot be made without affecting 
 them. 
 
 Tobin V. Walkinshaw, i McAllister 26, 31 ; Shields v. Bar- 
 .Tow, 17 Howard 130, 139; Bates v. Von Pelt, 20 S. W. R. 949; 
 Bates V. Von Pelt,,i Tex. Civ. App. 185. 
 
 The distinction between an interest in the suit and 
 an interest in the subject" matter of the suit must be 
 borne in mind. One may have an interest in the sub- 
 ject matter of the suit and have no interest in the suit: 
 but having an interest in the suit presupposes an in- 
 terest in the subject matter. For example, suppose 
 A and I! both claim title to a parcel of land, one from 
 the national and the other from the state government, 
 and that several persons are interested as mortgagees 
 -or otherwise under A, and others are interested in like 
 manner under B. Now, to a suit involving the con- 
 flicting titles of A and B, both A and B and all the 
 ■persons interested under either of them are necessary 
 parties, but in a suit for the foreclosure of a mortgage 
 given by A, neither B nor any person claiming under 
 him is a proper party, because the foreclosure of A's 
 mortgage does not affect B or any one claiming under 
 him. 
 
 You must, therefore, in determining who ought to 
 be made parties to a particular suit, ascertain first, 
 who are interested in the subject matter, and secondly, 
 which of those so interested will be affected bv the 
 
EQUITY PLEADING AND PRACTICE. 93 
 
 decree you hope to obtain. The latter are to be made 
 parties and not the others. If you make the others 
 parties, there will be a misjoinder. 
 
 AMien the pleader is in doubt as to whether or not 
 a particular person is a proper party, it is advisable to 
 omit him, since if it should be found afterwards that 
 he is a necessary party he may be added. And if such 
 a person is made a party in the first instance, he should' 
 be made a party defendant rather than complainant. 
 When parties are improperly joined as complainants, 
 the misjoinder is usually fatal, but when there has been 
 a misjoinder of defendants, the suit will usually be dis- 
 missed as to those who are not proper parties and pro- 
 ceed as to the others. 
 
 Daniel Ch. Pr., Chap. 5; Fulham v. McCarthy, i H. L. 
 Cas. 703. 
 
 The court will, in it.s discretion, modif} che rule that 
 all persons liaving an interest in the subject-matter 
 must be made parties when its strict enforcement 
 would be equivalent to denying relief altogether. 
 
 Wendell v. Van Rensselaer, i John. Ch. 344, 349; Hallett 
 V. Hallett, 2 Paige 15; Cullen v. Duke of Queensbury, i Br. 
 C. C. 103; Whitney v. Mayo, 15 111. 251; Society for the 
 Propagation of the Gospel v. Hartland, 2 Paine C. C. 536. 
 
 When it appears that one or more who of right 
 ought to be made parties, are out of the jurisdiction 
 of the court, or that making them parties would oust 
 the court of jurisdiction, the court may proceed with- 
 out their presence, provided the interests of those made 
 parties are such that the controversy can be satisfac- 
 
54 EQUITY FJLEADING AND PEACTJCE. 
 
 torily determined as to them, without prejudicing the 
 fights of those not made parties. 
 
 Mulligan v. Melledge, 3 Cranch 220; Elmendorf v. Taylor, 
 10 Wheat. 152; Mallow v. Hinde, 12 Wheat. 193; Payne v. 
 Hook, 7 Wall. 425; Bank v. Campbell, 14 Wall. 87; Story v, 
 Livingstone, 13 Pet. 359. 
 
 And when the parties on either side are very numer- 
 ous, and cannot, without inconvenience and delay, be 
 all brought in, the suit may proceed if all the adverse 
 interests are sufficiently represented by the parties be- 
 fore the court. 
 
 Mandeyille v. Riggs, 2 Pet. 482; Williams v. Bankhead, 
 IQ Wall. 563; Robinson v. Smith, 3 Paige 222. 
 
 When parties who are known to be interested in 
 the suit are not made parties to the bill, the reason for 
 not making them parties should be set forth, because 
 if the interest of those not made parties is such that 
 a final decree cannot 'be made without injuriously af- 
 fecting their interests, the coun will require them to 
 "be made parties, and if that cannot be done the bill 
 will be dismissed. 
 
 Riddle v. Mandeville, s Cranch 322; Russell v. Clark, 7 
 •Cranch 74; Marshall v. Beverly, s Wheat. 313; Mallow v. 
 Hinde, 12 Wheat. 193; Barney v. Baltimore, 6 Wall. 280; Bank 
 V. Railroad, 11 Wall. 624; Bank v. Campbell, 14 Wall. 87; 
 Ribon V. Railroad, 16 Wall. 446; Ober v. Gallagher, 93 U. S. 
 199; Cassidy v. Shimin, 122 Mass. 406; McPike v. Wells, 54 
 Miss. 136; Tyler v. Peatt, 30 Mich. 63. 
 
 Persons incapable of instituting suits for themselves 
 may sue by guardian or prochein ami, [a] and the court 
 
 [o] next friend. 
 
EQUITY PLEADING AND PRACTICE. 95 
 
 will appoint a guardian ad litem \h] to defend a suit on 
 behalf of such a person. 
 
 U. S. Rule 87; Puterbaugh Ch. Pr., Chap. 40, § i. 
 
 To illustrate the rule as to parties, take the case of 
 ihe foreclosure of a mortgage, i. All persons against 
 ■whom a personal decree is desired must be made par- 
 ties; tliat is, the maker of the note the mortgage was 
 ^ven to secure and other persons liable upon the note 
 as endorsers, &c. 2. All persons who have a right to 
 redeem from the mortgage lien must be made parties; 
 that is, all who have any interest in the premises cov- 
 ered by the mortgage, and all who hold liens upon 
 them created subsequent to the mortgage which is 
 being foreclosed. 
 
 Cummings v. Fearey, 44 Mich. 39, 44; McGowan v. Yerks, 
 6 Johns. Ch. 450; Reed v. Marble, 10 Paige 409; Goodenow v. 
 Ewer, 16 Cal. 461. 
 
 And it has been held that prior incumbrances iire 
 proper, although not indispensable parties. 
 
 Haines v. Beach, 3 Johns. Ch. 459; Finley v. Bank, 11 
 Wheat 304. 
 
 In a partition suit, all persons having an interest in 
 the premises, whether in possession or otherwise, even 
 the holder of a dower interest, which has not been ad- 
 measured, must be made a party. 
 
 Striker v. Mott, 2 Paige Ch. 387. 
 [H for the suit. 
 
96 EQUITY PLEADING AND PRACTICE. 
 
 In proceedings to enforce a mechanic's lien, all per- 
 sons having interests in the property affected or to be 
 affected by the lien, and all persons holding like liens 
 must be made parties. 
 
 MULTIFARIOUSNESS. 
 
 Lomax v. Dore, 45 111. 379; Raymond v. Ewing, 26 111. 329. 
 
 Not all persons whose interests will be affected by 
 the decree are indispensable parties, and they are not 
 always proper parties. Only those parties who are 
 interested in the' subject matter of the suit are proper 
 parties. A person who is interested and who will be 
 affected because he has a claim or interest like the one 
 covered by the suit is not a proper party. The rale 
 that the whole of a given controversy must be deter- 
 mined in one proceeding is limited by another rule 
 which prohibits uniting in one suit two or more causes 
 of action. For example, suppose A is about to erect 
 on a stream a mill-dam which B claims will necessarily 
 cause the water to overflow a portion of his lands 
 above the dam, and C claims that such dam will neces- 
 sarily interfere with his rights in the stream below the 
 dam. Both B and C desire that A should be enjoined 
 from erecting such a dam, and both are interested in 
 and will be by a suit instituted for that purpose, but 
 they may not unite in a bill to enjoin A from 
 erecting such dam, for the reason that there are 
 two separate and distinct contentions, and the flood- 
 ing of B's land above the stream has no connection 
 with C's rights in the stream below the dam. Thev 
 
EQUITY PLEADING AND PRACTICE. 97 
 
 must bring separate suits, and if they join in the same 
 bill it is said to be multifarious. 
 I Dan. Ch. Pr. 382, note. 
 
 Again, suppose there are several persons having 
 land in the same situation as B, which will be affected 
 by the proposed dam in the same manner, they are 
 all proper parties complainant, having all the same 
 plaint, but they are not required to unite, and if any 
 of them refuse to do so they may not be made parties 
 defendant, for this reason, that they have no interest 
 in the other lands flooded, and as to their own lands 
 they may not be compelled to litigate. The subject 
 matter of the controversy is the effect of the dam upon 
 the lands mentioned in the bill, and its effect upon 
 other lands is outside the record. 
 
 Judge Campbell gives the following rule as to mul- 
 tifariousness: "The general rule of equity is that every 
 several grievance must be redressed by a several pro- 
 ceeding. The only recognized exception to it (and 
 they are considerably qualified) are instances where 
 there is a single right asserted on one side which af- 
 fects all the parties on the other side in the same way,. 
 or a single wrong which falls on them all simultane- 
 ously and together. The instances which are most 
 familiar are rights in common which are resisted by the 
 owner of the estate which is charged, tax rolls assess- 
 ing all parties on an equal ratio, frauds by trustees 
 affecting all the cestius que trustent, and the like. * * 
 * * If there is any distinction in the proportion or 
 character of the several grievances, theie can be no) 
 joindef. j 
 
98 EQUITY PLEADING AND PRACTICE. 
 
 "When the cause of grievance does not arise out 
 of the same wrong, affecting all at once as well as sim- 
 ilarly, there is no foundation for such joinder." 
 
 Winslow V. Jenness, 64 Mich. 84, 87; Ken v. Lansing, 17 
 34; Walsh V. Varney, 38 Mich. 73; Bigelow v. Booth, 39 Mich. 
 622; Woodruff V. Young, 43 Mich. 548; Brunner v. Bay City, 
 46 Mich. 236; Jones v. Garcia Del Reo, i Turn. & R. 297; 
 Yeaton v. Lennox, 8 Pet. 123. 
 
 One of the instances mentioned by Judge Campbell 
 is that of several taxpayers who may unite when a 
 particular tax has been assessed against all of them 
 upon the same roll upon the same basis. But in this 
 class of cases they must not only have a common 
 grievance, but that common grievance must be the 
 result of the same facts and circumstances. They must 
 not only all object to the same tax, but they must have 
 one common objection. For instance, if it is a tax 
 levied for the cost of some pufilic improvement, a pav- 
 ing tax, ditch tax, or the like, the irregularity com- 
 plained of must aflfect them all alike. One cannot 
 complain of one irregularity which makes the tax void 
 as to him, and another of some other irregularity which 
 makes the tax void as to him. If each has a separate 
 grievance, although it goes to the whole tax or to 
 some part of the tax, each must bring a separate suit. 
 
 Kerr v. Lansing, 17 Mich. 34; Barker v. Vernon, 63 Mich. 
 •516-519; Schofield V. Lansing, 17 Mich. 437; Shulock v. 
 Wenitka, 59 111. 389. 
 
 Vice-Chancellor Wilkins thus defines multifarious- 
 ness : "There are three analagous vices to which bills 
 in equity are subject — misjoinder of plaintiflfs, mis- 
 
EQUITY PLEADING AND PEACTICE. 99 
 
 joinder of defendants, and multifariousness, or mis- 
 joinder of subjects of suit. Multifariousness, properly 
 so called, exists when one of the defendants is not 
 intended in the whole of the relief sought, as the old 
 form of the demurrer for multifariousness shows. 
 Misjoinder of subjects of suit is where two subjects 
 distinct in their nature are united in ont bill, and for 
 convenience sake the court requires them to be put 
 in two separate records." 
 
 Pointon v. Pointon, L. R. 12 Eq. 547, 555; Holbrook v. 
 Nesbitt, 163 Mass. 120; Brown v. Bedford City, etc., 91 Va. 
 31; Security Loan, etc., v. Buchanan, 60 Fed. Rep. 799 
 
 A bill is not multifarious, however, because it 
 unites several parties as defendants, each of whom is 
 not interested in the whole of the subject matter of 
 the suit. As when a bill is filed against several per- 
 sons, for instance, for an accounting for a stock of 
 goods which one of the defendants has fraudulently 
 disposed of to the others, who had knowledge and 
 were parties to the fraud. 
 
 IngersoU v. Kerby, Walk. Ch. 65; Blake v. Van Tilbury, 
 21 Wis. 679; Fellows v. Fellows, 4 Cow. 682; Brinkerhoff v. 
 Brown, 6 John. Ch. 139; Salvidge v. Hyde, 5 Madd. 138. 
 
 A bill filed for a partition of land between tenants 
 in common is not multifarious, because it asks for an 
 accounting as to the property and that a tax title ob- 
 tained by one of the tenants for a tax levied while the 
 land was owned in common be set aside. 
 
 Page V. Webster, 8 Mich. 263; Williams v. Gray, 3 
 Greenl. 207; Overton v. Woolfolk, 6 Dana. 374; Woodruff v. 
 Young, 43 Mich. 548. 
 
100 EQUITY PLEADING AND PEACTICE. 
 
 When several persons each hold a separate and dis- 
 tinct claim to title to a parcel of ground, one of them 
 filing a bill to quiet title cannot unite the others in the 
 same bill as defendants; but if, before the suit is com- 
 menced, the others should have each conveyed his title 
 to some one person, then all these several titles, or 
 claims to title, could be litigated in the same suit. 
 
 Hunter v. Piatt, li Mich. 264; Blackwood v. Van Vleet, 
 II Mich. 252; Woods v. Monroe, 17 Mich., 237; Finch v. 
 Martin, 19 111. 105. Contra, Alterauge ' v. Christiansen, 48 
 .Mich. 60; Hammonton v. Lett, 40 Mich. 190-193. 
 
 If the plaintiffs have a common interest, and the de- 
 fendahts against whom relief is prayed have a com- 
 mon liability, under a contract, or through a wrongful 
 act, there is no misjoinder, although the rights and 
 liabilities of the parties are different. 
 
 Hale V. R. R. Co., 60 N. H. 333; Bank v. Bartlett, 71 
 Ga. 797. 
 
 And when the object of the suit is single and the 
 interest of each defendant relates to any relief obtain- 
 able although conflicting as between themselves, there 
 is no misjoinder. 
 
 Hyman v. Wheeler, 33 Fed. Rep. 629; Rogers v. Blackwell, 
 49 Mich. 192; Lockwood Co. v. Lawrence, 77 Me. 297. 
 
 Several persons who act independently of each other 
 when their independent acts tend to produce a com- 
 mon injury, may be joined as defendants in a bill to 
 restrain each from doing the individual acts the com- 
 birted effect of which produces the in.jury. In such 
 a case the object of the bill being single, the separate 
 
EQUITY PLEADING AND PRACTICE;. Wl\ 
 
 U 
 
 and independent interests of the defendants does not , 
 make it multifarious. 
 
 Crossly V. Lightowler, L. R. 3 Eq. Cas. 279; Woodruff v. 
 Mining Co., 8 Sawyer 628; Lockwood Co. v. Lawrence, 77 
 Me. 297; Blaisdell v. Stephens, 14 Nev. 17; Baird v. Jackson, 
 98 111. 78. 
 
 To determine whether a bill is multifarious, you 
 must look to the stafng part and not to. the prayer. 
 The prayer may ask for separate and distinct relief, 
 only a part of which the plaintiff is entitled to under 
 the case made in his bill. 
 
 Hammond v. Bank. Walk. Ch. 214, 247. 
 
 If the defendant thinks that a bill is multifarious, 
 and he desires to take advantage of that defect, he 
 should demur, for if he answers, and the objection is 
 made for the first time at the hearing, the court will 
 act wholly upon its own judgment as to whether, un- 
 der the pleadings and proofs, a decree can conveni- 
 ently be made which will readily settle the adverse 
 interests of all the parties. The proofs may have elim- 
 inated the objection altogether. And the court will, 
 after the proofs are taken, dispose of the whole matter 
 upon the merits rather than subject litigants to further 
 expense and delay. 
 
 Converse v. Mich. Diary Co., 45 Fed. Rep. 18; Fuller v. 
 Baxter, 59 Vt. 467; Beach v. Show, 57 111. 17; Nelson v. Hill, 
 ^ How. (U. S.) 127; Hoggarth v. Cutis, i Craig & Phil. 204. 
 
102 EQUITY PLEADING AND PEACTICE. 
 
 LECTURE VI. 
 
 WHO MAY SUB IN EQUITY. 
 
 The government may bring suit to enforce its rights 
 and interests. 
 
 United States v. San Jacinto Tin Co., 125 U. S. 273; United 
 States V. Beebe, 12 U. S. 338. 
 
 When the right or interest involved is public, but 
 belongs to some individual the suit is brought usually, 
 although not necessarily, by the Attorney-General at 
 the relation of such private person, who is regarded 
 as the real plaintiff and is responsible for costs. 
 
 Strickland v. Weldon, L. R. 28 Ch. Div. 426; Burbank v. 
 Burbank, 152 Mass. 254. 
 
 Bodies politic and corporate and all persons of full 
 age, not, femme covert, idiot, or lunatic, or subject to 
 some other special disability may exhibit their bill in 
 equity. 
 
 Story Eq. Plead. § 50. 
 
 The incapacity which may disqualify a person from 
 bringing suit may be either absolute or partial. It is 
 absolute when it wholly disables the party from sueiag; 
 it is partial, when it disables him from bringing suit 
 without the aid of a second person. At common law 
 the absolute disabilities were outlawry, excommunica- 
 
EQUITY PLEADING AND PRACTICE. 103 
 
 tion, attainder and alienage combined with the char- 
 acter of enemy. 
 
 Danbigny v. Davallow, 2 Anst. 467; Albrecht v.. Sussmon, 
 2 Ves. & B. 323; Bent v. Young, 9 Sim. 180. 
 
 An aHen sovereign may sue, although his right was 
 at first questioned. 
 
 HuUett V. King of Spain, 2 Bligh. N. S. 51 ; Brunswick 
 V. King of Hanover, i Beav. i; The Sapphire, 11 Wall. 164; 
 King of Prussia v. Krupper, 23 Mo. 550. 
 
 Foreign corporations, either private or municipal, 
 may maintain suits in equity. 
 
 Soc. V. New Haven, 8 Wheat. 464; Silver Lake Bk. v. 
 North, 4 Johns. Ch. 370; Bk. of Scotland v. Ker, 8 Sim. 46. 
 
 Infants, married women, lunatics, and other persons 
 under guardianship, such as spendthrifts and drunk- 
 ards, are partially incapacitated. 
 
 The infant must bring suit by his next friend, pro- 
 chien ami. The prochien ami is an. officer of the court 
 and treated accordingly. 
 
 Morgan v. Thorne, 7 M. & W. 400. 
 
 The infant must defend by his guardian, but may 
 not in ordinary cases bring suit by his general guard- 
 ian, but by a guardian ad litem. 
 
 Tn most of the states the common law disability of 
 
 married women has been removed by statute, and 
 
 they can hold property and sue and be sued the same 
 
 as a femme sole. At common law she brought suit 
 
 by her next friend. 
 
 In re Williams. 12 Beav. 510; Gombee v. Atlee, 2 DeG. & 
 Sm. 745 ; Grant v. Van Schoonhoven, 9 Paige 255- 
 
104 EQUITY PLEADING AND PKACTICE. 
 
 At common law the crown had charge of idiots and 
 lunatics, and committees were appointed to take care 
 of those who had been found to belong to either class. 
 In some of the states committees are still appointed 
 in this class of case, but generally in thi country a 
 guardian is appointed by the proper court to care for 
 these classes of unfortunates. The idiot or lunatic is 
 represented in court by his committee or guardian as 
 the case may be. 
 
 As a general rule, any person who may be sued can 
 be made a defendant. To this rule, however, there is 
 this important exception, the state may not be made a 
 defendant without its consent. 
 
 Story Eq. PI. §§ 67, 68, 69; The Davis, 10 Wall. 153; 
 Car. V. U. S., 98 U. S. 433- 
 
 Those persons who may prosecute in -their own 
 names may in like manner defend. Those who may not 
 prosecute in their own names, owing to some dis- 
 ability, defend usually by a guardian ad litem appointed 
 by the court either upon the application of the defend- 
 ant or upon his neglect to apply to the court for that 
 purpose upon the application of the plaintiff. 
 
 Perry v. Perry, 65 Me. 399; Smith v. McDonald, 42 Cal. 
 484; Walsh V. Walsh, 116 Mass. 377; Simmons v, Baynard, 
 30 Fed. Rep. 532. 
 
 THE FRAME OP THE BILL. 
 
 Before noticing the different parts of the bill it may 
 be said generally, that the whole bill should be drawn 
 with the utmost care. All the facts necessary to be 
 set forth at all should appear clothed in language sim- 
 
EQUJTY PLEADING AND PRACTICE. 105 
 
 pie, precise and certain, omitting nothing which ought 
 to be said and stating nothing which ought to iiave 
 been omitted. Speaking of the degree of certainty 
 with which the allegations in the bill must be made, 
 Justice Story says "that there are three kinds of cer- 
 tainty apphcable to different parts of the pleadings; 
 "the first kind is certainty to a common intent, and that 
 is sufficient as a bar, which is sufficient to defend a 
 party, and to excuse him. The second is, certainty 
 to a certain intent in general, as in counts, replications 
 and other pleadings of the plaintiff ; that is, to convict 
 the defendant as in indictments, etc. The third is, 
 certainty to a certain extent in every particular, as in 
 «stoppels, which are odious in the law." 
 
 Story Eq. PI. § 240; Co. Litt. 303 a. 
 
 It is somewhat difficult to clearly distinguish these 
 •different degrees of certainty from each other and espe- 
 ■cially to indicate clearly the distinction between the 
 iirst and second which are often confounded both by 
 text writers and courts. There is a certainty to a com- 
 mon intent, when the usual meaning of the words used 
 convey to the ordinary mind a clear statement of a 
 fact, although the same words may also have an arti- 
 ficial meaning. 
 
 Dovastin v. Payne, 2 H. Black. 530. 
 
 It is a rule of construction. Do tht words used 
 ■express a clear and well defined idea, or is their mean- 
 ing uncertain or ambiguous? If their is uncertainty 
 or ambiguity they are not certain to a common intent. 
 
106 EQUITY PLEADING AND PBACTICE. 
 
 As an illustration a suit of replevin was brought for 
 certain cattle. There was an avowry on the part of 
 the defendant that the animals were distrained doing 
 damage in his close. The plaintiflf to this pleaded 
 that the cattle were in the highway and from there 
 escaped into the close, which was not fenced as by 
 immemorial custom the defendant was required to 
 fence it. To this plea the defendant demurred spe- 
 cially, for that the plaintiff did not state that the ani- 
 mals were rightfully in the highway. The demurrer 
 was held good for the reason that the plea did not 
 state with certainty, to a common intent, that the 
 cattle were rightfully in the highway, and thus set 
 forth a good defense. The certainty to a commor* 
 intent must appear from the language of the pleader, 
 and other words cannot be added thereto to make this 
 language certain and unambiguous. 
 
 Dovastin v. Payne, 2 H. Black. 530; Fuller v. Hampton, 
 S Conn. 416. 
 
 Certainty to a certain intent in general is required 
 in indictments charging a crime and may be illustrated 
 as follows: Suppose a party is charged with publish- 
 ing a libel and the meaning which he intended tc> 
 convey is certain, plain and unambiguous to the or- 
 dinary reader, but it is thus plain, certain and unam- 
 biguous because the reader reads between the lines, 
 as it was intended he should do by the writer, and 
 there finds the real meaning. Words and phrases 
 have been omitted which are necessary to make the 
 words clearly express the ideas which the language 
 
EQUITY PLEADING AND PRACTICE. lOT 
 
 used clearly suggests. In such a case the pleader- 
 cannot set forth the language simply, he must by in- 
 nuendo, that is by comment, charge explicitly the- 
 meailTng the writer intended to convey. 
 
 Rex V. Home, Cowp. 672, 682; Rex v Linn, Regis- 
 Doug. 158. 
 
 Certainty to a certain intent in every particular is- 
 where the pleader after pleading with certainty to a. 
 common intent goes on to negative any and every 
 other possible construction of which the language used; 
 is susceptible. 
 
 Certainty to a common intent is usually all that is- 
 required of the pleader in equity. But this certainty 
 is made up of two distinct elements, i, Certainty as 
 to the matter, and 2, Certainty as to the manner oJ 
 charging it . 
 
 As to the matter. All the facts necessary to consti- 
 tute a case for the complainant must be stated with the- 
 requisite certainty. For instance, if the pleader de- 
 sires to charge that the defendant has been guilty of a , 
 fraud, since fraud is not a fact but a conclusion of 
 law, the pleader must set forth with certainty to a 
 common intent all the requisite elements constituting 
 the particular fraud of which he complains. He must; 
 allege, with sufficient certainty, the several acts com- 
 mitted by the defendant which taken together show^ 
 that a ffaud has in fact been committed by him. 
 
 Or, again, if the pleader desires to compel the de- 
 fendant to carry out and fulfill a verbal contract with 
 regard to land, since a verbal agreement with reference 
 
108 EQUITY PLEADING AND PEACTICE. 
 
 to land is within the statute of frauds- and not enforce- 
 -able in a court of equity any more than at law, unless 
 it. has been partially performed, or some other equit- 
 able reason exists, the pleader must with certainty to 
 -a common intent show that this particular verbal con- 
 tract has been taken out of the statute of frauds by part 
 performance or in some other manner. 
 
 So much for the matter. As to the manner each of 
 the allegations of fact, or circumstance, which it is 
 necessary for the pleader to allege in order to consti- 
 tute a fraud or to show that the complainant is en- 
 titled to a specific performance of the verbal contract, 
 must be stated with the requisite degree of certainty. 
 While the matter of the bill need not be set forth 
 with more certainty than to a common intent, it is 
 -advisable when it can be done to make the allegations 
 as definite and certain as possible. The pleadings 
 "thereby are made more effective and you avoid all 
 -questions as to what is charged. And there is authority 
 for the statement that certainty to a common intent is 
 not sufficient in a bill in equity. 
 Story V. Winsor, 2 Atk. 632. 
 
 FRAME OP THE BILL. 
 
 The address must contain a proper description of 
 the court in which it is filed, and since that differs in 
 the different states the bill must be varied accordingly 
 -A bill which is not properly addressed is defective. 
 Bow V. Butters, 2 Chicag^o Legal News 33. 
 
 ; The bill in this state must be divided into para- 
 :graphs numbered consecutively and each paragraph 
 
EQUITY PLEADING AND PRACTICE. 10&' 
 
 must contain, as near as may be, a separate and dis- 
 tinct allegation. 
 
 Mich. Rule; i. 
 
 Owing to the fact that the jurisdiction of the United 
 States courts is limited, it is necessary that the fact of 
 jurisdiction should appear upon the face of the record.. 
 Therefore, the particular facts which give the federal 
 court jurisdiction should be clearly set forth in the 
 bill, whether they have reference to the diverse citizen- 
 ship of the parties, or the subject-matter in contro- 
 versy, otherwise the bill will be demurrable, or may be- 
 dismissed by the court of its own motion. 
 
 Hornthal v. Collector, 9 Wall. 560; Hancock v. Holbrook,- 
 112 U. S. 229; Everhart v. Huntsville College, 120 U. S. 223. 
 
 A corporation is deemed to be a citizen of the state- 
 under whose laws it is organized^ When a corpora- 
 tion is a party it should be described by its proper- 
 name, followed by an averment that it is a corpora- 
 tion created and organized under the laws of tlie state- 
 of and has a place of business at 
 
 Winnepiseogee v. Young, 40 N. H. 420; Central Mnfg. Co. 
 V. Hartshorne, 3 Conn. 199; Penn. Co. v. Railroad, 118 U. S.. 
 290; Goodlett V. Railroad, 122 U. S. 391. 
 
 The court will take judicial notice of a domestic 
 public corporation. 
 
 Withers v. Warner, i Str. 309. 
 
 A voluntary association has no right to sue in the- 
 name of the association. The action must be brought: 
 
110 EQUITY PLEADING AND PEACTICE. 
 
 An the names of the persons composing the corpora- 
 tion. 
 
 Story Eq. PI. § 386; I Daniel Chy. Pr. 29, 30. 
 
 When a bill is filed by a person in a representative 
 -capacity, the averment must be sufficiently full and ex- 
 plicit to show that he has a right to maintain the suit. 
 Thus, when a bill was filed by persons who described 
 themselves as executors of the last will and testament 
 -of A. B., but did not aver the death of A. B., nor the 
 probate of the will, the bill was held fatally defective. 
 But when the complainants described themselves as 
 ^administrators, who had been duly appointed and 
 were acting as such, the averments were held sufficient. 
 
 Middleworth v. Nixon, 2 Mich. 425; Manning v. Drake, 
 1 Mich. 34; Walker v. Cady, 63 N. W. (105 Mich.) 1005. 
 
 When a bill is filed by one of a class for the benefit 
 •of the complainant and all the other members of a 
 class, it must be so stated. 
 
 Bedford v. Leigh, 2 Dickens 707; Cosby v. Wickliffe, 7 B. 
 Mon. 120. 
 
EQUITY PLEADING AND PRACTICE. Ill 
 
 LECTURE VII. 
 
 STATING PART OP THE BILL. 
 
 The very marrow and pith of a bill in equity is 
 found in the stating part. It is here that the ability, 
 learning and tact of the pleader is made to appear. 
 Outside of the stating part, the bill can be built up 
 and padded out with the dry formula supplied by 
 precedent, but in the stating part, precedents and form- 
 ula can render little service, since in each instance 
 it must be varied to embody the particular facts and 
 circumstances of the very case in hand. General rules 
 only, for the guidance of the practitioner, can be 
 given; his success will depend upon that skill which 
 comes from a union of ability, learning and practice. 
 
 In drafting the stating part, the pleader must bear 
 in mind: 
 
 1. That he must state facts, and that such facts 
 must be stated directly and positively, and not infer- 
 entially. 
 
 2. That the complainant is entitled to the relief 
 prayed for. 
 
 3. That all persons interested in the subject-matter 
 of the controversy are made parties to the suit. 
 
 4. He must show that the court has jurisdiction. 
 The order in which such facts shall be set forth is 
 
 left wholly to the judgment and taste of the pleader. 
 The arrangement should be such that the narration 
 will arrest the attention and interest the court, and 
 
112 EQUITY PLEADING AND PRACTICE. 
 
 each statement should be set forth with such precision, 
 force and fehcity of expression as will insure recollec- 
 tion, and the spirit pervading the whole must, while 
 it is vigorous and aggressive, be so tempered with 
 fairness and justice, that the judgment of the court 
 will be unconsciously convinced of the manifest equity 
 of the plaintiff's cause. 
 
 The bill should contain allegations of fact, and not 
 mere recitals of circumstantial evidence from which 
 a fact may be inferred. The allegations must be 
 plainly and distinctly made, so that the defendant may 
 be explicitly informed of the claim made against him, 
 and the theory upon which the complainant intends 
 to rely. 
 
 Wilson V. Eggleston, 27 Mich. 257,- Search v. Search, 12 
 C. E. Green 137. 
 
 When the facts are within the knowledge of the 
 complainant, they must be charged positively, but 
 when such facts are not within his knowledge, they 
 may be stated upon the information and belief of 
 complainant, followed by the averment, that he 
 charges them to be true. 
 
 Wells V. Bridgewort, 30 Conn. 316; Campbell v. Railroad 
 Co., 71 111. 611. 
 
 Stating a fact upon information and belief alone .is 
 insufficient, because a traverse of such an allegation 
 puts in issue, not the existence Of the fact, but merely 
 the truth of the allegation that the plaintifif has beeh 
 informed and believes that' a certain fact exists. 
 
 Ex parte Reid, 50 Ala. 439. 
 
EQUITY PLEADING AND PRACTICE. 1 13 
 
 It is sometimes difficult to determine whether a par- 
 ticular fact has been averred directly or inferentially. 
 If from the facts which are directly and positively 
 averred, the existence of some other fact is necessar- 
 ily and conclusively presumed, such other fact has 
 been sufficiently alleged, but anything short of such 
 conclusive presumption is regarded as mere inference, 
 and will not be considered. 
 
 And it has been held that when the statute required 
 the agreement set forth in the bill to be in writing, 
 and there was no direct averment that it had been re- 
 duced to writing, but a positive allegation of an agree- 
 ment, that the court would presume it was a legal 
 agreement. But on the other hand, if it appeared else- 
 where in the bill, that the agreement was In parol, the 
 objection could be taken advantage of by demurrer. 
 
 Dudley v. Bachelor, 53 Me. 403; Cozine v. Graham, 2 
 Pdige 177; Macy v. Childers, 2 Tenn. Ch. 438, 442; Redding 
 V. Wilkes, 3 Bro. C. C. 400. 
 
 The facts constituting the complainant's case must 
 be stated with such fullness that, if they are admitted 
 by the answer, the complainant will be entitled to some 
 relief. It may be necessary to take proofs to establish 
 fully the terms of the decree, but not to show that he 
 is entitled to some relief. 
 
 The case made by the bill, if not admitted, must be 
 established by proof and the allegations and proofs 
 must reciprocally meet and conform to each other. Facts, 
 established by the admissions of the defendant, or the 
 testimony of witnesses, will not be considered by the 
 court, unless such facts are distinctly alleged in the 
 
114 EQUITY PLEADING AND PRACTICE. 
 
 bill, no matter what weight and importance they may 
 have intrinsically. 
 
 The issue presented by the pleadings is the issue 
 to be tried and all evidence which does not bear upon 
 that issue is necessarily irrevelent and therefore im- 
 material. 
 
 Harrison v. Wixon, 9 Peters 483, 503; Jackson v. Ashton, 
 II Peters 229; Mead v. Askew, 56 Ala. 584; Moran v. Palmer, 
 13 Mich. 367; Conneston v. Miller, 41 Mich. 608; Fox v. 
 Pierce, 50 Mich. 500. 
 
 Facts and not conclusions of law must be stated. 
 For instance, if the bill seeks to have a tax deed set 
 aside on the ground that the tax for wuich the land 
 was sold was an illegal and void tax, the facts upon 
 which the pleader relies to show that the tax was in 
 fact illegal and void must be averred, and a mere al- 
 legation that the tax is void is not sufficient, however 
 positively made. Such an averment would be a con- 
 clusion of law, not a fact. 
 
 Gamble v. East Saginaw, 43 Mich. 367; Foster v. Hill, 55 
 Mich. 540; Le Baron v. Shepherd, 21 Mich. 263. 
 
 As a general rule an allegation of fraud is insuffi- 
 cient to support proof of facts establishing the fraud. 
 Such facts should have been alleged. On the other 
 hand, if the allegations of fact clearly show that a 
 fraud has been committed there need be no positive 
 allegation of fraud. 
 
 The reason for this rule is that fraud being a con- 
 clusion of law, not depending upon any particular faci 
 uDr number of facts, a naked allegation of fraud is a 
 
EQUITY P1.EADING AND PRACTICE. 115 
 
 mere statement that the pleader believes that the court 
 will find that the defendant has committed a fraud, 
 without alleging what act or series of acts the defend- 
 ant has wrongfully done or omitted to do, which con- 
 stitute the fraud. Such an allegation does not charge 
 the defendant with doing or not doing any specific act, 
 and no specific act having been alleged there is no 
 foundation to support any proof. But if specific acts 
 are charged and such acts constitute a fraud, to aver 
 fraud is simply calling the attention of the court to a 
 conclusion to which it would come without the assis- 
 tance of the pleader. 
 
 Long V. Marvin, 15 Mich. 60; Hubbard v. McNaughton, 
 43 Mich. 221; Hale v. Chandler, 2 Mich. 531; Merrill v. Allen, 
 38 Mich. 487. 
 
 When the right of the complainant depends upon 
 the performance of a condition which has not been 
 performed, he must set forth the facts which excuse 
 its performance, an allegation that he has a good ex- 
 cuse is not sufficient to support testimony as to the 
 facts which excused performance. Whether the facts 
 constitute a good excuse is a question of law. 
 
 Le Baron V. Shepherd, 21 Mich, 263. 
 
 If the bill shows that the injuries complained of are 
 of such long standing that, unexplained, they impute 
 laches to the complainant, the facts relied upon to 
 excuse the delay must be set forth in the bill, or other- 
 wise it may be attacked by demurrer or plea, or the 
 
116 EQUITY PLEADING AND PRACTICE. 
 
 court of its own motion may refuse to consider the 
 case. 
 
 Sulivan v. Railroad, 94 U. S. 806; Hayward v. Bank, 96 
 U. S. 611; Spridel v. Henrici, 120 U. S. 377; Richards v. 
 Mackal, 124 U. S. 183. 
 
 As an illustration of the necessity which rests upon 
 the complainant of alleging all the facts in his bill 
 necessary to constitute his case, a bill filed to enforce 
 rights conferred by the statute, is a good example. 
 In such a case the bill must show a substantial -com- 
 pliance with every provision of the statute upon which 
 the complainant's right depends. 
 
 Remeau v. Mills, 24 Mich. 15; Bangs v. Stephenson, 63 
 Mich. 661; Paine v. Newell, 66 Mich. 245. 
 
 And when a complainant claims rights under any 
 judicial proceeding the averments of the bill must show 
 all the facts necessary to establish the validity of such 
 proceedings. 
 
 Hobart v. Frisbie, 5 Conn. 592; Kunkel v. Markell, 26 Md 
 590-408; Frost v. Flanders, 37 N. H. 549; Mayor v. Signoret, 
 50 Cal. 298. 
 
 When a bill is filed to enforce rights given by a 
 statute, and there is an exception in the enacting clause 
 of such statute, the bill must negative such exception; 
 but where there is no exception in the enacting clause 
 but an exemption in a proviso thereto, or in a subse- 
 quent section of the act, the bill need not aver that the 
 defendant does not come within the exemption. The 
 
EQUITY PLEADING AND PKACTrcE. 1 1 7 
 
 exemption of the defendant if it exists, is a matter of 
 defnce. 
 
 Attorney General v. Ookland Co. Bk., Wal. Ch. 90; Teel 
 V. Fonda, 4 Johns. 304. 
 
 The bill must contain averments of every fact neces- 
 sary to give the court jurisdiction. For instance, 
 except in certain caseg, the court of equity is not given 
 jurisdiction unless the amount involved is at least a 
 specified sum. In this state the minimum sum is one 
 hundred dollars. When the bill on its face shows 
 that the amount in controversy is not sufficient to give 
 the court jurisdiction, the defect is fatal, and if called 
 to the attention of the court, or discovered by the 
 court, the bill will be dismissed, and when the amount 
 in controversy exceeds that sum, and the bil is silent 
 as to the amount, it is defective. 
 
 Gamber v. Holben, 5 Mich. 331. 
 
 But although the bill may not contain the specific 
 allegation that the amount in controversy is sufficient 
 to give the court jurisdiction, still if there are aver- 
 ments which clearly and unequivocally show that it 
 must necessarily be of sufficient value, such averments 
 are sufficient to give the court jurisdiction. 
 
 Abbott V. Gregory, 39 Mich. 68; Glidden /. Morrell, 44 
 Mich. 202. 
 
 In setting forth the facts in the bill, the pleader 
 should avoid, as far as possible, all unnecessary 
 recitals of deeds, documents, contracts, or other 
 instruments verbatim. After referring to a docu- 
 
1 i 8 EQUITY PLEADING AND PRACTICE. 
 
 ment, the pleader may add the following formula: 
 "As by said indenture (or agreement), when proved, 
 will appear." This makes the whole document re- 
 ferred to a part of the record. 
 
 Harmer v. Gooding, 3 DeG. & S. 407-410; Swetland v. 
 Swetland, 3 Mich. 482; i Daniel Chy. Pr. 420. 
 
 The pleader, however, is not permitted to refer to 
 some other bill and make its allegations a part of his 
 own. The rule is that "every original bill must be 
 complete in itself, by allegations embodied in it, or by 
 exhibits attached to it, to enable the court to act upon 
 it without reference to extraneous documents." 
 
 Moses V. Brodie, l Tenn. Chy. 397; Mayoi v.Signoret, 50 
 Cal. 298. 
 
 , It is a maxim of equity that he who seeks equity 
 must do equity. Therefore if under the facts stated, 
 any duty devolves upon the plaintiff which in good 
 conscience he ought to perform, although its perform- 
 ance could not be compelled at law, he must aver a 
 readiness and willingness on his part to perform it, 
 otherwise he will not be heard to complain. 
 
 If the relation of the' parties is such that the com- 
 plainant is required to do something before the de- 
 fendant is required to move, the bill must show per- 
 formance on his part, or, in case of non-performance, 
 that he has a good excuse therefor, and he must aver 
 also a willingness to perform from time to time one, 
 and all duties that may devolve upon him with refer- 
 ence to the matter in controversy. 
 
 Perry v. Carr, 41 N. H. 371. 
 
EQUITY PLEADING AND PEA CTICE. 119 
 
 THE CONFEDERATING PART. 
 
 It is not necessary that the bill should aver that the 
 defendant is confederating with unknown parties with 
 intent to injure and defraud the complainant, unless 
 such is the fact, and that fact is of importance to the 
 complainant. In case, however, that fact exists, and is 
 important, it should be set out as fully and precisely as 
 possible. 
 
 THE CHARGING PART. 
 
 The original purpose of the charging part was to 
 meet and answer some special defence of the defend- 
 ant. This was done by averring, by way of pretense, 
 each special defence, and then adding matter of reply 
 in the form of a charge. 
 
 Stafford v. Brown, 4 Paige 88; Van Riper v. Claxton, i 
 Stockton 302; Coneston v. Miller, 41 Mich. 608. 
 
 THE JURISDICTIONAL, CLAUSE. 
 
 This clause is usually retained in this state, although 
 its omission does not render the bill defective. The 
 averment that the court has jurisdiction is a mere con- 
 clusion of law at best, and does not strengthen the 
 averments of fact, which show that the cause is cog- 
 nizable in a court of equity, nor on the other hand will 
 it make good the want of some necessary averment. 
 
 Bateman v. Wilboe, i Sch. & Lef. 201, 204; Story Eq. 
 PI. § 34. 
 
 In the United State court it is not necessary to in- 
 sert in the bill the confederating or charging part or the 
 jurisdictional clause. 
 
 U. S. Rule 21; Perry v. Corning, 7 Blatch. 195; Dunham 
 V. Railroad, i Bond 492; Walden v. Bodley, 14 Pet. 156; 
 Railroad v. Bradleys, 10 Wall. 299; Wilson v. Graham, 4 
 Wash. S3. 
 
1 20 EQUITY PLEADING AND PRACTICE. 
 
 LECTURE VIII. 
 
 liSTTEHROGATING PART. 
 
 Formerly this was an essential and important part 
 of the bill. When parties in interest were incom- 
 petent to testify, the complainant could in this way 
 alone obtain from the defendant important testimony, 
 but now, ijince the statute permits all parties to be ex- 
 amined as witnesses, the interrogating part of the bill 
 in most nases is of no importance whatever. The 
 rules pern.it the complainant to waive his right to have 
 the answer made under oath, and unless for some rea- 
 son he still desires a discovery, he adopts that course, 
 since an answer not under oath has the force and 
 effect mer« ly of a pleading. 
 
 Van Inviagen v. Van Tnwagen, 8s Mich 333; Hopkins v. 
 Granger, Si' 111. 504. 
 
 This pai-t of the bill prays that the defendants may 
 answer all the matters contained in the stating part 
 of the bill not only as to their knowledge, but also as 
 to their information, remembrance and belief. If the 
 complaina.iit could trust the defendant to reply fully to 
 all the matters contained, ''as though the same were 
 again repeated and he thereunto specifically interro- 
 gated,'' it would not be necessary for this part of the 
 bill to contain any special interrogatories. But it is 
 not alwayi! safe to repose so much confidence in an 
 opponent. It is customary, therefore, for the general 
 interrogatory to be followed by specific questions. 
 
EQUITY PLKADING AND PRACTICE. 121 
 
 These specific questions must, of course, be based upon 
 some matter contained in the stating part of the bill. 
 The defendant is not called upon to ans\ver any ques- 
 tion having no reference to any allegation contained 
 in the bill. This part of the bill is simply an exam- 
 ination of the defendant as a witness in the case, and 
 the rules of evidence governing the admission of tes- 
 timony apply. 
 
 Wilkes V. Rogers, 6 John Ch. 566; Mackelsion v. Brown, 6 
 Ves. 52, 62; Clayton v. Winchelsea, 3 Y. & Coll. 683. 
 
 When an answer under oath is not waived, and 
 the answer is put in under oath, so much of it as is 
 responsive to the interrogating part of the bill is evi- 
 dence for the defendant, and its force cannot be over- 
 come except by the testimony of two witnesses. Put-* 
 ting an answer in on oath, when an answer under oath 
 has been waived, does not make it evidence for the 
 defendant. 
 
 Newton v. Callaghan, 85 Mich. 301; Wallwc*k v. Derby 
 40 111. 527. , 
 
 Under the present Michigan rules an answer under 
 oath, when such answer is not waived, does not have 
 the force of evidence except as to admissions. 
 
 Chy. R. ID a. 
 
 When an answer on oath is waived no relief can 
 
 be prayed which rests solely upon the necessity of 
 
 discovery, for the reason that by waiving the right 
 
 to answer upon oath, the complainant has thereby 
 
 waived all right to discovery. 
 Torrent v. Rogers, 39 Mich. 85. 
 
12^ EQUITY PLEADING AND PEACTICE. 
 
 Where discovery therefore is desired, an answer 
 upon oath must not be waived and interrogatories 
 should be added, so drawn that the defendant's atten- 
 tion will be particularly called to all those facts and 
 circumstances as to which a full discovery is desired. 
 The rules of the Supreme Court of the United States 
 require that these interrogatories shall be numbered 
 and that the complainant shall designate the particu- 
 lar interrogatories which each of the defendants is to 
 answer, by a note at the end of the bill. 
 
 U. S. Rules 40 to 44 inclusive. 
 
 PRAYER FOR REiLIBF. 
 
 Having fully stated to the court his cause of action 
 and explained wherein the complainant has already 
 been deprived of his just rights, or in what manner 
 he is threatened with a deprivation of those rights, tlie 
 pleader asks, in the prayer for relief, the aid and assis- 
 tance of the court. The prayer usually is for specific 
 and general relief. The prayer for specific relief may be 
 in the alternative, that is the pleader may ask for some 
 particular thing and then add a specific prayer for some 
 other thing in lieu of the first, in case that should be 
 denied. The pleader is frequently compelled to resort 
 to this course. He may be in doubt in regard to the 
 facts in controversy, or if he is perfectly familiar with 
 the facts he may be in doubt as to the conclusion the 
 court will draw from them. In all cases of doubt it is 
 proper to have a prayer for specific relief drawn in the 
 alternative. But a bill so drawn that specific relief in 
 the alternative may be prayed for must be consistent 
 with itself. The bill must not contain distinct causes of 
 
EQUITY PLEADING AND PRACTICE. 123- 
 
 complaint which are inconsistent with and defeat each; 
 other. The pleader must not blow hot and cold. 
 
 Lloyd V. Brewster, 4 Paige, 537; Cotton v. Ross, 2 Paige, 
 396; Hart V. McKeen, Wal. Ch. 417; Farwell v. Johnson, 34 
 Mich. 342. 
 
 If there is a prayer for special rehef merely and upoiK 
 the pleadings and proofs, the complainant is not en- 
 titled to that particular relief, he will not be given any 
 relief at all and his bill will be dismissed, unless he is 
 permitted to amend. The court cannot render volun- 
 teer aid. 
 
 Polk V. Clinton, 12 Ves. 48; Story Eq. PI. §§ 40, 41; Eng- 
 lish V. Foxall, 2 Peters, 595; Marder v. Wright, 70 Iowa 72. 
 
 If, however, in addition to the prayer for special' 
 relief, there is added a prayer for general relief, in case 
 the particular relief asked for is denied, the complain- 
 ant will be allowed such other relief as is agreeable to- 
 the case made by the bill. It has been said that a 
 prayer for general relief was sufificient, and that a 
 prayer for special relief might be omitted in the bilt 
 and asked for at the hearing, except such special re- 
 lief as an injunction, a writ of iie exeat, etc. 
 
 Hiern v. Mill, 13 Ves. 114; Colton v. Ross, 2 Paige, 396. 
 
 Texas v. Heidenberg, 10 Wal. 68; Pleasants v. Glasscock,. 
 I Sm. & Mar. 17, 24, 25; Story Eq. PI. § 41; Wilson v. Gra- 
 ham, 4 Wash. C. C. S3. 
 
 "The general prayer for relief is confined to the claim- 
 and the ground of jurisdiction stated in the bill." 
 
 Dyer v. Vinton, 10 R. I. 517; Cloud v. Kiblee, 2 Del. Ch. 23; 
 Machinists' Natl. Bk. v. Field, 126 Mass. 345 ; Dayton v. Day- 
 ton, 68 Mich. 437; Jones v. Van Doron, 130 U. S., 684. 
 
 It is very essential that the pleader should pray for 
 
1 24 EQUITY PLEADING AND PRACTICE. 
 
 the specific relief to which he believes thfit he is entitled. 
 It shows what case the complainant thinks he has 
 made and what relief he believes he is entitled to. 
 
 Amington v. Siscom, 34 Col. 365, etc., 84 Am. Dec. 722; 
 Palmer v. Saw. 249. 
 
 When special relief is desired while the suit is pend- 
 ing — for instance, an injunction, writ of ne exeat 
 regno, receiver, etc., the bill should contain a special 
 prayer therefor. It is always safe and moreover pen- 
 dent, for the pleader to ask for the last morsel of relief 
 he thinks he is entitled to and then to add a prayer for 
 general relief for fear he may have omitted something. 
 
 Moore v. Hudson, 6 Mad. 218; Spooner v. McConnell, i 
 McLean, 337. 
 
 When a bill is filed for discovery merely and the 
 complainant is not entitled to any relief in addition to 
 the discovery, he must confine his prayer for relief to 
 the particular relief to which he is entitled; 
 
 Wells V. Railroad, Wal. Ch. 35; Loker v. Roll, 3 Ves. 4-7. 
 
 The prayer for relief should be divided into para- 
 graphs and each paragraph numbered and such is the 
 requirement of the Michigan rules. 
 Chy. R. I, b. 
 
 PRATER FOR PROCESS, SUBPOENA. 
 
 The prayer for process is an essential part of the 
 "bill, and if it is omitted the bill may be demurred to. 
 
 Wright V. Wright, 4 Halst. Ch. 143. 
 
 In the prayer for process must be inserted the names 
 •of all the persons whom the complainant desires to 
 
EQUITY PLEADING AND PRACTICE. I 2&- 
 
 make defendants, and only those whose names are in- 
 serted are made defendants. 
 
 Verplank v. Ins. Co., 2 Paige, 438; Lyle v. Bradford, 7 B. 
 Monroe, 113. 
 
 If a suit is against a person both in his individtial 
 and representative capacity, process must be asked 
 against him in both capacities. 
 
 Carter v. Ingraham, 43 Ala., 78. 
 
 There are cases that hold that when the suit is against 
 a person in his representative capacity simply, that 
 when all the allegations are made which are necessary 
 to hold him in his representative capacity and no relief 
 may be had against him in his individual capacity that 
 prayer for process against him personally is good. 
 
 Plant V. Plant, 44 N. J. Eq. 18; Ransom v. Geer, 30 N. J. 
 Eq. 249; White v. Davis, 47 N. J. Eq. 187. 
 
 SWORN BILLS. 
 
 Ordinarily the bill need not be sworn to, but there 
 are certain exceptions. Bills must be verified when 
 they are filed; 
 
 1. To obtain the benefit of an instrument upon 
 which an action at law will lie. 
 
 March v. Davidson, 9 Paige, 580; Bennett v. Waller, 23- 
 111. 97. 
 
 2. To perpetuate the testimony of witnesses. 
 Laight V. Morgan, i Johns. Cas. 429; Story Eq. PI §§ 304,. 
 
 309- 
 
 3. To obtain a divorce. 
 Mich. Ch. Rule 29, a. 
 
126 EQUITY PLEADING AND PRACTICE. 
 
 4. Bills of interpleader. 
 
 Edrington v. AUsbrook, 21 Tex. 186; Moiiks v. Holroyd, 
 I Cow. 691. 
 
 5. Bills praying for a preliminary injunction. 
 
 Holdredge v. Gwynne, 3 C. E. Green 26; Moore v. Cheese- 
 anan, 23 Mich. 327. 
 
 6. Bills praying for a writ of ne exeat. 
 Rice V. Hale, S Cush. 238. 
 
 7. Bills of Review. 
 Sandford v. Haines, 71 Mich. 116. 
 
 8. When required by statute. 
 Mich. Chy. R. 2. 
 
 FILING THE BILL. 
 
 The bill having been drafted, signed by counsel, 
 verified when necessary, and properly endorsed, is 
 filed, with the clerk in the United States court, with 
 the register in the circuit court in this state. The 
 ■county clerk in this state is clerk of the circuit court, 
 and register of the circuit court in chancery. But 
 since in popular language he is spoken of as clerk 
 simply and the same officer in the United States court 
 is styled clerk, to prevent confusion we shall refer to 
 him as clerk. 
 
 In this state upon filing the bill a subpoena issues 
 as a matter of course under the seal of the court dated 
 and tested of the day of issue and made returnable on 
 
EQUITY PLEADING A.KD PBACTICE. 127 
 
 a day certain (except Sunday) in term time or vacation, 
 not less than ten days from the issuing thereof. 
 
 Anderson v. Brice, 3 Mich. 280; Peck v. ( avell, 16 Mich. 
 8; Fenton v. Kyle, 27 Mich. 454; Hemmens v. Bentley, 32 
 Mich. 89; Torrens v. Hicks, 32 Mich. 307; Mich. Ch. R. 2 c. 
 
 When there are several defendants more than one 
 subpoena may issue for convenience in service. The 
 names of all the defendants must be inserted in the 
 subpoena. 
 
 Mich. Ch. R. 4 a; Richardson v. Thompson, 41 111. 202. 
 
 Formerly the subpoena required the defendant to 
 appear under a certain penalty, mentioned therein, but 
 to remove the danger of mistake among defendants 
 ignorant of the meaning of this command, the rules 
 now provide that the penalty shall be omitted and the 
 defendant shall be notified simply that a bill has been 
 filed and that unless he appears within a given time his 
 default may be entered. This same rule also requires 
 that there shall be underwritten a notice designating 
 against what defendants a personal decree is desired. 
 
 Mich. Ch. R. 4 c, d; U. S. Rule 12. 
 
 In the United States court when the bill is filed a 
 praecipe must also be filed with the clerk, directing 
 the issuance of a subpoena and naming the rule day 
 to which it is made returnable, which must be the first 
 or second rule day occurring twenty days after its 
 issuance. 
 
 U. S. Rules, 7, II, 12. 
 
128 EQUITY PLEADING AND PEACTICE. 
 
 A subpoena issued out of the United States court 
 is served by the marshal, his deputy, or by some other 
 person specially appointed by the court. 
 
 U. S. Rule 15, Re. St. §922. 
 
 It is served by the officer making the service deliv- 
 ering a copy thereof to the defendant personally, or 
 by leaving a copy at his usual place of abode, with 
 some adult person Who is a member or resident in the 
 family. 
 
 U. S. Rule 13. 
 
 A subpoena issued by the state circuit court in 
 chancery may be served anywhere within the state on 
 or before the return day thereof. It may be served 
 by the sheriff of any county or by any other person. 
 It is served by delivering a copy of the writ subscribed 
 by the complainant, his solicitor or the officer or per- 
 son serving the same, inscribed copy and showing the 
 original, under the seal of the court, at the time of 
 such delivery, to the defendant. 
 
 Mich. Ch. Rule 4 b; Creveling v. Moore, 39 Mich. 563; 
 Soule V. Hough, 45 Mich. 418-422. 
 
 If service is made by an officer he makes an official 
 return of the fact. If service is made by a person 
 delegated by the United States court, or by a private 
 person in this state, the return of service must be under 
 oath. 
 
 Ij. S. Rule IS- I 
 
EQUITY PLEADING AND PRACTICE. 129 
 
 If a subpoena is returned not served upon a defend- 
 ant, the complainant is entitled to another subpoena 
 against such defendant, until due service is made. 
 
 U. S. Rule 14, Mich. Rule 4 a. 
 
 The statutes of this state provide that when per- 
 sonal service cannot be had on account of the defend- 
 ant being a. non-resident, absent from his home, or 
 concealed, that substituted service may be obtained 
 by publication. 
 
 How. St. §§6670-6686. 
 
 The United States statutes provide for substituted 
 service by publication in suits to enforce a lien upon, 
 or claim to, or to remove any incumbrance, lien or 
 cloud, upon the title to any real or personal property 
 within the district wherein the suit is brought, if one 
 or more of the defendants shall not be an inhabitant 
 of, or found within the district. 
 
 18 Statutes at Large, 472. 
 
 Under the United States statute the defendant may 
 appear within one year, have the decree opened and be 
 permitted to defend. Under the Michigan statute he 
 has for that purpose seven years, unless notice of the 
 decree has been served upon him, in which event the 
 time within which the decree may be opened is Hmited 
 to one year. 
 
 Since the parties to a suit are now permitted to 
 be examined as witnesses, it is seldom necessary to. 
 have an answer from the defendant, and therefore if 
 he fails to appear in the cause and answer, plead or de- 
 
130 EQUITY PLEADING AND PRACTICE. 
 
 mur, his default is entered and the cause proceeds 
 ex parte. There may still be cases, however, when dis- 
 covery is required, and in such a case the defendant 
 may be compelled to appear by attachment. 
 
 U. S. Rule i8; Riopellev. Doellner, 26 Mich. 102; Thomp- 
 son V. Wooster, 114 U. S. 104. 
 
 If the defendant's default is entered for his not 
 appearing and answering, pleading or demurring 
 within the prescribed time, the effect is the same as 
 though he had appeared and answered admitting all 
 the material allegations of the bill. 
 
 Ward V. Jewett, Walk. Ch. 19, 45; Covill v. Cole, 16 Mich. 
 223. 
 
 A decree may then be taken by the complainant, 
 termed a decree pro confesso. Such decree must be 
 limited strictly to the case made by the bill. Those 
 allegations, and those only, has the defendant by his 
 default admitted to be true. If, therefore, the com- 
 plainant should find it necessary to amend his bill and 
 add new material allegations, the effect of the amend- 
 ment will be to violate the order taking the bill as con- 
 fessed, and new process must issue and be served upon 
 defendant and the same proceedings had as though 
 the suit had been commenced de novo. 
 Harris v. Deitrich, 29 Mich. 366. 
 
 If the order to take the bill as confessed is entered 
 
 for default of the defendant's appearing, the cause 
 
 . proceeds ex parte, and the defendant is not entitled to 
 
 notice of further proceedings, but if his default is for 
 
 jiot answering, pleading or demurring after having 
 
EQUITY PLEADING AND PRACTICE. 131 
 
 appeared, the cause proceeds ex parte as before, but 
 the defendant is entitled to notice of each subsequent 
 step in the cause . 
 
 Mich. Ch. Rule 15, Law R. 35; Warren v. Juif, 38 Mich. 
 662; Watson V. Hinchman, 41 Mich. 716. 
 
 The entry of an order taking a bill for divorce pro 
 confesso on account of defendant's default in not ap- 
 pearing or answering, pleading or demurring, does not 
 have the effect of making the allegations in the bill 
 evidence for the complainant. The public are inter- 
 ested in preserving the marriage contract. As we 
 have seen, such bills must be verified. They must con- 
 tain distinct allegations that the bill is not filed in 
 collusion with the defendant, directly or indirectly, and 
 the allegations contained in the bill as to the grounds 
 of divorce must be established by satisfactory proof. 
 And the officer before whom the proofs are taken is 
 required to make such full inquiries of the witnesses 
 as shall be necessary to arrive at all the material facts 
 in the case. 
 
 Emmons v. Emmons, Walk. Ch. 532; Pugsley v. Pugsley, 
 9 Paige, 589. 
 
 When there is an infant defendant the cofnplainant 
 will not be entitled to a decree upon the bill simply 
 taken as confessed. He must establish his case by 
 testimony, for the reason that an infant is a ward of 
 the court. 
 
 Thayer v. Love, Walk. Chy. 200; Chandler v. McKinley, 6 
 Mich. 216; Smith v. Smith, 13 Mich. 258. 
 
 If one of the defendants is beyond the jurisdiction 
 
132 EQUITY PLEADING AND PRACTICE. 
 
 of the court, and the statute provides for substituted 
 service steps must be taken to make such substituted 
 service. Affidavit is made that the defendant is a non- 
 resident, or that he has concealed himself, etc., and 
 upon this affidavit the court makes an order that the 
 defendant appear and answer within the time pre- 
 scribed in the statute and that notice of such order be 
 published, etc., in a certain newspaper. The statute 
 specifies the time within which the order must be 
 published and the length of time. If the defendant 
 does not appear within the period fixed by the order 
 and answer upon filing proof of that fact an order may 
 
 be entered taking the bill as confessed. 
 z How. An. St., §§6670, 6671, 6672, 
 
EQUITY PJ.EADING AND PRACTICE. ]33 
 
 LECTURE IX. 
 
 APPEARANCE OF DEPENDANT, ETC. 
 
 The defendant having been personally served with 
 process must cause his appearance to be entered in 
 the common order book within the time prescribed 
 by the rules, and serve a notice of such appearance 
 upon complainant, if he would prevent his default 
 being entered and an order made taking the bill as 
 confessed. 
 
 I Barb. Ch. Pr. 78; Jennison Ch. Pr. 40; Mich. Rules =; a 
 7 b; U. S. Rules 17, 18. 
 
 Under the Michigan practice the defendant must 
 appear within fifteen days after being served by sub- 
 poena and serve notice of such appearance upon com- 
 plainant's solicitor. He may demand a copy of the 
 bill in which case it must be served within fifteen days 
 after such demand. 
 
 Ch. Rule s a, b, c. 
 
 The defendant having appeared, if the occasion 
 exists, may except to the bill on the ground that it 
 contains impertinent or scandalous matter, and in the 
 United States court if it is made unnecessarily prolix 
 by recitals of matters not pertinent, or relevant to the 
 real cause of action, or by needless repetitions. 
 
 Upon exceptions of this nature being filed they may 
 be referred to a master. If the master or the '.".ourt 
 find that the exceptions are well taken, the objectional 
 
134 EQUITY PLEADING AND PRACTICE. 
 
 matter will be expunged at the expense of complainant, 
 and he may be adjudged to pay all the defendant's 
 costs up to that time. 
 U. S. Rules 25, 26, 27. 
 
 Impertinences are wholly irrelevant or unnecessary 
 
 allegations and statements, and they have been 
 
 described to be "when the records of the court are 
 
 stufifed with long recitals, or with long digressions cf 
 
 matters of fact, which are altogether unnecessary and 
 
 totally immaterial to the matter in question ; as where 
 
 a deed is unnecessarily set forth in haec verba." Tlie 
 
 test as to whether a particular allegation is or is not 
 
 impertinent is this, is it material? If it is not material 
 
 it is impertinent, but its immateriality must clearly :ip- 
 
 pear. If the court is in doubt, the matter will not be 
 
 stricken out as impertinent. 
 
 Rickards v. Attorney-Genl., 12 CI. and FI., 30; Railroad v. 
 Stewart, 4 C. E. Green, 343; Whaley v. Norton, i Vern. 483; 
 Clark V. Periam, 2 Atk. 333, 337; Woods v. Morrell, i Johns. 
 Ch. 103. 
 
 Scandal is an irrelevant allegation of some matter 
 
 which is unbecoming the dignity of the court to hear, 
 
 or is contrary to good morals, or which charges some 
 
 person with the commission of a crime uot necessary 
 
 to be shown in the cause; in short any unnecessary 
 
 allegation bearing cruelly upon the moral character of 
 
 an individual. Nothing is scandalous, however, which 
 
 is relevant. A man may be called a thief when that 
 
 fact is pertinent to the issue involved. 
 
 Fisher v. Owen, 8 Ch. Div. 645; Gleaves v. Morrow, 2 
 Tenn. Ch. 592; Goodrich v. Rodney, i Minn. 195; Desplaces 
 V. Goris, Edw. Ch. 350. 
 
EQUITY PLEADING AND PRACTICE. ] 35 
 
 The objection to the bill for impertinence must be 
 taken before answering or submitting to answer, i. e., 
 obtaining an extension of time within which to answer. 
 
 Anon, 2 Vesey, Sen. 630; Ferrar v. Ferrar, I Dick:. 173; 
 Anon, s Vesey, Jr. 656; Jones v. Spencer, 2 Tenn. Ch. "jyd. 
 
 But an objection for scandal may be taken after 
 answer. The reason for the distinction is that imper- 
 tinence involves merely a question of costs, while 
 scandal is regarded as an indignity to the court. Same 
 authorities. 
 
 And the objection to the bill for scaiidal may be 
 made by one not a party to the suit. 
 
 Coffin V. Cooper, 6 Ves. 513; Williams v. Douglas, 5 Beav. 
 82, 85. 
 
 No pleading may contain impertinent or scandalous 
 matter, and if it does it may be excepted to for that 
 reason. 
 
 DISCLAIMER. 
 
 if the defendant has no interest whatever in the 
 subject-matter of the suit, and never had any, or 
 claimed to have had any, he may answer by disclaim- 
 ing all interest in the proceedings. A simple dis- 
 claimer, however, is seldom sufficient, except in those 
 cases where the defendant has been made a party by 
 mistake. If, as a matter of fact, although the defend- 
 ant, may not, at the time the suit was commenced, have 
 any interest in the subject-matter of the controversy, 
 if he once had and has since parted with such interest, 
 he may be called upon to disclose to whom he has 
 
136 EQUITY PLEADING AND PRACTICE. 
 
 assigned the interest, that the complainant may make 
 the assignee a party defendant. 
 
 Spoflford V. Manning, 2 Edw. Ch. 358 ; Ellsworth v. Curtis, 10 
 Paige 105. 
 
 A mere disclaimer is not sufficient if the defendant 
 is charged with being' a party to a fraud, or, if the 
 allegations of the bill show that the defendant has so 
 entangled himself up with the whole transaction that 
 the complainant was obliged to make him a party, for 
 in such a case the complainant is entitled to an answer 
 explaining the defendant's conduct. 
 
 Graham v. Cooper, 9 Sim. 93, 102; Glassington v. Thwaits, 
 2 Russ. 458. 
 
 Whenever the complainant is entitled to make any 
 person a defendant in any given case, such person can- 
 not avoid the suit by a disclaimer, and if the complain- 
 ant is entitled to an answer he must answer. 
 
 Glassington v. Thwaits, 2 Russ. 458, 462; Dobree v. Nichol- 
 son, 22 L. T. N. S. 744; Isham v. Miller, 44 N. J. L. 61; 
 Bromberg v. Hyer, 69 Ala. 22; Graham v. Coape, 3 Myl. & Cr. 
 638. 
 
 If there is no objection to the bill on the ground 
 that it contains impertinent or scandalous matter, and 
 the defendant desires to interpose a defence, the next 
 step for him to take will depend entirely upon the na- 
 ture of his defence. For example, A may have filed 
 a bill to enforce a contract made with B by the terms 
 of which B agreed to sell a certain parcel of land for a 
 given sum to A. B's defence may be that the contract 
 is void, not having been reduced to writinar, and the 
 
EQUITY PLEADING AND PEACTICE. 137 
 
 fact that it was not reduced to writing may or may 
 not appear upon the face of the bill, or B's defence 
 may be that the contract is void on account of some 
 fraud or imposition practiced by A whereby he was 
 induced to execute the contract— or in other words, the 
 defence may consist of: 
 
 1. Some objection to the case made by the bill 
 which appears upon the face of the bill, showing that 
 the complainant has no cause of action ; or, 
 
 2. There may be some fact not appearing upon 
 the face of the bill, and not going to the merits of the 
 cause, which will prevent the court from taking cog- 
 nizance of the cause; or, 
 
 3. The defence may go to the merits of the com- 
 plaisanfs cause, the defendant claiming that upon all 
 the facts and circumstances that the plaintiff is not 
 entitled to any relief. 
 
 The first two are called dilatory defences, becaitse 
 they merely postpone, or at best prevent an investiga- 
 tion into the merits of the matters in controvfersy. The 
 last is called a defence upon the merits, because it puts 
 in issue the allegations upon which the complainant 
 bases his right to relief, and the trial of the cause upon 
 such an issue will result in a final disposition of the 
 whole matter. 
 
 These several defences have each a particular form 
 in which they are to be presented. 
 
 If the defence is based upon some matter which 
 appears upon the face of the bill, it is by demurrer. 
 
 Insurance Co. vs. Field, 2 Story 50. 
 
138 EQUITY PLEADING AND PRACTICE. 
 
 If the defence rests upon some one particular fact 
 which does not appear upon the face of the bill, it may- 
 be by plea, which brings to the attention of the court 
 the special defence relied upon. The plea is a special 
 answer. 
 
 Story Eq. PI. § 437. 
 
 If the defence rests upon the actual merits of the 
 defendant's case, the defence is by a general answer. 
 
 Story Eq. PI. § 437. 
 
 DEMURRER. 
 
 A demurrer is the proper mode of defence, when 
 the ground of defence is a defect in the frame of the 
 bill or in the case made by it, or the matter contained 
 in it. 
 
 Jones V. Earl of Strafford, 3 P. Wms. 79, 80; Mitfords' Eq. 
 206. 
 
 Lord Coke says that the word demurrer comes front 
 the latin demorari, to abide; and therefore, he that de- 
 murreth in law, is said to abide in law; mcratur, or 
 demoratur in lege. The pleader stops, abides, demurs, 
 in short, submits the case to the court and demands 
 of the court its judgment, whether, in law, he can be 
 required to proceed. 
 
 Co. Litt. 71 b; 3 Black Com. 314. 
 
 The demurrer alleges in substance that if the matters 
 contained in the bill were true they do not sustain the 
 complainant's contention, or that, for some reason 
 apparent on the face of the bill, or because of the 
 omission of some matter, which ought to be contained 
 
EQUITY PLEADING AND PRACTICE. 139- 
 
 therein, or for want of some circumstance which ought 
 to be attendant thereon, the defendant ought not to be 
 compelled to answer, and it therefore demands the 
 judgment of the court whether the defendant shall be 
 compelled to answer the complainant's bill, or that 
 particular part of it to which the demurrer applies. 
 Mitford's Eq. 86, Mich Ch. R. 9. 
 
 When it is clear, absolute and certain, that taking 
 the charges made in the bill" to be true the bill will' 
 be dismissed at the hearing, a demurrer will lie, but 
 not if there is uncertainty in that regard. 
 
 Atterson v. Mair, 2 Ves. 94; S. C. 4 Bro. C. C. 270; Haven- 
 den V. Ld. Annesley, 2 Sch. & Lef. 607; Brooks v. Hewitt, 3, 
 Ves. 253. 
 
 But while the demurrer assumes and confesses, for 
 
 the purposes of the argument, that the allegations in 
 
 the bill are true, the admission extends only to such 
 
 matters as are well pleaded, matters of, fact, and not 
 
 matters of law, arguments and inferences, nor false 
 
 allegations of fact of which the court is bound to take 
 
 judicial notice. And when there are matters of fact 
 
 pleaded which are repugnant to some other, that one 
 
 is admitted, which is of least benefit to the pleader. 
 
 Looke V. RoUe, 3 Ves. 4-7; Campbell v. Mackay, My. & 
 Cr. 603, 613; Wales v. Bank of Mich., Har. Ch. 308; Griffing 
 V. Gibb, 2 Black U. S. 519; Raby v. Cossitt, 78 111. 638; Croft 
 V. Thompson, 51 N, H. 536 i Green. Ev. §§ 4, 6. 
 
 While the demurrer admits all relevant allegations 
 
 well pleaded it does not admit conclusions drawn from 
 
 facts stated. 
 
 Lea V. Robeson, 12 Gray 280; Interstate Land Co. v. 
 Maxwell Co., 139 U. S. 569; National Park Bk. v. Halle, so- 
 il!. App. 17; Cornwell v. Green, 43 Fed. Rep. 105. 
 
140 EQUITY PLEADING AND PKACTICE. 
 
 An allegation of fraud is not admitted, but only the 
 facts, fraud being a conclusion of law. 
 
 Foggv. Blair, 139 U. S. 118; Preston v. Smith, 26 Fed. 
 Rep. 884; Walton v. Weitwood, 73 111. 125. 
 
 The demurrer may go to the whole bill or to only 
 a part of the bill. There may be a demurrer to the, 
 whole bill, or demurrers to parts of the bill, and de- 
 murrer to parts of a bill may overlap each other. If 
 the demurrer does not go to the whole bill it must 
 point out clearly the part of the bill covered and not 
 by way of exception, as "all of the bill except those 
 parts answered." 
 
 Robinson v. Thompson, 2 Ves. & B. 118; Salkeld v. 
 Science, 2 Ves. 107. 
 
 When there are several demurrers to the sevei'al 
 parts of the bill and some are good and others bad, 
 those that are good will be sustained and the others 
 overruled. When there is a demurrer to the whole bill 
 and a demurrer to a part of it and the demurrer to Ihe. 
 whole bill is overruled and the other sustained, so much 
 of the bill as is covered by it is dismissed and the de- 
 fendant must answer the residue. 
 
 Giant Pow. Co. v. Cal. Pow. Works, 98 U. S. 126; Canton 
 Warehouse Co. v. Potts, 68 Miss. 637; Brandon Mfg. Co. v. 
 Pime, 14 Blatch. 371. 
 
 A demurrer may be to the relief prayed, or to the 
 discovery or to both. But the demurrer must not be 
 both to discovery and relief if the complainant is 
 entitled to either; if the demurrer is to the whole bill 
 
EQUITY PLEADING AND PRACTIOE. 141 
 
 and the complainant is entitled to either discovery or 
 relief it will be overruled. 
 
 Livingstone v. Story, 9 Peters 633; Wright v. Dame, 1 
 Met. 237-241; Holmes v. Holmes, 36 Vt. 525, 537; Laight v. 
 Morgan, I Johns. Cas. 434. 
 
 Demurrer to relief may be: 
 I. To the jurisdiction. 
 II. To the person. 
 III. To the matter of the bill eithei in substance 
 or form. 
 
 I. TO THE JURISDICTION. 
 
 Demurrers to the jurisdiction are (i) either on the 
 ground that the case made by the bill does not fall 
 within that of any class of causes over \yhich the court 
 assumes 'jurisdiction. 
 
 A discussion of the cases that fall under this head- 
 properly belongs to the subject of equity jtirisdiction. 
 
 Stephenson v. Davis, 56 Me. 73, 74; Cookney v. Anderson, 
 31 Beav. 452; Cookney v. Anderson, 8 Jur. N. S. Part I, 1220;. 
 Boston Water Power Co. v. Railroad, 16 Pick. 512. 
 
 The demurrer to the jurisdiction may be (2) on the 
 ground that the subject-matter of the suit is within 
 the jurisdiction of some other court. 
 
 If it appears from the bill that the complainant has- 
 
 as effectual and complete a remedy at law as in equity 
 
 the bill is demurrable. 
 
 Lynch v. Willard, 6 Johns. Ch. 342; Bank v. Lee, 11 Conn. 
 
 fix; Hammond v. Messinger, 9 Sim. 327; Ohling v. Luitjens, 
 
 32 111. 23; Parry v. Owen, 3 Atk. 740; Kemp v. Prior, 7 Ves. 
 
 237- 
 
 II. TO THE PERSON. 
 
 If it appears on the face of the bill that the com- 
 plainant cannot maintain the suit on account of some 
 personal disability that objection can be taken by de- 
 murrer. 
 
142 EQUITY PLEADING AND PRACTICE. 
 
 LECTURE X. 
 
 III. TO THE MATTER OF THE BILli. 
 
 Demurrers arising from objections to the matter of 
 the bill are either to the substance of the bill or to the 
 form in which it is stated. 
 
 Demurrers to the substance are: 
 
 1. That the plaintiff has no interest in the subject. 
 
 2. That the defendant is not answerable to the 
 plaintifif. 
 
 3. That the defendant has no interest. 
 
 4. That the plaintifif is not entitled to the- relief 
 he has prayed. 
 
 5. That the value of the subject-matter is insufifi- 
 cient to give the court jurisdiction. 
 
 6. That the bill does not embrace the whole of the 
 subject-matter. 
 
 7. That there is a want of proper parties. 
 
 8. That the bill is multifarious. 
 
 9. That the plaintiff's remedy is barred by lapse of 
 time. 
 
 ID. The Statute of Frauds, 
 
 II. That there is another suit pending for the same 
 matter between the same parties. 
 
 I. If there are several plaintiffs some of them 
 having an interest and others none in the subject- 
 matter, a general demurrer to the whole bill is a good 
 defence. 
 
 King of Spain v. Machado, 4 Russ. 224; Clarkson v. De- 
 Peyster, 3 Paige 336-339; Dias v. Bouchaud, 10 Paige 445; 
 Haskell v. Hilton, 30 Me. 419; Atwell v. Ferret, 2 Blatch. C. 
 
 c. 39. 
 
EQUITY PLEADING AND PRACTICE. 143 
 
 2 and 3. If the plaintiff has an interest the bill must 
 show the defendant answerable to him. 
 
 Ld. Uxbridge v. Stoveland, i Ves. Sen. 55; Crossing v. 
 Honor, i Vern. 180; White v. Smale, 22 Beav. 72. 
 
 4. When the plaintiff prays merely for some special 
 relief to which he is not entitled, or to any relief of the 
 same nature. 
 
 Rollins V. Forbes, 10 Cal. 299; Bleeker v. Bingham, 3 
 Paige 246; Dike v. Grant, 4 R. I. 285; Sayles v. Tibbitts, 5 
 R. I. 79. 
 
 5. If it does not appear on the face of the bill that 
 the matter in controversy is sufRcient to give the court 
 jurisdiction, the defendant may move to strike the 
 bill off from the file or demur. 
 
 Carr v. Inglehart, 3 Ohio St. 458; McElwain v. Willis, 3 
 Paige 505; S. C. 9 Wend. 548. 
 
 6. The court will not permit a bill to be brought 
 for a part; of the matter only, but requires that every 
 bill shall be so framed as to afford ground for decision 
 upon the whole matter at one and the same time. 
 
 Panfoy v. Panfoy, i Vern, 29; Margrov v. Le Hooke, 2 
 Vern, 207; Jones v. Smith, 2 Ves. 372. 
 
 7. When a defendant demurs to the bill for the 
 want of parties, the demurrer must poim. out who are 
 necessary parties, not necessarily by name, but in a 
 manner clearly to indicate who they are. 
 
 Att'y-Genl. v. Poole, 4 M. & C. 17; Robinson v. Smith, 3 
 Paige 222; Story Eq. PI. i 543- 
 
 8. A demurrer for multifariousness goes to the 
 
144 EQUITY PLEADING AND PRACTICE. 
 
 whole bill and it is not necessary to specify the par- 
 ticular parts of the bill which are multifariotis. 
 
 Dimmock v. Bixby, 20 Pick. 368; Gibbs v. Claggett, 2 Gill 
 & J. 14; Boyd V. Hoyt, S Paige 65. 
 
 9. The Statute of Limitations of 21 Jac. i, c. 16, 
 did not in terms include equitable actions, but courts 
 of equity have been disposed to treat a claim as stale 
 that was barred at law, and in short to be governed 
 by the statute. 
 
 Miller v. Mclntyre, 6 Peters 61; Denny v. Gilman, 26 Me. 
 149, 154; Robinson v. Hook, 4 Mason 139, 150; Brown v. 
 Bufena Vista, 95 U. S. 157. 
 
 10. If it clearly appears on the face 01 the bill that 
 the contract upon which the complainant rests his 
 claim is within the statute of frauds, the objection can 
 be taken advantage of by demurrer. 
 
 Field V. Hutchinson, i Beav. 599, 600; Crenston v. Smith, 
 6 R. I., 231; Dudley v. Bachelder, 58 Me. 403, 406. 
 
 11. If it appears, also, that there is another suit 
 pending in another court, in which the complainant 
 could obtain the same relief, the defendant may de- 
 mur for that reason. 
 
 Peareth v. Peareth, s Jur. N. S. 60. 
 
 The grounds of demurrer to a bill by reason of 
 deficiency in matters of form are: 
 
 1. Omission to state complainant's residence. 
 
 2. Neglect to state positively, allegations within the 
 complainant's knowledge. 
 
 3. Lack of certainty in the bill. 
 
EQUITY P],EADING AND PRACTICE. 145 
 
 4. Failure of the complainant to offer to do equity. 
 
 5. Want of counsel's signature to the bill. 
 
 6. Neglect to verify in those cases where the 
 statute or rules require the bill to be swoi a to. 
 
 The above grounds of demurrer are simply an 
 enumeration of the essentials of a bill in equity which 
 we have already pointed out. 
 
 The defendant may not only demur to the relief, 
 but he may demur to the discovery sought when the 
 complainant is entitled by his bill to relief. The 
 several grounds of demurrer to discovery are : 
 
 1. That the discovery may subject the defendant to 
 some penalty or forfeiture. The defendant will not be 
 required to either criminate himself or place himself 
 in a position in which he may be prosecuted. 
 
 Harrison v. Southcote, i Atk. 539; Duke v. Harper, 66 
 Mo. 51; Allyn v. Hanna, 47 Iowa 264; McPherson v. Cox, 96 
 U. S. 404; Livingston v. Tompkins, 3 Johns. Ch. 452; U. S. v. 
 Twenty-eight Packages, Gilpin C. C. 306. 
 
 2. Because in equity and good conscience the de- 
 fendant's right is equal to the complainant's. If for 
 example the defendant has in conscience as good a 
 title, but not as perfect a legal title as the complainant, 
 he will not be compelled to make a discovery which 
 will endanger his own title. 
 
 Howell V. Ashman, i Stockt. (N. J.) 81; Glegg v. Legh, 4 
 Mad. 104; Story Eq. P. §§ 603, 604; Boone vs. Chiles, 10 
 Peters 177; McNeil v. Magee, 5 Mason 269. 
 
 3. Because the discovery sought is immaterial tO' 
 the relief prayed. The complainant is not entitled in 
 equity any more than at law to introduce immaterial! 
 
146 EQUITY PLEADING AND PRACTICE. 
 
 evidence. Therefore, if he calls upon the defendant 
 to answer interrogatories in reference to some matter 
 which is immaterial, the defendant may demur to that 
 much of the discovery for immateriality. 
 
 Lord Montague v. Dudman, 3 Ves. Sen. 396, 398; Baker 
 V. Pritchard, 2 Atk. 388; Hincks v. Mtlthrope, i Vern. 204. 
 
 4. Because the discovery would be a breach of 
 professional confidence. All confidential communica- 
 tions between attorney and client, husband and wife, 
 physician and patient, priest and penitent, may not be 
 disclosed in any proceeding, either at law or in euqity. 
 And if the plaintiff seeks to have the defendant make 
 any such disclosure, he may demur to that part of the 
 discovery, if it appears on the face of the bill that the 
 information is in fact confidential. 
 
 State V. White, 19 Kan. 445; Insurance Co. v. Schaffer, 94 
 U. S. 457; Bigler v. Reyher, 43 Ind., 112; Barnham v. Rob- 
 erts, 70 III. 19. 
 
 5. That the discovery relates only to the defend- 
 ant's case. The complainant is not entitled to obtain 
 from the defendant a disclosure of facts material 
 only to the defence. For example, where the plaintiff 
 and defendant claim through adverse sources of title, 
 the one is not entitled to the other's evidences of title. 
 
 Ingilby v. Shafto, 33 Beav. 31; Joy v. Kekewick, 2 Ves. Jr. 
 679; Baden v. Rore, 2 Ves. Sen. 445; Moore v. Caron, L. R. 
 7 Ch. App. 94, note. 
 
 6. That the discovery might be injurious to the 
 pubHc interest. This ground of objection is confined 
 
EQUITY PLEADING AND PRACTICE. 147 
 
 to information which the defendant has obtained 
 while occupying a pubhc or semi-public position. 
 
 Smith V. East India Co., iPhil.so, 55, 6 Jur. i; Bellows 
 V. Stone, 18 N. H. 465, 485; i Greenl. Ev. §§ 250, 251. 
 
 Any irregularities in the frame of the bill which may 
 be taking advantage of by demurrer, will be deemed 
 to have been waived if the defendant consents to 
 answer. 
 
 Reedy v. Scott, 23 Wall. 352, 365; Hubbard v. Turner, 2 
 McLean, 519, 539; Campbell v. Foster, 2 Tenn. Ch. 402. 
 
 A demurrer cannot be good in part and bad in part, 
 but the defendant may put in separate and distinct 
 demurrers to separate and distinct parts of the bill for 
 separate and distinct causes, and in that case one de- 
 murrer may be, sustained and another overruled. 
 
 What is understood by a demurrer being bad in part 
 and good in part is that it covers too much of the bill. 
 Demurrer is a mere name and designation of a defence 
 appearing on the face of the bill. Now if that par- 
 ticular defence goes to the whole bill, a general 
 demurrer for that cause is good. But if the particular 
 defence appearing upon the face of the bill does not 
 go to the whole bill a general demurrer is not good. 
 If for instance, it appears that the bill calls for discov- 
 er}- as to several matters and as to one of those matters 
 the information called for was obtained by the defend- 
 ant confidentially when the relation of penitent and 
 confessor existed, a demurrer to so much of the bill 
 as calls for that particular discovery would be good, 
 for that cause, but if the demurrer was to the whole 
 
148 EQUITY PLEADING AND PEACTICE. 
 
 bill it would still be good as to that particular part of 
 the bill but bad as to the residue of the bill and would 
 therefore be overruled. In other words by demur- 
 ring, you simply announce that you have a defence to 
 the whole bill or to that part of it demurred to, as 
 appears from the bill itself, and then you state what 
 that defence is, technically assign cause. Now if that 
 defence, the cause assigned, is good to so much of the 
 bill as you have demurred to, the demurrer is sus- 
 caned, but if it is not a good defence to so much of 
 and coming events cast their shadows on the riverh 
 the bill as you have demurred to it is overruled, be- 
 cause it is no defence to a part of the bill you claimed 
 it was a defence to. A demurrer cannot be good in 
 part and bad in part. 
 
 Mayor of London v. Levy, 8 Ves. 398, 403; Baker v. Hel- 
 lish, II Ves. 68, 70; North v. Stafford, 3 P. Wms. 149; Rober- 
 deau V. Rous, i Atk. 543; Barstow v. Smith, Walk. Ch. 394; 
 Railroad v. Schuyler, 17 N. Y. 592. 
 
 When more than one of the defendants join in a 
 demurrer and the demurrer is good as to one and is 
 bad as to the other, it will be allowed as to the one and 
 overruled as to the others. It is not considered good- 
 in part and bad in part, but is treated as> the separate 
 demurrer of each defendant. 
 
 Mayor of London v. Levy, 8 Ves. 398, 403. 
 
 FORM OF DEMURRER. 
 
 The demurrer must be entitled in the cause. In- 
 deed, all the papers filled in a cause, or served after 
 the bill is filed, are to be entitled. Following the title 
 
EQUITY PLEADING AND PRACTICE. 149 
 
 is the heading, indicating whether it is a joint or sev- 
 eral demurrer, whether it is to the whole or part of the 
 bill, and if to a part, whether it is accompanied by a 
 plea, or answer, or both. Then comes the protesta- 
 tion of the defendant as to the truth of the matters 
 contained in the bill. The object of this protestation 
 is to avoid a tacit admission, either in this or .some 
 other suit of the truth of the averments in the bill. 
 This clause may be omitted in Michigan. 
 
 Story Eq. PI. ^ 452, 457, Mich Ch. R. 9 a. 
 
 The demurrer then proceeds, if it is io a part and 
 and not to the whole bill, to point out distinctly those 
 parts of the bill to which it applies. The rule given 
 by Lord Redesdale, is: "That where a defendant de- 
 murs to part, and answers to part of a bill, the court 
 is not to be put to the trouble of looking into the bill 
 or answer to see what is covered by the demurrer; but 
 it ought to be expressed in clear and precise terms 
 what it is that the party refuses to answer, and I can- 
 not agree that it is the proper way of demurring to say 
 that the defendant answers to such a particular fact 
 and demurs to all the rest of a bill ; the defendant ought 
 to demur to a particular part of the bill, specifying it 
 precisely." 
 
 Deomsher v. Newenham, 2 Sch. & Lef. 199, 205; Atwell v. 
 Ferrett, 2 Blatch. C. C. 39; Story Eq. PI. §§ 4b/, 458. 
 
 Since a demurrer cannot be good in part and bad in 
 part, and the defendant is permitted to put in separate 
 demurrers to separate parts of the bill, this should be 
 done when the pleader is in doubt whether a given 
 
150 EQUITY PLEADING AND PRACTICE. 
 
 ground of demurrer covers more than one part of Ihe 
 bill. But where there are two or more separate de- 
 murrers to dififeent parts of the bill, each must point 
 out distinctly what part of the bill each is intended tO' 
 cover. 
 
 Mynd v. Francis, i Anst. 5, Burch v. Coney, 14 Jur. 1009. 
 
 Demurrers are either general or special. They are 
 general when no particular cause is assigned, save the 
 dry forfnula, which is a sufficient compliance with the 
 rule requiring the cause of demurrer to bo given, ''that 
 the complainant has not made or stated such a case 
 as entitles him to the relief prayed for or to any reli ^f ."' 
 
 Bidder V. McLean, L. R. 20 Ch. D. 512; Essex Paper Co. 
 V. Greacen, 45 N. J. Eq. 504. 
 
 Some cause for demurrer must be assigned. If no 
 cause is assigned the demurrer is bad. 
 
 Duffield V. Graves, Carey 87; Nash v. Simth, 6 Com. 421; 
 Howland v. Kenosha, 19 Wis., 264. 
 
 If the demurrer is general and the complainant is 
 entitled to any relief under his bill, the demurrer will 
 be overruled. 
 
 Shaw V. Chase, ^^ Mich. 436; Darrah v. Boyce, 62 Mich. 
 480; Northern P. R. R. v. Roberts, 42 Fed. Rep. 734. 
 
 The demurrer is special, when the particular detects 
 of the bill are pointed out. A general demurrer is 
 usually sufficient when the defect is a matter of sub- 
 stance, but when the defects are matters of form the 
 pleader must demur specially. 
 
 Wilson V. Hill, 46 N. J. Eq. 367; Stewart v. Flint, 57 Ver. 
 2x6; Ward v. Clay, 82 Cal. S02. 
 
".QUITY PLEADING AND PEACTICE, 151 
 
 A defendant may demur generally to the whole bill, 
 and assign as cause want of equity, without being 
 more specific: 
 
 1. When the facts stated are insufficient to entitle 
 the plaintiff to relief. 
 
 2. When he has omitted to verify the bill, when 
 that is necessary. 
 
 3. When he has neglected to offer to do equity in 
 cases where such an offer ought to be made. 
 
 4. When the allegations of fact within the personal 
 knowledge of the_complainant are not made with suf- 
 ficient positiveness. 
 
 The reason for the rule in all these cases is that the 
 plaintiff, by his bill, does not bring his case within 
 the description of cases over which the court exercises 
 jurisdiction. 
 
 Caren v. Johnson, 2 Sch. & Lef. 280; 2 Danl. Ch. Pr. i 
 ed. 73- 
 
 But in all cases of general demurrer, the pleader 
 may point out the specific objections, and in some 
 cases he is required to do so. When there is a want 
 of parties, he must point out who the proper parties 
 are, and for multifariousness, that specific objection. 
 
 Royner v. Julien, 2 Dick. (>^^. 
 
 Objections for want of jurisdiction and want of 
 equity should be taken by separate demurrers. 
 
 Barver v. Barber S Jur. N. S., Part I., 1197. 
 
 Several causes for demurrer may be assigned in 
 support of a demurrer and if either one of them is good 
 
152 EQUITY PLEADING AND PRACTICE. 
 
 the demurrer will be sustained, although the other 
 causes assigned are bad. 
 
 Canton Warehouse Co. v. Potts, 68 Miss. 637. 
 
 Since a general demurrer is good, whether it does 
 or does not point out specifically all the defects of 
 substance appearing on the face of the bill with the 
 same particularity as must be done in a special de- 
 murrer, there is nothing gained by not pointing them 
 out, except you may possibly in that way keep the 
 complainant ignorant of your real objection. 
 
EQUITY PLEADING AND PKACTICE. 153 
 
 LECTURE XL 
 
 DEMURRER CONTINUED. 
 
 In assigning causes for demurrer care must be 
 taken that no new fact is imported into the bill. A 
 demurrer which alleges a fact not contained in the bill 
 is termed a speaking demurrer and for that reason will 
 be overruled. 
 
 Edsall V. Buchanan, 4 Bro. C. C. 254; S. C. 2 Ves. Jr. 83; 
 Brooks V. Gibbons, 4 Paige 375. 
 
 Should the fact imported be immaterial and not re- 
 lied upon to support the demurrer, it will be treated 
 as surplusage. 
 
 Jones V. Charlemont, 12 Jur. 532; Kuypus v. Reformed 
 Dutch Church, 6 Paige 570; Davis v. Williams, i Sim. s, 8. 
 
 More than one demurrer may be filed, and more 
 than one cause for demurrer may be assigned in the 
 same demurrer. 
 
 Brinkerhoff v. Brown, 6 Johns. Ch. 139, 149; Robinson v. 
 Smith, 3 Paige 222-231. 
 
 And the pleader at the hearing of a demurrer may 
 also assign one or more causes of demurrer in addi- 
 tion to those already assigned. This is called demur- 
 ring ore tenus. Causes of demurrer assigned ore 
 tonus must, however, be co-extensive with the demurrer 
 filed. A cause of demurrer which goes to a part of 
 
154 EQUITY PLEADING AND PRACTICE. 
 
 the biir cannot be assigned ore teiitts upon the argu- 
 ment of a demurrer to the whole bill. 
 
 Crouch V. Hickin, i Keen 385; Pitts v. Short, 17 Ves. 313, 
 216; Rump V. Greenhill, 20 Beav. 512; Thompson v. Uni- 
 versity of London, 10 Jur. N. S. 669, 671. 
 
 While the defendant may demur to a part of the 
 bill, plead to another part, and answer to another, 
 these defences cannot be united as to any one part, or 
 the whole bill, for the reason that they are defences 
 which are inconsistent. The demurrer demands the 
 judgment of the court as to whether the defendant shall 
 be compelled to answer. If he should afterwards 
 answer, before the court renders judgment, it must be 
 presumed that he has purposely waived the objection 
 made. Formerly this rule was enforced with great 
 strictness and it was held that the answer overruled 
 the demurrer even if the part of the bill covered by 
 the answer was immaterial, and that it had a like effect 
 if it answered some part of the bill which might have 
 been covered by the demurrer. The effect of a plea is 
 the same as an answer, it being regarded as a special 
 answer. 
 
 Tidd V. Clare, 2 Dick. 712; Hestor v. Weston, i Vren. 463; 
 Clark V. Phelps, 6 Johns. Ch, 214; Pieri v. Schiedsborro, 42 
 Miss. 493; Chase's Case, i Bland 217. 
 
 The above rule has been modified by the rules of 
 practice in the chancery court of this state, and of the 
 United States. 
 
 Mich. Rule 8 g, h; U. S. Rules 36, 37. 
 
 The demurrer must be signed by counsel, but, since 
 
EQUITY PLEADING AND PRACTICE. 155- 
 
 it relies upon matters appearing upon the face of the 
 bill it need not be signed by defendant or sworn to. 
 It must be filed and a copy served upon the solicitor 
 for the complainant within the time prescribed by 
 the rules. 
 
 Mich. Rule S d; U. S. Rule i8. 
 
 Under the United States and Michigan practice a 
 demurrer cannot be filed unless it is accompanied by 
 a certificate of counsel, that in his opinion it is well 
 founded in law, and that it is not interposed for delay 
 merely. 
 
 U. S. R. 31, Chy. R. 9c. 
 
 Either party may set the demurrer down for argu- 
 ment. In the United States courts complainant must 
 set down the demurrer for argument, and if he neglects 
 to do so, he will be presumed to admit its sufficiency^ 
 and the bill of complaint will be dismissed. 
 
 U. S. Rules 33. 38; Mich R. 9 d. 
 
 Upon the argument of the demurrer the facts stated 
 in the bill, or in that part of it covered by the demurrer, 
 which are well pleaded and are relevant, as we have 
 said, are admitted to be true. If the demurrer is sus- 
 tained the court in effect says that the bill is insufficient 
 in whole or in part, and the plaintifif's cause would, 
 to that extent be finally disposed of, if he was not per- 
 mitted to amend his bill. This permission is always 
 granted upon request if the defect upon which the de- 
 
156 EQUITY PLEADING AND PRACTICE. 
 
 murrer was grounded is one that the plaintiff can cure 
 "by an amendment. 
 
 Lord Comingsby v. Jekyll, 2 P. Wms. 300; Bank of Michi- 
 ■gan V. Niles, Walk. Ch. 398; Mich. R. 9 e. 
 
 It has been held that a patent for an invention may 
 be attacked for want of novelty by demurrer for the 
 reason that whether or not the invention is novel is a 
 ■conclusion of law and not a fact . 
 
 Brown v. Riper, 91 U. S. 2,T, Bottle Seal Co. v. De La 
 Vergne, etc., 47 Fed. Rep. 59. 
 
 The effect of overruling a demurrer is to require the 
 defendant to answer. The admission of the truth of 
 the allegations of the bill made by the demurrer are 
 admissions for the purpose of the argument solely, 
 and consequently such admission does not entitle the 
 complainant to a decree. He is no nearer a decree 
 than he was before, except he has obtained the judg- 
 ment of the .court that his bill in form and' substance 
 is good and sufficient. The defendant is not required 
 to ask the leave of the court to answer. He is required 
 to answer. He by his demurrer asked the judgment 
 ■of the court if he should be required to answer, and he 
 has obtained that judgment, and must answer. 
 
 Sometimes when the court is in doubt it will over- 
 rule the demurrer and reserve the question of the suf- 
 ficiency of the bill to the hearing. 
 
 Browns-word v. Edwards 2 Ves. Sr. 243, 247; Thomas v. 
 Tyler, 3 Y. & Coll. 255; i Danl. Ch. Pr. (sth ed.) 267, 268, 465, 
 .466; Trafford v. Wilkinson, 3 Tenn. Ch. 449; Forbes v. Turke- 
 •man, 1x5 Mass. iiS- 
 
EQUITY PLEADING AND PEACriCE. 15T 
 
 It is discretionary with the court where a demurrer 
 is meritorious, but it is overruled on account of some 
 technical defect, to permit the defendant to demur a 
 second time. 
 
 Devonsher v. Newenham, 2 Sch. & Lef. 199; Glegg v. 
 Legh, 4 Mad. 207; Thorpe v. Macauley, 5 Mad. 218; Baker v. 
 Mellich, II Ves. 68. 
 
 And sometimes when the bill has been so artfully- 
 drawn that, admitting its several allegations, the de- 
 murrer must be overruled, the court will permit the 
 defendant to make the defence he sought to make by 
 demurrer, by plea, putting in issue some fact fatal to 
 the plaintiff's cause. But since but one dilatory defense 
 is permitted without leave of the court, if the defendant 
 desires to plead to the same part of the bill to which 
 he has demurred, he must, before filing his plea, obtain 
 the leave of the court. 
 
 Rowley v. Eccles, i S. & S. 512; Hudson v. Hudson, i S. 
 & S. 512, note; Mitford's Eq. (Tyler ed.) 310. 
 
 While a demurrer in legal effect is a bar to the suit,, 
 if sustained, it is not a bar to a subsequent suit for the 
 same cause of action. Where a cause is heard upon 
 the merits, and the bill is dismissed absolutely, and not 
 without prejudice, such dismissal is a bar to a subse- 
 quent suit. 
 
 Holmes v. Remsen, 7 Johns. Ch. 286, Story Eq. PI. § 4S6. 
 
 Under the modern practice a demurrer does not lie 
 
 to a plea or an answer. 
 
 Edwards v. Drake, 15 Fla. 666; Crouch v. Kerr, 38 Fed. 
 Rep. 549; Winters v. Claitor, 54 Miss. 341; Banks v. Man- 
 chester, 128 U. S. 244; Travus v. Ross, 14 N. J. Eq. 254. 
 
158 EQUITY PLEADING AND PRACTICE. 
 
 PLEAS. 
 
 There may be some single fact which is decisive of 
 the rights of the parties to the cause. As we have seen, 
 if this appears upon the face of the bill the defendant 
 can take advantage of it by demurrer. If it does not 
 appear upon the face of the bill it may be taken ad- 
 vantage of by plea. 
 
 Pleas are divided into three classes. 
 
 1. Pure or affirmative. 
 
 2. Negative. 
 
 3. Anomalous. 
 
 This division is due primarily to the allegations con- 
 tained in the bill with reference to the fact pleaded. 
 
 The complainant may, in his bill, make no reference 
 whatever to the fact which is a complete bar to his 
 action. In that case all that is necessary for the defend- 
 ant is to plead such fact affirmatively, i. e., to aver by 
 plea the existence of such fact. Such a plea is an 
 affirmative plea. Again, the bill may state affirmatively 
 the existence of some particular fact upon which his 
 whole right of action depends, and that particular alle- 
 gation may be false. It is necessary for the defendant 
 in such a case to plead the non-existence of that par- 
 ticular fact alleged, to negative that much of the bill. 
 Such a plea is a negative plea. Or again, the com- 
 plainant may set forth in his bill the apparent existence 
 of a fact which is a complete bar to his action, and then 
 allege certain other facts and circumstances which 
 show that in truth, it is no bar. In such a case the 
 plea must affirm the existence of the fact admitted by 
 the bill, and then negative all those facts and circum- 
 
EQUITY PLEADING AND PRACTICE. 159 
 
 Stances alleged in the bill tending to -destroy its effect 
 as a bar. Such a plea is an anomalous plea. 
 
 It will be noticed at the outset (hat pleas differ ma- 
 terially from demurrers. A demurrer takes the bill as 
 drawn and assuming that all its allegations are true, 
 points out some defect appearing upon its face. Such 
 defect very seldom goes to the very heart of the plain- 
 tiff's cause of action. It is usually some fact showing 
 a disability in the parties, want of jurisdiction in the 
 court, or some inherent defect in the case as stated. 
 Pleas not only include all these special objections when 
 they do not appear on the face of the bill, but they also 
 include a large number of defences which go to the 
 merits of the cause in some one particular, which are 
 decisive of the suit upon the merits. The plea is there- 
 fore frequently in its nature a special answer to the 
 case made by the complainant, and it is in its particular 
 character as an answer which a plea possesses that we 
 find the reason for certain rules that have been adopted 
 with reference to them. As we shall see hereafter, 
 a plea is frequently ordered by the court to stand as an 
 answer. 
 
 The plea must be single. It must present a single 
 ground of defence which will be decisive of the con- 
 troversy, or of so much of the plaintiff's claim for relief 
 or discovery as is covered by the plea, and a plea pre- 
 senting two or more grounds of defense is bad. 
 
 Nobkissen v. Hastings, 2 Ves. 83; Whittred v. Brock- 
 hurst, I Bro. C. C. 404; Coath v. Jackson, 6 Ves. 11; Albany 
 City Bk. V. Dorr. Walk. Ch. 317, 322; Goodrich v. Pendleton, 
 
 3 Johns. Ch. 322, Rhode Island v. Massachusetts, 14 Peters, 
 210; Loud V. Sargent, i Edw. Ch. 163; Nobkissen v. Hastings, 
 
 4 Bro. C. C. 253. 
 
160 EQUITY PLEADING AND PRACTICE. 
 
 This rule does not preclude the pleader from setting- 
 forth in the plea all the facts tending to establish his 
 single defence. Multifariousness in a plea is not pro- 
 duced by the averment of several separate and distinct 
 facts, all of which tend to establish a single proposition, 
 but by the averment of several propositions, either of 
 which is a separate defence. 
 
 Fox V. Yates, 24 Beav. 271; Harrison v. Southcote, I Atk. 
 528; Hazard v. Durant, 25 Fed. Rep. 26; Harrison v. Far- 
 rington, 38 N. J. Eq. 358. 
 
 The pleader may, however, sometimes obtain leave 
 of the court to file a double plea. This is sometimes 
 necessary, especially when the bill has been drawn with 
 a double aspect. Thus, where a bill was drawn seek- 
 ing to charge real estate with certain debts of the an- 
 cestor, and alleged that they were: i. Made a charge 
 by the will; and, 2, if not made a charge by the will, 
 they were a charge from the fact that the ancestor was 
 a trader. The court permitted a plea to be filed deny- 
 ing the allegation that the will made the debts a charge 
 upon the real estate, and also as to the ancestor being 
 a trader, which would make them a charge under the 
 statute. 
 
 Gibson v. Whitehead, 4 Mad. 129, 241; Hardman v. El- 
 laraes, S Sim. 640; aKy v. Marshall, i Keen 190, 192. 
 
 When great inconvenience might otherwise be sus- 
 tained by the defendant he is sometimes permitted to 
 file a double plea. 
 
 Kay V. Marshall, i Keen 190, 182; McClosky v. Barr, 38 
 Fed. Rep. 165; U. S. vs. American Bell Tel. Co., 30 Fed. Rep. 
 523; Bompton v. Binhall, 4 Beav. 558. 
 
EQUITY PLEADING AND PRACTICE. 161 
 
 The reason for the rule that a plea must be single is 
 that the advantage which a plea has over an answer 
 in shortening the proceedings, would be destroyed if 
 the pleader were permitted to introduce into his plea 
 more than one defence. When he is permitted, by 
 leave of the court, to plead more than one defence to 
 the same bill, or the same part of a bill, he must not 
 unite the separate defences in the same plea, but file 
 separate pleas. 
 
 Gibson v. Whitehead, 4 Mad. 129, 241; Scott v. Broad- 
 wood, 2 Coll. C. C. 447; Ilardman v. EUames, S Sim. 640; 
 Benson v. Jones, i Tenn Ch. 498; Brinkerhoff v. Brown, 
 7 Johns. Ch. 216; Saltiers v. Tobias, 7 Johns. Ch. 214 
 
 A plea cannot be made to perform the ofHce of a de- 
 murrer. If it sets forth no new matter, but relies upon 
 the allegations contained in the bill, it will be over- 
 ruled . 
 
 Black V. Black, 15 Ga. 445; Andrews v. Lockwood, ii Jur. 
 956. 
 
 The plea must clearly and distinctly aver all the 
 facts necessary to render it a complete defence to the 
 case made hylhe bill so far as the plea extends. When, 
 such facts are within the knowledge of the defendant,, 
 they must be averred positively, but when they are not 
 within his personal knowledge, they may be averred' 
 upon information and belief. All intendments against 
 the pleader must be excluded by proper averments of' 
 facts, not conclusions of law. 
 
 Parker v. Parker, Walk. Ch. 457, 458; Drew v. Drew, 2: 
 V & B. 159; Madison v. Waltertown, 5 Wis., 173. 
 
162 EQUITY PLEADING AND PKACTICE. 
 
 When the facts are not charg-ed in the bill to be 
 within the knowledge of the defendant, the defendant 
 may in his plea negative the averment "to the best of 
 his knowledge and belief." 
 
 Bolton V. Gardner, 3 Paige 273; Heartt v. Coming, 3 
 Paige 566. 
 
 The plea must not aver conclusions of law, but the 
 facts from which such conclusions may be drawn. 
 
 Farley v. Kitson, 120 U. S. 303; Larimore v. Wells, 29 
 Ohio St. 13. 
 
 When the defendant pleads want of proper patties, 
 that fact not appearing on the face of the bill, the ob- 
 jection must be made in a clear and explicit manner, 
 and the plea, like a demurrer, must show who are the 
 proper parties. 
 
 Robinson v. Smith, 3 Paige 222; Mitchell v. Lennox, 2 
 Paige 280. 
 
 The plea of another suit pending for the same cause, 
 and for like relief, is insufficient. The plea should set 
 forth tlie general character and objects of such other 
 suit, and the relief prayed. 
 
 Bank of Michigan v. Williams, Har. Ch. 219; Bell v. Read, 
 3 Atk. 590; Lyon v. Brockway, 14 Johns. Rep. 501. 
 
 A plea of a stated account must aver that such ac- 
 count was just and fair. 
 
 Schwartz v. Wendell, Har. Ch. 395. 
 
 When the defence is based upon some fact which 
 lias arisen after the filing of the bill, and before other 
 defence is put in, it can be taken advantage of by plea. 
 
EQUITY PLEADING A.ND PKACTICE. 163 
 
 but if the defence has been made, it must be taken ad- 
 vantage of by supplemental or cross bill. 
 
 Payne v. Beach, 2 Tenn. Ch. 708; Miller v. Fenton, 11 
 Paige 18; Lane v. Smith, 14 Beav. 49; Wallace v. Dunning, 
 Walk. Ch. 416. 
 
 It is within the discretion of the court to permit a 
 plea to be amended when the aiDplication for the pur- 
 pose shows mistake, inadvertence, etc. 
 
 Freeman v. Michigan Bank, Har. Ch. 311; Greene v. 
 Harris, 11 R. I. 5, 
 
 We have seen that a demurrer admits, for purposes 
 of the argument, that all the facts well pleaded in the 
 bill are true, but introduces no new fact. The purpose 
 of the plea on the other hand, is to call the attention 
 of the court to a fact not appearing on the face of the 
 bill, which is a bar to the plaintiff's action; but while 
 the pleader may deny any allegation of fact made in 
 the bill, yet the plea admits all the allegations of the 
 bill, which it does not by averment deny. It follows, 
 therefore, that when there are any allegations of fact 
 in the bill inconsistent with the plea, such allegations 
 must be negatived by specific averments in the plea, 
 otherwise the pleader would by his plea aver a fact 
 and by the same plea constructively, but none the less 
 positively, admit the truth of an allegation in the bill 
 wholly at variance with his averment. It is therefore 
 necessary for the pleader in drawing his plea, to ex- 
 amine the bill and to negative, by positive averment, 
 every allegation contained therein which is inconsist- 
 ent with the truth of the plea. 
 
164 EQUITY PLEADING AND PEACTICE. 
 
 Formerly, one of the principal objects gained by a 
 plea, was to prevent a discovery on the part of the de- 
 fendant. It is. evident that if the defence made by 
 the plea goes to the whole bill, that the complainant 
 has no right to discovery, since he has no right of ac- 
 tion. Therefore, if there are no allegations in the bill 
 which tend to negative the plea, or in other words, to 
 disprove the existence of the particular fact which the 
 plea avers and sets up as a special defence, the pleader 
 is not required to make any answer to the bill what- 
 ever. 
 
 If, however, there are allegations of fact in the bill 
 negativing the truth of the plea, the plaintifif is entitled 
 to discovery, as to those particular facts. They are 
 put in issue by the averments of the plea, and the 
 plaintifif is entitled, as to them, to have the defendant's 
 testimony. Consequently, the pleader must not only 
 in his plea negative, by proper averments, all the alle- 
 gations in the bill inconsistent with the truth of the 
 plea, but he must also answer fully and explicitly, as 
 to those allegations. Such an answer is said to be an 
 answer in support of the plea. 
 
 These rules are applicable to all pleas whether pure, 
 negative or anomalous. 
 
 Wilson V. Hammonds, L. R. 8 Eq. Cas. 323; Hunt v. Pen- 
 rice, 17 Beav. 525; Young v. White, 17 Beay. 532. 
 
 He need not, of course, answer irrevelent questions 
 or any interrogations in fact that he would be excused 
 from answering if he was on the witness stand. 
 
 Young V. White, 17 Beav. 532; Lyell v. Kennedy, 8 App. 
 Cas. 217. 
 
EQUITY PLEADING AND PRACTICE. 165 
 
 LECTURE XI [. 
 
 PURE PLEAS. 
 
 A pure plea is one which avers some fact not appear- 
 ing upon the face of the bill, as a bar to the plaintiff's 
 claim. 
 
 2 Daniels Ch. Pr. (i Ed.) 97. 
 
 The theory upon which the pleader proceeds with 
 the affirmative plea is, that, assuming the allegations 
 pf the bill to be true, there is a fact, or circumstance, 
 not mentioned in the bill, which is a good and sufficient 
 reason why the complainant should not be permitted 
 to proceed with his suit. The court in order to save 
 expense to the parties decides upon the validity of the 
 objection, taking the bill, so far as it is not contradicted 
 by the plea, as true. 
 
 NEGATIVE PLEAS. 
 
 But there are cases in which some allegation made 
 in the bill and which is absolutely essential to the com- 
 plainant's right to be heard, is denied by the defendant. 
 For instance A may file a bill against B, claiming to 
 do so as the heir to C, and B may deny that he is in 
 fact the heir to C. This is called a negative plea, and 
 always by its averments denies the truth of some alle- 
 gation in the bill which is vital to the complainant's 
 case. It was at first held that such a plea could not 
 be filed. Lord Thurlow so decided in 1787 in a cause 
 ■yvhere the complainant claimed to be the heir of a cer- 
 
166 EQUITY PLEADING AKD PRACTICE. 
 
 tain person and the defendant sought by plea to deny 
 that allegation in the bill. \ 
 
 Newman v. Wallace, 2 Bro. C. C. 143, 146; Gunn v. Prior, 
 2 Dick. 657. 
 
 The Chancellor himself, however, afterwards admit- 
 ted that he had arrived at a wrong conclusion, and 
 since then negative pleas have been allowed. 
 
 Hall V. Noyes, 3 Bro. C. C. 483, 489; Jones v. Davis, 16 
 Ves. 262. 
 
 ANAMOL.OUS PLEAS. 
 
 An ^anomalous plea is resorted to in those cases 
 where the bill admits the existence of a certain fact, 
 and then by distinct allegations seeks to avoid the 
 legal effect of such fact, by setting up fraud or mistake. 
 The anomalous plea avers the existence of the fact 
 admitted by the bill and then denies the allegations of 
 mistake or fraud contained in the bill through which 
 the plaintiff seeks to avoid the legal effect of such fact. 
 For example, suppose A and B had been copartners 
 and upon the dissolution of the copartnership had sub- 
 mitted the differences between them, growing out of 
 the partnership business, to arbitrators who had duly 
 made an award. A afterwards files a bill against B 
 praying for an account of the partnership business. 
 Now, if he said nothing -about the arbitration and 
 award in his bill, B could by an affirmative plea set 
 that up. But in such a case the bill probably would 
 not be silent on the subject of the arbitration, and 
 would allege that there had been an arbitration and a 
 pretended award, but that such award was null and 
 void because, for instance, there had been collusion 
 
EQUITY PLEADING AND PRACTICE. 167 
 
 between the arbitrators and B, and it would then set 
 forth several alleged facts and circumstances which, if 
 ture, would tend to estabHsh *he collusion and fraud. 
 In such a case B must resort to an anomalous plea, 
 averring the arbitration and award, denying collusion 
 and fraud by specifically denying each allegation of 
 fact in the bill tending to establish such collusion and 
 fraud. And this plea must be supported by an answer 
 making a full disclosure in regard to all the allega- 
 tions in the bill tending to show collusion and fraud. 
 The complainant is entitled to have the allegations of 
 fraud denied, because his right of action, as appears^ 
 from his bill, depends upon his showing collusion and 
 fraud. Otherwise, when he filed his replication to the 
 plea, he would put in issue, not the existence of the 
 facts showing fraud, upon which he depended solely 
 .for relief, but upon the facts appearing in the plea, that 
 is the existence of the award, about which there is no 
 dispute. But if the plea traverses the allegations of 
 fraud, then a replication to the plea puts those allega- 
 tions in issue. The defendant must traverse all the 
 allegations tending to negative the plea, in the plea 
 itself, and, as we have said, the plea must be accom- 
 panied by an answer in its support in which such alle- 
 gations shall be fully and explicitly answered. The 
 plea traverses the allegations in the bill tending to 
 negative the plea, in order that the truth of those alle- 
 gations may be put in issue. The plea must be sup- 
 ported by an answer as to those same allegations for 
 a very different but equally satisfactory reason. The 
 complainant is entitled to a full discovery from the de- 
 
168 EQUITY PLEADING AND PRACTICE. 
 
 fendant of all the facts within his knowledge or be- 
 lief whfch tend to establish the complainant's right to 
 relief or to discovery even. Therefore, when relief is 
 based upon the ground of fraud and the defendant is 
 asked to discover certain facts within his Icnowledge 
 tending to establish such fraud, he must answer and 
 make the discovery asked, to the end that the com- 
 plainant may have the advantage of the answer as evi- 
 dence upon the hearing of the plea to establish his case 
 by disproving the case made by the plea. 
 
 We have already called your attention to the rule 
 that if an answer covers any material part of the bill 
 demurred or pleaded to, the demurrer or plea will be 
 overruled. In the case we have supposed where the 
 bill is filed to set aside an award which, if good, would 
 be a complete bar to the complainant's cause of ac- 
 tion, and the defendant pleads the award, it would 
 seem at first glance that if the defendant answered the 
 averments in the bill showing that such award was 
 void, that the answer covered the same part of the bill 
 as the plea. This is not the case, however. The bill 
 in such a case is filed for the purpose of obtaining dis- 
 covery and relief. The plea is to relief and not to dis- 
 covery. The defendant relies upon the award as a 
 complete bar to all relief. That it is a complete bar 
 if valid, the bill in substance admits, for the complain- 
 ant asks to be relieved from its effects by having it 
 set aside. The defendant, therefore, by pleading the 
 award and denying the allegations of fraud puts in 
 issue the validity of the award. But the fact that there 
 is a valid award and that therefore the complainant is 
 
EQUITY PJjEADING AND PRACTICE. 169 
 
 not entitled to relief is not a denial that the complain- 
 ant is entitled to a full discovery from the defendant 
 of all the facts within his knowledge or belief, tending 
 to disprove the plea. The answer therefore which sup- 
 ports the plea does not cover any portion of the bill 
 covered by the plea, but is an answer which simply 
 supports the plea. 
 
 Sanders v. King, 6 Mad. 6i; Thring v. Edgar, 2 S. & S. 
 274-277; Hardman v. Ellames, 5 Sim. 640; Denys v. Lowck, 
 .3 Myl. and Co. 205. 
 
 The answer is said to support the plea, for the rea- 
 son that the court will intend all matters alleged in the 
 "bill, to which the complainant is entitled to require an 
 answer, to be against the pleader, unless they are fully 
 and clearly denied, and therefore, if in the case we 
 supposed, the defendant should plead the award and 
 not fully and clearly answer the allegations of fraud, 
 the court would assume that such allegations were 
 susceptible of proof, and on that ground would over- 
 rule the plea. If there is a proper answer in support of 
 the plea, such answer is no part of the defence, but 
 ■only what the complainant is entitled to have to enable 
 "him to avoid the defence made by the plea and estab- 
 lish the case made by the bill. The complainant is en- 
 titled to read the answer on the hearing of the plea. 
 
 Hildyard v. Cressy, 3 Atk. 303; Hony v. Hony, i S. S. 568, 
 580; Gordon v. Shaw, 14 Sim. 393; Roch v. Morgell, 2 Sch. 
 and Lef. 721. 
 
 When an answer under oath is waived, che plea need 
 
170 EQUITY PLEADING AND PRACTICE. 
 
 not be supported by an answer, since the complainant 
 is not entitled to discovery. 
 
 Cheatham v. Pearce, 89 Tenn. 668, 678; Daniels Ch. Pr. 
 (3 Am. Ed.) 640 n. 2. 
 
 Whenever notice or fraud is alleged in the bill the 
 plea must by positive averments negative the notice or 
 frauds averred, and such notice or fraud must also be 
 negatived by the answer which supports the plea. 
 
 Meadows v. The Duchess of Kingston, Amb. 756; Devie 
 V. Chester, I Cox 224; Hoare v. Parker, i Bro. C. C. 578; 
 Bicknell v. Gough, 3 Atk. 558. 
 
 The answer in support of the plea need not go so 
 far as to be an answer to the bill. The complainant 
 is entitled to an answer to all interrogations covering 
 the allegations denied by the plea, and no more. If 
 other interrogations are answered the answer will 
 overrule the plea. 
 
 Chadwick v. Broadwood, 3 Beav. 539; Grant v. Phoenix 
 L. Ins. Co., 121 U. S. IDS; Thring v. Edgar, 2 Sim. & Stu. 
 274; Dengs V. Locock, 3 Myl. and C. 23s, 237; Cheatham v. 
 Pearce, 89 Tenn. 668. 
 
 And when no answer to support the plea is required 
 any answer will overrule the plea. 
 
 DIFFERENT GROUNDS OF PLEA. 
 
 Pleas of relief are : 
 
 1. To the jurisdiction. 
 
 2. To the person of the complainant or defendant. 
 
 3. In bar of the suit. 
 
EQUITY PLEADING AND PRACTICE. 171 
 
 Pleas to the jurisdiction, do not deny the right of 
 the complainant in the subject of the suit or assert that 
 there is any disabihty on the part of either the com- 
 plainant or defendant, but asserts that a court of chan- 
 cery is not the proper court to take cognizance of the 
 cause. 
 
 Story Eq. PI. § 706. 
 
 2. 
 
 Pleas to the person, do not dispute the jurisdiction 
 of the court, or the interest of the complainant, but 
 assert that the complainant is incapacitated to sue, or 
 that the defendant is not the person who ought to be- 
 sued. 
 
 Story Eq. PI. § 706. 
 
 A plea in bar alleges some matter which displaces 
 the equity of the bill. 
 
 FORM OP PLEA. 
 
 A plea is entitled in the cause, and like a demurrer 
 is introduced by a protestation against ttie confession 
 of the truth of any matter contained in the bill. 
 
 The extent of the plea, that is whether it is intended 
 to cover the whole bill, and if not the whole, what por- 
 tion, should be distinctly shown. 
 
 Leacroft v. Durprey, 4 Paige 124; Summers v. Murray, 2 
 Edw. Ch. 205. 
 
 Then follows a clear and positive statement of the 
 matter relied upon as an objection to the suit accom- 
 
172 EQUITY PLEADING AND PRACTICE. 
 
 panied, when necessary, by such averments as are 
 necessary 'to its support. When the objection is to the 
 frame of the suit, it must point out the particular de- 
 fect and how it may be remedied. 
 
 Merrewether v. Mellish, 13 Ves. 43S, 438. 
 
 The general requisites of a plea have already been 
 •given. They are: , 
 
 1. It must be founded on matter not apparent on 
 'the face of the bill. 
 
 2. It must reduce the case to a single point. 
 
 3. It must be supported by proper averments. 
 After the plea has been drawn, it is to be signed by 
 
 counsel and sworn to by the defendant, that it is true 
 in point of fact. 
 
 Under the United States and Michigan practice no 
 plea can be filed unless it is accompanied by a cer- 
 tificate of counsel that it is, in his opinion, well founded 
 in point of law, and by the affidavit of the defendant 
 that it is not interposed merely for the purpose of 
 - causing delay in the progress of the suit. 
 
 U. S. Rule 31; Mich R. 8 a. 
 
 When the plea is filed the complainant must either 
 set the cause down for hearing on the plea, or file a 
 replication to the plea. If the plea is set down for 
 hearing the truth of all the averments in the plea well 
 pleaded is admitted, and the only question for the 
 court to pass upon is the sufficiency of the plea. 
 
 Kellner v. Ins. Co 43 Fed. Rep. 623; Foster v. Foster, 51 
 "Vt. 216; Newton v. Thayer, 17 Pick. 129. 
 
EQUITY PLEADING AND PEACTICE. 17S- 
 
 If a replication is filed to the plea, the complainant 
 thereby admits the sufficiency of the plea in law, and- 
 the only question in issue is the truth of the matter 
 pleaded. 
 
 Little V. Stephens, 82 Mich. 596; Beals v. R. R., 133 U. S. 
 290; Wilson V. Wilson, 5 Ir. Eq. 514. 
 
 It becomes very important, therefore, for the com- 
 plainant to determine in the first instance, whether Ihe 
 plea is good in law, because, if it should be bad in 
 law, but the matters pleaded true in fact, and he should 
 take issue upon the plea, by filing a replication the 
 plea would be sustained, notwithstanding it was bad 
 in form and the matters pleaded were no bar to com- 
 plainant's bill, because, by filing the replication, the- 
 complainant admits that the matter as pleaded is a bar 
 if true, and he denies merely the truth of the matters 
 pleaded. 
 
 Bogardus v. Trinity Church, 4 Paige 178; Harris v. Ingle- 
 dew, 3 P. Wms. 94, 9S. 
 
 If there is a plea to a part of the bill and an answer 
 to the remainder, or a demurrer to a part and an an- 
 swer to the remainder, the complainant must not ex- 
 cept to the answer before the sufficiency of the plea or 
 demurrer has been determined. Excepting to the an- 
 swer is an admission that the demurrer or plea is suf- 
 ficient. After the plea or demurrer has been over- 
 ruled then the complainant can except to the answer. 
 
 Milf. Eq. PI. 317; Kupers v. Reformed Dutch Ch. 6 Paige 
 
 A demurrer must be good as to the whole bill or 
 
174 EQUITY PLEADING AND PEACTICE. 
 
 SO much of it as is covered. It cannot be good in part 
 and bad in part. But if a plea is not good for the 
 whole of the part covered it may be good as to a por- 
 tion of it and be allowed to stand for the part which it 
 properly covers. 
 
 Dormer v. Fortescue, 2 Atk. 284; French v. Shotwell, 5 
 Johns. Ch. SSS; Kirkpatrick v. White, 4 Wash. C. C. 595; 
 Fitzmaurice v. Sadler, 12 Ir. Eq. 136. 
 
 "A plea can be allowed in part only with respect to 
 its extent — the quantity of the bill covered by it; and 
 if any part of the defence made by the plea is bad, the 
 whole amount must be overruled." 
 
 Noe V. Noe, 32 N. J. Eq., 469; Fitzmaurice v. Sadler, 12 
 Ir. Eq. 136. 151. 
 
 If the plea is set down for hearing and the court 
 holds that it is good in form and in law, the complain- 
 ant may then take issue upon it by filing a replication. 
 After a replication is filed proofs are taken as to the 
 truth of the plea and then a hearing is had upon that 
 issue. The sufficiency of the plea is no longer an issue, 
 the court is simply called upon to determine whether 
 or not the defendant has by his proofs maintained the 
 truth of his plea. 
 
 McEwen v. Broadhead, 3 Stockt. (N. J.) 129-131. 
 
 If the plea is allowed, it is thereby determined to be 
 a full bar to so much of the bill as it covers. 
 
 Story Eq. PI. § 697. 
 
 If the court should consider that although the plea 
 may be good and the facts pleaded true from the proofs 
 
EQUITY PLEADING AND PRACTICE. 175 
 
 then before the court but that there may be matter dis- 
 closed in evidence which would avoid it, in order that 
 the complainant may not be deprived of his rights, it 
 will direct that the benefit of the plea shall be reserved 
 to the defendant at the hearing. 
 
 Lord Redesdale, 245, Mich. R. 8. 
 
 The plea upon the argument may be ordered to 
 stand as an answer to so much of the bill as is covered. 
 And in such a case the answer is to be held sufHcient 
 unless the defendant is given leave to except to it. It 
 is only ordered to stand as an answer when it is in 
 some way defective so that the truth of it is doubtful. 
 
 Orcutt V. Ounes, 3 Paige 459; Beall v. Blake, 10 Ga., 458. 
 
176 EQUITY PLEADING AND PKACTICE. 
 
 LECTURE XIII. 
 
 OVERRULING PLEAS. 
 
 When a plea has been set down for argument and on 
 the argument the court is satisfied that the plea cannot 
 under any circumstances be made use of as a defence, 
 it will be overruled. And if it is a frivolous plea the 
 complainant may, if he desires, have an order to take 
 the bill as confessed. 
 
 Bowman v. Marshal, 9 Paige 78; Mich. R. 8 d. 
 
 If the plea is not frivolous, the effect of overruling 
 the plea is to impose upon the defendant the necessity 
 of making a new defence. This he may do, by a new 
 plea or by an answer. 
 
 Chadwick v. Broadwood, 3 Beav. 308, 316. 
 
 This rule giving the defendant a right to plead de 
 novo does not permit him to rest his second plea upon 
 the same ground as the first. And when a plea has 
 been overruled upon the merits, the same matter can- 
 not be set up in the answer as a defence without per- 
 mission of the court. 
 
 Townshend v. Townshend, 2 Paige 413; Piatt v. Oliver, i 
 McLean 295; Ringold v. Stone, 20 Ark. 526. 
 
 And if the defendant desires to plead de novo he 
 should obtain leave of the court; for a defendant may 
 not interpose more than one plea without special leave 
 of the court. 
 
 McEwan v. Sanderson, L. R. 16 Eq. 316. 
 
EQUITY PLEADING AND PRACTICE. 177 
 
 The eflfect of allowing or overruling a plea upon the 
 argument, and the effect of finding a plea true or false 
 upon the hearing, are widely different in their effects 
 upon the rights of both the complainant and defendant. 
 
 If the plea is allowed upon the argument, the effect 
 is to hold that the plea is good in law, assuming that 
 it is true in fact, and the complainant is still at liberty 
 to take issue upon the facts pleaded. 
 
 If the plea is overruled upon the argument, the de- 
 fendant may put in a new defence, as we have just seen. 
 
 On the other hand, the decision of the court upon 
 the hearing of the plea is decisive and final as to so 
 much of the bill as is covered by the plea. If the plea 
 is found true, the bill is dismissed, and if found false, 
 the complainant is entitled to a decree; lor the reason 
 that when issue is taken upon the plea, after argument 
 and allowance, its validity as a complete bar to the 
 complainant's suit has been found by the court, and 
 nothing further remains, except to ascertain whether 
 or not the facts upon which its validity depends are 
 true. If the truth is established, then the plea is found 
 to be both true in fact as well as good in law. 
 
 But if the complainant takes issue upon the plea by 
 filing a replication before the argument, and conse- 
 quently, before the court has passed upon its suffi- 
 ciency, by so doing he admits that the plea, if true in 
 fact, is a bar to his suit, and this admission is con- 
 clusive so far as the sufficiency of the plea is con- 
 cerned, it being precisely the same in effect as the al- 
 lowance of the plea by the court. After the replication 
 is filed, the only question in issue, as to so much of the 
 
178 EQUITY PLEADING AND PKACTICE. 
 
 bill as is covered by the plea is the truth of the plea. 
 The complainant! says by his pleadings in effect, if what 
 the defendant has alleged in his plea is true, I am not 
 entitled to any relief. While the defendant has, by his . 
 pleadings, admitted that all the allegations made in 
 the complainant's bill are true, except so far as they 
 are denied by the plea, and that his sole and only de- 
 fence to the complainant's suit are the matters which 
 he has pleaded, and if those matters are not estab- 
 lished, that he has no further or other defence, and that 
 the complainant is entitled to a decree. , 
 
 Story Eq. PI. § 697;- U. S. Rule 33; Hughes v. Blake, 6 
 Wheat. 453; Mich. R. 8 f. 
 
 It follows that where the complainant files a replica- 
 tion to a plea, which is true in fact, but insufficient in 
 law, that the bill must be dismissed upon the hearing, 
 because upon the hearing the court will not examine 
 into the sufficiency of the plea, because under the 
 pleadings it is admitted to be good in law. 
 
 Harris v. Ingledew, 3 P. Wms. 91, 94, 95; Bogardus v. 
 Trinity Church, 4 Paige 178. 
 
 On the other hand, if the defendant has a complete 
 defence to the complainant's suit, but rests his de- 
 fence upon a plea of some matter which he cannot 
 estabHsh, he loses all the benefit of his defence upon 
 the merits, and cannot prevent the complainant from 
 obtaining a decree. 
 
 Hughes V. Blake, 6 Wheat. 453; Mich R. 8 f. 
 
 If the complainant, on the face of the bill, is entitled 
 to a final decree, he may have such decree upon the 
 
EQUITY PLEADING AND PRACTICE. 179 
 
 plea being found false upon the hearing. If, how- 
 ever, he is not entitled to final and compUrce relief upon 
 the case made, he is entitled to an order that the bill 
 be taken as confessed, and for a reference to a master 
 to take proofs. He may also, if necessary, examine 
 the defendant upon interrogatories as to all matters 
 which, by an answer, the defendant should have dis- 
 covered. 
 
 Dows V. McMichael, 2 Paige 345; Borwnswood v. Ed- 
 wards, 2 Ves. Sen. 243, 247. 
 
 THH ANSWER. 
 
 From what has been said, you have learned that 
 little or no advantage, except delay, is gained by a de- 
 murrer or plea, unless the cause for demurrer or the 
 special defence made by the plea cannot be overcome 
 or met by an amendment to the bill. Whenever the 
 complainant can cure the defect pointed out by these 
 dilatory defences through an amendment, the attack 
 has had no other effect save that of strengthening and 
 fortifying the complainant's position. When, however, 
 the defect cannot be cured by amendment, those de- 
 fences should be resorted to, as they shorten litigation 
 and save expense. And in case of want of parties, or 
 a misjoinder of parties, or multifariousness, the benefit 
 of a defence on that ground is frequently lost when 
 not taken by demurrer or plea. (Turner v. Hart, 71 
 Mich. 128-138.) But since nearly every defence that 
 <:an be made by demurrer or plea can be taken ad- 
 vantage of equally well by an answer, they are usually 
 set up in the answer. This practice more largely pre- 
 vails at present than formerly, because since parties 
 
180 EQUITY PLEADING AND PRACTICE. 
 
 can be witnesses, avoiding discovery called for by the 
 bill is now of little consequence, while formerly it was 
 of the utmost importance. 
 
 The bill contains a statement of the complainant's 
 cause of action and also an examination of the de- 
 fendant as a witness in the cause; the answer must, 
 therefore, consist of two parts: 
 
 1. The defence. 
 
 2. The discovery. 
 
 In the answer the defendant must set forth fully and 
 clearly his defence to the complainant's cause of ac- 
 tion, and he must also answer the complainant's in- 
 terrogatories. 
 
 Wade V. Rulsifer, 54 Vt. 45; Hirt v. Daniels, 61 Vt. 89. 
 
 It is not necessary that the answer should be di- 
 vided into two separate and distinct parts, the one be- 
 ing devoted exclusively to setting forth the defendant's 
 defence and the other to answering the complainant's 
 interrogatories. The two may be interlaced, but the 
 pleadei', in drawing the answer, should keep its two- 
 fold character in mind, and it should be so drawn as 
 to set out clearly, distinctly and fully, all the separate 
 grounds of the defence, and it should at the same 
 time, answer fully and explicitly, all matters in regard 
 to which the complainant asks and is entitled to dis- 
 covery. 
 
 Youle V. Richards, Sexton (N. J.) 534; Warren v. Warren, 
 50 Vt. 530. 
 
 It is a general rule that the complainant cannot rely 
 upon any grounds for relief except those contained in 
 
EQUITY PLEADING AND PRACTICE. 181 
 
 the bill, and that the defendant cannot rely upon any- 
 ground of defence except that set up in his answer, 
 and that all testimony introduced for the purpose of 
 establishing some matter not claimed in the bill as 
 ground for relief or in the answer as ground of de- 
 fence, is immaterial and irrelevant and will not be con- 
 sidered by the court. 
 
 Mors V. Mors, 17 N. H. 481; Buckley v. Sutton, 38 Mich.- 
 I ; Harrington v. Brown, 56 Mich. 301. 
 
 The defendant may set up in his answer any number 
 of defences that are consistent with each other, or 
 rather that are not inconsistent. But the defendant 
 may not set up two or more grounds of defence which 
 are inconsistent with each other, and the error will not 
 be cured in such a case by stating the inconsistent 
 grounds of defence in the alternative. 
 
 Hopper V. Hopper, 11 Paige 46; Jesus College v. Gibbs, 
 1 Y. & C. Ex. 14s, 160. 
 
 Not the same degree of certainty is required in an 
 answer as in a bill. There must be such a degree of 
 certainty, however, as is sufficient to inform the com- 
 plainant of the nature of the defendant's case. 
 
 Cummings v. Coleman, 7 Rich. Eq. (S. C.) 509. 
 
 The same strictness is not requisite in an answer as 
 in a plea, where the statute of limitations is set up as a 
 defence. This defence, if relied upon, must, however, 
 be distinctly made, either by answer or plea, although 
 the defence that the claim is stale may be made without 
 
182 EQUITY PLEADING AND PKACTICE. 
 
 any averment to that effect having been made in the 
 answer. 
 
 Maury v. Mason, 8 Porter (Ala.) 211; Sullivan v. Portland, 
 94 U. S. 806. 
 
 When matters of defence are set up in the answer, 
 which might have been taken advantage of by de- 
 murrer or plea, and the defendant, as to those matters, 
 claims the same benefit in his answer as though he had 
 demurred or plead, it is only at the hearing of the 
 cause that any such benefit can be insisted upon. 
 
 Wray v. Hutchinson, 2 M. & K. 235; MuUoy v. Paul, 2 
 Tenn. Ch. 155; Hume v. Com'l Bk., i Lea, 229; Zabel v. 
 Harshman, 68 Mich., 273; Hirt v. Daniels, 61 Vt. 89. 
 
EQUITY PLEADING AND PEACTICE. 183 
 
 LECTURE XIV. 
 
 FOKM OP ANSWER. 
 
 The answer must be entitled in the cause and agree 
 with the bill as to the parties named therein. If a 
 mistake as to the name of a defendant has been 
 made in the bill, such mistake cannot be corrected in 
 the title, but if the defendant has been misnamed in 
 the bill, he may make the correction in the body of 
 his answer; thus for instance: "The answer of Robert 
 Sharp (in the bill by mistake called Roland Sharp,)" 
 etc. 
 
 Attorney-General v. Worcester, i Coop. T. Cott. i8. 
 
 If there is such a defect in the heading uf the answer, 
 that it does not appear distinctly whose answer it is, 
 or in what case it is filed, it will be taken off the file for 
 irregularity. 
 
 Pritus V. Thompson, G. Coop. 249; Griffiths v. Wood, 11 
 Ves. 62; Fry v. Mantell, 4 Beav. 485; Upton v. Sowton, 12 
 Sim. 40. 
 
 If, however, it is evident what bill is answered, it 
 will not be stricken from the files although certain pr-e- 
 scribed words have been omitted. 
 
 Bowes V. Farrar, L. R. 14 Eq. 71. 
 
 Two or more persons may join in the same answer, 
 and when they appear by the same solicitor, and have 
 the same defence, they ought to join, and the court 
 
184 EQUITY PLEADING AND PEACTICE. 
 
 will not, in case they should succeed in the suit, allow 
 them any more costs in case they file separate answers 
 than would have been allowed if they had filed a joint 
 answer. 
 
 Story Eq. PI. § 869; Woods v. Woods, S Hare 229, 230. 
 
 The answer should be divided into paragraphs num- 
 bered consecutively and each paragraph should con- 
 tain a full and distinct .statement of some allegation. 
 The present Michigan rules require the answer to 
 be divided into paragraphs. Documents not on file 
 in the case cannot be referred to and made a part of 
 the answer, but may be when so filed. 
 
 Wells V. Stratton, i Tenn. Ch. 328; Attorney-General v. 
 Edmunds, 15 W. R. 138; U. S. C. C. Rule 4; Mich. R, 10 c. 
 
 When two defendants answer jointly and one speaks 
 positively for himself, the other may say that he has 
 perused the' answer, believes it to be true and that he 
 makes it a part of his answer. This be may not do, 
 however, if they answer separately. 
 
 Binney's Case, 2 Bland. 99; Warfield v. Banks, 11 Gill & J. 
 98; Carr v. Weld, 3 C. E. Green (N. J.) 41. 
 
 The answer must be signed by the defendant or de- 
 fendants putting it in, unless leave has been obtained 
 to file an answer not signed, because originally the 
 answer was always under oath and was testimony in 
 the cause. 
 
 Dennison v. Bassford, 7 Paige 370; Cook v. Dews, 2 Tenn. 
 Ch. 496; Kimball v. Ward, Walk. Ch. 439; Supervisors etc., v. 
 Miss., etc., R. R. 21 111. 337. 
 
EQUITY PLEADING AND PRACTICE. 185 
 
 The Michigan practice permits the answer to be 
 signed by the defendant, or by his agent or solicitor. 
 Mich. R. 10 e. 
 
 The answer must also be signed by counsel. When 
 such counsel are a firm, the firm signature may he 
 used. 
 
 Bishop V. Willis, S Beav. 83 n; Hampton v. Coddington, 
 I Stew. Eq. 557; Henry v. Gregory, 29 Mich. 68; Eveland v. 
 Stephenson, 45 Mich. 394; Dwight v. Humphreys, 3 McLean,. 
 104; U. S. Ch. Rule 24. 
 
 The copy of the answer served on the complainant 
 is presumed to be a correct copy of the answer filed, 
 and if the signature of coimsel is omitted from the 
 copy served, tlie complainant may move to take the 
 answer off the files for irregularity. 
 
 Littlejohn v. Munn, 3 Paige 280. 
 
 The signing of the answer by tlie defendant may be 
 waived by the complainant, and if an unsigned answer 
 is put in and complainant files a replication, that step 
 on his part will be held to be such a waiver. 
 
 Fulton Bank v. Beach, 2 Paige 307; CoUard v. Smith, 2 
 Beasley (N. J.) 43, 45; Howes v. Downing, 72 Mich. 43. 
 
 The court, under special circumstances will permit 
 the defendant to file an answer not signed by him as 
 when he resides at a distance, or has gone abroad be- 
 fore an answer could be prepared or the like. 
 
 Dumond v. Magee, 2 Johns. Ch. 240; Harding v. Harding, 
 12 Ves. 159. 
 
 Unless answer under oath is expressly waived in the 
 
186 EQUITY PLEADING AND PRACTICE. 
 
 bill the answer must be sworn to before the proper 
 officer. Who is such proper officer depends upon the 
 provisions of the local statute and the rules of the 
 court. 
 
 Sitlington v. Brown, 7 Leigh (Va.) 271; Mich. R. 10 b. 
 
 The answers of a corporation is put in under the 
 corporate seal and not under oath. If it is put in not 
 under seal it will be taken from the files as irregular. 
 
 Ransom v. Stonington Sav. Bk., 2 Beasley (13 N. J. Eq.) 
 21; Mill Dam Foundry v. Hovey, 21 Pick. 417; Brumly v. 
 Westchester Mnfg. Co., i Johns. Ch. 365; Beecher v. Ander- 
 son, 45 Mich. 543. 
 
 But unless the answer of the corporation is sworn 
 to it cannot be made the basis of a motion to dissolve 
 a temporary injunction; since an injunction will not 
 be dissolved upon the filing of an answer not on oath 
 denying the equities of the bill. 
 
 Fulton Bk. vs. New York, etc., i Paige 311; Griffin v. 
 State Bk., 17 Ala. 258. 
 
 When the complainant desires to obtain from a cor- 
 poration the answer of some officer of the corporation 
 under oath, such officer must be named and made one 
 of the defendants in the bill. 
 
 Buford V. Rucker, 4 J. J. Marsh, 551; Vermilyca v. Fulton 
 Bk., 1 Paige 37; Beecher v. Anderson, 45 Mich. 543. 
 
 When the complainant waves an answer on oath, the 
 answer is treated as a mere pleading and is not evi- 
 
EQUITY PLEADING AND PRACTICE. 187" 
 
 dence for the defendant, but the palintifT may take ad- 
 vantage of any admission made in it. 
 
 Bartlett v. Gale, 4 Paige 504; Wilson v. Towle, 36 N. H. 
 129; Durfee v. McClurg, 6 Mich. 223; Union Bk., etc., v. 
 Geary, 5 Pet. 99, no, 112. 
 
 When the bill waives an answer under oath the de- 
 fendant cannot malfe his answer evidence by putting 
 it in under oath. Under such circumstances the sworn 
 answer will be considered as one not under oatb. 
 
 Hyer v. Little, 5 C. E. Green 443; Symes v. Strnog, i 
 Stew. Eq. 131. 
 
 As we have stated, an unsworn answer cannot be 
 made the foundation of a motion to dissolve an in- 
 junction; therefore, if an injunction bill waives an 
 answer under oath, the defendant may still put in an 
 answer under oath and so treat it, for the purpose of 
 moving to dissolve the injunction granted on the bilL 
 
 Doiigrey v. Topping, 4 Paige 94; Mahony v. Lazier, 16 
 Md. 69; Rainey v. Rainey, 35 Ala. 282. 
 
 When the answer is drawn, signed, and if necessary 
 sworn to, it must be filed and a copy served upon the 
 complainant within the time prescribed by the rules. 
 
 U. S. Rule 18. Mich. Rule 5. 
 
 It is a general rule that if the defendant consents ta 
 answer he must answer fully. But it is an open ques- 
 tion still, although it has been much discussed, whether 
 a defendant who answers a bill for an accounting, and 
 in his answer denies the complainant's right to such 
 accounting; for instance, if the bill calls for a copart- 
 
188 EQUITY PLEADING AND PRACTICE. 
 
 Tiership accounting and the answer denies the copart- 
 nership, he is still required to answer fully all the in- 
 terrogatories touching the account. 
 
 French v. Rainey, 2 Tenn. Chy. 640. 
 
 Chancellor Cooper, in French v. Rainey, supra, re- 
 views all the authorities upon this question up to the 
 ■date of his opinion. 
 
 It would seem that in such a case much is left to 
 the discretion of the court. Discovery will not be re- 
 quired when it would be merely vexatious. 
 
 Lockett V. Lockett, L. R. 4 Ch. 336; Benbow & Low. 
 L. R. 16 Ch. D. 93; Story Eq. PI. (10 ed.) sec. 856 n. 2 t. 
 
 If an answer on oath has been waived in the bill 
 the complainant cannot except to the answer filed as 
 not having fully answered the allegations contained in 
 the bill. In such a case the answer is a mere pleading, 
 but he may still except to the answer for impertinence 
 or scandal, if it is padded with irrelative matter, or 
 tainted with unnecessary comments affecting the moral 
 cha;-acter of any one. If an answer on oath has not 
 "been waived, and it does not contain a full disclosure 
 ■of all the matters in regard to which the defendant 
 has been interrogated, it may be excepted to for in- 
 sufficiency. The steps necessary for the complainant 
 to take in excepting to the answer either for insuffi- 
 ■ciency, impertinence or scandal, are prescribed by the 
 rules. 
 
 U. S. Rules 26, 27; Brooks v. Byam, i Story 296; Staf- 
 ford V. Brown, 4 Paige 88. 
 
ISQUITY PI^EaDING AND PRACTICE. 18,9' 
 
 The exceptions are entitled in the cause and they 
 must point out positively and distinctly the matters in 
 the answer which are objected to as impertinent or 
 scandalous, or those parts of the bill which have not 
 been fully answered. They pray that the scandalous 
 and impertinent matter may be expunged, or that the 
 defendant may put in a full answer. They are signed 
 by counsel, filed, and a copy served upon the opposing 
 solicitor. The defendant may submit to make a further 
 answer to have the matter, objected to as impertinent 
 or scandalous, expunged, if he does not, the answer 
 is referred to the proper officer to examine and report 
 whether the exceptions are well taken. 
 
 Brooks V. Byam, i Story 296; Stafford v. Brown, 4 Paige 
 88; Evans v; Owen, 2 M. & K. 382; Craven v. Wright, 2 Peere 
 Wms. 182. 
 
 Under the [Michigan practice you may not except to^ 
 an answer for insufficiency. 
 
 McCreery v. Circuit Judge, 93 Mich. 463. 
 
 The defendant may claim in his answer the benefit 
 of a general demurrer for want of equity. Courts are 
 not, however, disposed to favor such mixed and un- 
 satisfactory pleading, and they hold that in such a case 
 the defendant may upon filing a replication take proofs 
 and have the case heard upon the merits. , 
 
 Lamb v. Jeffrey, 41 Mich. 719; Hewlett v. Shaw, 9 Mich. 
 
 346- 
 
 AMENDING ANSWERS. 
 
 When an answer has been put in upon oath, the 
 court will not permit it to be amended in matters of 
 substance, except under very exceptional and special 
 circumstances. Where the proposed amendment is tec 
 
190 EQUITY PI-EADING AND PEACTIUJE. 
 
 the form of the answer merely, or to correct some mis- 
 take of date, or a verbal inaccuracy, the court will not 
 hesitate to grant leave to amend. 
 
 Campion v. Kille, I McCarter (N. J.) 229, 232; McKim. 
 V. Thompson, i Bland 162; Bowen v. Cross, 4 Johns. Ch. 
 375; Dearth v. Hide and Leather Natl. Bk, loo Mass. 540; 
 Webster Loom Co. v. Higgins, 13 Blatchf. 349; Gainsbor- 
 ough V. Gififord, 2 P. Wms. 424. 
 
 The court will also allow the defendant to amend bis 
 answer, where new matter has been discovered since 
 the answer was put in. 
 
 Tillinghast v. Champlin, 4 R. I. 128. 
 
 Or to correct a mistake, when owing to such a mis- 
 take, an admission has been made to the prejudice of 
 the defendant. 
 
 Hughes V. Bloomer, 9 Paige 269. 
 
 The court will not, however, permit amendments of 
 this nature to be made merely on the ground that the 
 defendant, when he made the admissions, was labor- 
 ing under a mistake of law, and when no mistake of 
 fact has been made. 
 
 Rowlins V. Powell, i P. Wms. 298; Pearce v. Grove, 
 Amb. 65; Pearce v. Grove, 3 Atk. 522; Mich. Rules 16 and 17. 
 
EQUITY PLEADING AND PBACTICE. 191 
 
 LECTURE XV. 
 
 SUPPLEMENTAL ANSWERS. 
 
 It is the usual practice, at the present time, to file a 
 supplemental answer instead of amending the original 
 answer. Application must be made to the court for 
 leave to file such supplemental answer, and the same 
 rules govern such applications as those for leave to 
 amend. 
 
 Raincock v. Young, i6 Sim. 122; Arnand v. Grigg, 2 
 Stew. Eq. i; Smith v. Smith, 4 Paige 92. 
 
 In making an application to file a supplemental an- 
 swer, the defendant must show that justice requires 
 that he should be permitted to make the correction in 
 his answer or the additional defence. And the motion 
 for leave to file the supplemental answer must be ac- 
 companied by an affidavit setting forth the facts upon 
 which the motion is founded. 
 
 Thomas v. Doub, i Md. 252; McKim v. Thompson, i 
 Bland 150; Wells v. Wood, 10 Ves. 401. 
 
 When a defendant has obtained leave to file a sup- 
 plemental answer, he must confine such answer strictly 
 to the matters set forth in his application and which 
 he has received the leave of the court to embody in 
 such answer. If he goes beyond that, his supplemental 
 answer will be taken ofif the files. 
 
 Strange v. Collins, 2 V. & B. 163, 167. 
 
192 EQUITY PLEADING AND PEACTICE. 
 
 There is no particular time within which the defend- 
 ant must make an application to file a supplemental 
 answer, provided he make it as soon as the error or 
 omission in his answer, or the newly discovered evi- 
 dence has come to his knowledge. He must not be 
 guilty of inexcusable laches, and furthermore it must 
 be possible to place the complainant in the same posi- 
 tion that he would have been in had the correction or 
 new matter been stated in the original answer. 
 
 Martin v. Anderson, 5 Ga. 390; Wilson v. Wintermute, 
 12 C. E. Green (N. J.) 63; Ruggles v. Eddy, 11 Blatch. 524^ 
 Fulton V. Gilman, 8 Beav. 154, 158; Furnam v. Edwards, 
 3 Tenn. Ch. 365; Smallwood v. Lewin, 2 Beasley (N. J.) 
 123. 
 
 TAKING ANSWERS OFF THE FILE. 
 
 As we have seen, an answer may be taken ofif the 
 file if any irregularity has occurred in its frame or 
 form. But the plaintiff must apply to have the answer 
 taken off the file before he excepts to it, otherwise he 
 will have waived the irregularity. It is a general rule 
 in pleading that a positive step on the bases of some 
 prior pleading is a waiver of any irregularity in such 
 pleading. 
 
 Steele v. Plomer, 2 Phil. 780; Fulton Bank v. Beach, 2 
 Paige 307; S. C., 6 Wend. 36; Seifried v. People's Bank, i 
 Baxt. 200. 
 
 Not only may an answer be taken off the files for an 
 irregularity in its form, but if on its face it is evidently 
 evasive the complainant may, before he excepts to it 
 for insufficiency move to have it taken off the files. 
 
 Glassingtoh v. Thwaites, 2 Russ. 458, 462; Seaton v. 
 Grant, L. R. 2 Ch. App. 459. 
 
EQUITY PLEADING AND PRACTICE. 193 
 
 The court will also, sometimes, in case the pleadings, 
 afifidavits or other documents contain matter which on 
 account of its character it is desirable should not re- 
 main of record, although not scandalous because per- 
 tinent, permit them to be taken off the file upon the 
 consent of all the parties to the suit. 
 
 Clifton V. Bental, 9 Beav. 105; Walton v. Broadbent, 3 
 Hare 334; Seaton v. Grant, L. R. 2 Ch. App. 459. 
 
 JOINDER OF SEVERAL DEFENCES. 
 
 All or any two of the several modes of defence may 
 be joined. A defendant may demur to part of the bill, 
 plead to another part, answer to a third part and dis- 
 claim as to a fourth part. Each separate defence, how- 
 ever, must relate to a separate and distinct part of the 
 bill. 
 
 Clark V. Phelps, 6 Johns. Ch. 214; Livingstone v. Story, 
 9 Pet. 632. 
 
 A defendant, as we have seen, cannot plead to that 
 part of the bill to which he has demurred, nor answer 
 any part to which he has demurred or plead, nor by 
 answer claim what by disclaimer he has declared he 
 has no right to; because a plea, or answer, will over- 
 rule a demurrer, and an answer a plea, the one defence 
 being inconsistent with the other and the court pre- 
 ferring that which rests nearest upon the merits. 
 
 Bolton V. Gardner, 3 Paige 273; Spofford v. Manning, 6. 
 Paige 383. 
 
 When a demurer is to a part of the bill, and there is 
 an answer or other defence to the remainder of the 
 bill, it should be entitled : "The demurrer of A B, the 
 
194 EQUITY PLEADING AND PRACTICE. 
 
 above named defendant, to a part of the bill of com- 
 plaint of the above named complainant, and the answer 
 of said A B to the remainder of said bill." When 
 there is a plea to a part of the bill accompanied by an_ 
 answer to the remainder, the plea and answer should 
 be entitled as above, except that plea is inserted in 
 place of demurrer. 
 
 Tomlinton v. Swinnerton, i Keen. 9, 13. 
 
 When the answer, however, is in support of the plea, 
 the title is "Plea and answer." 
 
 These captions are not mere matters of form. If 
 the answer by its commencement is apparently an an- 
 swer to the whole bill, it will overrule a plea or de- 
 murrer to a part of the bill, although it does not an- 
 swer that part covered by the demurrer or plea. 
 
 - Leaycraft v. Dempsey, 4 Paige 124; Summers v. Murry, 
 2 Edw. Ch. 205. 
 
 If the answer contains a full and complete disclosure 
 and there is no impertinent or scandalous matter in it 
 to which the complainant desires to except, he must 
 determine whether he will go to a hearing upon the 
 bill and answer. If, assuming that all the material 
 averments of fact contained in the answer are true, the 
 case made by the bill has been admitted, he may notice 
 the cause for hearing. In this case no allegation made 
 in the bill, although put in under oath, will be con- 
 sidered as evidence in the cause, and all the material 
 averments contained in the answer, although not put 
 in under oath, are held to be true. In short, the com- 
 plainant must rely wholly upon those allegations in 
 
EQUITY PLEADING AND PRACTICE. 195 
 
 the bill which the defendant by his answer has ad- 
 mitted, and those admissions are to be taken with all 
 the reservations and explanations contained in the 
 answer. The allegations in the bill, admitted by the 
 answer, must be sufficient, after being emasculated by 
 the explanatory matter contained in the answer, to en- 
 title the complainant to the relief prayed for, or he will 
 fail in his suit. The case must be clear and strong, 
 therefore, which will justify the complainant in going 
 to a hearing on the bill and answer. 
 
 Contee v. Dawson, 2 Bland 264; Childs v. Horr, i Cole 
 (la.) 432; Rogers v. Mitchell, 41 N. H. 154; Pierce v. West, 
 I Peters C. C. 351; Cummings v. Corey, 58 Mich. 494; Wei- 
 gart V. Frank, 56 Mich. 200; Durfee v. McClurg, 6 Mich. 223. 
 
 If the answer contains any matter, not responsive to 
 some interrogatory in the bill, but stated by way of 
 defence, and no replication is filed, the truth of such 
 new matter, if material and relevant, is admitted. 
 
 Mazet V. Pittsburg, 137 Pa. St. 548; American, etc., Co. v. 
 Chipman, 146 Mass. 385; Davenport, i Auditor Genl., 70 
 Mich. 192. 
 
 There is an exception to the rule that the com- 
 plainant can go to a hearing on the' bill and answer 
 when the admissions contained in the answer are suffi- 
 ciently full and explicit. No decree can be taken on a 
 bill confessed against an infant defendant, or on an 
 answer of a guardian ad litem admitting the allegations 
 contained in the bill, but the complainant must in 
 either case sustain his bill by evidence. 
 
 Thayer v. Lane, Walk. Ch. 200; Chandler v. McKinney, 
 6 Mich. 216; Smith v. Smith, 13 Mich. 258. 
 
196 EQUITY PLEADING AND PRACTICE 
 
 Upon the hearing of a cause upon bill and answer 
 no proof is introduced by either party, but if the an- 
 swer refers to matter of record proved by the record 
 itself, or to exhibits, the record and exhibits are re- 
 garded as a part of the answer and may be read in evi- 
 dence. 
 
 Rowland v. Sturgis, 2 Hare 5.^0; Chalk v. Haine, 7 
 Hare 393; Legard v. Sheffield, 2 Atk. 377. 
 
 REPLICATION. 
 
 If the complainant cannot go to a hearing upon the 
 bill and answer he must join issue by filing a replica- 
 tion to the answer. According to the early system of 
 equity pleading, if the defendant set up in his answer 
 some new matter, the complainant had a perfect de- 
 fence, he set this up in a replication, and if he wanted 
 a discovery from the defendant in reference to such 
 new matter, he was required to set forth the evidence 
 to which he desired the defendant's oath. Under the 
 modern system of pleading, this purpose is accom- 
 plished by the complainant amending his bill and in- 
 serting such new matter, and requiring the defendant, 
 if necessary, to file an amended answer. 
 
 Upon the replication being filed, the cause is at 
 issue, and the next step is for the complainant and de- 
 fendant to take such proof as is necessary to sustain 
 the contention on the part of each. 
 
 Mich., R. 12. 
 
 But before any proofs are taken it is important that 
 each party should determine how much of his case 
 
EQUITY PLEADING AND PRACTICE. 197 
 
 has been established by the pleadings; what facts have 
 been admitted, and what have been denied. 
 Admissions are either 
 
 I. Upon the record, or, 
 II. By agreement between the parties. 
 
 I. ADllISSION UPON THE RECORD. 
 
 These may be, 
 
 1. Constructive; such statements of fact as the par- 
 ties are conclusively presumed to have admitted under 
 the forms of pleading, and, 
 
 2. Actual; such statements of fact as are actually 
 set out in the pleadings. 
 
 We have seen that if the defendant puts in a plea to 
 the bill, he thereby admits the truth of all the matters 
 well pleaded by the complainant and not traversed by 
 the plea. In such a case the facts set forth in the bill 
 are constructively admitted to be true, and the com- 
 plainant is not required, upon filing a replication to the 
 plea, to introduce any proof to sustain his bill, except 
 as to those matters specifically denied by the plea. 
 
 When the bill charges a fact to be within the knowl- 
 edge of the defendant, or which from the whole con- 
 text of the bill can be fairly presumed to be within 
 his knowledge, and the answer is silent as to that fact, 
 it will be taken as admitted. 
 
 McAllister v. Clopten, 51 Miss. 257. 
 
 But when the fact is not charged as within the 
 
 knowledge of the defendant and can not be presumed 
 
 to be so, it is not admitted by the silence uf the answer. 
 
 Hardy v. Heard, 15 Ark. 184; Moore v. Lockett, 2 Bibb. 
 67, 69; Neal V. Hagthorp, 3 Bland 551. 
 
198 EQUITY PLEADING AND PRACTICE. 
 
 Any material matter, as a general rule, charged in 
 the bill, and neither admitted nor denied, must be 
 proved by the complainant. 
 
 Brown v. Pierce, 7 Wall. 205, 211; Smith v. St. Louis M. 
 L. Co., 2 Tenn. Ch. 599, 602; Hardwick v. Bassett, 25 Mich. 
 149. 
 
 If answer upon oath .has been waived, all admissions 
 made by the defendant in his answer may be read in. 
 evidence against him, without making the denials con- 
 tained in the answer evidence in his favoi. 
 
 Smith V. Potter, 3 Wis. 432. 
 
 The facts positively alleged in the bill may be read 
 in evidence by the defendant as admissions made by 
 the complainant. The complainailt as a matter of 
 course cannot read his own bill as evidence in his 
 favor, unless the defendant has, by his answer, ad- 
 mitted, directly or by implication, the truth of cer- 
 tain parts of the bill, in which case the complainant- 
 may read such portions of his bill as the admissions of 
 the defendant. 
 
 McGowan v. Young, 2 Stewart 276. 
 
 Although by his replication the complainant denies 
 the truth of the whole of the defendant's answer, he is 
 not precluded from using any part of it as evidence 
 in his favor, unless it be the answer of an infant. 
 When the complainant reads a part of the defendant's 
 answer as an admission in his favor, he must read all 
 of the answer bearing on that subject and any other 
 writings referred to; he must take the admission with 
 
EQUITY Pl.EADING AND PRACTICE. 199 
 
 all the limitations and explanations with which it is ac- 
 companied. / 
 
 Bartlett v. Gillard, 3 Russ. 149; Beech v. Haynes, i Tenn. 
 Ch. 569. 571; Lady Ormond v. Hutchinson, 13 Ves. 47, 53. 
 
 It is not necessary that the defendant should in 
 his answer make a positive admission in order to have 
 it read in evidence against him, it will be sufficient 
 if he alleges, that he believes, or is informed and be- 
 lieves it to be true; unless it is accompanied by some 
 statement which prevents its being considered as an 
 admission. 
 
 Potter V. Potter, i Ves. Sen. 274; Hills v. McKinney, 3 
 Stew. Eq. 465; Jackson v. Oglander, 2 H. & M. 465. 
 
 When answer under oath has not been waived so 
 much of the answer as is responsive to the discovery 
 sought by the bill may be read in evidence by the 
 defendant. And where the allegations in the bill 
 have been positively denied in the answer the com- 
 plainant will not be entitled to a decree, based upon 
 such allegations, unless they are supported by two 
 witnesses, or by one witness with corroborating cir- 
 cumstances or documentary evidence alone. 
 
 Hart V. Ten Eyck, 2 Johns. Ch. 62, 92; Panton v. Tefft, 
 22 111. 367; Gould V. Gould, 3 Story 516, 540. 
 
 Under the present Michigan rules, it will be remem- 
 bered, an answer under oath never has the force of 
 evidence except as to admissions. 
 
 Mich. R. 10 a. 
 
200 EQUITY PLEADING AND PRACTICE. 
 
 The right of the defendant to have his answer taken 
 in evidence is co-extensive with his obHgation to 
 answer. 
 
 Blaisdell v. Bowers, 40 Vt. 126. 
 
 And the complainant is not permitted to impeach 
 the character of the defendant for truth and veracity. 
 He has made him his witness. 
 
 Vandergrift v. Herbert, 3 C. E. Green, 466, 469; Cham- 
 bers V. Warren, 13 III. 318, 321. 
 
 When the answer is responsive to the bill it is evi- 
 dence in the case and is conclusive upon the defendant 
 and also upon the plaintiff unless he overcomes it with 
 the counter evidence of two witnesses or testimony 
 equivalent to that of two witnesses. 
 
 Comstock V. Herron, 45 Fed. Rep. 660; Bell v. Farmers* 
 Natl. Bk., 131 Pt. St. 318; Seitz v. Mitchell, 94 U. S. 580. 
 
 The answer under oath is not evidenc*^ which must 
 be overcome by two witnesses in the following cases: 
 
 I. When it contains allegations, not responsive to 
 anything in the bill upon which the defendant has been 
 interrogated, but in opposition to, or in avoidance of 
 the plaintiff's case, such allegations are not evidence, 
 they are matters of defence and must be established 
 by the defendant. If material, the plaintiff may con- 
 sider them as admissions made by the defendant. 
 
 Seitz V. Mitchell, 94 U. S. 580; Roberts \. Seligman, 78 
 111. 120; Hart V. Cartenter, 38 Mich. 402. 
 
 It is not always easy to determine whether a par- 
 ticular allegation in the defendant's answer is new 
 
EQUITY PLEADING AND PRACTICE. 201 
 
 matter, or is matter responsive to the bill. It has been 
 said, that if the particular allegation can be omitted 
 from the answer, and the complainant's mterrogations 
 will still be fully answered, it is new matter, but if, 
 when stricken out, the answer could be excepted to 
 for insufficiency, that it is responsive. 
 
 Bellows V. Stone, i8 N. H. 463. 
 
 2. When the matters contained in the answer do 
 not contradict the allegations of the bill and make 
 them improbable, or if the matters contained in the 
 answer are absurd and contradictory — in neither case 
 are they evidence. 
 
 Stevens v. Post, 12 N. J. Eq. 408; Adams v. Adams, 21 
 Wall. 185. 
 
 3. If the answer is not positive and direct in its 
 denials or explanations it is not evidence. 
 
 Morse v. Hill, 136 Mass. 60; Lyon v. Hunt, 11 Ala. 295. 
 
 4. When the matter is stated to be upon informa- 
 tion and behef, it is not evidence. 
 
 Pierson v. Ryson, 5 N. J. Eq. 196; Town v. Needham, 3 
 Paige S4S- 
 
 5. If the matter is stated positively, and from the 
 situation of the parties and the circumstances it is ap- 
 parent that the facts are not within the personal knowl- 
 edge of the -defendant it has no greater weight than 
 it would have, if stated to be upon information and 
 belief. 
 
 Lawrence v. Lawrence, 21 N. J. Eq. 317; Fryrear v. Law- 
 rence, S Gillman 325. 
 
202 EQUITY PLEADING AND PRACTICE. 
 
 6. If the answer is discredited in part it has the same 
 effect as when the testimony of a witness is shown to be 
 false in part. 
 
 Forsyth v. Clark, 3 Wend. 637; Young v. Hopkins, 6 T. B. 
 Mon. 18. 
 
 And while the complainant may not impeach the 
 defendant because he is his own witness, he may show 
 that he has made admissions which are inconsistent 
 with his answer. 
 
 Brown v. Bulkley, 14 N. J. Eq. 294; Petty v. Taylor, 5 
 Dana 598; Millett v. Robins, 12 Wis. 319. 
 
 7. When matters are presumably within the knowl- 
 edge of the defendant, and are in the bill charged to 
 be within his knowledge, and the answer professes 
 ignorance, the allegations of the bill as a rule are held 
 to be admitted. 
 
 Mead v. Day, 54 Miss. 58; Barlow v. Quarrier, 16 W. Va. 
 io8. 
 
 If, however, a mere allegation in the bill is neither 
 admitted or denied in the answer, it must be proved by 
 the complainant. 
 
 Glos V. Randolph, 133 111. 197. 
 
 8. A denial of a legal conclusion is not as a matter 
 of course evidence of the law. 
 
 Gainer v. Russ, 20 Fla. 157. 
 
 It is said that the answer must be overcome by tes- 
 timony equivalent to two witnesses. This does not 
 mean that the defendant's testimony has the same 
 
EQUITY PLEADING AND PKACTICE. 203' 
 
 weight as that of two witnesses. The complainant 
 must estabHsh the essential allegations made in his 
 bill. The burden of proof is upon him. If he calls 
 for an answer under oath and thus makes the defendant 
 his own witness and his testimony is adverse he must 
 now neutralize such testimony and then establish his 
 bill by additional evidence. It requires one witness 
 to put the complainant in the position he occupied 
 before the defendant answered and another to prove 
 the truth of his bill. 
 
 Morrison v. Stuart, 24 111. 24; Veile v. Biodgett, 49 Vt. 
 270; Vigel V. Hopp, 104 U. S. 441. 
 
204 EQUITY PLEADING AND PRACTICE. 
 
 LECTURE XVI. 
 
 II. ADMISSIONS BY AGREEMENT. 
 
 These are admissions made by the parties to pre- 
 vent delay and save expense. It is the practice in 
 this state, and undoubtedly in other states also, to put 
 such admissions in the form of a written stipulation. 
 Such stipulation is entitled in the cause, and usually 
 proceeds as follows: 
 
 TITLE. 
 
 In this cause it is hereby stipulated by and between 
 said parties; 
 
 1st. That, &c. 
 
 2d. That, &c. 
 
 Finally, that the facts hereby and herein set forth 
 shall be considered by the court upon the hearing of 
 said cause as admissions made therein by said parties, 
 and may be read as evidence upon the hearing of said 
 cause. 
 
 The stipulation is signed by the solicitors for ;om- 
 plainant and defendant and is filed with the other proof. 
 
 TAKING TESTIMONY. 
 
 Formerly all testimony in chancery was taken upon 
 interrogatories before an examiner, and neither party 
 to the suit was permitted to be present in person or 
 by counsel. Nor was either party entitled to a copy 
 -of the interrogatories prepared by the other for bis 
 ■witnesses. As we have seen, the bill did not set forth 
 
EQUITY PLEADING AND PRACTICE. 205 
 
 the evidence tending to establish the case made by the 
 bill, but merely the facts which such evidence would 
 tend to establish when introduced. Each party drew 
 up the interrogatories for his own witnesses and the 
 witnesses were secretly examined by the examiner and 
 no part of the testimony was divulged to either side. 
 Each party was, however, entitled to be furnished with 
 a list of his opponent's witnesses, that he might exam- 
 ine them upon cross interrogatories if he desfred, but 
 since he neither knew what the direct interrogatories 
 were, nor how they had been answered, such cross- 
 examination was not only unsatisfactory, but quite like- 
 ly to do his cause more harm than good. Full direc- 
 tions were given as to how the examiners were to pro- 
 ceed. The witness was not permitted to see the inter- 
 rogatories he was to answer; each one was read over 
 to him and he was required to answer it in full before 
 the next was read. After the testimony was taken it 
 was filed in court and then pubHshed, i. e., opened for 
 inspection, and each side was furnished with copies, 
 and thus after the cause was ready for hearing, the 
 counsel for the first time learned what evidence had 
 been introduced. 
 
 Daniel Ch. Pr. Chap. XX. 
 
 This system was cumbrous, unsatisfactory, often 
 unfair and fell into merited disrepute. The rules for 
 taking proofs were from time to time modified, until 
 at the present time testimony is taken with the same 
 publicity and with little more formality than proofs 
 are taken in a law court. In this state, under the 
 
206 EQUITY PLEADING AND PRACTICE. 
 
 statute, either party, by giving the other notice within 
 ten days after a cause is at issue, may have all the 
 witnesses examined in open court. 
 
 H. S. § 6647. 
 
 The Supreme Court is empowered by the statute to 
 regulate the taking of testimony in chancery, and in 
 pursuance of such power, it has adopted certain rules 
 which provide how, when a cause is at issue, if neither 
 party has obtained the right of examination of wit- 
 nesses in open court, the testimony shall be taken. 
 
 Mich. Rule 14; Brown v. Brown, 22 Mich. 242. 
 
 Parties may stipulate to take proofs before a notary 
 republic, and this is frequently done when there is 
 a notary who is a stenographer and the Circuit Court 
 Commissioner is not. But in the absence of a stipu- 
 lation the proofs are taken before a Circuit Court Com- 
 missioner. At the time and place designated the party 
 appears with his witnesses and proceeds to examine 
 them orally. If the opposite party is present and does 
 not object, the testimony may be taken in a narrative 
 form omitting the questions asked, but if objection is 
 made to that course, the Circuit Court Commissioner 
 writes down each interrogatory at length, followed by 
 the answer as given by the witness. Shoald the oppo- 
 site attorney object to any question for any reason, for 
 instance, that it is leading or irrelevant, etc., the com- 
 missioner writes down the objection, but does not pass 
 upon it. After he has taken down the objection he 
 writes out the answer of the witness in the language of 
 the witness. If objection is made, the court regards ~~ 
 
EQUITY PLEADING AND PKAUTICE. 207 
 
 such testimony as taken subject to the objection, which 
 is considered and ruled upon at the hearing. Al- 
 though the commissioner cannot pass upon objections 
 made to testimony, it would seem that he may exercise 
 some discretion in the first instance in regard to taking 
 down scandalous matter, or testimony that the witness 
 is privileged from giving. 
 
 Storrs V. Scougale, 48 Mich. 388; Rea v. Rea, 53 Mich. 40. 
 
 In nearly every instance, however, it is the better 
 practice for the commissioner to take down all the tes- 
 timony offered, together with the objections made to 
 it, and leave the admissibility of the testimony to the 
 Circuit and Supreme Court. The Supreme Court 
 have held that it is not the proper practice, for the 
 circuit court even, to expunge testimony that in its 
 judgement is inadmissible, but to allow it to stand, so 
 that in case of an appeal to the Supreme Court, that 
 court may be in a position to consider and pass upon 
 its admissibility. The Supreme Court, sitting in chan- 
 cery, is not a court of errors, but an appellate court, 
 and it hears the cause de novo, and must therefor pass 
 upon all questions of the admissibility of testimony 
 which were before the lower court. 
 
 Bilz V. Bilz, 37 Mich. 116; Brown v. Brown, 22 Mich. 
 242; Collins V. Jackson, 53 Mich. 40; Hewlet v. Shaw, 9 
 Mich. 346. 
 
 If any documents are introduced in evidence before 
 the commissioner, he receives them and marks them 
 as exhibits, numbering them consecutively. When 
 the time has expired for taking proofs, the commis- 
 
208 EQUITY PLEADING AND PEACTICE. 
 
 sioner files the testimony taken by him in the cause, 
 and it is pubHshed. 
 
 Mich. R. 14. 
 
 The statute provides that the counsel of the respec- 
 tive parties may be present at such examination, and 
 that witnesses may be examined and cross-examined 
 orally, and that the testimony so taken shall be rediiced 
 to writing and subscribed by the witnesses, and filed 
 in the court where the cause is pending. 
 
 H. S. §§6639-6646. 
 
 When a deed or other instrument in writing which 
 is duly acknowledged or proved, in such manner as 
 to authorize it to be read in evidence, is stated in the 
 bill, such deed or instrument may be read upon the 
 hearing of the cause, unless the defendant has in his 
 answer denied the due examination of the deed, or the 
 existence of the instrument; but documents which are 
 not of themselves evidence, without further proof, shall 
 not be read on the hearing unless they have been made 
 exhibits before the commission. 
 
 Mich. Rule 56; Bachelor v. Nelson, Walk. Ch. 449; 
 Jerome v. Seymour, Har. Ch. 255; Swetland v. Swetland, 3 
 Mich. 482. 
 
 The method of taking testimony in the United States 
 Court is regulated by Rules 6^, 68 and 69, which pro- 
 vide that the testimony of witnesses may be taken 
 upon direct and cross interrogatories, or orally, before 
 an examiner. When it is taken orally, the court may, 
 on motion of either party, assign a time within which 
 
EQUITY PLEADING AND, PRACTICE. 209 
 
 the complainant shall take his evidence, and the time 
 thereafter within which the defendant shall take his. 
 The rules prescribe that the testimony in a cause shall 
 be taken within three months after the cause is at issue, 
 unless further time is given by the court, or judge, 
 upon cause shown. 
 
 When a witness is infirm or about to depart out of 
 the country, or is the sole witness to a material fact, 
 his testimony may be taken at any time offer the bill 
 is filed de bene esse, upon leave granted. 
 
 U. S. Rule 70. 
 
 HEARING OF THE CAUSE. 
 
 When the proofs are closed and the cause is ready 
 for hearing, it may be noticed for hearing by either 
 party, and causes are entitled to be heard in this state 
 in the order in which the replication to the answer 
 was filed. 
 
 Mich. Rule 14. 
 
 Upon the hearing the complainant has the opening 
 and closing. As a rule, the judge, before the hearing 
 on the merits commences, has the counsel for the. com- 
 plainant state in his own language the purpose for 
 which the bill was filed, and its principal allegations of 
 fact, and he then requests the defendant to state the 
 defence made in the answer. Having thus made him- 
 self familiar with the matters in issue, he next pro- 
 ceeds to ascertain what facts are admitted, and about 
 which there is no controversy, and what facts are in 
 dispute. If only a part of the facts in the case are in 
 
210 EQUITY PLEADING AND PRACTICE. 
 
 dispute, he confines the reading of the testimony bear- 
 ing upon those" questions. 
 
 In reading the testimony to the court, the complain- 
 ant reads the direct testimony given by his own 
 witnesses, and the defendant reads the cross-examina- 
 tion. When the defendant's testimony is reached, the 
 defendant's counsel reads the direct and the complain- 
 ant's the cross-examination. At the close of the 
 hearing the court may decide the case, or hold it under 
 advisement, and render his decision at some future 
 day. Causes are frequently heard out of term, and at 
 chambers by arrangement made between the court and 
 counsel. In such a case the cause is formally sub- 
 mitted to the court in term, and the argument made 
 afterwards before the court. In this manner it appears 
 upon the record that all the proceedings were had in 
 court, and all appearances of irregularity are avoided. 
 
 If there is any good reason, on account of the nature 
 of the testimony, a cause will be heard in private, and 
 the public will be excluded. The court may direct 
 that the cause shall be heard in private at the request of 
 counsel, or on its own motion. 
 
 Matter of Lord Portsmouth, Cooper, Rep. io6; Ogle v. 
 Brondling, 2 Russ. & My. 688. 
 
 An objection to the bill based on want of proper 
 parties may be made at the hearing, but if the defect 
 can be cured by amendment and service be had upon 
 the new parties, the court will, upon terms, allow the 
 cause to stand over that the proper parties may be 
 .added. 
 
 Jones V. Jones, 3 Atk. no; Palmer v. Rich, 12 Mich. 414. 
 
EQUITY PLEADING AND PRACTICE. 2] 1 
 
 The objection, however, must come from the de- 
 fendant, as the complainant cannot postpone the cause 
 •without his consent, unless the complainant was ignor- 
 ant of the persons whose claims will be affected by 
 the decree. 
 
 Inness v. Jackson, i6 Ves. 356; Thomas v. Gaines, 35 
 Mich. 155-165. 
 
 If the objection qf want of parties has been made 
 
 by the defendant in his answer and the complainant 
 
 has neglected to amend his bill in that particula!r, the 
 
 court m"ay in its discretion refuse to allow the cause 
 
 to stand over and dismiss the bill. 
 
 Van Epps v. Dan Deusen, 4 Paige 64; Bank v. Seton, 
 I Peters 299; Story v. Livingston, 13 Peters 359; U. S. 
 Rule 52. 
 
 When upon the hearing it is discovered that the 
 proofs are defective in some formal matter, the court 
 will, if a reasonable excuse is given for the omission, 
 allow the cause to stand over for the purpose of sup- 
 plying such defects. 
 
 I Barbour Ch. Pr. 322-323; U. S. Rule 53 
 
 DISMISSING THE BILL, AT THE HEARING. 
 
 When the pleadings are defective, or when through 
 some informality in the bill the court cannot give the 
 complainant relief, or where from some other cause the 
 bill is dismissed without the courts passing upon the 
 merits, and it appears that the complainant may be 
 entitled to some relief, it will be dismissed without 
 prejudice. 
 
 Story Eq. PL §§ 456, 793; Wilson v. Egleston, 2.^ Mich. 
 
 257- I If I ;) 
 
212 EQUITY PLEADING AND PRACTICE. 
 
 But if a bill is dismissed by the court upon the 
 hearing absolutely, such dismissal may be pleaded in 
 bar to a new bill filed for the same cause of action; 
 and a bill cannot be dismissed without prejudice when 
 a new bill must cover the same ground'. 
 
 Crozier v. Acre, 7 Paige 137; Gale v. Gould, 40 Mich. 
 515- 
 
 A bill is sometimes dismissed and the complainant 
 given leave to bring an action at law. The court may 
 make an order retaining the bill for a certain period 
 with liberty to the complainant to proceed at law, 
 conditioned, that if he fails to do so, that the bill be 
 dismissed absolutely. 
 
 I Barb. Ch. Pr. 324, 325. 
 
 In this state the court may at the hearing upon 
 pleadings and proofs call upon either party or any 
 witness to testify before the court orally. 
 
 Mich Rule 15; Hamilton v. Hamilton, 37 Mich. 603. 
 
 FEIGNED ISSUES. 
 
 It sometimes happens that the testimony is so con- 
 flicting and unsatisfactory, that the court or the parties 
 may desire that a particular question of fact be found 
 by a jury. An issue made for that purpose is called a 
 feigned issue. 
 
 3 Black. Cases 452. 
 
 The court approves the frame of the issue and it is 
 tried substantially as a suit at law. 
 
 3 Barbour Ch. Pr. 484; Milk v. Moore, 39 111. 584 588; _ 
 Russell V. Paine, 45 111. 350; Wood v. Wood, 2 Paige 109; 
 Dunn V. Dunn, 11 Mich. 285; Brink v. Morton, 2 Cole (la.) 
 411; Hall V. Doran, 6 Cole (la.) 433. 
 
EQUITY PLEADING AND PfiACTICE. 213 
 
 LECTURE XVII. 
 
 DECREES. 
 
 A decree is a sentence of a court of chancery de- 
 termining' the rights of the parties to the suit. 
 
 Decrees are of two kinds, InterlocutOi-y and Final. 
 
 An interlocutory decree is a decree made during the 
 pendency of the cause to facilitate the taking of proofs, 
 or to protect the rights of the parties, or to aid the 
 court in arriving at a correct -conclusion m regard to 
 some disputed fact, but which is not a final determina- 
 tion of the rights of the parties in whole or in part. 
 
 A final decree is one that disposes of the whole or 
 some part of the case on the merits and reserves no 
 question for the further judgment of the court thereon.' 
 
 Crosby v. Buchanan, 23 Wall. 420; Lewis v. Campau, 14 
 Mich. 458-460; Winthrop v. Muker, 109 U. S. i8a; Bank v. 
 Shedd, 121 U. S. 74. 
 
 It is sometimes exceedingly difficult to determine 
 whether a particular decree is an interlocutory or a 
 final decree. The distinction is, however, an impor- 
 tant one, since the right to appeal from a decree is a 
 statutory right and must be strictly followed, and the 
 statute usually restricts the right of appeal to final 
 <lecrees. It may be said that any decree which finally 
 disposes of the rights of the parties upon the merits 
 of any branch of the controversy is final, but that if 
 the merits are not passed upon and the order is made 
 simply to take an additional step towards a final deter- 
 
214 EQUITY PLEADING AND PRACTICE. 
 
 mination upon the' merits, it is interlocutory, provided, , 
 the rights of the parties remain in statu quo, for any 
 decree which divests a party of,^a pre-existing legal 
 right is final. 
 
 Barry v. Briggs, 22 Mich. 201; Tawas, etc., R. R. v. Iosco 
 Ct,. 44 Mich. 489; Jennison Ch. Pr. Chap. 18; Bank v. Whit- 
 ney, 121 U. S. 284; Railroad v. Simmons, 123 U. S. 52; 
 Grant v. Insurance Co., 121 U. S. 105. 
 
 SETTLING DECREES. 
 
 The party in whose favor the judgment of the court 
 is made, makes a' draft of such a decree as he deems 
 he is entitled to under the decision. He serves upon 
 the opposite solicitor a copy of this draft, with notice 
 of the time and place, when and where he will apply to 
 the court to have it settled. If the draft is satisfactory 
 to the solicitor upon whom service is made, he usually 
 indicates, by an endorserhent on the draft, his consent 
 to have a decree settled in that form. If it is not sat- 
 isfactory, he may propose amendments and .appear 
 before the court, and after the parties are heard the 
 court settles and signs the decree. The decree is then 
 countersigned by the register and entered in the jour- 
 nal of the court at length. 
 
 The decree should in apt terms set forth clearly and 
 methodically the judgment of the court. If the de- 
 fendant is required to do, or to refrain from doing, 
 some act, it should be distinctly set forth, and if ihe 
 defendant is required to perform some act the time 
 within which it is to be performed and the manner 
 of performance, and the conditions, should be made 
 exceedingly plain. 
 
JUJUITY PLEADING AND PRACTICE. 2l5 
 
 FORM OF DECREE. 
 
 The formal parts of a decree are: i. Date and 
 title. 2. Recitals. 3. Ordering part; and to this is 
 sometimes added. 4. The declaratory part. 
 
 At first the decree on its face set forth the plead- 
 ings and the evidence, but usually, at the present time, 
 the decree recites merely the substance of the plead- 
 ings and the facts upon which it is foundi„d, and in the 
 United States Court not even that is done. Rule 86 
 provides that no part of the bill, answer or other plead- 
 ings or report of the master, or other prior proceedings 
 shall be recited in a decree. 
 
 U. S. Rule 86; Dexter v. Arnold, 5 Mason 303, 311; Bart- 
 lett V. Fifield, 45 N. H. 82, 83. 
 
 It is still the practice in some of the states, how- 
 ever, to set forth the evidence in substance in the 
 decree. 
 
 Walker v. Carey, 53 111. 470; Moss v. McCall, 75 111. 190; 
 Hilleary v. Thompson, 11 W. Va. 113; Allen v. Blunt, I 
 Blatcb. C. C. 480. 
 
 In the mandatory part of the decree great care 
 should be taken to meet the case disclosed and secure 
 the rights of each of the parties. The decree must be 
 consistent with itself. But the court may without con- 
 tradiction pass a separate, a reciprocal, a direct or an 
 inverted decree to meet the nature of the case. 
 
 Lingon v. Henderson, i Bland 275; Hodges v. Milliken, 
 1 Bland 507; Owens v. Case, i Bland 404; Elliott v. Pell, i 
 Paige 263. 
 
2l6 EQUITY PLEADING AND PHACTICE. 
 
 When a mistake or, clerical error has been made in 
 a decree, it ijiay be corrected by the court upon motion 
 or petition, made after entry and before enrollment. 
 
 Bates V. Garrison, Har. Ch. 221; U. S. Rules 85; Dex- 
 ter V. Arnold, S Mason 303; Whiting v. Bank, 13 Peters 6; 
 Tilton V. Barnee, 17 Fed. Rep. 59; Coleman v. Neil, 11 Fed. 
 Relp. 461. 
 
 The party making application to have a decree cor- 
 rected must show that he has been injured by the error 
 or mistake. 
 
 Russell V. Waite, Walk. Ch. 31; Insurance Co. v. Whitt- 
 more, 12 Mich. 427; York v. Ingham Ct. Judge, 57 Mich. 
 421; Hart V. Lindsay, Walk. Ch. 72. 
 
 At common law a decree did not become a final 
 record of the court until it was enrolled. It must be 
 enrolled before a deed can be executed on a sale un- 
 der a decree and before an execution can issue to 
 enforce performance. 
 
 Minthorne v. Thomas, 2 Paige 102; Taylor v. Gladwin, 
 40 Mich. 233; Mickle v. Maxfield, 42 Mich. 304; Law v. Mills, 
 61 Mich. 35; Long v. Long, 59 Mich. 296. 
 
 The decree is enrolled in the following manner: 
 The register of the court in which the decree is en- 
 tered, attaches together the bill, pleadings and such 
 other papers as the general rules direct, together with 
 the taxed bill of costs therein, and annexes thereto a 
 fair engrossed copy of the decretal order, signed by 
 the circuit judge and countersigned by the register 
 who/ entered the same. The register then annexes 
 to the papers so attached together his certificate, under 
 the seal of the court, wherein he certifies according to 
 
EQUITY PLEADING AND PEACTIOE. 2l'7 
 
 the fact, the time when the papers were attached to- 
 gether, for the purpose of enrollment and the names 
 of the parties at whose instance the same was done. 
 
 Schwab V. Mabley, 47 Mich. 512; Long v. Long, 59 Mich. 
 296 L;oud V. Winchester, 52 Mich. 174; Low v. Mills, 61 
 Mich. 35; Mickle v. Maxfield, 42 Mich. 304; Mich. R. 24. 
 
 After a decree has been duly enrolled it cannot be 
 disturbed upon motion or petition. It can only^be 
 opened upon a bill of review filed upon leave granted, 
 and the power of the court to grant leave is discre- 
 tionary. 
 
 Maynard v. Pereault, 30 Mich. 160; Vaughn v. Black, 63 
 Mich. 215; Clark v. Circuit Judge, 40 Mich. 166. 
 
 As a general rule, all who are parties or privies to 
 a. decree are bound b}' it, and no one who is not a 
 party, or is not represented by or in privity with a 
 party to the suit, is bound. 
 
 Burk V. Sherman, 2 Doug. 176; Greiner v. Klein, 28 Mich. 
 12, 17; Brown v. Wynkoop, 2 Blackf. 230; Cora, v, Cam- 
 "bridge, 4 Mass. 627; Mallow v. Hinde, 12 Wheat. 193; Richter 
 V. Jerome, 123 U. S. 233; Atkinson v. Flanigan, 70 Mich. 639; 
 Cerman Seminary v. Saenger, 66 Mich. 249. 
 
 ENFORCEMENT OP DECREES. 
 
 It is one of the maxims of equity that it acts in per- 
 sonam. "The strict primary decree in this court," said 
 Lord Chancellor Hardwicke, "is in personam, and 
 although this court cannot issue execution in rem, e. g., 
 "by elegic, still I can enforce the judgment of the court, 
 which is in personam by process in personam, e. g., by 
 attachment of the person when the person is within 
 
218 EQUITY P1,EADIN« AND PRACTICE. 
 
 the jurisdiction, and also by sequestration, so far as- 
 there are goods and lands of the defendant within the 
 jurisdiction of the court, until the defendant do comply 
 with the order or judgment of the court, which is- 
 against the defendant personally, to do or cause to be 
 done, or to abstain from doing some act." 
 
 Penn. v. Lord Baltimore, i Ves. 385. 
 
 Therefore, unless the power of the court has beea 
 enlarged by the statute, the performance of an order 
 or decree of the court is enforced by what is termed 
 process for contempt. The process is based upon the 
 theory that the defendant having been commanded to^ 
 do, or to refrain from doing a particular act, is, by- 
 his neglect to do, or not to do that particular act, in 
 contempt of the authority of the court, and for that 
 contempt has merited punishment. The law courts- 
 act upon an entirely different theory. They do not 
 regard the defendant, who fails to satisfy a judgment 
 rendered against him, as in contempt of the court, but 
 issue process to satisfy the plaintiff's demand, when it 
 may be satisfied by seizure and sale of the defendant's- 
 property, or the imprisonment of the body of the de- 
 fendant. 
 
 Contempt of the court of equity is teclmically disre- 
 garding a command of the court evidenced and authen- 
 ticated by its great seal, and consequently before a- 
 party can be said to have incurred such contempt, he 
 must be personally served with the mandate of the 
 court under seal, and the mere service of a copy of the 
 decree, or order of the court, without the writ, is not 
 sufficient. 
 
EQUITY PLEADING AND PRACTICE. 219 
 
 The writ is called a writ of execution, and it recites 
 the prder or decree, or that part of it which the de- 
 fendant is to obey. At first it was the practice to 
 insert the entire decree, but afterwards, by order of the 
 court, if the decree was for the payment of money the 
 substance of that part directing the payment of money 
 was inserted. 
 
 When the order or decree directs the defendant to 
 do a particular act, which he neglects to do, the writ 
 of execution commands him to do the act within a 
 specified time, and if it is not done within the time 
 limited, the party is then in contempt. 
 
 Generally the writ of execution must be served upon 
 the party himself in order to bring him into contempt. 
 
 This is done by handing him a copy and showing 
 
 him the original under the seal of the court. But 
 
 when personal service cannot be had upon a party 
 
 owing to his own misconduct, substituted service will 
 
 be directed. A party will not be permitted to put 
 
 the court at defiance. 
 
 Tyson v. Ward, i Dickens i66; Rider v. Kidder, 12 Ves. 
 202: DeManneville v. DeManneville, 12 Ves. 203. 
 
 The party having been duly served with a writ of 
 execution, if he neglect to obey the mandate, and 
 that fact is brought to the attention of the court by 
 affidavit, a writ of attachment is issued, upon which 
 the party is arrested and brought before the court; and 
 unless he can purge himself of the contempt, i. e., 
 offer a good excuse for not obeying the mandate, he- 
 is by order of the court directed to comply with the- 
 mandate instanter or stand committed to jail. 
 
 2 Danl. Ch. Pr. Sec. 7. 
 
220 EQUITY PLEADING AND PRACTICE. 
 
 The statute has, however, very materially enlarged 
 the powers of the court, and in this state courts of 
 equity may enforce the performance of any decree or 
 obedience thereto, by execution against the body of 
 the party, against whom such decree shall have been 
 made, or by execution against the goods and chattels, 
 and in default thereof, the lands and tene;nents of such 
 party. 
 
 H. S. § 6653; Mickle V. Maxfield, 42 Mich. 304. 
 INTERLOCUTORT PROCEEDINGS. 
 
 The proceedings we have already noticed are the 
 usual and regular proceedings had in every cause in 
 chanceiy. There are certain interlocutory proceed- 
 ings to which we will now call your attention, none of 
 which may be had in any given cause, but some of 
 which are usually taken at some stage in the progress 
 of every cause, and which are of great practical impor- 
 tance. 
 
 An interlocutory application is a request made to 
 the court for its aid and assistance in some matter 
 arising in the cause, either to further the proceedings, 
 or to protect the rights of some of the parties to the 
 suit. These applications are made either orally, when 
 they are called motions, or in writing, when they are 
 •designated petitions. 
 
 There is no inflexible and certain rule given by which 
 you can determine whether a particular application 
 shall be made by motion or petition. As a general 
 rule, when the application is based upon a long or in- 
 tricate statement of facts, it should be made by peti- 
 
EQUITY PLEADING AND PRACTICE. 221 
 
 tion and not by motion. Otherwise the appHcation 
 may be made by motion. 
 
 Shipbrooke v. Hinchinbrook, 13 Ves. 387, 393; Shaft v. 
 Phoenix Ins. Co., 67 N. Y. 544, 547; Bergan v. Jones, 4 Met. 
 371; Jones V. Roberts, 12 Sim. 189; Anon, 4 Madd. 229; 
 Skinner v. Sweet, Coop. 55. 
 
 A motion may be made by or on behalf of any of 
 the parties to the suit, who is not in contempt. If a 
 party is in contempt, he cannot be heard until he 
 purges himself of his contempt. 
 
 Johnson v. Pinney, i Paige 646; Rogers v. Patterson, 4 
 Paige 450 ;Lane v. Ellzeg, 4 H. & M. 504. 
 
 A MOTION IS EITHER OP COURSE OR SPECIAL. 
 
 A motion of course is one which will be granted 
 upon an c.v parte application and without hearing the 
 other side, under some standing rule or the known 
 practice of the court. It requires no notice to be 
 given the opposite party us no opposition will be al- 
 lowed to it. 
 
 Eyles V. Ward, Mos. 255; Barbour Ch. Pr. 566. 
 
 Motions ot course are understood to be confined 
 to orders which are entered by the register, at the re- 
 quest of a party, without any application being made 
 to the court. 
 
 Mich. Rule 15; U. S. Rule S- 
 
 A special motion is one which is not granted by 
 the court as a matter of course, but one which the 
 court may, in its discretion, after cause shown, grant 
 
222 EQUITY PLEADING AND PKACTIOE. 
 
 or refuse. They are made either ex parte or upon 
 notice. 
 
 There is no clear and well defined rule under which 
 special motions may be classified into those which 
 4niay be made ex parte and those requiring notice. 
 You must in a great measure rely upon the rules of 
 the court which state usually whether the special mo- 
 tion requires notice or not. If the rules are silent, and 
 the practice is uncertain, the safest course is to give 
 notice. 
 
 Marshall v. Mellnish, 5 Beav. 496; Isnard v. Cazeaux, 
 I Paige 39; Hart v. Small, 4 Paige 551; U. S. Rules 3, 4; 
 Mich. Rule 15. 
 
 Ex parte motions are made for a variety of purposes 
 — for instance: 
 
 For an order that an absent defendant appear; 
 that complainant's bill be taken as confessed; to 
 show cause why injunction should not issue; to en- 
 large the time for taking testimony; for time to an- 
 swer; for appointment of a guardian ad litem, etc. 
 
 Sometimes upon an ex parte motion an order is en- 
 tered that a particular act is to be done unless the 
 •opposite party show cause to the contrary within a 
 specified time. Such an order is called an order nisii 
 After the time limited for showing cause, or doing the 
 act required, upon motion and proof by afifiidavit of 
 non compliance, the order nisi, is made absolute. 
 Dan. Ch. Pr. 1594. 
 
 All ex parte motions must be supported by affidavit 
 or other proof sufficient to make a case for the inter- 
 ference of the court. 
 
EQUITY PLEADING AND PRACTICE. 223 
 
 When the motion is not of course and cannot be 
 .niade ex parte, notice must be given in writing to the 
 •opposite party. This being simply a notice that an 
 oral motion will be made to the court, the form of 
 the notice becomes important. It must be entitled 
 in the court and cause and directed to the solicitor of 
 the opposite party and signed by the party giving the 
 notice. In the body of the notice the particular order 
 -or direction of the court which will be asked for must 
 be set out clearly and distinctly, and the party must 
 be informed of the grounds upon which the applica- 
 tion is made, and consequently the notice must be 
 accompanied with copies of all affidavits and other 
 proofs not on file in the cause, and previously known 
 to the other solicitor, Which will be read upon the 
 hearing of such motion. The time and place of hear- 
 ing must be also given. This part of the notice usually 
 concludes with the words "or as soon thereafter as 
 counsel can be heard." 
 
 Isnard v. Cazeaux, i Paige 39; Brown v. Ricketts, 2 
 Johns. Ch. 42s; Jackson v. Stiles, i Cow. 134, 13s n. 
 
 The time and manner of service is fixed by the rules 
 After the notice has been served the party making th« 
 service should prepare an affidavit setting forth the 
 time and irianner of service to be used in case the op- 
 posite party does not appear to oppose the motion. 
 
 It is the practice of thexourt when several motions 
 are to be made, to first hear ex parte motions and those 
 which are not opposed. When a motion is opposed 
 it is the usual practice for the party making the mo- 
 tion, to first read the notice and the affidavits, if any, 
 
224 EQUITY PLEADING AND PRACTICE. 
 
 in its support, and then for the opposing party to read 
 any opposing affidavits, after which the moving party 
 opens and closes the argument. The decision of the 
 court may be rendered at the hearing or the motion 
 may be taken under advisement and the verdict ren- 
 dered at a subsequent sitting of the court. 
 
 The court will not upon motion make an order 
 which will decide the principal point in the case, ex- 
 cept upon consent of all the parties afifected by it. For 
 instance if the bill is filed to enforce the specific per- 
 formance of a contract, and the only question in dis- 
 pute is the title of the vendor, the contract being 
 admitted by the answer, the court will upon motion 
 direct a reference to a master to enquire into the title, 
 but the court will not upon motion before the hearing 
 enquire into any other objection. 
 
 Like V. Beresford, 3 Bro. C. C. 366; Moss v. Mathews. 
 3 Ves. 279. i 
 
EQUITY PLEADING AND PRACTICE. 225 
 
 LECTURE XVIII. 
 
 PETITIONS. 
 
 Petitions are entitled in the court and cause and 
 addressed in the same manner as a bill. 
 
 A petition is not the proper proceeding unless all 
 the parties interested in the subject matter have 
 been or may be brought before the court. Therefore 
 when it is necessary to issue processes to bring inter- 
 ested parties before the court a bill and not a petition 
 should be filed. 
 
 Ledyard's Appeal, 51 Mich. 623; Bank v. Byles, (sy 
 Mich. 297. 
 
 The petition should briefly and clearly set forth the 
 particulars of the case and conclude with praying the 
 court to grant the order desired "or such other and 
 further relief as may be agreeable to equity and good 
 conscience." The petition must be signed and sworn 
 to by the petitioner and also signed by the counsel. 
 
 Matter of Christie, s Paige 242, 
 
 When a person not a party to the original bill has- 
 an interest by way of title, lien or otherwise in the 
 property which forms the subject-matter of the suit, 
 and such interest is liable to be affected by the pro- 
 ceedings, he may by petition apply to the court for 
 leave to intervene for the protection of his rights, and 
 such leave will be granted when the cause exists. 
 
 When leave is granted the party must forthwith, 
 
226 EQUITY PLEADING AND PRACTICE. 
 
 or within such time as the court determines, file his 
 petition in the cause setting forth his rights and pray- 
 ing for the reHef sought, and give notice of the fiUng 
 thereof to the other parties to the cause. 
 
 Freeman v. Howe, 24 How. 450; Stewart v. Durham, 115 
 U. S. 61; Gumbel v. Pitkin, 124 U. S. 131-143. 
 
 Petitions are noticed, and heard in the same man- 
 ner as motions. 
 
 ORDBBS. 
 
 Orders are either common, special, or by consent. 
 
 A common order is one that the party is entitled to 
 as a of course and is made without notice to the oppo- 
 site party. 
 
 A special order is one made by the court upon spe- 
 cial application, either ex parte or upon notice. 
 
 An order by consent is one made upon stipulation 
 of the parties or their solicitors. 
 
 All common orders and orders by consent of the 
 parties, may be entered in the common order book 
 in the register's office, at the peril of the party taking 
 such order. The day on which the order is entered 
 must be noted in the entry. All special orders made 
 by the court must be eiitered in the record of the pro- 
 ceedings of the court. When an order is entered by 
 consent, the consent must be in writing signed by the 
 parties or their solicitors and filed in the cause. 
 
 Hammond v. Place, Har. Ch. 438; Crone v. Angell, 14 
 Mich. 339; Mich. Rules 24. 
 
 Orders for injunctions, and all other special orders, 
 must be entered with the register before process issues. 
 
 Hoffman v. Treadwell, 5 Paige 82; Skinner v. Dayton, 2 
 Johns. Ch. 226. 
 
EQUITY PLEADING AND PRACTICE. 227 
 
 It frequently happens that the entry of a common 
 order is not made at the proper time. In such a case, 
 if no great length of time has intervened, a motion of 
 •course may be made to the court to enter the order 
 nunc pro tunc; but after a considerable length of time, 
 there must be notice of the motion given. 
 
 Williamson v. Henshaw, i Dick. 129. 
 
 Neither party can obtain any benefit from a de- 
 cision of the court until the order thereon is drawn up 
 and perfected. When the order granted is special in 
 its provisions, the party in whose favor it is granted 
 should submit a copy to the adverse party that he may 
 submit amendments thereto if he desires. The draft 
 and the amendments are then given to the register 
 that the order may be settled by him and entered. If 
 the register is in doubt as to the decision of the court, 
 he is, in such a case, to apply to the court to settle the 
 order. 
 
 Whitney v. Belden, 4 Paige 140; Earl of Fingal v. B^ake, 
 J Molloy SO. 
 
 SERVICE OF ORDERS. 
 
 Not all orders need be served, and whether or not 
 an order must be served depends usually upon the 
 form of the order. Special orders obtained ex- parte, 
 usually provide that the act designated shall be per- 
 formed by the opposite party within the time speci- 
 fied, after service of the order. But where a special 
 order is obtained upon notice the order usually pro- 
 vides that the act shall be performed within the time 
 designated after entry of the order. The reason for 
 
228 EQUITY PLEADING AND PRACTICE. 
 
 this distinction is that in the first instance the oppo- 
 site party has no personal knowledge of the order 
 until he is notified, and in the latter case he has such 
 notice, having had notice of the motion for the order. 
 But in all cases as we have seen, where it is in- 
 tended to bring the party into contempt for not com- 
 plying with the order, notice must be served upon 
 him personally. The service in such case is made in 
 the same manner as notice of a decree, by delivering 
 to him a copy of the order and at the same time 
 showing him a certified copy of the original order 
 under the seal of the court. 
 
 Cooper 282; Laton v. Seaman, g Paige 609; Young v. 
 Goodson, 2 Russ. 255. 
 
 When the party has appeared by solicitor, and it 
 is not desired to bring him into contempt, service of 
 notice, when notice is necessary, upon the solicitor is 
 sufficient. 
 
 Stafford V. Brown, 4 Paige 360-362. 
 
 ENFORCING ORDERS. 
 
 It is sometimes provided by statute that orders for 
 the payment of money may be enforced by means of 
 an execution running against the property of the de- 
 fendant. At common law orders were, in general, 
 enforced by process of contempt. Upon motion, and 
 proof that an order had been personally served, for 
 the payment of costs for instance, and that the order 
 had not been obeyed, attachment issued and the de- 
 fendant was committed to prison for contempt. 
 
 Danl. Chr. P. 1454. 
 
EQUITY P1.EADING AND PRACTICE. 229 
 
 MODIFYING AND DISCHARGING ORDERS. 
 
 It is a general rule that every order made in the 
 progress of a cause, may for cause shown, be modi- 
 fied or vacated at any time before the final disposi- 
 tion of the suit. 
 
 Ashe V. Moore, 2 Mer. 383; Fanning v. Dunham, 4 Johns. 
 Oh. 35; Isnaid v. Cazeauz, i Paige 39. 
 
 An order will not be vacated, however, except to 
 permit the party applying to secure rights that are 
 meritorious. If he simply desires to delay a cause, 
 or take advantage of some technical defence or ob- 
 jection, the court will allow the order to stand although 
 the part}' has excused himself from all fault. 
 
 Champlin v. Mayor of N. Y., 3 Paige 573; Townsend v. 
 Townsend, 2 Paige 413; Hunt v. Walhs, 6 Paige 371. 
 
 INJUNCTIONS. 
 
 It is very frequently necessary for a court of equity 
 to restrain a party from doing some particular act in 
 order to prevent irreparable injury to another, or to 
 maintain the statu quo pending the determination of 
 the legal rights of the parties to the subject-matter in 
 litigation. This object is accomplished by the writ of 
 injunction, a writ of the greatest importance and of 
 very frequent use in this country during the past half 
 century. We can do no more than merely to indicate 
 the existence and purpose of the writ, and refer the 
 student to the exhaustive treaties on the subject bv Dr. 
 High. 
 
 A writ of injunction is a judicial process acting in 
 personam requiring the party to whom it is directed to 
 
230 EQUITY PJ.EADING AND PKAOTICK. 
 
 do or to refrain from doing some act therein spe- 
 cifically described. It is used both for the enforcement 
 of a right and the prevention of a wrong, but it must 
 be an actual right or a positive wrong, and the with- 
 holding of the right or the doing of the wrong must 
 work a positive injury to the person complaining, or 
 the court will not interfere. 
 
 McDonogh v. Calloway, 7 Rob. La. 44.2; Goodrich v. 
 Moore, 2 Minn. 49. 
 
 Injunctions are either mandatory, commanding 
 something to be done, or preventive, forbidding the 
 doing of something. A mandatory injunction is sel- 
 dom issued and then only upon the final heading. 
 
 ■Robinson v. Byram, 1 Bro. C. C. 588; Gale v. Abbott, S 
 Jur. N. S. 987; Worthington v. Green, i Md. Ch. 97; Rog- 
 ers V. Railroad, s C. E. Green, 379. 
 
 With reference to their duration injimctions are 
 either interlocutory or perpetual. Interlocutory in- 
 junctions are issued at any time during the progress 
 of the suit, usually at the filing of the bill, to continue 
 until the coming in of the answer, or to the hearing, 
 or until the further order of the court. A perpetual 
 injunct'on is never granted except at the final hearing 
 and is usually a part of the decree. 
 
 Chapman v. Harrison, 4 Bland 336. 
 
 The sole object of an interlocutory injunction is to 
 preserve the present situation of the parties, and there- 
 fore it will go no further than is necessary to preserve 
 all the rights in issue between them in statu quo. They 
 are divided into two classes, common and special. 
 
EQUITY PLEADING AND PRACTICE. 231 
 
 A common injunction is one that issues to aid the 
 court in granting the ultimate rehef asked, which is 
 something different from the injunction itself, while a 
 special injunction is issued to prevent irreparable in- 
 jury and the obtaining of which is the sole or principal 
 object and purpose of the suit. 
 
 Purnell v. Daniel, 8 Ired. Eq. 9; Troy v. Norman, 2 Jones 
 Eq. 318; Peterson v. Mathis, 3 Jones Eq. 31. 
 
 An injunction becomes operative from the time the 
 party to whom it is directed has actual notice. It is 
 not necessarv' that he should be actually served with 
 the writ, and therefore it may be served outside the 
 jurisdiction of the court. 
 
 Ramsdale v. Craighill, 9 Ohio 197; Little v. Price, 1 
 Md. Ch. 182; Milne v. Van Buskerk, 9 Iowa 558; Osborne 
 V. Tennant, 14 Ves. 136. 
 
 A perpetual injunction is one that is issued under 
 a final decree, or an interlocutory injunction which 
 is made perpetual by the final decree. By its terms 
 the defendant is forever inhibited from doing certain 
 acts, or making certain specific claims therein set forth, 
 which would be contrary to equity and good con- 
 science. Such an injunction will issue whenever it is 
 necessary to protect the rights of the complainant. 
 
 Bushnell v. Hartford, 4 Johns. Ch. 301; Caruthers v. 
 riartsfield, 3 Yerg. 356; Kenson v. Kenson, i Bibb. 184. 
 
 Injunctions in this state may be granted by a cir^ 
 cuit court commissioner. 
 
 Mich. Rule 21. 
 
232 EQUITY PLEADING AND PRACTICE. 
 
 Special injunctions are not granted in the United 
 States Court except upon notice to the opposite party, 
 and they continue in force until the next term of the 
 court, or until the further order of the court. 
 
 U. S. Rule 5S. Revised St. §§ 718, 719, 720; Parker v. 
 Judges, 12 Wheaton 561. 
 
 WRIT OP NE EXEAT. 
 
 A writ of ne exeat is the process of the court issuing 
 under its seal to prevent a person who is a party to a 
 suit from leaving the jurisdiction of the court. It is 
 resorted to for the purpose of compelling a defendant 
 to give bail conditioned that he will do and perform 
 the decree of the court. 
 
 Gilbert v. Colt, Hopk. 496; De Rivafinoli v. Consetti, 4 
 Paige 264; Gleason v. Bisby, i Clarke 551. 
 
 The statutes of the United States provide that when 
 a suit in equity is commenced, and satisfactory proof 
 is made to the circuit court, or to the circuit justice 
 or judge, that the defendant designs quickly to depart 
 from the United States; that there is due from him a 
 sum certain or capable of reduction to a certainty ; that 
 complainant has no sufficient legal redress, and that 
 irreparable injury or a denial of justice will be caused 
 to complainant if the defendant so departs, such court 
 or judge may order the issuance of a writ of ne exeat, 
 upon which the marshal arrests the defendant and 
 keeps him in custody, unless he gives security to abide 
 the order and decree of the court. 
 
 Revised Statutes § 717; U. S. Rule 21. 
 
EQUITY PLEADING AND PEACTICE. 233 
 
 The writ may be applied for at any stage of the pro- 
 ceedings after, but not before, the filing of the bill of 
 complaint. 
 
 Ex pr. Brumker, 3 P. Wms. 312; Dunham v. Jackson, i 
 Paige 629. 
 
 The application for the writ may be made c.v parte. 
 The application is founded upon affidavit or petition, 
 and, unlike the writ of injunction, it need not be prayed 
 for in the bill. The writ may be allowed by the same 
 officers who are authorized to allow writs of injtmc- 
 tion, and the officer making the allowance directs in 
 what amount the defendant shall give bail. 
 
 Eliott V. Sinclair, Jac. 545; Gleason v. Bisby, i Clarke 
 iSi; Brehm v. Wood, i Turner & Russ. 332; McNamara v. 
 Dwyer, 7 Paige 239. 
 
 The writ commands the sheriff to have the defendant 
 personally to come before him and give a bond in the 
 penal sum endorsed thereon, that he will not go, or 
 attempt to go, beyond the jurisdiction of the court — 
 at common law beyond the four seas — and in default 
 of his giving such bond that he commit him to prison. 
 
 Gilbert v. Colt, i Hopk. 500; Rice v. Hale, 5 Cush. 238; 
 
 Mich. Rule 17. 
 
 RECEIVERS. 
 
 A receiver is a_ suitable person appointed to take 
 charge of property which is involved in the suit, when 
 for any reason, the court regards the parties to the suit 
 not the proper persons to have the custody or manage- 
 ment of such property. The appointment of a receiver 
 is discretionary with the court. When appointed he 
 is regarded as an officer acting under the orders of 
 
234 EQUITY PLEADING AND PRACTICE. 
 
 the court. The power of appointment is usually called 
 into action either to prevent fraud or save property 
 in litigation from material injury. 
 
 In re Receivers' Globe Ins. Co., 6 Paige 102 jBaker v. 
 Barkies, 42 111. 79; Vorhill v. Hynson, 26 Md. 83, 92; Mich. 
 Rule 31; U. S. C. C. Rules 8, 9, 11. 
 
 When the application for a receiver is made dur- 
 ing the pendency of the suit and before a decree, there- 
 must be a foundation laid for the application in the bill,, 
 but the bill need not contain a prayer for a receiven 
 The application is made upon motion, notice of which 
 must be served upon the opposite party, unless he has. 
 absconded or has concealed himself to avoid service. 
 
 Dowling V. Hudson, 14 Beav. 423, 424; Pitchei v. Hiiliar, 
 2 Dick 580. 
 
EQUITY PLEADING AND PRACTICE. 235» 
 
 LECTURE XIX. 
 
 PRODUCTION OF PAPERS. 
 
 It is the practice of the court of chancery to require- 
 the defendant to produce any papers in his possession 
 relevant to the matters in question, which the com- 
 plainant of right ought to have the privilege of ex- 
 amining. It is the complainant's privilege to apply 
 for the production of such papers as a part of his gen- 
 eral right of discovery. 
 
 Warrick v. Queen's College. L. R. 3 Eq. 683; Att'y-GenL- 
 V. Thompson, 8 Hare 106. 
 
 When the complainant has books, pM)ers or other- 
 documents in his possession, material for the defend- 
 ant's defence, the defendant was required at common' 
 law to file a cross bill, by which means he obtained' 
 the same right for the production of papers as the com- 
 plainant had under his bill. 
 
 Kelley v. Eckford, 5 Paige 548: Denning v. Smith, j.. 
 Johns. Ch. 409. 
 
 When a bill is filed for the purpose of obtaining a;, 
 partnership accounting, and the partnership books ure- 
 in the hands of one of the partners, the court upon ap- 
 plication will direct such books to be placed in Ihe 
 hands of an officer for the purpose of allowing i he- 
 other partner to inspect them. 
 
 Kelley v. Eckford, 5 Paige 548, 
 
^36 EQUITY PLEADING AND PRACTICE. 
 
 To obtain an order for the production of papers or 
 books, application is made to the court by special rao 
 tion and the bill, or affidavit made to sustain the mo 
 lion, must show that the production of the papers ci 
 books is necessary to enable the party making the ap- 
 plication to prosecute or defend the suit. 
 
 ABATEMENT AND REVIVOR. 
 
 Abatement of a suit in equity is the effect produced 
 by the happening of some event whereby the furthei 
 progress of the cause is temporarily or permanently 
 suspended. 
 
 Hoxie V. Carr, i Sumner 173. 
 
 The abatement may be due to some event whereby 
 the interest of one of the parties becomes extinguished, 
 for instance, when joint tenants as sucn are parties 
 and one of them dies, in such a case the abatement is 
 said to be as to a party; or, the abatement may be due 
 to the transfer of the interest of one of the parties to a 
 third person; for instance, when upon the death of 
 -one of the parties, his interest is vested in heirs or 
 devisees, in such case there is an abatement as to the 
 suit. 
 
 Leggett V. Dubois, 2 Paige 211, 212; Barbour Ch. Pr. 675. 
 
 In the first instance there is no abatement as to the 
 Surviving parties, and the court will on the motion of 
 either of the parties, order the cause to proceed be- 
 tween such survivors. But in the other case there is 
 :no longer the proper persons before the court against, 
 
EQUITY PLEADING AND PRACTICE. 237 
 
 or, by whom proceedings can be had and the suit must 
 therefore be revived. 
 
 Leggett V. Dubois, 2 Paige 211, 213. 
 
 When there is an abatement of the suit by the death 
 or bankruptcy, for instance, of the complainant, no 
 further proceedings can be had, as a general rule, until 
 this defect has been cured, and if any proceedings are 
 had, they will be set aside as irregular. 
 
 Insurance Co. v. Slee, 2 Paige 365; Canhone v. Vincent,. 
 8 Sim. 277. 
 
 The proceedings are merely suspended by the abate- 
 ment and those already had in the cause are not an- 
 nulled thereby. If a party has been imprisoned for 
 contempt, abatement of the suit does not discharge 
 him from custody, neither is a receiver discharged for 
 that reason. 
 
 Dan. Ch. Pr. 225; i Hogan 174. 
 
 And the court will sometimes permit necessary pro- 
 ceedings to be- had pending abatement. Thus orders 
 will be made for the preservation of property, and pro- 
 ceedings had to punish a party for breach of an in- 
 junction. 
 
 Washington Ins. Co. v. Slee, 2 Paige 365, 368; Hawley 
 V. Bennett, 4 Paige 163. 
 
 KBVIVOR. 
 
 In many of the states the statutes provide that suits 
 may be revived upon petition. These statutory pro- 
 ceedings are usually confined to cases where the suit 
 abates by the death of a party, the statute substituting 
 
::238 equity pleading and practice. 
 
 ^ petition for a bill of revivor. When the abatement 
 is one that can be remedied under the statute, the stat- 
 Jitory proceedings are usually resorted to as being 
 simpler and more expeditious, but a party is not pro- 
 hibited from resorting to a bill of revivor even in those 
 -cases where the statute has given ample relief by peti- 
 .tion. 
 
 The statute is necessarily confined to those cases in 
 which there can be no legal controversy with reference 
 lo the right of a party to revive the suit in his favor, 
 ■or against whom it may be revived; in other words, to 
 ihose cases where, at common law, an abatement could 
 be remedied by a bill of revivor. It is laid down as the 
 rule that a bill of revivor may be filed whenever by 
 'death of one of the parties his interest vests as a mat- 
 ter of law in some other person, so that the only ques- 
 tion for the court to determine is the question whether 
 -or not such person is the one designated by the law. 
 
 Story Eq. PI. § 364; Freematee v. Karlittous, 2 J. J. 
 Marsh (Ky.) 303; Boynton v. Boynton, i Foster 246. 
 
 But when the party against whom or in whose behalf 
 the suit is sought to be revived, is not tlesignated by 
 "the statute as the person who represents the original 
 party to the bill, but his representative character de- 
 pends upon some question of fact, an original .bill in 
 the nature of a bill of revivor and supplement must be 
 filed. . 
 
 Douglass v. Sherman, 2 Paige 358, 360, 301 ; Monteith v. 
 'Taylor, 9 Ves. 615; Mendhom v. Robinson, i My. & K. 217. 
 
 . The reason for the above rules, is, that in the later 
 
EQUITY PJ.EADING AND PRACTICE. 239 
 
 ■class of cases, the title depending upon a question of 
 fact, it is necessary to put the question of title in issue, 
 that it may be litigated. If, for instance, one of the 
 parties to a suit dies intestate, the interest which he 
 represented goes to certain persons designated by the 
 statute, the only question to be determined is the 
 identity of the heirs. If, on the other hand, such per- 
 son dies testate, the question of the validUy of the will 
 must be determined — litigated. 
 
 SUPPLEMENTAL BILLS. 
 
 When the bill becomes defective by some event oc- 
 curring after it is filed and too late to be cured by 
 amendment, or when by an event subsequent to the 
 filing of the bill a new interest in the matter in litiga- 
 tion is cla:inied by one of the parties to the suit, or a 
 new party claims, otherwise than by mere operation 
 ■of law, the interest which belonged to some other 
 party at the commencement of the suit, a supplemental 
 till is the proper remedy to cure the defect. 
 
 Jones V. Jones, 3 Atk. no; Dormer v. Fortescue, 3 Atk. 
 124, 133; Humphreys v. Humphreys, 3 P. Wms. 349; Pelking- 
 ton V. Moss, Madd. 240, 466; Knight v. Matthews, i Madd. 
 566, 304; Usborn v. Baker, 2 Madd. 379, 539. 
 
 It is filed on leave, to supply some defect in the 
 structure of the original bill, caused by the happening 
 of some event after the filing of the original bill. 
 
 Kennedy v. Georgia St. Bank, 8 How. U. S. 586; Winn 
 V. Albert, 2 Md. Ch. 42. 
 
 It is not proper to file a supplemental bill to put in 
 issue new matters which can be added to the bill by 
 
240 EQUITY PLEADING AND PRACTICE. 
 
 way of amendment. Therefore, if there has been no 
 change in the parties and the bill is defective from 
 the complainant having omitted to make certain alle- 
 gations, through ignorance of fact, and no proofs have 
 been taken, the complainant should apply to the court 
 for leave to amend, and if he has filed a replication, to 
 withdraw his replication. 
 
 Dias V. Merle, 4 Paige 259; Colclough v. Evans, 4 Sim. 
 76; Stafford v. Hewlett, i Paige 200; Chandler v. Pettit, i 
 Paige 168. 
 
 If proofs have been taken he must in that event ask 
 leave to file a supplemental bill. 
 
 Dias V. Merle, 4 Paige 259. 
 
 Not all matters, however, that have arisen since the 
 commencement of suit can be put in issue even by a 
 supplemental bill. If the complainant had no cause 
 of action when the bill was filed he cannot cure the 
 defect by putting in issue matters which have since 
 occurred. He will not, for instance, be permitted to 
 support a bad title held by him at the time the bill was 
 filed, by subsequently acquiring a good one and setting 
 up such acquired title by a supplemental bill. 
 
 Tonkin v. Lithbridge, Coop. R. 43; Davidson v. Foley, 
 3 Bro. C. C. 598; Pritchard v. Draper, I Russ. & My. 191. 
 
 The rule does not, however, bar a complainant who 
 had a good inchoate title, from showing by a supple- 
 mental bill that such inchoate title has become vested 
 through some formal act. 
 
 Mutter V. Chanvoe, 5 Russ. 42; Sadler v. Lovett, i MoUoy 
 162 
 
EQUITY PLKADING AND PRACTICE. 241 
 
 A supplemental bill cannot be filed without leave of 
 the court first obtained. The motion for an order giv- 
 ing permission need not be noticed, however, unless 
 an injunction is prayed for in the supplemental bill. 
 
 Eager v. Price, 2 Paige 333; Lawrence v. Bolton, 3 Paige 
 294; Winn V. Albert, 2 Md. Ch. 42. 
 
 If an injunction is prayed for and the defendant 
 has appeared, a copy of the proposed bill is served 
 upon him with a notice of the motion, together with 
 copies of the affidavits or other proofs up wliich the 
 motion is based. 
 
 Eager v. Price, 2 Paige 333; Winn v. Albert, 2 Md. Ch. 42. 
 CROSS BILi.. 
 
 Formerl)- a defendant could not pray for any relief 
 in his answer, except to be dismissed the court with 
 Lis reasonable costs and cliarges, and therefore, if he 
 sought any relief, he must do so by a bill of his own, 
 fiJed in the same cause and designated a cross bill. 
 
 Morgan v. Tipton, 3 McLean 339; Cullom v. Erwin, 4 
 Ala. 452. 
 
 Under the practice in this state and in some other 
 states, the defendant can, in his answer, ask for affirma- 
 ative relief, thus in many instances doing away with 
 the necessity of a cross bill. It is still, however, de- 
 sirable, and in some cases necessary. It frequently 
 happens that a complete decree cannot be made under 
 the original bill, due to the fact that the conflicting 
 rights of the defendants are not put in issue, or that 
 some of the defendants are entitled to affiramative 
 
242 EQUITY PLEADING AND PRACTICE. 
 
 relief, and a cross bill or cross bills are necessary 
 to bring- the whole matter in dispute before the court. 
 In such a case it becomes necessary for one or more 
 of the defendants to file a bill against the complainant, 
 and if they are necessary parties, against one or more 
 of the defendants. 
 
 White V. Buloid, 2 Paige 164; Anglo-Egyptian Co. L. R., 
 I Ch. Ap. 108; Mich. Rule 11. 
 
 A cross bill is regarded as a defence and the original 
 and cross bills are considered together as constituting 
 one suit. 
 
 Field V. Schieffelin, 7 Johns. Ch. 249-252; Cartwright v. 
 Clark, 4 Mete. 104. 
 
 Formerly no person could be made a party to a 
 cross bill who was not a party to the original bill, but 
 now in many of the states new parties, when necessary, 
 may be thus brought in. 
 
 Blodgett V. Hobart, 18 Vt. 414; Brandon Mfg. Co. v. 
 Prime, 14 Blatch. 371; Kennedy v. Kennedy, 66 111. 190; Cobb 
 V. Baxter, i Tenn. Ch. 405. 
 
 As to the proper practice in this state under rule 11, 
 which permits the defendant to ask for affirmative re- 
 lief in his answer, see 
 
 McGuire v. Circuit Judge, 69 Mich. 593; Harkley v. 
 ■Mack, 60 Mich. 591 ; Coach v. Circuit Judge, 97 Mich. 564. 
 
 The proper time for filing a cross bill is at the time 
 
 the answer is put in. If it is not then filed and no 
 
EQUITY PI-EADING AND PKACTICE. 243 
 
 sufficient excuse is given for the delay, the proceedings 
 in the original suit will not be stayed. 
 
 White V. Buloid, 2 Paige 164; Josey v. Rogers, 13 Ga. 
 473; Irving V. DeKay, 10 Paige 319. 
 
 The cross bill should be confined to the matters 
 stated in the original bill and must not introduce new 
 and distinct matters not embraced therein. If it should 
 it would be an original bill as to such matters. It must 
 not contradict the allegations made by the defendant 
 in his answer to the bill, and it is proper, if not neces- 
 sary, that the answer should set out all the allegations 
 contained in the bill. 
 
 Harkley v. Mack, 60 Mich. 591 ; Irving v. DeKay, 10 Paige 
 319, 322; Hudson V. Hudson, 3 Rand. 117. 
 
 The original bill must be answered before the de- 
 fendant will be permitted to file a cross bill. 
 
 Ballard v. Kennedy, 34 Fla. 483. 
 
 After both causes are ready for a hearing either upon 
 the pleadings, or pleadings and proofs, either party 
 may obtain an order ex parte to have both causes heard 
 together. 
 
 White v. Buloid, 2 Paige 164; U. S. Rule 72; Mich. 
 Rule 20. 
 
 If the original bill is dismissed it does not carry with 
 it the cross bill if the cross bill sets up new facts and 
 prays for affirmative relief. 
 
 Ballard v. Kennedy, 34 Fla. 483. 
 
244 EQUITY PLEADl.XG AND PKACTICE. 
 
 LECTURE XX. 
 
 BILLS OF INTERPLEADER. 
 
 When a person is in possession of a specific chattel, 
 or a definite sum of money, which two or more per- 
 sons claim adversely to each other, but in the same 
 right, or privity of estate, he may exhibit a bill of in- 
 terpleader against such adverse claimants and thus 
 relieve himself from the liability incident to delivering 
 the article, or the money, to the wrong claimant, by 
 compelling them to litigate their adverse claims be- 
 tween each other. 
 
 Child V. Mann, L. R. 2 Eq. 805-806, 808; Bedell v. Hoff- 
 man, 2 Paige 199; Green v. Mumford, 4 R. I. 313; Farley v. 
 Blood, 30 N. H. 354; Horton v. Baptist Church, etc., 34 
 Vt. 309. 
 
 To entitle a party to file a bill of interpleader he 
 must be a mere stakeholder, having, himself, no in- 
 terest in the property in controversy, so that when the 
 court decrees an interpleader, he may step out of the 
 case altogether. 
 
 Lincoln v. R. & B. R. R. Co., 24 Vt. 639; Angell v. Had- 
 den, 15 Ves. 244; Bowditch v. Soltyk, 99 Mass. 136. 
 
 Strictly speaking, the complainant does not ask any 
 
 relief against either of the defendants, but simply the 
 
 aid of the court in determining to whom the property 
 
 of right belongs, l;hat he may dehver it to such rightful 
 
 ])erson and be relieved against the claims of the other. 
 
 Bedell v. Hoffman, 2 Paige 109; Badeau v. Rogers, 2 
 Paige 209; Lazin v. Van Saun, 2 Green Ch. 325. 
 
EQUITY PLEADING AND PEACTICE. 245 
 
 Tlie bill of interpleatler presents in the first instance 
 the right of the complainant to be relieved from litiga- 
 tion in accordance with the prayer of his bill that the 
 defendants may be required to interplead. If his right 
 to file the bill is put in issue, that issue must be first 
 disposed of. If it is decided in favor of the defend- 
 ants the bill is dismissed; if in his favoi, the defend- 
 ants are required to interplead. Then follows the sec- 
 ond issue, title to the subject matter of the litigation. 
 
 There must be privity of some sort between the 
 parties, such as privity of estate, title, or contract, and 
 the claims must be all of the same nature. If the ad- 
 verse claimants assert rights under adverse titles, and 
 have claims differing in their nature, the bill cannot 
 be maintained. Thus when two assessing districts 
 have assessed the same person for the same property 
 in each district, claiming to act under the statute, the 
 owner of the property may file a bill of interpleader 
 against the two corporations, or when a tenant owes 
 rent to his landlord, and two persons claim through 
 the same title to be such landlord, the tenant may file 
 a bill against both, but if in the latter case the claim 
 of one is based upon a title paramount to the other, as 
 when one claims under the original title, and the other 
 under a tax title, the bill cannot be maintained. 
 
 M. & H. R. R. Co. V. Clute, 4 Paige 384 , Thompson' v. 
 Ebbitts, Hopk. 272; Stanley v. Sidney, 14 M. & W. 800; 
 Story Eq. PI. § 239. 
 
 The claims of the several defendants must not only 
 be substantially the same in their nature, but this must 
 appear in the bill. The bill must also show that the 
 
246 EQUITY PLEADING AND PEACTICE. 
 
 defendants claim an interest in the whole subject- 
 matter of the suit and be so framed that the decree 
 may embrace the whole of it. 
 
 Hoggart V. Cutts, i Cr. & P. 197, 205; Crawford v. Fisher, 
 I Hare 436, 440. 
 
 In stating the plaintiff's interest, it must appear 
 affirmatively that he stands neutral as to the two de- 
 fendants. If he has bound himself to pay one in any 
 event, his bill will be dismissed. 
 
 Zouche V. Garrison, 140 Pa. St. 430; National L. Ins. 
 Co. V. Pingry, 141 Mass. 411; Atkinson v. Flannigan, 70 
 Mich. 639; Wakeman v. Kingsland, 46 N. J. Eq. 113. 
 
 If the matter in dispute is money in the hands of 
 the complainant he should offer in his bill to bring 
 it into court, to enable the court to direct that to be 
 done upon the application of either of the other parties. 
 
 Shaw V. Coster, 8 Paige 339. 
 
 As a general rule a sheriff, who has seized property 
 under an execution which is claimed by a party other 
 than the defendant named in the writ, cannot file a 
 bill of interpleader making such adverse claimants 
 parties. If, however, there are conflicting equitable 
 claims, or claims due to some event happening after 
 the levy, for instance the bankruptcy of the execution 
 defendant, he may file a bill. 
 
 Tufton V. Hardinge, 6 Jur. N. S. 116; Child v. Mann, L. 
 R. 3 Eq. 80s, 807. 
 
 There are conflicting claims sometimes to funds in 
 the sheriff's hands arising from the sale of property 
 
EQUITY PLEADING AND PRACTICE. 247 
 
 on several executions running against the same per- 
 son and in favor of divers persons. In such a case it 
 is held in Arkansas that the sheriff may file a bill of 
 interpleader. 
 
 Lawson v. Jordan, 19 Ark. 297. 
 But as a general rule this cannot be done: 
 
 Shaw V. Coster, 8 Paige 339; Parker v. Barker, 42 N. H. 
 78; Nash V. Smith, 6 Conn. 421. 
 
 In theorj- the bill is filed solely for the benefit of 
 the complainant to relieve him from vaxatious litiga- 
 tion and liability to pay the same amount twice. The 
 court will not permit the bill to be filed if there is 
 collusion between the complainant and one of the par- 
 ties. The complainant must file with the bill an affi- 
 davit that there is no collusion between him and either 
 of the parties; and if there are several complainants 
 they must all join in the affidavit. 
 
 Atkinson v. Monks, i Cow. 691; Farley v. Blood, 30 N. 
 H. 354, 361; Story Eq. PI. §§ 291, 297; Shaw v. Coster, 8 
 Paige 339. 
 
 In the bill of interpleader the complainant sets forth 
 lully the subject-matter of the controversy; that the 
 property is in his hands; that he has no interest in it; 
 that the defendants named claim the property and the 
 nature of their claim, but not their title. This part 
 of the bill must be drawn so as to show that the com- 
 plainant has a right to compel the defendants to in- 
 terplead. The complainant must also aver, that he is 
 ignorant, or in doubt, as to which of the parties are 
 entitled to the property. The bill prays that the de- 
 
248 EQUITY PLEADING AND PRACTICE. 
 
 fendants may interplead, so that the court may deter- 
 mine to whom the property belongs. It asually prays, 
 also, if the matter of controversy is a money demand, 
 that the complainant may pay the money into court. 
 If a suit at law has been commenced by either, or both 
 the defendants, or threatened by either or both, the 
 bill also' prays, that the defendants may be enjoined 
 from further proceedings against the complainant at 
 law. 
 
 Union Bank v. Kerr, 2 Md. Ch. 460; French v. Robechard, 
 50 Vt. 43. 
 
 BILLS TO PB'RPBTUATB TESTIMONY. 
 
 Any person, who would, under the allegations con- 
 tained in his bill, become entitled, upon the happening 
 of some future event, to an estate, or interest in any 
 property, real or personal, the right to which cannot 
 by him be legally investigated, by being brought to 
 trial before the happening of such event, may maintain 
 a bill to perpetuate the testimony material for estab- 
 lishing such estate, or interest. 
 
 Lord Dursley v. Fitzhardinge, 6 Ves. 251-259; Allen v. 
 Allen, 15 Ves. 129-135. 
 
 The interest which the complainant has, must be a 
 present interest and not a mere contingent interest 
 But if it is a present interest, it is wholly immaterial 
 how minute it may be, or how remote the possibility 
 may be, of the happening of the event upon which it 
 is to be enjoyed. 
 
 Lord Dursley v. Fitzhardinge, 6 Ves. 251-259; Allen v. 
 Allen, 15 Ves. 129-135. 
 
EQUITY PLEADING AND PRACTICE. 249 
 
 The bill must set forth the matter touching- wliich 
 the complainant desires to take testimt-.iy. It must 
 show that he has an actual and not a contingent in- 
 terest, and that the facts to which the proposed testi- 
 mony relates cannot be investigated immediately in 
 a court of law or equity, or that before the facts >:an 
 be adjudicated upon, the evidence of such witness, is 
 in danger of being lost by his death or departure from 
 the state. In the latter case the bill must be accom- 
 panied by affidavit setting forth the danger of the loss 
 of such testimony. 
 
 Philip V. Carew, i P. Wms. Ii6, 117. 
 
 It would seem that the bill is demurrable unless it 
 shows that the complainant's interest is actual, and 
 not capable of being barred by the defendant; that 
 the interest cannot be investigated immediately, and 
 that the defendant has- an interest to contest the com- 
 plainant's claim. 
 
 Allen V. Allen, 15 Ves. 129, 13S; Larkins v. Ayleworth, 
 I Vern. lOS; Dursley v. Fitzhardinge, 6 Ves. 262; EUice v. 
 lipupelle, 32 Beav. 308. 
 
 The defence to a bill to perpetuate testimony is by 
 ■demurrer, plea or answer, as in other cases. The 
 <:ause, however, is never brought to a hearing. After 
 the cause is at issue upon the merits a commission 
 issues for the examination of witnesses. 
 
 Vaughan v. Fitzgerald, i Sch. & Lef. 316. 
 
 At common law the court would not permit the 
 testimony to be published except in support of a suit 
 
250 EQUITY PLEADING AND PEACTICE. 
 
 or action, and not then, unless the witness, whose 
 testimony had been taken, was dead, or sick, or so 
 aged, or infirm, that he could not be examined in the 
 cause. 
 
 Morrison v. Arnold, 19 Ves. 669; Jackson v. Rice, 3 
 Wend. 180; Jackson v. Perkins, 2 Wend. 308. 
 
 To obtain the order of publication, a notice of the 
 motion must be served, which must be supported by 
 an affidavit, that the testimony is necessary to be made 
 use of in the complainant's behalf, that the witnesses 
 are dead or so sick, aged or infirm, that they cannot 
 travel to give evidence in the cause, or that they are 
 out of the state. Upon such a showing the order of 
 publication will be made. If a portion only of the testi- 
 mony taken is used, the order will designate what 
 testimony is to be published. 
 
 Bills to perpetuate testimony are seldom resorted 
 to at the present time, the statute in many of the states 
 having provided a cheaper and more expeditious 
 method of accomplishing the same purpose. 
 
EQUITY PLEADING AND PRACTICE. 25] ' 
 
 LECTURE XXI, 
 
 BILL TO EXAMINE WITNESSES DE BENE ESSE. 
 
 This species of bills bear a close analog^y to bills - 
 to perpetuate testimoii}-. But the two differ widely, 
 standing upon distinct considerations. A bill to per- 
 petuate testimony cannot be maintained except in 
 cases where no suit can then be commenced in which- 
 the desired testimony can be taken. Bills to take testi- 
 mony dc bene esse are on the other hand sustained in- 
 aid of a suit already pending. 
 
 Story Eq. PI. § 250; Angell v. Angell, i S. & S. 83. 
 
 The object of the bill is to take the testimony of 
 witnesses to be used in a pending action at law in 
 case where delay may result in the loss of such testi- 
 mony, and the bill may be filed by the plaintiff or 
 defendant in sncli suit at law. 
 
 When a suit at law can be commenced immed'acdy, 
 the suit must be actually commenced before the bill is^ 
 filed. If such suit cannot be commenced, then a bill 
 to perpetuate testimony must be filed. 
 
 Angell V. Angell, i Sim. & Stu. 83-93. 
 
 To entitle a party to maintain this bill he must aver: 
 
 1. That there is a suit pending, and the exact na- 
 ture of the controversy in which the testimony of the 
 witnesses named will be material. 
 
 2. That the suit is in such a condition that the de- 
 positions of such witnesses cannot be taken in the- 
 
-252 EQl.ITY PLEADING AND PKACTIOB. 
 
 ordinary methods prescribed by law, and that the aid 
 ■of the court of equity is necessary to obtain their testi- 
 mony. 
 
 3. The facts which the plaintifif expects to establish 
 by the testimony of the witnesses sought to be ex- 
 amined, that the court may see that they are material 
 to the controversy. 
 
 4. The necessity for taking the testimony, and the 
 •danger that it may be lost by delay. 
 
 Richter v. Jerome, 25 Fed. R. 679. 
 
 The danger of the loss of a witness's testimony 
 may arise from the age of the witness or his state of 
 health, or from the fact that he is the only witness 
 by whom a given fact tan be proved. In this later 
 -case the court, in view of the uncertainty of life, v/ill 
 -admit the testimony of such a witness to be taken al- 
 though he is neither sick, infirm or aged. 
 
 Shirley v. Earl of Fenns, i P. Wms. 97; Pearson v. Ward, 
 2 Dick. 648. 
 
 As a general rule a witness is not treated as being 
 aged unless he is seventy years of age. 
 
 Fitzhugh V. Lee, Amb. 65. ^ 
 
 But if a witness is infirm, or in ill-health to an ex- 
 tent to endanger life, or to prevent his attendance at 
 the trial, the court will permit his testimony to be 
 -taken, no matter what his age may be. 
 
 Phillips V. Carew, I P. Wms. 117. 
 
 If a witness is going out of the jurisdiction of the 
 • court his testimony also may be taken. At common 
 
EQUITY PLEADING AND PRACTICE. 263 
 
 law this was the case, although the witness was going 
 from one division of the kingdom to another, as from- 
 England to Scotland. 
 
 Botts V. Verelst, 2 Dick. 454. 
 
 In framing a bill to examine witnesses de bene esse^ 
 care must be taken to allege all the material facts upon 
 which the right to maintain the bill can be maintained, 
 that is, that the witness whose testimony you desire 
 to take is aged, infirm, about to leave the jurisdiction 
 of the court, or is the only witness by whom you can 
 prove a material fact, as the case may be. The bill 
 should be supported also by an affidavit showing the 
 circumstances by which the evidence intended to be 
 taken may be otherwise lost. 
 
 Angell V. Angell, i S. & S. 83, 91; Phillips v. Carew, I 
 P. Wms. 117; Story Eq. PI. § 257. 
 
 The affidavit must be positive as to die material 
 facts, and not rest upon belief merely. Thus where a 
 bill was filed to take the testimony of a witness alleged 
 to be the only witness, and the affidavit alleged that 
 he was the only witness in the belief of the party, it 
 was held insufficient and that the affidavit should have 
 stated positively that he was the only witness who- 
 knew the fact. 
 
 Rowe V. ■ . 13 Ves. 260. 
 
 Testimony taken de bene esse is only valid in the 
 cause in which it is taken, and against those who are 
 parties to such cause. In other respects the rules ap- 
 
254 EQUITY PLEADING AND PRACTICE. 
 
 plicable to bills to perpetuate testimony apply to these 
 bills. 
 
 Bills de bene esse are very seldom resorted to at the 
 present day. The statutes of the several states pro- 
 vide much more simple and direct methods for taking 
 the testimony of witnesses under those circimistances, 
 which would permit a bill to be filed in equity at 
 common law. But occasionally a case is found which 
 does not fall within the provisions of any statute. 
 
 Richter v. Jerome, 25 Fed. R. 679. 
 
 There are several other bills which we do not notice 
 for the reason that their form depends largely upon 
 local statutes; for instance, bills of divorce, bills filed 
 by judgment creditors against their debtors, bills for 
 the partition of land, bills for the foreclosure of mort- 
 gages, etc., etc. 
 
 Having now gone over the various steps taken in 
 the progress of a suit in equity we will close this short 
 synopsis of equity pleading and practice with Lord 
 Redesdale analysis of the different kinds of bills. He 
 says: "The several kinds of bills have been usually 
 considered as capable of being arranged under the gen- 
 eral heads: 
 
 I. Original bills, which relate to some matters not 
 before litigated in the court by the same parties stand- 
 ing the same interests. H. Bills not original which 
 are either an addition to, or a continuance of, an orig- 
 inal bill, or both, in. Bills which, though occasioned 
 by or seeking the benefit of a former bill, or of a de- 
 cision made upon it, or attempting to obtain a reversal 
 
EliUITY PLEADING AND PRACTICE. 255 
 
 of a decision, are not considered as a continuance of a 
 former bill, but in the nature of original bills. And 
 though this arrangement is not perhaps the most per- 
 fect, yet, as it is nearly just, and has been very gen- 
 erally adopted in argument, and in the books of re- 
 ports of practice, it will be convenient to treat the 
 •different kinds of bills with reference to it. 
 
 I. A bill may pray relief against an injury suffered, 
 or only seek the assistance of the court co enable the 
 defendant to defend himself against a pjssible future 
 injury, or to support or defend a suit in a court of or- 
 dinary jurisdiction. Original bills have^ therefore, 
 been again divided into bills praying relief, and bills 
 not praying relief. An original bill praying relief 
 may be: i. A bill praying the order or decree of the 
 court touching some right claimed by the person ex- 
 hibiting the bill, in opposition to some right claimed 
 by the person against whom the bill is exhibited. 2. A 
 bill of interpleader, when 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 decree of the court touching the rights of 
 those persons for the safety of the persons exhibiting 
 the bill. 3. A bill praying the writ of certiorari to re- 
 move a cause from an inferior court of equity. An 
 original bill not praying relief may be: i. A bill to 
 perpetuate the testimony of witnesses. 2. A bill for 
 the discovery of facts resting within the knowledge of 
 the person against whom the bill is exhibited, or of 
 deeds, writings, of other things in his custody cr 
 power. 
 
256 EQUITY PLEADING AND PkACTICE. 
 
 II. A suit imperfect in its frame, or which becomes 
 so by accident, before its end has been obtained, may, 
 in some cases, be rendered perfect by a new bill, which 
 is not considered an original bill, but merely as an 
 addition to or continuance of the former bill, or both, 
 A bill of this kind may be: i. A supplemental bill, 
 which is merely an addition to the original bill. 2. A 
 bill of revivor, which is a continuance of the original 
 bill, when by death or otherwise some party to it has 
 become incapable of prosecuting or defending the suit. 
 3. A bill both of revivor and supplement, which con- 
 tinues a suit upon an abatement and supplies defects 
 which have arisen from some event subsequent to the 
 commencement of the suit. 
 
 III. Bills for the purpose of cross litigation of mat- 
 ters already depending before the court, of controvert- 
 ing, suspending, avoiding or carrying into execution 
 a judgment of the court, or obtaining the benefit of a 
 suit, which the plaintiff is not entitled to add to or 
 continue for the purpose of supplying any defects in 
 it, have been generally considered under the head of 
 bills in the nature of original bills, though occasioned 
 by, or seeking the benefit of former bills, and may be : 
 I. A cross bill, exhibited by the defendant in a former 
 bill, against the plaintiff in the same bill, touching 
 some matter in litigation in the first bill. 2. A bill of 
 review to examine and revise a decree made upon a 
 former bill, and signed by the judge or chancellor, and 
 enrolled, whereby it has become a record of the court. 
 3. A bill in the nature of a bill of review, brought by 
 a person not bound by the former decree. 4. A bill 
 
EQUITY PLEADING AND PKACTIOE. 257 
 
 to impeach a decree on the ground of fraud. 5. A 
 bill to suspend the operation of a decree on special 
 circumstances, or to avoid it on the ground of matter 
 arisen subsequent to it. 6. A bill to carry a decree 
 made in a former suit into execution. 7. A bill in the 
 nature of a bill of revivor, to obtain the benefit of a 
 suit after abatement in certain cases which do not 
 admit of the continuance of the original bill. 8. A 
 bill in the nature of a supplemental bill, to obtain the 
 benefit of a suit, either after abatement in cases which 
 do not admit of a continuance of the original bill, or 
 after the suit has become defective without abatement, 
 in cases which do not admit of a supplemental bill to 
 supply that defect." 
 
 It must be born in mind that this classification of 
 bills is principally valuable in giving one a compre- 
 hensive and intelligent view of the entire field of equity 
 pleading and practice. If in any given case the facts 
 entitle the plaintiff to relief, and the pleader has drawn 
 liis bill with due formality and clearly sets forth sucl'. 
 facts, he will be entitled to relief although he may hav* 
 misnamed his bill. 
 
 Dayton v. Dayton, 68 Mich. 437; Ridgely v. Bond; 18 Md 
 433; Arnold v. Moyers, i Lea (Tenn.) 315; Carneal v. Wil- 
 son, 3 Litt. (Ky.) 90; Northman vs. Ins. Co., 1 Tenn. Chy. 312., 
 
CIRCUIT COURT RULES. 
 
 ORIGINAl, WRITS. 
 
 RULE I. (a) Original writs may be issued in va- 
 cation or in term time, and (except as otherwise pro- 
 vided by statute) may be made returnable at any time 
 (except Sunday) not exceeding three months from 
 date when issued; and original writs lor the com- 
 mencement of suit shall notify the defendant to appear 
 in person or by attorney within fifteen days after 
 service of the writ upon him, to answer to the suit of 
 the plaintiff according to the rules and practice of 
 the court, with such additional command as shall be 
 appropriate to the action of replevin and to actions 
 commenced by attachment or capias ad responden- 
 dum ; and such writ shall be served by the sheriff, who 
 shall make his return thereon immediately after ser- 
 vice, or in case of no service, then immediately after 
 the return day mentioned in the summons. If there 
 be more than one defendant, the return of service 
 shall, at the request of the plaintiff, be made imme- 
 diately after service on each defendant; and in such 
 case the return of service may be endorsed upon or 
 attached to a copy of the writ, and the original re- 
 tained until the return day for service on the other 
 defendants. 
 
 ,{b) On the filing of a sheriff's return, within thirty 
 
CIRCUIT COURT RULES. 259 
 
 days after the return day of the writ, that he has 
 failed to serve or execute any writ, a further writ, 
 to be designated as an aHas or a pluries, as the case 
 may be, may be issued at any time within ten days 
 after the filing of such return. 
 
 (c) The following form of writ, or one substan- 
 tially like it, shall be used in actions not requiring the 
 seizure of property or the arrest of the defendant: 
 STATE OF MICHIGAN, 
 The Circuit Court for the County of 
 
 In the Name of the People of the State of Michigan. 
 To 
 
 You are hereby notified that a suit has been com- 
 menced against you in the Circuit Court for the 
 
 County of by , 
 
 as plaintiff, and that if you desire to defend the same, 
 you are required to have your appearance filed or 
 entered in the cause, in accordance with the rules and 
 practice of the court, in person or by attorney, within 
 fifteen days after service of this summons upon you. 
 Hereof fail not, under penalty of having judgment 
 taken against you by default. The plaintiff claims 
 
 damages in said suit not exceeding 
 
 dollars. Service of this summons shall be made on 
 
 or before the day of , 
 
 189. ., which is the return day thereof. 
 
 Witness, Hon , Circuit 
 
 Judge, and the seal of said court, at the 
 
 of , the place of holding said court, 
 
 this day of , 189 . . . 
 
 , Clerk. ; 
 
 , Plaintiff's Attorney. 
 
 Business address 
 
260 CIECUIT COUKT RULES. 
 
 (d) In actions of replevin, there shall be added to 
 the foregoing form, before the testing clause, a clause 
 substantially as follows: 
 
 "To the Sheriff of said County: 
 
 We command you that you do forthwith, and on 
 or before the return day above mentioned, take into 
 your custody the following goods and chattels, to wit: 
 (describing the goods and chattels to be replevied), 
 and deliver the same to said plaintifif, if he shall give 
 you security as required by law to prosecute to effect 
 this writ against said defendant, and to return the 
 aforesaid goods and chattels, if return thereof shall 
 be adjudged, and to pay all such sums of money as 
 may be recovered against him hereupon; and also 
 that you summon the said defendant to appear before 
 said court, as above set forth, to answer to said plain- 
 tiff concerning the unlawful detention of said goods 
 and chattels." 
 
 (e) In attachment suits there shall be added a 
 clause substantially as follows: 
 
 "To the Sheriff of said County: 
 
 We command you that you do forthwith, and on 
 or before the return day above mentioned, attach so 
 much of the lands, tenements, goods, chattels, moneys 
 
 and effects of the said defendant, , 
 
 not exempt from execution, wheresoever the same 
 may be found within said County, as will be sufficient 
 to satisfy the demand of said plaintiff, and that you 
 make an inventory thereof, and safely keep said pro- 
 perty to satisfy any judgment that may be recovered 
 by said plaintiff, and that you serve a copy of this writ. 
 
CIRCUIT COURT RULES. 261 
 
 and a copy of such inventory certified by you, upon 
 the said defendant if he can be found in said County. 
 And in case you shall seize any property of said 
 defendant in said County, but not sufficient to satisfy 
 the demand of said plaintiff, and costs, then you are 
 hereby further commanded to seize other property of 
 said defendant, subject to attachment, sufficient with 
 that seized within said County, to satisfy said demand 
 and costs, wherever the same may be found within the 
 State, and to serve a copy of this writ and a certified 
 copy of your inventory upon said defendant, if found 
 within either county where property has been seized 
 iinder this writ." 
 
 (f) In actions commenced by capias ad responden- 
 dum, there shall be added a clause substantially as 
 follows : 
 ''To the Sheriff of said County; 
 
 You are hereby commanded to take said defendant, 
 if he may be found in your baliiwick, and keep him in 
 your custody until he shall be discharged according 
 to law." 
 
 PROCEEDINGS IN SUITS COMMENCED BY ORIGINAL 
 WRIT. 
 
 RULE 2. (a) In suits commenced by original writ 
 (except as otherwise specially provided by statute) the 
 plaintiff shall file his declaration within fifteen days 
 after the issue of the writ. 
 
 (b) The defendant shall serve notice of his appear- 
 ance or of retainer, and file a copy thereof with the 
 clerk, within fifteen days after service of the writ upon 
 
262 CIRCUIT COURT RULES. 
 
 him, and the business address of the defendant's at- 
 torney shall appear upon the notice. 
 
 (c) The plaintifif shall serve a copy of the declara- 
 tion upon the defendant's attorney within fifteen days 
 after receiving notice of appearance or of retainer. 
 
 (d) The defendant shall file his plea or demurrer, 
 and serve a copy thereof upon the plaintiff's attorney 
 within fifteen days after service of a copy of the declar- 
 ation; and this shall apply to a plea in abatement. 
 
 (e) All subsequent pleadings, when admissible, 
 shall be respectively filed and copies served on the 
 opposite party withiii fifteen days of each other. 
 
 FORMS OP DECLARATIONS AND AFFIDAVITS. 
 
 RULE 3. (a) The forms of declarations adopted 
 under the new EngHsh rules prior to 1840, so far as 
 they are not inconsistent with either the statutes or 
 the peculiar organization of the Circuit Courts, may 
 be used, or the same may be drawn according to the 
 forms heretofore in use. The business address of the 
 plaintiff's attorney, in suits begun by declaration, 
 shall appear upon the declaration. 
 
 (b) The statement of losing and finding in a de- 
 claration in trover may be omitted. 
 
 (c) In declaring upon a policy of insurance, it 
 shall not be necessary to set forth specifically any more 
 than the date and amount of the policy, the premium 
 paid or to be paid, the property or risk insured, and 
 the loss; and upon the trial, proofs may be made up 
 in the same way as if the declaration had set forth the 
 policy in full. 
 
CIRCUIT COURT RULEa 263 
 
 (d) In actions brought by corporations, foreign or 
 domestic, the plaintiff may file with the declaration 
 an affidavit stating that the plaintiff is a corporation 
 under the laws of some state, territory or country, to 
 be specified, and that the contract in question was 
 made, or the cause of action sued on accrued to it 
 as such corporation. If a copy of such affidavit is 
 served with the declaration, such affidavit shall be 
 prima facie evidence of such incorporation unless the 
 defendant shall file with the plea an affidavit denying 
 such incorporation. 
 
 BILL OF PARTICULARS. 
 
 RULE 4. (a) In cases in which the defendant is 
 entitled to demand a bill of particulars, the plaintiff 
 shall serve and file a copy of such bill, unless it has 
 been already furnished, on being served with a notice 
 demanding the same; and if such bill be demanded 
 before the expiration of the time for filing plea or de- 
 murrer, the defendant shall have like time to plead 
 or demur after receiving the bill of particulars, to 
 which he was entitled at the time of serving such 
 notice. 
 
 (b) If the plaintiff shall unreasonably neglect to 
 furnish a bill of particulars, or if the bill of particulars 
 delivered be insufficient, the court may in its discre- 
 tion non-suit the plaintiff, allow further time to fur- 
 nish it, or require a more particular bill to be de- 
 livered. 
 
 (c) In cases where it is competent for the plaintiff 
 to call upon the defendant for a bill of the particulars 
 
264 
 
 CIRCUIT COUET RULES. 
 
 of lits set-off, the defendant shall file and serve a copy 
 of such bill, unless already furnished, on the written 
 request of the plaintiff's attorney; and in case it be not 
 furnished within thirty days after such request, the 
 court may exclude all testimony concemingf it. If 
 the bill of particulars of set-off furnished by the de- 
 fendant is insufficient, the defendant, on motion, shall 
 be required to furnish a more specific bill of particu- 
 lars. 
 
 DEMURRERS. 
 
 RULE 5. (a) The form of a demurrer may be as 
 follows: "The defendant says that the declaration of 
 the plaintiff is not sufficient in law," adding briefly but 
 plainly the special reasons in matters of substance as 
 well as form. 
 
 (b) If any pleading shall be adjudged bad for any 
 cause which is not plainly specified in the demurrer, 
 the party pleading shall be permitted to amend with- 
 out costs. 
 
 (c) To every demurrer there shall be added the in- 
 dividual certificate of counsel having principal charge 
 of the cause in behalf of the party filing- the demurrer, 
 to the effect that the demurrer is not interposed for 
 delay and that in his opinion it is well founded. And 
 a demurrer not accompanied with such a certificate 
 shall be stricken from the files on motion, unless the 
 court shall deem it proper to allow the certificate to 
 be added. 
 
 (d) A joinder in demurrer shall not be necessary, 
 and on the filing of a demurrer the cause may be no- 
 ticed for trial on the issue of law, by either party. 
 
CIRCUIT COURT RULES. 265 
 
 PLEAS IX ABATEMENT AND PROCEEDINGS THEREON. 
 
 RULE 6. (a) Whenever the defendant interposes 
 a plea in abatement, he may also, at ttie same time, 
 plead the general issue; and in such case, if an issue 
 of fact be made on the plea in abatement, such issue 
 shall stand for trial first; and if it be found against 
 tlie defendant, the trial shall at once proceed on the 
 issue on the merits, unless the court, on cause shown, 
 shall allow a postponement. And if the issue on the 
 plea in abatement is tried by jury, the issue on the 
 merits, except when postponement is ordered, shall 
 stand for trial before the same jury. When the issue 
 in abatement shall be found for the defendant, the 
 court may, in its discretion, allow the plaintiff to 
 amend the declaration, and the cause shall thereupon 
 proceed on such terms as the court shall prescribe. 
 
 (b) The court will not entertain a motion to set 
 aside the proceedings in a cause on the ground of 
 misnomer of the party arrested, but will leave him to 
 his remedy by a plea in abatement. 
 
 (c) When the defendant in any action founded on 
 contract shall plead in abatement the non-joinder of 
 any other person as defendant, the court in term time, 
 or the judge in vacation, may, at any time, allow the 
 plaintiff, on such terms as the court Oi judge shall 
 prescribe, to amend his declaration by inserting 
 therein the name of any other person as defendant, 
 and declaring against him jointly with the original 
 defendant. 
 
 (d) The plaintiff may thereupon take out a writ, 
 in such form as the court or judge shall prescribe, 
 
266 GIECUIT COURT EULES. 
 
 which shall be in the nature of a summons, and shall 
 require the new defendant to appear and answer as- 
 defendant in the original action; and such writ shall 
 be served as in other cases. 
 
 Upon the return of such writ, every person named 
 therein as defendant shall be bound to appear and 
 answer with the other defendants, in the same manner' 
 as if they had all been originally rhade parties. 
 
 (e) If a legal service can not be made on any such 
 new defendant, by reason of his absence from the 
 state, or other sufficient cause, the action may never- 
 theless proceed against all the defendants who are 
 duly served, in Hke manner as provided by law when 
 one of several defendants is not duly served with pro- 
 css. 
 
 (f) Judgment shall be rendered and execution shall 
 issue in every such case, for either party, in the same 
 manner as if the suit had been originally commenced 
 against all the defendants. 
 
 GENERAL ISSUE— SPECIAL DEFENSES. 
 
 RULE 7. (a) The general issue may be as fol- 
 lows : ''The defendant comes and demands a trial of 
 the matters set forth in the plaintifif's declaration." 
 The business address of the defendant's attorney shall 
 appear upon the plea, unless previously given in a 
 notice of retainer. 
 
 (b) An affirmative defense, such as payment, re- 
 lease, satisfaction, discharge, license, fraud, or failure 
 of consideration, in whole or in part, and any defense 
 which by other afifirrnative matter seeks to avoid the 
 
CIRCUIT COURT RULES. 26T 
 
 legal effect of or defeat the cause of action set forth 
 in the plaintiff's declaration, must be plainly set forth 
 in a notice added to the defendant's plea. The sig- 
 nature of the defendant's attorney following such a 
 notice shall be a sufficient signing of both the plea and 
 the notice. 
 
 (c) Whenever it shall be claimed in defense that 
 any written instrument set forth in the plaintiff's de- 
 claration is void or voidable, or cannot be recovered' 
 upon by reason of any statute or by reason of non- 
 deliver}', failure of consideration, fraud, payment, dis- 
 charge, or release, the facts upon which such defense- 
 is based shall be plainly set forth in a notice added 
 to the defendant's plea. 
 
 (d) In a suit upon a policy of insurance, if the 
 defendant shall rely, in whole or in part, upon any 
 breach of any of the conditions, agreements, represen- 
 tations or warranties of the policy or application there- 
 for, or upon the failure to perform or make good any 
 prmise, representation or warranty, or upon the fail- 
 ure to furnish any proof of loss, as required by the- 
 policy, there shall be added to the plea a notice plainly 
 indicating the facts relied on. 
 
 (e) Any statement of facts set forth in a notice 
 added to a plea shall be treated as an admission by 
 the defendant and need not be proved by the plaintiff.. 
 
 EXECUTION OF WRITTEN INSTRUMENT ADMITTED IF 
 NOT DENIED ON OATH. 
 
 RULE 8. upon the plea of the general issue 
 in an action upon any written instrument, under seaJ 
 or without seal, the plaintiff shall not be put to the- 
 
"268 CIRCUIT COURT RULES. 
 
 .proof of the execution of the instrument or the hand- 
 writing of the defendant, unless the defendant or some 
 one in his behalf shall file and serve a copy of an affi- 
 ■davit denying the same, and this rule shall apply in 
 actions brought against endorsers as well as other 
 parties, and shall also apply in favor of a defendant 
 in cases where claims by way of set-off are insisted 
 upon by him. Such affidavit shall be filed, when by 
 the defendant, with the plea, and when by the plaintiff, 
 within ten days after service of the specific set-off 
 claimed; but the court may, upon proper showing, 
 enlarge the time for filing such affidavit. 
 
 PLEADING FACTS ARISING SUBSEQUENT TO JOINING 
 ISSUE. 
 
 RULE 9. When matter shall arise subsequent to 
 the joining of issue, which the defendant shall desire 
 to rely upon as a defense, he shall be at liberty to give 
 notice thereof as a special defense under the plea of 
 -the general issue, and the filing of such notice shall 
 not be deemed a waiver of other defenses. The no- 
 tice shall be served under the rules for the service of 
 pleas, and no replication thereto shall be necessary. 
 The notice shall be interposed under the practice here- 
 tofore regulating the filing of pleas puis darrein con- 
 Jinuance, and if the filing is after the case is noticed for 
 trial, or during a term of court when the .case is on the 
 docket for trial, the plaintiff shall not be compelled to 
 proceed to trial at that term, and costs on continuance 
 ^shall be in the discretion of the court. 
 
CIRCUIT COURT RULES. 269 
 
 AMENDMENTS OF DECLARATIONS, PLEAS AND DEMUR- 
 RERS. 
 
 RULE lo. (a) The plaintiff may, at any time 
 before plea or demurrer, or within ten days after plea 
 or demurrer, amend his declaration in matter of sub- 
 stance or form, of course, and without costs, unless 
 the cause shall have previously been noticed for trial,., 
 in which case special leave of court shall first be ob- 
 tained. If such amendment is made after plea or 
 demurrer, such plea or demurrer shall stand as the- 
 plea or demurrer to the amended declaration, unless 
 the defendant shall, within ten days after receiving; 
 such amendment, file another plea or demurrer. 
 
 (b) The defendant may, within ten days after plea 
 or demurrer, amend the same, in matter of substance- 
 or form, of course, and without costs, unless the cause 
 shall have been previously noticed for trial, in which 
 cfse special leave of court shall first be obtained. 
 
 (c) Under this rule, new counts, pleas or notices- 
 may be added. 
 
 (d) Xo rule to amend shall be required, but a copy 
 of the amended pleading or notice, endorsed 'amend- 
 ed declaration,'' "plea," "notice," etc., as the case may 
 be, shall be filed and served with a notice th.it the- 
 same is a copy of the pleading or notice as amended. 
 
 COilMON AND SPECIAL ORDERS AND RULES. 
 
 RULE II. (a) Every rule to which a party- 
 would, according to the practice of the court, be enti- 
 tled of course, without showing special cause, shall' 
 be denominated a common rule; and every other rule 
 shall bedenominated a common rule; and every other 
 rule shall be denominated a special rule. All common 
 
"270 CIRCUIT COUBT RULES. 
 
 rules and all rules by consent of parties, shall be entered 
 with the clerk at his office, in a book to be provided 
 by him for that purpose, to be called "common rule 
 book," and may be entered at any time, as well in va- 
 cation as during term; and the day when the rule shall 
 be entered shall be noted therein, and the party may 
 •enter such rule as he may conceive himself entitled to 
 of course, but it his peril. 
 
 (b) Except as required by statute, such rules may 
 be filed with the clerk with the like effect as if entered 
 as above provided. 
 
 (c) All orders, made by the direction of the court, 
 -and all orders made by the judge at chambers, shall be 
 
 entered in the record of the proceedings of the court, 
 ■shall be signed by the judge, and filed in the cause. 
 
 DEFAULTS AND PROCEEDINGS THEREON. 
 
 RULE 12. (a) If either party shall make default 
 in filing or serving any pleading or notice within the 
 time limited by rule or statute, the opposite party may 
 have the default entered in the common rule book, or 
 filed, in vacation or in term time. 
 
 (b) The default of either party being duly filed or 
 •entered the other party shall not be bound afterwards 
 to accept the pleading or proceeding which was in de- 
 fault until such default shall be set aside by the court. 
 The party desiring to have a default set aside shall as 
 soon as practicable after he shall know or have reason 
 to believe that the default has been filed or entered, 
 file and serve an affidavit of merits, and make applica- 
 tion to the court to have the default set aside; and the 
 
CIRCUIT COURT RULES. 2T1 
 
 application therefor may be granted or refused '.n the 
 discretion of the court. But in cases where p.-rsonal 
 service shall have been made upon a defendant, and 
 proceedings taken after default on the strength there- 
 of, his default shall not be set aside unless the applica- 
 tion shall be made within six months after sur'^ =!er- 
 vice. And in any '~ase where personal ■service shall 
 have been made upon a defendant, an order setting 
 aside his default shall be conditioned upon his pay- 
 ment to the plaintiff of the taxable costs incurred in 
 reliance on said default, and the court may impose 
 such, other conditions as shall be deemed proper. 
 
 (c) Hereafter a further order making a default 
 absolute shall not be necessary, but judgment shall 
 not be entered on a default until at least one day in 
 term has passed after such default. 
 
 (d) If such default be taken by plaintiff for want 
 of plea, he may, in cases where it is competent, make 
 reference to the clerk to assess the damages; and in 
 other cases the order shall direct that the assessment 
 be made by the court or by a jury. 
 
 (e) When a plea is withdrawn the case shall stand 
 as on default, and damages may be assessed at any 
 time thereafter. 
 
 NOTICES OF TRIAL. 
 
 RULE 13. (a) Either party to a cause may give 
 notice of trial for the next term of court. 
 
 (b) Any party giving notice of trial may counter- 
 mand such notice at any time before the first day of 
 term, and in such case he shall be liable for all taxable 
 costs to which the opposite party has been put in pre- 
 
272 
 
 CIRCUIT COURT RULES. 
 
 paring. for trial after receiving such notice, unless the 
 cause has been noticed by both parties; and if such 
 costs shall be taxed and payment thereof demanded 
 within six days after such countermand, payment may 
 be compelled at once by attachment, or "n default of 
 payment the case may be placed on the calendar for 
 trial. 
 
 (c) Any party who- shall have noticed a cause for 
 trial and not countermanded such notice, may be com- 
 pelled to proceed to the trial thereof at the term for 
 which the same was noticed, unless the same is con- 
 tinued on cause shown, and there is a compliance with 
 such terms as the court may impose. 
 
 NOTICES OF INQUEST AND PROCEEDINGS THEREON. 
 
 Rule 14. (a) The plaintiff in any action on money 
 bonds, promissory notes, or bills of exchange, at issue 
 as well as at default, may have the same called out of 
 its order on the calendar, and an inquest taken and 
 judgment rendered thereon on any day of the term 
 after the first, in all cases where parties are sued in 
 their individual capacity, unless the defendant or his 
 attorney shall, before the first day of the term, have 
 filed an affidavit of merits, and served a copy thereof 
 on plaintiff's attorney: Provided, the intention of the 
 plaintiff to take an inquest under the rule be expressed 
 in the notice of trial. 
 
 (b) The plaintiff in any action on an open account 
 may have the same called out of its order on the cal- 
 endar and judgment rendered thereon on any dpy of 
 the term after the first, unless the defendant or his at- 
 
CIRCUIT COURT RULES. 273 
 
 toraey shall, before the first day of the term, have filed 
 an affidavit of merits and served a copy thereof on plain- 
 tiffs attorney. Provided, the intention of the plaintiff to 
 take such course under the rule be expressed in the 
 notice of trial, and the same be accompanied by the 
 affidavit of the plaintiff, his agent or attorney, show- 
 ing the amount of the indebtedness over and above 
 all legal set-offs, and that he has good reason to believe 
 and does believe that the defendant has no defense to 
 the plaintiffs action, and that he believes the plea is 
 interposed for the sole purpose of delay. And pro- 
 vided further, that a bill of particulars of the plaintiff's 
 demand, containing the debit and credit items of the 
 account, accompany the notice of trial and inquest, 
 unless the same shall have been previously filed and 
 served. 
 
 AFFIDAVIT OF MERITS. 
 
 RULE 15. An affidavit of merits shall be made 
 by the defendant, his agent or attorney, having 
 personal knowledge of the facts, and shall set forth 
 that the defendant has a good and substantial defense 
 to the plaintiff's action (or to a portion thereof) upon 
 the merits as the deponent verily believes, and it shall 
 appear in the affidavit that the facts pertaining to the 
 action have been fully and fairly stated to the defend- 
 ant's counsel, naming him, and that the defendant 
 upon such statement has been advised by such counsel 
 that he has a defense to the action (or to some portion 
 thereof) upon the merits. 
 
274 CIRCUIT COURT RULES. 
 
 NOTICE OF ISSUE. 
 
 RULE 1 6. (a) The party noticing a cause for trial 
 shall, at least twelve days before the first day of the 
 term, file with the clerk a note of issue, giving the title 
 of the cause, the names of the attorneys, the date of 
 joining issue, or of filing appeal, and the cause of 
 action. If a jury has previously been demanded the 
 same shall also appear in the note of issue. Provided, 
 that, in the court's discretion, for cause shown, the 
 court may, not later than the first day of the term, 
 add to the term calendar a cause which has been regu- 
 larly noticed for trial, although a note of issue was not 
 filed; and in appeal cases the note of issue shall be filed 
 eight days before the first day of the term. 
 
 (b) The prosecuting attorney shall, at least four 
 days before the first day of term, deliver to the clerk a 
 list of all such criminal cases as he intends to bring on 
 to trial, or in which any action of the court may be 
 required. 
 
 DEMAND FOR JURY. 
 
 RULE 17. A party desirous of a trial by jury shall 
 make his demand for a jury in writing, and file such 
 demand with the clerk at least eight days before the 
 first day of the term for which the cause is noticed for 
 trial, otherwise he shall be deemed to have waived his 
 right to a jury. Provided, however, that the court 
 may, in its discretion, for cause shown, transfer a 
 cause to the jury calendar, although the demand for a 
 jury was not filed as herein provided. And provided 
 further, that only one demand for jury shall be neces- 
 sary in any one case. 
 
CIRCUIT COURT RULES. 275 
 
 TERM CALENDAR— HOW MADE UP. 
 
 RULE i8. (a) Previous to each term, the clerk 
 shall prepare a calendar of causes for the term. The 
 same shall be made up in the following order: i. 
 Criminal cases. 2. Jury civil cases. 3. Non-jury civil 
 cases. 4. Issues of law. 5. Chancery cases, including 
 issues of law in such cases. 
 
 (b) Criminal cases shall have precedence. Jury 
 and non-jury and chancery cases shall have precedence 
 in the order of the respective dates of joining ^ssue, or, 
 in appeal causes, the respective dates of tiling the ap- 
 peal. 
 
 MOTIONS AND PETITIONS. 
 
 RULE 19. (a) All petitions and special motions 
 (except motions for continuance and motions to strike 
 cause from calendar) shall be in writing, and shall be 
 signed by the attorney, or counsel, of the party in 
 whose behalf the same are entered, and shall set out 
 briefly, but distinctly, the grounds upon which the 
 same are founded and with the affidavits supporting 
 the same shall be filed in the office of the clerk of the 
 court on or before the day on which they are noticed 
 for argument 
 
 (b) Notice of the argument of motions and peti- 
 tions (except motions for continuance and motions to 
 strike cause from calendar), together with a copy 
 thereof and of the affidavits on which they are based, 
 shall be served on the opposite attorney at least four 
 days before the time noticed for hearing the same. 
 Provided, that for good cause the court may hear such 
 argument on shorter notice. 
 
276 CIRCUIT COURT RULES. 
 
 (c) Motions and petitions shall be a gued on the 
 day for which they are noticed, if the party has an op- 
 portunity to be heard on that day, unless the court (or 
 Circuit Court Commissioner, in a matter pending be- 
 fore him) shall otherwise direct. If there is not suf- 
 ficient time to finish the business noticed for any day, 
 it may be continued from day to day until it is com- 
 pleted; or it may be adjourned to some subsequent 
 day. And motions and petitions which cannot be 
 heard on the day for which they are noticed shall, in 
 the absence of special order, stand continued from day 
 to day without any special continuance. 
 
 (d) Not more than one counsel on each side shall 
 be heard on the argument of any petition or motion, 
 the mover being entitled to open the argument and to 
 reply to the argument of the opposite counsel. 
 
 STAY OF PROCEEDINGS TO MAKE MOTIONS. 
 
 RULE 20. Whenever a stay of proceedings may 
 be necessary in order to make a special motion, the 
 judge may grant an order for that purpose; and ser- 
 vice of such order, with copies of the affidavits on 
 which it is grounded, and the notice of the motion, 
 shall operate as a stay of proceedings until the order 
 of the court is had in the premises, unless the judge 
 shall in the meantime supersede or set aside such 
 order. But the proceedings shall not be stayed for a 
 longer time than to enable the party to make his mo- 
 tion according to the practice of the court, and if 
 made, until the decision of the court thereon. 
 
CIRCUIT COURT RULES. 277 
 
 MOTIONS FOR NEW TRIAL. 
 
 RULE 21. Motions for a new trial, and motions 
 in arrest of judgment, with the reasons on which they 
 are founded, shall be filed and a copy thereof be sei-ved 
 on the opposite party, within five days after the ren- 
 dition of a verdict, in the case of a trial by jury, and 
 within a like time after the decision of the court, when 
 the cause has been tried by the court, or within such 
 further time as shall be allowed therefor by the court 
 or judge. Such motions may be brought on for hear- 
 ing by either party before the court, and the decision 
 on such motion may be made by the judge and en- 
 tered in vacation, as of the last day of the preceding 
 term. 
 
 MOTIONS FOR CONTINUANCE. 
 
 RULE 22. (a) No motion for the continuance of 
 a cause made after the first day in term shall be heard, 
 unless a sufficient excuse is shown for the delay, and 
 on a second application by a party for the continuance 
 of a cause, the party so applying shall state, in addi- 
 tion to the usual requisites, the facts which he 'expects 
 to prove by the absent witness, and shall also state 
 with particularity the diligence he has used to procure 
 his attendance. In case it is admitted by the opposite 
 party in a civil cause that the witness named would, if 
 placed on the stand, testify as stated in such affidavit, 
 the motion for a continuance shall be denied, unless 
 the court,, for the furtherance of justice, shall deem a 
 continuance necessary. 
 
 (b) If the party receiving notice of trial shall serve 
 a notice on the opposite party that he will move for a 
 
278 CIECUIT COURT RULES. 
 
 continuance of the cause at the term for which it is 
 noticed, together with a copy of the affidavits upon 
 which he intends to found the motion, he shall not be 
 liable to such party for any costs of preparing to try 
 the cause, accruing after the service of such notice 
 and affidavits, in <;ase a continuance is granted on the 
 papers so served, excepting such as may be unavoid- 
 able. 
 
 (c) When a continuance is granted upon payment 
 of costs, such costs may be taxed summarily by the 
 court, and on being taxed, shall be paid on demand 
 of the party, his agent or attorney; and if not so paid, 
 on affidavit of the fact, such continuance may be va- 
 cated, or the court may grant an attachment therefor, 
 with the accruing costs. 
 
 GENUINENESS OF DOCUMENTS. 
 
 RULE 23. Either party may exhibit to the other 
 or to his attorney, at any time before the trial, any pa- 
 per material to the action, and request an admission 
 in writing of its genuineness. If the adverse party or 
 his attorney fail to give the admission within four days 
 after the request, and the delivery to him of a copy 
 thereof, if such copy be required, and if the party ex- 
 hibiting the paper be afterward put to expense in order 
 t-^ prove its genuineness, and the same be finally 
 proved or admitted on the trial, such expense, to be 
 ascertained and summarily taxed at the trial, shall be 
 paid by the party refusing the admission, unless it shall 
 appear to the satisfaction of the court that there were 
 good reasons for the refusal, and an attachment or 
 
CIRCUIT COURT RULES. 279 
 
 execution may be granted to enforce payment of such 
 expenses. 
 
 CONDUCT OF TRIALS. 
 
 RULE 24. (a) On trial of the cause it shall be 
 the duty of the plaintifif's counsel, before offering evi- 
 dence to support the issue on his part, to make a full 
 and fair statement of his case and of the facts which 
 he expects to prove. After the evidence is closed on 
 the part of the plaintiff, and before any evidence is 
 offered on the part of the defense, a like statement shall 
 be made by the counsel for the defendant, or at his 
 election such statement may be made at the conclusion 
 of the statement by the plaintiff's counsel. 
 
 (b) The plaintiff shall, in all cases except as stated 
 below and except where otherwise ordered by the 
 court, commence the evidence. On the trial of issues 
 of fact, one counsel only on each side shall examine 
 and cross-examine a witness. No more than two 
 hours shall be allowed to either side for the summing 
 up of a cause, unless the court shall otherwise order, 
 but counsel upon either side shall be allowed at least 
 one-half hour if it is desired. 
 
 (c) Whenever, in any action, the defendant, by 
 notice accompanying his plea, waives the benefit of 
 the general issue and admits the facts alleged in the 
 plaintiff's declaration, but attempts to defeat the plain- 
 tiff's recovery by set-off or by recoupment, or by af- 
 firmative defense which, if true, defeats plaintiff's re- 
 covery, such defendant shall have the opening and 
 closing in the taking of testimony and in the argument 
 on the trial of the cause. 
 
280 CIRCUIT COUET R0LE8. 
 
 (d) It shall not be necessary to call the plaintiff 
 when the jury return into court to deliver their verdict, 
 and the plaintiff shall have no right to submit to a non- 
 suit after the jury have gone from the jury box to 
 deliberate upon their verdict. 
 
 COURT MAY REQUIRE PARTIES, ETC., TO TESTIFY. 
 
 RULE 25. In any suit, whether contested or not, 
 the court may, for the furtherance of justice, call upon 
 any or all of the parties to such suit, or any witness 
 therein, to testify orally in open court, and may con- 
 tinue to keep open the cause for that purpose, and 
 may issue process to compel the appearance of such 
 party or witness before the court. 
 
 DEMAND FOR SPECIAL FINDINGS OF FACT AND LAW BY 
 THE COURT, AND PROCEEDINGS THEREON. 
 
 RULE 26. (a) When cases are tried by the court 
 without a jury, either party may, if he sees fit, at any 
 time before judgment, present such points of law as 
 may be deemed material, in the same manner in which 
 such points are presented upon requests to charge in 
 jury trials, and the court in its findings shall pass 
 specially on all such points, as in charging a jurj', as 
 near as may be. Whenever such points are presented, 
 and also whenever the court is requested in writing 
 before judgment, the facts as well as the law shall be 
 embodied in the finding. 
 
 (b) If either party considers the finding not suf- 
 ficiently full or definite on facts or law, or both, he 
 shall, within ten days after judgment (or such other 
 time as may be granted by the court) propose such 
 
CIRCUIT COUET RULES. 281 
 
 amendments to the finding as he may see fit, and serve 
 copies thereof on the adverse party; and such finding 
 shall be settled by the judge who tried the cause, at 
 such time as may be fixed by him for that purpose. 
 The same practice shall prevail in case any party is ag- 
 grieved by the refusal or omission to perfect such 
 finding, as prevails in cases of exceptions. 
 
 (c) Within four days after the filing of such com- 
 pleted finding (or such other time as may be allowed 
 T>y the court), and party aggrieved may briefly, in writ- 
 ing, allege exceptions to the matters of law embodied 
 in such finding, and such exceptions shall be there- 
 after put in form and settled in the same bill, which 
 may contain the exceptions taken during the trial, 
 and in the same manner with bills of exceptions in 
 ■other cases. 
 
 (d) The finding of the facts by the court shall be 
 treated in all respects as a special verdict, and er- 
 ror may be alleged that the same does not support 
 the judgment, as on a special verdict, but no ruling of 
 law embodied in such finding can be reviewed except 
 on exceptions, or on a case made as provided by stat- 
 Tite. 
 
 DISCONTINUANCE— PROCEEDINGS WHERE SEVERAL DE- 
 FENDANTS. 
 
 RULE 27. (a) The plaintiff may at any time, 
 upon notice to the defendant or his attorney, and on 
 the payment of costs, discontinue his suit, by order 
 filed or entered in the cause, except where a set-off is 
 asserted by '"he defendant. 
 
 (b) When an action is brought against several 
 
282 CIRCUIT COUET EULES. 
 
 persons, the plaintiff shall, at any time before the final 
 submission of the cause, be allowed to discontinue as 
 against any of the defendants, upon the payment of 
 costs to them, as in case of non-suit, and upon such 
 other terms as the court shall direct, and the plaintiff 
 may thereupon amend his declaration, and proceed 
 against the other defendants in like manner, as if the 
 action had been originally brought against thern alone. 
 (c) But in case an action is brought against two or 
 more defendants, the plaintiff shall not be required to 
 discontinue as to any of them, but the jury shall show 
 by their verdict, or the court by its finding, in a trial by 
 the court without a jury, which of them are and which 
 of them are not liable to the plaintiff, and judgment 
 shall be given accordingly. 
 
 SERVICE OF PAPERS. 
 
 RULE 28. When the attorney for the adverse 
 party resides or has his office in the same city, village 
 or township as the attorney making the service, papers 
 shall be served as follows: 
 
 (a) By delivering the same to the attorney person- 
 ally. 
 
 (b) Or, by leaving the same in his office with his 
 clerk, or with a person having charge thereof. 
 
 (c) Or, when no person is to be found in his office, 
 by leaving the same, between the hours of six in the 
 morning and nine in the evening, in some suitable and 
 conspicuous place in such office. 
 
 (d) Or, if the office be not open, so as to admit of 
 service therein, then by leaving the same at the resi- 
 
CIECDIT COURT RULES. 28S 
 
 dence of the attorney with some person of suitable age 
 and discretion. 
 
 (e) Or, by depositing the same in the postofiSce of 
 the city, village or township, inclosed in an envelope, 
 plainly addressed to such attorney, with postage fully 
 prepaid. 
 
 SERVICE OF PAPERS BY MAIi.. 
 
 RULE 29. When the attorney resides or has his- 
 oifice in a different city, village or township than the 
 attorney making the service, papers shall be served as 
 follows : 
 
 (?) By delivering the same to the attorney person- 
 ally, or by leaving the same in his office with his clerk 
 or with a person having charge thereof. 
 
 (b) Or, by depositing the same in some postoffice 
 directed to the attorney at his business address, with 
 postage fully prepaid, such address to be ascertained 
 according to the best information and belief of the 
 person making such service. And in such case the- 
 time of service must be increased one day for every 
 one hundred miles distance or fraction thereof between 
 the place of deposit and the place of address. 
 
 SERVICE WHERE THERE ARE SEVERAL DEFENDANTS, OR 
 SEVERAL ATTORNEYS. 
 
 RULE 30. (a) In cases where there are two or 
 more defendants, who appear by different attorneys, 
 service of all papers in behalf of the plaintifif shall be 
 made on the attorney for each of the other defendants. 
 
 (b) And in such case service of all papers in behalf 
 of any defendant shall be made on the attorney for 
 
■2S4 CIRCUIT COURT RULES. 
 
 •each of the other defendants, and upon the attorney 
 for the plaintiflf. 
 
 (c) In case two or more attorneys appear for the 
 same party or parties, service on any one of the said 
 attorneys, whether they be partners or not, shall be 
 isufficient. But this shall not apply to attorneys ap- 
 pearing as "counsel" only. 
 
 SERVICE ON PARTY PROSECUTING OR DEFENDING IN 
 PERSON. 
 
 RULE 31. When a party prosecutes or defends 
 "his cause in person, service of papers may be made on 
 him in the manner hereinbefore provided for service 
 •on attorneys, whether such party be a licensed attor- 
 ney or not. 
 
 SERVICE IN EXCEPTIONAL CASES. 
 
 RULE 32. In all cases where service of papers 
 •cannot reasonably be made on account of the lack of 
 an attorney of record, or the inability to find a party, 
 or for any other reason, the court in which such cause 
 is pending, or judge thereof at chambers, upon an ex 
 parte application, on cause shown, may direct in what 
 manner and whom service may be made. 
 
 SERVICE OF PAPERS IN APPEAL CASES. 
 
 RULE -33. In appeal cases, where the party upon 
 whom papers, including notices of trial, are sought to 
 be served, has not appeared by attorney, service may 
 be made upon such party personally, or by mail in the 
 manner provided for service on attorneys by mail; and 
 if there be two or more such parties who are partners, 
 service upon one shall be sufficient. If such party is 
 
CIRCUIT COURT RULES. 285- 
 
 not a resident of the state, or if his place of residence 
 cannot be ascertained, such papers may be served by 
 posting the same in a conspicuous place in the office 
 of the county clerk, and if the same be a notice of 
 trial, the sams shall be posted at least twenty days be- 
 fore the first day of the term for which the cause is 
 noticed, and if the postoffice address of said party be 
 known or can be ascertained, a copy shall be mailed to 
 him. But proof of such service, mailing or posting, 
 and the facts authorizing such posting, shall be filed 
 before the court shall take any action on the strength 
 thereof. 
 
 SERVICE ON PARTY CHARGED WITH CONTEMPT, AND ON 
 PARTY IMPRISONED. 
 
 RULE 34. (a) When the object is to bring the 
 party into contempt for disobeying any mle or order 
 of the court, the service shall be on such party person- 
 ally, unless otherwise specially ordered by the court. 
 
 (b) When the defendant is returned imprisoned for 
 want of bail, a copy of the declaration shall be delivered 
 to him or to the sheriff or jailer in whose custody he 
 shall be, and when an exception is entered to bail, and 
 no notice of retainer of an attorney to defend is given, 
 notice of such exception shall be delivered to the sheriff 
 or one of his deputies. 
 
 WHEN SERVICE REQUIRED. 
 
 RULE 35. No service of papers shall be necessary 
 on a defendant who has not regularly appeared, except 
 as specially required by rule or statute. But a de- 
 fendant who has appeared by notice of retainer or 
 
286 CIRCUIT COUBT EULEa 
 
 appearance, shall be entitled to notice in advance of 
 all future proceedings in the cause, although he may 
 not have followed his appearance by plea or demurrer. 
 
 HOW TIME COMPUTED ON SERVICE OF PAPERS. 
 
 RULE 36. (a) The day on which any rule shall 
 be entered, or order, notice, pleading or paper served, 
 shr'' be excluded in the computation of the time for 
 complying with the exigency of such rule, order or 
 notice, pleading or paper, and the day on which a 
 compliance therewith is required shall be included, ex- 
 cept where it shall fall on Sunday, in which case the 
 party shall have the next day to comply therewith. 
 
 (b) When, by the terms of any order, an act is 
 directed to be performed instanter, it shall be done in 
 twenty-four hours. 
 
 ENTITLING PAPERS. 
 
 RULE 37. (a) All papers and the copies thereof 
 for service shall be fairly and legibly written or printed, 
 and be indorsed as hereinafter provided, and the clerk 
 shall not file such as do not conform to this rule. 
 
 (b) All papers, except process and pleadings by 
 which the cause is commenced, shall be entitled in the 
 court and cause, and the plaintiff's name shall be placed 
 first. Provided, that affidavits annexed to and refer- 
 ring to another paper which is properly entitled in the 
 cowt and cause need not be entitled. 
 
 (c) In cases where there are two or more plaintiffs 
 or two or more defendants, it shall be sufficient in en- 
 titling papers to name the first-named plaintiflf and the 
 first-named defendant with the usual indication of other 
 
CIECDIT COURT RULES. 287 
 
 parties, provided there be added the official number of 
 the cause. Provided, further, that in all orders and 
 notices required to be published, the full names of all 
 parties shall appear in tne title of the cause. 
 
 (d) All papers for filing or service shall also con- 
 tain on the outside an abbreviation at least of the title 
 of the court and cause, and the character of the paper. 
 
 COURT FILES. 
 
 RULE 38. The clerk shall indorse on every paper 
 the day on which the same is filed, and shall not suffer 
 or permit any writ, pleading, affidavit, deposition, or 
 other paper whatever, on file in his office, to be taken 
 therefrom without the order of the court or a judge 
 thereof; but parties interested in any such may inspect 
 the same in his office, and take copies thereof. 
 
 AGREEMENTS TO BE IN WRITING. 
 
 RULE 39. No private agreement or consent be- 
 tween the parties to a cause, or their attorneys respect- 
 ing the proceedings in a cause, which shall be denied 
 by either party, shall be binding, unless the same shall 
 have been made in open court, or unless evidence 
 thereof shall be in writing subscribed by the party or 
 his attorney against whom the same is alleged. 
 
 AFFIDAVIT OF GENUINENESS OF ACCEPTANCE OF 
 SERVICE. 
 
 RULE 40. When a defendant accepts or acknowl- 
 edges in writing the service of any process, pleading 
 or notice, and an affidavit is filed therewith, showing 
 the genuineness of his signature, the same shall have 
 
288 CIBCUIT COUET RULES. 
 
 the same effect as a return or other legal proof of ser- 
 vice. 
 
 DEPOSITIONS. 
 
 RULE 41. (a) When a deposition has been taken 
 by either party, it may at any time be read by the other 
 party on the trial. 
 
 (b) Objections to notices of and objections to the 
 manner of taking, certifying or returning depositions 
 shall be noticed for hearing before the court by motion 
 to suppress or otherwise by the party making the same,, 
 within five days after such objections are made, and if 
 not so noticed for hearing, the same shall be consid- 
 ered waived. 
 
 COSTS IN CASE OF TENDER OR PAYMENT AFTER SUIT IS 
 COMMENCED. 
 
 RULE 42. If a tender or payment into court is 
 made after suit brought, such tender or payment shall 
 include such fee to the plaintiff as is provided for the 
 defendant in case of non-suit or discontinuance at that 
 stage of the cause ; and upon a discontinuance by rea- 
 son of tender or payment after suit brought, the de- 
 fendant shall not be entitled to costs. 
 
 COMPELLING RETURN OF PROCESS. 
 
 RULE 43. If any sheriff or coroner shall fail to 
 return any process to him directed and deUvered, on or 
 before the return day therein specified, any party in- 
 terested in procuring a return may cause a rule to be 
 filed or entered in the book of common rules, requiring 
 such officer to return process within five days after 
 service of notice of such rule ; and if such process be 
 
ciECurr COURT rules. 289 
 
 not returned within the time specified in such rule, on 
 filing with the clerk an affidavit of the service of such 
 notice, and of the delivery of such process to such offi- 
 cer to be served, the default of such officer in not 
 making such return may be entered, and thereupon an 
 attachment may be issued, of course, against such 
 such sheriff or coroner to compel such return. 
 
 DEATH OF PARTY— REVIVAL. 
 
 RULE 44. (a) A scire facias shall not be neces- 
 sary to revive a judgment after the death of either 
 party; but, in lieu of such writ, a motion may be 
 made, upon affidavit and notice, to revive the same; 
 and an order of revival made upon such motion shall 
 have as full force and effect as if proceedings had been 
 by scire facias. 
 
 (b) The death of a party to a suit, either before or 
 after judgment, may be suggested on the record and 
 the cause revived in the name of the surviving parties 
 or representatives, by nling with the clerk of the court 
 an affidavit showing the death of the party, or a copy 
 of letters of administration where the representatives 
 are to be brought in, entering an order in the common 
 rule book, or filing the same and serving notice 
 thereof upon the opposite party or his attorneys, and 
 such order shall have the same force and effect as if 
 made in open court. 
 
 (c) When, after trial or judgment, and before the- 
 final settlement of a bill of exceptions, finding, or case- 
 for review, either party shall die leaving no survivor, 
 the representatives of the deceased party, when they 
 have notified the adverse party of their appointment^ 
 
290 CIRCUIT COURT RULES. 
 
 shall be entitled to notice of any further proceedings 
 on his behalf to perfect such settlement, and shall 
 notify him of all further proceedings on their own be- 
 half for that purpose. But if such bill, finding or case 
 shall have been settled on behalf of the adverse piarty 
 before he is so notified of such appointment 
 such representatives may, within thirty days af- 
 ter their appointment and qualification, apply to 
 the judge who heard the cause, to have the 
 same opened for further settlement upon amend- 
 ments proposed by them, 6n such notice as he 
 shall direct to the adverse party. And no delay be- 
 tween the death of such decedent and the notice to be 
 given by his representatives of their appointment, shall 
 prejudice the adverse party, or cause nim to loose 
 any of his rights in obtaining any such settlement. 
 
 SPECIAL LEAVE TO APPEAL. 
 
 RULE 45. Applications for leave to appeal after 
 the statutory time has expired shall be heard only on 
 the usual notice required for special motions, and no- 
 tice thereof shall be accompanied with a copy of the 
 petition or affidavit on which the same is based. 
 
 JURISDICTION IN MANDAMUS AND CERTIORARI PRO- 
 CEEDINGS. 
 
 RULE 46. (a) Circuit Courts shall have jurisdic- 
 tion within their respective counties, in all mandamus 
 proceedings, involving the action of any officer or" 
 board of any county, township, city or school district, 
 or of the Common Council of any city or village, and 
 the action cf any private corporation or officer or 
 board thereof. Said Circuit Courts shall also have 
 
CIECUIT COUET RULES. 291 
 
 jurisdiction to issue of certiorari in all cases where 
 they may now be issued by the Supreme Court to 
 Probate Courts, Circuit Court commissioners and jus- 
 tices of the peace, or any corporate body or officer 
 thereof. Writs of certiorari and orders to show cause 
 in cases of mandamus shall be made returnable and 
 service thereof made within such time as the Circuit 
 Courts shall upon each occasion direct. 
 
 (b) All orders to show cause, in mandamus pro- 
 ceedings, may be made by the court or in vacation 
 by the judge of the court. 
 
 (c) All material allegations of the petition in man- 
 damus proceedings not specifically answered by the 
 respondent, may be taken as admitted by the respond- 
 ent to be true as alleged. 
 
 (d) Mandamus and certiorari proceedings shall 
 stand for hearing upon the return day of the writ with- 
 out notice of trial or hearing unless the court for cause 
 shown shall order a postponement of such hearing. 
 
 (e) At the time of filing an information in the na- 
 ture of a quo warranto, a rule shall also be filed with 
 the clerk of the court, requiring the respondent to 
 plead to such information within twenty days after ser- 
 vice upon him of the summons and a copy of such 
 information, together with a copy of such rule. The 
 respondent shall plead to such information within 
 twenty days after service upon him of said summons 
 and a copy of such information, together with a copy 
 of such rule, and in default thereof judgment by de- 
 fault may be entered. Within twenty days after filing 
 and serving such plea, replication shall be filed thereto, 
 
292 CfRCDIT COURT RULliS. 
 
 and said cause shall be deemed to be at issue. The 
 issue so framed shall be at once placed upon the cal- 
 endar of the then pending term for trial, upon due 
 notice by either party, and shall be given precedence 
 over all civil cases. (Former Rule io8.) 
 
 PRACTICE ON SETTLEMENT OF BILLS OF EXCEPTION 
 FOR REVIEW BY SUPREME COURT. 
 
 RULE 47. (a) A party shall have not less than 
 twenty days after entry of judgment for the settlement 
 of a bill of exceptions, but the stay of execution during 
 that time shall be discretionary with the court. 
 
 (b) Subject to the limitations prescribed by statute, 
 and upon such terms and conditions as shall be 
 deemed just, the court may grant such further reason- 
 able time as shall be deemed proper for a settlement of 
 a bill of exceptions, and may extend such time when 
 proper. But no more than sixty days further time 
 shall be granted for that purpose, except for good 
 cause shown by affidavit on special iriotion after no- 
 tice to the adverse party, or on the written stipulation 
 of the parties. 
 
 (c) The party desiring the settlemenc of a bill of 
 exceptions shall furnish to the adverse party such por- 
 tion of the stenographer's minutes as shall have been 
 procured, for inspection and use by such adverse party 
 in the preparation of amendments to the proposed bill 
 of exceptions, and may also be required to furnish a 
 copy of such further portions of the stenographer's 
 minutes as shall be deemed necessary by the court to 
 a settlement of such bill of exceptions. 
 
 (d) A bill of exceptions shall contam only such 
 
CIRCUIT COURT RULES. 293 
 
 parts of the testimony and only such parts of the charge 
 as are necessary to present the questions of law raised 
 by the exceptions and assignments of eiror. It shall 
 be in narrative form unless the trial court shall deter- 
 mine it necessary to a full understanding of the ques- 
 tions of law that it be set out in whole or in part by 
 question and answer, in which case the trial court shall 
 so certify in writing. 
 
 (e) There shall accompany every bill of exceptions 
 at the time of its service and at the time of its settle- 
 ment a detailed assignment of all the alleged errors 
 upon which the appellant proposes to rely. No bill of 
 exceptions shall be signed unless accompeinied by such 
 assignment of errors, and no errors shall be consid- 
 ered by the Supreme Court that are not a part of such 
 assignment. 
 
 (f) A copy of the proposed bill of exceptions, to- 
 gether with a notice when and where the same will be 
 presented for settlement, shall be served on the oppo- 
 site party, at least four days before the ume for such 
 settlement. Amendments thereto may be proposed in 
 writing by the opposite party, and all controversies 
 respecting the same shall be determined by the trial 
 j.udge according to the facts at such time and place as 
 he shall appoint. 
 
 (g) The bill of exceptions, when settled, shall be 
 signed by the trial judge, and delivered to the pro- 
 posed appellant, who shall file the same, and the as- 
 signments of error, with the clerk of the court within 
 ten days thereafter, or in default thereof shall be 
 deemed to have waived such exceptions, unless fur- 
 
294 CIRCUIT COURT RULES. 
 
 ther time be allowed therefor by the trial judge, on 
 special motion for cause shown. 
 
 (h) - Unless within ten days after the settlement of 
 a bill of exceptions the proposed appellant cause a 
 writ of error to be issued out of the Supreme. Court 
 and filed, any order staying execution shall become 
 inoperative and the adverse party shall be entitled to 
 an execution; Provided, that on cause shown, on spe- 
 cial motion, and on proper terms, the court may order 
 the recall of such execution. 
 
 CASE MADE— PRACTICE ON. 
 
 RULE 48. Any ruling, order or finding of the 
 court or judge, or judgment of the court, reviewable by 
 writ of error, may, at the option of the complaining 
 party, be reviewed by case made. A case made shall 
 be settled in the time and manner, and have attached 
 thereto a statement of errors the same as bills of ex- 
 ceptions; and the practice in settling and filing cases 
 made shall be the same as that hereinbefore provided 
 for the settling of bills of exceptions ; provided, that no 
 more of the testimony, proceedings or record in the 
 cause shall be set forth in such case made than is neces- 
 sary to present the questions of law to be reviewed. 
 
 WHEN RULES TO TAKE EFFECT. 
 
 RULE 49. These rules shall take effect January 
 1st, 1897, as to all causes commenced on or after that 
 date, and also as to any cause commenced previous to 
 that date as far as concerns proceedings therein sub- 
 sequent to the date when the same shall be at issue. 
 All rules not herein contained are hereby repealed, 
 except as above provided. 
 
CHANCERY RULES. 
 
 BILLS OF COMPLAINT. 
 
 RULE I. (a) Suits in chancery shall be com- 
 menced by bills of complaint, setting forth the facts 
 relied on, the names of the defendants therein, and the 
 relief desired, and shall be addressed to tiie court, and 
 signed by the complainant or his agent or solicitor. 
 
 (b) Every bill of complaint shall be divided mto 
 paragraphs, numbered consecutively, and each para- 
 graph shall contain, as near as may be, a separate and 
 distinct allegation. The prayer of every bill of complaint 
 shall also be divided into paragraphs, numbered con- 
 secutively, and shall specify the particular relief which 
 the complainant shall conceive himself entitled to, and 
 may also contain a prayer for general relief. 
 
 (c) The prayer for process heretofore common in 
 the bill of complaint maj' be omitted and the com- 
 plainant shall be entitled to the process of subpoena 
 on the filing of the bill of complaint, and to other 
 process when ordered by competent authority. 
 
 (d) A bill of complaint which shall not comply with 
 the rule in respect to paragraphs shall be stricken 
 from the files on motion, unless the court shall deem 
 it proper to allow amendments thereto to cure the 
 defect. 
 
296 CHANCERY EULES. 
 
 VERIFYING BILLS OF COMPLAINT. 
 
 RULE 2. (a) Sworn bills may be verified by the 
 oath of the complainant, or in case of his absence from 
 the state, or other sufficient cause shown, by the oath 
 of his agent, attorney or solicitor. 
 
 (b) In bills which are to be verified by the oath of 
 the party, the several matters stated shall be stated 
 positively, or upon information or belief only, ac- 
 cording to the fact. The oath administered to the par- 
 ties shall be, in substance, that he has read the bill, or 
 has heard it read, and knows the contents thereof, and 
 that the same is true of his own knowledge, except 
 as to the matters which are therein stated to be on 
 his information and belief, and as to those matters he 
 believes it to be true; and the substance of the oath 
 shall be stated in the jurat. 
 
 (c) The bill may be sworn to before any officer 
 authorized by the laws of this state to administer oaths 
 or take affidavits. It may also be sworn to before any 
 notary public or other person authorized by the laws 
 of any other state or territory to administer oaths ; but 
 if sworn to in any other state or territory, there shall 
 be added the certificate of the clerk of some court of 
 record of the county under the seal thereof, showing 
 the official character of the person administering the 
 oath, and the genuineness of his signature. The bill 
 may be sworn to in any foreign country before any 
 minister or other diplomatic agent or consul of the 
 United States, or any notary public ; but the certificate 
 of such notary shall be made under his notarial seal. 
 
CHANCERY RULES. 297 
 
 SECURITY FOR COSTS BY NON-RESIDENTS. 
 
 RULE 3. In all cases where the complainant is 
 BOt a resident of this state, before process shall issue, 
 a bond in the penal sum of one hundred dollars, with 
 one or more sufficient sureties, shall be filed with the 
 register, to be approved by him, conditioned to pay 
 all such costs as shall be decreed against the complain- 
 ant in such case; or there shall be indorsed on the bill 
 a general undertaking, by one or more responsible 
 sureties, to pay all costs for which the complainant 
 may become liable, and the register shall indorse his 
 approval of such suretj' or sureties. 
 
 PROCESS— CHANCERY SUBPOENA. 
 
 RULE 4. (a) All process, unless otherwise di- 
 rected, shall be made returnable on a daj- certain .(ex- 
 cept Sunday) either in vacation or in term, not less 
 than ten days from the issuing thereof; and if process 
 is not executed on or before the return day, further 
 process may be taken out, of course, as often as may 
 be necessary. 
 
 (b) The names of all the defendants in a cause shall 
 be inserted in the subpoena. It may be served by de- 
 livering a copy of the writ, subscribed by the complain- 
 ant, his solicitor, or the officer or person serving the 
 same, and inscribed "copy," and showing the original, 
 under seal of the court, at the time of such delivery 
 to the defendant. The service may be on or before the 
 return day mentioned in the subpoena. 
 
 (c) The subpoena in a suit in chancery shall notify 
 the defendant that a bill of complaint has been filed 
 
298 CHANCEEY RULES. 
 
 against him by the complainant (naming him), and 
 that if he desires to defend the same he is required to 
 cause his appearance to be filed or entered in the cause, 
 in accordance with the rules and practice of the court, 
 in person or by solicitor, within fifteen days after ser- 
 vice of the subpoena upon him, and the return day 
 thereof shall be indicated at the foot of the subpoena, 
 and there shall be an underwriting designating against 
 what defendant, if any, a personal decree is asked. 
 The business address of the complainant's solicitor 
 shall appear upon the subpoena. 
 
 (d) The form of the subpoena may be as follows: 
 
 STATE OF MICHIGAN, 
 
 The Circuit Court for the County of 
 
 In Chancery. 
 
 In the Name of the People of the State of Mich- 
 igan. 
 
 To 
 
 GREETING: You are hereby notified that a bill of 
 complaint has been filed against you in the Circuit 
 
 Court for the County of in Chancery, 
 
 by , as Complainant, and that if you 
 
 desire to defend the same, you are required to have 
 your appearance filed or entered in the cause, in ac- 
 cordance with the rules and practice of the court, in 
 person or by solicitor, within fifteen days after ser- 
 vice of this subpoena upon you. Hereof fail not, under 
 the penalty of having said bill taken as confessed 
 against you. 
 
CHANCERY KULES. 299" 
 
 The return day of this writ is the day of 
 
 A. D. 189.. 
 
 Witness, the Honorable .Circuit 
 
 Judge, at the this day of 
 
 ,A. D. 189.. 
 
 Register. 
 
 UNDERWRITING: A personal decree is 
 
 sought against the defendants , 
 
 and the bill is filed to reach interests in property, and 
 not to obtain any further relief against the remainder 
 of the defendants. 
 
 Solicitor for Complainant. 
 Business address 
 
 PROCEEDINGS FOLLOWING THE SERVICE OF SUBPOENA. 
 
 RULE 5. (a) A defendant desiring to defend a 
 cause, or to have notice of the proceedings therein, 
 shall cause notice of his appearance to be filed or en- 
 tered in the office of the register of the court within 
 fifteen days after service of the subpoena upon him, 
 and within the same time shall serve notice of such 
 appearance upon the complainant's solicitor. Such 
 appearance, whether followed by answer or not, shall" 
 entitle him to notice of all future proceedings in the 
 cause. 
 
 (b) Such notice of appearance shall be entitled in 
 the cause and addressed to the complainant's solicitor,, 
 and may be in substance as follows: 
 
300 CHANCERY KUI/ES. 
 
 "TAKE NOTICE, that the defendant, , 
 
 hereby appears in the above entitled cause and de- 
 mands a copy of the bill of complaint therein. 
 
 Dated, 
 
 Yours, etc., 
 
 Solicitor for Said Defendant. 
 Business address 
 
 (c) The complainant shall cause a copy of the bill 
 ■of complaint to be served on the solicitor so appearing, 
 
 within fifteen days after receiving the notice and de- 
 mand above mentioned. (But he shall not be required 
 to serve more than one copy of the bill upon any one 
 rsolicitor, although such solicitor may appear at differ- 
 ent times for more than one defendant, and in such 
 case service of a copy of the bill shall be deemed to 
 have been made on the fifteenth day after receiving 
 a subsequent notice of appearance. 
 
 (d) The defendant shall file his demurrer, plea or 
 answer to the bill of complaint within fifteen days after 
 receiving a copy of the bill of complaint. 
 
 EXTENDING TIME FOR PLEADING. 
 
 RULE 6. The Circuit judge (or a Circuit Court 
 ■commissioner, in the absence of the judge of the 
 court from the county, or in case of his inability) for 
 a good cause shown, on special motion, after notice to 
 the opposite party, may extend the time for putting 
 in or serving any pleading, or for taking any other 
 step which is required by the rules to be taken within 
 a limited time. 
 
CHANCERY EULES. 301, 
 
 PROCEEDINGS ON DEFAULT OF EITHER PARTY. 
 
 RULE 7. (a) If either party shall make default 
 m filing or serving any pleading or notice, within the 
 time limited by these rules, or the special order of 
 the court in the cause, the opposite party may have 
 the default entered in the common order book, or filed, 
 in vacation or in term time. 
 
 (b) If the defendant has failed to appear or to- 
 plead, answer or demur, the complainant may enter 
 or file an order taking the bill of complaint as con- 
 fessed, and referring the cause to a commissioner or 
 to the court for proofs. 
 
 (c) If the complainant has failed to sen^e a copy of 
 the bill of complaint, the defendant may, on filing an 
 affidavit of the service of the required notice, and show- 
 ing the complainant's neglect, enter or file an order 
 dismissing the bill of complaint. 
 
 (d) Any order entered under these rules may be set 
 aside on special motion, for cause shown, in the dis- 
 cretion of the court, on such terms as may be deemed, 
 just and proper. But to entitle a defendant to an or- 
 der setting aside his default for want of appeai^ance or 
 answer, he shall proffer a sworn answer showing a 
 defense on the merits as to the whole or a part of the- 
 complainant's case. And in cases where personal ser- 
 vice shall have been made upon a defendant, and pro- 
 ceedings taken after default on the strength thereof, 
 his default shall not be set aside unless the application 
 shall be made within six months after such service. 
 And in any case where personal service shall have 
 been made upon a defendant, an order setting aside his- 
 
502 CHANCERY RULES. 
 
 default shall be conditioned upon his payment to the 
 complainant of the taxable costs incurred in reliance 
 on said default, and the court may impose such other 
 conditions as shall be deemed proper. 
 
 PLEAS TO A BILL AND PRACTICE THEREON. 
 
 RULE 8. (a) No plea shall be allowed to be filed 
 to any bill unless upon a certificate of counsel that in 
 his opinion it is well founded in point of law, and sup- 
 ported by the affidavit of the defendant that it is not 
 interposed for delay merely, and that he knows or has 
 good reason to believe it to be true in point of fact. 
 
 (b) The defendant may plead to the whole or any 
 part of the bill, but in every case in which the bill spe- 
 cially charges fraud or combination, a plea to such part 
 must be supported by an answer explicitly denying 
 the fraud and combination and the several facts jn 
 which the charge is founded. 
 
 (c) The complainant may be set down the plea to 
 be argued, or he may take issue on the plea, and in 
 default of the complainant taking any action within 
 twenty days the defendant shall be entitled as of course 
 to a decree, dismissing the bill or so much thereof as 
 is covered by the plea, unless the court allow defendant 
 
 matter thereof proceeded in and decreed accordingly, 
 (c) If, upon the argument, the plea is allowed, com- 
 the defendant shall be required to answer within such 
 time as the court shall deem reasonable, and if the de- 
 fendant make default, the bill, or so much thereof as 
 the plea covered, shall be taken pro confesso, and the 
 matter thereof proceeded in and decreed accordingly . 
 
CHANCEEY RULES. 303 
 
 (e) If, Upon the argument, the plea is allowed, com- 
 plainant may, within ten days after notice of such al- 
 lowance, take issue upon the plea on payment of the 
 costs of hearing thereon, unless he shall, within such 
 ten days, move for leave to amend the bill, on which 
 motion the court may allow such amendment on such 
 terms as it may deem reasonable. Within ten days 
 after the determination of such motion for leave to 
 amend, the complainant may take issue on the plea 
 upon the terms above provided. In default of such 
 motion for leave to amend, or in case such leave is 
 denied, and in default of taking issue on the plea, the 
 bill, or so much thereof as is covered by the plea, shall 
 be dismissed. 
 
 (f) If, upon an issue, the facts stated in a plea be 
 determined for the defendant, they shall avail him as 
 far as in law and equity they ought to avail him; if the 
 facts are determined for the complainant, the effect 
 shall be the same as though the bill or so much thereof 
 as is covered by the plea was taken pro confesso. 
 
 (g) No plea shall be held bad and overruled upon 
 argument only because it shall not cover so much of 
 the bill as it might by law have extended to. 
 
 (h) No plea shall be held bad and overruled upon 
 argument, only because the answer of the defendant 
 may extend to the same matter as may be covered by 
 such plea. 
 
 DEMURRERS AND PRACTICE THEREON. 
 
 RULE 9. (a) The form of a demurrer may be as 
 follows: "The defendant says that the complainant has 
 not stated such a case in his bill as entitles him to re- 
 
304 CHANCEKY EULES. 
 
 lief in a court of equity for the following reasons" (add- 
 ing briefly, but plainly, the special reasons in matters 
 of substance in a general demurrer, as well as matters 
 • of form in a special demurrer.) 
 
 (b) If any pleading shall be adjudged bad for any 
 cause which is not plainly specified ni the demurrer, 
 the party pleading shall be allowed to amend without 
 costs. 
 
 (c) To every demurrer there shall be added the in- 
 dividual certificate of counsel having principal charge 
 of the cause in behalf of the party filing the demurrer, 
 to the effect that the denmrrer is not interposed for de- 
 lay and that in his opinion it is well-founded. And a 
 demurrer not accompanied with such a certificate shall 
 be stricken from the files on motion, unless the court 
 shall deem it proper to allow the certificate to be added. 
 
 (d) A joinder in demurrer shall not be necessary, 
 and either party may at once notice a demurrer for 
 argument at the next term of court. Such notice shall 
 be served at least ten days before the first day of such 
 term. But if the cause is not in readiness for hearing in 
 time to so notice it, it may be noticed for a subsequent 
 day in term, not less than ten days after such notice, 
 and placed at the foot of the calendar. 
 
 (e) If the demurrer be overruled, the court shall, 
 on such terms and conditions as are reasonable, permit 
 the defendant to answer, and if the demurrer be sus- 
 tained, the court shall likewise permit the complain- 
 ant to amend the bill. 
 
CHANCERY RULES. 305 
 
 ANSWERS AND THE PRACTICE THEREON. 
 
 RULE lo. (a) Whenever in a cause a sworn bill 
 of complaint is filed and a sworn answer demanded, the 
 defendant shall be required to file such sworn answer. 
 But neither a sworn bill nor a sworn answer shall have 
 the force of evidence, except as to admissions, and ex- 
 cept on the hearing of motions and petitions. Pro- 
 vided, however, that when a cause is heard on bill and 
 answer, the allegations of the answer shall be taken as 
 true. 
 
 (b) An answer may be sworn to before the persons 
 and in the manner specified in the rule governing veri- 
 fication of bills of complaint. 
 
 (c) An answer shall be divided into paragraphs, 
 numbered consecutively, and each paragraph shall 
 contain as near as may be a separate and distinct alle- 
 gation, admission or denial. An answer not comply- 
 ing with this rule shall be stricken from the files on 
 motion, unless the court shall deem it proper to allow 
 amendments thereto to cure the defect. 
 
 (d) Every answer shall contain an explicit admis- 
 sion or denial of each allegation in the bill of complaint 
 as to which the defendant has knowledge or belief. But 
 as to matters charged in the bill as to which the de- 
 fendant avers he has no knowledge sufficient to form 
 a belief, he shall not be required to admit or deny the 
 same, but shall state his want of such knowledge. And 
 every material allegation in the bill to which the de- 
 fendant shall not make answer shall be taken as ad- 
 mitted by the defendant. 
 
306 CHANOEEY EULES. 
 
 (e) An answer shall be signed by the defendant, or 
 by his agent or solicitor. 
 
 (f) All objections to an answer heretofore raised 
 by exceptions shall be disposed of by the court on spe- 
 cial motion. 
 
 ANSWERS IN THE NATURE OF CROSS BILLS AND THE 
 PRACTICE THEREON. 
 
 RULE II. (a) In any case in equity where a de- 
 fendant shall claim from the complainant any relief 
 which, according to the established course and prac- 
 tice of courts of chancery, might be had by cross bill, 
 such defendant shall be at liberty by his answer to pre- 
 sent the facts upon which his equity rests, and to claim 
 by such answer the benefit of a cross bill, and the 
 court shall have power to give relief upon such an- 
 swer to the same extent that it might have given it had 
 a cross-bill been filed. But if the cause be such that, if 
 a cross-bill had been filed, the practice of the court 
 would have required it tO' be sworn to, the answer 
 claiming such relief shall be under oath, notwithstand- 
 ing an oath thereto may be waived by the bill. 
 
 (b) In such case the defendant shall first answer the 
 allegations of the bill in accordance with the foregoing 
 rule, before entering upon an allegation of additional 
 matters upon which he shall claim an affirmative re- 
 lief. And his allegations of additional matters and his 
 prayer for affirmative relief shall comply with the rule 
 governing the form of bills of complaint. 
 
 (c) The complainant shall, within fifteen days after 
 service of such answer in the nature of a cross-bill, file 
 
CHANOEEY EULES. 307 
 
 and serve a demurrer, plea or answer to the matters 
 therein contained upon which the defendant prays af- 
 firmative relief, which pleading and the practice there- 
 on shall comply with the rules governing similar plead- 
 ings. But the defendant shall not be required to file a 
 replication to any such plea or answer. 
 
 REPLICATIONS. 
 
 RULE 12. (a) The complainant shall file a repli- 
 cation to the defendant's answer within fifteen days 
 after service of such answer. Otherwise the cause shall 
 stand for hearing on such bill and answer, tinless the 
 time for filing a replication shall be extended. 
 
 (b) The form of a replication may be in substance 
 as follows: "The complainant says that, notwithstand- 
 ing the answer of the defendant, he is entitled to the 
 relief prayed in his bill of complaint." 
 
 (c) A special replication shall not be filed, except 
 by leave of the court, for cause shown, on motion. 
 
 WHEN CAUSE AT ISSUE. 
 
 RULE 13. (a) Every cause shall be deemed at 
 issue of fact or of Jaw on filing a plea or demurrer, or 
 on filing a replication to the answer, or in a cause 
 where an answer in the nature of a cross-bill is filed, 
 when a replication and a demurrer, plea or answer is 
 filed to such answer in the nature of a cross-bill. 
 
 (b) If there be more than one defendant, the cause 
 shall be deemed at issue when replications have been 
 filed to all answers filed, and when an order pro con- 
 fesso has been filed or entered as to all those defend- 
 
308 CHANCERY RULES. 
 
 ants who liave not answered, or when the cause is dis- 
 continued or dismissed as to such defendants. 
 
 PROCEEDINGS AFTER CAUSE IS AT ISSUE -THE TAKING 
 OF TESTIMONY. 
 
 RULE 14. (a) In causes where there are more 
 than one defendant, the complainant shall, when the 
 cause is at issue, serve upon the soHcitors for such de- 
 fendant or defendants who have appeared and an- 
 swered, and whose answers have been replied to, a no- 
 tice that such cause is at issue, or the solicitor for any 
 defendant may serve like notice upon the complainant 
 and the other defendants who have appeared, and the 
 time for either party to give notice of intention to claim 
 the right to examine witnesses in open court shall com- 
 mence from the time such notice is served. In cases 
 where the notice of such intention is given by a de- 
 fendant, he shall serve the same upon the solicitors of 
 all co-defendants who have answered, as well as upon 
 the complainant's solicitor. Proof of service of such 
 notice shall be filed with the register in chancery. 
 
 (b) If either party shall elect to have the testimony 
 taken in open court, under the statute, and the cause 
 is at issue as to all parties, the cause may thereafter be 
 noticed for trial and hearing in open court by either 
 party. Such notice may be countermanded in the same 
 manner and with like effect as a notice of trial in an 
 action at law. 
 
 (c) If neither party so elects the testimony shall, 
 without further order, be taken before a Circuit Court 
 commissioner, unless the parties shall stipulate to take 
 it before some other person authorized to administer 
 
CHANCERY RULES. 309 
 
 oaths. The complainant shall put in his testimony in 
 chief within thirty days after the time limited by law for 
 electing to take the proofs in open court; the defend- 
 ant shall put in his testimony within forty days tliere- 
 after; and the complainant shall have ten days there- 
 after in which to put in his rebutting testimony. At 
 least four days' notice shall be given by each party of 
 the time and place of taking such testimony. Each 
 party shall pay in the first instance the fees for taking 
 down and transcribing his own examinations or cross- 
 examinations. 
 
 (d) The time for taking testimony may, on mo- 
 tion, for cause shown, be extended. But the party mak- 
 ing application for such extension shall be required to 
 show under oath the specific character of the testi- 
 mony desired. 
 
 (e) Process of subpoena to compel the attendance 
 of witnesses before a commissioner shall issue of 
 course, and the time and place of attendance shall be 
 specified in the writ; and such witnesses may be pun- 
 ished by the court as for contempt if they fail to attend 
 and submit to examination. But no witness shall be 
 compelled to appear before a commissioner more than 
 one hundred miles from his place of residence, unless 
 by special order of the court. 
 
 (f) The testimony shall be taken, as near as prac- 
 ticable, in the manner provided by statute for the taking 
 of depositions, and the commissioner may adjourn the 
 same from day to day, as may be deemed proper. 
 
 (g) Within five days after the testimony shall be 
 concluded the commissioner, on being applied to for 
 
310. CHANCEKY RULES. 
 
 that purpose by either party, shall cause the testimony 
 and exhibits taken or produced before him to be re- 
 turned and filed with the register of the court. 
 
 (h) At the expiration of the time for taking testi- 
 mony, the testimony shall be considered closed without 
 order, and either party may thereupon notice the cause 
 for hearing at the next term of court. Such notice 
 shall be given at least ten days before the first day of 
 the next term. But if the cause is not in readiness for 
 hearing in time to so notice it, it may be noticed for 
 a subsequent day in term, not less than ten days after 
 such notice, and placed at the foot of the calendar. 
 
 (i) If the complainant shall fail to take any testi- 
 mony within the forty days above specified, or within 
 the time allowed him by extension, the defendant may 
 notice the cause for hearing on pleadings. 
 
 CiERTAIN RULES GOVERNING IN CASES AT LAW MADE 
 APPLICABLE IN CHANCERY CASES. 
 
 RULE. 15. (a) The following rules governing 
 practice in cases at law shall apply also to practice in 
 chancery causes so far as the same are not inapplic- 
 able, viz.: 
 
 Rule II, relative to Common and Special Orders 
 and Rules. 
 
 Rule 16, relative to the filing of Notes of Issue. 
 
 Rule 18, relative to the making of a Term Calendar. 
 
 Rule 19, relative to Motions and Petitions. 
 
 Rule 20, relative to Stay of Proceedings to Make 
 Motions. 
 
 Rule 22, relative to Motions for Continuance. 
 
 Rule 23, relative to Genuineness of Documents. 
 
CHANCEEY RULES. 311 
 
 Rule 25, relative to the court requiring parties to 
 testify. 
 
 Rules 28, 29, 30, 31, 32 and 34, relative to the man- 
 ner of the service of papers. 
 
 Rule 35, relative to when service required. 
 
 Rule 36, relative to how time computed on sei-vice 
 of papers. 
 
 Rule 37, relative to entitling papers, etc. 
 
 Rule 38, relative to the court files. 
 
 Rule 39, relative to agreements to be in writing. 
 
 Rule 40, relative to affidavit of genuineness of ac- 
 ceptance of service. 
 
 Rule 41, relative to depositions. 
 
 Rule 43, relative to compelling return of process. 
 
 (b) In interpreting said rules in chancery causes, 
 wherever the word "attorney" is used, the word "solic- 
 itor" shall be substituted, and wherever the word 
 "plaintiff" is used, the word "complainant" shall be 
 substituted, and in like manner other words commonly 
 used in chancery causes, as distinguished from cases 
 at law, shall be substituted in interpreting said rules. 
 
 AMENDMENT OF BILL AND ANSWER WITHOUT LEAVE OF 
 COURT. 
 
 RULE 16. (a) The complainant may amend his 
 bill, if it is not required to be sworn to, at any time be- 
 fore a plea, answer or demurrer is put in, without leave 
 of court, and without costs. 
 
 (b) He may also amend his bill, without leave of 
 court and without costs, at any time within fifteen days 
 
312 CHANCERY RULES. 
 
 after answer is filed, if by the amendment a new or 
 further answer is not rendered necessary. 
 , (c) The complainant may also amend, without 
 leave of court, a bill required to be sworn to in like 
 manner as bills not required to be sworn to, if the 
 amendments are merely in addition to and not incon- 
 sistent with what is contained in the o'riginal bill. But 
 such amendments shall be verified by oath. 
 
 (d) If the defendant demurs to the bill for want of 
 parties, or for any other defect which does not go to 
 the equity of the whole bill, the complainant may 
 amend, of course, without costs, at any time before 
 the demurrer is noticed for argument, or within ten 
 days after receiving a copy of the demurrer. 
 
 (e) If a plea or demurrer to the bill be overruled, 
 the complainant may, within ten days thereafter, 
 amend his bill without leave of court and without 
 costs. 
 
 (f) After an answer is put in, it may be amended 
 without leave of court in any manner of form, or by 
 filling up a blank, or correcting a date or reference to 
 a document, and may be re-sworn, at any time before 
 a replication is put in, or the cause is set down for a 
 hearing upon bill and answer. 
 
 (g) But, after replication, or such setting down for 
 a hearing, it shall not be amended in any material mat- 
 ters, as by adding new facts or defenses, or qualifying 
 or altering the original statements, except by leave of 
 the court, upon cause shown, after due notice to the 
 adverse party. 
 
CHANCERY RULES. 313 
 
 PRACTICE OX AMENDMENTS. 
 
 RULE 17. (a) No rule or order need be entered 
 on the filing- of amendments which are authorized 
 without leave of court. 
 
 (b) In every case of amendment, without leave of 
 court, the party making it shall either file a new en- 
 grossment of the pleading or an engrossed or printed 
 copy of the amendment, containing proper references 
 to the pages and lines in the original pleading on file, 
 where such amendments are to be inserted or made. 
 
 (c) No amendment shall be considered as made 
 until the same is served on the adverse party if he has 
 appeared in the cause. 
 
 (d) If at the time the complainant amends his bill, 
 without leave of court, the answer has not been filed, 
 or if a further answer is necessary, the defendant shall 
 have the same time to answer after such amendment as 
 he originally had. 
 
 PROCEEDINGS BEFORE COMMISSIONERS. 
 
 RULE 18. (a) All parties accounting before a 
 commissioner shall bring- in their accounts in the form 
 of debtor and creditor; and any of the other parties 
 who shall not be satisfied with the accounts so brought 
 in shall be at liberty to examine the accounting party 
 upon interrogatories, as the commissioner may direct. 
 On any reference to take or state an account the com- 
 missioner shall be at liberty to allow interest as shall 
 be just and equitable without any special direction for 
 that purpose, unless a contrary direction is contained 
 in the order of reference. And every charge, dis- 
 
314 CHA.NCEEY EULES. 
 
 charge, or state of facts, brought in before a commis- 
 sioner, shall be verified by oath as true, either posi- 
 tively or upon information and belief. 
 
 (b) It shall be the duty of every Circuit Court 
 commissioner to procure and keep in his office a reg- 
 ister, which shall be delivered over to his successor in 
 office, in which he shall enter the title of each cause or 
 proceeding in which he shall make any order, and a 
 complete memorandum of his doings therein. And 
 every commissioner shall file with the register of the 
 court all orders made by him, together with all papers 
 on which the same are based, immediately upon the 
 making of such order. 
 
 REPORTS OF COMMISSIONERS AND PROCEEDINGS 
 THEREON. 
 
 RULE lo. (a) In all matters referred to a com- 
 missioner, he shall be at liberty, upon the application 
 of any party interested, to make a separate report or re- 
 ports, from time to time, as he shall deem expedient; the 
 costs of sitch separate reports to be in the discretion of 
 the court. And where the commissioner shall make a 
 separate report of debts or legacies, he shall be at lib- 
 erty to make such certificate as he- thinks fit, with re- 
 spect to the state of assets; and any person interested 
 shall thereupon be at liberty to apply to the court as he 
 shall be advised. 
 
 (b) After the report is filed either party may file 
 or enter an order of course to confirm the same, unless 
 cause to the contrary thereof be shown in eight days 
 after notice of its being filed; and if no exceptions are 
 filed and served within that time, the order shall be- 
 
CHANCERY RULES. 315- 
 
 come absolute of course, without further order; or 
 either party may file exceptions, and have an order of 
 course to confirm the report, so far as the same is not 
 excepted to, and with the like f ffect. 
 
 (c) If either party shall file exceptions to a commis- 
 sioner's report, such exceptions shall be determined by 
 the court on motion of either party, and the costs- 
 thereon shall be in the discretion of the court. 
 
 APPEAL FROM ORDER OF COMMISSIONER. 
 
 RULE 20. (a) Any person conceiving himself 
 aggrieved by any order made by any Circuit Court 
 commissioner, in any suit in chancery, may appeal 
 therefrom to the Circuit Court of the county in whicb 
 such suit is pending: Provided, (i) That such appeal 
 shall be claimed and entered within fifteen days from 
 the time of making such order; and, (2) That the ap- 
 pellant shall, within that time, execute a bond to the 
 appellee in such penal sum, not less than one hundred 
 dollars, as the commissioner shall prescribe, with suf- 
 ficient surety, to be approved by the commissioner, 
 conditioned to pay, satisfy and perform the order which 
 by the Circuit Court m'ay be made in the premises, and' 
 to pay all costs in case the order appealed from shall 
 be afifirmed. But no such appeal shall operate as a 
 stay of proceedings, unless a special order to that efifect 
 shall be made by the Circuit judge or by such Circuit 
 Court commissioner, on proper cause shown. 
 
 (b) The appeal bond mentioned in the preceding 
 rule shall be filed with the Circuit Court commissioner 
 
S16 CHANCERY RULES. 
 
 approving the same, and shall be returned with the 
 appeal papers. 
 
 (c) It shall be the duty of the appellant under these 
 rules to file with the Circuit Court commissioner, 
 within the time above limited for claiming and enter- 
 ing his appeal, his reasons for such appeal. Where- 
 upon it shall be the duty of such commissioner, within 
 twenty days thereafter, to transmit to the clerk of the 
 ■Circuit Court said bond and all papers upon which the 
 motion or proceeding may have been founded, or 
 which may have been used on such motion or proceed- 
 ing, unless already so filed, certified by him, or in case 
 the original pleadings or files shall have been used, he 
 shall certify such facts to the court, with a description 
 •of the original papers so used. 
 
 RESTRICTIONS ON POWER OF COMMISSIONERS. 
 
 RULE 21. The general powers conferred upon 
 commissioners are hereby restricted in the following 
 particulars : 
 
 (a) No such Circuit Court commissioner shall be 
 empowered to vacate any order or decree of the Cir- 
 cuit Court, or any order made by a Circuit judge. 
 
 (b) Nor shall he grant any injunction to stay pro- 
 ceedings at law, unless reasonable notice of the time 
 and place of hearing the application therefor shall have 
 been previously given to the adverse party. 
 
 (c) Nor shall he grant any injunction without such 
 notice in any case unless the judge of the Circuit Court 
 in which the application is made shall be absent from 
 the county at the time of such application or is dis- 
 
CHANCERY RULES. 31 7 
 
 qualified from granting an injunction in the cause, nor 
 unless in the opinion of such commissioner the peculiar 
 exigencies of the case require it for manifest reasons 
 to be shown by affidavit of the facts and circum- 
 stances. 
 
 (d) Nor shall he grant any injunction restraining 
 the execution or performance of any public improve- 
 ment, nor to compel a defendant to refrain from doing 
 any act where the injunction will necessarily produce 
 great and irreparable injury to the defendant, if the 
 claim of the complainant is not sustained. Nor shall 
 he grant any injunction in any case where no special 
 provision is made by law as to security; except where 
 the injunction prayed for is against a judgment debtor 
 who is made defendant in a creditors bill, unless the 
 officer granting the same shall take from the com- 
 plainant or his agent a bond to the part> enjoined, in 
 such sum as shall be deemed sufficient and in not less 
 than five hundred dollars, with sufficient surety or 
 sureties to be approved of by the officer allowing the 
 injunction, conditioned to pay the party enjoined such 
 damages as he may sustain by reason of the injunc- 
 tion if the court shall eventually decide that the com- 
 plainant was not equitably entitled to such injunction, 
 such damages to be ascertained by a reference to a 
 Circuit Court commissioner, or by the court having 
 jurisdiction of the cause in which the injunction is- 
 sued, as such court shall direct. 
 
 fe) Such officer allowing the injunction shall, be- 
 fore the register shall issue the writ, file such bond with 
 
818 CHANCERY EULES. 
 
 such register in chancery, who shall carefully preserve 
 the same for the benefit of the obligee therein named. 
 
 COSTS— TAXABLE SOLICITORS' FEES. 
 
 RULE 22. The following costs shall be allowed to 
 i:he prevailing party, viz.: 
 
 In all cases determined by final decree on plead- 
 ings and proofs, thirty dollars. 
 
 In all cases determined by final decree, on bill and 
 answer, plea or demurrer, twenty dollars. 
 
 In all cases where the decree is taken on the bill 
 taken as confessed, or where the bill is voluntarily dis- 
 missed by complainant after appearance and before 
 the cause is at issue, fifteen dollars. 
 
 Upon all special motions, such sum, not exceeding 
 ten dollars, as the court shall deem just. When a bill 
 is dismissed for default at the hearing, or for want of 
 prosecution, or voluntarily by the complainant after 
 the same is at issue, the defendant shall be entitled to 
 the same costs as if the cause had been heard. 
 
 When the bill is dismissed upon payment of the 
 ^laim or performr.nce of the relief sought, before de- 
 cree, the complainant shall be entitled to the same 
 costs as if the case had been heard. If such payment 
 or performance is made before plea, demurrer or an- 
 swer, the costs shall be as on a bill taken pro confesso ; 
 if after any pleading is put in and before proofs, they 
 shall be as on a hearing upon pleadings ; and if proofs 
 -are taken, the costs shall be as on a hearing upon 
 pleadings and proofs. 
 
CHANCERY RULES. 319 
 
 In divorce cases the costs shall be under the direc- 
 tion of the court. 
 
 Where there are several defendants entitled to costs 
 the costs granted by this rule shall be apportioned 
 among them as the court may deem proper. 
 
 TAXATION OF COSTS. 
 
 RULE 23. The register of the court shall have 
 power to tax the costs in a cause, including his own 
 fees therein, subject to re-taxation by the court on 
 motion of either party. But on such re-taxation, no 
 affidavit or objection which was not presented to the 
 register shall be heard or allowed. 
 
 ENROLLMENT OF DECREE. 
 
 RULE 24. (a) No process shall be issued or other 
 proceedings had on any final decree, to enforce the 
 same, until the same is duly enrolled pursuant to 
 statute. 
 
 (b) The register shall include in such enrollment 
 all papers filed in the cause. 
 
 (c) If the decree authorizes the sale of real estate, 
 notice of such sale may be given in advance of such 
 enrollment, but no conveyance shall be executed by a 
 commissioner or other officer on such sale until such 
 enrollment is had. 
 
 APPLICATION FOR REHEARING. 
 
 RULE 25. (a) A petition for a re-hearing shall 
 state the special matter or cause on which such re- 
 hearing is applied for, and the particular points in 
 which the decree or order is alleged to be erroneous, 
 
320 CHANCEEY RULES. 
 
 but it shall not be necessary to state the proceedings 
 anterior to such decree or order sought to be reversed; 
 and the facts, if they do not appear from the records of 
 the court, shall be verified by affidavit of the party, or 
 some other person. It shall also be accompanied by 
 the certificate of two counsel, that they have examined 
 the case, and that in their opinion the decree or order 
 is erroneous in the particulars mentioned in the peti- 
 tion. And a copy of the petition, with the usual 
 notice of presenting the same, shall be served on the 
 adverse party, but the re-hearing shall not be con- 
 sidered as a matter of course in any case. 
 
 (b) If a rehearing is granted, the petitioner shall 
 lose the benefit thereof unless he slaall, within ten days 
 thereafter, deposit with the register fifty dollars, to 
 answer the costs and damages of the adverse party, if 
 the decree or order shall not be materially varied. 
 
 StLLS OF REVIVOR AND SUPPLEMENTAL BILLS. 
 
 RULE 26. It shall not be necessary, on any bill of 
 revivor or supplemental bill, to set forth any of the 
 statements in the original suit, unless the special cir- 
 cumstances of the case require it. 
 
 BILLS OF REVIEW. 
 
 RULE 27. On filing a bill of review, or other bill 
 in the nature of a bill of review, the complainant shall 
 make the like deposit or give security to the adverse 
 party in the same amount which is or would be re- 
 quired on an appeal from an order or decree com- 
 plained of; and no such bill shall be filed, either upon 
 the discovery of new matters, or otherwise, without 
 
CHANCERY RULES. 321 
 
 special leave of the court first obtained, nor unless the 
 same is brought within the time allowed for bringing 
 an appeal except upon newly discovered facts or evi- 
 dence, unless upon reasons satisfactory to the court. 
 
 PRACTICE PECULIAR TO FORECLOSURE CASES. 
 
 RULE 28. (a) In a bill for foreclosure or satis- 
 faction of a mortgage, it shall not be necessary to set 
 out at large the rights and interests of the several de- 
 fendants who are purchasers of, or who have liens on, 
 the equity of redemption in the mortgaged premises, 
 subsequent to the registry or recording of complain- 
 ant's mortgage, and who claim no right in opposition 
 thereto; but it shall be sufficient for the complainant, 
 after setting out his own right and interest in the 
 premises, to state generally that such defendants have 
 or claim some interest in the premises, as subsequent 
 purchasers or encumbrancers, or otherwise. 
 
 (b) If a bill to foreclose a mortgage is taken as 
 confessed, or the right of the complainant, as stated in 
 his bill, is admitted by the answer, he may have an or- 
 der of course, referring to a commissioner to compute 
 the amount due to the complainant, and to such of the 
 defendants as are prior incumbrancers of the mort- 
 gaged premises. 
 
 (c) If the defendant is an infant, and has put in a 
 general answer by his guardian, or any of the defend- 
 ants are absentees and have not been personally 
 served, the complainant may have a similar order of 
 course, referring it to a commissioner to take proof of 
 the facts and circumstances stated in the complainant's, 
 
322 CHANCERY RULES. 
 
 bill, and to compute the amount due on the mortgage, 
 preparatory to the hearing of the cause. But every 
 such cause shall be regularly brought to hearing at 
 term after the coming in of the commissioner's report, 
 before a final decree is entered therein. 
 
 (d) If the bill has been taken as confessed, the 
 complainant shall show to the court, at the hearing, by 
 afiSdavit, that the proceedings to take the bill as con- 
 fessed have been regular, according to the rules and 
 practice of the court, and whether the bill has been 
 taken as confessed against all of the defendants upon 
 service of subpoena, or after an appearance, or 
 whether some of them have been proceeded against as 
 absentees. 
 
 (e) Sales under decrees of foreclosure shall not be 
 ordered on less than six full weeks or forty-two days' 
 notice, and publication shall not commence until the 
 time fixed by decree for payment has expired, nor 
 within a year after commencement of suit. 
 
 (f) On the coming in and confirmation of the com- 
 missioner's report of the sale of mortgaged premises, 
 if it shall appear there is any surplus money remain- 
 ing in court after satisfying the amount due to the 
 complainant, any defendant, upon filing an affidavit 
 that such surplus has been paid into court, and that 
 he is entitled to the same, or some part thereof, may 
 have an order of course, referring it to a commissioner 
 to ascertain and report the amount due to such de- 
 fendants, or to any other person, and which is a lien 
 upon such surplus moneys; and to ascertain the pri- 
 -orities of the several liens thereon ; to the end that on 
 
CHANCERY RULES. 323 
 
 the coming in and confirmation of the report, such 
 further order and decree may be made for the distribu- 
 tion of surplus moneys as may be just; and every de- 
 fendant who has appeared in the cause, and every per- 
 son who has left a written notice of his claim to such 
 surplus moneys with the register with whom the same 
 are deposited, shall be entitled to notice to attend the 
 commissioner on such reference. And any person 
 making a claim to such surplus moneys and who shall 
 fail to establish his claim on the hearing before the 
 commissioner, may be charged with such costs as the 
 other parties have been subjected to by reason of such 
 claim; and the parties succeeding on such reference 
 may be allowed such costs as by the court may be 
 deemed reasonable; but no costs unnecessarily in- 
 curred on such reference, or previous thereto, by any 
 of the parties, shall be allowed on taxation or paid out 
 of such surplus. 
 
 PRACTICE PECULIAR TO DIVORCE CASES. 
 
 RULE 29. (a) All bills for the purpose of obtain- 
 ing divorce, whether the husband or wife is complain- 
 ant, shall be duly verified by oath, in the usual man- 
 ner of verifying bills, where, by the course and practice 
 of the court, an oath is required. In a bill for divorce 
 on the ground of adultery, the complainant must also 
 positively aver that the adultery charged in the bill was 
 committed without the consent, connivance, privity or 
 procurement of the complainant; and that the com- 
 plainant has not voluntarily cohabited with the de- 
 fendant since the discovery of such adultery. And in 
 
324 CHANCERY RULES. 
 
 all -nch bills, and in all bills for divorce upon any 
 grovnd, the complainant shall also positively aver that 
 the act done or cause charged in the bill for which 
 divorce is sought, was committed without the consent, 
 connivance, privity or procurement of the complain- 
 ant, and that such bill is not founded on or exhibited 
 in consequence of any collusion, agreement or under- 
 standing whatever between the parties thereto, or be- 
 tween the complainant and any other person. 
 
 (b) If any such bill is taken as confessed, or the 
 facts charged therein are admitted by the answer, the 
 complainant may have an order of course entered or 
 filed for reference to a commissioner, to take proof of 
 all the material facts charged in the bill, and to report 
 such proof to the court, with his opinion thereon. 
 
 (c) If such bill is taken as confessed, the com- 
 plainant shall show to the court by affidavit whether 
 or not the defendant was personally served with pro- 
 cess or order of appearance, and that the proceedings 
 to take the bill as confessed have been regular accord- 
 ing tothe rules and practice of the court. 
 
 (d) No sentence or decree of nullity, declaring 
 void a marriage contract, or decree for a divorce, or 
 for a separate or limited divorce, shall be made of 
 course, by the default of the defendant; or in conse- 
 quence of any neglect to appear at the hearing of the 
 cause, or by consent. And every such cause shall be 
 heard after the trial of the issue, or upon the coming in 
 of the commissioner's report, at a stated term of the 
 court. 
 
CHANCEKY RULES. 325 
 
 PRACTICE PECULIAR TO CREDITORS' BILLS. 
 
 RULE 30. (a) A creditor's bill, to reach equitable 
 interests of a debtor, shall show the true sum actually 
 and equitably due the compla'inant on nis judgment 
 or decree, over and above all just claims of the debtor 
 by way of set-ofT or otherwise, and that the debtor has 
 equitable interests, exceeding one hundred dollars in 
 value, which the complainant is unable to reach by 
 execution, which has been duly issued and returned 
 unsatisfied, and that the bill is not exhibited by col- 
 lusion with the defendant, or for the purpose of pro- 
 tecting the property or effects of the debtor against the 
 claims of other creditors, but for the sole purpose of 
 compelling payment and satisfaction of the complain- 
 ant's own debt. 
 
 (b) When the complainant in such creditor's bill 
 shall have a right by statute to a discovery and dis- 
 closure of facts from the defendant, the defendant shall 
 in his answer fully and explicitly set forth the par- 
 ticular facts called for. If he fail so to do, the com- 
 plainant may have his right to a further answer and 
 • disclosure determined by the court on special motion, 
 •and the court may enforce its order thereon by the 
 attachment of the defendant, and may strike such in- 
 sufficient answer from the files. 
 
 (c) Every such creditor's bill shall be verified as 
 provided by rule. 
 
 (d) The proceedings in such a suit shall, except as 
 -Otherwise provided by rule or statute, be governed by 
 -the general chancery rules, and the court may appoint 
 
 a receiver therein pending the determination of the 
 
326 CHANCERY RULES. 
 
 suit, when it shall be deemed necessary for the protec- 
 tion of the rights of the complainant. 
 
 RECEIVERS-THEIR POWERS AND DUTIES-PRACTICE. 
 
 RULE 31. (a) Every receiver of the property and 
 effects of the debtor, appointed in a suit upon a cred- 
 itor's bill, shall, unless restricted by the special order 
 of the court, have general power and authority to sue 
 for and collect all the debts, demands and rents be- 
 longing to such debtor, and to compromise and settle 
 such as are unsafe and of a doubtful character. He 
 may also sue in the name of the debtor where it is 
 necessary or proper for him to do so, and he may 
 apply for and obtain an order of course that the ten- 
 ants of any real estate belonging to the debtor, or of 
 which he is entitled to the rents and profits, attorti to 
 such receiver and pay their rents to him. He shall 
 also be permitted to make leases from time to time as 
 may be necessary, for terms not exceeding one year. 
 And it shall be his duty, without unreasonable delay, 
 to convert all the personal estate and effects into 
 money; but he shall not sell any real estate of the 
 debtor without the special order of the court. He is 
 not to be allowed for the costs of any suit brought by 
 him against an insolvent from whom he is unable to 
 collect his costs, unless such suit is brought by order 
 of the court, or by the consent of all persons inter- 
 ested in the funds in his hands. But he may sell such 
 desperate debts and all other doubtful claims to per- 
 sonal property, at public auction, giving at least ten 
 days' notice of the time and place of such sale. 
 
CHANCERY RULES. 327 
 
 (b) Where several bills are filed by different cred- 
 itors against the same debtor, no more than one re- 
 ceiver of his property and effects shall be appointed, 
 unless the first appointment has been obtained by 
 fraud or collusion, or unless the receiver is an im- 
 proper person to execute the trust. The receiver shall 
 give security sufficient to cover the whole property 
 and effects of the debtor, which may come in his hands 
 by virtue of his office; and he shall hold such property 
 and effects for the benefit of all creditors who have 
 commenced, or shall commence, similar suits during 
 the continuance of his trust, to be disposed of accord- 
 ing to their legal or equitable priorities. He shall not 
 pay over the funds in his hands to the parties, or to any 
 other person, without being especially authorized to^ do 
 so by an order or decree of the court; nor shall he be 
 discharged from his trust without a special order, to 
 be obtained upon a written consent of all the parties 
 interested in the property in his hands, or upon notice 
 of the application. 
 
 (c) When another suit is commenced after the ap- 
 pointment of the receiver the same person may be ap- 
 pointed receiver of such subsequent suit, and shall 
 give such further security as the court shall direct. 
 He shall keep a separate account of any property or 
 effects of the debtor, which may have been acquired 
 since the commencement of the first suit, or which may 
 be assigned to such receiver under the appointment in 
 the last cause. 
 
328 ■ CHANCEKY EULES. 
 
 MONEYS IN HANDS OF REGISTER OF COURT— HOW 
 DEPOSITED AND DRAWN. 
 
 RULE 32. (a) The accounts of the register with 
 the banks in which the moneys are directed to be de- 
 posited, shall be kept in such a manner that in the cash 
 books of the banks, and in the bank books of the regis- 
 ter, it shall appear in what particular suit, or on what 
 account, the several items of money credited or 
 charged were deposited or paid out. 
 
 (b) Orders upon the banks for the payment of 
 moneys out of court shall be made payable to the order 
 of the person entitled thereto, or of his solicitor or his 
 attorney, duly authorized, and shall specify in what 
 particular suit or on what account, the nioney is to be 
 paid out, and the time when the decree or order au- 
 thorizing such payment was made. 
 
 SECURITY BY GUARDIAN AD LITEM. 
 
 RULE 33. No guardian ad litem for an infant de- 
 fendart or next friend of an infant complainant, un- 
 less he has given security to the infant according to 
 law, shall as such guardian, receive any money or 
 property belonging to such infant, or which may be 
 awarded to^ him in the suit, except such costs and ex- 
 penses as may be allowed by the court to the guardian 
 out of the fund, or received by the infant in the suit. 
 Neither shall the general guardian of an infant receive 
 any part of the proceeds of the sale of real property 
 belonging to such infant, sold under a decree or order 
 of the court, until the guardian has given such 
 further security for the faithful discharge of his trust 
 S.9 the court may direct. 
 
CHANCEEY RULES. 329 
 
 ASSIGNMENT BY COMPLAINANT OF SUBJECT MATTER OF 
 SUIT— PROCEEDINGS THEREON. 
 
 RULE 34. Whenever the complainant m a chan- 
 cery suit, wherein the right is under existing rules of 
 law and equity assignable, shall have transferred his 
 interest in the subject matter of the litigation, either 
 voluntarily or by process of law, the suit shall not 
 thereby be abated, but the transferee may present his 
 petition to the court in which said suit is pending, set- 
 ting up the fact of such transfer and asking to be sub- 
 stituted as complainant in said suit. The facts, if they 
 do not appear from the records of the court, shall be 
 verified by the affidavit of the party or of some other 
 person. If at the hearing it appear to the court that 
 such transfer has been made, an order snail be made 
 substituting the transferee as complainant in said suit, 
 and said suit shall continue for the benefit of said 
 transferee as though no transfer had been made. A 
 cc py of the petition and affidavits, with the usual no- 
 tice of presentirg the same, shall be served on the de- 
 fendant or his solicitor, and in making such order the 
 court may in its discretion require the transferee to 
 file security for costs. 
 
 GENERAL PRACTICE OF COURT. 
 
 RULE 35. In cases where no provision is made 
 by statute, or by these rules, the proceedings of this 
 court shall be according to the customary practice, as 
 it has heretofore existed in cases not provided for by 
 statute or the v/ritten rules of the court. 
 
330 CHANCERY EULES. 
 
 WHEN RULES TO TAKE EFFECT. 
 
 RULE 36. These rules shall take effect January 
 first, 1897, as to all causes commenced on or after that 
 date, and also as to any cause commenced previous 
 to that date, so far as concerns proceedings therein 
 subsequent to the date when the same shall be at 
 issue. All rules not herein contained are hereby re- 
 pealed, except as above provided. 
 
INDEX TO CIRCUIT COURT RULES. 
 
 ABATEMENT— Rule. 
 
 Pleas in, when to be filed 2 (d)- 
 
 Practice on pleas in d 
 
 ACCEPTANCE— 
 
 Of service 40- 
 
 ADDRESS— 
 
 Of attorney on writs I (c) 
 
 ADMISSION— 
 
 Statements in defendants' plea treated as 7 (e)< 
 
 Of genuineness of documents, request for 23. 
 
 AFFIDAVIT— 
 
 Showing and denying existence of corporation. 3 (d)- 
 Of party to put adverse party to proof of writ- 
 ten instrument 8 
 
 To be filed with motions 19 (a) 
 
 For second continuance 22 (a) 
 
 Of non-payment of costs on continuance 22 (c)' 
 
 Of continuance, effect of service of copy of with 
 
 notice 2i (b) 
 
 Not to be taken from clerk's office 38- 
 
 Of genuineness of acceptance of service 40 
 
 To compel return of process 43 
 
 Of death of party 44 
 
 For leave to appeal 45 
 
 AF-FIDAVIT OF MERITS— 
 
 To be filed upon application to set aside default 12 (b)- 
 
 To prevent inquest 14 (a) 
 
 What shall be set forth in 15. 
 
 AFFIRMATIVE DEFENSE— 
 
 Notice of to be added to plea 7 (b, c) 
 
 AGREEMENTS— 
 
 Between counsel to be in writing 391 
 
 ALIAS WRITS— 
 
 When may be issued I (b)' 
 
532 INDEX TO CIRCUIT COURT RULES. 
 
 AMENDMENTS— Rule. 
 
 Of pleadings, when demurrer insufficient S (b) 
 
 Of declaration to bring in new defendants 6 (c) 
 
 Without leave of court, practice on lo 
 
 APPEAL— 
 
 Note of issue in cases on i6 (a) 
 
 Cases, service of papers in 33 
 
 Special leave to '. : 45 
 
 APPEARANCES 
 
 Notice of, when filed and served 2 (b) 
 
 Entitles party to notice of proceedings 35 
 
 ARGUMENT— 
 
 When motions to be I9 (c) 
 
 Of causes, time allowed for 24 (b) 
 
 Of causes, when defendant to open and close... 24 (c) 
 
 ASSESSMENT OF DAMAGE— 
 
 On default for want of plea 12 (d) 
 
 When plea is withdrawn 12 (e) 
 
 ASSIGNMENT OF ERROR— 
 
 To accompany bill of exceptions 47 (e) 
 
 ATTACHMENT— 
 
 Form of writ of i (e) 
 
 To compel payment of costs on countermand. . . 13 (b) 
 To compel payment of costs on continuance. ... 22 (c) 
 To enforce payment of costs on proving docu- 
 ments 23 
 
 ATTORNEYS— 
 
 To sign motions 19 (a) 
 
 BILL OF EXCEPTIONS— 
 
 Practice on settlement of 47 
 
 Time to settle • 47 (a, b) 
 
 Notice of settlement 47 (b) 
 
 Effect of death of party on 47 (c) 
 
 What to contain 47 (d) 
 
 Assigiiment of error to accompany 47 (e) 
 
 Copy to be served on opposite party 47 (J) 
 
 When to be filed after settlement 47 (g) 
 
 BILL OF PARTICULARS— 
 
 Notice demanding 4 (a) 
 
 When to be filed and served 4 (a) 
 
 Effect of neglect to furnish 4 (b) 
 
 Of set-off, when to be furnished 4 (c) 
 
 BUSINESS ADDRESS— - Rule. 
 
 Of counsel on writs i (c) 
 
 Of counsel to be on declai-ation 3 (a) 
 
INDEX TO CIRCUIT COURT RULES. 333 
 
 CALENDAR— 
 
 When causes may be put on after countermand. 13 (b) 
 
 How made up 18 (a) 
 
 Precedence on 18 (b) 
 
 CAPIAS— 
 
 Form of writ of i (f) 
 
 CASE MADE— 
 
 Practice on 48 
 
 CERTIORARI— 
 
 Jurisdiction of courts to issue writs of 46 (a) 
 
 To stand for hearing without notice 46 (d) 
 
 CHAMBER ORDERS— 
 
 To be signed by judge and filed in the cause. ... 11 (c) 
 
 COMM9N ORDERS— 
 
 What is, how made and signed II (a) 
 
 COMMON RULES— 
 
 What is, book to be kept for 11 (a) 
 
 When may be filed 11 (b) 
 
 To compel return of process 43 
 
 COMMON RULE BOOK— 
 
 Clerk to keep 11 (a) 
 
 CONTINUANCE— 
 
 Motion for 22 
 
 Costs on, attachment may issue for 22 (c) 
 
 CORPORATIONS— 
 
 Affidavits showing and denying existence of.... 3 (d)- 
 
 COUNTERMAND— 
 
 Of notice of trial 13 (b) 
 
 COSTS— 
 
 Amendment after demurrer made without 5 (b} 
 
 Amendments without 10 
 
 On pleading facts arising subsequent to joining 
 
 issue ^ 
 
 On setting aside default 12 (b) 
 
 On countermand of notice of trial 13 (b) 
 
 Of proving genuineness of documents 23 
 
 Of discontinuance by plaintiff 27 (a, b) 
 
 In case of tender of payment after suit brought 42 
 
 DEATH OF PARTY— Rule. 
 
 Proceeding to revive cause after 44 
 
 DECLARATION— 
 
 When filed in suits commenced by summons... 2 (a> 
 
 When served 2 (c) 
 
 Fofms of 3 (a> 
 
334 INDEX TO CIRCUIT COURT RULES. 
 
 In trover, statement of losing and finding 
 
 omitted 3 (b) 
 
 On insurance policies ^ / jn 
 
 In actions by corporations 3 (d) 
 
 Amendment of, in case of non-joinder of de- 
 fendants 6 (c) 
 
 Amendments to, when made of course lo (a) 
 
 Copy as amended, to be filed and served lo (d) 
 
 Amendment of, in case of misjoinder of defend- 
 ants 27 (b) 
 
 DEFAULTS— 
 
 To be entered or filed I2 (a) 
 
 Application to set aside, when and how made. . I2 (b) 
 
 Absolute, abolished 12 (c) 
 
 Assessment of damages on 12 (d) 
 
 When plea withdrawn case to stand as on 12 (e) 
 
 DEFENSES— 
 
 Special, to be shown by notice 7 
 
 JDEMAND— 
 
 For jury, when to be filed 17 
 
 For admission of genuineness of documents. ... 23 
 
 For special findings 26 
 
 DEMURRER— 
 
 When filed and served 2 (d), 4 (a) 
 
 Form of S (a) 
 
 Individual certificate of counsel to be added.... 5 (c) 
 
 Joinder in, not necessary _. 5 (d) 
 
 Cause may be noticed for trial on filing S (d) 
 
 Amendments to 10 (b-d) 
 
 DEPOSITIONS— 
 
 When may be read by either party 41 (a) 
 
 Objections to manner of taking 41 (b) 
 
 DISCHARGE— 
 
 Defense of to be specially pleaded 7 (b, c) 
 
 DISCONTINUANCE— 
 
 Generally 27 (a) 
 
 Proceedings where several defendants 27 (b, c) 
 
 Costs on 27 (a, b) 
 
 On payment after suit brought 42 
 
 Genuineness of, demand for admission of 23 
 
 'ENTITLING PAPERS— 
 
 Practice on 37 
 
 •FAILURE OF CONSIDERATION— 
 
 Defense of, to be specially pleaded 7 (b, c) 
 
INDEX TO CIRCUIT COURT RULES. 
 
 335 
 
 FILES— 
 
 Clerk to indorse filing of papers 38 
 
 To remain in clerk's office 38 
 
 Parties in interest may inspect and copy 38 
 
 FINDINGS BY COURT— 
 
 Practice on 26 
 
 Exceptions to 26 (c) 
 
 To be treated as special verdict 26 (d) 
 
 In case of joint defendants 27 (c) 
 
 FRAUD— 
 Defense of, to be specially pleaded 7 (b-c) 
 
 GENERAL ISSUE— 
 
 Form of 7 (a) 
 
 Notice of affirmative defense to be added to 
 
 plea of 7 (b-c) 
 
 In actions on insurance policies 7 (d) 
 
 Plea of, in actions on written instruments 8 
 
 Notice of facts arising subsequent to joining 
 issue, under plea of 9 
 
 GENUINENESS— 
 
 Of documents, demand for admission of 23 
 
 Of acceptance of service, how shown 40 
 
 INQUEST— 
 Notice of, and proceedings on, on bills and 
 
 notes 14(a) 
 
 Notice of, and proceedings on, on undisputed 
 accounts 14 (b) 
 
 INSURANCE POLICIES— 
 
 Declaration on, what to contain 3 (c) 
 
 In suits on, notice of special defense to be added 
 to plea 7 (d) 
 
 JOINT DEFENDANTS— 
 
 Practice on discontinuance as to part 27 (b-c) 
 
 judgment- 
 How rendered where new defendants brought 
 in 6(f) 
 
 JURY— Rule. 
 
 Demand for, when to be filed I7 
 
 LICENSE— 
 Defense of to be specially pleaded 7 (b) 
 
 MANDAMUS— 
 
 Jurisdiction of, by circuit courts 46 (a) 
 
 Orders for issuing 46 (b) 
 
 Answer in 46 (c) 
 
 When to stand for hearing 46 (d) 
 
336 INDEX TO CIRCUIT COUET RULES. 
 
 MERITS— 
 
 Affidavit of 12 (b), 15 
 
 MISNOMER— 
 
 To be pleaded in abatement 6 (b) 
 
 MOTIONS— 
 
 Practice on 19 
 
 Stay of proceedings to make 20 
 
 For new trial 21 
 
 For continuance 22 
 
 In arrest of judgment 21 
 
 To suppress depositions 41 (b) 
 
 To revive cause after death of party 44 (a) 
 
 NEW TRIAI^ 
 
 Motion for 21 
 
 NON-JOINDER— 
 
 Plea in abatement for, practice on 6 (c-Q 
 
 NON-DELIVERY— 
 Of written instrument, defense of to be spe- 
 cially pleaded 7 (c) 
 
 NON-SUIT— 
 
 When not allowed 24 (d) 
 
 NOTICE OF ISSUE- 
 
 When to be filed, and what to contain 16 (a) 
 
 Of criminal cases 16 (b) 
 
 NOTICE— 
 
 Of appearance 2 (b), 35 
 
 To be added to plea of general issue 7 
 
 Of trial 13 (a) 
 
 Countermand of 13 (b) 
 
 Of inquest on bills and notes 14 (a) 
 
 Of inquest on undisputed accounts 14 (b) 
 
 Of motions 19 (b) 
 
 Of waiver of defense of general issue, effect of. . . 24 (c) 
 To defendant who has appeared, of proceed- 
 ings 35 
 
 Of settlement of bill of exceptions 47 (b) 
 
 ORDERS— Rule. 
 
 Common, may be filed 11 (b) 
 
 To be entered in record of the proceedings, 
 
 signed by judge and filed 11 (c) 
 
 Special, how made 11 (c) 
 
 For default 12 
 
 ORIGINAL WRITS— 
 
 Practice on I (a) to i (e) 
 
 When issued and returnable i (a) 
 
INDEX TO CIRCUIT COURT RULES. 
 
 337 
 
 What to contain i (a) 
 
 By whom served i (a) 
 
 Alias and pluries i (b) 
 
 Of summons, form of i (c) 
 
 Of replevin, form of -. i (d) 
 
 Of attachment, form of i (e) 
 
 Of capias, form of i (f) 
 
 Proceedings in suits commenced by 2 
 
 PAPERS— 
 
 Entitling 37 
 
 PARTIES— 
 
 May be required to testify 25 
 
 PAYMENT— 
 
 Defense of must be specially pleaded 7 (b, c) 
 
 Of costs of countermand, how enforced 13 (b) 
 
 Of costs on continuance, how enforced 22 (c) 
 
 Of costs of proving documents, how enforced. . 23 
 
 After suit brought, costs on 42 
 
 PETITIONS— (See Motions.) 
 
 PLEAS — (See General Issue.) 
 
 When filed and served 2 (d), 4 (a) 
 
 When affidavit denying incorporation to be 
 
 filed with 3 (d) 
 
 On insurance policies 7 (d) 
 
 Statement in, to be treated as an admission 7 (e) 
 
 In actions on written instruments 8 
 
 Of facts arising subsequent to joining issue. ... 9 
 
 Amendment of 10 (b to d) 
 
 Effect of withdrawal of 12 (e) 
 
 PLEA IN ABATEMENT— 
 
 Practice on 6 (a) to 6 (f> 
 
 May be joined with general issue 6 (a)i 
 
 On the ground- of misnomer 6 (b)i 
 
 For non-joinder, practice on 6 (c-f)- 
 
 Amendments of 10 (b-d)- 
 
 PLEADINGS— .Rule; 
 
 Subsequent to plea when filed and served 2 (e) 
 
 PLURIES WRITS— 
 
 When to be issued 1 (b) • 
 
 PROCESS— 
 
 Original to be served by sheriff i (a)i 
 
 How returned in case of joint defendants i (a)i 
 
 Return of, how compelled 43; 
 
 QUO WARRANTO— 
 
 Practice on 46 (e)) 
 
3S8 INDEX TO CIECUIT COURT BULES. 
 
 RECOUPMENT— 
 
 Notice of .7 
 
 Effect of when solely relied upon 24 (.c; 
 
 RELEASEl- 
 Defense of must be specially pleaded 7 (d, c) 
 
 REPLEVIN— 
 
 Form of writ of ^ W 
 
 RETAINER— 
 
 Notice of I (b) 
 
 RETURN DAY— 
 
 Of original writs i (a) 
 
 How indicated in writs i (c to 
 
 RETURN OF SERVICE— 
 
 Where joint defendants, how made i (a) 
 
 How compelled 43 
 
 REVIVAI^- 
 
 Of cause after death of party, practice on 44 
 
 RULES— 
 
 Common and special 11 (a) 
 
 SATISFACTION— 
 
 Defense of must be specially pleaded 7 (b) 
 
 SERVICE— 
 
 Of writs, to be by sheriff i (a) 
 
 Of papers, general 28 
 
 Of papers, by mail 29 
 
 Of papers where there are several parties or 
 
 attorneys 30 
 
 Of papers where party prosecutes in person. ... 31 
 
 Of papers in exceptional cases 32 
 
 Of papers in appeal cases 33 
 
 Of papers on party in contempt or imprisoned. 34 
 Of papers not required where defendant has not 
 
 regularly appeared 35 
 
 Of papers, computation of time on 36 
 
 Acceptance of 40 
 
 SHERIFF— Rule. 
 
 To serve original writs i (a) 
 
 SET OFF— 
 
 Particulars of 4 (c) 
 
 Notice of under plea 7 
 
 When solely relied on, efifect of 24 (c) 
 
 When noticed, prevents discontinuance by plain- 
 tiff 27 (a> 
 
 .SPECIAL FINDINGS OF FACT— 
 
 Demand for 26 
 
INDEX TO CIRCUIT COURT RULES. 339 
 
 SPECIAL RULES— 
 
 What are 1 1 (a) 
 
 STATEMENT— 
 
 Opening of counsel 24 (a) 
 
 STATUTE— 
 
 Rendering instrument void, defense of to be 
 
 specially pleaded 7 (c) 
 
 STAY OF PROCEEDINGS— 
 
 To make motions 20 
 
 TENDER— 
 
 After suit brought, costs on 42 
 
 TESTIMONY— 
 
 Court may require parties to give 25 
 
 TIME— I 
 
 For pleading 2 
 
 To plead after service of bill of particulars 4 (a) 
 
 Computation of in serving papers 36 
 
 For making motions to suppress depositions. . . 41 
 
 For settling bill of exceptions 47 
 
 TRIAL— 
 
 Notice of 13 (a-c) 
 
 Notice of may be countermanded 13 (b) 
 
 When party may be compelled to proceed to. .. . 13 (c) 
 
 Motions for nevf 21 
 
 Conduct of 24 
 
 TROVER— 
 
 Declaration in may omit losing and finding 
 
 clause 3 (b) 
 
 WAIVER— 
 
 Of objections to depositions 41 (b) 
 
 WRITS— Rule. 
 
 Form of original and when issued i (a) 
 
 Return day and return of I (a) 
 
 Alias and pluries i (b) 
 
 Form of writ of summons I (c) 
 
 Form of writ of replevin i (d) 
 
 Form of writ of attachment I (e) 
 
 Form of writ of capias I (f) 
 
 To bring in new defendant 6 (d) 
 
 Of error, when issued 47 (h) 
 
 WRITING— 
 
 Demand for jury to be in 17 
 
 Motions to be in 19 
 
 Agreements between counsel to be in 39 
 
 WRITTEN INSTRUMENT— 
 
 Execution of admitted, if not denied 8 
 
INDEX TO CHANCERY RULES. 
 
 ACCEPTANCE— R"1e. 
 
 Of service, genuineness of I5 (a) 
 
 ACCOUNTING— 
 
 Form of i8 (a) 
 
 ADDRESS— 
 
 Of attorney to be on subpoena 4 (c) 
 
 Of attorney on notice of appearance 5 (b) 
 
 ADMISSION— 
 
 Of genuineness of documents on demand (Law 
 
 Rule 23) 15 (a) 
 
 AFFIDAVIT— 
 
 Of genuineness of acceptance of service (Law 
 Rule 40) 
 
 Supporting motions and petitions (Law Rule 19) 
 
 On taxation of costs 
 
 Of default 
 
 ' Of regularity, foreclosure 
 
 Of regularity, divorce 
 
 AGREEMENT— 
 
 To be in writing (Law Rule 39) I5 (a) 
 
 ALIAS WRITS— 
 
 May be taken out as often as necessary + (a) 
 
 AMENDMENTS— 
 
 Without leave of court, bill and answer 
 
 Practice oil. . . . . .- 
 
 ANSWER— 
 
 When to be filed 
 
 Default for want of 
 
 When to be sworn to 
 
 How sworn to 
 
 To be divided in paragraphs 
 
 What to contain 
 
 Efifect of, when it does not contain material 
 allegations 
 
 How to be signed 
 
 15 
 
 (a) 
 
 15 
 
 (a) 
 
 
 2?. 
 
 7 
 
 (c) 
 
 28 
 
 (d) 
 
 29 
 
 (c) 
 
 
 16 
 
 
 17 
 
 5 
 
 (d) 
 
 7 
 
 (b) 
 
 10 
 
 (a) 
 
 10 
 
 (b) 
 
 10 
 
 (c) 
 
 10 
 
 (d) 
 
 10 
 
 (d) 
 
 10 
 
 (e) 
 
342 INDEX TO CHANCERY RULES. 
 
 ANSWER— Continued. 
 
 Objections to, how raised lo (f) 
 
 In nature of cross bill, practice on ii 
 
 To cross-bill, when to be filed and served n (c) 
 
 Replication to 12 
 
 Amendments to (of course) 16 (f) 
 
 To creditors' bill. 30 (d) 
 
 APPEAL— 
 
 From order of commissioner 20 
 
 APPEARANCE— 
 
 When and how to be entered, and notice of, 
 served 5 (a) 
 
 Entitles defendants to notice of future proceed- 
 ings 5 (a) 
 
 Form of notice of S (d) 
 
 Default for want of 7 (b) 
 
 APPLICATION— 
 
 For rehearing 25 
 
 ASSIGNMENT— 
 
 Of subject matter of suit, effect of 34 
 
 ATTACHMENT— 
 
 For collection of costs on continuance (Law 
 Rule 22) 15 (a) 
 
 For collection of costs of proving documents 
 (Law Rule 23) 
 
 To compel further answer to creditors' bill 
 
 ATTORNEY— 
 
 Address of to be on subpoena 
 
 Address to be on notice of appearance 
 
 Certificate of to be added to plea 
 
 Certificate of to be added to demur 
 
 BILL — (See Foreclosure and Divorce.) 
 
 Of revivor 
 
 Supplemental 
 
 Of review 
 
 Creditors', practice on 
 
 BILL OF COMPLAINT— 
 
 Suits commenced by 
 
 To be divided into paragraphs 
 
 Not so divided shall be stricken from files 
 
 Prayer for process may be omitted from 
 
 How verified 
 
 Copy of to be served, when and how 
 
 Pleas to, and practice thereon 
 
 i.S (a) 
 
 30 (d) 
 
 4 (c) 
 
 S (b) 
 
 8 (a) 
 
 9(c) 
 
 26 
 
 26 
 
 27 
 
 30 
 
 I (a) 
 
 I (b) 
 
 I (d) 
 
 I (c) 
 
 2 
 
 .■; (c) 
 
 8 
 
INDEX TO CHANCERY EUI.ES. 343: 
 
 Plea may be to any part, or the whole of 8 (b) 
 
 May be dismissed for default 8 (c) 
 
 When to be taken pro confesso 8 (d) 
 
 When motion for leave to amend be made 8 (e) 
 
 Amendment permitted if demurrer sustained... g (e) 
 
 Material allegations in, when taken as admitted lo (d) 
 
 Amendments to, of course i6 (a to e) 
 
 CALENDAR— 
 
 Law Rule i8 relative to making of, applicable. . is 
 
 CERTIFICATE— 
 
 Of counsel to be attached to plea 8 (a) 
 
 Of counsel to be attached to demurrer 9 (c) 
 
 CHAMBER orders- 
 How made [Law Rule ii (c)] iS (a) 
 
 COMMISSIONERS— 
 
 When to file testimony taken before him 14 (g) 
 
 Proceedings before 18 
 
 Reports of, and proceedings thereon 19 
 
 Appeal from order of 20 
 
 Restriction on powers of 2i 
 
 COMMON ORDER— 
 
 Law Rules 11 and 43 applicable to 15 (a) 
 
 CONTINUANCE— 
 
 Motions for, and costs on (Law Rule 22) 15 (a) 
 
 COSTS— 
 
 Of taking testimony before commissioners 14 (c) 
 
 On amendments without leave of court 16 
 
 Solicitors' fees, taxable as 22 
 
 In divorce cases, shall be under discretion of 
 
 court 22 
 
 Where there are several defendants 22 
 
 Taxation of 23 
 
 CREDITORS' BILL— 
 
 Practice peculiar to 30 
 
 CROSS-BILL— 
 
 Answer in nature of, practice on 11 
 
 Demurrer, plea or answer to, when to be filed 
 
 and served 1 1 (c) 
 
 DECREE— 
 
 Enrollment of 24 
 
 DEFAULT— 
 
 May be filed or entered 7 (a) 
 
 In pleading, effect of 7 (a) 
 
7 (b) 
 
 7 (c) 
 
 7 (d) 
 
 5 (d) 
 
 7 (b) 
 
 9(a) 
 
 Q (a) 
 
 9 (b) 
 
 9 (c) 
 
 9 (d) 
 
 9 (d) 
 
 9 (e) 
 
 i6 (e) 
 
 9 (e) 
 
 II (c) 
 
 13 (a) 
 
 i6 (a) 
 
 344 INDEX TO CHANCERY ETJLES. 
 
 Of defendant, for want of appearance; answer 
 of demurrer, effect of 
 
 Of complainant to serve copy of bill, efifect of. . 
 
 When and how set aside 
 
 DEMURRER— 
 
 When to be filed 
 
 Default for want of 
 
 Form of 
 
 Must state special reasons 
 
 If error in pleading not specified in, efTect of. . 
 
 Individual certificate of counsel to be added. . . . 
 
 Joinder in not necessary ' . . . 
 
 When and how may be .noticed 
 
 If overruled court may permit answer 
 
 If overruled bill may be amended 
 
 If sustained court may permit amendment to bill 
 
 To answer in nature of cross-bill 
 
 Cause to be at issue on filing 
 
 Bill may be amended of course, before 
 
 DEPOSITIONS— 
 
 Law Rule 41 applicable 15 
 
 DIVORCE— 
 
 Practice peculiar to 
 
 ENROLLMENT— 
 
 Of decrees, etc 
 
 ENTITLING PAPERS— 
 
 Law Rule 37 applicable 
 
 FEES— 
 
 Solicitors, taxable 
 
 Register may tax his own 
 
 FILES— 
 
 Court files. Law Rule 38 applicable 
 
 FORECLOSURE— 
 
 Practice peculiar to 
 
 GENERAL PRACTICE OF COURT— 
 
 In matters not covered by statutes or rules.... 
 GENUINENESS— 
 
 Of documents. Law Rule 23 applicable to 
 
 Of acceptance of service, Law Rule 40 applicable 
 GUARDIAN AD LITEM— 
 
 Security by 33 
 
 ISSUE— 
 
 Complainant may take issue on plea.... 8 (c) 
 
 When cause at 13 
 
 
 29 
 
 
 24 
 
 15 
 
 (a) 
 
 
 22 
 
 
 23 
 
 IS 
 
 (a) 
 
 
 28 
 
 
 3S 
 
 IS 
 
 IS 
 
 (a) 
 (a) 
 
INDEX TO CHANCERY RULES. 345 
 
 Proceedings after cause at 
 
 Notice that cause is at, to be served 
 
 Notice of, Law Rule i6 applicable to 
 
 MONEY— 
 
 In hands of register, how disposed of 
 
 MOTIONS AND PETITIONS— 
 
 Law Rule 19 applicable to 
 
 For continuance. Law Rule 21 applicable 
 
 Stay of Proceedings to make, Law Rule 20 ap- 
 plicable 
 
 To stroke bill from file 
 
 For extension of time to plead, etc 
 
 To set aside defatdt 
 
 To strike demurrer from file 
 
 To strike answer from file 
 
 To determine objections to answer 
 
 To extend time for taking testimony 
 
 For rehearing 
 
 For further answer and disclosure 
 
 NOTES OF ISSUE— 
 
 Filing of, Law Rule 16 applicable 
 
 NOTICE— (See Notice of Hearing.) 
 
 Of appearance, when to be given 
 
 Of appearance, form of 
 
 Of argument of demurrer 
 
 That cause is at issue 
 
 Of presenting petition for rehearing 
 
 Of foreclosure sale, length of time of 
 
 Of claim of surplus from foreclosure sale 
 
 Of sale by receiver 
 
 Of presenting petition, by assignee of subject 
 matter of a suit, *o be substituted as com- 
 plainant 34 
 
 NOTICE OF HEARING— 
 
 Demurrer 
 
 Of cause in open court 
 
 Countermand of 
 
 After taking testimony before commissioner. . . . 
 
 On pleading, if complainant take no testimony. 
 OATH— 
 
 Substance of, to bill of com.plaint 
 
 ORDERS— 
 
 Common and special. Law Rule 11 applicable. .. 
 
 Confirming commissioner's report 
 
 14 
 
 14 (a) 
 
 IS Ca) 
 
 32 
 
 IS (a) 
 
 15 (a) 
 
 IS (a) 
 
 I (d) 
 
 6 
 
 7 (d) 
 
 Q (c) 
 
 10(c) 
 
 10 (f) 
 
 14 (d) 
 
 25 
 
 30 (d) 
 
 15 (a) 
 
 5 (a) 
 
 5 (b) 
 
 Q (d) 
 
 14 (a) 
 
 25 (a) 
 
 28 (e) 
 
 2« (f) 
 
 31 (a) 
 
 9 
 
 (d) 
 
 14 
 
 (b). 
 
 14 
 
 (b) 
 
 14 
 
 (h) 
 
 14 
 
 0) 
 
 2 
 
 (b) 
 
 IS 
 
 (a) 
 
 19 
 
 (b) 
 
346 INDEX TO CHANCERY RULES. 
 
 PAPERS— 
 
 . Entitling, etc., Law Rule 37 applicable iS (a> 
 
 PETITIONS— (See Motions and Petitions.) 
 
 For leave to file bill of review 27 
 
 PLEA— 
 
 When to be filed S (d>. 
 
 Certificate of counsel to be attached to 8 (a) 
 
 To be supported by affidavit of defendant 8 (a) 
 
 May be to the whole or any part of bill 8 (b) 
 
 May be argued or issue taken on 8 (c) 
 
 Practice on, if overruled 8 (d) 
 
 Practice on, if allowed 8 (e) 
 
 When determined for defendant, effect of 8 (f> 
 
 When not to be held bad 8 (g h) . 
 
 To answer in nature of cross-bill 11 (c) 
 
 Cause to be at issue on filing 13 (a) 
 
 PLEADING— 
 
 Form of, following service of subpoena 5 
 
 Time for, when and how extended & 
 
 Default for want of 7 
 
 Time may be allowed for by court 8 (c) 
 
 PROCEEDINGS— 
 
 Following service of subpoena S 
 
 Notice of to be given to defendant who has 
 
 appeared S (a) 
 
 On default 7 
 
 Stay of. Law Rule 20 applicable to iS (a) 
 
 Before commissioners 18 
 
 PROCESS— (See Subpoena.) 
 
 Prayer for may be omitted from bills i (c) 
 
 When security for costs necessary before issu- 
 ance of 3 
 
 When returnable 4 (a) 
 
 May be taken out of course 4 (a) 
 
 Compelling return of, Law Rule 43 applicable . . 15 (a) 
 
 RECEIVERS— 
 
 May be appointed on creditors' bill 30 (d} 
 
 Their powers and duties — practice 31 
 
 REGISTERS— 
 
 To tax costs 23 
 
 ' Money in hands of, how disposed of 32 
 
 REHEARING— 
 
 Application for 25 
 
INDEX TO CHANCEKY RULES. 34T 
 
 REPLICATION— 
 
 Not necessary to answer to cross-bill ii (c)' 
 
 When to be filed 12 (a) 
 
 Form of 12 (b) 
 
 Special, filed only by leave of court 12 (c) 
 
 Cause to be at issue on filing 13^ 
 
 REPORT— 
 Of commissioner and proceedings on 19. 
 
 RETURN OF SERVICE— 
 
 Compelling, Law Rule 43 applicable 15 (a) 
 
 REVIEW— 
 Bills of 27" 
 
 -REVIVOR— 
 
 Bills of : . 26. 
 
 SECURITY— 
 
 By guardian ad litem 33 
 
 By receivers 31 (b) 
 
 SECURITY FOR COSTS— 
 
 When necessary and how given 3 
 
 On filing bill of review 27 
 
 SERVICE— 
 
 Of papers. Law Rules 28, 29, 30, 31, 32 and 34 
 
 applicable iS (a) 
 
 When required, Law Rule 35 applicable 15 (a)- 
 
 How time computed on, Law Rule 36 applicable 15 (a) 
 Genuineness of acceptance of. Law Rule 40 ap- 
 plicable IS (a> 
 
 STAY OF PROCEEDINGS— 
 To make motions, practice on, Law Rule 20 ap- 
 plicable IS (a)- 
 
 subpoena- 
 To issue on filing bill of complaint I (c)' 
 
 Form and contents of 4 
 
 Proceedings following service of 5. 
 
 For witness before commissioner 14(e) 
 
 SUPPLEMENTAL BILI^ 
 Need not set forth statement original bill 26- 
 
 TESTIMONY— 
 
 In open court 14 (a b) 
 
 When before commissioners, practice on 14 (c to i) 
 
 Court may require, Law Rule 24 applicable.... IS (a^ 
 
•848 INDEX TO CHANCERY RULES. 
 
 TIME— 
 
 For pleading, etc., extension of 6 
 
 For taking testimony before commissioner 14 
 
 UNDERWRITING— 
 Form of in a subpoena 4 (<1) 
 
 A^ERIFICATION— 
 
 Of bills of complaint to '.....' 2 
 
 Of answers 10 (b) 
 
 Of amendments to bill 16 (c) 
 
 Of creditor's bill 30 (c) 
 
INDEX TO MANUAL. 
 
 Abatement 
 
 Admissions by agreement, etc 
 
 classified 
 
 how made 
 
 Amendments to answer 
 
 Answer, to contain what 
 
 form of 
 
 must be signed 
 
 veritication, form of 
 
 exceptions to, form of 
 
 replication to, form of 
 
 not under oath, not evi- 
 dence 
 
 under oath, evidence 
 
 replication to 
 
 how signed 
 
 must be sworn to unless 
 
 oath waived 
 
 of corporation under seal., 
 not under oath, mere plead- 
 ing 
 
 when oath waived, may be 
 
 sworn to when 
 
 must be full. 
 
 if oath to waived, cannot 
 
 be excepted to 
 
 copy of, to be served 
 
 objections to, for want of 
 parties and multifari- 
 ousness, when taken. . . 
 consists of two parts ... . 
 must set forth defendant's 
 
 defense 
 
 may contain any number of 
 defenses, but only de- 
 fenses set up will be 
 considered by court... 
 may" cl-aim benefit of de- 
 murrer 
 
 form of 
 
 several defendants may 
 
 join in one 
 
 must be divided into para- 
 graphs 
 
 under oath, cannot be 
 amended without leave 
 amendment tp, cannot con- 
 tain matter that has 
 
 arisen since filing 
 
 supplemental 
 
 taking off files 
 
 236 
 204 
 197 
 198 
 190 
 30 
 31 
 31 
 33 
 33 
 40, 28 
 
 121 
 
 200 
 195 
 
 185 
 
 186 
 186 
 
 18G 
 
 187 
 187 
 
 188 
 185 
 
 179 
 180 
 
 182 
 183 
 
 184 
 
 184 
 
 189 
 
 189 
 191 
 192 
 
 Appearance of defendant Ig- 
 
 notice of ig. 
 
 affidavit of non-appearance 19- 
 
 B 
 
 Bill.partsof 2, 3 
 
 address of 8 
 
 introduction to 8 
 
 stating part of 9, 111 
 
 stating part, to contain 
 
 what Ill 
 
 charging part 10, 119 
 
 charge of confederacy 9, 119- 
 
 avermentof jurisdiction in. 11, 120 
 
 prayer for process in 13, 124 
 
 prayer for relief in 12, 122 
 
 form of 108- 
 
 defined 83 
 
 must be divided into para- 
 graphs 14, 108 
 
 must contain allegations of 
 
 fact 112. 
 
 amendments to 35 
 
 what must be sworn to 125' 
 
 filing of 126 
 
 dismissing 211 
 
 Bills in equity classified 254 
 
 of interpleader 244 
 
 to perpetuate testimony... 248 
 to take testimony de bene 
 
 tsse 251 
 
 supplemental 239 
 
 supplemental, must con- 
 tain what 240 
 
 cross 241 
 
 cross, to contain what 212" 
 
 C 
 
 Chancery, history of court of, 
 Lee. III. 
 
 common law court 74 
 
 Chancellor 74 
 
 Courts, common law 73 
 
 Certainty, kinds of 105 
 
 Corporation, deemed a per* 
 
 son 109' 
 
 how described 109 
 
 Complainant, who may be. . 102* 
 when disqualified, who to 
 
 appear for 103 
 
 must offer to do equity .... Hg 
 Complaint annalized, Lee. I 
 
350 
 
 INDEX TO MA.NUAL. 
 
 ■Condition, performance of, 
 
 when to be alleged 115 
 
 ■Contempt, defined 218 
 
 party in, how proceeded 
 
 against 219 
 
 Costs, taxing 51 
 
 O 
 
 Defendant, who maybe 104 
 
 appearance of 18,133 
 
 statement of his defense, 
 Lee. II. 
 
 JDecree defined 213 
 
 interlocutory or final 213 
 
 interlocutory defined 213 
 
 final defined 213 
 
 formal parts of 48, 215 
 
 settling 214 
 
 enrollment of ; 55, 216 
 
 enforcement of 217 
 
 pro confess© 129, 130 
 
 form of 49 
 
 modifying 53 
 
 J5efault, how entered 130 
 
 when defendant has not ap- 
 peared, suit proceeds 
 
 exparte after . . , : 130 
 
 effect of 129, 130 
 
 Deed, how pleaded 117 
 
 when may be read in evi- 
 dence 208 
 
 Dilatory defenses defined... 137 
 
 Disclaimer, form of 21, 135 
 
 when not allowed 136 
 
 Discovery, when waived 121 
 
 Dismissing bill 211 
 
 effect of 212 
 
 X)emurrer, form of 22,24,148 
 
 certificate of counsel to be 
 
 attached to 24 
 
 defined 138 
 
 admits what 139 
 
 may be to part or whole 
 
 bill 140 
 
 may be more than one 140, 149 
 
 to jurisdiction 141 
 
 to the person ] 41 
 
 to matter of bill 142 
 
 to form of bill 144 
 
 to discovery 145 
 
 cannot be good in part and 
 
 bad in part 147 
 
 may be good as to one de- 
 fendant and bad as to 
 
 another . , . ; 148 
 
 general and special 150 
 
 general, gronnds of 15l. 
 
 may contain several 
 
 grounds for ,. . 151, 153 
 
 ■speaking 153 
 
 ■ore tenus 153 
 
 must not cover any part of 
 bill answered or plead 
 
 to 154 
 
 must be signed by counsel , 154 
 
 setting down, for argument 155 
 
 effect of sustaining 155 
 
 effect of overruling 156 
 
 not a bar to a subsequent 
 
 suit 157 
 
 does not lie to plea or an- 
 swer 157 
 
 to part and answer to re- 
 mainder of bill 193 
 
 and answer in support of, . 194 
 
 IS 
 
 Equity, suit in, how entitled, 77 
 
 Exceptions, how entitled 189 
 
 F 
 
 Facts, not conclusions of law 
 
 fo be stated in bill 114 
 
 to be stated positively when 112 
 
 to be fully stated 113 
 
 not set forth in pleadings, 
 
 not considered 113 
 
 every fact necessary to give 
 court juris-'ition to be 
 
 stated 117 
 
 Fraud, how set forth 114 
 
 Feigned issue 212 
 
 G 
 
 Guardian ad litem 94 
 
 H 
 
 Hearing of cause 209 
 
 notice of 46 
 
 how conducted 47 
 
 may be private 210 
 
 objections that can be made 
 
 at 211 
 
 I 
 
 Injury how stated 61 
 
 Injunction, form of 39 
 
 defined 1'J4 
 
 Injunctions, different kinds 
 
 of 229, 230 
 
 Interrogatory part of bill, to 
 
 contain, what 120 
 
 Interlocutory i^roceedings. . . 222 
 
 Interests in suit, etc 92 
 
 Issue, note of 47 
 
 stated in pleadings, one to 
 
 be tried ll4 
 
 J 
 
 Jurat 13 
 
 form of 14 
 
 Joinder of several defences 193 
 
 I. 
 
 Laches must be excused 115 
 
 M 
 Motions, special, ex parte 
 
 and of course 221, 222 
 
 form of, notice of 37 
 
INDEX TO MANUAL. 
 
 351 
 
 Multifariousness defined 96 
 
 no when 99 
 
 how determed 101 
 
 how taken advantage of. . . lOl 
 
 O 
 
 Orders, form of 38 
 
 common, special, consent.. 226 
 
 entering, nunc pro tunc . . . 227 
 
 service of 227 
 
 enforcing of 228 
 
 modifying 229 
 
 P 
 
 Parties, who to be made 90 
 
 how to ascertain, who must 
 
 be made 92 
 
 when all in Interest, need 
 
 not be made " 93 
 
 reasons should be given 
 when proper, are omit- 
 ted 94 
 
 how desi^ated 110 
 
 in representative capacity 
 
 how described 110 
 
 Practice defined 83 
 
 Petition defined 225 
 
 how entitled 225 
 
 Pleadings, purpose of 60, 61 
 
 contain what 61 
 
 chancery ■ defined 83 
 
 issue on, admits what 194 
 
 Plea defined 159 
 
 should be single 159 
 
 double only when leave ob- 
 tained 160 
 
 may not perform office of 
 
 demurrer 161 
 
 how facts to be stated in... 161 
 
 may be amended 163 
 
 admits what 163 
 
 must negative what allega- 
 tions in bill 163 
 
 parts of 25 
 
 form of 27, 171 
 
 certificate of counsel to be 
 
 attached to 28 
 
 replication to 28 
 
 effect of overruling 177 
 
 eflfect of allowing 177 
 
 effect of replication to 178 
 
 special answer 138 
 
 answer in support of 164, 169 
 
 pure and negative 166 
 
 anomalous 166 
 
 need not be supported 
 by answer when bill 
 waives answer under 
 
 oath 170 
 
 different grounds of 170 
 
 must be noticed for argu- 
 ment, or replication 
 
 filed 172 
 
 replication to, admits what 173 
 
 may be good in part 174 
 
 effect of allowing 174 
 
 effect of overruling 176 
 
 may be ordered to stand for 
 
 answer 175 
 
 Pleas classified 158 
 
 Papers, production of 235 
 
 Pro Confesso, order 20 
 
 decree 129, 130 
 
 R 
 
 Relations, how classified 84 
 
 how may arise 85 
 
 Receivers 233 
 
 Relief, specific and general.. 122 
 when bill will be dismissed 
 
 if only special prayed.. 123 
 what special, must be pray- 
 ed for 124 
 
 when confined to discovery 124 
 prayer for, to be divided 
 
 into paragraphs 124 
 
 S 
 
 Scandal defined 134 
 
 Signing 13 
 
 Suit, who may bring 102 
 
 how brought by infants, etc 103 
 
 Subpoena, issues when 15 
 
 form of 15 
 
 return to 17, 128 
 
 more than one may issue.. 127 
 
 how served 128 
 
 substituted service of 129 
 
 invented by Walthara 78 
 
 T 
 
 Testimony, how taken 204 
 
 commission to take 43 
 
 Writs, original, how framed 75 
 
 of ne exeat 232 
 

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