m (Unwell ICatw ^rtjiml lOtbranj Hawaii lEqmtg Qlollwtton mn of C. 31. JMarHtjaU, Cffi. 1. 1894 3 1924 085 501 157 a Cornell University 9 Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924085501157 PUTERBATJGH'S OHANOEBY PLEADING AND PRACTICE ! > A PRACTICAL TREATISE ON THE FORMS OF 6HANCERY SUITS, PLEADING AND PRACTICE, NOW IN USE IN THE STATE OF ILLINOIS, AND WHEREVER THE SAME SYSTEM PREVAILS. WITH FORMS OF BILLS, ANSWERS, PLEAS, DEMURRERS, EXCEPTIONS, PETITIONS, ORDERS, DECREES, ETC. PRACTICE IN THE SUPREME AND APPELLATE COURTS. SABIN D. PUTEEBAUGH, LATE ONB OF THE JUDGES 07 THE CIBCU1T COURT. SECOND EDITION. PEORIA, ILLINOIS. 1880. $(p3 yo(> Entered according to Act of Congress, in the year 1880, by SABIN D. PUTEEBAUGH In the Office of the Librarian of Congress, at Washington. J. W. FRANKS A SONS PKINTEKS AND BINDERS PEORIA, ILL. INTRODUCTION. The object of the present work is to present, in one volume of convenient size, a practical treatise on pleading and practice m suits in chancery, and proceedings of like nature ; and to suggest forms for pleading and other papers necessary for preparation by the practitioner. The first chapter consists of a very brief reference to the general principles of equity pleading ; the second points out the mode of instituting a suit; the third treats of the general requisites of an original bill, and of the several con- stituent parts thereof; and the fourth gives the forms of the various parts of an original bill. The fifth chapter refers to the mode of bringing parties into court, and includes process of appearance, summons, service •and return of process, notice by publication, service by copy of bill, and compulsory process to compel an answer. Taking bills as confessed, defaults, effect of defaults, rights of defendants after default, setting the same aside, and pro- ceedings to vacate a decree against a defendant not personally notified, are considered in the sixth chapter. Chapter seven treats of the various modes of defense, and steps to be taken by the defendant after service of process ; the different sorts of defenses, including exceptions, motions, demurrers, pleas, answers, disclaimers, etc. The eighth con- siders exceptions to answers for insufficiency, and scandal and impertinence. The ninth refers to amendments to bills ; and INTRODUCTION. the tenth to replications, the nature and effect of, and when to be filed. The eleventh refers to the manner of obtaining testimony, production of books and writings, taking depositions, taking proofs before the master, etc., to be used on the hearing. The twelfth treats of feigned issues, forming issues of fact under the statute to be tried by a jury, etc. The thirteenth refers to the course of proceeding on the hearing; and the four- teenth to decrees and decretal orders; the nature, uses and different kinds thereof; and their constituent parts. The work thus far includes the method of instituting,, conducting, and defending an original suit in chancery, from its commencement to and including the final decree. Bills not original in their nature, including supplemental bills, bills in the nature of supplemental bills, bills ol revivor, bills in the nature of bills of revivor, bills of revivor and supplement, and bills of review, are consid- ered in the fifteenth to twentieth chapters inclusive. The twenty-first treats of bills of discovery; the twenty-second, bills of interpleader; the twenty -third, bills and petitions to perpetuate testimony;- and the twenty-fourth, of cross-bills. Then follow chapters relating to proceedings in special cases, such as bills for specific performance, bills relating to partner- ship matters, bills to redeem, bills to foreclose mortgages, creditor's bills, partition suits, proceedings for dower, bills for divorce, separate maintenance, bills to quiet title, bills to set aside wills, ne exeat, bills to restrain waste, bills relating to trusts, proceedings to enforce mechanic's liens and injunctions. This work contains 252 practical forms, given in connection with the various subjects under consideration. These embrace 6(y forms of bilk, 15 of answers, 17 of demurrers, 17 of pleas, 12 of petitions, 17 of affidavits, 71 of decrees and decretal orders; the balance are miscellaneous. So far as they could INTRODUCTION. be found applicable to the present practice and times, they have been drawn from the best and most authoritative sources. Others I have ventured to frame, and while they may not be regarded with entire confidence, I trust that they are, in the main, safe, and will be taken as suggestions merely, and not as models. In the preparation of this book I have consulted freely the leading works on equity pleading and practice, among others Story's Equity Pleading, Daniel's Chancery Practice, Bar- bour's Chancery Practice, Cooper's Equity Pleading, Mitford's Equity Pleading, Welford's Equity Pleading, Barton's Suit in Equity, Hunter's Suit in Equity, Van Heythusen's Equity Draftsman, and Seaton's Forms and Decrees, and all the leading reports so far as accessible, and particularly those of Illinois so far as published. I have no doubt that many errors and imperfections will be discovered herein. This being the first edition, errors are unavoidable. I shall esteem it a special favor if my pro- fessional brethren will point out to me such errors and omissions as they may discover, to the end that they may be corrected or supplied in the next edition. In submitting the present work, I wish to return my grate- ful acknowledgments for the favor with which the three editions of the Common Law Pleading and Practice have been received by the profession, and trust that this treatise will meet with and deserve as favorable a reception. S. D. PUTEKBAUGH. Chicago, Junk 20, 1874. INTRODUCTION TO THE SECOND EDITION. Since the publication 01 the first edition, the statutes relating to several subjects embraced in this work have been amended, and, to include the latest decisions of the courts, a revision has been undertaken. References are made in this edition to the present stat- utes, and decisions of the supreme court down to and in- cluding the 90th volume of the Illinois Eeports, and those of the appellate court to the 4th volume of Bradwell's Reports. The subject of practice in the supreme and appellate courts has been added to this edition, covering 75 pages; including the subjects of the jurisdiction of the supreme court, jurisdiction of the appellate court, agreed cases, writ of error, supersedeas, appeals, records of inferior courts, docket, assignment of error and proceedings thereon, mo- tions, suggestions of diminution of record, original papers, abstract of the record, brief and argument, advance-fee to clerk, cases taken from appellate to the supreme court, judgments, executions, rehearing, licensing attorneys, striking names from the roll, etc. ; all the rules of the supreme court to date, and all the rules of the several dis- tricts of the appellate court, are set forth in order in con- nection with the subjects considered. _ "With the revision and additions it is hoped that this edition will prove acceptable to the profession, and meet with the same impartial favor as that given to my Common Law Pleading and Practice, and to the first edition. S. D. PTJTERBAUGH. Peoria, Illinois, January 1, 1880. ANALYSIS OF CONTENTS. CHAPTEE I. GENERAL PRINCIPLES OF EQUITS PLEADING 82 CHAPTER II. COMMENCEMENT OF A SUIT IN CHANCERY. Section 1. How commenced 33 2. WlIEliE COMMENCED 36 3. Security foh costs 37 When required 37 Forms of bonds for 38 CHAPTEE III. BILLS IN CHANCERY. Section 1. Division op bills 39 2. Constituent parts of an original bill .- 40 3. The address 41 4. The introduction 41 5. The premises, or stating part 42 Certainty required 43 Exhibits 48 The bill must state the whole subject 48 And not too many subjects 48 Matters not divisible 48 Multifariousness 48 Scandal and impertinence - 51 Scandal 51 Impertinence 52 6. Confederating part 52 7. Charging part 53 8. Jurisdictional clause 54 9. Interrogating part 55 10. Prayer tor relief 56 ANALYSIS OF CONTENTS. 11. Prayer for process 58 12. Frame of bill 59 13. Signing of bills 59 14 Swearing to the bill 60 15. Parties to bills 61 Who should be made parties 62 How described s. 63 Persons under disability 63 Interest of parties 64 Joinder of parties 64 Want of proper parties 65 Misjoinder of, etc 65 16. Ancient bills. . .' 66 Form of 66 Observations on 67 CHAPTER IV. FORMS OF THE CONSTITUENT PARTS OF AN ORIGINAL BILL. L The address 69 II. The introduction 69 III. The premises, or stating part 70 IV. The confederating part 71 V. Charging part 71 VI. Jurisdictional part r 72 VII. Interrogating part 73 VIII. Prayer for relief 73 IX. Prayer for process 73 CHAPTER V. PROCESS FOR APPEARANCE. Section 1. Summons 74 2. Service and return of summons 75 How served 75 The return 75 9. Notice by publication 77 Time of publication 77 Forms of affidavits for publication 78 Continuance for 79 4. Service by copy of bill 79 Form of notice to be served with 80 Form of affidavit of service 80 5. Unknown persons as defendants 81 ANALYSIS OF CONTENTS. 6. Attachment 81 How obtained 83 Form of affidavit for 84 Form of order for 84 7. Attachment with proclamation 84 8. Commission of rebellion ." 85 8. Bekgeant-at-aems 85 10. Sequestration 86 CHAPTER VI. Section 1. 4. TAKING BILLS AS CONFESSED. Default 87 When it may be taken 87 Rule to answer 87 Effect of default 88 Bights of defendant after default 90 Setting aside a default ; 90 Form of affidavit in support of motion, to 91 Setting aside decree when defendant is not person- ally NOTIFIED 91 Form of petition for 93 CHAPTER VII. THE DEFENSES TO A SUIT. Section 1. Proceedings by defendant previous to putting in his answer 94 Exceptions to bill for scandal or impertinence 95 Form of 95 Motion for production of papers 96 Motion for security for costs 96 3. The DIFFERENT SORTS OF DEFENSES 97 By demurrer 97 Byplea 97 By answer 97 By disclaimer 97 By demurrer, plea, answer and disclaimer 97 A cross bill 98 & Demurrer to a bill 98 Its nature and uses 98 Where it will lie 102 General demurrer 104 Special demurrer 104 10 ANALYSIS OF CONTENTS. Several causes of demurrer 104 Separate demurrers 104 Speaking demurrer 105 Demurrer, ore tenus 105 Demurrer coupled with answer 106 Demurrer to plea or answer not tolerated 107 When to be filed 107 Hearing of 107 Effect of sustaining 107 Effect of overruling 107 Frame of a general demurrer 108 SJwrtform of. 109 Form of demurrer to bill in U. 8. court 109 Certificate of counsel to 110 Affidavit to 110 Form of demurrer for want of equity 110 For multifariousness Ill For want of parties Ill For want of privity Ill Form of demurrer to bill of discovery, etc Ill Defendant has no interest 112 » Demurrer to part of the bid 112 And answer to residue 112 4. Plea to a bill 113 Nature of 113 When proper 114 I. To the jurisdiction of the court 115 II. To the person 115 m. Tothebill 116 IV. Pleas in bar 116 Frame of plea 116 Form of pleas 119 Commencement and conclusion of. 119 Toapartof. 119 In abatement 120 Of coverture 120 Of infancy 121 Not administrator 121 Alien enemy 121 Want of proper parties ' 122 Former suit pending 122 Statute of limitations 123 , with answer 123 I account 124 Plea to part, and answer to residue 125 Signing of plea 126 When to be sworn to 126 When to be filed 126 ANALYSIS OF CONTENTS. 11 Replication to plea 127 Amended to bill after plea 127 Demurrer to plea not proper 127 Argument of plea 127 Effect of allowing plea 128 Saving benefit of to bearing 129 Overruling plea 130 When to be supported by answer 130 5. Answer to a bill 132 Nature of 132 Exceptions to 136 Fraud, bow alleged 136 Mode of answering 137 Affirmative not allowed on 138 Frame of 138 Answer may be joint 138 Swearing to answer 140 Waiver of oath 141 Effect of sworn answer .' 142 When evidence against co-defendant 142 Admission in answer 142 Answer of a corporation 143 Answer of infants, etc 144 Forms of answers 145 The titles 145 The Commencement 145 Common forms in framing 147 Forms of 148 General 148 Affidavit to 149 Snort form of answer 149 Answer of infants by guardian ad litem 150 Statement claiming benefit of statute of frauds. . . 150 Conclusion of, insisting that complainant has ade- quate remedy at law 150 When to be filed » 151 Answer to amended bill 151 Amendment to answer 152 6. Disclaimer 153 Nature of 153 Form of 154 Form of answer and disclaimer 155 12 ANALYSIS OF CONTENTS. CHAPTER VIII. EXCEPTIONS TO ANSWER. Section 1. Nature of 157 2. Fob insufficiency 158 In what cases they lie 158 How taken '. 158 8. For scandal and impertinence 160 What is 160 When to be filed 162 Form of, for insufficiency 163 For scandal and impertinence 162 Form of order to expunge scandal and impertinence . . . 163 CHAPTER IX. AMENDMENTS TO BILLS. When to be made 165 When not allowed 167 Form of petition for leave to amend 167 Form of order for leave to amend, 168 Form of amendment 169 CHAPTER X. REPLICATION. Nature of 170 Within what time to be filed 170 Issue made. 171 Effect of filing 172 Withdrawing 172 Form of. 172 CHAPTER XI. TESTIMONY. Section 1. Production of books, etc 174 Documents in hands of third persons 175 Formof petition for production and inspection of papers 175 Form of order for 176 2. Depositions 176 Of resident witnesses 176 ANALYSIS OF CONTENTS. 13 Of non-resident witnesses 177 Notice, etc 178 Of non-resident witnesses upon oral interrogatories, etc. 179 Manner of taking, etc 180 8. Evidence taken by master in chancery ' 183 Form of order of reference. 183 Form of master '« report 184 Form of objections to 185 Form of exceptions to 185 4 0RAI, TESTIMONY ; 186 CHAPTER XII. FEIGNED ISSUES — TRIALS BY JURIES. Nature of 188 Form of order directing, etc 190 Drawing up, etc 191 CHAPTER XIII. HEARING. Course of proceeding 193 Hearing case out of its order 193 Original and cross-bill heard together 193 Effect of former orders on the hearing 194 CHAPTER XIV. DECREES AND DECRETAL ORDERS. Section 1. Nature, uses and kind of decrees 195 Interlocutory decree 195 Final decrees 196 S. Forms of decrees 198 Constituent parts 198 Caption and title 198 Form of 198 Recitals of 198 Forms of recitals 199 The ordering part 199 Declaratory part 200 Decree by consent 200 Nunc pro tunc clause 200 Drawing of decrees 201 General form of order 202 General form of decree 202 General form of order or decree 202 14 ANALYSIS OF CONTENTS. CHAPTER XV. SUPPLEMENTAL BILLS. Section 1. Nature of, and when proper 203 2. When to be filed 205 3. Parties to 205 4. Forms of bills 207 Prayer of 207 Form ofbiU 208 Form of mi 209 5. Petition for leate to file 210 Form of 210 6. Process, etc 211 1 Defenses to 211 Demurrer 211 Form of demurrer 212 Plea 212 Practice as to demurrers and pleas 213 Form of plea 213 Answer 213 8. Replication and evidence 214 Replication 214 Evidence 214 9. Hearing 215 Entitling orders in 215 Dismissing bills of 216 CHAPTER XVI. BILLS IN THE NATUKE OF SUPPLEMENTAL BILLS. Section 1. Original bills in the nature of supplemental bills. 217 When proper 217 Form of. 219 Proceedings upon 222 2. Bills to carry decrees into execution 222 Nature of 222 Formof. 223 CHAPTER XVII. BILL OF REVIVOR. Section 1. Nature of bill of revitor 225 2. When proper 226 Before decree 226 After decree 227 ANALYSIS OF CONTENTS. 15 8. Against whom to be filed 228 Before decree 228 After decree 229 4. Frame of bill 280 Must pursue original bill 230 Forma of Mil, before decree 230 Form of bill, after decree 231 5. Defenses to 233 Demurrer 233 Plea : 233 Answer 234 6. Replication 235 7. Order to revive 23G Form of order 230 8. Hearing 237 9. Effect of revivor 238 CHAPTER XVIII. BILLS IN THE NATURE OP BILLS OF REVIVOR. Section 1. Nature and uses 240 2. Parties to 242 3. Frame of bill 242 Form of. 243 4. Defenses to, and proceedings upon 245 CHAPTER XIX. BILLS OF REVIVOR AND SUPPLEMENT. Nature of, and when proper 246 Practice upon 247 Formof. 247 CHAPTER XX. Section 1. BILLS OF REVIEW. Nature of, and when proper '.. 249 Where it lies 249 For error of law 251 Newly discovered evidence 252 Pasties to 254 Leave to file 255 Performance of decree 256 Petition for 256 Form of petition for 257 16 ANALYSIS OF CONTENTS. 4 Within what time to be brought 258 Form of order for leave to file 359 6. FORM OP BILL 259 For error of law 260 For newly discovered evidence 26 1 Affidavit to bill 262 6. Defenses to 262 Plea 262 Demurrer 264 Form of plea to : . . . 265 Form of demurrer to 266 CHAPTEE XXI. BILLS OF DISCOVERY. Section 1. Nature or, and when proper 267 8. Frame and form of 269 Form of bill 270 8. Defenses to 272 Demurrer 272 Form of demurrers 274 Plea to 274 Form of pleas to 275 Answer to 276 Practice upon, generally 277 CHAPTER XXII. BILLS OF INTERPLEADER. Section 1. Nature of* and when proper 279 Nature of 279 2. Form of bill 283 Affidavit of non-collusion 283 Form of bill > 284 Form of affidavit to 285 8. Defenses to 286 Demurrer 286 Forms of demurrers 287 Answer 287 Injunction, etc 288 Form of order for injunction 289 Taking bills for confessed ' 289 Evidence 290 4. Hearing and decree 290 Costs 291 Form of interlocutory decree 892 ANALYSIS OP CONTENTS. 17 CHAPTEE XXIII. BILLS AND PETITIONS TO PERPETUATE TESTIMONY. Section 1. Nature of the proceeding 294 2. Feame of a bill to perpetuate testimony 294 Form of bill 297 3. Defenses and proceedings 298 Demurrer 299 Answer 299 4. Petition to perpetuate testimony 300 In what cases proper 800 The petition 300 Form of petition 301 Affidavit to 301 ' Commission to take depositions 302 Docketing petition 302 Notice to parties '. 302 Manner of taking testimony 303 Depositions may be used : 303 CHAPTER XXIV. Section 1. 2. CROSS-BILLS. Nature of 305 Frame of bill 307 Forms of Wis 308 When to be filed 312 Leave to file 313 Process upon 813 Defenses to 314 Demurrer 314 Pleas 315 Answer 315 Proceedings upon 316 CHAPTER XXY. BILLS F©R SPECIFIC PERFORMANCE. Section 1. NATURE OF, AND WHEN PROPER 317 Lost instrument 323 Of an award 324 Parol contracts 324 2. Parties to 325 8. Frame of bill 7 326 Formsof bills 827 18 ANALYSIS OF CONTENTS. 4. Decrees -. 333' Declaration of right, etc ' 333 Reference of title 334 Payment of purchase money -. 335 Delivery of deeds 335 Form of order of reference 335 Form of interlocutory decree for account 336 Form of final decree, etc 336 CHAPTER XXVI. BILLS RELATING TO PARTNERSHIP MATTERS. Section 1. Where dissolution will be decreed 338 2. account between partners 340 8. Appointment of receiver 341 When appointed »* 343 4. Forms of bills 342 5. forms^of decrees and orders ' 347 CHAPTER XXVII. Section 1. BILLS TO REDEEM. Nature of • 350 Deed absolute on its face, etc 351 who mat redeem 352 Within what time to be filed 353 Parties to 354 Complainants 354 Defendants 35fi Terms of redemption 357 Frame of bill 359 Forms of bills 360 Decrees 367 Form of decree for redemption 368 CHAPTER XXVIII. BILLS TO FORECLOSE MORTGAGES. t Section 1. General nature of 870 2. When proper 371 8. Parties to 372 Complainants „ 372 Defendants 373 4. Frame of bill » 375 Forms of bill* 37(j ANALYSIS OP CONTENTS. 19 5. Trust deeds and sale mortgages 382 Form of bill to foreclose trust deed 383 6. Strict foreclosure 384 Parties to 385 Form of bill for strict foreclosure 386 7. . Defenses to 388 8. Decree of foreclosure < 389 Forms of decree of sale 391 Form of decree of strict foreclosure 394 CHAPTEE XXIX. CREDITOR'S BILL. Section 1 When creditor's bill mat be filed 396 When proper 397 Justice's judgment 398 In U. S. courts 398 8. What may be reached by 398 3. Parties to the bill 400 Complainants 400 Defendants 401 4. Priority of ltens of bills 403 5. Frame of bill 404 Prayer-. 405 Swearing to 405 Forms of bills 406 Form of bill in aid of execution 413 Form of bill against executrix 416 Form of order appointing receiver 419 Form of order of reference 420 Form of final decree 420 Form of decree setting aside fraudulent conveyance 422 CHAPTEE XXX. PARTITION SUITS. Section 1. Nature of, and how instituted 423 2. Parties to 426 Complainants or petitioners 426 Defendants 427 Unknown defendants 428 Purchaser pendente lite 428 3. Bill or petition 428 Form of petition 428 Formsofbills 429 20 ANALYSIS OP CONTENTS. Forms of bills for partition and dower 433 Form of petition for partition 435 4. Process of appearance in 436 How summoned 436 Absent defendants 436 Service by copy of petition, etc 436 5. Interpleader . . .' 437 Liens on shares of part owners 437 6. Decree for partition 437 Hearing 437 Appointment of commissioners 438 Allotment of dower, etc ; . 438 Forms, of decrees for partition 439 Form of decree for partition and dower 441 7. Proceedings by commissioners 443 Required to take an oath 443 Form of oath 444 Duty of commissioners 444 Report of commissioners 445 Forms of reports of commissioners 445 Form of decree confirming report 447 8. Exceptions to report of commissioners 448 9. Decree of sale 448 Dower interest 449 Interest of unknown owners 449 Form of decree for sale 450 10. Exceptions to report of sale 451 11. Confirmation of sale 451 Form of decree confirming sale 452 CHAPTEE XXXI. PROCEEDINGS FOR DOWER. Section 1. Nature of dower 433 2. In what dower attaches _ 457 Aliens entitled to 459 In lands mortgaged before marriage 459 In lands mortgaged to secure purchase money 459 Dower in surplus after sale on mortgage 459 Not in estate created by mortgage Ann 3. Dower, now barred Ann By jointure, etc Ann Bywill.etc '"' 461 Renunciation of will aco Effect of divorce, etc 4go By abandonment and adultery aba Not by judgment, etc arm ANALYSIS OP CONTENTS. 21 When by exchange of land 464 Persons selling by order of court 465 4. Elements md incidents op dower 465 Transfer of dower 465 6. Suits for dower 466 Duty of heirs to assign 466 Who may file petition 467 Where to be commenced 467 Where infants are petitioners or defendants 467 Guardian ad litem 467 6. Frame of petition 467 Parties to 467 Unknown defendants 468 Answer of defendants 468 Form of petition for, by widow 468 Affidavit to 469 Form of petition by husband 469 Form of petition by heirs 470 7. Process of appearance. 471 How summoned 471 Unknown parties 471 Non-resident defendants 471 Service by copy of petition 472 Setting aside decree, when defendant not personally notified ." 472 8. Interpleader 472 9. Hearing and decree 472 Form of decree 473 10. Commissioners to assign dower 474 Appointment of 474 Form of oath of -. 474 Duty of commissioners 474 Dower may be assigned in a body 475 Homestead, etc 475 Report of 475 Subject to direction of .court 475 11. Allowance in lieu of dower 476 18. Damages for refusal to assign dower 477 13. Mode of ascertaining value of dower, etc 478 Dr. Wigglesworth's table 479 Table showing present value of annuity at 5 per cent. 479 Portsmouth or Northampton tables 480 Eule for computing value of life estate, or annuity 481 14. Miscellaneous provisions of the statute 481 Dower assigned by county court in applications for leave to sell lands to pay debts 481 Waste by persons to whom dower is assigned 482 22 ANALYSIS OF CONTENTS. CHAPTEE XXXII. BILLS FOR DIVORCE. Section 1. Nature op 483 2. Causes FOR DIVORCE 485 3. Jurisdiction of 485 Where commenced 485 Residence of complainant 486 Effect of divorce 486 4. Natural impotency 486 Form of bill for 489 5. Former marriage 490 Form of hill for 490 6. Adultery 491 Circumstantial evidence 492 Frame of bill for 498 For"m of bill for, by husband 493 Form of bill for, by loife, praying alimony, etc 494 7. Willful desertion 496 Form of bill for 497 8. Habitual drunkenness 498 Form of bill for, praying for alimony, custody of chil- dren 499 9. Attempting the life of the other 501 Form of bill for 501 10. Extreme and repeated cruelty 502 Form of bill for, by husband 503 Form of bill for, by wife, praying for injunction 504 11. Conviction of crime 506 Form of bill for 507 12. Defenses to 508 Condonation 508 Recrimination 510 13. Injunction in 510 When proper 511 Custody of children pendente lite 511 14 Hearing and decree 512 Trial by jury 512 Forming an issue .' 512 Form of order directing an issue of fact 512 In case of default 513 Confessions by defendant 513 Collusion 514 Proof of foreign marriage „. 514 Changing wife's name 514 Form of decree for adultery, etc 514 ANALYSIS OF CONTENTS. 23 Form of decree for adultery, and custody of children . . . 515 Form of decree, extreme and repeated cruelty 516 15. Alimony and expenses pendente lite 516 Leave to prosecute as poor person 518 Form of petition for alimony pendente lite 518 Amount of allowance 519 Order of reference as to alimony 519 Form of report of master as to allowance of alimony, etc. 520 Form of order confirming master's report 521 Form of order for alimony, etc 521 Permanent alimony -. 521 Sale of - land to satisfy , 522 Form of decree for permanent alimony 523 ■ CHAPTEK XXXIII. SEPARATE MAINTENANCE. Section 1. When granted 525 Grounds for 525 2. Proceedings to obtain "527 Where commenced 527 The bill ...., '. 527 Injunction 527 Form of bill for 527 8. Defenses to 529 4. Practice in, and decrees 529 Reference to master 529 Form of order of reference 530 Form of report of master 530 Amount of allowance 531 Modification of allowance 533 Form of decree for separate maintenance 533 CHAPTER XXXIV. BILLS TO QUIET TITLE. Section 1. When proper, and nature of 537 2. Forms of bills 540 To quiet title and cancel deed 540 To set aside tax deed 541 To set aside contract 544 S. Form of decree 546 Form of decree to quiet title, and to cancel deed 546 24 ANALYSIS OF CONTENTS. CHAPTEE XXXY. Section 1. 2. 3. 4. 5. 6. 7. BILLS TO SET ASIDE WILLS. Nature of, and when proper 547 What necebsary to constitute a valid will 648 Fraud in procuring execution of a will 549 Want of capacity to make a will 550 Form of bill 551 By heirs at law, to set aside a mil . . ., 551 Issue of facts to be tried by a jury 553 Form of order directing 553 Decree setting aside a will 553 Form of 553 CHAPTEE XXXVI. NE EXEAT. Section 1. Nature of, and when proper 555 2. Bill for 558 Form of. ' 558 3. How obtained 559 Bill for 559 Bonds to be given 559 Order directing writ to issue 560 Form of, by judge SCO Form of, by master 561 4. -Proceedings upon 561 The writ — defendant's bond 561 Surety may surrender principal 561 Proceedings in court 563 Quashing writ , 562 Section 1. 2. CHAPTEE XXXVII. BILLS TO HESTEAIN WASTE. Nature of, and when proper 563 Form of bill 5gg Landlord v. tenant, etc 566 ANALYSIS OF CONTENTS. 25 CHAPTER XXXY1II. BILLS RELATING TO TRUSTS. Section 1. ' Nature of, etc 569 2. Form op bill 571 To remove trustee 571 To appoint new trustee, etc 573 CHAPTEE XXXIX. PROCEEDINGS TO ENFORCE MECHANIC'S LIENS. Section 1. Nature op 575 8. Where a lien is given 576 Suits by administrators, etc. 577 Estate to which lien attaches 577 Extent of lien 577 8. The contract upon which it is pounded 579 Within what time to be completed 579 Implied .contracts 579 Owner failing to comply 580 Materials furnished contractor 580 4. Discharge op lien 580 6. Limitation op lien 581 As against owner ■ 581 As against creditor, etc 581 6. Incumbrances and other liens , 582 Prior incumbrances ' 582 Rule for adjusting conflicting claims 588 Conflicting liena 583 Where claims are not due 584 Parties may contest each other's claims 584 Fraudulent incumbrances 584 Delay in one case, not to effect trial of others 584 7, Sub-contractor's lien 585 Notice to be given to owner 586 Copy of contract to be served 586 Notice filed with circuit clerk * 586 Extent of lien 586 Owner may retain money due to pay 587 Statement to be furnished owner '. 587 When lien may be enforced 587 Owner may file bill, etc 588 Proving claims, etc 586 Contractor may give bond 589 I 26 ANALYSIS OF CONTENTS. Where contractor fails to complete contract &S9 Limitation of 590 8. Bills and Petitions 590 Parties to 591 Form, of bill, on written contract 592 Form of petition, on verbal contract 594 Form of petition, on implied contract 596 9. Proceedings upon 598 Summons 598 Notice by publication - . . 598 Cases to be placed on chancery docket 598 10. Amendments 599 11. Answebs 599 Form of answer by owner 600 Form of, setting up discha/rge of Hen 602 Form of, setting up another lien 602 12. Cross-bill 604 Form of, setting up lien 604 13 Decrees and sales 606 When part of premises can be sold 606 Sales, how made 606 Eedemption allowed 606 Execution for balance * 607 Form of decree, etc 607 Form of decree, reserving adjustment 608 Form of decree, adjusting liens, etc 608 14, Costs 611 CHAPTER XL. INJUNCTIONS. Revised Statutes of 1874, of Illinois, relating to 612 Judges authorized to grant 612 Master may grant, when 612 Notice of application for 612 To stay judgments, where had 612 Shall operate as a release of errors 612 Judgments before J. P.. 613 As to part of judgment 613 Bond required 613 Approval of bond : 613 Bond to be filed before writ issues . . .' 614 Suggestion of damages on dissolution 614 Contempt in violating 614 Motion to dissolve in vacation 614 Motion to dissolve for want of equity 615 Motion to be determined on testimony 615 ANALYSIS OF CONTENTS. 27 Affidavits may be read 615 Continuance of motion to dissolve 615 Depositions on hearing of motion 615 Depositions on final hearing 610 Effect of appeal on injunction ' 616 Further bond to be given 616 Granted on Sunday 616 Worm of suggestion of damages 617 CHAPTER XLI. MISCELLANEOUS FORMS. » Order where defendant appears, etc., and admits his con- tempt, that he put in his answer. . , 618 Order committing defendant for disobeying order to put in answer, etc 618 Order in case of contempt, for not answering, where de- fendant denies his contempt, directing interrogatories. . . 619 Order convicting defendant of contempt after examination on interrogatories 620 Order to refer second or third answer on old excep- tions, etc. 621 Order for sheriff acting as sergeant-at-arma 621 Order for sequestration 622 Order of reference where defendant does not submit to answer exceptions 622 Order for further answer after report of master 623 Order for attachment on third answer being held insuf- ficient 623 Order for examination of defendant on interrogatories, on third answer being held insufficient 623 Order for leave to amend bill after a plea to part has been allowed 624 Order of reference to master, etc 624 Order of reference of plea of former suit pending 625 Order directing plea to stand for an answer 625 Order allowing complainant to dismiss his bill 625 Order to pay money into court 625 Final decree dismissing bill at hearing 626 Order for cause to stand over to add new parties 626 Order for cause to stand over to supply proof 626 Interrogatories for examination of party in contempt 627 Answer to interrogatories for examination of a party in contempt 627 Report of master upon exceptions to answer ._ 628 Further answer after exceptions and amendment 628 28 ANALYSIS OF CONTENTS. Report of master as to sufficiency of defendant's examina- tion .629 Exceptions to master's report on exceptions to answer 629 Agreement to submit the cause on written arguments 630 Abstract of pleadings and evidence 630 Brief and points to be used on the hearing 631 CHAPTEE XLII. PRACTICE IN THE SUPREME AND APPELLATE COURTS. Section 1. Jurisdiction of the supreme court 633 Original jurisdiction 634 In revenue cases. 634 Mandamus 636 Habeas corpus 637 Appellate jurisdiction 637 From appellate court 639 From circuit court, etc 641 2. Jurisdiction or appellate courts 641 Appellate jurisdiction only 642 Power of court 642 Practice and pleading ,642 May enter judgments in vacation 643 To what district v . 643 Opinions 643 Appeals to — bond 643 3. Agreed cases 645 As to questions of law 646 4. Writ op error — supersedeas 647 Limitation 647 To whom directed 648 Process on writs of error 648 Form of prcecipe for 649 For scire-facias, .etc 650 Return day 650 Notice to non-residents, etc 651 To purchasers and 'terre-tenants 652 Supersedeas 652 When granted — application for 653 Effect of 655 Security for costs 655 5. Appeals 656 When record to be filed 656 Dismissal of — damages 657 Not for want of sufficient bond 658 Effect of appeal 658 ANALYSIS OF CONTENTS. * 29 6. Records op inferior courts 659 How prepared 659 Placita or convening order 660 What is not part of record 660 Praecipe for 661 Forms of 662 Amendment of transcript 663 Additional record 663 Amendments of 664 Removing from clerk's office < 664 7. Docket 665 Docketing and hearing 665 Advancing causes on 665 Redocketing cases not decided 666 Call of 666 Time for filing abstracts and briefs 666 Effect of failure, etc 669 Rehearing docket 670 8. Assignment of errors, and proceedings thereon . . . 670 Additional errors may be assigned 672 Form of assignment of errors 672 Cross-errors 673 Joinder in error =. 673 Form of 674 Release of errors 674 Time of filing 676 Form of plea 676 „ Trial of issues 677 9. Motions 677 When to be made 677 In what order 678 Special motions 678 Affidavits in support of 678 To vacate orders 679 10. Suggestion of diminution of record 679 When to be suggested 679 Costs on certiorari 680 Form of 680 11. Original papers 681 When they will be compelled to be produced 681 12. Abstracts of the record 681 Time for filing 684 Costs of 684 13. Brief and argument 684 Number of copies. 685 Oral argument 686 Time allowed for 688 14. Advance-fees to clerk 689 .30 * ANALYSIS OF CONTENTS. 15. Cases taken from appellate to the supreme court 690 Manner of making up records, etc 691 Appeals prayed in vacation 694 16. Judgments 694 Remittitur 695 Reversal — remanding 696 Special directions 696 Effect of 696 17. Executions 696 18. Rehearing 697 Application for, etc 697 Order staying proceedings 699 Answer to petition. 701 19. Licensing attorneys — striking names prom roll... 701 Examination 701 In appellate court 702 From other states 703 By whom issued, etc 704 Oath to be taken 704 Roll of attorneys 704 Striking names from roll, etc 704 For refusing to pay over money, etc ... ; 705 Notice of complaint 706 Information 706 30. Library 707 ANALYSIS OF CONTENTS. 31 RULES OF PRACTICE FOR THE COURTS OF EQUITY OF THE UNITED STATES. Section 1. Preliminary regulations 708 2. Process 710 3. Service of process 711 4. Appearance 712 5. Bills taken pro confesso 712 6. Frame of bill 713 7. Scandal and impertinence in bills 714 8. Amendments of bills 715 9. Demurrers and pleas 716 10. Answers ." 717 11. Parties to bills 720 12. Nominal parties to bills 721 13. Bills of revivor and supplemental bills 721 14. Answers 722 15. Amendments of answers 722 16. Exceptions to answers 723 17. Replication and issue 724 18. Testimony — how taken 724 19. Testimony de bene esse 727 20. Form of last interrogatory 727 21. Cross-bill 728 22. Reference to, and proceedings before, masters . . . 728 23. Exceptions to report of master 730 24. Decrees '31 25. Guardians and prochein amis 731 PUTERBAUGH'S OHAJSTCEKY Pleading and Practice. CHAPTEK I. GENERAL PEINCIPLES OF EQUITY PLEADING. As has been said in regard to pleading at law, the important object to be attained in equity pleading is to bring the subject matter of contention in a suit to an issue — to a point where a matter is affirmed on one side and denied on the other— So render the facts in each party's case plain and intelligible aJ>d to refer the points at issue to the court, with all possible sim- plicity, for its decision. It is the statement, in legal form, of the facts which go to make up the charge and defense of par- ties in litigation ; and.its substantial rules are founded in the soundest and closest logic. Precision and brevity, certainty and simplicity, are to be kept constantly in view in framing pleadings. All superfluous verbiage and useless repetitions should be carefully avoided. The mode of statement must be such as to make the pleadings intelligible to the parties and the court, without recurring to possible facts which do not appear, and with such a degree of certainty that nothing can, from that pleading, be presumed to the contrary, (a) (a) Well Eq. PI. 3 ; Mont. Digest, 10, and notes, Z. S. and D. : Co. Litt. 803. 3 34 GENERAL PRINCIPLES. General Principles of Pleading. The pleadings in a suit in equity are commenced on the part of the complainant by a Bill or Information. The defense consists either of a Demurrer, which is a defense by law upon an admission of the facts charged in the bill ; or a Plea, which is defined by Lord Eedesdale to be " a special answer, showing or relying upon one or more things as a cause why the suit should be either dismissed, delayed or barred ;" (o) or an answer to the charges contained in the bill or information; or the defendant may demur to one part of the bill, plead to another, and answer to another, if the nature of his case requires it. To a demurrer the complainant may join as in proceedings at law ; and to a plea or answer, reply, which is termed a Replication, These various pleadings and their respective offices will b* considered in subsequent chapters. <&) Mitt Ch. PI. 177 ; see Coop. Eq. PI. 233 ; Beame's PI: Eq. 1. CHAPTER II. COMMENCEMENT OF A SUIT IN CHANCER*. Section 1. How Commenced. 2. Where Commenced. 3. Security for/Costs. SECTION 1. HOW COMMENCED. By BUI. — A suit in chancery is commenced by filing a bill or petition with the clerk of the proper court. This bill is in the nature of a petition addressed to the court or chancellor, and contains a statement of the facts out of which the com- plainant's claim arises, and prays the relief to which he considers himself entitled, {a) The filing of the bill is the commencement of the suit, and any service had therein on process issued, or by publication of notice, made prior thereto, is a nullity. (&) By Information. — If the suit is instituted on behalf of the government, or people, or those who partake of the prerogative of the same, such as idiots and lunatics, or whose rights are under its particular protection, such as objects of public charity, etc., the matter of complaint is presented to the court by way of information, and not by way of bill or petition, (e) by the proper officers of the crown, government, or people, as by the attorney general or state's attorney. When the suit immediately con- cerns the rights of the crown, government or people, alone, the officers proceed purely by way of information, (d) When the (a) Story's Eq. PI. § 7; Barton's Suit in Eq. 39; Rev. Stat. (1874) 198; Rev. Stat. (1877) 184; Hodgen vs. Gnttery, 58 111. 431. (b) Hodgen vs. Guttery, 58 111. 431. (c) Story's Eq. PI. § 7; Coop. Eq. PI. 101-107; Welf. Eq. PI. 58; 1 Dan. Dh. Pr. 1; Lord Red. 7. (<*) Coop. Eq. PI. 101, 102; Welf. Eq. PL 59; Story's Eq. PI. § 7. 36 COMMENCEMENT OF SUIT. Where Commenced. suit does not immediately concern the rights of the government or people, it is brought on the relation of some person, whose interests are affected, whose name is inserted in the informa- tion, and is termed the relator, and he is answerable for costs. The In Chancery. CD. ) I do hereby enter myself security for all costs which may accrue in the above cause. Dated this — day of , 18—. E. F. If a suit is commenced by a non-resident without filing a bond for costs, the court will, on motion, dismiss the same, and the solicitor filing the bill will be required to pay all costs accruing thereon, unless the bond shall be filed within such time as shall be allowed by the court, and when so filed it will relate back to the commencement of the suit ; and the right to require security for costs shall not be waived by any pro- ceedings in the cause. (I) (Z) Rev. Stat. (1874) 297; Rev. Stat. (1877) 295; see Baker vs. Palmer, 83 111. 568. See observations upon bonds for costs in Puterbaugh's Common Law Pleading and Practice, pp. 39-43. OHAPTEE III. BILLS IN CHANCEKY. Section 1. Division op Bills. 2. Constituent Parts op an original Bii^. 8. The Address. 4. The Introduction. 5. The Premises, or Stating Past. 6. Confederating Part. 7. Charging Part. 8. Jurisdictional Clause. 9. Interrogating Clause. 10. Prater for Relief. 11. Prater for Process. 12. Frame of a Bill. 13. Signing op Bells. 14. Swearing to Bills. 15. Parties to Bills. 16. Ancient Bells. SECTION I. DIVISION OF BILLS. Bills in chancery are divided into those which are original, and those which are not original. If they relate to matters which have not previously been brought before the court, they are termed original bills, such as form the greater part of the business of a court of chancery. Bills not original are those which relate to some matter already litigated in the court by the same parties, and which are either an addition to, or a continuance of, an original bill, or both, (a) There is another class of bills, which is of a mixed nature, and sometimes par- takes of the character of both of the others. Thus, for example, bills brought for the purpose of cross-litigation, or of contro- verting, or suspending, or reversing some decree or order of 'a) Story's Eq. PI. § 16 ; 1 Barb. Ch. Pr. 34 ; Mitf. Eq. PI. 23 ; Coop. Eq. PI. 43 ; Barton's Suit in Eq. 41. 40 BILLS IN CHANCEEY. , : *l Division of Bills — Constituent Parts of. the court, or of obtaining the benefit of a former decree, or of carrying it into execution, are not considered as strictly a con- tinuance of the former bill, but in the nature of original bills. (5) And if these bills require new facts to be stated, or new parties to be brought before the court, they are so far strictly of the nature of supplemental bills, (c) Besides the different- divisions of bills here enumerated, original bills are usually divided into : first, original bills pray- ing relief; and, secondly, original bills not praying relief. Original bills praying relief, are again subdivided into three heads: first, original bills, praying the decree of the court touching some right claimed by the person exhibiting the bill, in opposition to rights claimed by the person against whom the bill is exhibited ; secondly, bills of interpleader ; and, thirdly, certiorari bill, (d) Original bills not praying relief, are of two kinds ; first, bills to perpetuate the testimony of witnesses ; and, secondly, bills of discovery. Original bills praying relief are those most usually filed, and they will be more fully considered than those of the other sort. Bills of every kind will, however, receive consideration under proper heads. SECTION II. CONSTITUENT PAKTS OF AN ORIGINAL *BILL. The ordinary form and structure of a bill in equity, though not originally prescribed by any positive regulations, has been long established by usage. The rules which have recently been promulgated by the superior courts of chancery in Eng- land, and by the Supreme Court of the United States, (e) have introduced many changes in the ancient precedents, and, if (6) Story's Eq. PI. § 16 ; Coop. Eq. PI. 16. (o) lb. () This part, constituting the real substance of the bill, upon which the court is called to act, requires great skill and judg- ment to frame it accurately ; and if it has not the proper legal certainty, the defect, as we shall presently see, unless removed, may become fatal in every subsequent stage of the cause, (q) Certainty required. — The bill must have a reasonable cer- tainty, but need not set out the matter with that decisive and catagorical certainty wjtuch is requisite in pleading at common law. (r) It should, however, state the right, title, or claim of the complainant, with accuracy and clearness ; and it should in like manner state the injury or grievance complained of, and the relief asked of the court. The other material facts ought to be plainly yet succinctly alleged, and with all necessary and (n) Story's Eq. PI. § 28 ; Irnham vs. Child, 1 Bro. Ch. 94 ; Wilkes vs. Sogers, 6 Johns. R. 565 ; Gordon vs. Gordon, 3 Swanst. 472 ; Sidney vs. Sidney, 3 P. Wins. 276 ; Watkyns vs. Watkyns, 2 Atk. 96 ; Peacock vs. Terry, 9 Georgia, 148. (o) Skinner vs. Bailey, 7 Conn. .496 ; Parker vs. Garter, 4 Munf . 273 ; Cowles vs. Buchanan, 3 Ired. Ch. R. 374 ; Miller vs. Furse, 1 Bailey, Ch. R. 187 ; United States Bank vs. Sfiultz, 3 Ham. 61 ; Pinson vs. Williams, 23 Miss. 64. (p) Story's Eq. PI. § 28 ; Chicot vs. Lequnse, 2 Ves. 317, 318 ; Wheeler vs. Trotter, 3 Swanst. 177 ; Nesmith vs. Calvert, 1 Wood & Minn. 34 ; Clarke vs. Periam, 2 Atk. 337 ; Dunham vs. Eaton & H. R. R. Co. 1 Bond, 492. (g) Story's Eq. PI. § 27 ; Flint vs. Field, 2 Anst. 343 ; Coop. Eq. PI. 11 ; White vs. Taw, 7 Vt. R. 357 ; Harrison vs. Nixon, 9 Pet. 483 ; Langdon vs. Goddard, 2 Story, 267. (r) 1 Barb. Ch. Pr. 38 ; 3 Woodes. Lect. 55, p. 370 ; Cockrell vs. Gurley, 26 Ala. 405 ; Birley vs. Staley, 5 Gill & J. R. 432 ; Tiernan vs. Poor, 1 Gill Sl J. R. 216 ; Surget vs. Byers, 1 Hemp. 715. 44 BILLS IN CHANCERY. ■ The Premises, or Stating Part — Certainty Required. convenient certainty as to the essential circumstances of time, ' place, manner, and other incidents, (s) A party seeking the aid of a court of equity should show distinctly and unambiguously all the facts necessary to entitle him to that aid. (t) The right, title and interest of the complain- ant should be stated with accuracy, clearness and precision, and the proof in the case must correspond with the allegations ; (w) but the claims of the defendant may be stated in general terms.(i)) The complainant is not bound to set forth his adversary's rights with the same particularity as his own. And where the extent and character of those rights are more particularly within the knowledge of the adverse party, it is sufficient to allege generally that the defendant has, or claims to have, some rights relative to the subject matter of the controversy, leaving hmi to disclose in his answer the nature and extent of them, (w) Or the complainant may anticipate a defense, and allege any matter necessary to explain or avoid it ; or omitting to do so, on the coming in of the answer he njay introduce the new matter into the case by an amendment to the bill, (x) The material allegations of the bill must be clearly and positively averred ; (y) and not by way of recital. And a party cannot have relief upon a case not stated in his bill, (s) (*) Mitf. Eq. PI. 41 ; Coop. Eq. PI. 5 ; Shepard vs. Shepard, 6 Conn. R. 37 ; . Egremont vs. Cowell, 5 Beav. 620-623. (t) Shepa/rd vs. Shepard, 6 Conn. R. 37 ; tFnited States Bank vs. Shulte, 9 Ham. R. 61 ; Merrier vs. Lewis, 39 Cal. 532 ; Egremont vs. Cowell, 5 Beav. 620 ; Flint vs. Field, 2 Anst. 543 ; Waugh vs. Bobbins, 33 111. 182. («) Fitzpatriak vs. Beatty, 1 (Him. 454 ; Webster vs. Webster, 55 111. 325 ; Oibson vs. Carson, 3 Ala. R. 421 ; Thayer vs. Lane, Walk. Ch. R. 200 ; Knox vs. Smith, 4 How. U. S. R. 298 ; Ttiton vs. Tilton, 9 New Hamp. 385 ; HarrU vs. Knickerbocker, 5 Wend. 638; Seltz vs. Unna, 6 Wall. 327. (b) Story's Eq. PI. § 255 ; Eq. Draft. 5, note c. (w) Morgan vs. Smith, 11 111. 194 ; Barring vs. Nash, 1 Ves. & B. R. 551 ; 1 Barb. Ch. Pr. 40 ; Aikin vs. Ballard, Rice Ch. 13 ; see Van Antwerp vs. Eulbwd, 8 Blatchf. TJ. S. C. C. 282. (as) Whitens. Morrison, 11 111. 361. (y) Primmer vs. Patton, 32 111. 528; Wright vs. Dame, 22 Pick. 55; McElwain v. Willis, 9 Wend. 548 ; Mclntyre vs. Trustees etc. 6 Paige, Ch. R. 239 ; Spense vs. Duren, 3 Ala. 250 ; Daniels vs. Taggart, 1 Gill & J. 311 ; Hood vs. Inman, 4 Johns. Ch. R. 437 ; Edwards vs. Chilton, 4 W. Va. 352. (s) White vs. Taw, 7 Vt. 357 ; Wood vs. Genet, 8 Paige, Ch. R. 137 ; Pane v*. Greeley, 75 111. 400; Morton vs. Smith, 86 111. 117. BILLS IN CHANCEKY. 45 The Premises, or Stating Part — Certainty Required. The pleadings should consist of nothing but a clear statement of facts. All matters of inference or argument are impertinent, and will be expunged, and usually with costs, (a) Whatever is intended to be proved should be alleged, otherwise evidence can- not be received of the facts ; (5) and the facts ought to be so fully and particularly stated that the chancellor can see, from the face of the bill, whether or not he has jurisdiction, and, supposing the same to be true, tell precisely what decree to render, (c) And if a bill, as presented, does not exhibit #, case for the interfer- ence of a court of equity, it may be dismissed or demurred to for want of equity ; (d) but it will not be dismissed for that cause, unless it is radically such, so that no discovery or proof can make it a proper subject of equitable jurisdiction, (e) If it shows grounds for relief, but states them imperfectly, it may be aided by the proofs or admissions ; (f) but if the facts are so imperfectly stated that the court cannot decide upon the merits from the facts alleged, the bill will be dismissed, (g) A bill must, at the final hearing, show that the matter. of it is within the jurisdiction of a court of chancery. (A) The material facts relied upon for relief must be so distinctly alleged in the bill, that the defendant can readily put them in issue, or the relief cannot be granted, though the facts be (a) Hood vs. Inman, 4 Johns. Ch. Rep. 437 ; Chalmers vs. Chalmers, 4 Gill & J. 420 ; Sheldon vs. Bobbins, 2 Root, 190. (5) Hayward vs. Carroll, 4 Har. & J. 518 ; Parker vs. Garter, 4 Munf . 273 ; Hodgins vs. White, 2 Ired. C!h. R. 575 ; Crocket vs. Lee, 7 Wheat. 522 ; Story's Bq. PI. §28,257. (c) Pennebaker vs. Wathan, 2 A. K. Marsh. 315 ; Dunham vs. Baton etc. R.R. Co. 1 Bond, 492. (d) Seed vs. Johnson, 24 Maine, 322 ; Morel vs. Houston, Charl. R. M 284 ; Winkler vs. Winkler, 40 111. 179 ; Sheldon vs. Harding,. 44 111. 68 ; Vieley vs. Thompson, 44 111. 9 ; Bruen vs. Bruen, 43 111. 409. («) LeBoy vs. Veeder, 1 Johns. Ch. R. 417 ; Holman va>. Holman, 3 Desau. 210 ; Wright vs. Dame, 22 Pick. 55. (/) Edwards vs. Massey, 1 Hawks, 359 ; Fisher vs. Stone, 8 Scarn. 68. (g) Fowler vs. Sanders, 4 Call. 361 ; Whittaker vs. Degraffenreid, 6 Ala. 303 ; White vs. Lewis, 2 A. K. Marsh. 123; Clark vs. Bell, 2 B. Monroe 1. (h) Estep vs. Watkins, 1 Bland, 486 ; Townshend vs. Duncan, 2 Id. 45; Herbert vs. Hobbs, 3 Stewart, 9 ; Moore vs. bail, Id. 155 ; McOrew vs. Tom- teckbee Bank, 5 Porter, 547 ; Meyer vs. Pfeiffer, 50 111. 485. 46 BILLS IN CHANCEEY. The Premises, or Stating Part — Certainty Required. proved ; (i) and no admission in an answer to a bill can, under a*ny circumstances, lay the foundation for relief under any specific head of equity, unless it be substantially set forth in the Jbill. (J) And a defect in the charging part of a bill cannot be supplied by a subsequent interrogatory ; and the interrogatories are to be construed by the charging part of the bill ; (k) nor can defects in, the charging part be supplied by any subsequent proceedings in the case. (I) Where the facts stated in the bill are disproved, or are defect- ively stated, relief may be granted in some instances upon the facts stated in the answer, (m) Where a party comes into equity to open a settled account on the ground of error, the bill must contain a precise specifi- cation of the errors, otherwise the complainant will not be allowed to prove them at the hearing, even though the settle- ment of the account is expressed to be "errors excepted," which is the usual form of settling accounts, (ri) Where a party has an adequate remedy at law, a court of equity will not interfere ; (o) except in cases of fraud. Fraud is a matter of chancery jurisdiction, and that court would not (t) Hardmg vs. Sandy, 11 Wheat. TJ. S. 103 ; Skinner vs. Baity, 7 Conn. 496 ; Wiggin vs. Mayor etc. 9 Paige, Ch. R. 16 ; Gfibson vs.- Carson, 3 Ala. 421 Knox vs. Smith, 4 How. 298 ; Kidd vs. Manley, 6 Gush. 156. (j) Jackson vs. Ashton, 11 Pet. 229 ; Thomas vs. Warner, 15 Vt. 110 Story's Eq. PI. § 28, 257, 263 ; Crocker vs. Lee, 7 Wheat. 522 ; Maury vs. Lewis, 10 Yerger, 115. (k) Mechanics' Sank vs. Levy, 3 Paige, Ch. R. 606 ; Cowles vs. Buchanan, 3 Ired. Ch. 374 ; Parker vs. Carter, 4 Muni 273 ; Kisor vs. Stancifer.W-nght, 323 ; Story's Eq. PI. § 27. (0 Lingan vs. Henderson, 1 Bland, 236 ; Tovmshend vs. Duncan, 2 Id. 45 West vs. Hall, 3 Har. & J. 221 ; Edwards vs. Massey, 1 Hawks, 359. {m) Deatley vs. Murphy, 3 A. K. Marsh. 474 ; Maury vs. Lewis, 10 Yerger, 115. But see Jackson vs. Ashton, 11 Pet. 229 ; Thomas vs. Warner, 15 Vt. 110; Story's Eq. PI, § 257, 264 ; Daley vs. Barnard, 8 Gill & J. 171. (ra) Mebane vs. Mebane, 1 Ired. Eq. R. 403 ; Baker vs. Biddle, 1 Bald. 394 (o) Smith vs. Powell, 50 111. 21 ; Thomas vs. Caldwell, Id. 139 ; School etc. vs. Miller, 54 111. 338 ; Winkler vs. Winkler, 40 111. 179 ; Gardner vs. Kersey, 39 Geo. 664 ; Bassett vs. Brown, 100 Mass. 355 ; Ohling vs. Luitjens, 32 HI. 23 ; Taylor vs. Turner 87 111. 296. BILLS IN CHANCERY. 47 The Premises, or Stating Part — Certainty Required. lose it merely by the statute conferring a similar jurisdiction upon courts of law. (p) A complainant must allege in his bill, that he has done, or ofiered to do, or is ready to perform, everything necessary to entitle him to the relief he seeks, or a suflieient excuse for its non-performance, (q) It is a maxim of equity, of universal application, that he who seeks equity must do equity, (r) Where the facts are charged in the bill to be, or must, from the necessity of the case, be, within the knowledge of the defendant only, a precise allegation is not necessary, (s) A bill may be framed with a double aspect, so that, if one ground fail, the complainant may rely upon another, which may be inconsistent with the former, (t) Where relief is sought, on the ground of fraud or usury, the charges should not be general, but the facts and circumstances upon which the charge is founded should be fully and speci- fically stated, (u) If an allegation be equivocal, and two mean- ings present themselves, the one most unfavorable to the pleader will be adopted, (v) {p) Bdbcock vs. McOamant, 53 111. 215 ; Beaugenon vs. Turcotte, Breese, 167 ; Armstrong vs. Caldwell, 2 Scam. 418 ; Weiriok vs. DeZoya, 2 Gilm. 388 ; Scott vs. Whitlow, 20 111. 310 ; Glastenbury vs. McDonald, 44 Vt. 450 ; Freeman vs. Keagan, 26 Ark. 373. (q) Oliver vs. Palmer, 11 Gill & J. 426 ; Walburn vs. Ingilby, 1 Mylne & Keene, 61 ; DeWolfve. Pratt, 42 111. 198 ; Warner vs. Richmond, 53. 111. 52 ; Board of Supervisors vs. Henneberry, 41 111. 179. (r) Corby vs. Bean, 44 Mo. 379 ; Stowe vs. Bussell, 36 111. 18, 29. (») Aikin vs. Ballard, Rice, Ch. 13 ; Morgan vs. Smith, 11 111. 194. (f) Yarick vs. Smith, 5 Paige, Ch. R. 137 ; Murphy vs. Clark, 1- S. & M. 221 ; Baines vs. McGee, Id. 208 ; Hart vs. McKeen, Walker's Ch. 417. (u) Newell vs. Bureau Co. 37 111. 253 ; Elston vs. Blanchard, 2 Scam. 420 ; Hovey vs. Holcomb, 11 111. 660 ; McConnel vs. Gibson, 12 111. 128 ; Klein vs. Horine, 47 111. 430 ; Henry Co. vs. Winnebago Drain Co. 52 111. 299 ; Lewis vs. Lewis, 9 Mo. 183 ; MUler vs. Cotton, 5 Geo. 516 ; Witherspoon vs. Carmi- ehael, 6 Ired. Bq. 143 ; Wraser vs. Hart, 2 Strobh. Eq. 250 ; Steed vs. Baker, 13 Gratt. 380 ; Smell vs. Boudinot, 1 Stockt. N. 3. 381 ; Moore vs. Green, 19 How. IT. S. 69 ; Very vs. Levy, 13 How. U. S. 345 ; Badger vs. Badger, 2 Wall. 87 ; Langdon vs. Goddard, 2 Story, 267 ; Magniae vs. Thompson, 2 Wall. Jr. C. C. 209. (©) HolliganvB. C. & B. 1. B. B. Co. 15 111. 558 ; Lemon vs. Stevenson, 36 111. 49 ; Vining vs. Leeman, 45 111. 246 ; Happy vs. Morton, 33 HI. 398 ; West vs. Sehnebly, 54 111. 523. 48 BILLS IN CHANCERY. The Premises, or Stating Part — Exhibits — Multifariousness. Exhibits. — If a bill makes an instrument a part thereof, with- out setting forth the contents, or annexing a copy, it is bad on demurrer, (w) The exhibits are not a part of the bill, but are part of the proof, and cannot aid defective statements in the bill, (a?) Copies of deeds, filed with the b'ill as exhibits, are made, in legal intendment, portions thereof, and should be objected to before the hearing, if at all. {y) And where the execution of a deed has been admitted, in the answer, and a copy has been filed, as an exhibit, it cannot be objected to for the first time at the trial, (z) The bill must state the whole subject — and not too many subjects — Matters in litigation not divisible. The bill must be brought for the whole subject in dispute. The court will not permit a bill to be brought for a part of a matter only, so as to expose a defendant to be harassed by repeated -litiga- tions concerning the same thing ; (a) nor for one of two claims upon the same defendant. (5) Multifariousness. — As the bill should not omit anything which is material to state, it is equally important that it should not run into the opposite defect, and attempt to embrace too many objects ; it being a rule in equity that two or more dis- tinct subjects cannot be included in the same suit. The offense against this rule is termed multifariousness, and will render a bill liable to demurrer, (c) As to what constitutes multifari- ousness, it is impossible to lay down a- general rule ; every case must be governed by its own circumstances, and the court must (w) Martin vs. MoBryde, 3 Ired. Ch. 531 ; King vs. Trice, 3 Ired. Ch. 568. , (x) Gaton vs. Willis, 5 Ired. Ch. 335. (^) Bwrget vs. By era, 1 Hemp. 715. (s) Green vs. Campbell, 2 Jones' N. C. Eq. R. 446. (a) Mitf . Eq. PI. 133 ; 1 Barb. Ch. Pr. 40. (6) Bprfoy vs. Purfoy, 1 Vern. 29 ; 1 Barb. Ch. Pr. 40. (c) 1 Dan. Ch. Pr. 437 ; 1 Barb. Ch. Pr. 40 ; Supervisors vs. State's Attorney, 31 HI. 74 ; Olmer vs. Piatt, 3 How. U. S. R. 333 ; Many vs. Beekman Iron Go. 9 Paige, Ch. R. 188 ; Luckett vs. White, 10 Gill and J. 48.0 ;. Abraham, vs. Phttora, 3 Wend. 538 ; Thurman vs. Sheldon, 10 Yerger, 383 ; Buffalow vs. Buffalow, 2 Ired. Ch. 113 ; Stuart vs. Goalter, 4 Rand. 74. BILLS IN CHAJSTCEEY. 49 The Premises, or Stating Part — Multifariousness. exercise a sound discretion on the subject, (d) Joint and sepa- rate demands cannot be joined in a bill without rendering it multifarious, (e) And as a bill by the same complainant, against the same defendant, for different matters, would be considered multifarious, so a fortiori, would a bill by several complainants, demanding distinct matters against the same defendant, (f) But a bill does not become multifarious because all the complainants are not interested to an equal extent, {g) When the object of the bill is single, to establish and obtain relief for one claim in which all the defendants may be inter- ested, it is not multifarious, although the defendants may have different and separate interests ; (A) thus, several underwriters on a policy of insurance may join in a bill in equity against the assured, (i) A bill brought against .several defendants, seek- ing redress for injuries arising out of transactions with them separately, at different times, and relating to different subjects, would be bad for multifariousness. '(J) Two good causes of action, arising out of the same transaction, in which all the defendants are interested in the same claim of right, may be joined in one suit without being multifarious, (k) But if a claim (d) Oaines vs. Chew, 2 How. XT. S. R: 619 ; Warren vs. Warren, 56 Maine, 360 ; Oliver vs. Piatt, 3 How. U. S. 333 ; Id. 2 McLean, 267 ; Shields vs. Thomas, 18 How. U. S.253 ; FitchvB. Creighton, 24 How. IT. S. 159 ; McLean vs. Laf. Bank, 3 McLean, 415 ; Sedam vs. Williams, 4 McLean, 55. (e) Harrison vs. Hogg, 2 Ves. Jr. 323 ; Boyd vs. Hoyt, 5 Paige, Ch. R. 05 ; Ingersoll vs. JG/rby, Walk. Ch. 65 ; Ryan vs. Trustees of Shawneetown, 14 HI. 20 ; Burnett vs. Lester, 53 HI. 325 ; West vs. Randall, 2 Mason, 181 ; see AtioUl vs. Ferrett, 2 Blatchf . C. C. 40. (/) Jones vs. Garcia Bel Rio, 1 Turn. & Russ. 301 ; 1 Barb. Ch. Pr. 40 ; Supervisors etc. vs. State's Attorney, 31 111. 74 ; Sheriff vs. Oil Co. 7 Phil. (Pa.) R. 4 ; Barcy vs. Lake, 46 Miss. 109. (g) Kuye vs. Moore, 1 Sim. & Stu. 61 ; 1 Barb. Ch. Pr. 41 ; Clarkson vs. BePeyster, 3 Paige, Ch. R. 320 ; Bank of Muskingum vs. Carpenter, Wright, 729 ; Shields vs. Thomas, 18 How. IT. S. 253. (A) Bugbee vs. Sargeant, 23 Maine, 269. (t) Buckley vs. Starr, 2 Day, 552. (j ) Coe vs. Turner, 5 Conn. 86 ; Mix vs. Hotchkiss, 14 Conn. 32 ; Ingersoll vs. Kirby, Walk. Ch. 65 ; Burnett vs. Lester, 53 111. 325 ; Walker vs. Taylor, 42 Ala. 297 ; Burling vs. ffammer, 20 N. J. Eq. 220 ; Supervisors etc. vs. State's Attorney, 31 111. 74. (k) Varick vs. J3mith, 5 Paige, Ch. R. 137. 50 BILLS IN CHANCEEY. The Premises, or Stating Part — Multifariousness. against several defendants is joined with a claim in which one only of the defendants is interested, and which is wholly dis- connected with the claim against all the defendants, all or either of them may demur for multifariousness. (I) A bill in which demands against the defendant, in his private capacity, are joined with demands against him as executor, etc., will be dis- missed on demurrer, (m) A bill is not multifarious if it be single as to the subject matter and object thereof, and the relief sought, if all the defendants are connected, though differently, with the whole subject of dispute ; (n) and where a bill is framed with a two-fold object, either for a specific delivery of the property, or an enforcement of a supposed lien, it is not multifarious, (o) It seems that }he objection of multifariousness is confined to cases where the case of each defendant is entirely distinct and separate in its subject matter from that of his co-defendants, for the case of one defendant may be so entire as to be incapa- ble of prosecution in several suits, and some other defendant may be a necessary party to only a portion of the case ; in which latter case, multifariousness is not an available objec- tion. (j>) If the owner of the equitable title to land, in a bill to compel a conveyance of the legal title to him, should join the owner of adjoining land as a defendant to settle a disputed question of boundary, the bill would be multifarious, (q) Where separate contracts are made with the same individual, with respect to the same subject matter, they may be combined in one bill ; (r) and persons holding distinct interests under the (I) Smft vs. Eckford, 6 Paige, Ch. E. 22. (m) Davone vs. Fanning, 4 Johns. Ch. R. 199 ; QiU\B. Clagett, 2 Gill & J. 14; Bryan vs. Blythe, 4 Blackf. 249. (n) Watson vs. Cox, 1 Ired. Ch. R. 389 ; Vann vs. Harget, 2 Dev. & Bat Ch. 31 ; see Payne vs. Hook, 7 Wall. 425. (o) Murphy vs. Clark, 1 S. & M. 221 ; Baines vs. McGee, Id. 208 ; 9 Yerger, 387 ; Whitney vs. Whitney, 5 Dana, 327. (p) Kennedy vs. Kennedy, 2 Ala. 571. (g) Hickman vs. Cooke, 3 Humph. 640. (r) Lyneh vs. Johnson, 2 Litt. 98 ; Hart vs. McKeen, Walt Ch. 417. BILLS IN CHANCERY. 51 The Premises, .or Stating Part — Scandal and Impertinence. same title may join in a suit for investigating their equity ; (s) but several complainants claiming distinct rights, having no community of interests, cannot join in the same action ; {t) nor can several injuries by separate persons be joined in chancery any more than at law. (u) Several property owners may join in the same bill to restrain the collection of an illegal tax assessed against them severally, asking relief against the same injury on the same ground, (v) Scandal and Impertinence. — In framing a bill, the solicitor should see that it does not contain statements or charges which are scandalous or impertinent; for if it does, it may be excepted to by the defendant, and the court will order such parts to be expunged, with costs against the party offend- ing, (w) Scandal consists in the allegation of anything which is unbecoming the dignity of the court to hear, or is contrary to good manners, or which charges some person with a crime not necessary to be shown in the cause, (x) To which may be added, that any unnecessary allegation bearing cruelly upon the moral character of an individual, is also scandalous, (y) When a bill is not pertinent, or unnecessarily reflects upon the opposite party, such portions of it will be stricken out. at the costs of the solicitor so offending. Neither suitors no? solicitors should be allowed to manifest their personal feel ings upon the records of the court, (s) («) TUford vs. Henderson, 1 A. K. Marsh. 483 ; Scrimeyer vs. Buchannon 3 A. K. Marsh. 219 ; Batik of Muskingum vs. Carpenter, Wright, 729. (*) Barry vs. Sogers, 2 Bibb, 314 ; Armstrong vs. Athens Co. 10 Ohio 235 ; Ohio vs. Etlis, 10 Ohio, 456. («) Burnett vs. Lester, 53 111. 325 ; Glamorgan vs. Guisse, 1 Mo. 131. (e) Mt, Carbon Coal etc. Co. vs. Blanchard, 54 111. 240 ; Harvard vs. Tht St. Clair and Monroe Levee and Drainage Co. 51 111. 130 ; see Cutting vs. Gilbert, 5 Blatchf. C. C. R. 259. (u>) 1 Dan. Ch. Pr. 451-2 ; 1 Barb. Ch. Pr. 41 ; MeConneU vs. HolobusJt. 11 111. 61. (a;) 1 Barb. Ch. Pr. 41 ; Prac. Reg. 383. (y) Coffin vs. Cooper, 6 Ves. 514. (8) McConndl vs. Holobush, 11 111. 61 ; 1 Dan. Ch. Pr. 451. 52 BILLS IN CHANOBEY. Constituent Parts — Confederating Part. Impertinence is the same kind of fault in pleadings in equity which in those at common law is denominated sur- plusage. This at law, taken in its largest sense, includes the introduction of unnecessary matter of whatever description, and includes the admission of matter wholly foreign, as well as of matter, which, though not wholly foreign, does not require to be stated, or which, if stated, should be stated with con- ciseness, (a) It is not impertinence, in a bill amended after answer, to adopt the language of the answer, and set forth its averment by way of pretense, with a charge to meet them. (I) In a bill to remove a trustee, it is not scandalous or impertinent to challenge every act of the trustee as mis- conduct, nor to impute to him corrupt or improper motives in the execution of his trust ; nor to allege that his conduct is the vindictive consequence of some act on the part of the cestui que trust, or ef some change in his situation. But it is impertinent, and may be scandalous, to state any circum- stances as evidence of general malice or personal hostility ; because the fact of malice or hostility, if established, affords no necessary or legal inference that the conduct of the trus- tee results from such motives, and because such a course tends to render a bill in equity an instrument of inquisition into the private life of every trustee, (c) SECTION VI. IV. CONFEDERATING PAET. The confederating part contains a general allegation or general charge of a confederacy between the defendants and other persons to injure or defraud the complainant. The usual form of the charge is that the defendants, combining and confederating together, and with divers other persons, as yet to the complainant unknown, but whose names, when (a) Steph. on PI. 422 ; 1 Barb. Ch. Pr. 41. Langdon vs. Pickering, 19 Maine, 214. (S) Beeley vs. Boehm, 2 Mad. 176. (c) Barb. Ch. Pr. 41 ; Earl of Portsmouth vs. Fellows, 5 Mad. 450. BILLS IN CHANCERY. 53 Constituent Parts — Charging Parts. discovered, he prays may be inserted in the bill, and they be made parties defendants thereto, with proper and apt words to charge them with the premises, in order to injure and oppress the plaintiff in the premises, do absolutely refuse, etc., or pretend, etc. (d) Though the charge of confederation is usually made in the bill, it is treated as entirely nugatory, and need not be denied or responded to in the answer ; (e) and may be omitted in the bill, or inserted, at the option of the complainant. (_/") The practice of inserting the charge arose from the idea that parties could not be added to the bill, by amendment, without it, but it is entirely unnecessary for that purpose. The mere allegation of combination or confederacy of the defendants, simply as such, could never alone have been a just foundation for the jurisdiction of a court of equity in the absence of all other proper matter to sustain it. Con- federacy or combination, as a gravamen, seems clearly cogni- zable at law. (g) SECTION VII. V. CHARGING PAET. Although the charging part of the bill is generally inserted, yet it is not essential that it should be. That part of the bill may be omitted. (A) The equitable ground of relief, on the part of the complainant, must appear in the stating part of the bill ; for if the equity only, appears in the charging part, the bill will be demurable. (*) If the complainant can foresee the matter which the defendant will set up to protect (d) Story's Eq. PI. § 29 ; Barton's Suit in Eq. 33 ; Coop. Eq. PL 9 ; Eq. Draft. 5-6. (e) Story's Eq. PI. § 29 ; Eq. Draft. 5, note d ; Barton's Suit in Eq. 33 ; Coop. Eq. PL 10 ; 1 Hoff Ch. Pr. 41 ; 1 Dan. Ch. Pr. 375. (/) Eq. Pr. U. S. S. C. 1870, Rule 21 ; 8 Ves. 404 ; 3 Mad. 11. {g) Barton's Suit in Eq. 33, note ; Story's Eq. PL § 27-29 ; Mitf . Eq. PL 40. (h) Well Eq. PL 102; Partridge vs. Haycraft, 11 Ves. 575; Story's Eq. PL § 33 ; Eq. Pr. V. S. S. C. Rule 21. (i) Flint vs. Field, 2 Anst. 543 ; Farren's Bill in Ch. 27 ; Gregory vs. Molesworth, 3 Atk. 626. 54: BILLS IN OHANCEEY. Constituent Parts — Jurisdictional Clause. himself against the allegations of the bill, such matter may be introduced by this mode of charging, which affords an opportunity of rebutting its effects, by charging facts of an opposite tendency. It is also used sometimes for the purpose of discovering the nature of the defendant's case; or to put in issue some matter which the complainant does not desire to admit ;(J) for which purpose the charge of the pretense of the defendant is held to be sufficient, (k) Thus, for example, if a bill is filed on any equitable ground by an heir, who apprehends that his ancestor has made a will, he may state his title as heir, and alleging the will by way of pretense of the defendant's claiming under it, may make it a part of the case, without admitting it. (A SECTION VIII. VI. JURISDICTIONAL CLAUSE. This part of the bill is intended to give jurisdiction of the suit to the court by a general averment, that the acts com- plained of are contrary to equity, and tend to the injury of the complainant, and that he has no remedy, or not a com- plete remedy, without the assistance of a court of equity, (m) This clause in the bill, however, is wholly unnecessary, and the omission of it does not render the bill defective, (n) and it may be used or not, at the discretion of the complainant, (o) The averment does not confer jurisdiction, but the facts stated in the bill must, of themselves, make a case within the juris- diction of a court of chancery, (j>) At best,, therefore, the clause is a mere superfluity. (f) Barton's Suit in Eq. 34 ; Gregory vs. Molesworth, 8 Atk. 626. (k) Mitf. Eq. PI. by Jeremy, 43 ; Parbridge vs. Hayeraft, 11 Ves. 574. (1) Story's Eq. PI. § 31 ; Van Heythuysen's Eq. Draft, p. 5 ; Barton's Suit in Eq. 34 ; Welf. Eq. PI. 103. (m) Barton's Suit in Eq. 87, 28 ; Story's Eq. PI. §10, 34 ; Coop. Eq. PI. 10, 11. (n) Story's Eq. PI. § 34 ; Lord Red. 44 ; 1 Dan. Ch. Pr. 573, note ; Bate man vs. Willoe, 1 Soli. & Let 204 ; Welf. Eq. PI. 104. (o) Eq. Pr. U. S. S. C. 1870, Rule 21 ; Eq. Draft. 5, note g. (p) Lord Red. 44 ; May vs. Parker, 12 Pick. 34 ; Mitf. Eq. PI. 35 ; 1 Barb. Ch. Pr. 36 ; Chase vs. Palmer, 12 Shep. 341. BILLS IN CHANOEKY. 55 Constituent Parts — Introductory Part. SECTION IX. Vn. INTERROGATING PART. The interrogating part of the bill contains a prayer that the defendants may answer all and singular the matters contained in the stating and charging parts of the bill, not only according to their respective knowledge and remembrance of the facts stated, but also, according to the best of their several and respective hearsay, information and belief. The bill usually requires an answer under oath ; but under the statute of Illinois, as well as several other states, the complainant may waive the necessity of the answer being made on the oath of the defend- ant, in all cases except where the bill is filed for discovery onry ; and, in such cases, the answer may be made without oath, and shall have no other or greater force, as evidence, than the bill. The general interrogatory in a bill is sufficient to entitle a party to a full answer to all the matters stated, (q) But this fact has not, in practice, precluded the use of special interroga- tories ; which are sometimes regarded as of great importance in enlarging a general charge, and extending it to all the minute and collateral circumstances attending the fact. The interrogatories are always to be construed by the charg- ing part of the bill, and must be founded upon the statements or charges in the bill, and cannot be more extensive than these, (r) If there is nothing in the prior part of the bill to warrant an interrogatory, the defendant is not bound to answer it ; (s) but if he does answer it, the matter is put in issue, (t) The interrogating part of the bill is not regarded as abso- (S) Jagues vs. Methodist Church, 1 Johns. Ch. R. 75 : Story's Eq. PI. § 36, 38.. (r) Mechanics' Bank vs. Levy, 3 Paige, Ch. R. 606 ; Gowles vs. Buchanan, 3 Ired. Ch. R. 374 ; Mucklesion vs. Brown, 6 Ves. 62 ; Parker vs. Carter, 4 Munf. 273 ; Story's Eq. PI. § 35. (s) Eberly vs. Oroff, 9 Harris, 256 ; Wigram on Disc. 74 ; 1 Barb. Ch. Pr. 36 ; Kisor vs. Stanscifer, Wright, 323 ; Hagthorp vs. Book, 1 Gill and J. 270 ; Story's Eq. PI. 8 36. * (t) 1 Ves. Sr. 534, 538; Mitf. Eq. PI. 38; Story's Eq. PI. §36,37; 1 Dan. Ch. Pr. 432 ; Eq. Draft. 5, note g. 56 BILLS IN CHANCERY. Constituent Parts — Prayer for Relief. lutely necessary, though it is generally used, (u) especially where the answer of the defendant is required to be under oath. . Where the complainant waives the necessity of the answer being made on the oath of the defendant, no good reason for interrogatories exists, and they may well be dispensed with. The sworn answer of a defendant to a bill, when the oath is not waived, can only be overcome by the evidence of two wit- nesses, or its equivalent, (v) But the evidence of two witnesses is sufficient to overcome the statement in a sworn answer, (w) If an answer is not sworn to it is not evidence in the cause for any purpose; it performs the office of a plea only, (x) "When the oath to an answer is waived by the bill, an answer on oath is no more than a pleading, and does not require the testimony of two witnesses to overcome it ; and it is an improper practice for a solicitor to put in an answer for his client under oath, where the oath is waived, (y) And the effect of requiring an answer under oath cannot be avoided, after answer has been filed, by filing an amended bill waiving the oath. The answer under oath to the original bill, would still be evidence on the hearing of the case, so far as it is responsive to the bill. (») SECTION X. VHI. PEATEB FOB BELIEF. The bill must also contain a prayer for relief. This must depend upon the facts of each case, and the nature of the relief sought, and should be framed with great care. Unless («) Story's Eq. PI. § 38. (») Barton vs. Moss, 32 111. 50 ; Duncan vs. Wilson, Id. 517 ; Wightman vs. Sort, 37 111. 123 ; Maple vs. <9co«,41 111. 50 ; Wildey vs. Webster, 42 111. 108 ; Phelps vs. White, 18 111. 41 ; Russell vs. JSusstM, 54 111. 250 ; Panton vs. Teft, 22 111.- 366. (w) Martin vs. Beersal, 36 111. 222. (x) Willis vs. Henderson, 4 Scam. 13 ; Chambers vs. Howe, 36 111. 171 ; Hopkins vs. Granger, 52 111. 504. (y) Willenborg vs. Murphy, 36 111. 344 ; Wallwork vs. Derby, 40 111. 527. (e) Wylder vs. Crane, 53 111. 490. BILLS IN CHANCERY. 57 Constituent Parts — Prayer for Relief. there is a prayer, there can be no relief for the complainant. {a) And if, for any reason founded on the substance of the case, as stated in the bill, the complainant is not entitled to the relief he prays, either in whole or in part, the defendant may demur. (5) The prayer for relief is divided into two lands : Prayer for specific relief, and prayer for general relief. In most cases, a prayer for general relief is sufficient to enable the complainant to obtain such a decree as his case entitles him to ; but it is the usual and better practice for the complain- ant to pray, first for such specific relief as he thinks he ought to have, and then for general relief, (c) But under the prayer for general relief, such relief only can be granted as the case -stated in the bill, and sustained by the proof, will justify, (d) When there is no obstruction to the particular relief prayed for, the complainant cannot abandon it, and ask a different decree under the prayer for different relief, (e) It is never safe to omit the prayer for general relief, for if the complainant should mistake the relief to which he is enti- tled, in his special prayer, the court may, under the prayer for general relief, grant him such relief as he ought to have, con- sistent with the case made in the bill. (/) But if there is no (as) Driver vs. Partner, 5 Porter, 9. (6) Mitf . Eq. PI. 133 ; 1 Barb. Ch. Pr. 40 ; Story's Eq. PI. § 40 ; see Gould vs. Byon, 14 111. 53 ; Kuckeribeirer vs. Beckert, 41 111. 172. (e) Barton's Suit in Eq. 46 ; Story's Eq. PI. § 40-43 ; Hunter's Suit in Eq. 16, 18 ; Thomason vs. Smithson, 7 Porter, 144 ; McNab vs. Heald, 41 111. 326 ; Raper vs. Saunders, 21 Gratt. Va. E. 60. (d) Hobson vs. Me Arthur, 16 Pet. 182 ; Gibson vs. McCormick, 10 Gill & J. 65 ; Lingan vs. Henderson, 1 Bland, 236 ; James vs. Bird, 8 Leigh, 510; Danforth vs. Smith, 23 Vt. 247 ; Brown vs. McDonald, I Hill, Ch. E. 297; Jones vs. Bush, 4 Harring. 1 ; Kelley vs. Payne, 18 Ala. 371 ; Stone vs. Ander- son, 6 Foster, N. H. 506; Gunnell vs. Cockerill, 84 111. 319. (e) Allen vs. Oof man, 1 Bibb, 469 ; EiUeary vs. Hurdle, 6 Gill, 105 ; Eernegay vs. Carroway, 2 Dev. Ch. 403 ; Pleasants vs. Glasscock, 1 S. & M. Ch. 17. (/) Wilkinson vs. Beal, 4 Mad. 408 ; Beaumont vs. Boulbree, 5 Ves. 495 ; Hiern vs. Mill, 13 Ves. 119, 120; English vs. Foxall, 2 Pet. 595; Hobson vs. McArthur, 16 Pet. 195 ; Danforth vs. Smith, 23 Vt. 247 ; HUleary vs. Hurdle, 6 Gill, 105 : Scudder vs. Young, 25 Maine, 153 ; Sheppard vs. Starke, 3 Muni'. 29; Stanley vs. Valentine, 79 111. 544; Hopkins vs. Snedaker, 71 111. 449. 58 BILLS IN CHANCEEY. Constituent Parts — Prayer of Process. prayer for general relief, then if the complainant should mistake the relief to which he is entitled, no other relief can be granted, and his suit must fail, at least, unless an amendment of the prayer is allowed, (g) Under the general prayer for relief, the court will only grant such relief as the statements of the bill will justify, and will not ordinarily allow a bill framed for one pur- pose to answer for another ; especially if the defendant may be surprised or prejudiced by it. If, therefore, the complain- ant has doubts as to the relief he ought to have, he should frame his bill with a double aspect, so that if the court ^hould decide against him in one view of the case, it may yet afford him assistance in another. (A) SECTION XL IX. PKAYEE OF PEOCESS. This part of the bill prays process to compel the defendant to appear and answer the bill, and abide the determination of the court on the subject. Care must be taken to insert the names of all persons who are intended to be made parties ; for it is a general rule that none are parties, although named in the bill, against whom process is not prayed. (*) The ordinary process prayed is a writ of subpoena, or summons, as provided in Illinois, which requires the defendant to appear and answer the Dill on a certain day, named in the writ. If the complainant wishes an injunction against the defendant, he must not only pray for it in the prayer for relief, but also, in the prayer for {g) Story's Eq. PL §41 ; Coop. Eq. PI. 14; Cook vs. Martyn, 2 Atk. 2; Polk vs. Clinton, 12 Ves. 62-65 ; T/wmaso.n vs. Smithson, 7 Porter, 144. (h) Story's Eq. PI. §42 ; Dan. Ch. Pr. 434, 441 ; 1 Hoff. Ch. Pr. 49 ; Mitf. Eq. PI. 38 ; Coop. Eq. PI. 14 ; Jones vs. Parishes etc. 3 Swanst. 208 ; Legalva. Miller, 2 Ves. 299 ; Walker vs. Devereaux, 4 Faige, Ch. 229 ; Scudder vs. Young, 25 Maine, 153 ; Colton vs. Boss, 2 Paige, Ch. R. 396, and the cases there cited as to proper forms of prayer for relief. (i) Barb. Ch. Pr. 37 ; Story's Eq. PI. § 44 ; Coop. Eq. PI. 16 ; Fawkes vs. Pratt, 1 P. Wins. 593 ; Windsor vs. Windsor, 2 Dick. 707 ; Elmendorf vs Selaney, Hopk. 555. BILLS EST CHANCEKY. 59 Frame of Bill — Signing of Bills. process. (J) A prayer for general relief will not be sufficient to authorize it. (k) If only a temporary injunction is wanted, the bill must also contain a formal prayer for it. (Z) SECTION XIL FKAME OF A BILL. We have now given the nine formal parts of an original bill praying relief, as it is generally framed; upon which Lord Redesdale has made *the following remarks: "Some of them are not essential ; and, particularly, it is in the discretion of the person, who prepares the bill, to allege any pretense of the defendant in opposition to the plaintiff's claims, or to interro- gate the defendant specially. The indiscriminate use of these parts of a bill, in all cases, has given rise to a common reproach to practisers in this line, that every bill contains the same story, three times told. In the hurry of business, it may be difficult to avoid giving ground for the reproach. But in a bill, pre- pared with attention, the parts will be found to be perfectly distinct, and to have their separate and necessary operation." (m) SECTION XIII. SIGNING OF BILLS. Except in cases where an injunction is asked for, or a dis- covery, or an answer on oath is required from the defendant, bills are usually signed by the solicitor alone, and not by the party, (ri) If the complainant sues in person, however, it must be signed by him. And in that case, it seems that it need not be signed by counsel, (o) The general rule, however, is that the bill must be signed by counsel. And if it is not so signed, (J) 1 Barb. Ch. Pr. 37 ; Wood vs. Beadel, 3 Sim. 273. (A) Barb. Cb. Pr. 37 ; Wright vs. Atkyns, 1 Ves. & B. 314. (1) Walker vs. Devereaux, 4 Paige, Ch. R. 229. (m) 1 Mitf. Eq. PI. by Jeremy, 47 ; Story's Eq. PI. § 46. (n) Hutch vs. Eustaphiere, 1 Clarke, 63 ; 1 Barb. Ch. Pr. 43. (o) 1 Hoff. Cb. Pr. 97 ; 1 Barb. Ch. Pr. 44 60 BILLS IN CHANCERY. Signing of Bills — Swearing to Bill. it will be, on motion,' stricken from the files ; or it may be demurred to for that cause, {jp) Signing by counsel, on the back, is held sufficient, (cj) The 24th rule of practice for the courts of equity of the United States, provides, that " every bill shall contain the sig- nature of counsel annexed to it, which shall be considered as an affirmation on his part, that upon the instructions given to him, - and the case laid before him, there is good grpund for the suit, in the manner in which it is framed." The great object of this rule is to secure regularity, relevancy and decency in the allegations of the bill, and the responsibility and guaranty of counsel, that he regards the bill as being pro- perly filed. Hence it is that counsel are held responsible for the contents of the bill ; and, if it contains matter which is irrelevant, impertinent or scandalous, such matter may be ex- punged, and the counsel may be ordered to pay costs to the party aggrieved, (r) SECTION XIV. SWEABING TO THE BILL. There is no rule in Michigan (s) or Illinois, requiring bills in cases of general equity cognizance to be sworn to. If a bill seeks a discovery of deeds or writings, and prays relief, founded thereon, and the relief so prayed be such as might be obtained at law, if the deeds or writings were in the cus- tody of the complainant, he must annex to his bill an affidavit that they are not in his custody or power, and that he knows not where they are, unless they are in the hands of the defend- (p) Dillon vs. Francis, Dick. 68; French vs. Dear, 5 Ves. 547; Kirkley vs. Burton, 5 Mad. 378; Gary vs. Batch, 2 Edw. Ch. R. 190; Patridge vs. Jackson, 2 Edw. Ch. K. 520 ; Story's Eq. PI. § 47 ; Roach vs. Rulings, 5 Cranch, C. C. 637. (q) Dwight vs. Humphreys, 3 McLean, 104. (r) Story's Eq. PI. § 47 ; Coop. Eq. PI. 18, 19 ; Gilb. For. Rom. 210, 211 ; Bfmerson vs. Dallison, 1 Ch. 194 ; McGonnel vs. Rollobush, 11 111. 61. (s) Moore vs. Oheeseman, 23 Mich. 332. BILLS IN CHANCEKY. 61 Swearing to Bill — Parties. ant, otherwise the bill will be demurable. (t) But if the relief sought extends merely to the discovery of the instrument, or is otherwise such as can only be given in a court of equity, such an affidavit is not necessary. («) Where the bill seeks an injunction it should be verified by affidavit, (v) It will not suffice to swear to the material facts upon information and belief. They should be positively sworn to. (w) And where, upon an ex parte application for an interlo* cutory injunction, the complainant states the facts on which his equities rest upon information and belief, he should present affi- davits of their truth from the persons of whom his knowledge is obtained, and who can swear positively to the facts, (x) An exception, however, is recognized in the case of an injunction in aid of a creditor's bill against the judgment debtor alone, no third parties being joined as defendants, and in such case it is sufficient if the complainant swears upon information and belief as to the recovery of the judgment and return of execu- tion nulla bona, (y) SECTION XV. PARTIES TO BILLS. It cannot be expected that in a condensed. work of this kind, the important consideration as to who are proper and necessary parties to a bill can meet with an extended exam- ■ — * ' " #~* (t) Story's Eq. PI. § 477,478, 288, 311; Coop. Eq. PI. 125; Looker vs. Boll, 3 Ves. 4 ; By ves vs. Ryves, 3 Ves. 343; and see Russell vs. Clarice etc. 7 Cranch, 69, 89 ; 1 Story's Eq. Jur. § 71 ; Root/mm vs. Dawson, 3 Anst. 859 ; Whitchurch vs. Golding, 2 P. Wms. 541 ; Humphrey-* vs. Humphreys, 3 P. Wms. 395; Hook vs. Barman., 1 Sim. & Stu. 227. (u) Lord Red. Tr. PI. 112, 113; 1 Mad. Ch. Pr. 26, 7, 197; Whitchurch vb. Golding, 2 P. Wms. 541. («) High on Inj. g 984-987. (w) Campbell vs. Morrison, 7 Paige, Ch. R. 157 ; Reboul's Heirs vs. Beh- rens, 5 La. An. 79 ; Cutlett vs. McDonald, 13 La. An. 44. (x) High on j'nj. g 984 ; Campbell vs. Morrison, 7 Paige, Ch. R. 157: Bank of Orleans vs. Skinner, 9 Paige, Ch. R. 305 ; Youngblood vs. Schamp, 2 McCart. 42. (y) Hamersley vs. Wickoff, 8 Paige, Ch. R. 72 ; Si&er vs. Sizer, 9 Paige, Ch. R. 605 ; High on Inj. § 984-986. BILLS IN CHANCERY. Who should be made Parties. ination. This is a subject of great practical importance, and of no inconsiderable difficulty in a great variety of cases. The reader is referred to Chapter IV of Story's Equity Pleadings; 1 Daniels' Chancery Practice, Chapter V; and Barbour on Parties ; where these authors have devoted a good deal of attention and a large space to the subject. A brief summary of the rules in relation to proper parties to pro- teedings in chancery is, however, indispensable, and will be given. Who should be made parUes. — In chancery, all the parties in interest, and whose rights n*ay be effected, ought to be made parties to the bill; and if the court is called upon, in the exercise of its discretion, to dispense with the proper parties, some reason therefor ought to be disclosed in the bill, (s) Courts will take notice of the omission of proper defendants in the bill, though no demurrer be interposed, when it is manifest that the decree will have the effect of depriving them of their legal rights, (a) If the answer to a bill discloses an interest in a third person in the subject matter of the suit, he should be made a defendant in the bill, that he may have an opportunity of defending his inter- ests, which might otherwise be effected without a hearing, (b) There are some exceptions to the general rule that all persons interested in the subject matter in the suit should be made parties; but one general rule, however, governs all these (z) OUham vs. Cairns, Breese, 164 ; Scott vs. Moore, 3 Scam. 306 ; Martin vs. Dry den, 1 Gilm. 187 ; Spear vs. Campbell, 4 Scam. 424; Whitney vs. Mayo, 15 111. 251; Prentice vs. Kimball, 19 111. 320; Eoare vs. Harris, 11 111. 24. Smith vs. Rotan, 44 111. 506 ; Hassett vs. Ridg'eley, 49 111. 197 ; Harris vs. Carter, 3 Stewart, 233 ; Mechanics' Bank vs. Seton, 1 Pet. 299 ; Story vs. Livingston, 13 Pet. 359 ; Hussey vs. Dole, 24 Maine, 20 ; McConnell vs. MaConnell, 11 Vt. 290; Crocker vs. Higgins, 7 Conn. 342; New London Bank vs. Lee, 11 Conn. 112 ; Hawley vs. Cramer, 4 Conn. 717 ; Oliver vs. Palmer, 11 Gill & J. 426 ; Park vs Ballenline, 6 Blackf. 223 ; Wescott vs. Minn. Mining Co. 23 Mich. 145 ; Strong vs. Downing, 34 Ind. 300 ; Hicken- botham vs. Blackledge, 54 111. 316. (a) Herrington vs. Hubbard, 1 Scam. 569 ; Bohan vs. Galoway, 13 m. 75 ; Prentice vs. Kimball, 19 111. 320. (6) Herrington vs. Hubbard, 1 Scam. 569 BILLS IN CHANCEEY. 63 Parties — How Described — Persons under Disability. exceptions, and that is, " that as the object of the rule is to accomplish the purpose of justice between all of the parties, and as it is a rule founded in some sort upon public con- venience and policy, rather than upon positive principles of municipal or general jurisprudence, courts of equity will not suffer it to be applied so as to defeat the very purpose of justice, if they can dispose of the merits of the case before them without prejudice to the rights or interests of other persons who are not parties ; or if the circumstances of the case render the application of the rule impracticable, and if the persons thus interested are unknown to the complainant, or are exceedingly numerous, they need not be made parties." (c) A person interested in the subject matter of a suit in equity, refusing to join with the complainant, may be made a defend- ant, though his interest is with the complainant, (d) And if it appear to the court that a person who may be interested disclaims all interest in the controversy, he need not be made a party, (e) Sow described. — Parties to suits in chancery should be described by their proper names, if known ; if their names are unknown, they must be made parties in the manner pre- scribed b} r statute. (/") Parties may be made to a bill under an averment that they have, or pretend to have, title to land ; and if the charge in the bill is untrue, by disclaiming, they may obtain costs. Such parties, if there is no equitable ground of relief shown against them, should demur separately, not join in a general demurrer, (g) Persons under disability. — Suits in chancery may be com- menced and prosecuted by infants, either by guardian or next (c) Willis vs. Henderson, 4 Scam. 13; Webster vs. French, 11 111. 254; West vs. Randall, 2 Mason, 181 ; Whitney vs. Mayo, 15 111. 252 ; Robinson vs. Smith, 3 Paige, Ch. E. 222 ; Smith vs. Rotan, 44 111. 506. (d) Smith vs.- Socket, 5 Gilm. 534; Whitney vs. Mayo, 15 111. 252; Con- tee vs. Dawson, 2 Bland, 264 ; Pogson vs. Owen, 3 Desau. 31 ; Cook vs. Hod- ley, Cooke, 465 ; Morxe vs. Hovey, 9 Paige, Ch. E. 197. (e) Johnson vs. Rankin, 3 Bibb, 86. (/) Eirkham vs. Justice, 17 111. 107. (g) Finch vs. Martin, 19 111. 105. 64 BILLS IN CHANCERY. Parties — Interest of Parties — Joinder of Parties. friend, and by conservators on behalf of the persons they represent. (A) The suit must be in the name of the minor by his next friend or guardian ; (*) and an order of court appointing a next friend is unnecessary. (J) The next friend may be selected after the suit is commenced, (k) Interest of parties. — The bill must show that the com- plainant has an interest in the subject matter in the suit ; (J) a mere contingent, or possible interest, or probability of future title, is insufficient, (m) It must also be shown that the de- fendant has an interest, and is liable to answer to the com- plainant therefor, (n) Parties- having conflicting interests in the subject of litigation should not be joined as complainants in the suit. (0) The statement, showing the rights of the complainant, by whom and in what manner he is injured, or in what he wants the assistance of the court, and a prayer for relief suitable to his case, and for that purpose that the process of the court may issue to bring the defendants before it, form the substance and essence of every bill; and must not, by any means, be omitted, (p) Joinder of parties. — Where a tax is sought to be levied without authority, several property owners, having a common interest in the subject, and asking relief against the same {h) Rev. Stat. (1874) 198; Rev. Stat. (1877) 184. (i) Hoare vs. Mwrris, 11 111. 24 ; Holmes vs. Field, 11 111. 431 ; Stewart vs. Howe, 17 111. 71. (J) French vs Oreath, Brgese, (Beecher's ed.) 111. E. 31. (k) Stamps vs. Kelley, 22 111. 140. (J,) Mitf. Eq. PI. 156-7 ; Smith v. Hollenbeck, 46 111. 252 ; Kerr vs. Watts, 6 Wheat. 550 ; Mansfield vs. Hoagland, 46 111. 359 ; see Smith vs. Hollen- beck, 51 111. 223. (m) Reid vs. Vanderlieyden, 5 Conn. 719 ; Austin vs. Richardson, 1 Gratt. 810 ; Reeves vs. Adams, 2 Dev. Ch. 192 ; Barbour vs. Whitlock, 4 Monr. 180 ; Mitf. Eq. PI. 127; 1 Barb. Ch. Pr. 39. (n) Att'y Gen. vs. Whorwood, 1 Ves. Sr. 534. (o) Grant vs. Van Schoonhoven, 9 Paige, Ch. R. 255. (j>) 1 Barb. Ch. Pr. 39; 1 Dan. 412; see Elder vs. Jones, 85 111. 384. BILLS IN CHANCERY. 65 Parties — Want of Proper Parties — Misjoinder, etc. injury, on the same ground-, may join in a bill to restrain its collection, (j) • Want of proper parties, misjoinder, etc. — Where the want of proper parties, or a misjoinder, appears upon the face of the bill, advantage of it may be taken by demurrer or motion to dismiss; where the want of parties does not so appear, a plea or answer setting up the fact is proper, (r) The want of necessary parties is not, however, a ground for dismissal in the first instance ; but if the complainant neglects or refuses to make the necessary parties, after objection made, the bill will be dismissed, (s) without prejudice, (t) If the objection is not taken until the hearing, the court may order the case to stand over, on terms, with liberty to the complainant to amend, by adding such new parties as may seem to be necessary ; (u) but it cannot be urged at the hearing, unless it is manifest that a decree cannot be made without bringing other parties before the court, (v) If neither party raises the objection, it is com- petent for the court to go on and settle the rights of the parties before it, without prejudice to those who are not parties, (w) (q) Harvard vs. St. Clair Drain Co. 51 111. 130 ; Mt. Carbon C. & B. Co. vs. Vlanchard. 54 111. 240; Conwell vs. WatMns, 71 111. 488. (r) Prentice vs. Kimball, 19 111. 320 ; Spear vs. Campbell, 4 Scam. 434 ; Scott vs. Bennett, 1 ffilm. 646 ; Story vs. Livingston, 13 Pet. 359 ; Marston vs. Humphreys, 24 Maine, 513 ; De la Vergne vs. Everston, 1 Paige, Ch. R. 181 ; Chipman vs. Thompson, Walker, Ch. R. 405 ; but see Bugbee vs. Sargent, 23 Maine, 269. (*) Singleton vs. Gale, 8 Porter, 270; Knapp vs. Marshall, 26 111. 63; Thomas vs. Adams, 30 111. 37. (t) Mims vs. Mims, 3 J. J. Marsh. 103 ; Rowland vs. Gorman, 1 J. J. Marsh. 76 ; Barry vs. Rogers, 2 Bibb, 304 ; Wallace vs. Hawley, 4 J. J. Marsh. 622. (u) Felch vs. Hooper, 20 Maine, 159 ; Nash vs. Smith, 6 Conn. 421 ; Miller vs. McCan, 7 Paige, Ch. R. 451 ; McLaughlin vs. Van Keuren, 21 N. J. Eq. R. 379. (®) Cannon vs. Norton, 14 Vt. 178 ; see Woods vs. Scott, Id. 518 ; La Grange &c. B. B. Co. vs. Bainey, 7 Colw. Tenn. 420 ; De la Vergne vs. Bverton, 1 Paige, Ch. R. 181. (to) LorUlard vs. Coster, 5 Paige, Ch. R. 172. 5 66 BILLS IN CHANCERY. Ancient Bills — Form of Ancient Bill. SECTION XVI. ANCIENT BILLS. It may be profitable here to give the form of an ancient bill, taken from the proceedings of the Record Commission. Barton, in his history of a suit in equity, (x) gives the form ; and speaking of it, says, it was filed in the reign of Henry V, to compel a defendant to- surrender a messuage which was the inheritance of the plaintiff, Katharine. It will be perceived in how small a compass the whole is contained, and yet how completely it takes in the equity of the case. J¥o. 3. Form of cm Ancient Bill. To the Eeverend Father in God, the Bishop of Winchester, Chancellor of England : Beseecheth humbly your poor orator," John Bell, of Calis, soldier, and Katharine, his wife, that whereas William Atte Wode, otherwise called William Atte Downe, of Rochester, father of said Katharine, since dead, heretofore was seised in his demesne as of fee of one messuage with the appurtenances in Rochester, situated in the churchyard there -^ the which William, in the feast of St. Michael, in the twenty-second year of the reign of King Richard II, since the conquest, let to farm to one Simon Stelhard, of Grillingham, the same messuage with the appurtenances, for term of seven years then next ensuing, for a certain sum to him annually to be paid ; the which Simon, within the first two years, was ousted by the executors of the said William, because he would not attorn to them in payment of the rent of the said messuage — the which messuage was since then several times alienated to divers persons, and now so it is, very gracious Lord, that one Piers Savage, now occupier of the same messuage, for which he hath not paid more than mark, hath oftentimes been required to deliver the same to the said John and (a) Barton's Suit in Eq. 39, note (1). BILLS m CHANCEEY. 67 Ancient Bills. Katharine, as the heritage of the same Katharine; and he hath not delivered the same, nor yet will, hut detains it in destruction of their poor estate and perpetual disherison of the same Katharine, if they should not obtain a remedy by your gracious aid in this behalf; and the which John and Katharine are so poor, and the said John so ill, that they cannot pursue the common law. Please your very gracious Lordship to consider the premises, *md thereupon to grant a writ to the said Piers to appear before you at a certain day upon a certain pain, by you to be limited, to answer of the matter aforesaid, and to do right, as good conscience demandeth it, and this for the love of God, and in work of charity. The following general account of these ancient bills is taken from Spence's History of Equitable Jurisdiction, vol. 1, p. 367. " The plaintiff in his bill simply detailed the facts. It was not necessary that the bill should use any particular phrase- ology, -or that it should define or describe the cause of suit in ,any set or definite terms, as in a declaration at law ; it was not founded on any regula juris ; it frequently sought relief against some rule of law. All that the plaintiff had to show was, that his was a case which ought to be enter- tained under the powers given by the general delegation. The bills almost universally pray a subpoena; sometimes a writ of habeas corpus cum causa, or writ of certiorari alone ; sometimes for subpoena as well as one or the other of those writs ; in some instances a sergeant-at-arms, to bring up . the defendant, is prayed for ; sometimes an injunction. Some of the bills pray for the surety for the peace as well as other relief; many of the bills simply ask for relief generally. In some instances the bill consists of interrogatories, upon which it prays the defendant may be examined. The bills always conclude in terms of supplication, as 'for the reverence of God and for work of charity ;' the plaintiff sometimes adding, 'and he shall ever pray for you;' 'and your petitioner shall ever pray,' etc., is still appended to every petition to the chan- cellor. In ancient times the subpoena was not issued unless 68 BILLS IN CHANCEET. Ancient Bills. the case stated in the bill was considered to warrant it, and the chancellor sometimes took the advice of some of the judges on the subject. Sometimes a letter was first written by the chancellor, urging the defendant to do justice to the plaintiff, (y) (y) Barton's Suit in Eq. 39, nbte (1). CHAPTER IY. POEMS OF THE CONSTITUENT PARTS OF AN ORIGINAL BILL. I. THE ADDRESS, (ffl) 1. In. the Circuit Court of the United States. To the judges of tie Circuit Court of the United States, for the District of : 2. In Illinois. To the Honorable , Judge of the Circuit Court of the County of , in the State of Illinois, In Chancery sitting : {The address for the various state courts can he arranged according to the title of the court.) . H. THE INTRODUCTION. (») 3. By a complainant under no disabilities. Your orator, A. B., of the county of , respectfully repre- sents unto your honor that, etc. : 4~ By an unmarried woman. Tour oratrix, C. D., of the county of , respectfully repre- sents unto your honor that, etc. : 6. By a married woman against her husband, or other person. Your oratrix, C. D., wife of D. D., of .the county of , respectfully represents unto your honor, that, etc. : (a) See ante, page 41. 70 FORMS OF AN ORIGINAL BILL. The Address — Premises or Stating Part. 6. By husband and wife. Your orator and oratrix, A. B., and C. B., his wife, of the county of , respectfully represent unto your honor that, etc. 7. By an infant by his father and next friend. Your orator, A. B., of the county of , an infant under the age of twenty-one years, to-wit, of the age of years, by E. B., of the same county, his father and next friend, respectfully represents unto your honor that, etc. 8. By an infant by his guardian. Your orator, A. B., of the county of , an infant under the age of twenty-one, to-wit, of the age of years, by E. F., of the same county, his guardian, respectfully represents unto your honor that, etc. 9. By a Corporation. Your orator, the Company, a corporation duly estab- lished by the laws of the. State of , respectfully represents unto your honor that, etc. 10. In the Circuit Court of the United States. A. B., of , and a citizen of the State of , brings this his bill against C. D., of , and a citizen of the State of , and E. F., of , and a citizen of the State of ; and, thereupon, your orator complains and says that, etc. (b) in. THE PREMISES OB STATING PAET. (d) 11. That, etc. {Here insert all the facts and circumstances of the complainants case, and of the wrong or grievance com- plained of, and conclude stating part as follows :) And your (6) Rule 30 of the Rules' of Practice for the Courts of Equity of the U. S., adopted 1870. (c) See ante, pages 43-52. FORMS OF AN OEIGINAL BILL. 71 Confederating Part — Charging Part. orator well hoped that no disputes would have arisen touch- ing the said, etc. etc. {stating the subject matter) ; but that tho defendant would have complied with the reasonable request of your orator, as in conscience and equity he ought to have ' done. IV. THE CONFEDERATING PART. {This part, as we have seen, may be omitted at the option of thepleader.) (d) 12. But now so »it is, may it please your honor, that the said C. D. combining and confederating with divers persons, {or, if there are several defendants, then thus: combining and confederating with E. F. and G. H., and with divers other persons ; or, the said L. M. and N. M. combining and confederating together, and with divers persons) at present unknown to your orator, whose names, when discovered, your orator prays he may be at liberty to insert herein with apt words to charge them as parties defendant hereto, and con- triving how to wrong and injure your orator in' the premises, he, the said C. D., absolutely refuses to comply with such request, and he at times pretends that, etc. {Sere follows the statement of the defendant's supposed ground o-n which he avoids the plaintiff's claim, and this should be matter dis- proved or traversed in the charging part of the bill.) V.- CHARGING PART. {This part of the bill may also be omitted at the pleader's option.) {e) 13. That the defendant sometimes alleges and pretends {stating the supposed ground of the defendant), and at other times he alleges and pretends, etc. ; whereas, your orator charges the contrary thereof to be the truth, and that {stating the special matter with which the plaintiff meets the defend- ant's supposed case.) (d) See ante, page 52. (e) See ante, page 53. 72 FOEMS OF AN ORIGINAL BILL. Jurisdictional Clause — Interrogating Part. VI. JURISDICTIONAL CLAUSE. {This clause may be omitted as unnecessary.) (f) 14. All which actings, doings, and pretenses of the defend- ant (or defendants) are contrary to equity and good conscience, and tend to the manifest wrong, injury and oppression of your orator in the premises. In consideration whereof, and inas- much as your orator is entirely remediless in the premises, according to the strict rules of the common law, and can only have relief in a court of equity, where matters of this nature are properly cognizable and relievable. To the end therefore, etc. Vn. INTERROGATING PAET. (In many cases this part is unnecessary.) (g) 15. To the end, therefore, that the said C. D. and the rest of the confederates, when discovered, may, upon their several and respective corporal oaths, full, true, direct and perfect answers make to all and singular the matters- hereinbefore stated and charged (or to all and singular the premises, or, to all and singular the charges and matters aforesaid), as fully and particularly as if the same were hereinafter repeated, and they thereunto distinctly interrogated (or as fully in every respect as if the same were here again repeated, and they there- unto particularly interrogated) ; and that not only as to the best of their respective knowledge and remembrance, but also as to the best of their several and respective information, hearsay and belief (or, according to the lest of their respective knowledge, information, and belief); and more especially, that they may answer and set forth : 1. Whether, etc. (Here follows interrogatories to be answered by the ■defendant?) 2. Whether, etc. (/) See ■ante, page 54. (g) See ante, page 55. FORMS OF AN ORIGINAL BILL. 73 Prayer for Relief — Prayer for Process. Vm. PRATER FOR RELIEF (A) 16. {After the interrogating part). And that the defend- ant may come to a fair and just account, etc. (Here state the particular relief ashed) ; and that your orator may have such further and other relief in the premises as the nature of his case shall require, and to your honor shall seem meet. VS.. PRATER OF PROCESS, (h) 17: Prayer for summons. May it please your honor to grant the writ of summons in chancery, directed to the sheriff of the said county of , commanding him that he summon the defendant, C. D., to ap- pear before the said court, on the first day of the next term thereof, to be held at the court house in , in the county of ', aforesaid ; and then and there to answer this bill, etc. 18. Prayer for subpoena. May it please your honor to grant unto your orator the writ of subpoena of , to be directed to the said C. D., and the rest of the confederates when discovered, thereby commanding them, and every of them, at a certain day and under a certain penalty, therein to be specified, (or, therein to be inserted) per- sonally to be and appear before this honorable court, and then and there to answer all and singular the premises, and to stand to, perform and abide such order and decree therein, as to your honor shall seem meet. 19. Prayer for injunction. (After the prayer for summons or subpcena, as in the two last forms, add the following :) And may it please your honor to grant unto your orator the people's writ of injunction, to be directed to the said G. D., restraining him, etc. (Here insert the matter sought to be en- joined), until the further order of said court. (A) See ante, page 58. CHAPTEK V. PEOOESS FOE APPEAEANOB. Section 1. Summons. 2. Service and Return. 3. Notice by Publication. 4. Service by Copy of Bell. 5. Unknown Defendants. 6. Attachment. 7. Attachment with -Proclamation. 8. Commission of Rebellion. 9. Sergeant at- Arms. 10. Sequestration. SECTION I. SUMMONS. The statute of Illinois provides, that, " upon the filing of every bill, the clerk of the court shall thereupon issue a sum- mons, tested, dated and sealed, as a summons in common law suits, directed to the sheriff of the county in which the defend- ant resides, if the defendant be a resident of this State, requir- ing him to appear and answer the bill on the return day of the summons ; .and where there are several defendants, residing in different counties, a separate summons shall be issued to each county, including all the defendants residing therein." (a) A summons must describe the parties correctly, (J) arid be , under seal, (c) or it will be quashed on motion, (d) But such a defect cannot be taken advantage of after a general appear- ance, (e) (a) Rev. Stat. (1874) 199; Rev. Stat. (1877) 185; see Hochlander vs. Hochlander, 73 111. 618. (6) Richardson vs. Thompson, 41 111. 202. (c) Garland vs. Britton, 12 111. 232 ; Besimer vs. The People, 15 111. 440 ; Beaubien vs. Sabine, 2 Scam. 460. (d) Hanrmm vs. Thompson, 1 Scam. 238 ; Anglin vs. Nott, 1 Scam. 395. («) Boston vs. Altum, 1 Scam. 250. PROCESS FOR APPEARANCE. 75 Service and Return of Summons. SECTION II. SEEVICE AND KETTJRN OF SUMMONS. The ninth section of the chancery act of Illinois, provides, that, " every summons in chancery shall be made to the next term of the court after the date thereof, or the next succeed- ing term thereafter." And section ten of the same act pro- vides, that " if, in any suit in chancery, the process shall not be returned, executed on or before the return day thereof, the clerk, if required, shall issue an alias, pluries, or other process, without an order of court therefor: (/" ) Mow served. — The statute of Illinois requires, that, " service of summons shall be made by delivering a copy thereof to the defendant, or leaving such copy at his usual place of abode, with some person of the family, of the" age of ten years or upwards, and informing such person of the contents thereof. If service is not had at least ten days before the return day of such summons, fhe case shall stand continued till next term of the court." (g) The return. — The return of the service of a summons, except when otherwise provided by the statute, must show the time when, upon whom, and how the service was made. A return, stating that the summons has been duly served on C. D. according to law is not sufficient, (h) The service must be made strictly in accordance with the statute, and so shown by the returns of the officer, or the court will not have jurisdiction of the person, (*) Where the service is insufficient to confer jurisdiction, the decree as to the defendants is a nullity, and may be questioned in a collat- eral proceeding, (j ) (/) Rev. Stat. (1874) 199; Rev. Stat. (1877) 185. (g) lb.; see Mack vs. Brown, 73 111. 295. (h) Ball vs. Shattack, 16 111. 299; Wilson vs. Greathotise, 1 Scam. 174, 176; Bellingdll vs. Gear, 3 Scam. 575; Miller vs. Handy, 40 111. 448. (0 Cost vs. Rose, 17 III. 276; Bot/land vs. Boyland, 18 111. 551; Miller vs. Mills, 29 111. 431; Fisher vs. Fisher, 54 111. 231. 0') Botsford vs. O'Comier, 57 111. 72; Hochlander vs. Hochlander, 73 111. 618; see McNnb v*. Young. 81 III. 11. 76 PEOCESS FOE APPBAEANCB. Service and Return of Summons. Where service is by summons, parol evidence will- not be heard to prove or to aid it. It is otherwise when it is by publication, (k) If the return of the officer does not show the date of the service, but the decree recites, "that the defendants were duly served," such recital was held to cure the defect in the return. (Z) And a return " this writ personally served by delivering copies of the same to the within named defend- ants " is sufficient. In such case the court will presume that the service was had on such, (m) But a return of service, " on the within named defendants," not giving the name, there oeing two defendants named in the summons, is insufficient, (n) Where service is made by delivering a copy to a third per- son, the return must state the name of the person* to whom the copy was delivered; that he was over ten years of age; a member of the family of the defendant; that it was at the defendant's usual place of abode; and that the officer informed such person of the contents thereof. ( In Chancery. C. D. and E. F. ) A. B., the above named complainant, on oath states, that E. F., one of the above named defendants, is not a resident of this state; but as affiant is informed and believes, he now resides in, etc. {Here insert the place of residence, if knoion.) A. B. Subscribed and sworn to before me, this day of A. D. 18—. , Clerk. No. 6. Affidavit for publication — non-residence of defend- ants — place of residence not knovm. (State the venue and title of cause, as in above form.) A. B., the above-named complainant, on oath states that the above-named defendants, C. D. and E. F., are not residents- of this state ; affiant further states that he has made diligent inquiry to learn their place of residence, and has been unable to ascertain the same , A. B. Subscribed, etc. No. 7> Affidavit for publication — that the defendant cannot be found. (State the venue and title, of cause, as in No. 5, above.) A. B., the above-named complainant, on oath states that he has made due inquiry to learn the place of residence of the said defendants, C. D. and E. F., and is unable to ascertain the same. Affiant further states that the last known place of residence of the said defendants was in , in this state, which place they left about years ago, since which time this affiant has been unable to obtain any information as to their residence, although he has made inquiries of the former neighbors and acquaintances of the said defendants, and of such PROCESS FOE APPEARANCE. 79 Affidavits for Publication — Service by Copy of Bill. of their known relatives as would be likely to be knowing to their place of residence. A. B. Subscribed, etc. No. 8. Affidavit for publication — that the defendant is con- cealed within this state. (State the venue and title of cause, as in No. 5, ante, page 78.) A. B., the above-named complainant, on oath states that the above-named defendant, C. D., resides in in this state ; and that he is concealed within this state, so that process cannot be served upon him. Affiant further states that, etc. (Here state the circumstances which induce a belief that the defendant is concealed.) A. B. Subscribed, etc. Continuance for publication. — " If for want of due publi- cation or service, a cause shall be continued, then the same proceedings shall be had at a subsequent term of the court, in relation to publication, as may have been had at the time to whioh the summons is returnable." (w) SECTION IV. SERVICE BY COPT OF BILL. The statute of Illinois provides that "the complainant may cause a copy of the bill or petition, together with a notice of the commencement of the suit, to be delivered to any de- fendant residing or being without this state, not less than thirty days previous to the commencement of the term at which such defendant is required to appear; which service, when proved to the satisfaction of the court, shall be as effect- ual as if such service had been made in the usual form, within the limits of this state. The service by a copy of the bill or petition may be proved by the affidavit of the person serving the same, made before any officer authorized to administer oaths in the place where the affidavit is made ; or in case the service is made in any foreign country, before any United (to) Rev. Sfcat. (1874) 200; Rev. Stat. (1877) 186. 80 PROCESS FOR APPEARANCE. Service by Copy of Bill, etc. States minister or consul residing in the country where the same is made, (a?) It will be observed that the foregoing section refers only to the service of defendants "residing or being without this state." Parties residing within the state cannot be served with a copy of the bill, (y) and decrees rendered under service by copy of the bill are said to be only binding in this state, or on residents thereof, (s) No. 9. Notice to he served with a copy of Mil on non-resident defendant. State of Illinois, ) County of j In, the Court. A. B. ) To the Term, A. D. 18—. vs. V In Chancery. C. D. ) To C: D., the above-named defendant : You are hereby notified that a bill in chancery, with a copy of which you are herewith served, will be filed against $pu in the court of county, in the State of Illinois, by •the said A. B., complainant, to the term, A. D. 18 — . "Now, unless you shall personally be and appear before said court, on the first day of the term thereof, to be held in , in said county, on the day of , A. D. 18 — , and plead, answer or demur to the said bill, the same and the matters and things therein charged and stated, will be taken as confessed, and a decree entered against you according to the prayer of said ( bill. , Solicitor for the Complainant. No. 10. Affidavit of the service of copy of Mil and notice. State of , ) _ County of \ G. H., of, etc., upon his oath states, that he served a copy of the foregoing bill in chancery, and notice of the commence- (x) Rev. Stat. (1874) 200; Rev. Stat. (1877) 185. (y) Townsend vs. Townsend, 21 111. 540. (z) Bishopvs. Withered, 9 Wal. U. S.R.814; W.N. Tel. Co. vs. P. &• A. Tel. Co. 49 111. 94; Cooley on Const. Linv. 403. PROCESS FOE APPEARANCE. 81 Unknown Defendants — Attachment. merit of suit, upon 0. D., of, etc., the defendant named in said bill, by delivering the same to him personally, on the day of , A. D. 18—. G.H. Subscribed, etc. ■SECTION V. UNKNOWN PERSONS AS DEFENDANTS. The statute of Illinois provides, that "in all suits in chancery, and suits to obtain title to lands, in any of the courts of this state, if there be persons interested in the same, whose names are unknown, such persons may be made parties to such suits or proceedings by the name and description of unknown owners, or unknown heirs or devisees of any de- ceased person, who may have been interested in the subject matter of the suit previous to his or her death ; but in all such cases an affidavit must be filed by the party desiring to make any unknown person a party, stating that the names of such persons are unknown, and process shall be issued against all parties by the name and description given; and notices given by publication shall be sufficient to authorize the court to hear and determine the suit, as though all parties had been sued by their proper names." (a) SECTION VI. ATTACHMENT. The statute of Illinois provides, that " every defendant who shall be summoned, served with a copy of the bill or petition, or notified as required in this act, shall be held to except, demur, plead or answer on the return day of the summons; or if the summons is not served ten days before the first day of the term at which it is returnable, by the first day of the next term ; or in case of service by copy of the bill, or by notice, at the expiration of the time required to be given, or within such further time as may be granted by the court ; or in default thereof, the bill may be taken as confessed." (J) (a) Rev. Stat. (1874) 199; Rev. Stat.. (1877) 185; see Newlin vs. Snyder, 78 111. 528. (6) Rev. Stat. j(1874) 200; Rev. Stat. (1877) 186. 82 PEOCESS FOB APPEAEANCE. Attachment of Defendant to Compel an Answer. Where a defendant has been personally served with subpoena or summons, or notified, be is bound to appear and answer to the charges preferred against him in the bill within the time limited by the statute or the practice of the court, or compul- sory process may be awarded against him, for his contempt in neglecting the requisitions of the subpoena or summons. . Appearance was formerly absolutely necessary in every case, before any decree could be rendered against him. Where the defendant did not voluntarily obey the injunctions of the writ by entering his appearance on its return, a long chain of process was resorted to, ending in a sequestration of his property, for the purpose of compelling an appearance. There were many cases, however, in which the complainant had no effectual remedy ; as where the defendant could not be served with process at all; or where, notwithstanding the commit- ment of his person, and the sequestration of his property, he persisted in refusing to appear and put in his answer. To make the process of the court more effectual there are various statutory enactments, both in England and the different states of this country, providing for a decree pro confesso founded upon the statements of the complainant's bill. The process for effecting a compulsory appearance has fallen into compara- tive disuse since the passage of these statutes, (c) The first of these processes is an attachment, which is in the nature of a capias, at common law, and is directed to the sheriff, commanding him to attach or take up the person of the defendant, and bring him into court. In ordinary cases, as where the oath of the defendant is waived, the complainant will not necessarily require an answer, but will seek to obtain a decree by default. But where the object of the bill is to obtain a discovery, as in a creditor's bill, and the like, where an answer under oath is requisite, and the defendant fails to put in an answer, further steps must be taken to procure an answer. The statute provides, that, " if a defendant in any proceed- ings in equity, having been served with summons, or personally (c) Barton's Suit in Eq. '83-84 PEOOESS FOR APPEARANCE. 83 Attachment of Defendant to Compel an Answer. notified, as provided in this act, shall fail or refuse to appear or answer the bill of complaint, he may be attached and otherwise proceeded against according to the practice in equity in cases of contempt." (d) How obtained. — Under the old practice, where service was had by a delivery to the defendant of a copy of the bill, or where the subpoena, was served by the complainant or his solic- itor, it would seem to be necessary to show such service by affidavit, before an attachment would be ordered. But in Illi- nois, where the sumrdons in chancery is served by the sheriff of the county, and the evidence of such service is required to be shown by the officer's return, an affidavit of the service would be unnecessary, as the court will act upon the officer's return. An affidavit showing that a discovery is necessary from the defendant, as to the matters of the bill, may, however, be required. If the defendant appears personally, or is brought into court by the sheriff, on the return of the attachment for not answer- ing, he must put in his answer and pay the costs incurred by his contempt, instanter, or within such time as the court shall appoint, or be committed until he complies, (e) "Where a party is in contempt, the court will not grant an application in his favor, which is not a matter of strict right, until he has purged his contempt, (f) He must clear his con- tempt before he can take any effectual proceedings in the cause ; and if he be in custody for want of an answer, he cannot be liberated therefrom before he has filed his answer, paid or .tendered the costs of his contempt, and obtained an order of his discharge, (g) " If the complainant amends his bill, he waives his process of contempt; (A) and if he accepts the defendant's answer, or replies, or moves upon it, which implies acceptance, he can- (d) Rev. Stat. (1874) 202; Rev. Stat. (1877) 188. (e) 1 Barb. Ch. Pr. 88. (f) Johnson vs. Pinney, 1 Paige, Ch. 646. (g) 1 Barb. Ch. Pr. 88; Gold's Doct. of Eq. 136. (h) Gray vs. Campbell, t Russ. & My. 323 84 PKOCESS FOR APPEAEANCE. Attachment — Attachment with Proclamation. not use the process of contempt for the purpose of getting costs. (i) No. 11. Affidavit to obtain an attachment against the defend- ant for not answering. (Title of cause as in No. 5, ante, page 78.) A. B., the above named complainant, on oath states, that a discovery is neces- sary in this cause from the defendant, as to the matters of the said bill of complaint, and the several interrogatories therein contained. A. B. Subscribed, etc. No. 12. Order for an attachment for not answermg. (Caption, with title of cause.) It appearing to the court, that the defendant herein was duly served with summons in this cause, more than ten days before the first day of the pre- sent term of this court, to appear, except, demur, plead or answer the complainant's said bill of complaint ; and it further appearing to the court that the defendant has failed (or refused) to appear or answer the said bill of complaint, as required by law ; on motion of Mr. , solicitor for the complainant, it is ordered, that an attachment be, and. the same is hereby awarded against the said defendant, C. D., returnable forthwith. SECTION VII. ATTACHMENT WITH PROCLAMATION. If the sheriff to whom the writ of attachment is directed apprehends the defendant, he is detained in custody until he enters his appearance and puts in an answer to the complain- ant's bill. If the sheriff returns non est inventus, he is not to be found, an, additional process is awarded against the defendant, which is termed an attachment with proclamation ; which, besides the ordinary form of attachment, directs the sheriff to cause public proclamations to be made throughout the county, to summons the defendant on his allegiance, per- sonally to appear and answer the charges brought against him. (j) (i) Anon. 15 Ves. 174. (S) Barton's Suit in Eq. 85 ; 1 Barb. Ch. Pr. 62, 63 ; Gilb. For. Rom. 77 j 1 Dan Ch. Pr. 606. PROCESS FOR APPEARANCE. 85 Commission of Rebellion — Sergeant-at-Arms. SECTION VIII. COMMISSION OF REBELLION. If the writ of attachment with proclamation be returned non est inventus, and the defendant still remains in contempt, a commission of rebellion is awarded against him for not obey- ing the proclamation according to his allegiance. This com- mission is generally directed to commissioners therein named, who are jointly and severally commanded to attach the defend- ant, wherever he may be found within the state. The reason given for this process being directed to commissioners, and not, like the writ of attachment to the sheriff, is, " tbat the defend- ant is a rebel and contemner of the laws, and to be dealt with as such; and as the sheriff cannot be supposed to be capable of executing all the process directed to him in per- son, it may be inconvenient to trust so great a power with the deputies of his appointment, and therefore the court appoints its own commissioners, who are intrusted to do every- thing very carefully, and are answerable to the court for their miscarriage." (k) SECTION IX. SERGEANT-AT-ARMS. By the English practice, if the commission of rebellion is returned non- est inventus, the court, on motion to that effect, will dispatch a sergeant-at-arms in search of the defendant. It is said, however, that the English course in this respect cannot be pursued here ; our statutes having virtually taken away from the sergeant-at-arms the power of executing the process of the court. (I) The sheriffs of the respective coun- ties are made officers of the court to execute the process thereof. (*) GUb. For. Rom. 77; Hinde, Ch. Pr. 116; 1 Dan. Ch. 610; Barton's Suit in Eq. 86, note (1) ; 1 Barb. Ch. Pr. 63. (0 1 Hoff. Ch. Pr. 126, note ; 1 Barb. Ch. Pr. 66 ; Barton's Suit in Eq. 87. 86 PKOCESS FOE APPEARANCE. Sequestration. SECTION X. SEQUESTRATION. If the defendant is taken upon any of the processes we have mentioned in this chapter, he is committed to the jail, unless he enters his appearance and answers according to the practice of the court ; and also clears his contempt, by paying of the costs and fine imposed by reason of his contumacious behavior. But if he likewise eludes the search of the sheriff while acting as sergeant-at-arms, a sequestration issues. This, like the commission of rebellion, is awarded upon motion, grounded on the return of the sheriff, as sergeant-at-arms, and is directed to certain commissioners therein named, au- thorizing and commanding them to possess themselves of all his personal estate whatever, and the rents and profits of his real estate, until satisfaction is made of the complainant's demands, and the court shall further order, (m) (m) Barton's Suit in Eq. 88 ; 1 Barb. Ch. Pr. 68-75 ; Hinde, Ch. Pr. 127 ; see Morrice vs. Bank of Eng. Talb. Cas. 222 ; Kinney vs. Tafdley, Dick. 266 ; Lupton vs. Sercolt, 1 Sim. & Stu. 274 ; Detillin vs. Gale, 1 Sim. & Stu. 275, note. * CHAPTER VI. TAKING BILLS AS CONFESSED. Seetiun 1. Default. 2. Eights of Defendant after a Deeatjlt. 3. Setting aside a Default. 4. Setting aside a Decree, when Defendant is not per- sonally KOTIFIED. SECTION I. DEFAULT. When it may he taken. — The sixteenth section of the act regulating the practice in the court of chancery, in Illinois, provides that " every defendant who shall be summoned, served with a copy of the bill or petition, or notified as required by this act, shall be held to except, demur, plead or answer on the return day of the summons ; or if the summons is not served ten days before the first day of the term at which it is return- able, by the first day of the next term ; or in case of service by copy of the bill, or by notice, at the expiration of the time required to be given, or within such further time as may be granted by the court; or in default thereof, the bill may be taken as confessed." {a) To except, in the section referred to, means to object to the proceedings by motion or suggestion to the court. Rule to answer. — There is no rule of practice in Illinois requiring the court to enter a rule on defendant duly served with process to answer. It is the duty of the defendant to a bill to appear at the time he is required by the summons and interpose his defense, and if he fails to do so, he is in default, and the bill may be taken as confessed against him. If he (a) Rev. Stat. (1874) 200; Rev. Stat. (1877) 186. 88 TAKING BILLS AS CONFESSED. Default — Effect of a Default. desires further time than the te,n days allowed by the statute, after the service, to prepare his defense, he should apply to the court for further time ; and if he makes no defense, the prac- tice warrants a decree pro confeeso on the return day of the summons, if the service is sufficient, (b) The correct practice, however, on overruling a demurrer to. a bill is for the court to enter a rule on the defendant to answer. But the court may render a decree pro confesao thereon, (c) But it is regarded as the better practice, when preliminary motions or exceptions to the proceedings are . disposed of, to enter a rule to answer, (d ) Effect of a default. — "Where adult defendants permit the bill to be taken as confessed, they thereby admit the truth of the allegations of the bill, and the practice fully warrants the ren- dition of a decree granting relief, without proof, if the bill contains equity. If the court has reason to believe, or from any cause is apprehensive that injustice is likely to result from granting the relief without proof, then it should be required. But this is a matter of sound discretion in the chancellor, and its omission or requirement cannot be assigned for error, unless the record discloses that the action has resulted in wrong to the defendants. Where there are non-resident defendants, only served by publication, the courts are more inclined to require proof than in cases where there has been actual service. (e) Where the court determines to hear evidence . upon a default, it is not necessary that the same should be reduced to writing and be preserved in the record of the case, (y) (6) Grobb vs. Cushman, 45 111. 124. (e) Miller vs. Davidson, 3 Gilm. 528 ; Roach vs. Qhwpin, 27 111. R. 197. Waugelin vs. Goe, 50 111. 459. (d) Ottowa vs. Walker, 21 111. 610. (e) Moore vs. Litman, 33 111. 358 ; Sullitan vs. Sullivan, 42 111. 316 ; Oronan vs. Frizell, Id. 319 ; Orubb vs. Crane, 4 Scam. 153 ; Ferguson vs. Sutphen, 3 Gilm. 547 ; Manchester vs. McKee, 4 Gilm. 511 ; Boston vs. Nich- ols, 47 111. 353 ; Douglas vs. Evans, 1 Overton, 82 ; Ward vs. Jewett, Walker, Ch. R. 45 ; Atterbery vs. Knox, 8 Dana, 282 ; Jackson vs. Honeycut, 1 Over- ton, 30 ; Piatt vs. Judson, 3 Blackf . 235 ; Fellows vs. Shelmire, 5 Blackf. 48 ; Jones vs. Beverly, 45 Ala. 161. (f) Smith vs. Trimble, 27 111. 152 ; Harmon vs. Campbell, 30 111. 25. TAKING BILLS AS CONFESSED. 89 Default — Effect of a Default. A default admits that which is properly alleged in the bill, but nothing further, (g) And if it omits to state the complain- ant's claim specifically, a final decree cannot be rendered, even after a pro confesso order, without proof. (A) It is error to render a decree for more than is claimed in the bill. (*) A decree cannot be taken against a defendant not answering, unless a default has been taken. (J) If the complainant, after a default, amends his bill, or files a supplemental bill, it will have the effect to vacate the order of default, and the defendant may put in an answer, (h) Section eighteen of the Statutes of Illinois, relating to chancery practice, provides that " where a bill is taken for confessed, the court, before a final decree is made, if deemed requisite, may require the complainant to produce documents and witnesses to prove the allegations of his bill, or may examine him on oath or affirmation touching the facts therein alleged. Such decree shall be made in either case, as the court shall consider equit- able and proper." (I) The case need not be referred to the master for proof, (m) A bill cannot be taken as confessed as against minors, and the evidence, to be preserved in the record, must warrant a decree against them, (n) (g) Cronan vs. Frizell, 42 111. 319; De Leuw vs. Neeley, 71 111. 473. (A) Piatt vs. Judson, 3 Blackf. 237; Fellows vs. Shelmire, 5 Blackf. 48, Cunningham vs. Stelle, 1 Litt. 52 ; see Thomas vs. Morris, 57 111. 333. (i) Carter vs. Lewis, 29 111. 503 ; Mills vs. Meeney, 35 111. 174 ; Pidgeon vs. Trustees, 44 111. 501 ; Beese vs. Becker, 51 111. 84 ; Owling vs. Luitgens, 32 111. 23 ; Martin vs. Sargardine, 46 111. 323. (J) Shields vs. Bryant, 3 Bibb, 525 ; Cannon vs. Watson, 1 How. Miss. 333. (k) Gibson vs. Beese, 50 111. 383; see Black vs. Lush, 69 111. 70. (I) Rev. Stat. (1874) 200; Eev. Stat. (1877) 186. (m) Carter vs. Lewis, 29 111. 503. (n) McClay vs. Norris, 4 Gilm. 370 ; White vs. Morrison, 11 111. 365 ; Preston vs. Hodgen, 50 111. 60 ; Wttlhite vs. Pierce, 47 111. 413 ; Nichols vs. . Thornton, 16 111. 113 ; Bree vs. Bree, 51 111. 372 ; Master son vs. Wiswold, 18 111. 48; Moore vs. School Tr. 19 111. 83 ; Quigley vs. Roberts, 44 111. 503 ; Martin vs. Hargardine, 46 111. 322 ; Ingersoll vs. Ingersoll, 42 Miss. 155. 90 TAKING BILLS AS CONFESSED. Bight of Defendant after Default — Setting aside Default. SECTION II. EIGHT OF DEFENDANT AFTEE DEFAULT. A defendant, being in court, has a right, in a case where the bill is taken as confessed, to appear before the master in case of a reference, if he thinks proper ; although in such case the practice does not require notice to him to appear on the refer- ence. Or, upon the report of the master being made, the defendant may, if he choose, file exceptions and resist its approval ; (o) or he may, upon a writ of error, insist that the averments of the bill do not justify a decree, (jp) SECTION III. SETTING ASIDE A DEFAULT. A motion to set aside a default, for not filing an answer in chancery, should be based upon an affidavit, setting forth clearly and specifically the reasons for setting it aside, and be accompanied by an answer, and an offer to file the same, {q) An application to set aside a default is addressed to the dis- cretion of the court, and an appellate court rarely reviews the exercise of the discretion, and then only to prevent great injustice, (r) The party making application to have a default set aside, must support it by an affidavit, showing that the default was taken without any fault or negligence on his part, and that there is merit in his defense, stating what such defense is, so (o) Moore vs. Titman, 33 111. 358. (p) Oault vs. Hoagland, 25 111. 266 ; Stephens vs. Bichnell. 27 111. 444 ; Harmon \ a. Campbell, 30 111. 25. (?) Dunn vs. Keegin, 3 Scam. 292 ; Grubb vs. Crane, 4 Scam. 153 ; Nor- ton vs. Hixon, 25 111. 440. (r) Bowman vs. Wood, 41 111. 203 ; Bell vs. Mms, 51 111. 171 ; Scales vs. ■Labor,51lll. 232; see further, Puterbaugh's Com. Law PI. and Pr. 809-810, and authorities there cited ; Wooster vs. Woodhull, 1 Johns. Ch. 539 ; Parker vs. Chant, 1 Johns. Ch. 630 ; Gwin vs. Harris, 1 S. & M. Ch. 528 ; Graham vs. Mmore, Harring. Ch. 265 ; Russell vs. Waite, Id. 31 ; Hart vs. Lindsay, Id. 72; Terry vs. Eureka College, 70 111. 236. TAKING BILLS AS CONFESSED. 91 Setting aside Default — Setting aside Decree, etc. that the court may see whether it is sufficient. («) The motion should be made at the term at which the default is entered, (t) No. 13. Affidavit in support of motion to set aside a default. Court. Term, 18 — . • In Chancery. C. D., the above named defendant, makes oath and says, that, etc. (Mere state facts showing the absence of negligence in not putting in an answer in apt time?) Affiant, further states, etc. (Here state such facts as show a meritorious defense to the Mil.) Affiant, therefore, prays that the default heretofore entered in this cause, against him, may be set aside ; and that he may be permitted to file his answer herewith exhibited, and which he now offers to file in this cause. C. D. Subscribed and sworn, etc. SECTION IV. SETTING ASIDE DECREE WHEN DEFENDANT IS NOT PERSONALLY NOTIFIED. The nineteenth section of the Chancery Act of Illinois, pro- vides, that, " when any final decree shall be entered against any defendant who shall not have been summoned, or been served with a copy of the bill, or received the notice required to be sent him by mail, any such person, his heirs, devisees, executor or administrator, or other legal representative, as the case may require, shall, within one year after notice in writing given him of such decree, or within three years after such decree, if no such notice shall have been given as aforesaid, appear in open court, and petition to be heard touching the matter of such decree, and shall pay such costs as the court shall deem reason- able in that behalf; the person so petitioning may appear and answer the complainant's bill, and thereupon such proceeding (a) Mich vs. Hathoway, 18 111. 548 ; Sunt vs. WaMis, 6 Paige, Ch. R. 371 ; see Stockton vs. Williams, Hairing. Ch. 241 ; JIart vs. Lindsay, Id. 73. (f) Messervey vs. Beekunth, 41 111. 452 ; Cook vs. Wood, 24 III. 295 ; Smith vb. Wilson, 26 111. 186; Scales vs. Labor, 51 111. 232. 92 TAKING BILLS AS CONFESSED. Setting aside Decree when Defendant is not Personally Notified. shall be had as if the defendant had appeared in due season, and no decree had been made. And if it shall appear, upon the hearing, that such decree ought not to have been made against such defendant, the same may be set aside, altered or amended as shall appear just; otherwise the same shall be ordered to stand confirmed against said defendant. The decree shall, after three years from the making thereof, if not set aside in manner aforesaid, be deemed and adjudged confirmed against such defendant, and all persons claiming under him by virtue of any act done subsequent to the commencement of such suit ; and at the end of the said three years, the court may make such further order in the premises as shall be required to carry the same into effect." (u) When a petition is filed under the statute referred to, the correct practice is, to let the former decree stand until the final hearing, and then make such decree, either setting aside the former one, and dismissing 1;he bill, or confirming or modifying the decree, as the equities of the case may require, (v) Such decrees are interlocutory only, (w) It would be a technical error to vacate the decree, upon the filing of the petition, and before the final hearing ; (x) yet if by so doing no injury is occasioned to any one, the proceedings will not be reversed and set aside for that reason ; (y) nor can such irregularities be attacked collaterally, (s) (m) Rev. Stat. (1874) 200; Rev. Stat. (1877) 186; Martin vs. Gilmore, 72 111. 193. (cj Southern Bank vs. Humphreys, 47 111. 227; Lawrence vs. Lawrence, 73 ill. 577. (w) Id. ; Lyon vs. Bobbins, 46 111. 376 ; Bale vs. Make, 54 111. 293 ; Tomp- kins vs. Wiltberger, 56 111. 385 ; Hodgen vs. Buttery, 58 111. 431. (x) Buck vs. Beekley, 45 111. 100 ; Mulford vs. Stolzenbock, 46 111. 803 ; Southern Bank vs. Humphreys, 47 111. 227. (y) Mulford vs. Stalzenback, 46 111. 303. (e) Southern Bank vs. Humphreys, 47 111. 227. TAKING BILLS AS CONFESSED. 93 Petition to set aside Decree by Defendant not Personally Notified. No. H. Petition to set aside decree by a defendant not personally notified. In the Court. C. D. ) Term, 18 — . ats. ]■ In Chancery. A. B. f To the Honorable , Judge of the Court of the County of , in the State of Illinois, In Chancery sitting : The petitioner, C. D., of, etc., the above named defendant, respectfully represents unto your honor, that on, etc., the above named complainant, A. B., exhibited his bill of complaint against the petitioner as Hefendant, in this honorable court, in this suit, and on making affidavit of the non-residence of the petitioner, procured publication to be made to notify him of the commencement and pendency thereof; and that on, etc., being at the term of this honorable court, a pro con- fesso decree in said entitled suit, was rendered against the petitioner, as by the record and proceedings in this cause will more fully and at large appear. And the petitioner further represents unto your honor, that he has not been summoned, or served with a copy of the said bill of complaint, or re- ceived the notice of the pendency of the suit, required to be sent him by mail, by the clerk of this court, and has received no notice in writing of such decree. The petitioner, therefore, appears in this honorable court, and asks to be heard touching the matters of such decree, upon such reasonable terms .as to the court may seem just, in pursuance of the statute in such case made and provided. And the petitioner presents herewith his answer to the said bill of complaint, and asks that he may be permitted to file the same in said cause, and that upon the hearing, the court will order that said decree be set aside, altered or amended as to the court may seem just ; and that the court will grant the petitioner such other relief in the premises as fo equity shall appertain. C. D. State of Illinois, , ' *■ ss. County of • } C. D., of, etc., on oath states, that the matters set forth in the foregoing petition are true in substance and in fact. Subscribed, etc. CHAPTER Vn. THE DEFENSE TO A SUIT. Section 1. Proceedings by Defendant Previous to Putting in his Answer. 2. The Different Sorts of Defense. 3 Demurrer to a Bill. 4. Pleas to a Bill. 5. Answer to a Bill. 6. Disclaimer. SECTION L PB0CEEDING8 BY DEFENDANT PBEVI0U8 TO PUTTING IN HIS ANSWEE. Every defendant who shall he summoned, served with a copy of the hill or petition, or notified as required by the statute, shall he held to except, demur, plead or answer on the return day of the summons, (a) The term to except as used in the statute of Illinois, means to object to the proceedings by motion or suggestion. Thus, where the complainant, being a non-resident, fails to give secu- rity for costs, the defendant may move to dismiss for that reason. Other cases in which motions would be proper will naturally suggest themselves to the reader. Cases have arisen in which the courts have dismissed a bill on motion, for want of equity, (b) but such practice is irregu- lar; yet, if acted upon by the court, without objection, the motion will be held to have the same effect as a demurrer, (c) The question whether a bill shows equity on its face should be raised by a demurrer to the bill, and not by motion ; and (a) Rev. Stat. (1874) 200; Rev. Stat. (1877) 186. (b) Edwards vs. Baird, Breese R. 70; Richardson vs. Prevo, Id. 216; Baii-is vs. Galbraith, 43 111. 309. (c) Wickley vs. Thompson, 44 111. 9; Town of Tamaroa vs. Normal Uni- versity, 54 111. 334. THE DEFENSE TO A SUIT. 95 Exceptions to a Bill — Form of Exceptions. on objection by the complainant, a motion entered for such purpose will be stricken from the file, (d) Exceptions to bill for scandal or impertinence. — If the bill contains any scandalous or impertinent matter, the defendant may, before putting in his defense, take exceptions to the bill; to the end that the objectionable matter may be expunged, (e) Exceptions to a bill for scandal or impertinence are to be taken in the same manner as exceptions to an answer for insufficiency, ,etc, and may be submitted to in like manner and within the same time. If they are not submitted to, the defendant must refer them in the same manner, or they will be considered as abandoned, (f) If the defendant designs to except to the bill, he must do so before putting in bis answer, or submitting to answer by obtaining an order for furtber time ; as by answering or sub- mitting to answer the bill, he waives all objections to it. (g) Tbe practice upon exceptions to bills for scandal or imperti- nence being the same as that upon exceptions to answers, it will be sufficient to refer the reader to that part of this work where exceptions to answers are spoken of. (A) Exceptions to a hill for impertinence or scandal. Court. Term, 18—. In Chancery. Exceptions taken by C. D., defendant, to the bill of complaint of A. B., complainant, filed against him. Fvrst — For that the allegations in the 7th, 8th, 9th, 10th and 11th lines of the 4th folio of the said bill in the* words following, to-wit : {Here insert the matter objected to) is im- pertinent, and ought to be expunged. (d) Town of Tamaroa vs. Normal University, 54 111. 334 ; Wangelin vs. Ooe, 50 111. 459. (e) 1 Barb. Ch. Pr. 101 ; 1 Dan. Ch. Pr. 451-2; MeConnell vs. Hollobush, 11 Til. 61 ; Langdon vs. Pickering, 19 Maine, 214. (/) 1 Barb. Ch. Pr. 101. (g) lb. ; Anon. 2 Ves. Sr. 631 ; Woodward vs. Attley, Bund. 304. (A) See post. Chap. VIII. THE DEFENSE TO A SUIT. Motions, etc. Second — For that the allegations in the said bill commenc- ing with the word "the" in the 5th line of the 8th folio, and ending with the word "you" in the 12th line of the 10th folio thereof, are scandalous and impertinent, and should be expunged. Third — For that, etc. (and so on.) In all which particulars this defendant humbly insists that the complainant's bill of complaint js irrelevant, impertinent and scandalous; wherefore, this defendant excepts thereto, and prays that the impertinent and scandal of the said bill of complaint, excepted to as aforesaid, may be expunged with costs. — , Solicitor for Defendant. Motion for production of papers. — The court only orders the production of books and papers previous to the final hear- ing of a cause upon two principles — security pending the litigation, and discovery or inspection for the purpose of the suit. (£) The court will, upon the application of the defendant, before answer, under special circumstances, order that the complain- ant should not compel him to answer until within a stated time after the production of certain documents set forth in the bill, when it appears that their production is essential to enable the defendant to put in his answer. (J) i Motion for security for costs.— We have already seen that a non-resident complainant must give security for costs before filing his bill. If he fails to do so, the suit will be dismissed on motion, supported by an affidavit, which must distinctly negative the fact that he was a resident at the time the suit was commenced, (k) A suit instituted by two complainants, one of which is a resident, will not be dismissed for want of a bond for costs. (Z) (i) Watts vs. Lawrence, 3 Paige, Ch. R. 159. (j) Princess of Wales vs. Earl of Liverpool, 1 Swanst. 114; 1 Barb. Ch. Pr. 101 ; Jones vs. Lewis, 3 Sim. & Stu. R. 242 ; see Cornell vs. Bostwick, 3 Paige, Ch. R. 160. {k) Leadbeater vs. Both, 25 111. 587 ; Buckland vs. Goddard, 36 111. 206 ; see also Bipley vs. Morris, 2 Gilm. 381 ; Hickman vs. Haines, 5 Gilm. 20 j Farnsworth vs. Agnew, 27 111. 42 ; Bobert vs. Fahs, 32 111. 474. (I) Wood vs. Oosa, 24 111. 626. THE DEFENSE TO A SUIT. 97 \ Different sorts of Defenses. A motion to dismiss for want of a bond for costs must be made at the earliest stage of the proceeding. It would come too late after a demurrer, (m) or a plea in abatement, («■) The pendency of a motion for security for costs will not necessarily excuse a party for not filing an answer ; nor will such motion prevent the rendition of a decree pro confesso. (o) SECTION II. THE DIFFERENT SORTS OF DEFENSES. The defense to a suit in equity may be either by demurrer, by plea, by answer, or by disclaimer. 1. By demurrer, by which he appeals to the judgment of the court, whether he shall be compelled to answer the bill or not. This species of defense is resorted to where it appears upon the face of the bill itself that there is no equity in the case, on the part of the complainant. 2. By plea, by which he shows why the suit should be dismissed, delayed or barred. A plea sets up matter of defense not appearing in the bill. 3. By answer, controverting the case stated by the com- plainant, the defendant may confess and avoid, or traverse and deny, the several parts of the bill ; or, admitting the case made by the bill, may submit to the judgment of the court upon it, or upon a new case made by the answer, or both. 4. By a disclaimer, the defendant may at once terminate the suit by disclaiming all right or interest in the matter sought by the bill. 5. By demurrer, plea, answer and disclaimer, or by two or more of them ; provided each relates to a separate and distinct part of the bill. (m) The People vs. Cloud, 50 111. 439. (to) Randolph vs. Bmerick, 13 111. 344 ; see further, Frawre vs. Zimmerly, 25 111. 302 ; Dunning vs. Dunning, 37 111. 316 ; 8t. Louis, A. & T. H. B. B. Go. vs. South, 43 111. 176. (o) Hamilton vs. Dunn, 22 111. 259. 7 98 THE DEFENSE TO A SUIT. Demurrer to a Bill — Its Nature and Uses. A cross bill may also be considered a species of defense, (p) The above is the general order of pleading to be pursued by the defendant. All pleas of a dilatory character, and objec tions of that nature, must be interposed at the earliest oppor- tunity, (q) SECTION III. DEMURRER TO A BILL. Its nature and uses. — Whenever any ground of defense is apparent upon the face of the bill, either from matters therein stated, or from defects in its frame, or in the case made by it, the proper mode of defense is by demurrer, (r) The word demur- rer comes, as Lord Ooke has said, from the Latin word demo- rari, to abide ; and, therefore, he that demurs in law, is said to abide in law. He will go no further until the court has de- cided whether the other party has shown sufficient matter in point of law to maintain his suit. (*) A demurrer is in bar of the relief sought, and it proceeds upon the ground that, admitting the fact stated in the bill to be true, the complainant is not entitled, to the. relief he seeks. It is always founded upon some strong point of law, going to the absolute denial of the relief sought; but defects in sub- stance are not supplied or aided by it, nor defective statements of title or claims to relief cured by it. The demurrer only (p) Galatian vs. BrvAn, Hopk. Ch. R. 48, 58 ; X Barb. Ch. Pr. 105. (g) Puterbaugh's Com. Law PI. and Pr. 144-145, and cases there cited ; Coriley vs. Good, Breese, 135 ; Duncan vs. Oharles, 4 Scam. 561 ; Wilson vs. Wettleton, 12 111. 61 ; Peoples vs. Peoples, 19 111. 270 ; GHlmore vs. Rowland, 26 111. 200 ; Archibald vs. Argall, 53 111. 307 ; James vs. Morgan, 36 Conn. 348 ; Bowman vs. McLaughlin, 58 Maine, 299 ; Green vs. Graig, 47 Mo. 90 ; Broien vs. Powell, 45 Ala. 149. (r) McCloskey vs. McUormick, 44 111. 336 ; Wangelin vs. Goe, 50 111. 459 ; Story'B Eq. PI. § 441 ; 2 Barb. Ch. Pr. 105 ; Mitf. Eq. PI. 107 ; Beard vs. Fowler, 2 Bond, 13 ; Gallaher vs. Roberts, 1 Wash. C. C. 320. (s) Co. Litt. 71, note b ; Coop. Eq. PL 110; Black. Com. 314; Story's Eq. PI. § 441 ; Verplank vs. Gaines, 1 Johns. Ch. R. 57. THE PEFENSE TO A SUIT. 99 Demurrer to a Bill — Its Nature and Uses. admits that which is well stated or pleaded, (t) It does not admit any matters of law which may be suggested in the bill, or inferred from the facts stated in it ; nor any fact that is not specifically charged, (u) A demurrer may be sustained on the ground of the staleness of the claim set up in a bill, (v) and lapse of time sufficient to create a bar under the statute of limitations unaccounted for by the bill, may be taken advantage of by demurrer, (w) It is otherwise if the laches are accounted for by the bill, (a;) A demurrer may b« to the whole bill, or to a part only of the bill ; and the defendant may, therefore, demur as to part, plead as to another part, and answer as to the residue of the bill. But each of these modes of defense must be actually applied to different and distinct parts of the bill, and so applied that each will be consistent with the other ; so that one will not overrule the other, (y) Thus, for example, if there is a demurrer to the whole bill, an answer to a part thereof is in- consistent, and the demurrer will be overruled, (s) For the same reason, if there is a demurrer to a part of a bill, there (t) Stowe vs. Russell, 36 111. 18 ; Mills vs. Brown, 2 Scam. 549 ; Moore vs. Hoisington, 31 111. 243 ; Verplank vs. Gaines, 1 Johns. Ch. R. 57 ; Washing- ton etc. Road vs. State, 19 Md. 239 ; Newell vs. Supervisors Bureau Co. 36 111. 253 Baker vs. Booker, 6 Price, 381; Ohotean vs. Bice, 1 Minn. 106; Harr. Ch. R. 308; Barton's Suit in Eq. 96; 1 Dan. Ch. Pr. 601; Dunham vs. Hyde Park, 75 111. 371 : Rdby vs. Cossitt, 78 111; 638. (a) Stowe vs. Russell, 36 111. 18; Green vs. Dodge, 6 Ham. 80; Smith vs. Henry, Hi Iowa, 385; Coop. Eq. PI. Ill; Williams vs. Steward, 3 Meriv. 472, 492; Earle vs. Holt, 5 Hare, 180; Baker vs. Booker, 6 Prjce, 381; Walton vs. Westwood, 73 111. 125; Judson vs. Stephens, 75 111. 225. (u) Gopen vs. Flesher, 1 Bond, 440. (w) Rhode Island vs. Massachusetts, 15 Pet. 223 ; Maxwell vs. Kennedy, 8 How. U. S. 210 ; Wisner vs. Barnet, 4 Wash. C. C. 631. (x) lb. (y) Coop. Eq. PI. 112, 113 ; Tidd vs. Glare, 2 Dick. 712 ; PotarMngton . vs. Soulby, 6 Sim. 356 ; Lord Red. 214 ; Livingston vs. Story, 9 Pet. 632 ; Spofford vs. Manning, 6 Paige, Ch. R. 383 ; Pierpont vs. Fowle, 2 Woodbury & Minot's R. 23. . (z) Brill vs. Stiles, 35 111. 305 ; Davies vs. Domes, 2 Keen, R. 538 ; Clark' vs. Phelps, 6 Johns. Ch. R. 214; Heath vs. Erie R. R. Co. 8 Blatchf.. 347, Miller vs. Furse, 1 Bailey's Ch. R. 187. 100 THE DEFENSE TO A SUIT. Demurrer to a Bill — Its Nature and Uses. cannot be a plea or answer to the' same part, without over- ruling the demurrer, (a) After answer, it is too late to demur, unless the answer is first withdrawn by leave of court, (i) It is a rule that a plea, or answer, and demurrer to the same matter, cannot stand together, and the plea or answer over- rules the demurrer, (c) But the 37th rule of the Rules of Practice for the Courts of Equity of the United States, revised and corrected at the December term, A. D. 1870, has abolished this doctrine. It declares that " no demurrer or plea shall be held bad and overruled upon argument,' only because the ■ answer of the defendant may extend to some part of the same matter, as may be covered by such demurrer or plea." The same rule exists in the English chancery orders of 1841. (d) If a demurrer is too general, that is, if it covers, or is applied to the whole bill, when it is good to a part only ; or if it is a demurrer to a part only, but is not good to the full extent which it covers, but is so only to a part, it will be overruled ; (e) for it is a general rule, that a demurrer cannot be good as to a part which it covers, and bad as to the rest ; and, therefore, it must stand ■ or fall altogether, (f ) If the court sustains a demurrer in part, and overrules it as to the residue, the com- plainant, by amending his bill, and the defendant, by answer- ing the amended bill, waive the irregularity, (g) (a) Story's Eq. PI. § 442 ; Jones vs. Strafford, 3 P. Wms. R. 80 ; Donner vs. Fortescue, 2 Atk. R. 282 ; Kuyper vs Bef. Dutch Ch. 6 Paige, Ch. R. 570. (6) Brill vs. Stiles, 35 111. 305. (e) Clarke vs. Phelps, 6 Johns. Ch. R. 214 ; Chase's Case, 1 Bland, 206 ; Robertson vs. Bingley, 1 M'G. Ch. 333 ; Saxon, vs. Barksdale, 4 Dessau. 522 ; Baines vs. McGee, 1 S. & M. 208 ; Bank of Muskingum vs. Carpenter, Wright, 729. (d) Story's Eq. PI. § 443, n. 2 ; see Dell vs. Hale, 2 Toiinge & Coll. New R. 1. (e) Durling vs. Hammer, 20 N. J. Eq. R. 220 ; Brownlee vs. Lockwood, 20 N. J. Eq. R. 239 ; 3 Green's N. J. R. 270 ; Banta vs. Moore, 2 McCarter's N. J. R. 97 ; Hawkins vs. Clement, 15 Mich. 511 ; Treadwell vs. Brown, 44 N. H. Rep. 551 ; Brown vs. Hogle, 30 111. 119 ; Blount vs. Garen, 3 Hey. 88 ; Faneher vs. Ingraham, 6 Blackf. 139 ; Heath vs. Erie R. B. Co. 8 Blatchf. ' C. C. 347. (/) Story's Eq. PI. §443; Metcalf vs. Hervey, 1 Ves. 248; Higginbotham vs. Burnet, 5 Johns. Ch. 136 ; Todd vs. Gee, 17 Ves. 273 ; Knight vs. Moseley, Ambl. 176 ; Wynne vs. Jackson, 1 McClell. & Tounge, 35. {g) Marshall vs. Vick&burg, 15 WaU. 149. THE DEFENSE TO A SUIT. 101 Demurrer to a Bill — Its Nature and Uses. It was formerly the rale, that if a demurrer does not cover so much of the bill, as it might by law have extended to, it would be held bad ; (A) but this doctrine is, however, now changed by the orders of the English court of chancery, (*) and the rules of the supreme court of the United States, (J) which provide, " That no demurrer or plea shall be held bad and overruled upon argument, only because such demurrer or plea shall not cover so much of the bill as it might by law have extended to." A demurrer may be put in, and several causes assigned ; and if one cause is good to the whole extent of the demurrer, and another is bad, the demurrer will be sustained ; for if both were bad, the defendant may, ore terms, assign new causes of demur- rer at the argument to matters of substance, although not to matters of form ; so that any one good cause, existing of record, or otherwise assigned, will do. (k) When there are several defendants, if they all join in one demurrer to a bill, the demurrer may be good, and be sus- tained, as to one of the defendants, and be bad, and overruled as to the others ; for the defense may be good to one person, and wholly inapplicable to another. (£) When a bill in equity sets forth various claims to the inter- position of the court, and the defendant tiles a general demur- rer to the whole bill, it must be overruled if any of the claims afford a proper case for the jurisdiction of the court, (m) The N proper course is to demur to such claims as are entitled to no relief, and answer the balance, (ri) {h) Story's Eq. PI. § 443 ; Dawson vs. Sadler, 1 Sim. & Stu. R. 537, 542. (t) 1 Craig & Phill. R. 379. (J) Rale 36 of the Rules of Pr. C. E. of U. S. 1870. (k) Stoiy's Eq. PI. § 443 ; Barton's Suit in Eq. 96 ; Coop. Eq. PI. 112, 113 ; Lord Red. 217 ; Jones vs. Frost, Jae. 468. (I) Story's Eq. PI. § 445 ; Coop. Eq. PI. 113 ; Mayor of London vs. Levy, 8 Ves. R. 403, 404 ; Barstow vs. Smith, Walk. Ch. R. 394. (m) Brown vs. Bogle, 30 111. 119 ; Livingston vs. Story, 9 Pet. 632 ; Brock- way vs. Oopp, 3 Paige, Ch. R. 539 ; Faneher vs. Ingraham, 6 Blackf. 139 ; Carter vs. Longworth, 4 Ham. 384 ; Higgiribotham vs. Burnet, 5 Johns. Ch. R. 184 ; Sblleclan vs. Johnson, 2 Geo. Decis. 146 ; Griggs vs. Thompson, 1 Geo. Decis. 146. (n) Varick vs. Smith, 5 Paige, Ch. R. 137. 102 THE DEFENSE TO A SUIT. Demurrer to a Bill — Where it will Lie. Where a demurrer will Ue. — If a bill shows upon its face that there is a want of sufficient parties, (o) or a misjoinder of parties, (p) a demurrer will lie ; but it must point out who are the proper parties, (q) If the want of jurisdiction, (r) or the bar of the statute ot limitations, or defenses of a kindred character, («) or the statute of frauds (t) appear upon the face of the bill, it will be obnox- ious to a demurrer, unless circumstances are alleged taking the case out of those statutes. («) A demurrer will also lie where the bill is multifarious ; (v) or shows upon its face that the complainant has an adequate (o) Spear vs. Campbell, 4 Scam. 424 ; Prentice vs. Kimball, 19 111. 320 ; Lowry vs. Havrris, 12 Minn. 255 ; Walford vs. Phelps, 2 J. J. Marsh. 31 ; Mitchell vs. Lenox, 2 Paige, Oh. E. 281; Robinson vs. Smith, 3 Paige, Ch. R. 222; Story's Eq. PI. § 541 ; see Hand vs. Dexter, 41 Geo. 454. (p) Berger vs: Potter, 32 111. 66; Christian vs. Crocker, 25 Ark. 327; Melick vs. Meliak, 2 Green N. J. R. 156 ; White vs. Delschneider, 1 Oregon R. 254. (q) Robinson vs. Smith, 3 Paige, Ch. R. 222; Dais vs. Bouchaud, 10 Paige, Ch. R. 445 ; Story's Eq. PI. § 543 ; Lord Red. 108 ; Moore vs. Arm- strong, 9 Porter, 697 ; Smith vs. Kornegay, 1 Jones' N. C. Eq. R. 40. (r) Smith vs. Morehead, 6 Jones' N. C. Eq. 360 ; C.&N. W. R. R. Co. vs. Nichols, 57 111. 464 ; Varick vs. Dodge, 9 Paige, Ch. R. 149. (s) Henry Co. vs. Winnebago etc. 52 111. 299 ; Id. 52 111. 454 ; Hovenden vs. Annesley, 2 Sch. & Lef. 637 ; Hardy vs. Reeves, 4 Ves. R. 479 ; Foster vs. Hodgson, 19 Ves. R. 180 ; Surtser vs. Skiles, 3 Gilm. 529 ; Denny vs. Oilman, 26 Maine, 149 ; School Trustees vs. Wright, 12 111. 432 ; Coster vs. Murray, 5 Johns. Ch. R. 522 ; Hook vs. Whitlock, 7 Paige, Ch. R. 373 ; Maxwell vs. Kennedy, 8 How. U. S. 222 ; Wisner vs. Burnet, 4 Wash. C. C. 631. (t) School Trustees vs. Wright, 12-111. 432 ; Surtser vs. Skiles, 3 Gilm. 529 ; but see Lear vs. Chouteau, 23 111. 39 ; Hull vs. Peer, 27 111. 312. (u) Henry Co. vs. Winnebago Drain Co. 52 111. 454 ; Story's Eq. PI. § 503, 760; 751. (v) Henderson vs. Cummings, 44 111. 325 ; Burnett vs. Lester et al. 53 111. 325 ; Wilson vs. Wilson, 23 Md. 162 ; Waller vs. Taylor, 42 Ala. 297 • Supervisors etc. vs. State's Attorney, 31 111. 68 ; Darling vs. Hammer, 20 N. J. Eq. R. 220; Oliver vs. Piatt, 3 How. U. S. 333; Many vs. Beekman Iron Co. 9 Paige, Ch. R. 138; Lmkett vs. White, 10 Gill & J. R. 480 ; Thur- man vs. Shelton, 10 Yerg. 383 ; Buffalow vs. Buffalow, 2 Ired. Ch. R. 113 ; Darcey vs. Lake. 46 Miss. 109; Atwill vs. Ferrett, 2 Blatchf. C. C. 39; Crain vs. Kennedy, 85 III. 340 THE DEFENSE TO A SUIT. 103 Demurrer to a Bill — Where it -will Lie. remedy at law ; (w) except in cases of fraud (a?) and trusts (y) ; in which courts of equity retain jurisdiction, notwithstanding courts of law may also have jurisdiction. A demurrer will also be • sustained where the bill shows a want of title or interest in the complainant to' the thing demanded ; (s) and where a party, having no interest in the controversy, is improperly joined as a party complainant, (a) and where the bill shows no equity on its face, (b) or is brought for a part of a matter only, (e) or fails to show some claim or interest in the defendant, (d) The question whether a bill shows equity on its face should be raised by demurrer, and not by motion, (e) But in some cases where no objections were interposed as to manner of raising the objection, the bill has been dismissed upon mo- tion, {f) But if the complainant objects to the raising of the question in that manner, the motion will nqt be entertained, (w) Wangelin vs. Goe, 50 111. 459 ; Wylder vs. Crane, 53 111. 490 ; The People vs. City of Galesburg, 48 111. 485 ; Lynch vs Willard, 6 Johns. Ch. R. 342 ; Bottorf vs. Conner, 1 Blackf. 287 ; Foster vs. Swasey, 2 W. & M. C. C. 217 ; Tarbell vs. Bowman, 103 Mass. 341 ; Scruggs vs. Blair, 44 Miss. 406 ; Jevne vs. Osgood, 57 111. 340. (x) Babcock vs. McCamant, 53 111.215; Ogdenvs. Larrabee,51 111.389; Truett vs. Warnwright, 4 Gilm. 418 ; Kennedy vs. Northup, 15 111. 148. (y) Coates vs. Woodworth, 13 111. 654 ; Norton vs. Sixon, 25 111. 440. (z) Ramere vs. Rawlins, Finch, 36 ; Newman vs. Holder, Id. ; Stooke vs. Vincent, 1 Collyer, 527 ; Story's Eq. PI. § 503. (a) Plummer vs. May, 1 Vera. 426 ; Dineley vs. Dineley, 2 Atk. 394 ; Sow vs. Best, 5 Mad. 19 ; Well Eq. PI. 282. (6) President etc. vs. S. Ml. N. Uni. 54 111. 334 ; Calhoun vs. Powell, 42 Ala. 645 ; Winkler vs. Winkler, 40 111. 179 ; Harris vs. Galbraith, 43 111. 309 ; Moore vs. Armstrong, 9 Porter, 697. (e) Hinde, Ch. Pr. 157 ; Lord Red. 16 ; Story's Eq. PI. § 287. (d) Wych vs. Meal, 3 P. Wms. R. 311 ; Stewart vs. East India Co. 2 Vem. 380 ; Attorney General vs. Bradford Canal Co. 2 Eq. Cas. Abr. 78. (e) Town of Tamoroa vs. Trustees eta. 54 111 . 334 ; Winkler vs. Winkler 40 111. 179 ; Harris vs. Galbraith, 43 111. 309 ; Brill vs. Stiles, 35 111. 305 ; Cal- houn vs. Powell, 42 Ala. 645 ; Moore vs. Armstrong, 9 Porter, 697. (/) Thomas etc. vs. Adams, 30 III. 37; Edwards vs. Benird, Breese, 70; Fisher vs. Stone, 3 Scam. 68 ; Greathouse vs. Kipp, Id. 371 ; State Bank vs. Stanton, 2 Gilm. 352 ; Puterbaugh vs. Elliott, 22 111. 157. 104 THE DEFENSE TO A SUIT. Demurrer to Bill — General, Special, etc. and if filed will be stricken off. If no objections are inter- posed the motion is treated the same as a demurrer, (g) Demurrers are either general or special. General demurrer. — Demurrers are general when no parti- cular cause is assigned, except the usual formulary that there is no equity in the bill, (h) Special demurrer. — Demurrers are special, when the par- ticular defects or objections to a bill are pointed out. A special demurrer is indispensable, where the objection is to the defects of the bill in point of form. (*) The objections pointed out should not be argumentative, but must be set down with reasonable certainty and directness, (f) Where a defendant, to a bill praying relief, demurs to the dis- covery only, he cannot do so under a general demurrer for want of equity, but must make it a subject of special demurrer. (&) Several causes of demurrer. — A defendant is not limited to show one cause of demurrer only. He may assign as many causes as he pleases, either to the whole bill, or to each part of the bill demurred to ; and if any one of the causes assigned holds good, the demurrer will be allowed. (I) Separate demurrers. — A defendant may also put in separate demurrers to separate and distinct parts of a bill, for separate (g) Town of Tamaroa vs. Trustees etc. 54 111. 334; Vieley vs. Thompson, 44111.9. (h) Barton's Suit in Eq. 107, 108 ; Story's Eq. PI. §455 ; Harrington vs. McLean, 1 Phillip's N. C. Eq. 258. . (i) McCloskeyvs. McCormick, 44 111. 336; Pogue vs. Clark, 25 111. 351; McElwain vs. Willis, 3 Paige, Ch. R. 505 ; Forbes vs. Whitlock, 3 Edw. Ch! R. 446 ; Nash vs. Smith, 6 Conn. R. 421 ; Marsh vs. Marsh 1 Green N J 391. . ' (i) Story's Eq. PI. § 455 ; Barton's Suit in Eq. 97 ; Mitf . Eq. PI. 213, 214. (k) Whittingham vs. Burgoyne, 3 Anst. 900 ; 1 Barb. Ch. Pr. 107. (Z) 1 Barb. Ch. Pr. 107 ; Harrison vs. Hogg, 2 Ves. Jr. 323 ; Jones vs Frost, 3' Mad. 1. THE DEFENSE TO A SUIT. 105 Demurrer to Bill — Speaking Demurrer — Demurrer ore tenua. and distinct causes ; (m) for the same grounds of demurrer, fre- quently, will not apply to different parts of a bill, though the whole may be liable to demurrer; and in such a ease one demurrer may be overruled, upon argument, another allowed, (n) Speakmg demurrer. — Care must be taken, in framing a demurrer, that it be made to rely only upon the facts stated in the bill ; otherwise it will be what is termed a speaking demurrer, and will be overruled, (o) A speaking demurrer is one which introduces some new fact or averment which is necessary to support 'the demurrer, and which does not dis- tinctly appear upon the face of the bill, (jp) Demurrer ore tenus. — Where a demurrer is put into the whole bill, for causes assigned on the record, if those causes are overruled, the defendant will be allowed to assign other causes of demurrer, ore tenus, at the argument, (cj) But in such a case, if the demurrer, ore tenus, is allowed, the defendant is not entitled to his costs, even though he may not be obliged to pay costs on the demurrer on record, which has been over- ruled, (r) But a demurrer, ore tenus, will never be allowed, unless there is a demurrer on record ; for if there is a plea on record, and that is disallowed, a demurrer, ore tenus, will also be disallowed, (s) Whenever a demurrer, ore tenus, is (m) Mitf. Eq. PI. 174 ; 1 Barb. Ch. Pr. 107; Forth vs. Earl of Strafford,' 3 P. Wms. 148 ; Boberdean vs. Rous, 1 Atk. 544. (to) 1 Barb. Ch. Pr. 107 ; North vs. Earl of Strafford, 3 P. Wms. 148. (o) Brownsword vs. Edwards, 2 Ves. 245 ; Tallmadge vs. Lovett, 3 Edw. Ch. 563 ; Lamb vs. Starr, 1 Deady, 350. (p) 1 Barb. Ch. Pr. 107 ; Brooks vs. Gibbons, 4 Paige, Ch. R. 374 ; Davies vs. Williams, 1 Sim. 5; Cawthorn vs. Chalie, 2 Sim. & Stu. 127; Kuypers-vs. Dutch Bef. Ch. 6 Paige, Ch. B. 570 ; Story's Eq. PI. § 448 ; Coop. Eq. PI. 111. (q) Story's Eq. PI. § 464 ; Coop. Eq. PI. 112 ; 1 Barb. Ch. Pr. 108 ; Cart- wright vs. Green, 8 Ves. 409 ; Beame's Ord. in Ch. 174 ; Briakerhoffra. Brown, 6 Johns. Ch. 149 ; Vanhorn vs. Duckworth, 7 Ired. Eq. R. 261 ; Caldwell vs. Blackwood, 1 Jones' N. C. Eq. 274. (r) lb., lb. (») Coop. Eq. PI. 112 ; Dundant vs. Redman, 1 Vern. 78 ; Attorney Gene- ral vs. Brown, 1 Swanst. 288 ; Hook vs. Dorman, 1 Sim. & Stu. 227 ; Story's Eq. PI. § 443, 464. 106 THE DEFENSE TO A SUIT. Demurrer to Bill — Demurrer coupled with Answer. permitted, it must be for some cause which covers the whole extent of the demurrer, (t) And it has been held that the right to put in such a demurrer, ore twus, applies only to cases where the demurrer is to the whole bill, and not to cases where it is to a part only, notwithstanding it is coextensive with the demurrer to that part, (u) Demwrer oowpled with an answer. -7- Where a demurrer is to part of the bill only, the answer to the remainder usually fol- lows the statement of the cause of demurrer, and the demand of judgment whether the defendant ought to be held to make further or other answer. But as the demurrer asks the judg- ment of the court whether the* defendant shall make further or other answer to the bill, or to that part demurred to, it would be inconsistent if the defendant, after making such sub- mission, were to be permitted to answer the bill, or that part of it which is intended to be covered by the demurrer, (v) It is for this reason, well settled, that an answer to any part of a bill demurred to will overrule the demurrer ; (w) even though the part answered be immaterial, (x) But a demurrer for multifariousness is not overruled by an answer denying confederacy ; {y) nor is a demurrer to relief only overruled by an answer as to the discovery, (s) The fact that a bill does not ask for the proper relief, or asks for inconsistent relief, is no ground for demurrer, (a) (f) Baker vs. MelUsh, 11 Ves. 70-76 ; Stillwell vs. MeNeeley, 1 Green, Ch. R. 305. (u) Shepherd vs. Lloyd, 2 T. & Jerv. 490 ; 1 Barb. Ch. Pr. 109 ; Story's Eq. PI. §464; see Grouch vs. Sicken, 1 Keen, 385; Garlick vs. Strong, 3 Paige, Ch. R. 452. (0) Jones vs. Earl of Strafford, 3 P. Wms. R. 81 ; 1 Barb. Ch. Pr. 108. (w) Tidd vs. Clare, 2 Dick. R. 81 ; Heater vs. Weston, 1 Vern. R. 463 ; Roberts vs. Clayton, 3 Anst. R. 715. (x) Mitf. Eq. PI. 172; 1 Barb. Ch. Pr. 108; Savage vs. Smalebroke, 1 Vern. 90. (y) Hester va.Weston, 1 Vern. R. 463; 1 Eq. Cas. Abr. 40. (z) 2 Dan. 76; 1 Barb. Ch. Pr. 108. (o) Conner vs. Board of Supervisors, 10 Minn. 439. THE DEFENSE TO A SUIT. .10? Demurrer to a Bill — When to be Filed — Hearing, etc. Demurrer to plea or answer. — The practice of demurring to an answer is in violation of all the rules of chancery prac- tice, and will not be tolerated. (J) The same may be said of demurring to a plea. The proper practice is to set down the plea for hearing, when its sufficiency will be considered, (c) When to be jtted. — A demurrer should be filed before the complainant is entitled to a default, and all objections to the bill must be made in the court where the same is filed. It is too late to make objections to the sufficiency of the bill, for the first time in the supreme court, (d) In the courts of equity of the United States no demurrer will be allowed to be filed, unless upon a certificate of counsel, that in. his opinion it is well founded in point of law, and is supported by the affidavit of the defendant, that it is not inter- posed for delay, (e) Searing. — In hearing a demurrer, the argument is strictly confined to the case appearing upon the record ; and, for the purpose of the argument, the matters of fact stated in the bill are admitted to be true. (_/") Effect of sustaining demurrer. — On a demurrer to the merits of the whole bill, if it is sustained, the bill will be dis- missed, and the court will not grant leave to amend, (g) But the allowance of a partial demurrer, (A) or a special demurrer on matters of form, or where the court can see that the objec- tions to the bill can be obviated by amendment, it will be (6) Stone vs. Moore, 26 111. 165 ; Story's Eq. PI. § 456. (c) Lester vs. Stevens, 29 111. 155; Mitf. Eq. PI. 301 ; Coop. Eq. PI. 231 ; Dwrant vs. Redman, 1 Vern. 78 ; Thomas va. Brashear, 4 Monr. 65. (d) Rickey vs. Forristal, 49 111. 255 ; Nelson vs. First Nat. Bank, Chicago, 48 111. 36. («) Rule 31, Rules of Prac. for the C. E. U. S. 1870. (/) East India Co. vs. Hinehman. 1 Ves. Jr. 289 ; 1 Barb. Cli. Pr. Ill ; Wales vs. Bank of Michigan, Harring. Ch. R. 308; Green vs. Bodge, 6 Ham. 80. (g) 1 Johns. Ch. R. 184 ; Smith vs. Barnes, 1 Dick. 67 ; Watkins vs. Bush, 2 Dick. 701. (A) 1 Barb. Ch. Pr. Ill ; Mitf. Eq. PI. 214. 108 THE DEFENSE TO A SUIT. Demurrer to Bill — Form of General Demurrer. attended with no such consequences, (i) and unless leave to amend is asked, a dismissal of the bill is the proper decree. (J) Effect of overrubifiig demv/rrer. — If a demurrer is overruled as frivolous, the defendant may have leave to amend ; if, how- ever, he refuses or neglects so to do, the complainant may have an order that the bill be taken as confessed. If the cause of demurrer to a bill can be removed by an amendment, the court , may, without deciding the demurrer, allow the complainant to amend his bill, upon payment of the costs incurred by the defendant, (k) Upon overruling a demurrer it is not necessary that the court should rule the defendant to answer, but may at once proceed to a decree. (I) Notwithstanding a demurrer to a bill is overruled, the defend- ant is entitled to file an answer, (m) No. 16. Frame of a general dem/urrer. In the Court. Term, 18—. In Chancery. The demurrer of C. D., defendant, to the bill of com- plaint of A. B., complainant. This defendant, by protestation, not confessing or acknowl- edging all or any of the matters and things in the said bill of complaint contained to be true, in such manner and form as the same are therein and thereby set forth and alleged, (a) demurs to said bill, and for cause of demur shows,* that, etc. (Mere set forth the cause of demurrer.) (i) Parker vs. Aloeh, 1 Young & Jer. R. 194 ; 1 Har. Pr. 61 ; 1 Dan. 524; Holmes vs. Waring, 8 Price, 604. (j) McDowell vs. Cochran, 11 111. 31. (k) Crowder vs. Turney, 3 Cald. Tenn. 551. (I) Wangelin vs. Gfoe, 50 111. 459 ; Roach vs. Chopin, 27 111. 194. (m) Smith vs. BalUntyne, 10 Paige, Ch. R. 101 ; Northwestern Bank vs. Nelson, 1 Gratt. Va. 108; Sutton vs. Oatewood, 6 Munf. 398; Forrest vs. Robinson, 4 Porter, Ala. 44 ; Avery vs. Holland, 3 Overton, 71 ; Bottorf vs. Conner, 1 Blackf. 287 ; Lefavour vs. Justice, 5 Blackf. 366 ; Barb. Ch. Pr. 112 ; Barnard vs. Cushman, 35 111. 452. THE DEFENSE TO A SUIT. 109 Demurrer to Bill — Short Form of Demurrer. Wherefore, and for divers other good causes of demurrer appearing in the said bill of complaint, this defendant demurs to the said bill, and to all the matters and things therein con- tained, and prays the judgment of this honorable court whether he shall be compelled to make any further or other answer to the said bill, and he prays to be dismissed with his reasonable costs in this behalf sustained. By Solicitor for defendant. It has been the general practice in framing a demurrer to introduce a protestatipn against the truth of any of the facts alleged in the bill ; but it has no weight with the court, and is entirely useless, (n) The following form may, therefore, suffice. Wo. 17. Short form of demurrer. {Title of cause as in No. 16.) The demurrer of CD., defendant, to the bill of com- plaint of A. B., complainant. This defendant demurs to the said bill, and for cause of demur shows,* that, etc. {Here insert the cause of demurrer.) Wherefore this defendant demurs to the said bill, and to all the matters and things therein contained, and prays the judg- ment of this honorable court whether he shall be compelled to make any further or other answer thereto, and prays to be dismissed with his reasonable costs in this behalf sustained. Demurrer or Plea to Bill m the United States Court. — The 31st Kule of Practice for the courts of equity of the United States, provides that " no demurrer or 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 supported by the affidavit of the defendant, that it is not interposed for delay ; and if a plea, that it is true in point of fact." , The certificate of counsel in such case may be as follows : (m) Barton's Suit in Eq. 99, note (1); Story'B Eq. PI. § 452; Mitf. Eq. PI. 107, 211, 212 ; Coop. Eq. PI. 111. 110 THE DEFENSE TO A SUIT. Demurrer to Bill, etc. — Demurrer for want of Equity. No. 18. Certificate of counsel that a demurrer to a bill in U. 8. Court is well founded in law. {Following the demwrrer add :) I certify that, in nry opinion, the foregoing demurrer of C. D., defendant, to the hill of complaint of A. B., complainant, is well founded in law, and proper to be filed in the above cause. Sol. for defendant. The affidavit of the defendant that the demurrer is not inter- posed for delay, may be in the following form : No. 19. Affidavit of defendant that a demurrer to a Mil m the U. S. Court is not interposed for delay. {Following the certificate of counsel add :) United States of America, j District of , ) C. D., the defendant, on oath states, that he has heard read the foregoing demurrer to the bill of complaint of A. B. in this suit ; and that the same is not interposed for the purpose of delaying said suit, or any proceedings therein. 0. D. Subscribed, etc. No. W. Demurrer for want of equity. {Commence as in No. 16, ante, page 108, at the *, and state cause of demurrer as follows :) That the complainant has not in and by his said bill, made or stated such a case as entitles him, in a court of equity, to any discovery or relief from or against this defendant touch- ing the matters contained in the said bill, or- any of such matters, {a) Wherefore, etc. {Conclude as in No. 16.) {If there are more than one cause of demurrer, insert at the (a) in the above precedent, the following :) "And for a fur- ther cause of demurrer this defendant shows, that, etc. {Here set forth the further cause of demurrer, and so on, and con- clude:) Wherefore, etc., {as in No. 16.) THE DEFENSE TO A SUIT. Ill Demurrer to Bill — For Multifariousness — Want of Parties, etc. No. 21. Demurrer for Multifariousness. (Commence as in No. 16, ante, page 108, at the *, and state cause of demurrer as follows :) That it appears by the said bill that the same is exhibited against this defendant, and the several other persons therein named as defendants thereto for distinct matters and causes, in several whereof, as appears by the said bill, this defendant is not in any manner interested or concerned, and that the biL is altogether multifarious. Wherefore, etc. (Conclude as in No. 16.) No. 22. Demurrer for want of parties. (Commence as in No. 16, ante, page 108, to the *, and' state cause of demurrer as follows :) That it appears by the complainant's bill, that G. H., therein named, is a necessary party to the said bill, inasmuch as it is therein stated, that E. F., the testator in the said bill named, did, in his lifetime, by certain conveyances made to the said G. EL, in consideration of dollars, convey to him by way of mortgage, certain estates, in the said bill particularly mentioned and described, for the purpose of paying the said testator's debts and legacies ; but the complainant has not made the said G. H. a party to said bill. Wherefore, etc. (Conclude as m No. 16.) No. 23. Demurrer for want of privity. (Commence as in No. 16, ante, page 108, to the *, and state cause of demurrer 1 as follows :) That it appears by the complainant's said bill, that there is no privity between the complainant and this defendant, to enable the complainant to call upon this defendant for the pay- ment of any debt due to the estate of the said testator from this defendant. Wherefore, etc. (Conclude as in No. 16.) No. 24- Demurrer to a bill of discovery, where the defendant could be exarwmed as a witness. (Commence as in No. 16, ante, page 108, to the *, and state cause of demurrer as follows:) That the complainant has not, in and by his said bill, stated, charged or shown, that this defendant has, or pretends to have, 112 THE DEFENSE TO A SUIT. Demurrer to Bill — Demurrer to part of Bill, etc. ^ - any right, title or interest in the matters and things complained of by the said bill, or any of them ; or any right to call upon this defendant, in a court of equity, for a discovery of said matters and things, or any of them. And that for anything that appears to the contrary by said bill, this defendant may be examined as a witness in this suit. Wherefore, etc. {Conclude as im, No. 16.) No. 25. Demurrer to a bill, where the complainant has no interest in the subject. (Commence as im. No. 16, ante, page 108, to the *, and state cause of demurrer as follows :) That the complainant has not, as appears by his said bill, made out any title to the relief thereby prayed. Wherefore, etc. (Conclude as im, No. 16.) No. 26. Demurrer to a part of the. bill. (Proceed as im, No. 16, ante, page 108, to (a) and then insert the following :) As to so much of said bill as seeks that this defendant may answer and set forth whether, etc., (state the matter demurred to,) or seeks any discovery from this defend- ant, whether, etc., (setting out t/ie interrogatory,) demurs thereto, and for cause of demurrer shows, that, etc., (Here set forth the cause of demurrer,) as to the matters hereinbe- fore specified, or any of such matters. Wherefore, and for divers other good causes of demurrer appearing in the said bill of complaint, as to so much thereof as before is set forth, this defendant demurs and prays the judgment of this honorable court whether he shall be com- pelled to make any further answer to such parts of the said "bill as is so demurred to as aforesaid. By Sol. for Defendant. No. 27. Demurrer to part of a bill, with an ansiuer to the (Proceed as in last form, No. 26, to the end, and continue as follows :) And this defendant not waiving his said demur- rer, but relying thereon, and saving and reserving unto him- self all benefit and advantage of exception to the many errors, uncertainties and other imperfections in the residue of the said bill contained, this defendant for answer says, etc. (Continue as in form of an answer, No. 57, post.) THE DEFENSE TO A SUIT. 113 Plea to a Bill — Nature of. SECTION rv. n. PLEA TO A BILL. Nabwre of. — When an objection to a bill in chancery is not apparent on the bill itself, or, as the technical phrase is, dehors the bill, if the defendant means to take advantage of it, he must show the matter which creates the objection, to the court by a plea, or by answer^ (a) In some cases, the objection can be taken only by a plea ; in others, again, it may be taken either by a plea or by answer ; and in others again, it can be taken only by answer. (5) In other words, the defendant may demur to one part of the bill, plead to another, answer to another, and disclaim as to another, if the nature of his case requires it, in the same manner as he may demur, or plead, or answer to the whole bill, if his defense equally applies to all parts thereof, (c) Pleas are usually divided into two sorts; one commonly called pure pleas, which contain matter wholly dehors the bill, such as a release, or a settled account; and another, called, in contradistinction to the other, pleas not pure, or anomalous pleas, and most generally negative pleas, which consist mainly of denials of the substantial matters set forth in the, bill, (d) The true office of a plea is to save to the parties the expense of an examination of the witnesses at large ; and the defense proper for a plea is such as reduces the cause, or some part of it, to a single point, and from thence creates a bar or other obstruction to the suit, or to the point, to which the plea < (a) Story's Eq. PI. § 647 ; Mitf. Eq. PI. 219. (6) Story's Eq. PI. § 439, 647 ; Aggas vf. Piekerill, 3 Atk. 226 ; Harris vs. Pollard, 3 P. Wms. R. 348 ; Coop. Eq. PI. 302 ; see Howe vs. Tweed, 15 Ves. 377. (c) Bowes vs. McMiehael, 6 Paige, Ch. R. 383 ; Lord Red. 214 ; Story's Eq. PI. § 647 ; Mitf. Eq. PI. 319 ; Beard vs. Boiler, 2 Bond, 13 (d) Story's Eq. PI. § 667, 651 ; Sanders vs. King, 6 Mad. R. 61 ; Penning- Urn vs. Beachy, 2 Sim. & Stu. R. 274, 276 ; 2 Dan. Ch. Pr. 99, 100, 110, 111. 8 114 THE DEFENSE TO A SUIT. Plea to a Bill — Nature of — When Proper. applies, (e) Therefore a plea, to be good, whether it be affirmative or negative, must be either an allegation or a denial of some leading fact, or of matters -which, taken col lectively, make out some general fact, which is a complete defense. (/) But, although a defense, offered by way of plea, should consist of a great variety of circumstances, yet, if they all tend to a single point, the plea may be good, (g) Where a defense consists of numerous facts and circumstances, making it necessary to go into the examination of witnesses at large, it should be set up by answer, and not by plea. (A) And where the allegations of a plea, being taken as true, do not make out a full defense, or where the necessary facts are to be gathered by inference alone, the plea will not be sus- tained. (*) And where all the facts set up by a plea appear upon the face of the bill, the plea is bad. (J) "When peopek. — The limit of this work will not justify much of its space to be taken up in considering this branch of the subject. The reader's attention is directed to other works, where the subject is treated of fully and at large, (k) Pleas have been arranged under four classes : I, To the juris- diction ; II, to the person of the plaintiff; III, to the bill, or the frame thereof; and IY, in bar. (e) Story's Eq. PI. § 652 ; Mitf. Bq. PI. 295 ; Coop. Eq. PI. 223 ; Chapman vs. Turner, 1 Atk. R. 54; Ritchie vs. Aylwin, 15'Ves. R. 82; Rowe vs. Tweed, 15 Ves. 378; Wood vs. Bowe, 2 Bligh, R. 595, 614; Heartt vs. Corn- ing, 3 Paige, Ch. R. 566. (/) Robertson vs. Lubbock, 4 Sim. R. 161; Baiters vs. Tobias, 7 Johns. Ch. R. 214; 2 Dan. Ch. Pr. 102-104. (ff) Story's Eq. PI. § 652; 2 Dan. Ch. Pr. 103 ; Mitf. Eq. PI. 296 ; Ritchie vs. Aylwin, 15 Ves. 82 ; Dawson vs. Pilling, 16 Sim. R. 203. (h) Loud vs. Sergeant, 1 Edw. Ch. R. 164. * (t) Meeker vs. Marsh, Saxon R. 198; see Piatt vs. Oliver, 1 McLean, 295 ; Lewis vs. Baird, 3 McLean, 56. (j) Phelps vs. Garrow, 3 Ed*. Ch. R. 139 ; Varick va. Dodge, 9 Paige, Ch. R. 149 ; Fowler vs. Lewis, 3 A. K. Marsh. R. 443 ; Gozine vs. Graham, 2 Paige, Ch. R. 177. (k) See Story's Eq. PI. § 647-837 ; Coop. Eq. PI. ; Dan. Ch. Pr. ; Mitf. Eq. PI. ; Welf. Eq. PI. THE DEFENSE TO A. SUIT. 115 Plea to a Bill — To the Jurisdiction, etc. — To the Person. I. To the jurisdiction of the court. — A 'plea to the juris- diction does not dispute the right of the complainant in the suit, hut simply asserts either that his claim is not a fit subject of cognizance in a court of equity, or that some other tribunal is invested with the proper jurisdiction. It is difficult to dis- guise any case, which this plea would reach, so as to avoid a demurrer; but there may be instances to the contrary, and even averments in the bill, which would leave the defen) And it is not sufficient to deny only a part of the material facts stated in the bill ; a mere denial of facts is proper for an answer, but not for a plea, (w) If the plea professes to go to the whole bill, and does, in fact, cover the whole subject to which the plea applies, and the matter is a full defense to the suit, it is unnecessary to answer other parts of the bill not involved in the subject which forms the ground of defense, (x) A plea must be perfect in itself, so that, if true, it will make an end of the case, (y) Where the plea is of matter which shows an imperfection in the frame of the bill, it should point out in what that imper- fection consists. Where, for instance, a plea is for want of parties, it must not only show that there is a deficiency of parties, but should point out who the parties are that are wanting, (z) The plea commonly concludes with a repetition that the matters so offered are relied upon as an objection or bar to the (*) 1 Barb. Ch. Pr. 115 ; Pcme vs. A'Oourt, 1 Dick. B. 13 ; Story's Eq. PI. § 736-739. (<) Mitf . Eq. PI. 294, 300. (u) Arum. 3 Atk. K. 70. (v) Piatt vs. Oliver, 1 McLean, B. 295 ; 8 N. H. 280 ; 5 Johns. Ch. 555 ; (x) Sims vs. Lyle, 4 Wash. C. C. Rep. 301. (w) Milligan vs. Milledge, 3 Cranch, R. 220. (x) Sims vs. Lyle, Wash. C. C. Bep. 301. (y) Allen vs. Randolph, 4 Johns. Ch. B. 693 ; see also Bogardus vs. Trinity Church, 4 Paige. Ch. B. 178. (z) Merreweather vs. MellUh. 13 Ves. 437-8. 118 THE DEFENSE TO A SUIT. Plea to a Bill — Frame of Plea. suit, or so much of it as the plea extends to ; and prays the judgment of the court whether the defendant ought to be compelled further to answer the bill, or such parts as are thus pleaded to. (a) If the plea is double, that is to say, if it tenders more than one defense as the result of the facts stated, it will be bad. (5) A plea is not rendered double, however, by the mere insertion therein of several averments, that are necessary to exclude conclusions arising from allegations which are made in the bill, to anticipate and defeat the bar which might be set up in the plea, (c) The rule that a defendant cannot plead double, is not to be understood as precluding the defendant from putting in several pleas to different parts of the same bill. It merely prohibits his pleading, without previous leave, a double defense to the whole bill, or to the same portion of it. A defendant may plead different matters to separate parts of the same bill, in the same manner as he may demur to different portions of the bill, (d) In addition to the requisites of a plea already mentioned, it may be stated that a plea must be certain. It must tender issuable matter, the truth or falsehood of which may be replied to or put in issue ; and that not in the form of general propo- sitions, but specifically and distinctly, (e) "Where the plea is accompanied by an answer, the answer must follow the conclusion of the plea. If the answer is merely to support the plea, it is stated to be made for that purpose, " not waiving the plea." If the plea is to part of the bill only, and there is an answer to the rest, it is expressed to be an answer to so much of the bill as is not before pleaded to ; (a) Mitf. Eq. PI. 300 ; 1 Barb. Ch. Pr. 116. (6) NobUssen vs. Hastings, 2 Ves. Jr. R. 84 ; Jones vs. Frost, 3 Mad. 1, 8. (c) Bogardus vs. Trinity Church, 4 Paige, Ch. R. 178 ; 1 Barb. Ch. Pr. 116. (d) 2 Dan. Ch. Pr. 105 ; Moretoh vs. Harrison, 1 Bland, 493 ; Ridgeley vs. Warfield, 1 Bland, 194. (e) Nabob of Arcott vs. East I. Co. 3 Bro. C. C. 292; 1 Barb. Ch. Pr. 117; Allen vs. Randolph, 4 Johns. Ch. R. 693. THE DEFENSE TO A SUIT. 119 Plea to a Bill — Forms of Pleas — Commencement and Conclusions. and is preceded by the same protestation against waiver of the plea. (f) If the plea is such, that an answer is required to support it, it will be overruled, unless such answer is put in. (g) FOBMS OF PLEAS. Mo. 28. Commencement and conclusion of pleas to the whole bill. court. In Chancery. Term, 18 The plea of C. D., defendant, to the bill of complaint of A. B., complainant. This defendant by protestation, not confessing or acknowl- edging all or any of the matters and things in the complain- ant's said bill mentioned to be true in such manner and form as the same are therein and thereby set forth and alleged, doth plead thereunto, and for plea says, (*) that, etc. (Here set forth the subject matter of the plea, and conclude as follows :) All which matters and things this defendant avers to be true, and pleads the same to the whole of the said bill, and demands the judgment of this, honorable court whether he ought to be compelled to make any answer to the said bill of complaint : and prays to be hence dismissed, with his reasonable costs in this behalf most wrongfully sustained. By , Solicitor for Deft. (If the plea is of matters in pais, add affidavit?) No. 29. Commencement and conclusion of pleas to part of a KU. (Title of cause.) The plea of 0. D., defendant to the bill of com- plaint of A. B., complainant. This defendant, by protestation, not confessing or acknowl- edging the matters and things in and by said bill set forth and alleged to be true, in such manner and form as the same are thereby and therein set forth and alleged, for plea to so much and such parts of said bill as prays, etc., (or seeks a discovery from this defendant,) says, that, etc. ' (/) Mitf. Eq. PI. 300; 1 Barb. Ch. Pr. 117. (g) Sehwarz vs. Wendell, Harring. Ch. K. 305 ; 1 Gill & J. 270. 120 THE DEFENSE TO A SUIT. Plea to a Bill — Plea in Abatement, utc. {Here set forth the subject matter of the plea, and conclude as follows :) Therefore, this defendant doth plead the same in bar to so much of the said complainant's bill as hereinbefore is particu- larly mentioned ; and prays the judgment of this honorable court whether he should be compelled to make any further an- swer to so much of the said bill as is hereinbefore pleaded to, , and prays to be hence dismissed with his costs and charges in this behalf most wrongfully sustained. iVo. SO. Plea in abatement to the jurisdiction of the court. (Commence as m No. 28, ante, page ll9, to the*') That these defendants, and each and all of them, before and at the time of filing of the complainant's bill of complaint, were, and still are, residents of the county of -, in said state ; that neither of these defendants, at the time of filing said bill, was a resi- dent of the county of ,. where said bill was filed ; that the said suit in no manner affects or relates to real estate in the county where the same was exhibited as aforesaid ; Therefore, etc. {Conclude as in No. 28.) The above plea is framed with reference to the statute of Illinois, which provides, that suits in chancery shall be com- menced in the county where the defendants, or some one or more of them resides ; or if the defendants are all non-residents, then in any county ; or if the suit may affect real estate, then in the county where the same, or some part thereof, is situ- ated. Bills for injunctions to stay proceedings at law, shall be brought in the county in which the proceedings at law are had. (g) No. 30a. Plea of coverbwe of the complainant. (Commence as m No. 28, ante, page 119, to the *) That the complainant, before and at the time of filing her said bill, was, and now is, under coverture of one B. B., her husband, who is still living, and in every respect capable, is necessary of insti- tuting any suit at law, or in equity on her behalf. Therefore, etc. (Conclude as in No. 28.) (g) Rev. Stat. (1874) 198; Rev. Stat. (1877) 184. THE DEFENSE TO A SUIT. 131 Plea to a Bill — Infancy — Not Administrator — Alien Enemy. In Illinois, a married woman may sue in her own name, without joining the husband, in matters pertaining to her sepa- rate property, (h) _ No. 31. Plea of infancy without a prochein amy. (Commence as in No. 28, ante, page 119, to the *.) That the complainant, before and at the time of filing his said bill, in which he appears as sole complainant, was, and now is, an infant under the age of twenty-one years; that is to say, of the age of years, or thereabouts. Wherefore, etc. (Conclude as in No. 28.) No 32. Plea that the defendant never was administrator, as alleged in oill. (Commence as in No. 28, ante, page 119, to the *.) That he is not, and never has been, administrator of the goods and chattels, rights and credits, which were of the said E. F., deceased, in the said bill named, as the complainant in his said bill has untruly alleged. "Wherefore, etc. (Conclude as in No. 28.) No. 33. Plea that the complainant is an alien enemy. (Commence as m No. 28, antej page 119, to the *.) That the complainant, A. B., is alien, born of foreign parents, and in foreign parts, that is to say, at Liverpool, in the kingdom of Great Britain, and out of the United States of America, and under the allegiance of the Queen of Great Britain, who is an enemy of the United States, and to whom the parents of the complainant adhere ;. and the complainant also before, and at the time of filing his said bill 'was, and now is, an enemy of the United States, and entered into the United States with the safe conduct of the government of the United States, and has not been made a subject or citizen of the United States, by naturalization or otherwise. Wherefore, etc. (Conclude as in No. 28.) (A) Emerson vs. Clayton, 32 111. 493 ; Cole vs. Van Btper.H 111. 58 ; Man- ning vs. Bixford, lb. 129 ; C. B. & Q. B. B. Co. vs. Sunn, 52 111. 260. 122 THE DEFENSE TO A SUIT. Plea to a, Bill — Want of Proper Parties — Former Suit Pending. No. Sit.. Pisa of want of proper parties. (Commence as in No. 28, ante, page 119, to the *.) That as to so much of the complainant's bill as seeks an account from this defendant, as executor and heir-at-law of E. F., deceased, in the said bill named, this defendant's late brother, for what remains due and owing upon the bond in the said bill men- tioned, bearing date on, etc., and payment by this defendant as such executor and heir-at-law of the said E. F., deceased,. as aforesaid, of what he found due on taking such account ; this * defendant doth plead thereto, and for plea says, that no part of the sum of dollars, for securing the repayment whereof the said bond was executed, was paid to, or secured by the said E. F., but that the whole was paid to G. H., in the said bond and in the said bill also named, and received by him for his sole use, and that the said E. F. was only a surety for the said G. H., and that the complainant afterwards accepted a composition for what he alleged to be due on the said bond from the said G. EL, without the privity of the said E. F. in his lifetime, or this defendant since the death of the said E. F., which took place on or about, etc., as in the said bill men- tioned, since which no demand has been made on this defend- ant for any money alleged to be due on the said bond ; and that the said G. H. died several years ago, seized of consider- able real estate, and also possessed of a large personal estate ; and that his heir-at-law, or the devisee of his real estate, and also the representative of his personal estate, ought to be, but are not made parties to the said bill. Therefore, etc. (Conclude as in Form, No. 28.) No. 35. Former suit pending. (Commence as in No. 28, ante, \page 119, to the *.) That , on, etc., the said present complainant exhibited his bill of complaint in this' honorable court against this defendant and one E. F. for an account of the moneys raised by the sale of the goods and property in the complainant's present bill mentioned, and claiming such shares and proportions thereof and such rights and interests therein, as he now claims by his present bill ; and praying relief against this defendant in the same manner, and for the same matters, and to the same effect as _ the complainant now prays by his said present bill; and this defendant and said E. F. appeared and put in their answer to the said former bill, and the complainant replied thereto ; and the said former bill, and the several proceedings in the said THE DEFENSE TO A SUIT. 123 Plea to a Bill — Limitations — Release, etc. former cause, now remain depending, and as of record in this honorable court, the said cause being yet undetermined and undismissed. Wherefore, etc. (Conclude as in No. 28.) A plea, to a bill in equity, that there is another suit pending _ in the same court, for the same cause, is good only when the whole of the relief sought in the second suit is attainable in the first, (i) No. 36. Plqp of the Statute of Limitations. (Commence as in No. 28, ante, page 119, to the *.) That if the complainant, either in his own right or as executor of E. F., deceased, in the bill named, ever had any cause of suit against him this defendant, for or concerning any the matters, transac- tions, or dealings in the said bill of complaint mentioned, which this defendant doth in no sout admit, the same did accrue or arise above — — years before the said bill of com- plaint was exhibited in this honorable court ; and this defend- ant further for plea says, and doth aver, that he did not at any time within years before the filing of the complainant's said bill of complaint, ever promise or agree to come to any. account for, or to pay, or any way satisfy the complainant any money, for or concerning any the matters, transactions, or dealings in the complainant's said bill of complaint charged or alleged. Therefore, etc. (Conclude as in No. 28.) No 37. Plea of a release, with answer in support of the same. (Commence as in No. 28, ante, page 119, to the *.) That as to so much and such part of the complainant's bill as seeks an account of the several dealings and transactions between the complainant and this defendant, previously and up to the day of , etc., and prays the balance, if any, which shall be found due, upon taking such account, from this defendant, may be paid by him to the complainant ; this defendant doth plead thereto, and for plea says, that previous to the filing of the com- plainant's bill, that is to say, on, etc., the complainant, in con- sideration of the sum of dollars, then paid to him by this (t) McKaig vs. Piatt, 34 Md. 249. 124 THE DEFENSE TO A SUIT. Plea to a Bill — Plea of Stated Account. defendant, by a certain writing of release, under his hand, and sealed with his seal, ready to be produced to this honorable court, did for himself, his executors, and administrators, remise, release, and forever quit-claim unto this defendant, his heirs, executors and administrators, among other things, the several matters and things in the complainant's bill mentioned and complained ofj an account whereof is thereby sought against this defendant as aforesaid, and all suits and demands whatso: ever, both at law and in equity, which the complainant thus had,, or might thereafter have in respect of the several dealings and transactions, matters and things, in the said bill mentioned, or any of them ; and this defendant avers, that the said release was freely, fairly and voluntarily given and executed by the the complainant, on the day the same bears date ; and that the complainant well knew the nature and effect thereof previously to giving and executing the same ; and that the sum of dollars so paid by this defendant to the complainant as afore- said, was a full and fair equivalent for any demand which the complainant could or 'might have against this defendant in respect of the several matters therein, and in the said bill also, mentioned, or any of them. Therefore, this defendant pleads the said release in bar to so much of the complainant's bill as is hereinbefore particularly mentioned, and prays the judgment of this honorable court, whether he ought to be compelled to make any further answer to so much of the said bill as is before pleaded unto. And this defendant not waiving his said plea, but insisting thereon for answer to the residue of the said bill, and in support of his said' plea, says he denies that the said release was unduly obtained by this defendant from the complainant, or that the complainant was ignorant of the nature and effect of such release,- or that the consideration paid by this defendant to induce the complainant to execute the same, was all inade- quate to the just claims and demands of the complainant against this defendant, in respect to the several dealings and transactions in the said bill mentioned, or any of them; and this defendant denies, etc. etc. {Here insert any other denial or allegation that the case may require, and add affidavit of the truth of the plea and answer.) No. 38. Plea of a stated account'. (Commence as in No. 28, ante, page 119, to the *.) That as to so much, and such part of the complainant's bill as seeks an account of and concerning the dealings and transactions therein THE DEFENSE TO A SUIT. 135 Plea to a Bill — Plea and Answer. alleged to have taken place between the complainant and this defendant, at any time before the day of , A. D. 18 — , this defendant for plea thereto, says, that on the said day of . A. D. 18 — , which was previously to the said bill being filed, the complainant and this defendant did make up, state, and settle an account, in writing, a counterpart whereof was then delivered to the complainant, of all sums of money, which this defendant had before that time, by the order and direction, and for the use of the complainant received, and of all matters and things thereunto relating, or at any time before, the said day of , A. D. 18 — . being or depending between the complainant and this defendant, and in respect whereof the complainant's said bill of complaint has since been filed ; and the complainant, after a strict examination of said account, and every item and particular thereof, which this defendant avers, according to the best of his knowledge and belief, to be true and just, did approve and allow the same, and actually received from this defendant the sum of dollars, the balance of the said account, which by the said account appeared to be justly due to him from this defendant ; and the complainant there- npon, and on, etc., gave this defendant a receipt, or acquittance for the same ? under his hand, in full of all demands, and which said receipt or acquittance' is in the words and figures following, that is to say (Mere set out receipt verbatim) ; as by the said receipt or acquittance now in the possession of. this defendant, and ready to be produced to this honorable court, will- appear. Therefore, etc. (Conclude as in the last precedent, varying the conclusion and answer, in support of the plea, to suit the case. Also, add affidavit of the truth of the plea.) No. 39. Plea to part and answer to the residue of hilt. The plea of 0. D., defendant, to part, and the answer of the same defendant to the residue of the bill of complaint of A. B., complainant. This defendant, to all the relief sought by the said bill, and also, to all the discovery thereby sought, except the discov- ery sought by or in respect of (so much of the said bill as prays that this defendant may answer and set forth,) whether, etc., (here the language of il\s interrogatories which it is neces- sary to answer, must he introduced,) this defendant does plead in bar, and for plea says, etc. (Sere set out the plea.) All of which matters and things this defendant does aver to be true, and does plead the same in bar to % the whole of the said bill, except such part of the discovery thereby sought as 126 THE DEFENSE TO A SUIT. Plea to a Bill — Signing — Swearing to — When to be Filed. aforesaid; and this defendant prays the judgment of this honorable court, whether he ought to be compelled to make any further or other answer to so much of the said bill as is hereby pleaded to, and he prays to be hence dismissed with his costs. And for answer to such parts of the said bill as are excepted, this defendant says, that, etc. (Here insert answer as m pre- cedents, under the head of answers.) Signing of plea. — A plea must be signed by the party as well as counsel ; but where it is not sworn to, the signature of counsel is sufficient. (J) When plea must be sworn to. — The rule is inflexible in chancery proceedings, that a plea in bar of matters in pais must be sworn to, (k) but pleas to the jurisdiction of the court, or indisability of the person of the complainant, or pleas in bar of any matter of record, or of matters recorded, as of a record in the court itself, or any other court, need not be on oath. (I) In all cases where a plea is accompanied by an answer, it must be put in upon oath, (m) A plea must be verified by oath, although the complainant has expressly waived an answer from the defendant on oath, (n) If it is not sworn to, the complain- ant may, if application is made in apt time, have it stricken from the files, but the application must be made before the argument of the plea, (o) When to be filed. — A plea being the second in the order of pleading, it may be filed, when to the whole bill, at any time before answering. Under a general rule to answer by a certain day in term time, a plea, answer or demurrer may be filed. (J) 1 Barb. Ch. Pr. 117 ; Simes vs. Smith, 4 Mad. 366. (k) Dunn vs. Keegin, 3 Scam. 292 j Wall vs. Stubbs, 2 Ves. & B. R. 354; vs. Dames, 19 Ves. 81 ; Heovrtt vs. Coming, 3 Paige, Ch. R. 566. (J) Mitf. Bq. PI. 247, 301 ; Urlin vs. Hudson, 1 Vera. 332. (to) Jefferson vs. Dawson, 3 Ch. Cas. 208. (ra) Hea/rtt vs. Corning, 3 Paige, Ch. R. 566. (o) WaM vs. Stubbs, 2 Ves. & B. R. 354 ; Seartt vs. Corning, 3 Paige, Ch. R. 566. THE DEFENSE TO A SUIT. 127 Plea to a Bill — Replication to — Amendment, etc. But it may well be doubted whether it should be so held as to long rules expiring in vacation, (p) Replication to plea. — If the complainant regards the plea, though good in form and substance, not true in point of fact, he may take issue upon it by filing a replication,- and pro- ceed to examine witnesses, as in the case of an answer, to disprove the facts upon which it is endeavored to be sup- ported. ($) The effect of filing a replication to a plea is, that the complainant admits the plea to be good, and the truth of the matter alleged, is the only thing "in question. (r) When the issue is thus taken upon the plea, the defendant must prove the facts it sets up. (s) If he succeeds in proving the truth of the matter pleaded, the suit, so far as the plea extends, is barred, (t) It puts in issue nothing except what is dis- tinctly averred in the plea, (u) Amendment of bUl after plea. — If the complainant amends his bill after plea filed, it will be considered as an admission of the validity of the plea. (i>) Demurrer to plea not proper. — A demurrer to a defective plea should not be interposed. The proper practice is to set down the plea for hearing, when its sufficiency will be con- sidered, (w) Argument of plea. — The proceedings upon the argument of a plea are nearly the same as those upon the argument of a demurrer. If a plea is supported by an answer upon the argu- (p) Kilgour vs. Crawford, 51 HI. 249 ; Dunn vs. Keegin, 3 Scam. 292. (g) Mitf. Eq. PL 301-2; 1 Barb. Ch. Pr. 119; 4 Gilm. 57. (r) lb. ; Morris vs. Ingledew, 3 P. Wms. E. 95 ; Daniels vs. Taggart, 1 Gill & J. K. 811. («) 2 Ves. B. 247 ; Ord vs. Huddleston, Dick. B. 510. (t) Wichalse vs. Short, 3 Bro. P. L. 558 ; ginde, Pr. 225 ; Msh vs. MiMer, 5 Paige, Ch. B. 26 ; Bogardus vs. Trinity Ohureh, 4 Paige, Ch. R. 178. . («) Msh vs. Miller, 5 Paige, Ch. B. 26 ; 1 Barb. Ch. Pr. 119 ; Bogardus vs. Trinity Church, 4 Paige, Ch. R. 178. (v) Spencer vs. Bryan, 9 Ves. R. -231 ; 1 Barb. Ch. Pr. 120. (w) Lester vs. Stevens, 29 111. 155 ; Thomas vs. Brashear, 4 Monr. R. 65. 128 THE DEFENSE TO A SUIT. Plea to a Bill— Effect of Allowing Plea. ment of the plea, the answer may be read to counterprove the plea; and if the defendant appears not to have sufficiently supported his plea by his answer, the plea must be overruled and ordered to stand for an answer only, (a?) And where a defendant had answered to an original bill, which was after- wards amended, whereupon the defendant put in a plea to the amended bill, the complainant was allowed to read the answer to the original bill to counterprove the plea to the amended bill, (y) Upon the argument of a plea, every tact stated in the bill, and not denied by the averments in the plea and by the answer in support of the same, must be taken as true, (s) And if a plea is set down for argument by the complainant without replying to it, the matter contained in it must be considered as true, (a) Where an issue is taken upon a plea, and the truth of such plea is established by the proofs, the bill must be dismissed ; as the court, in that stage of the proceedings, does not inquire or decide as to the validity of the matters pleaded, as a defense to the suit. (6) A plea, upon argument, may be either allowed simply, or the benefit of it may be saved to. the hearing; or it may be ordered to stand for an answer; or it may be overruled. Effect of allowing the plea. — If, upon argument, a plea is allowed, it is thereby determined to be a full bar to so much of the bill as it covers, if the matter pleaded, with the aver- ments necessary to support it, be true. If, therefore, the plea is allowed, the complainant may take issue on the plea by replying to it, on payment of the costs of the hearing there- upon, (e) If the complainant files a replication to the plea, the defend- ant will be obliged to prove the truths of the fact set up in the (x) Mitf . Eq. PI. 304 ; HUdyard vs. Oressy, 3 Atk. 304 ; 1 Barb. Ch. Pr. 120 ; Story's Eq. PI. § 697. • (y) lb.; HUdytvrd vs. dressy, 3 Atk. R. 304. (a) Boga/rdus vs. Trinity Church, 4 Paige, Ch. R. 178. (a) Executors etc. vs. Roberts, 1. Wash. C. C. R. 320 ; 1 Barb. Ch. Pr. 121 (6) Domes vs. McMichael, 6 Paige, Ch. R. 130. (c) 1. Barb. Ch. Pr. 121 ; Story's Eq. PI. § 697. THE DEFENSE TO A SUIT. * 129 Plea to a Bill — Saving Benefit at the Hearing. plea, (d) If the complainant omits to file a replication in such a case, not only the validity of the plea as a bar is admitted, but the truth of the facts set up in it ; and of course the suit is at an end. (e) If the plea has been replied to, the complainant may, if he desires, go into evidence to disprove it ; and if he has, in his bill, alleged any matter which, if true, may have the effect of avoiding the plea, such as notice, fraud, etc., he may examine any witnesses he may have to support his allegation. And where the plea introduces matters of a negative nature, such as denial of notice, fraud, etc., it will be necessary for him, in case sufficient is not admitted by the answer in support of" the plea, to show the existence of the notice or fraud, to go into evidence in support of the affirmative of the proposition. (/") Saving the benefit of a plea to the hearing. — It sometimes hap- pens that upon the argument of a plea, the court considers that, although so far as then appears, it may be a good defense, yet there may be matters disclosed in evidence which, supposing the matter pleaded to be strictly true, would avoid it. In such a case the court, in order that it may not preclude the question, of allowing the plea, directs that the benefit of it shall be saved to the defendant at the hearing, (g) The effect of an order for this purpose is. to give the com- plainant an opportunity of replying and going into evidence without overruling the plea, (h) And when the benefit of the plea is reserved to the hearing, such parts of the bill as are covered by the plea are not to be answered, (i) and neither party .recovers cost until the hearing, {j ) (d) Mitf.Eq. PI. 302. («) 1 Barb. Ch. Pr. 121. (j) 1 Barb. Ch. Pr. 121 ; Eyere vs. Dolphin, 2 Ball & B. R. 303 ; Saunders vs. Leslie, 2 Ball & B. 515. (g) Mitf. Eq. PI. 303 ; Astley vs. Fountaine, Finch, R. 4; 1 Barb. Ch. Pr. 121-2 ; Story's Eq. PI., § 696-700. (h) Cooth vs. Jacfaon, 6 Ves. 12, 18. (i) Gilb. For. Rom. 64 (j) Heartt vs. Corning, 3 Paige, Ch. R. 566; 1 Barb. Ch. Pr. 122; see Payne vs. Avery, 21 Mich. 524. 9 130 THE DEFENSE TO A SUIT. Plea to a Bill — Standing for Answer — Overruling, etc. Allowing plea to stand for answer. — When a plea is per- mitted to stand for an answer, it is determined that it contains matter which, if put in the form of an answer, would have constituted a valid defense to some material part of the matters to which it is pleaded as a bar, but that it is not a full defense to the whole matter which it professes to cover, or that it is informally pleaded, or is improperly offered as a defense by way of plea, or that it is not properly supported by answer. But a plea which sets up no valid defense to any part of the matter it professes to cover, will not be permitted to stand for answer, (k) Overruling plea.— If upon the argument the court is of opinion that the plea cannot under any circumstances, be made use of as a defense, it is simply overruled, and the complainant may have his costs. (I) If at the hearing the plea is not found to be true, it will be overruled as false, and the complainant will be entitled to a decree, as on a bill taken as confessed. But in such a case the complainant will not lose the benefit of an answer, if a -discovery is necessary, (m) Courts do not favor a plea in bar; but the overruling of such a plea does not deprive the defendant from insisting on the defense in his answer. («,) When plea must be supported by answer. — Where there is any statement or charge in the bill which affords an equitable circumstance in favor of the complainant's case, against the matter pleaded, such as fraud or notice of title. That state-, ment or charge must be denied by way of answer, as well as by averments in the plea, (p) (k) Oreutt vs. Orms, 3 Paige, Ch. R. 459 ; Leaeraft vs. Demprey, 4 Paige, Ch. R. 124 ; Mitf . Eq. PI. 303 ; Lube's Eq. PI. 46 ; 1 Barb. Ch. Pr. 122 ; Sellen vs. Lewen, 3 P. Wms. R. 239 ; Story's Eq. PI. § 696-700. (1) Story's Eq. PI. § 699. (m) Dows vs. MoMichael, 2 Paige, Ch. R. 345 ; Brovmsword vs. Edwards, 2 Ves. Sr. 247. (n) Piatt vs. Oliver, 1 McLean, R. 295. (o) 1 Barb. Ch. Pr. 128 ; Mitf. Eq. PI. 239, 244. THE DEFENSE TO A SUIT. 131 Plea to a Bill — When to be Supported by Answer. , In general, an answer in support of a plea cannot be required in those cases where such negative averments as those above stated are not necessary. When the defense can be made by a pure plea, that is, a plea which merely suggests matter in avoidance of the complainant's right to sue, as stated in the bill, an answer in support of the plea is not required. In such a case, the defendant, by his plea, admits the complain- ant's case ; and so full and complete is the admission, that if, after argument, issue be joined upon the truth of the plea, and the plea be found falso, there is an end to the dispute, and the complainant is entitled to a decree upon this implied admission of his case. (p) The cases in which it is necessary that a plea should be sup- ported by answer have been very convepiently divided into : first, those where the complainant admits the existence of a legal bar, and charges some equitable circumstances to avoid its effect ; and, second, those where the complainant does not admit the existence of any legal bar, but states some circum- stances which may be true and to which there may be a valid ground of plea, together with other circumstances which are inconsistent with the substantial validity of a plea, (q) An answer in support of a plea is no part of the defense. The defense is the matter set up by the plea ; the answer is that evidence which the complainant has a right to require and to use, to invalidate the defense made by the plea ; and the complainant is entitled to make use of it, not only upon the hearing of the cause, upon the issue raised by the plea, after the plea shall have been decided to be a good bar upon argu- ment, but upon the argument of the plea itself, before any evidence can be given ; (/•) for the purpose of counterproving the plea, by reading from it any facts or admissions which may negative the matters pleaded or averred in the plea, (s) (p) 1 Barb. Cb. Pr. 128 ; Wigrara on Disc. 36 ; Wood vs. Strickland, 3 Ves. & B. 158 ; 2 Dan. Ch. Pr. 99, 100 ; Story's Eq. PI. § 670. (g) 1 Barb. Ch. Pr. 128 ; Hare on Disc. 30 ; Story's Eq. PI. § 674-5. (r) Mitf. Eq. PI. 244, note ; Story's Eq. PI. § 671 ; Foley vs. HiU, 4 Mylne & Craig, 475. (*) SUdyard vs. Vressy, 3 Atk. 303; Sony vs.Hony, 1 Sim. & Stu. 569; Story's Eq. PI. § 672. 132 THE DEFENSE TO A SUIT. Answer to a Bill — Nature of. The answer in support of the plea being no part of the defense, but only what the complainant has a right to require, to enable him to avoid that defense, it follows that it must be full and clear ; otherwise it will not support the plea ; for the court will intend all matters alleged in the bill, to which the ' complainant is entitled to an answer, to be against the pleader, unless they are clearly and fully denied, (t) But although an answer in support of a plea is required to be full and clear, yet, if the equitable matters charged are fully and clearly denied, it may be sufficient to support the plea, although all the circumstances charged in the bill may not be precisely answered, (u) In such cases, however, the complain- ant is not preclude'd by the circumstances of the court having held, upon the argument of the plea, that the charges in the bill are sufficiently denied to exclude intendment against the pleader, from afterwards excepting to the sufficiency of the answer, in any point in which he ipay consider it defective, (v) Where the complainant waives the necessity of an answer being put in on oath, if the defendant puts in a plea to the bill, he need not support it by answer, (w) SECTION V. ANSWER TO A BILL. Nature of. — Where the case stated in a bill is not such as to render a resort to a demurrer or plea necessary or advisable, or if either of these methods of defense has been adopted, and the demurrer or plea overruled, either wholly or in part, the defendant, unless he disclaims, must answer fully all the material matters alleged and stated in the bill. He is not (<) 1 Barb. Ch. Pr. 129 ; Mltf. Eq. PI. 244 ; HUdyard vs. Cressy, 3 Atk. R.303. (u) Mitf. Eq. PI. 299 ; Waters vs. Glanville, Gilb. R. 184; 1 Barb. Ch. Pr. 129. (v) Id. (w) Seartt vs. Corning, 3 Paige, Ch. R. 566 ; see also Story's Eq. Pr. §681,682. THE DEFENSE TO A SUIT. .133 Answer to a Bill — Nature of. bound, however, to answer allegations which are purely scan- dalous, impertinent, immaterial or irrelevant ; (a) nor anything which may subject him to a penalty, forfeiture or criminal prosecution ; (b) but if the defendant relies upon this objection, he should specially set it up as a ground for refusing the par- ticular discovery in his answer, (c) Nor is lie bound to answer what would involve a breach of professional confidence, (d) He is not compelled to discover the facts respecting his own title, but merely those which respect the title of the complainant, (e) In each of these cases,, if the defendant does not think proper to defend himself from a discovery by a demurrer, or by a plea, he has been permitted by answer to insist that he is not obliged to make the discovery. In each of these cases, the complain- ant may except to the defendant's answer as insufficient ; and upon that exception, it will be determined by the court whether the defendant is, or is not, obliged to make the discovery'. (/") The answer generally traverses the allegations of the bill, or some of them, and alleges other facts and circumstances to show the rights of the defendant in the subject of the suit. Sometimes it admits the truth of the case made by the bill, and either with, or without stating additional facts, submits the questions arising upon the case thus made, to the judgment of the court. In all cases where relief is sought, an answer con- sists of two parts ; first, the defense to the case made by the (a) Story's Eq. PI. § 846 ; Mltf. Eq. PI. 307, note (h), 316, note (q) ; Davis vb. Collier, 13 Geo. R. 485. (6) Adams, vs. Porter, 1 Cush. B. 171 ; Phillips vs. Prevost, 4 Johns. Ch. 205 ; Butler vs. Catling , 1 Root, 310 ; Legoux vs. Waute, 3 Har. & J. 184 ; Brockway vs. Copp, 3 Paige, Ch. R. 539 ; Wolfe vs. Wolfe, 2 Har. & G. 382 ; Hayes vs. Caldwell, 5 Gilm. 35. (c) Adams vs.^Porter, 1 Cush. 171 ; Story's Eq. PI. § 846 ; Sloman vs. Kelly, 3 Xounge & Coll. 673. (d) Story's Eq. PI. § 846 ; Strafford vs. Eogan, 2 Ball & Beatt. R. 164 ; Oreenough vs. Qaskell, 1 Mylne & Keen, 99 ; Jones vs. Pugh, 12 Sim. 470 ; 1 Greenl. Ev. g 237 ; Pliiilips vs. Prevost, 4 Johns. Ch. R. 205 ; Foss vs. Hay net, 31 Maine, 81 ; Leggett vs. Poslley, 2 Paige, Ch. 599. («) Story's Eq. PI. § 846, 572, 825 ; Hare on Disc. 268-273 ; Wigram on Disc. 21, 22, 111, 113, 147-149, 195, 196, 1st ed. ; Id. 261-346, 2d ed. ; Story vs. Randall, 17 111. 467. (/) Mitf. Eq. PI. 307, 308 ; Story's Eq. PI. § 846. 134 THE DEFENSE TO A SUIT. ' Answer to a Bill — Nature of. bill, and, second, the response of the defendant to the interro- gatories of the complainant, (g) Where a defendant submits to answer, he must make a full, frank and explicit disclosure of all matters material or neces- sary to be answered, with all their material circumstances, whether resting within his own knowledge, or upon his in- formation and belief, (A) or he must deny all knowledge with regard to it. • If he has information, aside from the bill, he must state his belief, (i) If the defendant has no information on the subject, he must state that he has no information, or is utterly ignorant of the fact ; (J) and if the information sought is within his reach, he is bound to obtain it, aud state it in his answer, (k) It will not be sufficient to allege that a third per- son who is interested in the suit, can prove the fact sought to be discovered. (I) A fact alleged in the bill, and admitted in the answer, is established ; but every fact alleged in the answer, in avoid- ance of such fact, must be proved like a plea, if the answer is traversed, (m) And where replication has been filed, allega- tions in the answer not responsive to anything in the bill, can- not benefit the defendant at the hearing ; (n) and if the answer (g) Barton's Suit in Eq. 106. (h) Dan. Ch. Pr. 487; Barton'sSuit in Eq. 106; Hagthorp vs. Hook, 1 Gill & J. 270; Bank of Utica vs. Messereau, 7 Paige, Ch. R. 517 ; Super- visors etc. vs. M. & W. R. R. Go. 21 111. 365 ; Woods vs. Morrell, 1 Johns. Ch. E. 103 ; Devereaux vs. Cooper, 11 Vt. 103. (i) Devereaux vs. Cooper, 11 Vt. 103 ; Bradford vs. Geiss, 4 Wash. C. C. E. 513 ; Brooks vs. Byam, 1 Story, 226 ; Smith vs. Lasher, 5 Johns. Ch. E. 247 ; Tradesman's Bank vs. Hyatt, 2 Edw. Ch. 195 ; Norton vs. Warren, 3 Edw. Ch. 106 ; Robinson vs. Woodgate, 3 Edw. Ch. 422 ; Neal vs. Hag- thorp, 3 Bland, 551 ; Bailey vs. Wilson, 1 Dev. & Bat. Ch. 182; Sloan vs. Little, 3 Paige, C. B. 103 ; Ghamplin vs. Champlin, 2 Edw. Ch. 362 ; Robert- son vs. Bingley, 1 McCord, Ch. 333 ; King vs. Ray, 11 Paige, Ch. E. 235 ; Walker vs. Walker, 3 Kelly, 302 ; Smith vs. Loomis, 1 Halst. Ch. N. J. 60 ; Jones vs. Hawkins, 3 Ired. Eq. R. 110. ( j) Kittredge vs. Claramount Bank, 1 W. & M. 244. (k) Swift vs. Swift, 13 Geo. 140. (I) Bell vs. Pomeroy, 4 McLean, 57. (m) McBonald vs. McDonald, 16 Vt. 630. (n) Wakeman vs. Orover, 4 Paige, Ch. E. 23. THE DEFENSE TO A SUIT. 135 Answer to a Bill — Nature of. is defective or evasive, it is a ground of exception, but not for an implied conclusion against the defendant, (o) A mere general denial of confederacy and fraud, usual in an answer, is not suiEcient, where particular acts of fraud are charged in the hill ; (p) and a demurrer to a bill containing such charges would be overruled. (^) Where the defendant, in his answer, admits facts which render the transaction in question legally or constructively fraudulent, a general denial of fraud is unavailing ; (r) and the answer must positively and directly deny the allegations of the bill, (s) If an answer is held to be insufficient, it is treated as no answer ; and if the defendant neglects to make a sufficient answer, as ordered, the bill may be taken pro confesso, and a final decree rendered, (t) When a bill charges the defendant with notice of a par- ticular fact, an answer must be given without a special inter- rogatory ; but a defendant is not bound to answer an inter- rogatory not warranted by the charges in the bill, {u) and what is responsive to a bill in the answer; is to be determined by the bill, and not by the interrogatories ; (v) and where the defendant pleads the statute of limitations in answer to a bill in equity, he must answer all tbe charges in the bill which may avoid the bar, by showing a new promise ; but he need not answer the original cause of action, (w) The rule for determining whether an answer to any particular aver- ment in a bill is necessary, is to ascertain whether it is material to the complainant to enable him to obtain the relief he (o) Blaisdell vs. Stevens, 16 Vt. 179; Phillips vs. Overton, 4 Hey. 291 ; Eq. Draft. 563. (p) Fellows vs. Fellows, 4 Cowen, 682 ; Bailey vs. Wright, 2 Bond, 181. (j) Burnley vs. Jeffersonville,3 McLean, 336 ; see also Lewis vs. Baird,3 McLean, 56 ; Gray vs. Began, 23 Miss. Cush. 304. (r) Hawley vs. Cramer, 4 Cowen, 717; Wood vs. Mann, \ Sumner, 506. (*) Taylor vs. Luther, 2 Sumner, 228 ; Pettit vs. Candler, 3 Wend. 618. (t) Buckingham vs. Peddicord, 2 Bland, 447. (w) Mechanics' Bank vs. Lynn, 1 Pet: 376 ; Brooks vs. Byam, 1 Story, R. 226 ; Methodist E. Church vs. Jaques, 1 Johns. Ch. E. 65. (®) McDonald vs. McDonald, 16 Vt. 630. (w) Cliapin vs. Coleman, 11 Pick. 331. 136 THE DEFENSE TO A SUIT. Answer to a Bill — Exceptions to — Fraud, how Alleged. seeks ; (x) a court will compel an answer to all the allega- tions of a bill that require proof, (y) A defendant shall be at liberty, by answer, to decline answer- ing any interrogatory, or part of an interrogatory, from answer- ing which he might have protected himself by demurrer ; and he shall be at liberty so to decline, "notwithstanding he shall answer other parts of the bill from which he might have protected himself by demurrer, (s) If the defendant desires to raise the objection to the bill, that the complainant has an adequate remedy at law, he should do so by demurrer, or at least it should be specially relied on in the answer. The objection cannot be raised for the first time at the hearing, (a) The Illinois Chancery Practice Act of 1872 (b) requires every defendant to answer fully all the allegations and interrogatories of the complainant, whether an answer on oath is waived or not, except such as are not required to be answered, by reason of exceptions, plea or demurrer thereto allowed. And "on the coming in of any answer, the complainant may, by leave of court, exhibit and file further interroga- tories, to be answered by the defendant within such time as shall be fixed by the court." , Exceptions to answers — - When to be filed. — All exceptions to answers or to interrogatories exhibited, shall be filed within such time as the court may direct, and be argued at such time as the court may*appoint. (c) Exceptions to answers will be considered in a future chapter, (d) Fraud, how alleged. — If a defendant wishes to rely upon a matter of fraud on the part of the complainant, the circum- (x) Batterson vs. Ferguson, 1 Barb. 490. Q/) Stacy vs. Randall, 17 111. 467. (a) Bule 44, Rules of Pr. C. E. of TJ. S. 1870. (a) Tarbell vs. Bowman, 103 Mass. 341 ; Creel;/ vs. Bay State Brick Go. 103 Mass. 514. (6) Rev. Stat. (1874) 201; Rev. Stat. (1877) 187. (c) lb. (d) Post, ch. viii, p. 157. THE DEFENSE TO A SUIT. 137 Answer to a Bill- -Mode of Answering. stances should be fully and specifically stated ;{e) as no pre- sumption is to be indulged in favor of an answer, any more than in other pleading. (/*) Mode of answering. — An answer is the most usual method of defending a bill in chancery, and it may be put in either to the whole bill, or to such parts of it as are not covered by demurrer or plea. It is capable of embracing more circum- stances than a plea, and for this reason may be used with much greater propriety in cases where the defendant is not anxious to prevent a discovery, although the plea might be a complete bar. But where, by introducing additional circumstances, he has a good opportunity of showing his case in a more favorable light, the answer is the best mode of defense, (g) An answer has a double purpose ; first, that of answering the complainant's case as made by the bill ; and, second, that of stating to the court the nature of the defense upon which the defendant means to rely ; and in this respect it fulfills the duty of a plea, or a series of pleas, either denying facts upon which the complainant's equity, as stated in the bill, arises, or by confessing such facts, and avoiding them by the introduction of some new matter, from which contrary inferences may be drawn. The conclusions of law from the facts stated should not be stated. The facts intended to be relied on should be clearly and succinctly alleged ; and the inference of law from them should be left to the court after argument. The com- plainant may set up any number of defenses in his answer, as a consequence of the same state of facts, which his case will allow, or ingenious counsel can suggest, but the defenses must be consistent with each other. (A) If they are inconsistent, or alternative, they are bad, (i) and the result will be to deprive (e) FUzpatri-k vs. Beatty, I Gilm. 454; Mechanics' Bank vs. Levy, 1 Edw. Cb. 316. (/) Mahar vs. O'Hara, 4 Gilm. 424. (fir) 1 Barb. Hi. Pr. 130. (h) Stone vs. Moore, 26 111. 165 ; Craig vs. People etc. 47 111. 487 ; 2 Anst. 397, 386 ; McCle. 317 ; 2 Dan. Ch. Pr. 814-816. («) Jesus College vs. Gibbs, 1 Younge & Coll. 145 ; 6 Price, 504. 138 THE DEFENSE TO A SUIT. Answer to a Bill — Frame of Answer — May be Joint. him of the benefit of either, and to entitle the complainant to a decree, (j) The defendant may, in his answer, rely on any matter which shows^that the complainant is not entitled to the relief he claims by his bill. If he succeeds in establishing such a defense, there will be a denial of the relief sought, and a dis- missal of the bill. , The answer, however, can be used only for the purpose of defense. It cannot be used for relief. Affvrmabvoe relief not allowed on answer. — No affirmative relief can be granted to a defendant on an answer alone. To obtain such relief he must exhibit his cross bill, (k) Frame of an answer. — An answer always begins with its title, specifying of which of the defendants it is the answer, and the names of the complainants in the suit in which it is filed as an answer, (f) It is irregular, and may be rejected, if it is not properly entitled, and does not show what bill it purports to answer, (m) Answers may be joint. — Two or more defendants may join in the same answer, and where their interests are the same, and they appear by the s,ame solicitor, they ought to do so, unless some good reason exists for their answering sepa- rately ; (n) for otherwise the non-joinder may affect them in the matter of the costs at the final hearing, (o) It may, there- fore, be stated as a general rule, that the defendants should answer jointly, unless their interests are different, (p) (J) 2 Dan. Ch. Pr. 343. (k) Turleton vs. Vietes, 1 Gilm. 470 ; Edwards vs. Belm, 4 Scam. 143 ; McGonneU vs. Sodson, 2 Gilm. 640 ; Mason vs. McGirr, 28 111. 322 ; McCagg vs. Heacock, 42 111. 153 ; Hanna vs. Ratekin, 43 111. 462 ; Tittsworth vs. Stout, 49 111. 78 ; Oonwell vs. McOowen, 53 111. 363 ; Howelt vs. Selby, 54 111. 151. (I) Coop. Eq. PI. 323 ; Story's Eq. PL § 869. (m) Supervisors Fulton Co. vs. M. & W. R. R. Go. 21 111. 365 ; Peiters vs. Tliompson, Coop. 249 ; Griffiths vs. Wood, 11 Ves.62. (n) Van Sandon vs. Moore, 1 Russ. 441 ; 2 Dan. Ch. Pr. Ch. 15, § 2, pp. 265, 266 ; Story's Eq. PI. § 869. (o) 2 Dan. Ch. Pr. 265, 266. (p) Story's Eq. PI. § 869; Mitf. Ch. PI. 313, 314; Griffiths vs. Wood, 11 Ves. 62. THE DEFENSE TO A SUIT. 139 Answer to a Bill — Frame of Answer. The answer of joint defendants need not be joint and several, (j) One defendant may answer by adopting the answer of his co-defendant; (?■) and in a bill against husband and wife a joint answer should be put in, but if the wife refuses to join, the husband may answer separately, (s) The answer is entitled, " The answer of C. D., defendant, to the bill of complaint of A. B. the complainant." (t) After the title of the answer, it proceeds to reserve to the defendant all advantages which might be taken by exception to the bill ; a form which is intended to , prevent a conclusion that the defendant, having submitted to answer the bill, admits every- thing, which by his answer he does not expressly oontrovert, and especially such matters as he might have objected to by demurrer or by plea, (u) It will not however, in general, have that effect, (v) The substance of the answer then follows, in which the matters of the bill, with the intei-rogatories founded thereon, are answered, one after the other, together with such additional matter, as the defendant thinks necessary to bring forward his defense, either for the purpose of qualifying, or of adding to, the case made by the bill, or of stating a new case on his own behalf, (w) This is followed by a general denial of all the unlawful combinations charged in the bill, and of all other matters therein contained, and not specially traversed or admitted. To so much of the bill as is material and necessary for the defendant to answer, he must reply directly, without eva- sion, and not by way of negative pregnant. He must not answer the charge merely literally, but he must confess or traverse the substance of each change positively and with (g) Bams vs. Davidson, 4 McLean, 136 ; Masterson vs. Craig, 5 Litt. 39. (r) Binney's Case, 2 Bland, 99. (s) 1 Paige, Cli. R. 431 ; Robins vs. Abraham, 1 Halst. Ch. N. J . 16 ; Id. 61. (t) 2 Dan. Ch. Pr. 266 ; Story's Eq. PI. g 870. (u) Coop. Eq. PI. 323 ; Story's Eq. PI. § 872, 870 ; Mitf. Eq. PI. 313, 614 ; Griffith vs. Wood, 11 Ves. 62. (v) Id. ; Story's Eq. PI. § 694, 870 ; Beame's PI. in Eq. 46, 47. (w) Coop. Eq. PI. 323-325 ; Mitf. Eq. PI. 313-315 ; Story's Eq. PI. § 870. 140 THE DEFENSE TO A SUIT. Answer to a Bill — Swearing to. certainty. Particular and precise charges must be answered particularly and positively, and not in a general manner, even though the general answer may amount to a full denial of the charge, (x) But if any of the- particular inquiries in the bill are as to matters which are totally immaterial to the case, the defendant need not answer them, (y) If the charge in the bill embraces several particulars, the answer should be in the disjunctive, denying each particular ; or admitting some and denying the others according to fact, (s) It may. be observed,,that the general rule that nothing is to be presumed in favor of a pleading, is applicable to an answer in chancery, (a) * Swearing to answer. — The statute of Illinois requires every answer to be verified by an oath or affirmation, except where the complainant waives the oath. "Where the bill is for dis- covery only, the oath or affirmation cannot be waived, (i) Where the oath is waived in the bill, it would be regarded as an improper practice, for a solicitor to put in an answer under oath, (o) An answer filed without being sworn to, may be treated as a valid answer by the complainant, and in that ease will have the same effect in favor of the defendant as if sworn to. (d) ■ (as) Woods vs. Morrell, 1 Johns. Ch. R. 103 ; Stacy vs. Randall, 17 111. 467 ; Parkinson vs. Truesdale, 3 Scam. 369 ; Taylor vs. Luther, 3 Sumner, 228 ; 6 Ves. 792 ; 3 Litt. 80 ; 1 Sim. & Stu. 235. (y) 1 Barb. Ch. Pr. 136 ; Daniel vs. Bishop, 13 Price, 15. (z) Davis vs. Mapes, 2 Paige, Ch. R. 105. (as) Mahar vs. O'Sara, 4 Gilm. 424. (6) Rev. Stat. (1874) 201; Rev. Stat. (1877) 187; Moore vs. Hunter, 1 Gilm. 317; Willis vs. Henderson, 4 Scam. 14; Harris vs. Meese, 5 Gilm. 212. (c) Willenborg vs. Murphy, 36 111. 344; Wallwprh vs. Derby, 40 111. 527; Moore vs. Hunter, 1 Gilm. 317; Hopkins vs. Granger, 52 Til. 504. (d) Fulton Bank vs. Beach, 3 Paige, Ch. R. 307; Contee vs. Dawson, 3 Bland, 264; Moore vs. Hunter, 1 Gilm. 317; Reed vs. Warner, 5 Paige, Ch. R.'650 ; Denison vs. Bassford. 7 Paige, Ch. R. 370; Stevenson vs. Mathers, 67 111. 123; Adlard vs. Adlard, 65 111. 212. THE DEFENSE TO A SUIT. 141 Answer to a Bill — Waiver of Oath. If the affidavit is insufficient, objection must be taken before the final hearing, (e) otherwise it is a waiver of the objection. (_/) Where the affidavit is waived, the answer must, notwith- standing, be signed ; (g) and if the interests of the defendants are separate and distinct, an answer on oath may be waived as to one defendant without such waiver as to others. (A) The defendants may answer jointly, or jointly and severally, or separately; each defendant must, however, swear to his answer, or it will be no answer as to him. (i) Waw&r of oath. — The«statute of Illinois provides that, when a bill, supplemental bill, bill of review, or cross-bill, shall be filed in a court of chancery, other than for discovery only, the complainant may waive the necessity of the answer being made on the oath of the defendant, defendants, or any of them ; and in such cases, the answer may be made without oath, and shall have no other or greater force as evidence than the bill, (j) If the complainant waives an answer under oath, under this section of the statute, he must waive it to the whole bill. And after the defendant has answered the original bill on oath, the com- plainant cannot avoid the effect of such answer by filing an amended bill waiving the oath. The answer under oath to the original bill would still be evidence on the hearing of the cause, so far as responsive to the bill, (k) "Where an answer is not under oath, it is a mere pleading, serving only to make up an issue ; (I) and swearing to an an- swer, when the oath is waived, will give it no greater effect on the hearing than when not sworn to ; (m) but the complainant (e) Bate vs. McLaughlin, 1 A. K. Marsh. 207. (/) Geizer vs. Burk, 3 S. & M. 439. (?) Kimball vs. Ward, Walk. Ch. 439. (h) Bulkley vs. Van Wyck, 5 Paige, Ch. 536 ; Morse vs. Hovey, 1 Sandf. Ch. R. 187. ( (j) Rev. Stat. (1877) 186. ' (k) WyUer vs. Crane, 53 111. 490; Jefferson vs. Kennard, 77 111. 246. (I) Chambers vs. Rowe, 36 111. 171; Willenborg vs. Murphy, Id. 344; Wallwork vs. Derby, 40 111. 527; Hopkins vs. G-ranger, 52 111. 504; Willis vs. Henderson, 4 Scam. 13. (m) Moore vs. Hunter. 1 Gilm. 317; Andrews vs. Knox Co., 70 III. 65. 142 THE DEFENSE TO A SUIT. Answer to a Bill — Effect of Sworn Answer, etc. may avail himself of any admission and allegation therein to make out his case, (n) Effect of sworn answer as evidence. — If an answer is required under oath, and is responsive to the allegations of the bill, it must be received as true, unless it is overcome by evi- dence amounting to the testimony of two witnesses, (o) Such answer is not equal to two witnesses, but it must be overcome by two witnesses, or by one witness and strong corroborating circumstances, (j?) It is, however, only where the defendant states facts within his knowledge, that his answer must be overcome by evidence equivalent to the testimony of two witnesses, (q) When answer is evidence against a co-defendant. — The answer of one defendant cannot be read in evidence against another, except in particular cases, as where such defendants are partners, or where one has acted as the agent of the other in any transaction to which the answer may relate, and the agency or partnership, at the time of filing the answer, still exists, (r) Answer of deceased ancestor as evidence. — The answer of a deceased ancestor may be read in evidence against the heirs or devisees, where they claim under him in an action brought for the same subject matter, (s) Admissions in answer. — Where a fact is alleged in the bill, and admitted by the answer, the admission is conclusive, and (») Smith vs. Clarke, 4 Paige, Ch. R. 368 ; Union Bank vs. Geary, 5 Pet. 99, 110-112 ; 1 Clark's Ch. R. 63 ; Story's Eq. PI. § 875, and cases cited. (o) Stouffer vs. Maelien, 16 111. 553 ; Phelps vs. WJiite, 18 111. 41 ; Wynkoop vs. Cowing, 21 111. 571 ; Panton vs. Teft, 22 111. 366 ; Gregg vs. Eenfrews, 24 111. 620 ; Myers vs. Kinzie, 26 111. 36 ; Buntain vs. Wood, 29 111. 504 ; Trout vs. Emmons, Id. 433 ; Barton vs. Moss, 32 111. 50 ; Dunlap vs. Wilson, Id. 517 ; Cassell vs. Ross, 33 111. 246 ; Martin , Vs. Eversol, 36 111. 222 ; Wightman vs. Hart, 37 111. 123 ; Maple vs. Scott, 41 111. 50 ; Wildey vs. Webster, 42 In. 108; Russell vs. Russell, 54 111. 250; O'Brien vs. Fry, 82 111. 274 (p) Morrison vs. Stewart, 24 111. 25 ; Hopkins vs. Granger, 52 111. 504. (4) Fryrear vs. Lawrence, 5 Gilm. 325; Hitt vs. Ormsbee, 14 111. 235. (r) Rust vs. Mansfield, 25 111. 338 ; Pensonau vs. Pulliam, 47 111. 58. (g) Rust vs. Mansfield, 25 111. 338. THE DEFENSE TO A SUIT. 143 Answer to a Bill — Admissions — Corporations. evidence tending to dispute it will not be considered, (t) But if an admission has been made in an answer improvidently and by mistake, the court will relieve the party making it from its effect, by an order directing so much of the answer as contains the admission to be treated as no part of the record, but, before such an order will be made, the court must be satisfied by affi- davit that the admission was made under a misapprehension or by mistake. Courts exercise a liberal discretion in relieving from the effect of admissions in answers not under oath, which are mere pleadings, and are frequently signed by counsel ; but where an answer is under oath great caution is observed. If the relief sought is from an admission of law it may be suffi- cient to show that he was erroneously advised by his solicitor in that regard, but where the relief sought is from an admis- sion of fact it should be shown that the answer was drawn with care and attention, stating upon information and belief such facts as were not within the defendant's own knowledge. No court ought to relieve a party from the consequences of a reckless misstatement under oath. It should also be shown that the fact misstated was not one within the defendant's own knowledge, and that he was erroneously informed in regard to it, and made oath to the answer, honestly believing such erro- neous information, (u) Where a defendant has by a mistake or misapprehension of the facts, or of his rights, made an admission in his answer inconsistent with the truth, he may file a supplemental answer under which he may prove that the fact was contrary to the admission, (v) Answer of a corporation. — The statute of Illinois of 1872 (w) provides that when a corporation, other than a municipal (f) Weider vs. Clark, 27 111. 251. (u) Maher vs. Bull, 39 111. 531 ; Snydam vs. TruesdaLe, 6 McLean, 459 ; Coquilland vs. Snydam, 8 Blackf . 24. (v) Hughes vs. Bloomer, 9 Paige, Ch. R. 269 ; Bowan vs. Gross, 4 Johns. Ch. R. 375 ; Murdoch's Case, 2 Bland, 461 ; McKim vs. Thompson, 1 Bland, 150 ; Gary vs. Ector, 7 Geo 99 {w) Rev. Stat. (1874) 201; Rev. Stat. (1877) 186; see Larrison vs. P. A. d- D. R. R. Co. 77 111. 11. 144 THE DEFENSE TO A SUIT. Answer to a Bill — Infants and Insane Defendants. corporation, is defendant to a bill or petition praying discovery of any paper, or matter alleged to be in the custody, or within the knowledge of any officer or agent of the defendant, it shall not be necessary, for the purpose of procuring such discovery, to make such officer or agent a defendant, but the answer touching the paper, or matter concerning which discovery is sought, shall be under the oath of such officer or agent, the same as if he had been made defendant ; provided, no corpora- tion shall be required to procure such answer under the oath of any person not under it? control at the time when the bill is filed. The answer of a corporation aggregate, is usually under seal ; not under oath, (x) Answer of imfants and insane defendants. — Guakdiait ad litem. — The statute of Illinois provides that, " in any cause in equity, it shall be lawful for the court in which the cause is pending, to appoint a guardian ad litem, to any infant or insane defendant in such cause, and to compel the person so appointed to act." (y) A guardian ad litem should make himself familiar with the condition of the case, and the rights and interests of the infant defendants ; and if the circumstances and the infant's interests require it, he should make a vigorous defense, (s) Nothing can be admitted by the infant, nor his guardian ad litem for him ; but every allegation in the bill must be strictly proved, so far as the infant is concerned ; (a) and the record of the proceed- ings must furnish proof to sustain a decree against infant ( . , («) McDermaid vs. Russell, 41 111. 49IK-- Hicl^enbotluim vs. Blaekledge, 54 111. 318. (/) McClay vs. Norris, 4 Gilin. 370 ; Sconce vs. Whitney, 12 111. 150 ; Cost vs. Rose, 17 111. 278. * T 10 146 THE DEFENSE TO A SUIT. Answer to a Bill — Title — Commencement of. No. J/JS. Title of answer to amended bill. The answer of C. D., the defendant, to the amended bill of complaint of A. B», the complainant. No. lfJf.. Title of answer where exceptions have been taken to a form of answer, and the bill lias also been amended. The further answer of C. D., one of the defendants to the original bill, and his answer to the amended bill of complaint of A. B., the complainant. No. 45. Title of answer to a supplemental bill. The answer of C. D., the defendant to the supplemental bill of complaint of A. B., the complainant. No. Jfi. Title of amended answer. The amended answer of C. D., the defendant, to the bill of complaint of A. B., the complainant. No. Ifl. Title of answer by infants by their guardian ad litem. The answer of C. D., an infant under the age of twenty-one years, by E. F., his guardian ad litem, to the bill of complaint of A. B., the complainant. H. THE COMMENCEMENT. No. Jf8. Introduction to an answer of one defendant! This defendant, now and at all times hereafter, saving to himself all manner of benefit and advantage of exception which can or may be had or taken to the many errors, uncertainties and other imperfections in the said bill contained, for answer thereunto, or to so much and such parts thereof as this defend- ant is advised it is or are material or necessary for him to make answer unto, answering, says, etc. Or thus : This defendant reserving to himself all right of exception/ to the said bill of complaint, for answer thereto, says, etc. No. 49. Introduction to answer of several defendants. These defendants, now and at all times hereafter, saving and reserving to themselves, and each of them, all benefit and THE DEFENSE TO A SUIT. 147 Answer to a Bill — Common Forms in Framing. advantage of exception or otherwise, that can or may be had or taken to the mapy errors, uncertainties and other imperfections in the said bill contained for answer thereto, or to so much thereof as these defendants are advised is or are material or necessary for them, or any of them, to make answer unto, they, these defendants, severally answering, say, etc. Or thus : These defendants, reserving to themselves all right of excep- tion to the said bill of complaint, for answer thereto, say, etc. m. COMMON FORMS IN FRAMING ANSWERS. No. 50. Where defendant admits a statement. And this defendant further answering, says that he has been informed and believes it to be true, that, etc. Or, This defendant admits that, etc. No. 51. Where a defendant admits a statement of a written instrument. And this defendant further says, that he has been informed, and believes it to be true, that, etc. ; but for greater certainty therein, craves leave to refer to the said, etc., when the same shall be produced. No. 52. Where a defendant believes a statement may be true, but qualifies his admission of it, not knowing the same of his own knowledge. And this defendant further says, he has never heard or been informed, save by the complainant's said bill, whether, etc.; but this defendant believes that, etc., as in the said bill is alleged. No. 53. Where a defendant is entirely ignorant with regard to the statement in the bill. And this defendant, further answering, says, it may be true, for anything this defendant knows to the contrary, that, etc. ; but this defendant is an utter stranger to all and every such matters, and cannot form any belief concerning the same. 148 THE DEFENSE TO A SUIT. Answer to a Bill — General Frame of Answer. No. 54- Where one of two defendants, of his own knowledge, knows the statement i/n the bill to be true, and the other defendant does not know the same, but believes the answer of his co-defendant. And this defendant, C. D., further severally answering, says, and this defendant, E. F., believes it to be true, that, etc. No. 55. Where one of two defendants denies the allegation in the bill, and the other defendant believes such denial to be true. And this defendant, C. D., further severally answering, says, he denies, and this defendant, E. F., believes such denial to be true, that, etc. No. 56. Where several defendants join, and are all ignorant of the allegations m the bill. And these defendants further severally say that they, or any or either of them, to the knowledge or belief of the others or other of them, do not know, and have never been informed, save by the complainant's bill, and cannot set forth as to their belief or otherwise, whether, etc. No. 57. General frame of an answer. In the Court. C. D. ) Term, 18—. ats. y In Chancery. A. B. ) ' The answer of C. D., defendant to the bill of com- plaint of A. B., complainant. This defendant, now and all times hereafter, saving and reserving unto himself all benefit and advantage of exception which can or may be had or taken to the many errors, uncer- tainties and other imperfections in the said bill contained, for answer thereunto, or to so much and such parts thereof as this defendant is advised it is or are material or necessary for him to make answer unto, answering, says, etc. This, defend- ant admits, etc. This defendant, further answering, denies, etc., (and so on through the whole bill, admit or deny every material allegation, and set up any matter in defense or avoidance, as the nature of the case may require, and conclude as follows :) THE DEFENSE TO A SUIT. 149 Answer to a Bill — Short Form of Answer. And this defendant denies all and all manner of unlawful combination and confederacy, wherewith he is by the said bill charged, without this that there is any other matter, cause or thing in the complainant's said bill of complaint contained, material or necessary for this defendant to make answer unto and nQt herein and hereby well and sufficiently answered, confessed, traversed and avoided or denied, is true to the knowledge or. belief of this defendant ; all which matters and things this defendant is ready and willing to aver, maintain and prove, as this honorable court shall direct ; and prays to be hence dismissed with his reasonable costs and charges in this behalf most wrongfully sustained. , Sol. for Defendant. ,< CD. If the answer is required to be under oath, the following affidavit should be attached : No. 58. Affidavit to answer. State of ) ' County of f On this day of , 18 — , before me personally ap- peared C. D., and made oath that he has read (or heard read) the above answer, subscribed by him, and knows the contents thereof, and that the same is true, of his own knowledge, except as ' to matters which are therein stated to be on his information and belief, and as to those matters, he believes them to be true. , Clerk of the Court. No. 59. Short form of answer In the Court. In Chancery. Term, 18— The answer of C. D., defendant, to the bill of com- plaint of A. B., complainant. This defendant reserving to himself all right of exceptions to the said bill of complaint, for answer thereto, says, etc. (Pro- ceed with the several averments according to tlie case, admitting or denying every material allegation in the stating part of the Mil, and set up amy matter vn defense or avoidance as the nature of the case may require ; and conclude as follows :) 150 THE DEFENSE TO A SUIT. Answer to a Bill — Infanta — Statute of Frauds, etc. And this defendant further answering, denies that the com- plainant is entitled to the relief, or any part thereof, in the said bill of complaint demanded, and prays the same advantage of this answer as if he had pleaded or demurred to the said bill of complaint ; and prays to be dismissed with his reasonable costs and chafges.in this behalf most wrongfully sustained. , Sol. for Defendant. C. D. [Add affidavit, if required, as in last form.)- No. 60. Answer of infants by their guardian ad litem. (Title as in No. 57, ante, page 148.) The answer of E. D. and C. D., infants, under the age of years, by E. F., their guardian ad litem, to the bill of complaint of A. B., the complainant. These defendants answering by their guardian ad litem, say, that they are infants, this defendant E. D., of the age of years, or thereabouts, and this defendant C. D., of the age of years, or thereabouts, and they therefore submit their rights and interests in the matter in question in this cause, to the tender consideration and protection of this honorable court, and pray strict proof of the matters alleged in said bill of complaint. E. D. C. D. By E. F., their guardian ad litem. No. 61. Statement in. answer, claiming the benefit of the statute of frauds. And this defendant says, that by the statute of , it is among other things provided, that, no action shall be brought whereby to charge any person upon any contract of any lands, tenements and hereditaments, or any interest in or concerning them, unless the agreement upon which such action should be brought, or some memorandum or note in writing shall be signed, by the said party to be charged therewith, or some other person by -him lawfully authorized ; {give the language, of the statute.) And this defendant insists upon the said statute, and claims the same benefit as if he had pleaded the same. No. 6%. Conclusion of an answer, insisting that the com plainant has an adequate remedy at law. And this defendant submits to this honorable court that all and every the matters in the complainant's bill mentioned and THE DEFENSE TO A SUIT. 151 Answer to a Bill — When to be Filed — Of Amended Bill. complained of, are matters which may be tried and determined at law, and with respect to which the complainant is not enti- tled to any relief from a court of equity ; and this defendant asks that he shall have the same benefit of this defense as if he had demurred to the complainant's bill ; and this defendant denies, etc. When to ieJUed. — In Illinois the defendant, when properly summoned, served with a copy of the bill or petition, or noti- fied as required by the Practice Act of 1872, is held to except, demur, plead or answer t on the return day of the summons ; or if the summons is not -served ten days before the first day of the term at which it is returnable, by the first day of the next term, or in case of service by copy of the bill, or by notice, at the expiration of the time required to be given, or within such further time as may be granted by the court, or in defanlt thereof, the bill may be taken as confessed. (^) If the defendant shall appear at the next term and offer to file his answer to the bill, the court may permit him to do so, upon his showing sufficient cause, and paying the costs of the preceding terms; in such case the decree shall be vacated, and the cause may be proceeded with as in other cases. (A) When the defendant has obtained an extension of time in which to answer, if a certain day in term is fixed, he may demur, plead or answer. But it may be doubtful whether he could file a demurrer or plea if he obtained an extension of time expiring in vacation. {{) Aiswer to amended hill. — In answering an amended bill, the defendant, if he has answered the original bill, should answer only those matters which have been introduced by the amendments. (J) In fact the answer to an amended bill consti- tutes, together with the answer to the original bill, but one record, as much as if it had been engrossed on the same (?) Kev. Stat. (1874) 200; Rev. Stat. (1877) 186. (h) lb. (»') Kilgour vs. Crawford, 51 111. 249; 6 Pet. 327; Dunn vs. \Keegin, 3 Scam.'292 ; Morgan vs. Corlies, 81 111. 72. (j) Hinde's Ch. Pr. 22; 1 Barb. Ch. Pr. 159. 152 THE DEFENSE OF A SUIT. Answer to a Bill — - Amendment of. paper ; (k) in the same manner that an original and an amended bill are considered as the same record. Upon this principle it is that it has been held that it is impertinent to repeat, in the answer to the amended bill, what appears upon the answer to the original bill, unless by the repetition the defense is mate- rially varied. (I) Where the amendments are not noted upon the amended bill, the defendant should ascertain where the amendments, are and answer them only, (m) Amend/merit of answer. — Permission to a defendant to amend his answer is a matter in the discretion of the court, and will generally be allowed in the promotion of justice, and when injury cannot result to the complainant, and in cases where injury might result unless time is given to the opposite party to meet the change in the case produced by the amend- ment, the court will refuse leave to amend, or give the other party a reasonable time to meet the amendment, (n) Generally, amendments will be allowed in chancery pleadings at the discretion of the court, (o) When it is made on a material point, the motion should be based upon an affidavit of the facts ■which make it necessary, (p) An amendment may be granted for the purpose of correcting a mistake or error in a matter of fact, or in the statement of a fact ; (q) or in making an admission of assets ; (r) or a mistake in the title of the answer, (s) So it will be allowed where new matter has come to the knowledge of the defendant, since the answer was put in ; (t) or in cases of (k) Mitf. Eq. PI. 257; HUdyard vs. Oressy, 3 Atk. 303 ; Bennington Iron Co. vs. Campbell, 2 Paige, Ch. R. 159. (I) Smith vs. Searle, 14 Ves. 415. (m) Bennington Iron Co. vs. Campbell, 2 Paige, Ch. R. 159 ; 1 Barb. CU. Pr. 159. (n) Wylder vs. Cm>„>, 53 III. 490; Haskell vs. Brown, 65 111. 29- Roberts vs. Stigleman, 78 111. 120. (o) Artec vs. Engart, 13 111. 243 ; Liggon vs. Smith, 4 Hen. & Munf. 477. (p) IAggon vs. Smith, 4 Hen. & Munf. 477 ; 1 Barb. Ch. Pr. 164. (g) Alpha vs. Payman, 1 Dick. R. 33 ; Berney vs. Chambers, Bumb. 248 ; Countess vs. Cifford, 2 P. Wms. R. 424 ; 1 Barb. Ch. Pr. 164. (r) Dagley vs. Crump, \ Dick. 35. (») Amb. 62 ; 1 Mad. 269 ; 1 Ves. & B. 186. (t) Patterson vs. Slaughter, Amb. 292 j Wells vs. Wood, 10 Ves R. 401 : Alpa vs. Payman, Dick. 33. THE DEFENSE TO A SUIT. 153 Disclaimer — Nature of. surprise, as where an addition has been made to the draft of the answer, after the defendant has perused it. (m) It. will be allowed where a defense is defectively set forth, in order to give the party the benefit of the defense which he intended to present. But he will not be permitted to put in a new or addi- tional plea or answer, (v) SECTION VI. DISCLAIMER. Nature of. — A disclaimer "is a renunciation by the defendant of all interest or claim to the subject of demand made by the complainant in his bill. It cannot be used, however, for the purpose of depriving the complainant of his right to a full answer, where it is evident that, notwithstanding the dis- claimer, the defendant ought to be retained as a party to the suit. A mere witness may avoid answering by a disclaimer ; but it is otherwise with an agent charged by the bill with a personal fraud, for the law does not permit a man to disclaim a liability, (a) A disclaimer is distinct in substance from an answer, although sometimes confounded with it. (5) But it can seldom be put in without an answer; for if a defendant has been made a party by mistake, having had an interest, which he may have parted with, the plaintiff may require an answer sufficient to ascertain whether that is a fact or not ; and if, in truth, it is so, an answer seems necessary to enable the complainant to make the proper party, instead of the defendant disclaiming, (c) («) Chute vs. Lady Dacre, 1 Eq. Ca. Ab. 29 ; 1 Barb. Ch. Pr. 164. (v) Beach vs. Fulton Bank, 3 Wend. 573. (a) Barton's Suit in Eq. 94; 2 Dan. Ch. Pr. 233 ; Mitf. Eq. PI. 153; Ells- wort'i vs. Curtis, 10 Paige, Gh. R. 105 ; Benlley vs. Cowman, 6 Gill & J. 152 ; Story's Eq. PI. § 838 ; Glassington vs. Thwaites, 2 P.uss. R. 458 ; Whiting vs. Bush, 2 Younge & Coll. 546, 552 ; Bukeley vs. Dunbar, 1 Anst. R. 37 ; Welford's Eq. PI. 254. (6) Mounsay vs. Burnham, 1 Hare, R. 13. (e) Ellsworth vs. Curtis, 10 Paige, Ch. R. 105 ; Story's Eq. PI. § 838. 154 THE DEFENSE TO A SUIT. Disclaimer — Nature of — Form of. A mere disclaimer is scarcely to be deemed sufficient or proper, except where the bill simply alleges that the defendant claims an interest in the property in dispute, without more ; for under such circumstances, if he has no interest, that is a sufficient answer to the allegation ; (2. TESTIMONY. 175 Production of Books, etc. — Petition for, etc. may give secondary or parol proof of their contents, if they are shown to be in the possession of the opposite party, (c) The notice should be given seasonably, in order to give the party reasonable time to produce the original, (d) A certified copy of a deed from the record can be used, on the proper preliminary proof being made, without notice to the opposite party to produce the original, (e) For a form of notice to produce books or documents, see Puterbaugh's Com. Law PI. and Pr. pp. 771-772. Documents, etc., in hands of third persons. — If documents, the production of which is desired, are in the possession of one who is not a party to the suit, he may be compelled by a sub- poena duces tecum to produce them ; and if the subpoena is not obeyed, he will be punished for contempt, on proof by affi- davit that the documents are in his custody, (f) No. 72. Petition for production and inspection of papers, etc. In the Court. Term, 18—. In Chancery. To the Honorable , Judge of the Court of the County of , in the State of . In Chancery sitting : > The petition of the above-named complainant respectfully represents : That the answer of the defendant, C. D., has been put in in this cause, and a replication thereto has been filed, but no testimony has been taken in the cause, nor has the same been noticed for hearing; That by the answer of the defendant, he admits that he is in possession, or has under his control, divers books, deeds, letters, accounts, and other papers relating to the matters at issue in this cause. And your petitioner further represents that he has a direct and immedi- ate interest in the said books, deeds and other papers, and that (e) Hector vs. Hector, 3 Gilm. 105 ; Prettymar vs. Wolston, 34 111. 190. {d) Codj/vB.3ough,20m.43; Warner vs. Campbell, 26 111. 282 ; Bunhnei. vs. Bishop Bill Colony, 28 111. 204. («) Bowman vs. Wettig, 39 111. 416 ; Deininger vs MeConrmU, 41 111. 228. (/) 3 Greenl. Bv. § 305 ; also see 1 Id. § 558, 559. 176 TESTIMONY. Order for Production of Books, etc. — Depositions. an inspection thereof is necessary to enable him to examine witnesses in this cause, and to prepare such cause for hearing. Your petitioner, therefore, prays that the defendant may be ordered to produce to, and leave with, the clerk of this court the books, deeds, and other papers above mentioned ; and that your petitioner, his solicitor, agent or counsel, may be at liberty to inspect and peruse the same, and to take copies thereof, or extracts therefrom, as he may be advised. {Add affidavit.) A. B. No. 73. Order for production of boohs and papers. {Caption, and UUe of cause as in No. 79, post.) On reading and filing the petition of the complainant in this cause duly verified, and, on motion of Mr. , solicitor ' for the complainant, and Mr. , solicitor for the defendant, being heard-in opposition thereto, it is. ordered that the de- fendant C. D. do within days 'from the date of this order, produce to, and leave with the clerk of this court the books, deeds, letters, accounts, and other papers relating to the matters at issue in this cause, which are admitted by the defendant's answer to be in his possession or under his control ; and that the complainant, his solicitor, agent or counsel, may be at liberty to inspect and peruse the same, and to take copies thereof, or extracts therefrom, as he may be advised, at his own expense ; but that the defendant be at liberty to seal up such parts of the said books, deeds, etc., as he shall make oath, do not, in any manner, relate to the matters in controversy in this suit. SECTION n. DEPOSITIONS. For forms of notices and interrogatories to be used in taking depositions, see Puterbaugh's Com. Law PI. and Pi", pp. 775- 785. Depositions of resident witnesses. — The statute of Illinois provides, that " When the testimony of any witness, residing or being within this state, shall be necessary in any sirit in chancery in this state, the party wishing to use the same may cause the deposition of such witness to be taken before any TESTIMONY. 177 Depositions — Non-resident Witnesses, etc. judge, justice of the peace, clerk of a court, master in chancery, or notary public, without a commission or filing interrogatories for such purpose, or giving to the adverse party or his attorney ten days' notice of the time and place of taking the same, and one day in addition thereto (Sundays inclusive) for every fifty miles travel from the place of holding the court to the place where such deposition is to be taken. If the party entitled to notice and his attorney resides in the county where the deposition is to be taken, five days' notice 6hall be sufficient." (g) Where a party files a bill he may, before issue joined, take depositions to substantiate its averments ; and he may proceed to take his depositions de iene esse, without an order of court for that purpose. Should the necessity for such depositions be superseded by the answer, the party who takes them must pay the cost. (A) The notice to take the deposition before the clerk of a par- ticular county court, need not give the name of that officer, (i) A party cannot compel his adversary to appear at two differ- ent places on the same day to take depositions; (J) but objections to the notice, in all cases, must be made before the hearing. (&) So must an objection to the competency of a witness be made before the hearing, (I) and decided before hearing, or it is waived, (m) Depositions of non-resident wifowsses, etc. — " When the testi- mony of any witness residing within this state, more than' one hundred miles from the place of holding the court, or not resid- ing in this state, or who is engaged in the military or naval service of this state, or of the United States, and is out of this (g) Rev. Stat. (1874) 492; Rev. Stat. (1877) 478. (h) Doyle vs. Wiley, 15 111. 576. (*) Hays vs. Borders, 1 Gilm. 64. (j) SanMnson vs. Lombard, 25 111. 572. (k) Window vs. Newlan, 45 111. 148) 149 ; Gorgon vs. Anderson, 30 111. 98; Lockwpod vs. Mills, 39 111. 602. (0 Fash vs. Blake, 38 111. 363; Webb vs. A. M. & F. Co. 5 OUm. '25; Mosliitr vs. Knox College, 32 111. 155. (to) Phy vs. Clark, 35 111. 378. 12 178 TESTIMONY. Depositions — Non-resident Witnesses, etc. state, shall be necessary in any civil cause pending in any court of law or eqwdn/ in this state, it shall be lawful for the party wishing to use the same, on giving to the adverse party, or his attorney, ten days' previous notice, together with a copy of the interrogatories intended to be put to such witness, to sue out from the proper clerk's office a dedirnus potestatem or com- mission, under the seal of the court, directed to any compe- tent and disinterested person, as commissioner, or to any judge, master in chancery, notary public or justice of the peace of the county or city in which such witness may reside ; or in case it is to take the testimony of a person engaged in such military service, ' to any commissioned officer in the military or naval service of this state or the United States,' authorizing and requiring him to cause such witness to come before him, at such time and place as he may designate and appoint, and faithfully to take his deposition, upon all such interrogatories as may be inclosed with or attached to said commission, both on the part of the plaintiff and defendant, and none other ; and to certify the same, when thus taken, together with the said commission and interrogatories, into the court in which such cause shall be pending, with the least possible delay." (n) The notice must be substantially as provided by the stat- ute ; (p) but it need not give the name of the commissioner, as he is appointed by the clerk of the court, (p) Notice when opposite party is a non-resident, or cannot be fovmd. — The statute provides, that, " When the deposition of any witness is desired to be taken, under the provisions of this act,' and the adverse party is not a resident of the county in which the suit is pending, or is in default, and no attorney has appeared for him in such case, upon filing an affidavit of such fact, and stating the place of residence of such adverse party, if known, or that, upon diligent inquiry, his place of residence (n) Rev. Stat. (1874) 492; Rev. Stat. (1877) 479. For forms to be used under this section, see Puterbaugh's Com. Law PI. and Pr. pp. 779-785, and remarks thereon. (o) Corgan v». Anderson, 30 111. 95. (/)) Cole vs. Choteau,. 18 111. 442. TESTIMONY. 179 Depositions of Non-resident Witnesses, etc cannot be ascertained, the notice required by this act may be given by sending a copy thereof by mail, postage paid, addressed to such party at his place of residence, if known, or, if not known, by posting a copy of such notice at the door of the court house where the suit is pending, or publishing the same in the nearest newspaper ; and when interrogatories are required, filing a copy thereof with the clerk of the court, ten days before the time of suing out such commission. (g) Of nonresident witnesses, upon oral interrogatories, etc. — The statute provides, in this regard, as follows : "When a party shall desire to take the evidence of a non-resident witness, to be used in any cause pending in this state, the party desiring the same, or where notice shall have been given, that a commission to take the testimony of a non-resident witness, will be applied {or, the opposite party, upon giving the other three days' notice, in - writing, of his election to do so, may have a commission, directed in the same manner, as provided in section twenty-six of this act, to take such evidence, upon interrogatories to be propounded to the witness orally ; upon the taking of which, each party may appear before the commissioner, in person, or by attorney, and interrogate the witness. The party desiring such testimony, shall give to the other the following notice of the time and place of taking the same, to wit : ten days, and one day in addition thereto (Sundays included), for every one hun- dred miles' travel from the place of holding the court to the place where such deposition is to be taken. " "When a party to a suit shall give the opposite party notice to take a deposition upon oral interrogatories, and shall fail to take the same accordingly, unless such failure be on account of the non-attendance of the witness, not occasioned by the fault of the party giving the notice, or some other unavoid- able cause, the party notified, if he shall attend himself, or by attorney, agreeable to the notice, shall be entitled to two dollars per day for each day he may attend under such notice, and to (q) Rev. Stat. (1874) 492; Rev. Stat. (1877) 479; see Pile vs. McBratney, 15 III. 319. 180 TESTIMONY. Depositions— Manner of Taking, etc. Bix cents per mile for every mile that he shall necessarily travel in, going to, or returning from, the place designated to take the deposition, to be allowed by the eourt where the suit is pend- ing, and for which execution may issue." (r) Manner of taking, certifying and returning depositions. — The statute requires that " previous to the examination of any witness whose deposition is about to be taken as aforesaid, he or she shall be sworn (or affirmed) by the person or persons authorized to take the same, to testify the truth in relation to the matter in controversy, so far as he or she may be interro- gated; whereupon the said commissioner, judge, master in chancery, notary public, justice of the peace, clerk, or other person authorized to take depositions (as the case may be), shall proceed to examine such witness, upon all such interrogatories as may be inclosed with, or attached to any such commission as aforesaid, and which are directed to be put to such witness, or, where the testimony is taken upon oral interrogatories, upon all such interrogatories as may be directed to be put by either party litigant; and shall cause such interrogatories, together with the answers of the witness thereto to be reduced to writing in the order in which they shall be proposed and answered, and signed by such witness ; after which it shall be the duty of the person taking such deposition, to annex at the foot thereof a certificate, subscribed by himself, stating that it was sworn to and signed by the deponent, and the time and place when and where the same was taken. And every such deposition, when thus taken and subscribed, and all' exhibits produced to the said commissioner, judge, master in chancery, notary public, justice of the peace, or clerk, or other person authorized to take depositions, as aforesaid, or which shall be proved or referred to by any witness, together with the com- mission and interrogatories, if any, shall be inclosed, sealed up, and directed to the clerk of the court in which the action shall be pending, with the names of the parties litigant indorsed therein : Provided, That when any deposition shall be taken as aforesaid, by any judge, master in chancery, notary public (r) Rev. Stat. (1874) 492: Rev. Stat. H877) d79 TESTIMONY. 181 Depositions — Manner of Taking, etc. or justice of the peace, out of this state, or other officer, such return shall he accompanied by a certificate of his official char- acter, under the great seal of the state, or under the seal of the proper court of record of the county or city wherein such deposition shall be taken, (s) It is no objection that the oath administered to a witness was more comprehensive than the statute requires, (t) And the court will presume it was administered at the proper time ; (u) and that the deposition was taken at the proper place, (v) A leading or improper interrogatory must be objected to at the first opportunity, or it is waived ; (w) but leading questions are not always objectionable, (as) Written interrogatories need not necessarily be copied into the deposition, (y) A party cannot object that the interrogatories of the adverse party are not fully answered, (s) A mistake in the name of a witness will be fatal, although cross-interrogatories are filed ; {a) but proper initials of Chris- tian names will be presumed to be correct. (J) The certificate of the officer taking the deposition "need not Btate that the deposition was signed by the witness, if his name appears at the end thereof, (c) It is sufficient if the certificate states that the deposition was taken at the time mentioned in the caption, (d) And it has been held that the time and place were not essential to be stated in the certificate, (e) {») Rev. Stat. (1874) 493; Rev. Stat. (1877) 480. (t) BaUance ,vs. UnderhiH, 3 Scam. 457. («) Id. (c) County of Green vs. Bledsoe, 12 111. 271, 273. (to) Kimball vs. Cook, 1 Gilm. 424,425 ; Goodrich vs. Hanson, 33 111. 499. (x) Forsyth vs. Baxter, 2 Scam. 9. (j) Hawks vs. Lands, 3 Gilm. 227. (z) Cole vs. Chateau, 18 111. 448. (a) Scholes vs. Acherland, 13 111. 651; see Kendall vs. Limburg, 69111. 350. (b) Curtis* vs. Martin, 20111.557. (e) BaUance vs. VnderhiU, 3 Scam. 453 ; County of Green vs. Bledsoe, 12 m. 271. (d) Railroad Co. vs. Cowles, 32 111. 116. le) Phelps vs. Young, Breese, (Becher*s ed.) 327 ; see Observations, Puter- bangh's Com. Law PI. and Pr. pp. 780-785. 182 * TESTIMONY. Evidence taken by Master, etc. Instructions, etc., for taking depositions. — In addition to the statutory provision which we have given, the pleader is referred to Puterbaugh's Com. Law PL and Pr. p. 781, where instruc- tions and forms for taking, certifying and returning of deposi- tions are given. Interpreters m taking depositions. — "Interpreters may be sworn truly to interpret, when necessary, in taking depo- sitions, (f) SECTION III. EVIDENCE TAKEN BY MASTER IN CHANCEEY, OR SPECIAL COMMISSIONER. The statute of Illinois provides that, " the court may, upon default, or upon issue being joined, refer the cause to a master in chancery, or special commissioner, to take and report evi- dence, with or without his conclusions thereupon." A master in chancery can only act in a case in court, when ordered by the court. An order of reference is therefore necessary, before he is authorized to take testimony ; (g) but if a decree is rendered, based upon his report, it is a sufficient recognition. (A) It is in many cases proper and necessary for a court to appoint a special master or commissioner. If the regular master is a solicitor in the case, it would be error to refer it to him to take proof. (*) And if a court appoint a special master to per- form the duties of the regular master, it will be presumed to have done so for good reasons, whether they appear on the record or not. (J) When a disputed question of fact is referred to the master in chancery, it is his duty to appoint a day for the examination ' ' i T?ev. Stut. (1874) 496; Rev. Stat. (1877) 482. (g) Preston vs. Hodgen, 50 111. 56 ; see Fischer vs. Fischer, 54 111. 231. (/i) Hess vs. Voss, 52 111. 473. (i) Wilhite vs. Pearce, 47 111. 413 ; Wiite vs. Hoffacker, 27 111. 329 ; Demi vb. Bamis, 30 111. 180. U) Farnsworth vs. Strasler, 12 111. 482. TESTIMONY. 183 Evidence taken before Master — Order of Reference. of witnesses before him, of which the parties or their solicitors should receive due notice. He should take down the testi- mony, so that the same may be used by the court if necessary ; and should report in writing the facts, and his conclusions thereon ; and the questions of law may be reserved for the court. Each party should have notice of the report before it is made, and may file exceptions thereto before the master, to enable - him to correct it if he thinks proper ; and' if the master still adheres to his report, he returns it into court, where the party objecting may file exceptions ; upon the hearing of which, the whole evidence is brought forward, and passes in review before the court. (&) Parties must produce their testimony at the time and place appointed by the master. (I) In cases of default and reference, no notice of the time and place of taking the testimony is necessary. But the parties may appear and file exceptions^ (m) If exceptions are not taken before the master, and overruled by him, the report cannot be questioned before the appellate court, (n) But if an improper decree is rendered, it will be reversed, although no exceptions were made to the master's report, (o) No. 74.. Order of reference to master to take proof. (Caption, and title of cause as in No. 79, post.) This cause came on to be heard (or. to be further heard, as the case may be,) at this term, and was argned by counsel ; and thereupon, upon consideration thereof, it was ordered, adjudged and decreed as follows, viz. : that this cause be and the same is hereby. referred to the master in chancery of this court, to take the proof of the respective parties ; that the said master first give notice to the said parties respectively, of the time and (k) McClay vs. Norris, 4 Gilm. 370 ; Brockman vs. Aulger, 12 111. 277 ; Whiteside vs. PvMam, 25 111. 285; Butphen vs. Gushman, 35 III. 202 ; Las- well vs. Bobbins, 39 111. 210 ; Campbell vs. Eannan, 43 111. 19 ; Story vs. Livingston, 13 Pet. U. S. R. 359 ; Ounnell vs. Bird, 10 Wall. U. S. R. 306. (1) Whiteside vs. Pulliam, 25 111. 285. (m) Moore vs. Titman, 33 111. 359. (n) Reigard vs. McNeil, 38 111. 401. (o) Strang vs. Allen, 44 111 429. 184 TESTIMONY. Master's Report of Testimony. place where such proof will be taken ; and cause to come before him all such witnesses as the respective parties may desire, and to examine them severally on oath, and reduce their testimony to writing, and report the same, together with his conclusions to the court. No. 76. Master's report of testimony. In the Court. A. B. et al. ) Term, 18—. vs. I In Chancery. C. D. et al. ) To the Honorable , Judge of the Court of the County of , in the State of. , In Chancery sitting: In pursuance of an order of this court, made in the above entitled cause, on the day of , 18 — , whereby it was referred to the master in chancery of this court to take the proof of the respective parties, and report the same to the court : I, the said master in chancery, do hereby respectfully report that, having first given a written notice to the said parties, respectively, of the time and place, when and where, the said testimony would be taken, and caused to come before me all such witnesses as the respective parties desired or made known to me, and having been attended by the solicitors of the respective parties, Pdid, on the day of , 18 — , at my office in , proceed to take the proofs of the respective parties; and the several witnesses attending having been severally sworn, and examined by me, I reduced their testi- mony to writing, and have attached the same hereto, and make the same a part of this report. I would further report that, etc. (Sere insert conclusions of facts), and would, therefore, recommend that, etc. (Here insert such recommendation as the facts may warrant). All of which is respectfully submitted. , Master in Chancery. Dated this day of , 18 — . Either party may file objections to the" master's report before he returns it into court. The objections may be in the follow- ing form : TESTIMONY. 185 Objections to Master's Report — Exceptions to Master's Report. No. 76. Objections to master's report. In the Court. A. B. et al. \ Term, 18—. vs. > In Chancery. C. D. et al. ) Objections taken by the above-named defendants to the report of the Master in Chancery, to whom this cause stands referred to take proofs. First. — For that the said master has, etc. {Mere state the ground of objection.) Second. — For that, etc. (and so on.) In all which particulars the said defendants object to the said report, .and submit that the same ought to be varied and altered. , Sol. for Defendants. If the master adheres to his report, he returns it into court, where the party objecting may file his exceptions. Wo. 77. Exceptions to master's report. In the Court. A. B. et al. ) Term, 18—. vs. > In Chancery. C. D. et al. ) Exceptions taken by the above-named defendants to the report of the Master in Chancery, to whom this cause was referred to take proof, etc., by an order made herein on, etc., and which report bears date on, etc. First exception. — For that the said master has, etc. (Here insert the grownd of exception). Second exception. — For that, etc. (and so on.) Wherefore the said defendants do except to the said report, and appeal therefrom to the judgment of this court. , Sol. for Defendants. The report of a master is received as true where no excep- tions are taken, and the exceptions are to be regarded so far only as they are supported by the special statement of the master, or by evidence which ought to be brought before the 186 TESTIMONY. Exceptions to Master's Report — Oral Testimony. court by a reference to the particular testimony on which the exceptor relies. ( p) Exceptions to a master's report must state article by article those parts of the report which are intended to be excepted to ; the exceptions are in the nature of a special demurrer, and the party objecting must point out the error, otherwise the part not excepted to will be taken as admitted, (g) Nq exceptions can be taken to the report of a master unless the objection be made before him, previously to his signing his report, (r) Where a cause is referred to a master to examine and report as to any facts in the case, it is his duty to draw the conclu- sions from the evidence produced before him, and to report that conclusion only ; and it is irregular and improper for him to set forth the evidence in his report without the special direction of the court. If either party excepts to the report, he may then obtain certified copies from the master, of the depositions, or other evidence on which the decision of the master was founded, to be used on the argument of the excep- tion, (s) SECTION IV. ORAL TESTIMONY. The statute of Illinois provides that " on the trial of every suit in chancery, oral testimony shall be taken when desired by either party, (f) Independent of this statute it was held, that the court has (p) Harming vs. Handy, 11 Wheat. 103; Prince vs. Cutler, 69 111. 267. (q) Story vs. Livingston, 13 Pet. U. S. R. 359; Dexter vs. Arnold, 2 Sum- ner, 108; Wilkes vs. Rogers, 6 Johns. Ch. R. 566. (r) Methodist Church, vs. Jaques, 3 Johns. Ch. R. 77; Bechwith vs. ttutler, 1 Wash. Va. 224; Foote vs. Van Ranst, 1 Hill, Ch. R. 185; Lewis vs. Lewis, Minor, 35; Pennell vs. Lamar Ins. Co., 73 111. 303 (s) Prince vs. Cutler, 69 111. 267: Mott vs. Harrington, 15 Vt. 185; Good- man vs. Jones, 26 Conn. 264: In the matter ofHemiup, 3 Paige, 306 (0 Rev. Stat. (1874) 494: Rnv. Stat, (1877) 481. TESTIMONY. 187 Oral Testimony at Hearing no right to prevent a party from offering oral testimony upon the trial of a case in chancery, (u) And an order of court made during the progress of the cause, that a party shall close his proof by a day named, can- not affect the right of such party to introduce oral testimony on the hearing, {v) This rule, however, only affects the mode of taking testi- mony, and does not dispense with the necessity of the. testi- mony appearing of record. The testimony may be preserved in the record by a statement in the decree, or a certificate of the judge, or in the master's report, (w) The statute referred to does not apply to mechanic's lien cases, (x) where exceptions to evidence must be taken and preserved as in common law cases, (y) (u) Owens vs. Ranstead, 22 !''. 161. (r) Maher vs. Bull, 39 III Grob vs. Cushman, 45 111. 119. {w) While vs. Morrison, 11 111. 365; Ward vs. Owens, 12 111. 283; Nichols vs. Thornton, 16 111. 113; Moore vs. Trustees, 19 111. 83; Cooley vs. Scarlett, 3S El. 316; Quigley vs. Roberts, 44 111. 503; Martin vs. Hargardine, 46 111. 322; Witthite vs. Pearce, 47 111. 413; Preston vs. Hodgen, 50 111. 57; Bree vs. Bree; 51 111. 367; Walker vs. Cary, 53 111. 470; Forth vs. Town of Xenia, 54 HI. 210; Brockenbrough vs. Dresser. 67 111. 225. (x) Kidder vs. Aholtz; 36 111. 481. (y) Board etc. vs. Greenbaum, 39 111. 615. CHAPTEE XII. FEIGNED ISSUES TRIALS BY JURIES. Nature of. — A feigned issue is an issue brought by consent of the parties, or the direction of a court of equity, or such courts as possess equitable powers, to determine before a jury some disputed matter of fact, which the court has not the power, or is unwilling to decide, (x) There are two methods of trying questions of fact by a jury, on issues joined in chancery, viz. : by feigned issues awarded under the old practice,, and by issues of facts under the statute, (y) It is discretionary with the chancellor to require issues of fact to be tried by a jury at any time before decree, (s) In chancery, the submission of an entire case to a jury is contrary to the practice, and should be discouraged, even when the parties desire such a trial. As said by the Supreme Court of Illinois, in the case of Milk vs. Moore, 39 111, p. 587, " Such practice is unknown to the courts of equity, both in Great Britain and in this country. In this court, no question is ever submitted to a jury, except on a feigned issue, which, when the common law and equity jurisdiction is vested in different persons, is sent to a court of law for trial ; and when the common law judge and the chancellor is the same person, the issue is sent to the common law side of the docket, and the verdict, when found, is certified to the chancellor, if not in fact, it is so in theory. In forming a feigned issue, there is a formal declaration filed, together with other pleadings, making the issue of fact to be tried." {a) A feigned issue may be ordered to determine whether a deed (a;) Bouv. L. D. 516 ; 3 Black. Com. 452 : Bouv. Inst. Index, h. t. {y) Milk vs. Moore, 39 111. 588. (s) Russell vs. Payne, 45 111. 350. (a) See also Pan/cey vs. Raum, 51 111. 88. FEIGNED ISSUES — TRIAL BY JURIES. 189 When Ordered — Nature of. was intended as a mortgage ; (5) or was made to defraud credit- ors ; (c) or whether fraud existed in the consideration of a mort- gage, (d) It is also proper where the defendant denies the exe- cution of the note described in the mortgage, and the evidence is contradictory ; (e) or where a deed is sought to he avoided for insanity of the grantor ; (f) and, also, to test heirship, (g) A feigned issue need not include all the points involved in the suit. (A) Where the evidence is contradictory, the veracity of the wit- nesses involved, and where the manner, intelligence, and rela- tion of witnesses to a case, must have their proper weight, it is highly desirable to have the issue tried by a jury, (i) And in all proceedings in chancery, involving questions of insanity, it is the duty of the court to direct that an issue be formed and tried by a jury. (J) " The chancellor is the sole judge of the evidence and its weight ; and, even when he directs an issue of fact to be tried by a jury, to inform his conscience, he may adopt the verdict of the jury, or he may disregard it, and render a decree against their finding, or he may grant a new trial, as he may believe justice demands. In our courts of equity, the chancellor being also the common law judge, he necessarily hears all of the evi- dence upon which the jury acts, and if satisfied the jury have found correctly, it would be his duty to adopt their finding ; but, if dissatisfied, it would be equally his duty to disregard the verdict, and proceed with the cause, in such manner as to do complete justice between the parties." (k) (6) Williams vs. Bishop, 15 111. 108. (e) Waddams vs. Humphrey, 22 111. 661. (d) Milk vs. Moore, 39 111. 587. («) Russell vs. Payne, 45 111. 350. (/) Mt/att mb. Walker, 44 ID. 485. tf) McConneU vs. Smith, 27 111. 234. (A) Pankey vs. Raum, 51 111. 88. (*) Russell vs. Paine, 45 111. 350. (j) Myatt vs. Walker, 44 IU.485; Pankey vs. Raum, 51 111. 88; Hahnvs. Ruber, 83 111. 243. (k) Milk vs. Moore, 39 111. 588; Williams vs. Bishop, 15 111. 553; Sibert vs. McAcoy, Id. 108; Burt vs. Rynex, 48 ilo. 309; see also Austin vs. Bain- ter, 50 111. 308; Meeker vs. Meeker, 75 111. 260; Sharkey vs. Miller, 69 111. 560; Smith vs. Newton, 84 111. 14; Titcombvs. Vantyle, 84 111. 371. 190 FEIGNED ISSUES — TEIAL BY JURIES. Order Directing an Issue for a Jury. The court may award a new trial, not only to satiety its con- science, but to correct any errors in its instructions to the jury, or any other errors on the trial, (f) And a court of chancery is more liberal in granting new trials on feigned issues than courts at law. (m) An appeal or writ of error, will not lie to set aside a verdict on feigned issues, until the chancery case is disposed of, and a joinder in error will be of no avail, (n) It would tend to promote justice, and aid the court in its decree, if the jury were instructed to find on each issue raised by the pleadings and proof, instead of finding a general verdict. ( In Chancery. CD.) 3 This cause, etc. The recitals. — The practice in England at one time, was to recite at length the pleadings and evidence in the cause ; but this practice; in consequence of its expense and inconvenience, has been abolished, and the decree now merely recites the sub- stance of the pleadings, and the facts on which the court founds its judgment. In this country, the decree usually contains a mere reference to the antecedent pleadings, without embodying them, or any special facts upon which it is rendered, (v) In Illinois, however, the evidence is frequently preserved in the decree, (w) (u) Barton's Suit in Eq. 150 ; 1 Barb. Ch. Pr. 337 ; 2 Dan. Oh. Pr. 863. (v) Barton's Suit in Eq. 150 ; see Quarrier vs. Carter, 4 Hen. & Munf. 242. (to) Cooky vs. Scarlett, 38 111. 316 , Walker vs. Carey, 53 111. 470. DECREES AND DECRETAL ORDERS. 199 Forms of Decrees — Recital — Ordering Part. "Where a decree in chancery recites that the case was heard upon proofs, and then finds the facts charged in the bill to be true, it will be inferred the facts were found upon the testi- mony. Such a decree will be sustained, though it does not purport to set out the testimony, and it is not otherwise pre- served in the record, (x) No. 80. Recital of a decree or order. This cause having come on to be heard upon the bill of complaint herein, the apswer thereto, the replication of the complainant to such answer, and the proofs taken in said cause, and having been argued by counsel for the respective parties, and the court having duly considered the same, it is ordered, etc. The 86th rule for practice in the United States courts of equity provides that, " in drawing up decrees and orders, neither the bill, nor answer, nor other pleadings, nor any part thereof, nor the report of any master, nor any other prior pro- ceedings, shall be recited or stated in the decree or order ; but the decree and order shall begin, in substance, as follows: This cause came on to be heard (or to be further heard, as the case may be) at this term, and was argued by counsel, anal thereupon, upon consideration thereof, it was ordered, ad- judged and decreed as follows, viz. (Ilere insert the decree or order.) " The ordering part. — After the recitals comes the ordering or mandatory part of the decree, containing the specific direc-' tions .of the court upon the matter before it, which, it is obvious, must depend upon the nature of the particular case, which is its subject, (y) Where the decree is merely interlocutory, and directs an issue or an inquiry to be made, or account to be taken before a master, it usually contains a reservation of the further mat- ters to be decided, and generally, also, the costs of the suit, till after the event of the issue or reference shall be known, (s) (x) Mfiuckvs. Mauck, 54 111. 281; Jones vs. Neely, 72 111. 449; Wright vs. TroutiH/m. 81 111. 374. (y) iiarton's Suit in Eq. ljf (2) 1 Barb. CI). Pr. 338. 200 DECREES AND DECRETAL ORDERS. Forms of Decrees — Declaratory Part, etc. Declaratory part. — Where the suit seeks a declaration of the rights of the parties, the ordering part of the decree should be prefaced by such declaration. This is not, however, absolutely necessary, and its omission will not invalidate the decree, (a) Sometimes the court directs an insertion in the decree of the reasons for making the declaration, and of the grounds upon which it proceeds in making it. (b) This, how- ever, is not often done, though the utility of the practice has been frequently recognized, (c) Decree by consent. — When a decree is rendered by consent, it should be so stated in the decree, (d) Sometimes it is stated to be by consent generally; sometimes by consent of counsel, and sometimes by the consent of the parties, (e) A decree or order made by consent cannot be set aside by rehearing, writ of error, or an appeal, or a bill of review, (f) without showing by the bill of review fraud or mistake, {g) And the consent may be proved alvumde. (A) Nunc pro tunc clause. — Decrees will sometimes be entered nunc pro tunc, {j) When they are so entered the following recital and direction may be inserted : " And it appearing to the satisfaction of this court that the complainant A. B. (or the defendant C. D.) has (a) Jenowr vs. Jenow, 10 Ves. 568 ; 1 Barb. Ch. Pr. 339. * (6) Gorden vs. Gordm, 3 Swanst. 478; Mayna/rd vs. Moiety, Id. 653; Onions vs. Tyrer, 1 P. Wms. 343. (c) Box vs. W/dtbread, 16 Ves. 24 ; Gorden vs. Gorden, 3 Swanst. 478 ; 1 Barb. Ch. Pr. 339. (d) Barton's Suit in Bq. 150, 151 ; 1 Barb. Ch. Pr. 339 ; Seaton on De- crees, 374 («) Seaton on Decrees, 374. (/) Id. ; Bradish vs. Gee, Ambl. 229 ; Morrison vs. Rumsey, 2 Ves. 488 ; Toder vs. Sansam, 7 Bro. P. C. 244 ; Noreott vs. Noreott, 7 Vin. 398 ; Wind- ham vs. Windham, Freem. 127. (g) Fragler vs. Crow, 40 111. 415. (h) Armstrong vs. Cooper, 11 111. 540. (i) Stevens vs. Goffeen, 39 111. 148; McCormick vs. Wheeler, 36 111. 115- McLain vs. Van Winkle, 46 111. 407 ; Frame vs. Frame, 16 111. 155 ; Brig- nardello vs. Gray, 1 Wall. U. S. R. 630 DECREES AND DECRETAL ORDERS. 201 Entering Decree nunc pro tunc — Drawing Decrees. departed this life since the argument of this cause, it is further ordered, that this decree be entered nunc pro time as of the day of 18 — , the day when this cause was argued." (J) When one of the defendants dies after the argument of a cause, and before it is decided, it is customary to enter the decree nunc pro tunc, so that it may have relation back as of the day of the final hearing. (Jc) So where the complainant died after the entry of an appeal from the decree of a vice chancellor, and after the cause was ready for a hearing upon the appeal, but the fact of his death being unknown to the counsel, the cause was afterward heard and decided by the chancellor, upon the appeal ; it was held that the decree upon the appeal might be entered nunc pro time as of a day previous to the death of the complainant and after the entering of the appeal. (T) So where the cestui que trust of the complainant had died after argument and before the decision of the cause by whicli the suit was determined, the court ordered the decree to be entered nunc pro tunc as of the time of the argument, (m) And decrees have been entered nunc pro tunc after a very long interval has elapsed from the time of pronouncing the decree ; and even where the original decree has been lost, thu court has permitted it to be entered nunc pro tune from the office copy, after the lapse of twenty-three years, (n) Drawing of decree. — The decree should be written out by the solicitor and approved by the court, (o) But the judgn rendering a decree is not required to sign his name to it. The entry of the decree on the record by the clerk gives i' validity, (p) (J) 1 Barb. Ch. Pr. 340. (k) Campbell vs. Metier, 4 Johns. Ch. 334. (1) Vroom vs. Ditmas, 5 Paige, Ch. 528. (m) Wood vs. Keyes, 6 Paige, Ch. E. 478. (n) Lawrence vs. Richmond, 1 Jac. & W. 241 ; Donne vs. Lewis, 11 Ves. 601 ; Jesson vs. Brewer, 1 Dick. 371 ; 1 Barb. Ch. Pr. 341, 342. (o) Stevens vs. Goffeen, 39 111. 148; Schneider vs. Seibert, 50 111. 285. (p) Dunning vs. Dunning, 37 111. 306. 202 DECREES AND DEOEETAL ORDERS. General Forms of Orders and Decrees. No. 81. General form of an order. {Caption, with title of the cause, as in No. 79, ante, p. 198.) This cause having come on to be heard upon the motion of the complainant, (or defendant.) for, etc. (Here insert the nature of the motion, and let the recital agree with the facts), the bill of complaint herein, the answer of the defendant thereto, the replication, of the complainant to such answer, and the proofs taken in the cause, and having been argued by counsel for the respective parties ; Now, therefore, on consideration thereof, it is ordered, adjudged and decreed, and the court doth hereby order, adjudge and decree as follows, viz. :* (Here insert the order.) No. 8%. General form of a decree. (Caption, with title of the cause as in No. 79, ante, page 198.) This cause having come on to be heard upon the bill of com- plaint herein, the answer of the defendant thereto, the replica- tion of the complainant to such answer, and the proofs, oral, documentary and written, taken and filed in said cause, and having been argued by counsel for the respective parties; Now, therefore, on consideration thereof, it is ordered, ad- judged and decreed, and the court doth hereby order, adjudge and decree, as follows, viz. : (Here insert the decree.) No. 83. General form of a decree or order, (q) (Caption, with title of cause, as in No. 79, ante, page 198.) This cause came on to be heard, (or to be further heard, as the case may be,) at this term of the said court, and was argued bv counsel 5 and thereupon, upon consideration thereof, it was ordered, adjudged and decreed, as follows, viz. : (Here insert UiAi decree or order.) (q) Rule 86 of U. S. Eq. Rules, ante, page 199. CHAPTEK XV. SUPPLEMENTAL BILL. ion 1. Nature op, and when proper. 2. When to be Filed. 3. Parties to. 4 Form of. 5. Petition for Leave to File. 6. ProceSb. 7. Defenses to. 8. Replication and Evidence. 9. Hearing. SECTION L NATUEE OF, AND WHEN PBOPEB. A supplemental bill is used for the purpose of supplying some, irregularity or defect discovered in the frame of the original bill, or in some proceedings upon it ; or some defect in the suit arising from events happening after- an issue had been reached in the proceedings, and by which persons, not parties to the suit, have acquired an interest in it. (a) If, however, the original bill shows no ground for relief, the defect cannot be cured by a supplemental bill, setting up matters that have arisen since the commencement of the suit, (b) Matters which occurred prior to the filing of the original bill, and not stated therein, should be brought into the suit by amendment, but matters arising subsequent to the filing of the original bill, should be introduced by a supplemental bill, (c) (a) Barton's Suit in Eq. 128 ; Story's Eq. PI. § 332 ; Mont. Eq. PL 316 ; Hinde's Pr. 42, 45. (&) Fate vs. Roberts, 54 111. 192 ; Candler vs. PettU, 1 Paige, Cli. R. 168 ; Brown vs. Higdon, 1 Atk. 291 ; Edgar vs. Glevenger, 2 Green, Ch. R. 258 ; Story's Eq. PI. § 339. (e) Burke vs. Smith, 15 111. 158 ; Stafford vs. Hewlett, 1 Paige, Ch. R. 200 ; Fulton Bank vs. fif. T. & 8. Canal Co. 4 Paige, Ch. R. 127 ; Walker vs. Gil- bert, 7 S. & M. 456 ; Wray vs. Hutchinson, 2 Mylne & Eeene, 235 ; Crompton vs. WombweU, 4 Sim. 628. 204 SUPPLEMENTAL BILL. Nature of, and when Proper. And such bill may not only be for the purpose of putting in issue new matter, which may vary the relief prayed in the original bill, but also for the purpose of putting in issue matter, which may prove the complainant's right to relief, originally prayed. (d) . In order to file a supplemental bill, it must be shown that the matter relied on as supplemental has arisen since the com- mencement of the original suit, or that the facts have first become known to the complainant in such a way that he could make use of them since the cause passed the stage in which he might have leave to amend, or that he had been prevented by inadvertence, mistake, or some other cause satis- factorily shown, from availing himself of the matter proposed to be shown at an earlier stage of the case ; and the supple- ment bill must be confined to such matter, and must be verified by affidavit, or other satisfactory proof, (e) The court will also permit other matters to be introduced into the supplemental bill which might have been incorporated in the original, by way of amendment ; and this is especially proper where the matter which occurred prior is necessary to the proper elucidation of that which occurred subsequently to the filing of the originalbill ; {/) and when properly before the court it is an addition to the original bill, and becomes a part of it, so that the whole is to be taken as one supplemental bill, (g) constituting but one cause, requiring but one replication. (A) A supplemental bill may also be proper in order to bring before the court new parties. In such case the original de- fendants need not be made parties, unless they have an interest (d) Story's Eq. PI. § 332 ; Crompton vs. WonibweB, 4 Sim. 628. (e) Pedrick vs. White, 1 Met. 76 ; Bowie vs. Minter, 2 Ala. 406 ; Story's Eq. PI. § 333 ; Mitf. Eq. PI. 55, 61 ; Hinde's Pr. 42,43; Vemie vs. Williams, 3 Story, E. 54 ; see also Hasbrook vs. tShuster, 4 Barb. 285 ; Collins vs. Lamen- berg, 19 Ala. 682 ; Mix vs. Beach, 46 111. 311 ; Choteau vs. Bice, 1 Minn. 106; Copen vs. Flesher, 1 Bond, 440. (/) Graves vs. Miles, Harring. Ch. 332. (g) Gillett vs. Hall, 13 Conn. 426 ; Potier vs. Barclay, 15 Ala. 439 ; Cun- ningham vs. Rogers, 14 Ala. 147 ; Harrington vs. Slade, 22 Barb. N. T. 161 ; Catton vs. Carlisele, 5 Mad. 427 ; Greenwood vs. Atkinson, 4 Sim. 628. (h) Id. ib. ; Chateau vs. Bice, 1 Minn. 106. SUPPLEMENTAL BILL. 205 When to be Filed — Parties to. in the supplemental matter, or may be affected by the interest of such new parties. (i) A stranger to a suit in equity claiming an interest therein, cannot interfere with the proceedings without filing a supple- mental bill to make himself a party, (j) And when a supple- mental bill is filed, bringing new parties into court, it is, as to them, a new suit, and is to be considered as being commenced when the supplemental bill is filed, (k) The filing of a supplemental bill, after a pro confesso order, vacates the order, and the defendant may put in an answer. (Z) SECTION n. WHEN TO BE FILED. A supplemental bill for the purpose of adding new matter, or for the purpose of bringing new parties before the court, may sometimes be filed after as well as before the decree, (m) Thus, for the purpose of giving directions which were not prayed for in the original bill, but which the result of the pro- ceedings under the decree has rendered proper, (ri) But it cannot be filed after a decree dismissing the bill, (o) SECTION III. PARTIES TO SUPPLEMENTAL BILL. When the bill is filed for any new matters arising since the filing of the original bill, the defendants to the original bill (t) Bignatt vs. Atkins, 6 Mad. 369 ; Ellsworth vs. Lambert, 4 Johns. Ch. B. 605 ; Jones vs. Jones, 3 Atk. 217 : EMsworth vs. Holdsworth, 2 Dick. 799 ; North Am. Coal Co. vs. Dyett, 2 Edw. Ch. 115. (j) Watt vs. Crawford, 11 Paige*, Ch. K. 470 ; Livingston vs. Freeland, 3 Barb. Ch. R. 510. (*) Morgan vs. Morgan, 10 Geo. 297. (I) Gibson vs. Seas, 50 111. 8S3. (to) 2 Barb. Ch. Pr. 62 ; Woodward vs. Woodward, 1 Dick. 33 ; Boeve vs. SUpwitli, 1 Eq. Ca. Ab. 80 ; 2 Ch. R. 142 ; 3 Dan. Ch. Pr. 156. (n) Dormer vs. Forteseue, 3 Atk. 124. (o) Burke vs Smith, 15 111. 158. 206 SUPPLEMENTAL BILL. Parties to. ought to be made parties ; (p) but if it is merely to bring before the court formal parties, the defendants in the original bill need not to be made parties, (g) Where, however, a person has acquired the interest of a party to a suit, and thinks proper to file a supplemental bill himself, he must make all the parties to the original bill, whether complainants or defendants, parties to his supple- mental bill, (r) So, also, where one of the several complainants assigns his interest to a stranger, and the remaining complain- ants file a supplemental bill against the assignee, they must also make the defendants to the original bill parties to the sup- plemental bill, (s) To entitle a complainant to file a supplemental bill, and thereby to obtain the benefit of the former proceedings, it must be in respect of the same title in the same person, as stated in the original bill. He cannot file such a bill to have the benefit of the former proceedings, if he claims by a different title, (t) A new party, representing the interest of a former party, who comes before the court by a supplemental bill, whether filed by himself or by the complainant, stands exactly in the same position as the former party, is bound by his acts, and may be subject to all the costs of the proceeding from the beginning of the suit, (it) Therefore, it has been held that a purchaser of the interest of a party pendente lite, on filing his supplemental bill, comes into court, whether for gain or loss, and shall be liable to the cost of the proceeding, from the beginning to the end of the suit, (v) So, also, the assignees of a bankrupt, who are brought before the court by supplemental bill, may be liable to the costs of the whole suit, if they improp- erly resist the complainant's demand, (w) (p) Jones vs. Jones, 3 Atk. 217. (q) Id. Calwett vs. Boyer, 8 Gill & J. 136 ; Ensworth vs. Lambert, 4 Johns. Ch. R. 605 ; McGowan vs. Yerks, 6 Johns. Ch. R. 450. (r) 3 Dan. 180 ; 2 Barb. Ch. Pr. 69. (») Wea/ry vs. Stephenson, 1 Beav. 42. (t) Welf Eq.P1.189; 2Barb.Ch.Pr.69; ronkinvB.Let7ibridge,Goop.Bq.R.33. {a) 2 Barb. Ch. Pr. 69 ; Mitf. Eq. PI. 68. (d) Anon. 1 Atk. 89. (w) Whitcomb vs. Mvnchin, 5 Mad. 91 ; 2 Barb. Ch, Pr. 69. SUPPLEMENTAL BILL. 207 Form of Bill — Prayer of. SECTION rv. FOKM OF BILL. A supplemental bill must state the original bill, and the proceedings thereon ; and if it is occasioned by an event sub- sequent to the original bill, it must state that event, and the consequent alteration, with respect to the parties ; and, in gen- eral, the supplemental bill must pray that all the defendants may appear and answer to the charges it contains. (x) The propriety of introducing a restatement of the case from the original bill, into the supplemental bill, must depend upon the question, whether the object of the supplemental bill is to state the mere feet of a bill having been filed, or to put in issue any of the circumstances and facts stated and charged in it. (y) If the former is the object, the mere statement that the complainant had filed a bill which prayed such and such relief, will be sufficient; or, if the pleader should not think this sufficient, he may introduce a short recital, (s) If the latter is the object in view, the facts intended to be stated may be set out in the supplemental bill, either by way of original state- ment, or as a restatement of the facts in the original bill, with an averment of their truth, (a) Prayer of.— A. supplemental bill generally calls upon the defendant to answer the supplemental matter only. If, how- ever, it is occasioned by the transmission of the interest of a defendant, who has not answered the original bill, and it is necessary to have a discovery from the new defendant, of the matters in the original bill, it may pray that the defendant may answer the original bill. (J) And in such case the defend- ant will be bound to answer the original, as well as the supplemental bill, (c) (a^ 2 Barb. Ch. Pr. 70 ; Mitf. Eq. PI. 75 ; Story's Eq. PI. § 343. (y) Story's Eq. PI. § 343 ; 2 Barb. Ch. Pr. 71. (2) 3 Dan. 177 ; Glib. For. Rom. 210 ; 2 Barb. Ch. Pr. 71. (a) 2 Barb. Ch. Pr. 71 ; Vigers vs. Lord Audley, 9 Sim. 72. (b) Tigers vs. Lord Audley, 9 Sim. 72. (6) 3 Dan. 72 ; 2 Barb. Ch. Pr. 72 ; see Asbee vs. Shipley, Mad. & Geld. 296. 208 SUPPLEMENTAL BILL. Form of a Bill. No. 84- Supplemental bill for specific pe?formance, stating that defendant has brought ejectment, praying for injunc- tion, etc. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting: Your orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., your orator exhibited his bill of complaint in this honorable court against C. D., thereby praying that the said C. D. might be decreed specifically to perform his agreement with your orator, touching the sale of the real estate in the said bill mentioned, and to execute to your orator a deed therefor, your orator being ready and willing to do everything on his part required to be performed in pursuance of said agreement. Your orator further represents that the said C. D. appeared and put in his answer to the said bill, and your orator filed a replication thereto ; as by the files of the said cause will more fully appear ; which said cause is still pending and. undeter- mined in this court. Your orator, by way of supplement, further represents, that since the filing of said bill, the said C. D. has commenced an action of ejectment upon the common law side of this court, for the purpose of recovering the possession of 'the said premises ; which action of ejectment is now pending and undetermined ; that your orator has requested the said C. D. to desist from proceeding with the said action of ejectment, but the said C. D. refuses so to do, and still continues the prosecution thereof. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. D., who is made a party defendant to this supple- mental bill, may be required to make full and direct answer to the same, out not under oath, the answer under oath being hereby waived ; that he may be restrained by the injunction ot this court, from proceeding in said action of ejectment, and also from commencing any other action or proceeding at law foi the. purpose of turning your orator out of the possession of the said premises ; and that this, your orator's bill of complaint may be deemed and taken as and for a bill of supplement to Lis said original bill ; and that your orator may have such other and further relief in the premises as equity may' require, and to your honor shall seem meet. May it please, etc. [Prayer for injunction, see ante, page 73, and add affidavit.) SUPPLEMENTAL BILL. 209 Form of a Bill. jS t o. 85. Supplemental biU against the assignee of a bankrupt defendant. To the Honorable , Judge of the Court, of the County of , in the State of , In Chancery sitting : Tour orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., your orator filed his bill of complaint in this honorable court against C. D., of, etc., praying, etc., {Here insert the substance of the prayer ; that the said C. D. having been served with process, appeared and put in his answer to the said bill ; and your orator replied to the said answer ; but before any further proceedings were had in the said cause, and on, or about, etc., the said C. D. was, by the district court in and for the district of , adjudged a bankrupt ; and one E. F., the defendant hereinafter named, having since been duly chosen assignee of the estate and effects of the said bank- rupt ; and the estate and effects late of the said bankrupt having been conveyed to the said assignee ; and, therefore, your orator is advised that he is entitled to the same relief against the said E. F., as he would have been entitled to against the said C. D. if he had not become bankrupt. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said E. F., who is made party defendant to this bill, may be required to make full and direct answer to the same, but not on oath, the answer under oath being hereby waived ; and that your orator may have the full benefits of the said suit and proceedings therein against the said E. F. ; and may have the same relief against him as your orator might or could have had against the.said C. D., in case he had not become bankrupt ; and that your orator may have such other and further relief in the premises as equity may require, and to your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sheriff of the county of , com- manding him that he summons the defendant E. F., etc., to appear before the said court, on the first day of the next term thereof, to be held at the court house in , in the county of aforesaid, then and there to answer this bill, etc. Sol. for Complainant. 14 210 SUPPLEMENTAL BILL. Petition for Leave to File — Form of Petition. SECTION V. PETITION' FOE LEAVE TO FILE. ■A motion, based upon a petition, for leave to file a supple- mental bill, is ordinarily addressed to the discretion of the court. Leave is generally granted of course, if probable cause for filing it is shown. The court will examine the question only so far as to ascertain that it is not intended for vexation or delay ; (c) and in ordinary cases, the defendant is not enti- tled to notice of the application for such order, (d) The 57th rule for practice in the courts of equity of the United States, requires notice to be given to the defendant, of an intended application for leave to file a supplemental bill. No. 86. Petition for lea/oe to file a supplemental bill. In the Court. Term, 18 — . In Chancery. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting: The petition of A. B., the above named complainant, respect- fully represents, that on, etc., your petitioner filed his bill in this honorable court, against the defendant C. D., for the pur- pose of, etc., {State generally the object of the bill,) and praying, etc. (State the substance of the prayer?) And your petitioner further represents, that the said C. D., being served with summons, appeared to said bill, and put in his answer thereto, to which the petition filed a .replication ; that afterwards, and before ■ any further proceedings were had in said cause, etc. (Sere state the supplemental matter); where- (c) Turner vs. Berry, 3 Gilm. 541 ; Tappan vs. Evans, 12 N. H. 330 ; Pedriek vs. White, 1 Met. 76 ; Kennedy vs. Georgia State Bank, 8 How. V. S. 586 ; Winn vs. Albert, 2 Md. Ch. Decis. 42 ; Eager vs. Price, 2 Paige, Ch. R. 333 ; Walker vs. Hallett, 1 Ala. (N. S.) 379 ; Lawrence vs. Bolton, 3 Paige, Ch. R. 294. (d) Eager vs. Price, 2 Paige, Ch. R. 333 ; Lawrence vs. Bolton, 3 Paige, Ch. R. 294. SUPPLEMENTAL BILL. 211 Process — Defenses to. fore your petitioner is advised, that it is necessary to bring the said E. F. before this court, as a party defendant to this suit. Tonr petitioner therefore prays that leave may be granted to him to file a supplemental bill against the said E. F., for the purpose of making him a defendant to this suit, with proper and apt words to charge him as such, and with such prayer for relief as may be proper, and for such other, etc. Solicitor jor complainant. A. B. (Add affidavit.) SECTION VL PBOCESS, ETC. Upon the filing of a supplemental bill, it is not necessary that a summons should issue against a party already in court, nor that an appearance be entered, before a pro confesso order can be entered. If new parties are made defendants to the bill, process must issue as in other" cases, (e) SECTION VII DEFENSES TO. The defendant to a supplemental bill may either demur, plead or answer, as in other cases. Demurrer. — If the bill is filed without any sufficient grounds for a supplemental bill, the defendant may demur, (f) Thus, if it appears upon the face of the bill, that all the matters alleged therein arose previous to the filing of the original bill, and might have been inserted therein by way of amendment, the objection may be taken by demurrer ; (g) even thongh the bill alleges that the facts were not known to the complainant until the original cause was at issue. (A) Many of the causes of demurrer which apply to original («) Mix vs. Beach, 46 III. 311. {f) Lawrence vs. Bolton, 3 Paige, Ch. R. 294. (g) Id. ; 1 Barb. Ch. Pr. 54 ; 2 Id. 75. (A) Oolclough vs. Beans, 4 Sim. 76. 212 SUPPLEMENTAL BILL. Demurrer to — Form of Demurrer — Plea. bills, also apply to supplemental bills; but there are some grounds of demurrer which are applicable 6olely to supple- mental bills. (*) If a supplemental* bill is filed upon matters arising subse- quent to the time of filing the original bill, against a person who claims no interest out of the matters in litigation by the former bill, the defendant to the bill thus brought as a supple- mental bill may demur; especially if the bill prays that he may answer the matters charged in the original bill. (J) A defendant may also demur if the same complainant files a supplemental bill claiming the same matter as in his original bill, but upon a title totally distinct, (k) A motion to strike a supplemental bill from the file for irregu- larity, on- the ground that it does not state supplemental matter, will not lie. The proper course in such case is to demur. (J) No. 87. Demurrer to supplemental lritt. In the Court. C. D. J Term, 18—. ats. > In Chancery. A. B. ) The demurrer of C. D., defendant, to the supplemental bill of A. B. complainant. This defendant, etc., (Proceed as in No. 16, ante, p. 108, to the *, then) that this defendant, as appears by the said supple- mental bill, is not a party to the original bill therein in part stated and set forth ; nor does it appear by the said supple- mental bill, that any new matter has, or is pretended to have arisen, since the original bill was filed, or that there is any reason that this defendant should not, if necessary, be made a party thereto by amendment. Wherefore, etc. (Conclude as in No. 16.) Plea. — Besides those grounds of plea which are common to supplemental and original bills, if a supplemental bill is (i) 3 Dan. 183 ; 2 Barb. Ch. Pr. 75. (J) Mitf.Eq.Pl. 202; Baldwin vs. Mackown,3 Atk.R.817; Story's Eq.Pl. § 343. (k) Tonkins vs. LetKbHdge, Coop. Eq.R. 83; 2 Barb. Ch.Pr.75; Story's Eq. PI. § 343. (I) Bowyer vs. Bright, 13 Price, 316. SUPPLEMENTAL BILL. 213 Practice, etc. — Form of Plea — Answer. brought on matter which arose before the original bill was filed, and which might have been introduced into the original bill, and this fact does not appear upon the face of the supple- mental bill, so as to enable the defendant to demnr, it may be pleaded, (m) So, if a supplemental bill is filed without any sufficient grounds, the defendant may make the objection by plea, (n) Practice as to demurrers and pleas. — Demurrers and pleas to supplemental bills are subject to the same rules, both with respect to their form and substance, and to the practice arising upon them, as demurrers and pleas to original bills, (o) JVo. 88. Plea to a supplemental bill. Court. Term, 18—. In Chancery. The plea of C. D., defendant, to the supplemental bill of A. B., complainant. This defendant, etc., {Proceed as in No. 28, ante, p. 119, to the *, then) the several matters and things in the complainant's present bill stated and set forth by way of supplement, arose, and were well known to the complainant, before and at the time the complainant filed his original bill in this cause ; and that such several matters and things can now be introduced, and ought so to be, if necessary, by amending the said original bill. Wherefore, etc. (Conclude as in JVo. 28.) Answer. — If the defendant to the supplemental bill neither demurs nor pleads to it, he must put in an answer, as in the case of an original bill. If, however, there is any matter in the supplemental bill which is properly the subject of demurrer (to) 2 Barb. Ch. Pr. 76 ; Mitf. Eq. PI. 290 ; Stafford vs. Hewlett, 1 Paige, Ch. R. 200. (n) Id. ; Lawrence vs. Bolton, 3 Paige, Ch. K. 294. (o) 3 Dan. 184 ; 2 Barb. Ch. Pr. 76. 214 SUPPLEMENTAL BILL. Answer — Replication — Evidence. or plea, he may, in his answer, claim the same benefit of it as he would have been entitled to had he demurred or pleaded, (jp) Where the defendant is called upon to answer the original bill, at the same time he is called upon to answer the supple- mental bill, the usual course is to include the answer to both in the same answer, {q) It is not, however, absolutely irreg- ular to separate them, (r) The form of an answer to a supplemental bill, and the man- ner of putting it in, are the same as in the case of an answer to an original bill, and are subject to the same contingencies, (s) After the answer has been put in, and the proceedings on the supplemental bill have arrived at the same point at which the bill stood, they then proceed by the same gradation together, (t) SECTION VIII. BEFLICATION AND EVIDENCE. Replication. — A replication may be filed by the complainant in a supplemental suit, to the defendant's answer in the same manner as in an original suit. A separate replication is only necessary where there has already been a replication in the original suit. Where there has been no replication in the original suit, a general replication will apply to. the whole record, and not merely to the original bill, (u) Evidence. — The new matter introduced by the supplemental bill, must be proved, unless it is admitted by the answer or otherwise. If not proved, the supplemental bill will be dis- missed with costs. For this purpose witnesses may be exam- (p) 2 Barb. Ch. Pr. 76 ; 3 Dan. 184. (q) Vigers vs. Lord Audley, 9 Sim. 408. V) Saylc vs. Graham, 5 feim. 8 ; 2 Barb. Ch. Pr. 77. («) 3 Dan. Ch. Pr. 185 ; 1 Barb. Ch. Pr. 140-147 ; 2 Id. 77. (t) Lube's Eq. PI. 138 ; 2 Barb. Ch. Pr. 77. * (u) 2 Barb. Ch. Pr. 77 ; Catton vs. Earl of Carlisle, 5 Mad. 457 ; GUlett vs. Hail, 13 Conn. R. 426 ; Chateau vs. Rice, 1 Minn. 106 ; Copen vs. Flesher, 1 Bond, 440. SUPPLEMENTAL BILL. 215 Hearing — Entitling Orders. , ined as to the new matter contained in the supplemental suit, (v) And where no witnesses have been examined in the original cause, they may be examined to prove the matters in issue in the original cause, as well as those in issue in the supplemental suit, (w) A supplemental suit is merely a contimiation of the original suit, and whatever evidence was properly taken in the original suit, may be made use of in both suits; even though not entitled in the supplemental suit, (x) * SECTION IX. HEAKING. If there has been no decree in the original suit before the filing of the supplemental bill, the original and supplemental suit may come on for hearing together, unless the supplemental bill is for discovery, and one decree will be made in both, (y) But if a decree has been rendered before the event of the sup- plemental bill was rendered necessary, there must be a decree on the supplemental bill ; for which purpose the supplemental cause must be brought to a hearing alone ; or it may be heard with the original cause for further direction, (s) If the supplemental is unnecessarily or improperly filed, it will be dismissed at the hearing, although the complainant obtains a decree on the original bill, (a) Entitling- orders. — When the original and supplemental suits proceed as one cause, the orders and papers should be entitled, " A. B., complainant, C. D., defendant — by original and supple- mental bills." (5) («) 2 Barb. Ch. Pr. 77-78. (w) 2 Barb. Ch. Pr. 78 ; 3 Dan. 186. (as) Id.; Giles vs. Giles, 1 Keen, 685 ; Mitf. Eq. PI. 74; Garth vs. Wood, 2 Atk. R. 174 (y) Mitf. Eq. PI. 64, 75 ; Seaton on Decrees, 385. (z) 2 Barb. Ch. Pr. 79 ; Seaton on Decrees, 386 ; Mitf. Eq. PI. 64 ; Adams vs. Downing, 2 Mad. 61. (a) Eager vs. Price, 2 Paige, Ch. R. 339. (6) John vs. Brown, Seaton on Decrees, 385. 216 SUPPLEMENTAL BILL. Dismissing Bills. "*>• i Dismissing bills. — If the supplemental bill is unnecessarily or improperly filed, it will be dismissed at the hearing, although the complainant obtains a decree on the original bill, (c) So, if no proof is made of the supplemental matter, the bill will be dismissed at the hearing, (d) (c) Eager vs. Price, 2 Paige, Ch. R. 339. (d) Bagnall vs. Bagnatt, 2 Eq. Abr. 173 ; 6 Bro. P. C. 86 ; 2 Barb. Ch. Pr. 79. OHAPTEE XVI. BILLS IN THE NATURE OF SUPPLEMENTAL BILLS. Section 1. Original Bills in the Nature of Supplemental Bills. 2. Bills to Carry Decrees into Execution. <■ SECTION I. ORIGINAL BILLS IN THE NATURE OF SUPPLEMENTAL BILLS. Wlien proper. — A supplemental bill is a mere continuation of the original suit by or against a party having or acquiring the interests of a former party, and it forms, together with the original bill and the proceedings under it, but one record. Cases, however, sometimes occur in practice in which the interest of an original party to a suit is completely determined, and another party becomes interested in the subject matter, by a title not derived from the original party, but in such a manner as to render it -but just and reasonable that the benefit of the former proceedings should be had by or against such other party, without incurring the expense and risk of commencing an entirely new proceeding. The course of the court, therefore, enables, that in such cases the benefit of the former proceed- ings may be obtained by means of a bill called an original bill in the nature of a supplemental bill, (a) The principal difference between this and a supplemental bill seems to be that a supplemental bill is applicable to such cases only, where the same parties or the same interests remain before the court ; whereas, an original bill in the nature of a supplemental bill, is properly applicable where new parties, with new interests, arising from events occurring subsequent to the institution of the suit are brought before the court, (b) (a) 2 Barb. Ch. Pr. 84; 3 Dan. 230; Hinde, Ch. Pr. 71; Blake, Ch. Pr. 38. (6) Coop. Eq. PI. 75 ; Story's Eq. PI. § 345. 218 BILLS IN" NATUKE OF SUPPLEMENTAL. * Original Bills in the Nature of — When Proper. A bill of this nature is properly called an original bill in the nature of a supplemental bill, because it is original as to the new parties and new interests; and it is, in some sort, supplemental also, as being an appendage to the former bill, as to the old parties and old interests, (c) A bill, in the nature of a supplemental bill, may also be ■required, not only where new interests arise, either before or after a decree, but also where relief of a different kind, or upon a different principle, is required from that in the original decree, (d) And an original bill in the nature of a supplemental bill seems to differ from an original bill in the nature of 'a bill of revivor in this, that upon the latter, the benefit of the former proceedings is absolutely obtained; so that the pleadings in the first cause, as also the depositions of witnesses, may be used in the same manner as if they had been filed or taken in the second cause ; and if any decree has been made in the first cause, the same decree will be made in the second cause. But in the case of an original bill in the nature of a supplemental bill, a new defense may be made ; the pleadings and deposi- tions cannot be used to the same extent as if filed or taken in the same cause ; and the decree, if any has been obtained, is not otherwise of advantage than as it may be an inducement to the court to make a similar decree, (e) A bill of this kind is not, in all cases, either proper or necessary, merely because new events have occurred since the original bill. But the facts must be material to the original cause, or be such as could not, in that stage of the original cause, be brought into it without such a bill. (/) For where (c) Story's Eq. PI. § 346 ; Coop. Eq. PI. 75, 76 ; Hinde, Ch. Pr. 44 ; Molt vs. Smith, 1 Jac. & Walk. R. 665 ; Foster vs. Diason, 6 Mad. R. 59 ; Wellesly vs. Wellesly, 17 Sim. 59 ; Lee vs. Lee, Hare, R. 631 ; Robertson vs. Southgate, 5 Hare, R. 223. (d) Story's Eq. PI. § 351 b ; Hodson vs. Ball, 11 Sim. 456, 463 ; Phillips' Ch. R. 177 ; Taylor vs. Taylor, 1 Mac. & Gord. R. 405. (e) Barton's Suit in Eq. 132, 133; 2 Barb. Ch. Pr. 85; Mitf. Eq. PI. 64; 3 Dan. 165 ; Adams vs. Dowding, 2 Mad. 53. (/) Story's Eq. PI. £ 332, 335-337, 352. BILLS IN NATURE OF SUPPLEMENTAL. 219 Original Bills in the Nature of — Form of. there is no alteration in the interest of the parties, nor any particular circumstance requiring further discovery, but when a fact only has occurred which might be proved under the proceedings in the original bill, as in taking an account before the master under the prayer of the original bill, and the relief is not varied by the supplementary matter ; but the complain- ant may have the relief prayed for by such supplementary bill under the original bill, the supplemental bill is im- proper. (0) ♦ Form of. — A bill of this nature must state the original bill, the proceedings upon it, the event which has determined the interest of the party by, or against, whom the former bill was exhibited, and the manner in which the property has invested in the person become entitled thereto. It must then show the ground upon which the court ought to grant the benefit of the former suit, to or against the person so become entitled, and pray for process against the defendant, to the end that he may answer the premisses, and that the complainant may have similar relief against him to that which was prayed in the original bill. (A) This bill, although partaking of the nature of a supplemental bill, is not an addition to the original bill, but another original bill, which, in its consequences, may draw to itself the advantage of the proceedings on the former bill, (i) Wo. 89. Original bill in the nature of a supplemental bill. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., on C. D., of, etc., being indebted to E. F., (g) Adams vs. Denuding, 3 Mad. R. 55; Roberts vs. Roberts, 16 Sim. R. 867; Story's Eq. PI. § 352. (A) Lube's Eq. PI. 227 ; Mitf. Eq. PL 98 ; 2 Barb. Ch. Pr.86 ; Story's Eq. PL §353. (i) Phelps vs. Sproule, 4 Sim. R. 318 ; Vigers vs. Lord Audley, 9 Sim. B. 75 ; Story's Eq. PL § 353. 220 BILLS IN NATUKE OF SUPPLEMENTAL. Original Bills in the Nature of — Form of. of, etc., in the sum of dollars, made and delivered to the said E. F. his certain promissory note of that date, and thereby promise to pay the said E. F. the said sum of dollars, in after date, with interest at the rate of: per cent, per annum, as will appear by the said note, ready to be produced in court, and by the copy of the same hereto attached, marked "Ex- hibit A," and made a part of this your orator's bill. That to secure the payment of the said principal sum and interest as aforesaid, the said C. D. on the same day, by his mortgage deed of that date, conveyed to the said E. F. in fee simple, the premises described as follows, viz. : {Here insert description^) subject, however, to a condition of defeasance, upon the pay- ment of the principal sum and interest aforesaid, according to the tenor and effect of the said note ; which said mortgage deed was on, etc., filed for record in the recorder's office of the county of aforesaid ; as will appear by the said mortgage deed, ready to be produced in court, ^nd by the copy thereof hereto attached, marked " Exhibit B," and made a part of this your orator's bill. Your orator further represents, that the said 0. D. has not yet paid the said principal sum of dollars, or such interest thereon, or any part thereof, although the same long since became due ; by means whereof the said mortgaged property became forfeited, subject nevertheless to redemption in equity by the said C. D., his heirs and assigns. Your orator further represents, that on, etc., the said E. F. exhibited his original bill of complaint in this honorable court, against the said C D., as defendant thereto, thereby stating the matters and things hereinbefore stated, and praying that an account might be taken in that behalf, by or under the direction of the court, of what was due to him for principal and interest on the said note and mortgage, and that the said C. D. might be decreed to pay to him, the said E. F., whatever sum should appear to be due to him, together with the costs of that suit, by a short day to be fixed by the court ; or that in default of such payment the said mortgaged property may be sold, as the court should direct, to satisfy such debt and costs ; that in case of such sale, and of a failure to redeem therefrom according to law, the said C. D., and all persons claiming through or under him, after the commencement of that pro- ceeding, might be forever barred and foreclosed of all equity of redemption, of the said mortgaged property ; and that he. the said E. F., might have such other and further relief in the premises, as equity may require, and to the court might seem meet. BILLS IN NATURE OF SUPPLEMENTAL. 221 Original Bills in the Nature of — Form of. And your orator further represents, that the said C. D. being duly summoned, appeared and put in his answer to the said bill, to which the said E. F. replied, and that the said cause being at issue, witnesses were examined on both sides and the proofs closed ; as by such bill, answer, replication and pro- ceedings now remaining as of record in this honorable court, reference being thereto had, will more fully appear. And your orator further represents, that before any further proceedings were had in the said cause, and on or about, etc., the said E. F. was adjudged a bankrupt, by the district court for the district of : — — . and all the property, effects, and rights of property of the said E. F. became divested out of him, and became vested in your orator as the general assignee in bankruptcy, appointed as such by the said district court ; as by the said proceedings in bankruptcy, now remaining as of record in the said district court, reference being thereto had, will more fully appear. And your orator further represents, that by virtue of his appointment as assignee in bankruptcy of the said E. F., as aforesaid, your orator has become entitled to the said principal sum, and interest so due on the said note and mortgage, as aforesaid. And your orator further represents, that by the said bank- ruptcy of the said E. F., the said suit so instituted by him has become defective, but that your orator, as assignee as aforesaid, is entitled to have the benefit of such suit and the proceedings therein, and to prosecute the same against the said C. D., from the period when it so became defective as aforesaid, and that for that purpose this his bill ought to be taken as supplemental to the said bill of the said E. F. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity; and to the end that the said C. D., who is made party defendant to this bill, may be required to make full and perfect answer to the same, but not vmder oath, the answer under oath being hereby waived ; and that it may be declared that your orator, as such assignee as aforesaid, is entitled to have the benefit of the said original suit, and the proceedings therein ; and that your orator may be at liberty to prosecute the same against the defendant from the period when the said original suit so became defective by the bankruptcy of the said E. F., as aforesaid ; and that for that purpose this bill may be taken as supplemental to the said bill of the said E. F. ; and that your orator may have the same relief against the defendant as the said E. F. might have had if he had not, become bankrupt ; and that your orator may have 222 BILLS IN NATURE OF SUPPLEMENTAL. Bills to carry Decrees into Execution — Nature of. such other and further relief in the premises as equity may require, and to your honor shall seem meet. May it please your honor, etc. (Pray process as m No. 85, ante, page 209.) Proceedings wpon. — The proceedings upon a bill of this de- scription are the same as those upon original bills in general. (J) SECTION II. BILLS TO CAEKT DECREES INTO EXECUTION. Nabwe of. — Sometimes, from the neglect of parties, or some other cause, it becomes impossible to carry a decree into execution without the further decree of court. This happens, generally, in cases where parties having neglected to proceed upon the decree, their rights under it become so embarrassed by a variety of subsequent events, that it is necessary to have the decree of the court to settle and ascertain them, (k) Some- times, such a bill is exhibited by a person who was not a party, or who does not claim under any party to the original decree, but who claims in a similar interest, or who is unable to obtain the determination of his own rights, till the decree is carried into execution. Or, it may be brought by or against any per- son, claiming as assignee of a party to the decree. (I) The court in these cases, in general, only enforces, but does not vary the decree. But upon circumstances it has sometimes reconsidered the original directions, and varied them in case of mistake, (m) And, under peculiar circumstances, it has even refused to enforce the' decree ; (ri) though, in other cases, the ( j) 2 Barb. Cli. Pr. 86 ; 3 Dan. Ch. Pr. 192. (ft) Hinde's Pr. 68 ; 3 Dan. Ch. Pr. 192 ; Mitf . Eq. PI. 95 ; Barb. Ch. Pr. 86. (1) Story's Eq. PI. § 429 ; Coop. Eq. PI. 98, 99 ; Organ vs. Gardiner, 1 Caa. in Ch. 231 ; Lord Cariaret vs. Paschal, 3 P. Wms. 197 ; Binks vs. Binks, 2 Bligh, 593 ; Bylands vs. Latouche, 2 Bligh, 566. (to) Mitf. Eq. PI. 95 ; Coop. Eq. PI. 99 ; Story's Eq. PI. § 430. (») Id. ; Attorney General ■ vs. Bay, 1 Ves. 218 ; Johnson vs. Northey, Prac. In Ch. 134. BILLS IN NATUKE OF SUPPLEMENTAL. 223 Bills to carry Decrees into Execution — Form of. courts seem to have considered that the law of the decree ought not to be examined on a bill to carry it into execution, (o) It is to be observed, that although the original decree may sometimes be controverted, upon a bill to carry it into execu- tion, it is only the defendant in the new suit who can call it in question. The complainant never can. (p) The complainant must, if not satisfied with the decree, impeach it, either by a bill of review, or some proceeding of that kind. (g>) A bill to carry a decree into execution is, generally, partly an original bill, and partly a bill in the nature of an original bill, although not strictly original ; and sometimes it is like- wise a bill of review, or a supplemental bill, or both, (r) The frame of the bill is varied accordingly, (s) t No. 90. Bill to carry decree into execution. To the Honorable , Judge of the Court of the County of , in the State of , , - In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., your orator filed his bill of complaint in this honorable court, against C. D., stating, etc., (Here set out the substance of the biU — say a biU for partition,) and" praying, etc. (Sere insert the prayer of that hill.) And your orator further represents, that a summons being served upon the defendant, C. D., he appeared and put in his answer thereto, to which a replication was filed. And the said cause being at issue, the same came on to be heard before your honor on, etc., when a decree was rendered by your honor that etc., (Here insert the substance of the decree,) as by the said proceedings and decree now remaining as of record in this honorable court, reference being thereunto had, will more fully appear. And yonr orator further represents, that the commission (o) Attorney General vs. Day, 2 Ves. 232 ; Smythe vs. Clay, 1 Bro. P. C. 453 ; Story's Eq. PI. § 430 ; 2 Barb. Ch. Pr. 87. (p) Robinson vs. Robinson, 2 Ves. 225. (q) 2 Barb. Ch. Pr. 88 ; Bitpherd vs. Titley, 2 Atk. 348. (r) Pendleton vs. Pay, 3 Paige, Ch. R. 204. (») Mitf . Eq. PL 97 ; Story's Eq. PI. § 432 ; See Polt vs. Qattini, 1 Sim. & Stu. 206. 224 BILLS IN NATURE OP SUPPLEMENTAL. Form of Bill to carry Decree into Execution. awarded by the said decree never issued, on account of the said E. F. going abroad, and being, until lately, out of the jurisdic- tion of this court ; but the said E. F. having now returned, and the inconvenience mentioned in your orator's former bill still easting, your orator is desirous of having the said decree forth- with carried into execution, but from the great length of time which has elapsed, and the refusal of the said C. D. to concur therein, your orator is advised the same cannot be done without the assistance of this honorable court. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and tc the end that the said C. D., who is made a party defendant to this bill, may be required to make full and perfect answer to the same, but not under oath, the answer under oath being hereby waived : and that the said decree may be directed to be forthwith carried specifically into execution ; and the s|id C. D. ordered to do and concur in all necessary acts for that purpose ; and that your orator may have such other and further relief in the premises as equity may require, and to your honor shall seem meet. May it please your honor, etc. {Prayer for s\unu><>>i:< us :'■>, No. 85, ante, page 209.) CHAPTER XVH. BILL OF EEVIVOB. Section 1. Nature of. 2. When Proper. 3. Against Whom to be Filed. 4. Frame of Bill. 5. Defenses to. 6. Replication. 7. Order to Revive. 8. Hearing. 9. Effect of Revivor. SECTION I. NATURE OF A BILL OF BEVTVOB. A bill of revivor is the usual mode of reviving and continu- ing the proceedings, whenever there is an abatement of the suit before its final consummation. An abatement in the sense of the common law, is an entire overthrow or destruction of the suit, so that it is quashed and ended, (a) But in the sense of courts of equity, an abatement signifies only a present suspen- sion of all proceedings in the suit, from the want of proper parties capable of proceeding therein. At the common law, a suit, when abated, is absolutely dead. While in equity, a suit when abated, is in a state of suspended animation ; and it may be revived. (J) Where a suit abates by death or marriage, the proper means of restoring vitality to the cause is by bill of revivor by or against the person who comes in in the same right of the original party, (c) (a) 3 Black. Com. 168 ; Putnam vs. Putnam, 4 Pick. 139 ; see Origgs vs. Gear, 3 Gilm. 2. (b) Story's Eq. PI. § 328, 329, 349, 354 ; Bowie vs. Minter, 2 Ala. 406 ; Cullom vs. Batre, 2 Ala. 415. (c) Bowie vs. Minter, 2 Ala. 406 ; see Payton vs. McDowell, 3 Dana, 314 ; Holder vs. Mount, 2 J. J. Marsh. 187. 15 226 BILL OF REVIVOR. When Proper — Before Decree. SECTION II. WHEN PEOPEE. Before decree. — Formerly the death or marriage of one of the original parties to the suit was the most common, if not the only cause of abatement in a suit in equity. As the inter- est of the complainant usually extended to the whole suit, therefore, according to the English rule, upon the death of the complainant, or the marriage of a female complainant, all pro- ceedings became abated, {d) Upon the death of a defendant, likewise, all proceedings become abated as to that defendant, (e) But upon the marriage of a female defendant the proceedings did not abate, although her husband ought to be named in the subsequent proceedings. (f) The general rule in relation to the abatement of suits in equity, upon the death of parties or the marriage of a feme sole complainant or defendant before a' final decree, no longer prevails in Illinois and many other states. For it is provided by statute that representatives of deceased parties, and the husband, in case of the marriage of a, f erne sole, may be made parties by a suggestion of the death or marriage, as the case may be, upon the records of the court, when the cause will proceed as in other cases, (g) A bill of revivor before a final decree would seem now to be seldom necessary. A bill of revivor against a posthumous child, not a party to a suit, cannot be filed so as to divest his title' nvmopro tunc, (h) For- a full investigation of the nature, purpose and scope of a bill of revivor, the attention of the student is directed to d) Mitf. Eq. PI. 57; Story's Eq. PI. § 354 ; Coop. Eq. PI. 63 ; Spencer vs. Wray, 1 Vera. 463 ; Anon. 3 Atk. 485, 486 ; Nichol vs. RoosefeU, 3 (Tohns. Ch. 60. (e) Story's Eq. PI. § 354 ; Coop. Eq. PI. 63 ; Thompson vs. Dudley, 3 Edw. Ch. 137. (/) Mitf. Eq. PI. 58; Gilb. For. Rom. 174, 177 ; Wyatt Pr. Reg. 90-92; Story's Eq. PI. § 354. (?) Rev. Stat. (1874) 97; Rev. Stat. (1877) 94. (h) McConnel vs. Smith, 23 111. 611. BILL OF KEVIVOE. 227 When Proper — After Decree. t the works on chancery pleading referred to in the note be- low, (i) After decree. — The general rule is strict, that before decree the defendant cannot revive ; but this rule does not hold aftei a decree, because then the rights of the parties are fixed, and the complainant and defendant are equally entitled to the benefit of it. (J) After a decree to account, either party may revive, (k) It was laid down as p. rule by Lord Hardwicke, that a de- fendant can revive only in one instance, and that is after a decree to account, for in that case both parties are actors. (Z) But the principle has been, by subsequent decisions, extended to every case in which the defendant can derive a benefit from the further proceedings, (m) The complainant has a right to revive in the first instance , and the defendant cannot revive except upon default of the complainant to do so. (n) But in a case where both parties, have a right to insist that the suit shall be revived', if the com- plainant does not revive it within a reasonable time, the defendant may do so. (o) If an abatement occurs by the death of a defendant, the suit may be revived at the instance of his representatives, (_p) pro- vided they have an interest, (j) (*) Story's Eq. PI. § 354-387 ; Mitf. Eq. PI. by Jeremy, 98 ; 2 Barb. Ch. Pr. 5-58 ; Barton's Suit In Eq. 129-132 ; Hunter's Suit in Eq. 126 ; Welford's Eq. PI. 207-216. (j) Lord Bed. 79 ; Sogers vs. Paterson, 4 Paige, Ch. R. 409 ; Anon. 3 Atk. 691 ; SouUlard vs. Dias, 9 Paige, Ch. R. 393. (k) Story's Eq. PI. § 372; Coop. Eq. PI. 68 ; Anon. 3 Atk. 692 ; D&oaynes vs. Morris, 1 Mylne & Craig, 213 ; Mitf. Eq. PI. 79. (I) Id.tfb. (m) 14. j Williams vs. Cooke, 10 Ves. R. 406. (m) Eorwood vs. Sehmedes, 12 Ves. 311 ; Anderson vs. White, 10 Paige, Ch. R. 575 ; PeU vs. Elliot, Hopk. Ch. R. 86. (o) Leggett vs. Dubois, 2 Paige, Ch. 211. (p) Williams vs. Cooke, 10 Ves. 401, 406. (g) Much vs. LordWimhelsea, 1 Eq. Ca. Ab. 2 ; Anderson tb. White, 10 Paige, Ch. R. 575. 228 BILL OF KEVIVOR. Against Whom to be Filed — Before Decree. "Where the object of the revivor is not to continue the suit, but merely to put an end to an injunction, and to be allowed to proceed at law, a bill of revivor by the defendant will be liable to a demurrer, (r) The defendant must proceed to get rid of the injunction by moving that the complainant, or his representatives, revive the suit within a reasonable time, or that the injunction be dissolved. («) If some of the complainants entitled to file a bill of revivor, refuse to join in it, they may be made parties defendant, (fy Two parties claiming separately the same estate, cannot jointly revive a bill in relation to it. (u) SECTION HI. AGAINST WHOM TO BE FILED. Before decree. — If the abatement has been caused by the death or marriage of a sole complainant, and the suit is to be continued by the representatives of the original complainant, or by the husband and wife, all the defendants to the original bill must be parties to it. (v) And so they must, if the abate- ment has been caused by the death or marriage of one of sev- eral complainants, and the suit is continued by the surviving complainants, and the representatives of the deceased com- plainant, or by husband and wife, in conjunction with the other complainants. If the suit is continued either by the surviving complainants alone, or by the representatives of the deceased complainant, the representatives of the deceased complainant in the one case, or the surviving complainants in the other, must be made defendants to the bill of revivor, in conjunction with the original defendants, (w) Thus if one of several ten- (r) Horwood vs. Sehmedes, 12 Ves. 311. (») Leggett vs. Dubois, 2 Paige, Ch. R. 211. (t) Welf. Eq. PI. 210; 2 Barb. Ch. Pr. 42; Much vs. Lord Winchdsea, I Eq. Ca. Abr. 2, p. 17 ; Story's Eq. PI. § 245, 246. («) Burrows vs. Taylor, Wright, 600. (») 2 Barb. Ch. Pr. 44 ; 3 Dan. 210 ; see Auxbury vs. Firushwm, 1 Vern. 808. (») Auxbury vs. Mnchcm, 1 Tern. 308. BILL OF REVIVOR. 229 Against Whom to be Filed — After Decree. ants in common, complainants, dies, and a bill of revivor is filed by his representatives, the survivor, if not a co-complain- ant, must be a defendant, (x) Where the abatement is caused by the death of one of sev- eral defendants, and the suit is revived by the complainant in the original suit, it is only necessary, in a simple bill of re- vivor, to bring the representatives of the deceased before the court, without making the surviving defendants parties, (y) These suggestions would seem unnecessary, since the statute has changed the English rule, and provides that an abatement, as we have seen, does not occur upon the death or marriage of parties, (s) Where fUd after decree. — Where a bill of revivor is filed after decree, all persons interested in carrying the decree into effect must be made parties to the bill of revivor. The bill, however, will not be liable to demurrer for want of a party who was not before the court at the time of the abatement, although the suit may have been imperfect for want of such party ; for it is not the office of a bill of revivor to correct such imperfection, (a) Upon a bill for an account and distribution of an estate, if one of the distributees dies pending the suit, it must be revived against his personal representatives, and not against his next of kin. (5) (a:) Fallowes vs. Williamson, 11 Ves. 306. (y) Farmers' Loan and Trust Co. vs. Seymour, 9 Paige, Ch. R. 538; 3 Dan. 211; 2 Barb. Ch. Pr. 44. (z) Rev. Stat. (1874) 97; Rev. Stat. (1877) 94. (a) Metcalfe vs. Metcalfe, 1 Keen, 74; 2 Barb. Ch. Pr. 45; Humphreys vs. Bollis, Jacob, 73. (6) Jenkins vs. Freyer, 4 Paige, Ch. 47. 230 BILL" OF REVIVOR. Frame of Bill — Form of Bill. SECTION IV. FRAME OF BILL. Must pursue original hill.— The bill must pursue the original bill ; it must state who were the complainants and defendants to it, the proceedings thereon, the abatement, the prayer or its object, and show the title of the complainant to revive, (c) It is also necessary to state so much new matter, and no more, as is requisite to show how the complainant becomes entitled to revive, and to charge, that the cause ought to be revived, and stand in the same condition with respect to the parties to the original bill, as it was at the time when the abatement occurred ; and it must pray that the suit may be revived accordingly, (d) The 58th rule for practice in the courts of equity of the United States, revised in 1870, provides that, " It shall not be necessary, in any bill of revivor, or supplemental bill, to set forth any of the statements in the original suit, unless the special circumstances of the case may require it." The 49th of the English orders, promulgated in 1841, is to the same effect, (e) But this rule does not dispense with the necessity of stating so much of the pleadings in the original suit as is sufficient to show the title of the complainant, as against the , defendant, to revive the suit, (f) No. 91. Bill of revivor before decree. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your orator, E. F., of, etc., respectfully represents unto your honor, that on, etc., one A. B., late of, etc., but now deceased, (e) 2 Barb. Ch. Pr. 46 ; Story's Eq. PI. § 420, 636-647 ; Mitf . Eq. PI. 76 ; Prac. Keg. 91 ; Phelps vs. Sproule, 4 Sim. 318 ; Vigers vs. Lord Audky, 9 Sim. 72 ; Coop. Eq. PI. 70 ; Douglas vs. Sherman, 2 Paige, Ch. R. 358 ; Humphrey! vs. Ineledon, 1 P. Wms. 752. () But the case is otherwise where the abatement is occasioned by the death of the defendant. Id such case, the process being personal, cannot be revived. In general, however, where an abatement is occasioned by the death of the defendant, the order to revive against his representatives will place the suit ' as fully in the same position, with regard to such representa- tives, as can be done with reference to the change of the individual before the court, (g) Where there is a cross-bill, a revivor of the original suit will not have the effect to revive the cross-suit ; but there must be a revivor in each cause, (r) (o) Mitf . Eq. PL 78 ; Phillips vs. Darbe, 1 Dick. 98. (j») 2 Barb. Ch. Pr. 58 ; Hyde vs. Forster, 1 Dick. R. 134 (q) 3 Dan. 227 ; 2 Barb. Ch. Pr. 58. (r) Welf. Eq. PI. 220. CHAPTEE XVIII. BILLS m THE NATURE OF BILLS OF REVIVOR. Section 1. Nature and Uses. 2. Parties to. 3. Frame of Bill. 4. Defenses to, and Proceedings Upon. SECTION L NATURE AND USES. A bill of revivor properly so called lies only in cases where a death or marriage intervenes. In each of these cases there is no other fact to be ascertained than whether the new party brought before the court has 'the character imputed to him. If he has, the revivor is of course, (a) But there are many cases in which .there are other facts which may be brought into litigation,^ besides the- mere question of the character of the new party; and to such cases, therefore, the simple bill of revivor does not technically apply. Under such circum- stances an' original bill, in the nature of a bill of revivor, is the appropriate process to bring those facts before the court, and to put the original proceedings again in motion, and to enable the new party to have the benefit of the former pro- ceedings. (5) Thus if the death of a party, whose interest is not deter- mined by his death, is attended with such a transmission of his interests, that the title to it, as well as the person entitled, may be litigated in the court of chancery, as in the case of a devise of a real estate, the suit is not permitted to be continued by a bill of revivor. An original bill, upon which the title may be contested, must be filed. And this' bill will have so far the (a) Coop. Eq. PI. 64 ; Story's Eq. PI. § 377. (6) 2 Barb. Ch. Pr. 80-81 ; Story's Eq. PI. § 377 ; Mitf . Eq. PI. 97 ; Attor- ney General vs. Foster, 2 Hare, 81, 93, 94. BILLS IN NATURE OF BILLS OF REVIVOR. 241 Nature and Uses. effect of a bill of revivor, that if the title of the representa- tive substituted by the act of the deceased party is established, the same benefit may be had of the proceedings upon the former bill, as if the suit had been continued by the revivor, (c) Where all the parties to a suit have died subsequent to the striking of the cause from the docket, the proper practdce to bring the case again before the court, is by a bill in the nature of a bill of revivor, by the heirs at law of one party against ■ the heirs at law of the other party, (d) The distinction between bills of revivor, and bills in the nature of bills of revivor, seems to be, that the former, in case of death, are founded upon mere privity of blood or represen- tation by operation of law ; the latter upon privity of estate or title by the act of the party, (e) In the former case nothing can be in contest, except whether the party be the heir or per- sonal representative ; in the latter, the nature and operation of the whole act, by which the privity of estate or title is created, is open to controversy, (f) Thus, for example, the heir may be made a party by a bill of revivor; for his title is by mere operation of law. But the devisee, or purchaser of the com- plainant's interest, must come in by a bill in the nature of a bill of revivor ; for he comes in as a purchaser under the testa- tor in privity of estate or title, which may be disputed, (g) The bill is said to be original, merely on account of the want of that privity of title between the party to the former bill and the party to the latter bill, although claiming the same interest which would have permitted the continuance of the suit by a bill of revivor. (A) Therefore when the validity of (c) Story's Eq. PI. § 378; Mitf. Eq. PI. 71,97; Glare vs. WordeU, 2 Vera. .648 ; Janes vs. Jones, 3 Atk. 217 ; Douglas vs. Sherman, 2 Paige, Ch. R. 358 ; Slack vs. Woleott, 3 Mason, 508. (d~) Welch vs. Lewis, 31 111. 446 ; 29 111. 535 ; 3 Dan. Ch. Pr. 1718. (e) Wyatt, Pr. Reg. 90 ; Story's Eq. PI. § 379. (/) 2 Barb. Ch. Pr. 81 ; Story's Eq. PI. §379; Slack vs. Woleott, 3 Mason's R. 508. (g) Coop. Eq. PI. 63, 69, 77 ; Gilb. For. Rom. 172 ; Wyatt, Pr. Reg. 90 ; Douglas vs. Sherman, 2 Paige, Ch. R. 358 ; Story's Eq. PI. § 379 ; Attorney General vs. Foster, 2 Hare, R. 81, 93 ; 2 Barb. Ch. Pr. 82. (h) Mitf. Eq. PI. 97, 98 ; Story's Eq. PI. § 380. 16 242 BILLS IN NATTTEE OF BILLS OF KEVIVOR. Parties to — Frame of Bill. the alleged transmission of interest is established, the party to the new bill will be equally bound by, or have advantage of, the proceedings on the original bill, as if there had been such a privity between him and the party to the original bill, claim- ing the same interest. (*) And the suit is considered as pend- ing from the filing of the original bill, so as to save the statute of limitations, to have the advantage of compelling the defend- ant to answer, before an answer can be compelled to a cross- bill, and to have every other advantage, which would have attended the institution by the original bill, if it could have been continued by a bill of revivor merely. (J) SECTION II. PAETIES TO. Where a bill in the nature of a bill of revivor is filed by any one who was not a party to the original suit, either as the representative of a deceased party or otherwise, all of the other parties to such original suit, who have any interest in the fur- ther proceedings therein, should be made parties to such bill, either as complainants or defendants, (h) A bill of this nature cannot be brought except by some per- son who claims in privity with the complainant in the original bill. (Q SECTION III. FRAME OP BILL. An original bill in the nature of a bill of revivor, should, in general, state the game facts as in a bill of revivor. It should state the original bill, the proceedings upon it, the abatement, and the manner in which the interest of the party deceased has (i) Story's Eq. PI. § 380 ; Mitf. Eq. PI. 97. (j) Id. ; Merrywether vs. MeUich, 13 Ves. 161, 163. '(&) The Format's Loan & T. Co. ys. Seymour, 5 Paige, Ch. R. 538. (I) Oldham vs. Eboral, Coop. Select Cas. 27 ; Rylandi vs. Latouehe, 2 Bligh, 585 ; Tonkin vs. Letlvbridye, Coop. R. 43 ; 2 Barb. Ch. Pr. 82. BILLS IN NATTJEE OF BILLS OF EEVIVOB. 243 Form of Bill. been transmitted. It must also charge the validity of the transmission, and state the rights which have accrued by it. (m) The bill should also pray that the suit may be revived, and that the complainant have the benefit of the former proceed- ings therein. («.) No. 9\. Bill in the nature of a bill of revivor. To the Honorable , Judge of the Court of the County of , in the State of , , In Chancery sitting : Your orator, A. B.-, of, etc., respectfully represents unto your honor that on, etc., one E. F., of, etc., filed his bill of com- plaint in this honorable court, against C. D., of, etc., thereby stating, etc., {Here set forth the material parts of the bill, — sup- posing it to be a bill for specific performance,) and praying, etc., {Mere set out the substance of the prayer ;) that the said C. D., being served with process, appeared and put in his answer to the said bill, and E. F., the complainant therein,' replied thereto, and that the said cause being at issue, witnesses were examined on both sides, and the proofs closed ; as by the said bill, answer, replication and proceedings now remaining as of record in this court, reference being thereto had, will more fully appear. And your orator further represents, that before any further proceedings were had in the said suit, and on, etc., he, the said E. F., departed this life, leaving D. F., the other defendant hereinafter named, his son and only heir, him surviving, and having previously made and published his last will and testa- ment in writing, bearing date on, etc., and executed and attested so as to pass real estate, and having thereby given and devised the said real estate so contracted to be purchased by him as aforesaid, to your orator, his heirs and assigns, and having appointed your orator sole executor thereof, as in and by said bill, when produced, will more fully appear. And your orator further represents that the said will was on, etc., duly proved by your orator, before the court, of the county of , whereby your orator became the legal personal representative of the said E. F., as by the letters testamentary issued by said court, ready to be produced in court, will more fully appear. (to) Mitf. Eq. PI. 97; Phelps vs. Sprovie, 4 Sim. E. 318; Story's Eq. PI. §386. (ra) 2 Barb. Ch. Pr. 83 ; 2 Dan. E. 230 ; Van Heyth. Eq. Drafts. 348 ; Barton's Suit in Eq. 132. 244 BILLS IN NATURE OF BILLS OF REVIVOR. Form of Bill. Tour orator further represents, that by virtue of the devise so made to your orator as aforesaid, he is entitled to stand in the place of the said E. F., with respect to the said contract of, etc., and to have the same specifically performed, and to have the said premises conveyed, by the said C. D., to your orator, upon payment of the said sum of dollars, which sum your orator hereby offers to pay. And your orator represents, that by the death of the said E. F., the said suit and proceedings became abated, but that your orator is, as he is advised, entitled to have the same revived against the said 0. D., and to have the same relief against him, as the said E. F. would be entitled to if he were still living. And your orator further represents, that the said D. F. sometimes, though without any ground, questions the validity of the said devise to your orator, and is, therefore, as your orator is advised, a necessary party to this suit. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. D. and D. F., who are made parties defendant to this bill, may be required to make full and direct answer to the same, but not on oath, the answer under oath being hereby waived; and that the defendants may, if they can, show why the said suit and proceedings should not be revived, and your orator have the relief hereby prayed ; and that it may be de- clared that your orator, as such devisee of the said E. F. as afore- said, is entitled to revive the said suit and proceedings so become abated as aforesaid, and to have the benefit thereof; and that the said suit and proceedings may be decreed to stand and be revived accordingly, and to be in the same plight and con- dition as they were in at the time of the said abatement ; and that your orator may have the same relief against the defend- ant, C. D., as the said E. F. would be entiued to if he were still living ; and, if necessary for that purpose, that the said will of the said E. F. may be established ; and that your orator may have such otljer and further relief in the premises as equity may require and to your honor shall seem meet, May it please your honor, etc. {Pray for summons againsf C. D. and D. K as m No. 91, ante, page 230.) BILLS IN NATURE OF BILLS OF REVIVOR. 245 Defenses to, and Proceedings upon. SECTION IV. DEFENSES TO, AND PROCEEDINGS UPON Bills in the nature of bills of revivor are liable to demurrers, pleas or answer, on the same ground as original bills and bills of revivor, of whose nature they partake, and the practice as to demurring, pleading to, and answering them is the same in all respects as the practice upon original bills, (o) And in all other respects the practice upon bills of this nature is the same as upon original bills, and they must be brought on for hearing in the same manner before any benefit can be derived from them ; a revivor in such cases being only obtained by decree and not by an order to revive, as in the case of an ordinary bill of revivor, (j?) (o) 2 Barb. Ch. Pr. 83 ; 3 Dan. R. 230. (p) 3 Dan. R. 230 ; 2 Barb. Ch. Pr. 84. CHAPTEE XIX. BILLS OF REVIVOR Am* SUPPLEMENT. Natwre of, and, when proper. — A bill of revivor and sup plement is a mere compound of a supplemental bill and a bill of revivor; and in its separate parts it must be framed and proceeded upon in tbe same manner, (a) It not only con- tinues a suit which has abated, but supplies any defects in the original bill arising from subsequent events, (b) And when- ever a complainant has a right to revive a suit, he may add to the bill of revivor such supplemental matter as is proper to be addel. (c) It becomes proper where not only an abatement has taken place in a suit, but defects are to be supplied, or new events are to be stated, which have arisen since the commencement of the suit. Thus if a suit becomes abated, and by any act besides the event by which the abatement happens, the rights of the parties are affected, as by a settlement or a devise, under certain circumstances, although a bill of revivor may continue the suit, so as to enable the parties to prosecute it ; yet to bring before the court the whole matter necessary for its consideration, the parties must by supplemental bill, added to and made part of the bill of revivor, show the settlement, or devise, or other act by which their rights are affected. And in the same manner, if any other event which occasions an abatement is accompanied or followed by any matter necessary to be stated to the court, either to show the rights of the parties, or to obtain the full benefit of the suit, beyond what is merely necessary to show, by or against whom the cause (a) Story'B Eq. PI. § 38?; Mitf. Eq. PI. 80. (5) Westcott vs. Cody, 5 Johns. Ch. R. 343 ; Pendleton vs. Fwy, 3 Paige, Ch. E. 204. (e) Pendleton vs. Fay, 3 Paige, Ch. R. 204 ; 2 Barb. Ch. Pr. 88. BILLS OF REVIVOR AND SUPPLEMENT. 247 Practice upon — Form of Bill. is to be revived, that matter must be set forth by way of supple- mental bill added to the bill of revivor, (d) Practice upon. — The bill of revivor and supplement are each liable to the same description of defense as the bills, if sepa- rate, would be subject to, (e) and are to be framed and proceeded upon in the same manner as bills of revivor aud supplemental bills. (f) If matters contained in the bill of revivor and sup- plement are irrelevant or improper, the defendant may avail himself of the objection, either by a plea, or by demurrer, or by exceptions for impertinence, (g) But the insertion of supplemental matter in a bill of this nature will not authorize the defendant to demur to the whole bill. He should demur to the supplemental matter only. (A) i No. 95. BUZ of revivor and supplement. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Tour orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., your orator exhibited his original bill of complaint in this honorable court against C. D., of, etc., there- by, etc., {Here set forth so much of the bill and prayer as may be necessary f) and the said C. £>., being duly served with process, appeared and put in his answer to said bill, and your orator having replied thereto, witnesses were examined in said cause, on both sides ; as by the said pleadings and other pro- ceedings in the said cause, now remaining as of record in this honorable court, reference thereunto being had, will more fully appear. And your orator further represents, that before any further proceedings were had in the said cause, and on, etc., the said C. D. departed this life, without issue, leaving E. F., of, etc., a defendant hereinafter named, his heir at law ; and the said suit, (d) Story's Eq. PI. § 387; Coop. Eq. PI. 64; MerrywetUr vs. MeUich, 13 Ves. 161, 163, 435 ; Bampton vs. BirchaU, 1 Phillips, 5C8 ; Manchester vs. Matthewson, 2 R. I. 416 ; Bylands vs. Latouelie, 2 Bligh, 566. (e) 3 Dan. Ch. Pr. 232 ; 2 Barb. Ch. Pr. 89. (J) Welf. Eq. PI. 222; Will Eq. PI. 80 ; Coop. Eq. PI. 8t. (g) Pendleton vs. Fay, 3 Paige, Cli. R. 204. (h) BandolpJi vs. Dickerson, 5 Paige, Cli. R. 517 ; 2 Barb. Ch. Pr. 89. 248 BILLS OF EEVIVOE AND SUPPLEMENT. Form of Bill. and the proceedings therein having become abated, by the death of the said C. D., your orator, as he is advised, is enti- tled to have the same revived against the said E. F., as the heir of the said C. D., and restored to the same condition iu which they were at the time of his death. And your orator, by way of supplement, further represents that the said C. D., in his lifetime, duly made and published his last will and testament in writing, in such manner as is by law required for passing real estate, bearing date, etc., and thereby devised ail his real estate to G. H. and L. M., and their heirs forever ; as in and by the said last will and testament, reference thereto being had, will more fully appear. And your orator further represents, that the said 0. D. departed this life at the time above specified, without having altered or revoked his said will ; and that -the said G. H. and L. M., respectively claim to be interested in the said premises, by virtue of the said will ; and therefore your orator is, as he is advised, entitled to the. benefit of the said suit against them, as being, or claiming to be so interested, and to the like relief as he would have been entitled to against the said C. D. if he were still living ; and the said E. F., as such heir at law as aforesaid, at times disputes the validity of the said will. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said E. F., G. F. and L. M., who are made parties defendant to this bill, may be required to make full and direct answer to the same, but not under oath, the answer under oath being hereby waived ; and that the said suit and proceedings so abated as aforesaid, may stand revived against the said E. F. as heir at law as aforesaid, and be in the same plight and con- dition in which they were at the time of the death of the said 0. D., or that the said E. F. may show good cause to the con- trary ; and that your orator may have the benefit of the said suit and the proceedings therein against the said E. F., G. H. , ■ and L. M., who claim to be respectively interested as aforesaid, and such relief as, if the said C. D. were still living, he would be entitled to against him ; and that your orator may have such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please your honor, etc., {Praying process as m No. 91, ante, page 230.) CHAPTER XX. BILLS OF REVIEW. ion 1. Nature op, and When Proper. 2. Parties to. 3. Leave to File. 4. Within What Time to be Brought 6. Form of Bill. 6. Defenses to. SECTION I. NATURE OF, AND WHEN PROPER. A bill of review is in the nature of a writ of error ; and its object is to procure an examination and modification or reversal of a decree rendered upon a former bill, (a) Where it Ues. — A bill of revivor lies for error apparent on the record, or for material evidence not known in time for use at the former trial, and not discoverable by reasonable dili- gence at that time ; (J) and a bill filed after a final decree in the original suit between the original parties or their privies in representation, to correct errors in the proceeding or the (a) Griggs vs. Gear, 3 Gilm. 2 ; see McDaniel vs. James, 23 111. 408 ; Honer vs. Zimmerman, 45 HI. 14 ; Gardner vs. Emerson, 40 111. 296 ; Sevier vs. Magguire, 49 111. 67. (&) Griggs vs. Gear, 3 Gilm. 2 ; Garrett vs. Moss, 22 111. 363 ; Getzler vs. Saroni, 18 111. 511 ; Dexter vs. Arnold, 5 Mason, 303 ; Quarrier vs. Carter, 4 Hen. & M. 242; Hodges vs. Mulliken, 1 Bland, 503; St. Clair vs. Piatt, Wright, 532 ; Massie vs. Graham, 3 McLean, 41 ; Jenkins vs. Preioitt, 7 Blackf. 329 ; Stevens vs. Hey, 15 Ohio, 313 ; Greenleaf vs. McDowell, 4 Ired. Bq. E. 481 ; James vs. Fisk, 9 Smedes & M. 144 ; Kennedy vs. Georgia State Bank, 8 How. U. S. 586 ; United States vs. Swmpeyas, 1 Hemp. 118 ; Wiser vs. Blackley, 2 Johns. Ch. E. 488 ; Hollingsworth vs. McDonald, 2 Har. & J. 230 Simms vs. Thompson, 1 Dev. Ch. 197; Burn vs. Poang, 3 Dessau. 596 Bradshaw vs. Garrett, 1 Porter, 47; llcr vs. Routh, 3 How. Miss. 276 Starke vb. Mercer, lb. 377 ; Edmundson vs. Moseby, 4 J. J. Marsh. 497 ; Cal- ler vs. Shields, 2 Stew. & Port. 417 ; Story's Eq. PI. g 407. 250 BILL OF KEVIEW. Nature of, and When Proper. decree, is a bill of review, (d) It is proper after a decree is enrolled. A supplemental bill in tbe nature of a bill of review is proper before the enrollment;^) and a decree is considered as enrolled after it is signed by the chancellor and filed by the clerk of the court. (f) A bill of review cannot be supported for matter existing at the time of the decree and discovered since, without affidavit of such matter, and of its existence at the time of the decree ; {g) nor will it lie upon a decree rendered by consent of the par- ties, unless fraud or mistake is shown ; (/*) nor where the com- plainant himself has dismissed the bill ; (*) nor where the original decree has been affirmed on a writ of error or ap- peal, (j) And after the allowance of an appeal, if the appel- lant neglects to prosecute it, he will be precluded from filing a bill of review, (k) Matters before known as susceptible of proof cannot be made the ground of a bill of this nature. (Z) If a complainant goes to trial unprepared, it is no ground for a bill of review; he should ask for a continuance ; {m) and a bill of review cannot be permitted after a demurrer has been allowed to a former bill of review, nor after an application for leave to file a bill of review has been refused ; (ri) nor can a bill praying for a review of a decree clearly erroneous, from the fact that some of the parties did not answer, and were not served with (d) Whiting vs. Bank of IT. S. 13 Pet. 6. (e) Wiser vs. Blackley, 2 Johns. Ch. R. 488 ; SolHngsworth vs. McDonald, 2 Har. & J. 230 ; EUaey vs. Lane, 2 Hen. & M. 589 ; Iler vs. Mouth, 3 How. Miss. 276 ; see also Mead vs. Arms, 3 Vt. 148 ; Furman vs. Coe, C. C. B. 96 ; Greenwich Bank vs. Loomis, 2 Sandf. Ch. R. 70 ; Larson vs. Moore, 1 Texas, 22. (/) Hottingsworth vs. McDonald, 2 Har. & J. 230. . (g) SolHngsworth vs. McDonald, 2 Har. & J. 230. (A) Flagler vs. Crow, 40 111. 414. (i) Jones vs. Zollicoffer, 1 Car. L. R. 376. ( j) Strader vs. Byrd, 7 Ham. 184, 1st part ; Brewer vs. Bowman, 3 J. J. Marsh. 492 ; 1 Hen. & M. 13. (k) Gilchrist vs. Buie, 1 Dev. & Bat. Ch. R. 346. (1) Southard vs. Russell, 1 6 Mow. U.S. 571 ; McDaniel vs. James, 23 111. 407. (m) Calmes vs. Ament, 1 A. K. Marsh. 459. (n) Respass vs. McClanu/utn, Hardin, 342. BILLS OF REVIEW. 251 Nature of, and When Proper — For Error of Law. process, be sustained where the original hill did not contain matter which would entitle the complainant to relief, (o) It will not be granted for a mistake in the calculation of costs ; nor for erroneous deductions from the evidence in the cause by the chancellor ; nor for the discovery of new evidence which would not overturn the evidence before in the case ; (^>) nor where the party was prevented from proving important facts by the wrong advice of his counsel, or that other counsel was prevented by illness from attending the trial ; (g) or that the attorney employed by the complainant neglected the case. The negligence of the counsel being the same as his own neg- ligence. (/•) But if an attorney enters the appearance of a party without authority, relief may be granted. {&) For error of law. — A bill of review, for error apparent upon the face of the record, must be for an error in law arising out' of the facts admitted by the pleadings, or recited in the decree itself, as settled, declared or allowed by the court. It cannot be sustained upon the ground that the court has decided wrong upon a question of fact ; (t) and it ought not to be granted to an interlocutory decree ; but if there be error there- in, it may be corrected on motion or petition, (u) Errors of law, against which relief can be had by bill of review, must be such as arise rather from obvious mistake or inadvertence, appearing on the face of the decree, or at least of record, than from alleged error in the deliberate judgment of the chancel- lor, on a debatable question of law or equitable right, (v) It (o) Todd vs. Laughlin, 3 A. K. Marsh. 535 ; Todd vs. Lackey, 1 Litt. 270. (p) Younge vs. Forgey, 4 Heyw. 189. (g) Franklin vs. Wilkinson, 3 Munf . 112 ; MiUspaugh vs. McBride, 1 Paige, Ch. R. 509 ; Tripp vs. Vincent, 8 Paige, Ch. R. 179. (r) Yates vs. Monroe, 13 111. 212 ; Smith vs. Powell, 50 111. 21. («) Griggs vs. Gear, 3 Gilm. 2 ; 2 Yeates, 546. (*) Webb vs. Pell, 3 Paige, Ch. E. 368 ; Manigault vs. Deas, 1 Bailey, Ch. K. 283 ; Turner vs. Berry, 3 Gilm. 541 ; Boons vs. Clement, 14 111. 206 ; Gar- rett vs. Moss, 22 111. 363; Fellers vs. Rainey, 82 111. 114. (u) Banks vs. Anderson, 2 Hen. & JM. 20; Jenkins vs. Eldridge, 3 Story, R. 299; see Hoig vs. Thrap, 84 111. 302. (c) Caller vs. Shields. 2 Stew. A: "oil. 417; Younge vs. Forgey, 4 Heyw. 189. BILLS OF REVIEW. When Proper — For Error of Law. cannot be brought upon the ground that the former decree was not supported by the evidence, (w) And no evidence is admis- sible to facts established by the original decree. (%) The error must appear on the face of the pleadings and decree ; for the evidence in the case at large cannot be looked into to ascertain whether the court misunderstood the facts, (y) That is the proper province of the court upon appeal. But taking the facts to be as they are stated to be on the face of the decree, it must be shown that the court has erred in point of law. (s) If therefore, the decree does not contain a statement of the material facts on which it is founded, it is plain that there can be no relief by a bill of review, but only by an appeal or writ of error to some superior tribunal, (a) It is on this account that the English decrees are usually drawn up with a special statement of, or reference to, the material grounds of fact, which support the decree. In the courts of the United States the decrees are usually general, without any such statement of facts. In England, the decree embodies the substance of the bill, pleadings and answers. In the courts of the United States the decree usually contains a mere reference to the antecedent proceedings, with- out embodying them. But for the purpose of examining all errors of law, the bill, answers, and other proceedings, are, in our practice, as much a part of the record before the court, as the decree itself; for it is only by a comparison with the former, that the correctness of the latter can be sustained. (5) (w) Dougherty vs. Morgan, 6 Monr. 153 ; Whiting vs. Bank of the U. 8. 13 Pet. 6. (x) Johnson vs. Donnel, 15 111. 100; Turner vs. Berry, 3 Qilm. 541; Mans vs. Clements, 14 111. 206 ; Garrett vs. Moss, 22 111. 363 ; Caller vs. Shields, 2 Stew. & Port 417: Jvdnof vk. Stephens, 75 111. 255. (y) Story's Eq. PI. § 403 ; Dexter vs. Arnold, 5 Mason, 303, 310 ; Green- wich Bank vs. Loomis, 2 Sandford, 70. (a) 2 Barb. Ch. Pr. 61 ; Story's Eq. PI. 403^404 . (a) Dexter vs. Arnold, 5 Mason, 311; Mellish vs. Williams, 1 Vera. 166; O'Brien vs. Connor, 2 Ball & Beat. 146, 154. (6) Story's Eq. PI. § 407 ; Dexter vs. Arnold, 5 Mason, 311, 312 ; Wyatt, Pr. Beg. 98 ; Combs vs. Proud, 1 Ch. Cas. 54 ; Webb vs. Pell, 3 Paige, Ch. B. 368. BILLS OF KEVIEW. 253 When Proper — For Newly-discovered Evidence. And it is. said, that in the American courts, where the English practice of reciting the proceedings in the decree does not prevail, the proceedings themselves are the subject matter of revision in a bill of review, to the same extent, and in the same manner, as if they were stated on the face of the decree, in conformity with the English practice, (c) Upon a bill of review, a court will revise, correct, or reverse its own decree, for an erroneous application of the law to the facts found, whenever a court of appeals would do so for the same cause, (d) ' Newly discovered evidence. — A bill of review lies for newly discovered evidence material to the issue, if such evidence was not known until after the trial of the cause, (e)' The matter of newly discovered evidence must be relevant, and such as materially affects the merits of the case ; mere accumulative evidence is not sufficient, {f) and the new matter must be to prove what was before in issue, and not to prove a title not before in issue ; not to make a new case, but to establish the old one. (ff) And unless discovered after the decree is pro- nounced, it is not ground for a bill of review. (A) A bill of review will not be allowed for alleged newly dis- covered evidence, where it appears that the evidence was, or might have been, by reasonable diligence, known at the hear- (e) Tomlimon vs. McKaig, 5 Gill, 258. (d) Boons vs. Clements, 14 111. 206 ; Moore vs. Bracken, 27 111. 23 ; Briggs vs. Gear, 3 Gilm. 2 ; Raymond vs. Fisher, 45 Miss. 145. (e) DexUr vs. Arnold, 5 Mason, 303 ; Yates vs. Monroe, 13 111. 212 ; see Love vs. Blewett, 1 Dev. & Bat. Ch. 108 ; Iter vs. South, 3 How. Miss. 276 ; Randolph vs. Randolph, 1 Hen. & M. 181 ; Respass vs. MeCanahan, Hardin, 342 ; Bowles vs. South, Hardin, 451 ; Huffaere vs. Gfreen, 4 Heyw. 51. (/) Livingston vs. Sttbbs. 3 Johns. Ch. R. 124 ; Ord vs. Noel, 6 Mad. 127 ; Blake vs. Foster, 2 Molloy, 257 ; Wiser vs. Blackley, 2 Johns. Ch. 488 ; Story's Eq. PI. § 413; Hall vs. Fullerton, 69 111. 448. ig) Dexter vs. Arnold, 5 Mason, 303 ; Young vs. Keighley, 16 Ves. 348, 354 ; Huffaere vs. Gfreen, 4 Heyw. 51 ; Love vs. Blewett, 1 Dev. & Bat. Ch. 108. (h) Winston vs. Johnson, 2 Man! 305 ; MeCrackin vs. Finley, 1 Bibb, 455 ; but see Caller vs. Shields, 2 Stew. & Port. 417. 254 BILLS OF EEVIEW. Parties to. ing of the original bill ; (i) nor because certain documentary evidence, intended to be used in the original cause, was lost or mislaid by the complainant's counsel, and could not be found until after the hearing. (J) The allowing of a bill of review for newly discovered evi- dence rests in the sound discretion of the court, (k) A party who has been guilty of laohes, will not be allowed to file a bill of this nature. (I) SECTION IL PARTIES TO. !No persons, except the parties and their privies in represen- tation, such as heirs, executors and administrators, can have a bill of review, strictly so called, (m) All parties to the original bill should be made parties, (n) A bill of review may be brought by the party who obtained the original decree in his own favor, if such decree was injurious to him. (o) But a party cannot file a bill if he has no interest in (t) Hodges vs. MvMikin, 1 Bland, 503 ; Bradshaw va. Garrett, 1 Porter, 47 ; St. Clair vs. Piatt, Wright, 532 ; Barnes va. Dickinson, 1 Dev. Ch. R. 326 ; Gentry vs. Thornberry, 3 Dana, 500 ; see also Winston vs. Johnson, 2 Munf. 305 ; McCrackin vs. Mnley, 1 Bibb, 455 ; Quick vs.LiUy, 2 Green, Ch. R.255; Dexter vs. Arnold, 5 Mason, 312, 320, 321 ; Massie vs. Graham, 3 McLean, 41; Jenkins vs. Prewitt, 7 Blackf . 329 ; Stevens vs. Hey, 15 Ohio, 313 ; Hughes vs. Jones, 2 Md. Ch. Decis. 293 ; Robinson vs. Sampson, 26 Maine, 11 ; Bingham vs. Dawson, Jacob, 243 ; Livingston vs. Hubbs, 3 Johns. Ch. 124 ; Pendleton vs. Fay, 3 Paige, Ch. R. 204 ; Ord vs. Neol, 6 Mad. 127. (j) Jones vs. PUcher, 6 Munf. 425 ; Speight vs. Adams, 1 Freeman, Ch. 318. (k) Griggs vs. Gear, 3 Gilm. 2 ; Getzler vs. Saroni, 18 111. 511 ; 2 Dan. Ch. Pr. 1633 ; Story's Eq. PI. § 417 ; Bennett vs. Lee, 2 Atk. 528 ; Wilson vs. Webb, 2 Cox, 3 ; Young vs. KeighVy, 16 Ves. 348 ; Perry vs. Phelips, 17 Ves. 176-178 ; Tlwmas vs. Harvie's Heirs, 10 Wheat. 146 ; Wood vs. Mann, 2 Sumner, 316; Massie vs. Grant, 3 McLean, 41 ; P. & M. Bank vs. Dundas, 10 Ala. 661 ; Taylor vs. Taylor, 1 Mac. & Gord. 405. (i) Rubber Co. vs. Goodyear, 9 Wallace, 805. (to) Story's Eq. PI. § 409 ; GiJb. For. Rom. 184 ; Slingsby vs. Hale, 1 Ch Cas. 122 ; see Turner vs. Berry, 3 Gilm. 541. (ra) Coop. Eq. PI. 95 ; 2 Barb. Ch. Pr. 94 ; Dexter vh. Arnold, 5 Mason, 308 ; Bank of U. S. vs. Wliite, 8 Pet. 252. (o) Dexter vs. Arnold, 5 Mason, 308. BILLS OF REVIEW. 255 Parties to — Leave to File. the question intended to be presented thereby, and when he cannot be benefited by the reversal or modification of the former decree, (p) And even persons having an interest in the cause, if not aggrieved by the particular errors assigned in the decree, cannot maintain a bill of review, however injurious the decree may affect the rights of third persons, (q) Other persons in interest, and in privity of title or estate, who are aggrieved by the decree, such as devisees, and remain- der men, are entitled to maintain an original bill in the nature of a bill of review, so far as their own interests are concerned, (r) A defendant may file a bill of review. («) section ni. LEAVE TO FILE. According to the English practice, leave of the court must be obtained before a bill of review can be filed, upon the dis- covery of new matter, and which leave the court will not grant without an affidavit that the new matter could not be produced or used by the party claiming the benefit of it, at the time when the decree was made. And such affidavit must state the nature of the new matter ; in order that the court may exer- cise its judgment upon its relevancy and materiality, (t) Upon an application of this nature, the chancellor exercises his judgment as to the propriety of interfering or meddling with the decree for the cause disclosed, and grants or refuses leave to file a bill of review accordingly, (w) The court may refuse it to the party applying, and grant it for the protection of the interests of others, (v) (p) Webb vs. Pell, 3 Paige, Ch. B. 368. (g) Thomas vs. Harcie's Heirs, 10 Wheat. 146 ; Mitf . Eq. PI. 205 ; Story's Eq. PI. sj 409. (r) Mitt Eq. PI. 92 ; Wyatt, Pr. Reg. 98, 100 ; Turner vs. Berry, 3 Gilra. 541 ; Singleton vs. Singleton, 8 B. Monroe, 340. (*) Osborne vs. Usher, 6 Bro. P. C. 20; 2 Barb. Ch. Pr. 94. (0 Coop. Eq. PI. 92 ; Mitf. Eq. PI. 84 ; Gilb. For. Rom. 186-188 ; Story's Eq. PI. 412 ; 2 Barb. Ch. Pr. 95 ; see Getzler vs. Saroni, 18 111. 511. («) Hollingsvmih. vs. McDonald, 2 Har. & J. 230. (t>) Hodges vs. MiUiken, 1 Bland, 511. 256 BILLS OF REVIEW. Performance of Decree — Petition for Leave to File. It has been held, that leave to file a bill of review, for error in law, apparent on the record, is not necessary, (w) Performance of decree. — It is a general rule that leave to file a bill of review will not be granted unless the decree has been performed, (x) Therefore, if the decree be for the payment of money, the party must pay it, or give security, although it should afterwards be ordered to be refunded, (y) But the rule may be dispensed with under the circumstances of each case. Thus, where the party is in execution for non- payment of money under the decree, this is considered equiva- lent to performance, (s) So, when a party is insolvent, (a) or has given security for the > performance of the decree, (i) The construction of the rule is, that the party need only pep form so much of the decree as at the time of filing his bill he is bound to perform. Whatever he is then bound to do he must do before he files his bill. But the permission to file it is upon the implied engagement that the original decree shall be per- formed. Therefore, if after the bill is filed, the period arrives when the money ought to be paid, the party must pay it, or an application to dismiss the bill may be made, (c) If a bill of review is filed without leave, it may be dismissed on motion, (d) Petition for. — -The application for leave to file a bill of review should be made by petition, which should state the nature of the suit, the decree, and the errors of law, or the (to) Webb vs. Pell, 1 Paige, Ch. R. 564 ; St. Clair vs. Piatt, Wright, 532 ; and see Oetzler vs. Ba/roni, 18 111. 511. (x) Wiser vs. Blackley, 2 Johns. Ch. R. 488 ; Livingston vs. Hubbs, 3 Johns. Ch. R. 124 ; see Griggs vs. Gear, 2 Gilm. 2 ; Horner vs. Zimmerman, 45 111. 14. (y) Lube's Eq. PI. 139 ; 2 Barb. Ch. Pr. 96. (z) Livingston vs. Subbs, 3 Johns. Ch. R. 124 ; see Taylor vs. Person, 2 Hawks, 298. (a) Stalling's Admr. vs. Goodloe's Exr. 3 Mur. 159. (6) Id. lb. ; 3 Baa Ord. ; Levil vs. Barney, 1 Ch. Cas. 42 ; 2 Barb. Ch. Pr. 90. (c) 2 Barb. Ch. Pr. 96 ; Partridge va. Usborne, 5 Russ. 251 ; Well Eq. PI. 90 ; Gilb. For. Horn. 185. , ( /) Carroll vs. Parren, 1 Bland, 125; see Forman vs. Stickney, 77 111. 575. BILLS OF EEVIEW. 257 Form of Petition for Leave to File — For Error of Law. new matters, as the case may be, upon which the application is founded, and should pray for liberty to file a bill of review, to bring such decree into review. If the application is founded upon the discovery of new matter, the petition must describe the new evidence distinctly and specifically, and state when it was discovered and its bearing on the decree, (e) It is not sufficient to state that the petitioner expects to prove certain facts. He must state the exact evidence to establish them. On the hearing of such petition, affidavits may be admitted on both sides, if necessary, to explain the nature of the • evidence, (f ) No. 96. Petition for lea/oe to file a bill of review for errors of law. (Tide of cause:) To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting: The petition of A. B., the above-named complainant, respect- fully represents that on, etc., your petitioner filed his bill in this honorable court, against C. D. for the purpose of, etc., {Here state the object of the bill,) and praying, etc. {Here state the prayer. And your petitioner further represents that the said C. D., being served with process, appeared and put in his answer thereto ; to which a replication was filed. And the said cause being at issue, witnesses were thereupon examined on both sides, and the proofs closed. And that said cause was brought to a hearing before your honor on, etc. ; whereupon a' decree was rendered to the following effect, etc. {Here set forth ilw substance of the decree.) (*) And your petitioner further represents, that he is advised that the said decree is erroneous and ought to be reviewed and reversed, and set aside for many apparent errors and imper- fections, among which are the following, viz. {Here set forth the errors complained of.) For all which errors and imperfections in the said decree (e) Dexter vs. Arnold, 5 Mason, 303. (/) lb. ; Hottirtgaworth vs. McDonald, 2 Har. & J. 230 ; 2 Barb. Ch. Pr. 95. 17 258 BILL OE KEVIEW. Form of Petition for Leave to File, etc. — Within what Time to be Brought. appearing on the face thereof, your petitioner is desirous of bringing his bill of review to be relieved in the premises. Your petitioner therefore prays that leave may be granted to him to file a bill of review against the said C. D. for the purpose of having the said decree reviewed, reversed and set aside ; and that no further proceedings may be had under the same. A. B. , Sol. for Petitioner. No. 97. Petition for leave to file a bill of review upon discovery of new matter. (As in the last form, No. 96, to the asterisk (*), and then) And your petitioner further represents, that since the rendition of said decree, your orator has discovered new matter of con- sequence in the said cause, particularly that, etc., (Sere set forth the new evidence distinctly and specifically /) which new matter your petitioner did not know, and could not, by reasonable diligence, have known, .so as to make use thereof in the said cause, previous to and at the time of the pronouncing the said decree. That your petitioner first learned of the saia newly discovered evidence about, etc. (Here state when it was first discovered.) And your petitioner is advised that the said new matter, etc. (Sere state its bearing on the decree?) Your petitioner therefore prays that he may be at liberty to file a bill of review for the puipose of having the said decree reviewed, reversed and set aside, and that no further proceed- ings may be had under the same. A. B. -, Sol. for Complainant. (Add affidavit.) SECTION IV. WITHIN WHAT TIME TO BE BBOUGHT. In England, twenty years after the pronouncing of the decree is the limitation for a bill of review, (g) In Indiana, a bill of review filed in October, 1832, founded on newly discovered evidence, alleged to have been discovered in the summer of 1828, was held to have been filed in time. (A) In that state, {g) Lube's Eq. PI. 132 ; Coop. Eq. PI. 92 93. (A) Jenkins vs. Prewitt, 6 Blackf. 237. X BILLS OP REVIEW. 259 Order for Leave to File — Form of Bill. the statute of limitations begins to, run from the time of the dis- covery of new evidence, which is five years. (*) In Illinois, bills of review are limited, like writs of error, to five years. (J) No. 98. Order for leave to file hill of review. {Caption, with title of cause as in No. 79, ante, page 198.) This cause coming on to be heard this day, on the petition of C. D., the defendant, praying for leave to file a bill of review in this cause, and counsel for the respective parties having been heard ; and the court being fully advised in the premises, does order that the said C. D. be at liberty to file a bill of review, touching the several matters in the said petition mentioned, and for relief in the premises as he may be advised. SECTION V. FOEM OF BILL. In a bill of review it is necessary to state the former bill, and all the proceedings under it ; the decree and the points in which the party exhibiting the bill, conceives himself aggrieved by it ; and the ground of law upon which he seeks to impeach it; or if it is brought upon newly discovered evidence, the evidence must be stated distinctly and specifically, and what is its bearing upon the decree sought to be impeached, (k) The bill must either deny the justice of the demand estab- lished by the decree sought to be reviewed, or the complainant must allege that he has paid it and the costs, or else give a sufficient reason for omitting to do so. (I) The complainant may join in the same bill both grounds for (t) Jenkins vs. Premtt, 5 Blackf. 7. (j) Lyon, vs. Bobbins, 46 111. 276. (k) Gardner vs. Emmerson, 40 111. 296 ; Turner vs. Berry, 3 Gilm. 541 ; Oetder vs. Saroni, 18 111. 511 ; Gilchrist vs. Buie, 1 Dev. & Bat. Ch. 346; Story's Eq. PI. § 420 ; BougJierty vs. Morgan, 6 Monr. 151 ; Marvin vs. Trumbvtt, Wright, 386 ; KeUom vs. Blasley, 2 Abbotts C. C. R. 559 ; 8. C. 1 Dillon, 281 ; 14 Wallace, 279. (I) Horner vs. Zimmerman, 45 111. 14; 2 Adams' Eq. 418; Lube's Eq. 130. 260 BILLS OF REVIEW. Form of Bill upon Error in Law. a bill of review ; first, error of law, apparent on the face of the decree; and, second, newly discovered evidence, (m) The bill may simply pray that the decree may be reviewed, and reversed in the points complained of, if it has not been carried into execution, (n) If it has been carried into execu- tion, the bill may also pray the further decree of the court to put the party complaining of the former decree into the situa- tion in which he would have been if that decree had not been executed, (o) If the bill is brought to review the reversal of a former decree, it may pray that the original decree may stand, (p) No. 99. BiU of review wpon error m law. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting: Tour orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., one C. D., of, etc., exhibited his original bill of complaint in this honorable court, against your orator, and thereby set forth, that, etc., (Here the substance of the origmal bill,) and" praying, etc., {Here set out the prayer ;) and your orator being served with process for that purpose appeared and put in his answer to the said bill, to the effect following, etc., (Here insert the substance of the answer /) and the said C. D. filed his replication to said answer ; and issue having been joined, and witnesses examined, and the proofs closed, the said cause was brought to a hearing in this honora- ble court, on, etc., when a decree was rendered ; by which it was ordered, adjudged and decreed that, etc. (Here set forth • the decree.) (*) And your orator further represents, that the said decree is erroneous, and ought to be reviewed, reversed, and set aside for many apparent errors and imperfections, inasmuch as it appears by your orator's answer, among which are the follow- ing : (Mere insert the apparent errors ;) and no proof being made thereof, no decree ought to have been made or grounded thereon," but the said bill ought to have been dismissed, for the (to) 3 Dan. Ch. Pr. 1630, note 4 ; Griggs vs. Gear, 3 Gilm. 2. (n) Mitt Eq. PI. 88, 89 ; Coop. Eq. PI. 95 ; Story's Eq. PI. § 420. (ronouncing of the said decree; and that your orator first earned of the existence of the said newly discovered evidence about, etc., (Here give the date of the discovery as near as may be;) and your orator is advised that the said new matter, etc. (Here state its bearing upon the decree?) And your orator further represents, that he is advised and insists that under the circumstances aforesaid, the said decree, in consequence of the discovery of such new matter as aforesaid, ought to be reviewed and reversed. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity, and to the end that the said CD., who is made a party defendant to this bill, may be required to make full and direct answer to the same, but not under oath, the answer under oath being hereby waived ; and that the said decree and all proceedings thereon may be reviewed and reversed, and no further proceedings taken thereon ; and that your orator may have such other and further relief in the premises as equity may require, and to your honor may seem meet. 262 BILLS OF REVIEW. Affidavit to Bill, etc. — Defenses to. May it please your honor, etc. {Praying process as in No. 85, ante, page 209.) {Add affidavit as follows :) No. 101. Affidavit to a bill of review on discovery of new matter. State of ) County of ( A. B., of, etc., the complainant in the foregoing bill of com- plaint, on oath, says, that he has heard the same read, and understands the contents thereof; and that the matters set forth •therein as new matters, are true in substance and in fact ; that they were first discovered by this affiant since the rendition of the decree in the foregoing bill mentioned ; to wit, about the time therein stated ; and that the same could not possibly be had, known or used at the time when said cause was heard or the decree rendered. Subscribed, etc. A. B. SECTION VI. DEFENSES TO. The usual mode of defense to a bill of review founded upon alleged errors apparent from the decree, is to plead the former decree in bar of the suit, and to object by demurrer to the vaca- tion of the decree, alleging as a ground of demurrer, that there is no error in the decree ; (§■) or, if the bill is brought on new matter proper to be answered, the defendant must put in an answer, or plead thereto, {r) Plea. — It seems that; it is not necessary to plead the former decree, if such decree is fully and fairly stated in the bill of review ; (s) and the books of practice contain the forms of de- murrer only to such a bill. (?) Coop. Eq. PI. 95 ; Mitf. Eq. PI. 89 ; Well Eq. PI. 242 ; Oouldva. Tan- ered, 2 Atk. 534 ; Dancer vs. Efoett, 1 Vern. 392 ; Smith vs. Turner, 1 Vern. 273 ; O'Brienvs. 0' Conner, 2 Ball & B. 146. (r) Lube's Eq. PI. 132; 2 Barb. Ch.Pr. 98. («) Mitf. Eq. PI. 204; Coop. Eq. PI. 215, 216 ; 2 Barb. Ch. Pr. 98: Welf Eq. 243 ; Slingsby vs. Hale, 1 Ch. Cas. 122 ; Jones vs. Kenrick, 5 Bro. C. P 244, 248 ; Barton's Suit in Eq. 218 ; Denny vs. Ktmer, 2 Preem. 172. BILLS OF REVIEW. 263 Defenses to — Plea, etc. Length of time is, it seems, a cause of demurrer, as if the decree has been pronounced above the period of the statute of limitations ; and this limitation is to be counted, not from the time of the enrollment of the decree, but from the time of pro- nouncing it. (£) It has been said that length of time must be pleaded to review, even if apparent upon the face of the bill, that it is brought after the prescribed period ; for that otherwise the complainant would not be able to avail himself of the ex- ceptions provided in the statute for cases of disability, &s infancy, coverture, or the like, fyu) But there is reason to doubt the propriety of this doctrine ; and to hold, that a demurrer will lie in such a case. If any such exception exists, it is the duty of the complainant to set it forth in his bill of review, in order to repel the objection, (y) This is also sustained by analogy to original bill, {w) A bill of review upon the discovery of new matter, is seldom liable to demurrer, for being exhibited only by leave of the court, the ground of the bill is generally well considered before it is filed ; and, therefore, in point of substance, it can rarely be liable to a demurrer, (as) Yet even in such case demurrer seems to lie to review for new matter not relevant, though the relevancy ought to be considered when leave is given to file the bill, (y) If a demurrer to a bill of review has been sustained, it may be pleaded to a new bill on the same grounds, being an effect- ual bar to another bill of review, (z) (t) Edwards vs. Carroll, 2 Bro. P. C. 98 ; Smythe vs. Clay, 1 Bro. C. C. 539, note. (u) Coop. Eq. PI. 216; Mitf. Eq. PI. 204, 205 ; Well Eq. PI. 243 ; Gregor vs. Molesworth, 2 Ves. 109. («) , Welf. Eq. PI. 243 ; Mitf. Eq. PI. 205 ; Gregor vs. Molesworth, 2 Ves. 109 ; Edwards vs. Carroll, 2 Bro. P. C. 98 ; Sherrington vs. Smith, 2 Bro. P. C. 62 ; Shepherd vs. Larue, 6 Munf . 529. (mi) Cook vs. Arnham, 3 P. Wms. 284 ; Foster vs. Hodgson, 19 Ves. 180. (a;) Welf. Eq. PL 243 ; Mitf. Eq. PI. 204. (y) LleweUen vs. Mdckworth, 2 Atk. 40 ; Mitf. Eq. PI. 205 ; Coop. Eq. PI. 216. («) Denny vs. Fiimer, 2 Ch. Cas. 133 ; Pitt vs. Earl of-Arglass, 1 Vera. 441 ; Woots vs. Tucker, 2 Vera. 120. 264 BILLS OF REVIEW. Defenses to — Demurrer. When anything out of the decree, as length of time, pur- chase for a valuable consideration, or any other matter, is to be offered against the opening of the decree, that matter must be pleaded, (a) A bill of review upon the discovery of new matter seems liable to any plea, which would have avoided the effect of that matter if charged in the original bill. And a plea lies to the fact of the discovery of new matter, {b) This has been doubt- ed, but the doubt does not seem to be well founded ; for if the fact of discovery is in issue in the cause, it ought to be proved, to entitle the complainant to demand the judgment of the court on the matter alleged as ground for reviewing the decree; and it may consequently be disproved by evidence on the part of the defendant, (c) Demurrer. — The regular defense to a bill of review for errors of law apparent, being, as already stated, to plead the decree in bar to the new suit, and demur to the opening of the decree, on the ground that the errors assigned are not such as to entitle the complainant to have the bill reviewed, much less reversed ; the first question being whether the decree should be opened and reviewed. And this is argued upon the demurrer, when nothing can be read but what appears upon the face of the decree. If the demurrer is overruled, there arises a second question — whether the decree ought to be reversed; and the complainant is at liberty to read the original pleadings, or any other evidence, as at a rehearing; the cause being equally open, (d) If the bill has assigned errors at law, and the plea and demurrer are allowed, an order to that effect is made, and that (a) Welf. Eq. PI. 244 ; BartwiU vs. Townsend, 2 Bro. P. C. 107; Gorman vs. MeCullock, 5 Bro. P. C. 597 ; Bradish vs. Gee, Ambl. 229. , (6) Mitf. Eq. PI. 292 ; Coop. Eq. PI. 304, 305 ; Beames' PI. in Eq. 307. (c) Welf. Eq. PI. 245 ; Mitf. Eq. PI. 292 ; Dexter vs. Arnold, 5 Mason, 393 ; Lube's Eq. PI. 249 ; 2 Barb. Ch. Pr. 99. . (d) 2 Barb. Ch. Pr. 100 ; Lube's Eq. PI. 248. BILLS OF REVIEW. 265 Defenses to — Answer — Form of Plea to. ■ 1 ^ the bill be dismissed, (e) There is then an end to the suit, and no new bill will be admitted after demurrer allowed. (/") If the demurrer or demurrer and plea are overruled, the usual decree is that the original decree be reversed, and the errors be allowed, (g) On the argument of a demurrer to a bill of review, where several errors in the decree have been assigned, if the com- plainant should prevail only in one, the demurrer must be overruled ; as one error will be sufficient to open the decree. And on argument of a demurrer to a bill of review for error apparent in the decree, the court has ordered the defendant to answer; saving the benefit of the demurrer to the hearing; and on the hearing has finally allowed the demurrer. (A) Answer. — If the bill of review is brought on new matter, fitting to be answered, the defendant may put in an answer controverting the fact that the matter is newly discovered. (*) So, if a bill is brought for newly discovered matter, and a demurrer, or plea and demurrer are overruled, it is laid down that the defendant must answer, as facts are in issue. (J) The case will proceed upon such a bill as upon an original bill. (A) Wo. 102. Plea to a MU of review. In the Court CD.) — Term, 18—. ats. > In Chancery. A.B.) The plea of C. D., defendant, to the bill of review of A. B., complainant. This defendant, etc., (As in No. 28, ante, page 119, to the asterisk *, and then) that by the course and practice of this («) Webb vs. Pell, 3 Paige, Ch. R. 368. (/) Woots vs. Tucker, 2 Vera. 120 ; Benny vs. Mbmore, 1 Vera. 135 ; Pitt YB.Marl ofArgl&ss, 1 Vera. 441. (ff) Cook vs. Bamfield, 3 Swanst. 607. ih) 2 Barb. Ch. Pr. 204; Mitf. Eq. PI. 204 (i) Lube's Eq. PI. 132 ; 2 Barb. Ch. Pr. 100 ; Dexter vs. Arnold, 5 Mason, 303. (j) Cook vs. Bamfield, 3 Swanst. 607. (*) 2 Hoff. Pr. 12 ; 2 Barb. Ch. Pr. 100. 266 BILLS OF REVIEW. Defenses to — Form of Demurrer to. court no decree ought to be reviewed or reversed by any original bill, or otherwise than by bill of review for errors apparent in the body of the decree, or upon a new matter come to the parties' knowledge after the making of such decree, and that by leave of the court only ; wherefore, and for that the said bill of review does not set forth the decree truly, but alleges new and foreign matters not contained in the tlecree, and prays process generally to answer and not to review, this defendant pleads the said decree, which is in these words, to wit : {Here set forth the decree verbatim ;) as by the said decree now remaining of record in this honorable court will appear. And this defendant demands the judgment of this honorable court, whether he shall be compelled to make any further or other answer to the said bill of review, or any of the matters and things therein contained, and prays to be hence dismissed with his reasonable costs in this behalf sustained. No. 103. Demwrrer to a oitt of review. In the Court. CD.) Term, 18—. vs. \ In Chancery. A. B. f 3 The demurrer of C. D., defendant, to the bill of review of A. B., complainant. This defendant, etc., (As in No. 16,'a.nte, page 108, to the asterisk *, and then) that by the constant rules of this court no bill of review ought to be admitted to alter or change matters decreed, only for error in law appearing in the body of the decree, as it is drawn up and entered, and for new matter arising since the decree, or such matter of which the complainant in the bill of review could not have notice at the time of the decree ; but this defendant is advised that the matters assigned by the said bill of review for cause of reversal of the said decree, as the same thereby appears by the com- plainant's bill, are neither any error in law apparent in the body of this decree, nor any such new matter as aforesaid, (but a misjudgment in matters of form only, and not in point of right, and that the statement contained in the said bill of review of the abatement of the suit before the decree passed, is merely an exception in point of form.) Wherefore, etc. ( Conclude as in No. 16, ante, page 108.) CHAPTER XXI. BILLS OF DISCOVERT. Section 1. Nature op, and when Proper. 2. Frame and Form of. 3. Defenses to. * SECTION I. HATUBE OF, AND WHEN PBOPEB. Every bill praying relief is, in reality, a bill of discovery, when it asks from the defendant an answer nnder oath or otherwise, as to all and singular the matters charged in the bill, and seeks from him a discovery of all snch matters, {a) But the kind of bills usually distinguished by that title, is a bill for the discovery of facts resting in the knowledge of the defendant, or of deeds, or writings, or other things in his cus- tody or power, and seeking no relief in consequence of the discovery, although it may pray for the stay of proceedings at law till the discovery is made. (J) Since the passage of laws in most of the states, providing that persons interested in the result of the suit shall not be disqualified as witnesses by reason thereof, a resort to bills of discovery is seldom necessary. Very little space will, there- fore, be here occupied in considering bills of this nature. If the student desires to pursue the subject more at length, see Hare on Discovery, 2 Story's Equity Jurisprudence, chap. 41, and other elementary works. A bill of discovery is resorted to when the evidence rests exclusively with the party called upon to disclose it. If there be other evidence, such a bill cannot be sustained ; and the (a) Story's Eq. PI. § 311 ; 2 Story's Eq. Juris. § 689. 1483 ; Mitf. Eq. PI. 63; Coop. Eq. PI. 58; 2 Barb. Oh. Pr. 101 ; Barton's Suit in Eq. 74. (b) Russell vs. Clark, 7 Cranch, 69 ; Duncan vs. Ingles, Breese, 277 Yates vs. Monroe, 13 DI. 212 ; SkotweU vs. Smith, 20 N. J. Eq. 79. 268 BILLS OF DISCOVEEY. Nature of, and "When Proper. complainant in the bill must aver and swear that the facts are known to no other person, (c) The theory and basis of a bill of discovery in eqnity, in aid of a defense in another suit, is that the court in which such other suit is pending has no means of compelling a discovery from the plaintiff therein, of facts material to the defense, {d) The defendant should file his bill of discovery betbre judg- ment has been rendered against him. He cannot go into equity for discovery, and relief against the judgment, after it has been rendered. («) A resort to a bill of discovery is always hazardous ; for if a party does not come up to the facts as the complainant has charged them to be, or they are denied, or toned down, the answer would, in many cases, be of little avail in a defense at law.(/) A discovery will not be compelled if the defendant claims his privilege, and declines to answer such allegations of the bill as may have a tendency to subject him to a penalty, for- feiture or criminal prosecution, {g) or would be in violation of professional confidence. (A) A party is not obliged to resort to a bill of discovery in the first instance. Should he do so, and fail in obtaining the facts sought, he would be precluded from filing an original bill, (*) The question whether he is entitled to a discovery against a person who is prosecuting him in an action at law, cannot be determined until he has filed his plea to such action divulging the character of his defense. (J) And if the demand for dis- (c) Vennum vs. Darns, 35 111. 568. (d) Heath vs. Brie B. B. Co. 9 Blatchf. 316. (e) Green vs. Massie, 21 Gratt. Va. 356 ; Laight vs. Morgan, 1 Johns. Cas. 439 ; 2 barb. Ch. Pr. 102, and cases there cited. (/) Vennvm vs. Davis, 35 111. 568 ; Lane vs. Stebbins, 9 Paige, 622. (g) Hayes vs. Caldwell, 5 GHlm. 33 ; IAndsley vs. James, 3 Cald. Tenn. 477 ; Northrop vs. Hatch, 6 Conn. 361 ; Skinner vs. Judson, 8 Conn. 528. (h) March vs. Davidson, 9 Paige, Ch. R. 580 j Welf. Eq. PI. 119, 123-127 ; United States Bank vs. Saline Bank, 1 Pet. 100 (t) Vennum vs. Davis, 35 111. 568. (j) Harris vs. Oa&raith, 43 111. 309. • BILLS OP DISCOVEBY. 869 Frame of Bill, etc. eovery is considered merely colorable, the court will refuse to take jurisdiction, (k) A court of chancery will compel a discovery in aid of a suit at law, where the leading circumstances rest in the knowledge of the defendant, whether the action be founded on contract or tort. (Z) The bill must state that the discovery sought is neces- sary to the defense, (m) If the plaintiff seeks to change the forms of litigation, and prays for relief as well as discovery, his bill must show a cause of manifest propriety in the court to retain the case, {n) Where a court of equity has obtained jurisdiction of a cause for the purpose of discovery, and the subject matter is proper for the consideration of a court of equity, it will dispose of the case finally, although the remedy at law is fully adequate had not the discovery been necessary, (o) SECTION n. FRAME AND FORM OF.. A bill of discovery should state the matter concerning which the discovery is sought, fully and precisely, the interest of the several parties in the subject, and the right of the complainant to the discovery. It must also show that the discovery is ma- terial, either to the prosecution or defense of an action which has been brought, or is about to be brought at law. If the bill is for discovery only, it is not necessary to aver that the party cannot otherwise establish his case at law ; but the rule is different where the bill seeks relief as an incident to the dis- (A) Jones vs. Brads/iaw, 16 Gratt. Va. 355. (I) Skinner vs. Judson, 8 Conn. 528 ; Peck vs. Ashley, 12 Met. 478 ; Ben- nett vs. Wolfolk, 15 Geo. 213. (to) Howell vs. Ashmore, 1 Stockt. N. J. 82 ; Turner vs. LHckerson, lb. 140 ; Bell vs. Pomeroy, 4 McLean, 57. (n) Brown vs. EdsaU, 1 Stockt. N. J. 256. (o) Chichester vs. Vass, 1 Mnnf. 98 ; Jenkins vs. Green, 1 A. K. Marsh. 463; Lynch vs.' Sumrall, Id. 468; Love vs. Braxton, Wythe, 58; Traip vs. Gould, 15 Maine, 82; Armstrong vs. Gilchrist, 2 Johns. Ch. R. 424 ; Hawley vs. Cramer, 4 Conn. 717 ; Gadsden vs. Lord, 1 Dessau. 208. 270 BILLS OF DISCOVERY.' Form of Bill. eovery. A bill of discovery, properly bo called, never prays any relief. Should such a bill contain a prayer for relief, a demurrer would lie according to the modern English practice, to the whole bill. The rule which is adopted by the supreme court of the United States, and most of the states, and which is in accordance with the old English practice, is more liberal, and allows the complainant, who is entitled either to relief or dis- covery, the benefit of that part of his bill which is good. "Where the bill seeks relief as consequent upon the discovery of a bond or other evidence of title, the. complainant must annex an affi- davit of its loss or destruction, (jp) \ A bill of discovery must allege, that the complainant expects to establish the truth of the facts alleged in the bill by the dis- covery sought in the bill from the defendant, (_) In a bill for discovery only the oath of the defendant cannot be waived as in other cases, (r) No. 10 If.. BUI of discovery to discover title in aid of a defense to an action of ejectment. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Tour orator, A. B., of, etc., respectfully represents unto your honor, that, etc. {Here set forth the matter concerning which the discovery is sought fully and concisely, the interests of the several parties in the subject, and the amvplainanfs right to the discovery.) Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. D., who is made party defendant to this bill, may upon his corporal oath full, true, direct and perfect answer make to all and singular the matter aforesaid, and more espe- cially that he may answer and set forth : I. Whether your orator is not now, and has not been, for several and how many years last past, and from what time in particular, seized in his demesne as of fee, or otherwise, and » (p) Barton's Suit in Eq. 74, 75 ; 2 Barb. Ch. Pr. 104, 105 ; March vs. Da- vidson, 9 Paige, Ch. B. 580 ; Story'9 Eq. PI. § 317-320. (_) Primmer vs. Patten, 32 111. 528 ; Zoll vs. OampbeU, 3 W.Va. 226. (c) Rev. Stat. (1874) 201; Rev. Stat. (1877) 18G. BILLS OF DISCOVEEY. 271 Form of BUI. how well entitled of, in or to the said premises hereinbefore particularly mentioned and described, or some, and what part thereof, or how otherwise? II. And whether the same were not purchased by your orator in the year , and when in particular, of and from the said E.D.? III. And whether the said premises were not duly con- veyed to yonr orator by the said E. D., by such indenture of lease and release, of such date respectively as aforesaid, or by some, and what other means in particular ? IV. And whether your orator did not, under and by vir- tue of such conveyance to hiin by the said E. D., enter into and upon, and has not ever since been in the actual possession and enjoyment of the said premises, or how otherwise ? V. And whether the said E. D. has not since departed this life, and when ? VI. And whether the said C. D. did not, upon the decease of the said E. I>., and by what means, obtain possession of, and has not now in his custody, possession or power, all, or most, or some,, and which of the title deeds, evidences, and writings of the said E. D., relating to the premises so pur- chased by your orator as aforesaid ? VII. And whether the same do not also relate to some, and what other estates, or how otherwise ? VIII. And whether the said C. D. has not brought such action of ejectment against your orator, and for such purpose as hereinbefore mentioned, and does not threaten and intend to proceed therein, without making any discovery of the several matters aforesaid, unless he shall be restrained therefrom as aforesaid, or how otherwise ? And that the said C. D. may also discover and set forth, in manner aforesaid, whether there is or are any, and what, outstanding term or terms of years, or other, and what, subsist- ing estate in said premises, prior to your orator's said estate and interest therein, which will defeat the title of your orator, and prevent a good defense at law to the said action, and in whom the same is or are vested ; and that he may also discover and set forth how he makes out and derives his pretended title and claim to the said premises so purchased by your orator as aforesaid, and the nature and particulars thereof? And that the said C. D. may make a full and true disclosure and discov- ery of the several matters aforesaid, to the end that your orator may be the better enabled to defend the said ejectment ; and that in the meantime, and until the said 0. D. shall have made such discovery as aforesaid, that he may be restrained, by the 272 BILLS OF DISCOVERY. Defenses to — Demurrer. order and injunction of this honorable court, from further proceedings in the said ejectment, and all further and other proceedings at law whatsover against your orator touching the several matters aforesaid, or any of them. May it please your honor, etc. {Prayer for summons, and also for injunction, sake, page 73.) SECTION m. DEFENSES TO. Defenses to a bill of discovery may be made either by a de- murrer, a plea or an answer. If the matter relied on by the defendant constitutes a defense to the relief or purpose sought by the bill, whether that relief be at law or in equity ; or if the defense be that the complainant has no right to equitable relief; or that neither the complainant nor defendant has any interest in the subject matter; or that the defendant is a oonafide pur- chaser for a valuable consideration without notice ; or that the bill does not declare a purpose for which courts of equity will compel a discovery ; or that the complainant is under some dis- ability ; in these, and in like cases, though the defense extends to the entire subject of the suit, it seems now settled that the objections must be taken by way of plea or demurrer. («) And it is a general rule, that, unless the defendant can spe- cifically protect himself by way of demurrer or plea, according to the nature of the case, he must put in an answer, (t) Demurrer. — Where the objection appears upon the face of the bill, like in all other pleadings, advantage may be taken of it by demurrer. And this, whether the objection applies to the whole of the bill, or to particular discoveries only, (u) Unless it appears clearly by the bill that the complainant is not entitled to the discovery he requires, or that the defendant ought not to be compelled to make it, a demurrer to the dis- (*) 2 Barb. Ch. Pr. 109 ; Story's Bq. PI. § 465. (t) Id. («) lb. ; Welf. Eq. PI. 181. BILLS OF DISCOVERY. 273 Defenses to — Demurrer. covery will not hold ; and the defendant, unless he can protect himself by a plea, must answer, (v) Where the bill is for discovery and relief, the defendant may, if he pleases, demur to the relief and answer to the- discovery. A demurrer which is good to the relief generally, defeats the recovery also, (w) But he cannot demur to the discovery and answer to the relief, (x) In other words, the defendant cannot demur to the discovery alone and not to the relief, when the discovery is merely incidental to the relief; for that would be to demur, not to the thing required, but to the. means by which it was to be obtained, (y) Where the discovery sought is not a mere incident to the relief prayed, it is doubtful whether a demurrer to the relief only would not be bad. (s) Where the sole object of the bill is to obtain a discovery, some ground of demurrer, which, if the bill prayed relief, would extend to discovery as well as relief, will not hold. Thus, a demurrer to a bill of discovery merely will not lie for want of equity or for want of parties ; for the complainant Beeks no decree ; nor because the bill is brought for the dis- covery of part of a matter, for that is merely a demurrer because the discovery would be insufficient, (a) Lord Redesdale thus classifies the causes of demurrer to a bill of discovery : First, that the case made by the bill is not such in which a court of equity assumes a jurisdiction to com- pel a discovery. Second, that the complainant has no interest in the subject, or no interest which entitles him to call on the defendant for a discovery. Third, that the defendant has no interest in the subject to entitle the complainant to insti- tute a suit against him, even for the purpose of discovery. («) WeUf. Eq. PL 131 ; Mitf. Eq. PI. 200 ; 2 Barb. Ch. Pr. 109. (w) Hodgkin vs. Long&en, 8 Yes. R. 3 ; Coop. Eq. PL 117 ; 2 Barb. Ch. B. 107. (x) Welf . Eq. PL 133 ; Morgan vs. Harris, 2 Bro. C. C. 124. (y) Deare vs. Attorney Gen. 1 Young & Col. 197, 205, 206; Coop. Eq. PL 117 ; Hare on Disc 290, 292; Warring vs. Mackreth, Forrest, Ex. Rep. 129 ; Morgan vs. Harris, 2 Bro. C. C. 124. (z) Angel vs. Angel, 1 Sim. 83, 93 ; Hare on Disc. 6 ; King vs. Henry, 9 Sim. 59 ; 2 Barb. Ch. Pr. 110. (a) Mitf. Eq. PI. 200 ; 2 Barb. Ch. Pr. 110. 18 274 BILLS OF DISCOVEEY. Defenses to — Forms of Demurrers — Plea. Fourth, although hoth complainant and defendant may have an interest in the subject, yet that there is not that privity of title between them which gives the complainant a right to the discovery required by his bill. Fifth, that the discovery, if obtained, cannot be material ; and, Sixth, that the situation of the defendant renders it improper for a court of equity to compel a discovery. (b) No. 105. Demurrer to a hill of discovery, where defendant has no interest. In- the : Court CD.) . Term, 18—. vs. > In Chancery. A. B. f The demurrer of C. D., defendant, to the bill of com- plaint of A. B., complainant. This defendant, etc., (Proceed as in No. 16, ante, page 108, to the asterisk *) that the complainant has not, in and by his said bill, stated or shown that this defendant has, or pre- tends to have, any right, title or interest in the matters and things complained of by the said bill, or any of them, or any right on the part of the complainant to call upon this defend- ant in a court of equity for a discovery of the said matters and . things, or any of them. And that for anything that appears to the contrary by the said bill, this defendant may be ex- amined as a witness in this suit. Wherefore, etc. (Conclude as in No. 16.) No. 106. Demurrer to a hill of discovery for want of privity. (Proceed as i/n the last form to the asterisk *) that the com- plainant has not, by his said bill, shown such privity of title between him and this defendant, or shown any such right or title as entitles him, in a court of equity, to the discovery from the defendant thereby sought. Wherefore, etc. (Conclude as in No. 16, ante, page 108.) Plea. — If the objection to a bill of discovery, does not appear upon the face of it, the defendant must bring it before the (6) Mitf. Eq. PI. 185 ; 2 Barb. Ch. Pr.'lll. BILLS OF DISCOVERY. 275 Defenses to — Plea — Form of Plea. court by plea, (c) And the grounds of objection to discovery which may be raised by plea are nearly the same as those which have just been mentioned as causes of demurrer. And some- times the situation of a defendant may render it improper for a court of equity to compel a discovery ; because it may sub- ject him to forfeiture, or pains and penalties; or criminal prosecution ; or be contrary to the confidence reposed in him as a counsel, attorney, or arbitrator ; or because he is a pur- chaser for a valuable consideration, without notice of complain- ant's title, (d) * To a bill of discovery for the purpose of proceeding at law, a plea of payment of the money demanded by the complainant does not lie. (e) So, when the bill is for an injunction to restrain the defendant from setting up at law an outstanding term, a plea of title to the whole bill is bad. (f) So, to a bill for a discovery of an agreement, with an allegation to prevent the operation of the statute ; the statute of frauds cannot be pleaded, (g) A plea of want of parties, does not lie to a bill of discovery merely. (A) But where relief is prayed, a plea of want of par- ties goes both to discovery and relief, (i) No. 107. Pica to a bill of discovery that action at law t having jurisdiction is pending, etc. (As in N~o. 28, ante, page 119, to the asterisk *, then pro- ceed,) for plea to so much and such part of the complainant's bill as seeks a discovery from this defendant, of, etc., this de- fendant pleads thereto, and for plea says, that long before the complainant's bill was filed in this court, and on, etc., the com- plainant commenced a suit in the court, against this (e) 2 Barb. Ch. PL 111. (d) 2 Barb. Ch. Pr. 112 ; Mitf. Eq. PI. 282 ; March vs. Davidson, 9 Paige, Ch. R 580 ; Hayes vs. Caldwell, 5 Gilm. 33. («) Hindman vs. Taylor, Dick. R. 651. (/) Gait vs. Osbaldeston. 5 Mad. R. 428. {g) Mitf. Eq. PI. 265-267 ; Cottington vs. Fletcher, 2 Atk. R. 156 ; Welt Eq. PI. 135; 2 Barb. Ch. Pr. 112. (A) Mitf. Eq. PL 280 ; Welf. Eq. PL 134; Beames' PL 274 (i) Id. ; Id. ; Plunket vs. Peuson, 2 Atk. R. 51. 276 BILLS OF DISCOVERY. Defenses to — Form of Pleas — Answer. defendant in respect of the matters as to which discovery is sought by the complainant's bill, and that such suit is still depending in the said court, which, as this defendant avers* is a court of competent jurisdiction to afford the discovery which the complainant seeks by his said bill. Therefore, this defend- ant pleads the same to the complainant's bill, and prays the judgment of this court whether it will hold plea upon and enforce this defendant to answer the complainant's said bill, for the cause aforesaid. No. 108. Plea to a biU of discovery that a discovery would compel defendant to betray confidence as solicitor. (Commence as in Wo. £8, ante, page 119.) This defendant, etc., (as in No. %8, ante, to the asterisk *,) as to so much of the said bill as prays that this defendant may discover whether, etc., this defendant pleads, and for plea says, that this defendant has no knowledge of the matters concern- ing which discovery is so prayed, or any of them, except in and by means of the confidence reposed in this defendant as solicitor, employed by E. F. in the complainant's bill named. Wherefore, etc. (Conclude as in No. 28.) Answer. — If the defendant does not think proper to defend himself from the discovery by demurrer or plea, he has been permitted by answer, to insist that he is not obliged to make the discovery. (J) i In this case the complainant may except to the defendant's answer as insufficient ; and upon the hearing of the exceptions it will be determined whether the defendant is or is not bound to make the discovery, (k) A defendant cannot demur to part and answer to a part of a bill of discovery ; (Z) as the rule is well settled, that if he submits to answer, he must answer fully, (m) There is no rule, however, preventing an answer from being accompanied by a plea or demurrer, (n) (j) Mitf. Eq. PI. 307 ; 2 Barb. Ch. Pr. 113. (&) Id. ; Id. ; 2 Ves. Jr. 87. (I) Jones vs. Strafford, 3 P. Wms. R. 79 ; Abraham vs. Hodgson, 2 Atk. E. 157 ; Dormer vs. Fortesque, 2 Atk. 282. (m) Hare on Disc. 251 ; Mazareddo vs. Maitland, 3 Mad. R. 72 ; Portarlr ington vs. Soidby, Sim. 28 ; Mitf. Eq. PI. 307, note h ; 11 Ves. 283. (») 2 Barb. Ch. Pr. 114. BILLS OP DISCOVEEY. 277 Defenses to — Answer — Practice, etc An answer to a bill of discovery is entitled to no higher consideration than the answer of a party's own witness upon the stand, and may be controverted in the same way, although he cannot impeach the party answering, by showing that he is unworthy of belief, (o) The practice of allowing exceptions to answers to bills of discovery to be settled on the trial of the action at law prevails in most of the states. If the answer is not strictly responsive, exception should be taken to it on the trial, and the court will exclude such parts of the answer as are exceptionable, (p) The entire answer, if responsive, should be received as evi- dence, and evidence should be given or withheld as circum- stances may justify, (j) And in answering, the defendant has a right to state all the circumstances connected with the mat- ter about which the discovery is sought, as well as that which makes for as against him. (r) Practice wpon, generally. — The case is never brought to a hearing upon a bill for discovery only, but as soon as the an- swer is perfected the defendant is entitled to move for costs. (s) But when the bill is for relief against several defendants, and for discovery against only one, he cannot make a motion for his costs until the hearing. The court will not take the labor of ascertaining whether under the prayer for general relief, some relief may not be given against him. (f) The general rule is, that the complainant in a- bill of dis- covery, upon obtaining it, pays the defendant his costs, (u) And costs are given against the complainant, as a matter of course, (o) Chambers vs. Warren, 13 111. 318 ; Story's Eq. PI. § 319, note 3 ; 3 Litt. R. 379 ; 8 Blackf. R. 35, 177 ; 8 Paige, Ch. R. 580. (p) Chambers vs. Warren, 13 111. 318 ; 11 Paige, Ch. R. 618 ; 2 Dan. Ch. Pr. 392 ; 4 Dana, 59 ; 5 Ohio, 174 ; 3 Eng. Ark. R. 356. (g) Chambers vs. Warren, 13 111. 318 ; 5 Ham. 283 ; Fant vs. MiUer, 17 Gratt. Va. R. 187. (r) Chambers vs. Warren, 13 HI. 318. (*) King vs. Clark, 3 Paige, Ch. R. 76. (t) Attorney General vs. Birch, 4 Mad. 178. («) Burnett vs. Sanders, 4 Johns. Ch. R. 504; MeElwee vs. Sutton, 1 Hill's Ch. R. 34; Coop. Eq. PI. 61. 278 BILLS OF DISCOVEEY. Practice upon, Generally. if the charges of the bill are denied, (v) But if the complain- ant, before filing his bill, asks a discovery from the defendant, who refuses it, whereby the complainant is compelled to come into equity, the defendant will not be. allowed costs, (w) When the answer is obtained, and the complainant has secured all the relief asked, or which the court could give, the bare dissolution of the injunction — which must follow — is equivalent to an order dismissing the bill, making a final dispo- sition of the suit, (x) . («) King vs. Clark, 3 Paige, Ch. R. 76. (w) McElwee vs. Sutton, 1 Hill's Ch. R. 34 ; King vs. Clark, 3 Paige, Ch. R. 76 ; Burnett vs. Sanders, 4 Johns. Ch. R. 504. (a) Taten vs. Monroe, 13 111. 212 ; Russell vs. Clark, 7 Cranch, 69 ; Avery vs. Holland, 2 Overton, 71 ; Burnett vs. Sanders, 3 Paige, Ch. R. 76. CHAPTER XXII. BILL OK INTEKPLEADEE. Section 1. Nature of, and When Propbb. 2. Form op Bill. 3. Defenses to. 4. hearing and decree. SECTION I. NATURE OF, AND WHEN PEOPEE. Nature of. — Where two or more persons claim the same fund or property in different titles, whether legal or equitable, from another, who is in the position of an innocent-etakeholder, standing indifferent between them, the latter, if molested by a suit actually brought, or threatened, may file his bill of inter- pleader, for the purpose of compelling the claimants to litigate their rights at their own expense, and thus protect himself from all vexation and responsibility, (a) A bill of interpleader lies only where two or more persons claim the same debt or duty from the complainant, by different or separate interests, (i) It is proper where suits are threat- ened ; (c) but will not lie after a judgment at law on the claim in favor of either or both of the claimants, (d) It is sufficient (a) Barton's Suit in Eq. 68 ; Story's Eq. PI. § 291 ; Hinde, Pr. 20 ; Coop. Eq. PI. 43 ; Mitf . Eq. PL 32 ; Cody vs. Porter, 55 Barb. N. Y. 463 ; McHenry vs. Hazard, 45 N. Y. 580 ; Bedell va.Hoffman.2 Paige, Ch. R. 199 ; Atkinson vs. Manks, 1 Cowen, 691; Cogswell vs. Armstrong, 77 111. 139; Newhall vs. Kastens, 70 lil. 156; Heath vs. Hnrtets, 73 111. 353. (6) Hayes vs. Johnson, 4 Ala. 267 ; Ghreen vs. Mumford, 4 E. I. 313 ; Sher- man vs. Partridge, 4 Duer, 646 ; Adams vs. Dixon, 19 Geo. 513 ; Farley vs. Blood, 10 Foster, 354. (e) Tarborough vs. Thompson, 3 S. & M. 291 ; Hathoway vs. Foy, 40 Mo. 540. (d) Id. 280 BILL OF INTERPLEADER Nature of, and When Proper. if, of the two adverse claims against the complainants, one of the claims i& legal and the other equitable, (e) The bill must show that the complainant is a mere state- holder, having no personal interest in the controversy ; (/") it should not set out the facts on which the title of the claimants respectively is based, but ought only to state in a general way the nature of their claims, (g) A party who is taxed in two different towns for the same property, which is only liable to be taxed once, and where it is doubtful to which town the right to tax belongs, may file a bill of interpleader to compel the collectors of the tax to settle the right between themselves. (A) It is not necessary for the holder of the fund to file a bill of interpleader, when he is already a party to a suit in chancery, brought by one claimant against the other, to settle the right to the fund. In such case, the holder of the fund should apply, by petition in that suit, for leave to pay the money into court, to abide the event of the litigation between the other parties, (i) To maintain a bill of interpleader the complainant must be in the possession of the goods or thing in controversy. (J) But in Connecticut it has been held that if the complainant has paid over money to one of the defendants under a claim of right to which he was obliged to submit, this would not pre- clude him from sustaining the bill, (k) So, where a tenant has paid rent to one of the claimants, in ignorance that the title (e) Schyler vs. Pelissier, 3 Edw. Ch. 191 ; Richards vs. Salter, 9 Johns. Ch. R. 445 ; Yates vs. Tisdale, 3 Edw. Ch. 71. (/) Cody vs. Porter, 55 Barb. N. T. 463 ; Burton vs. Black, 32 Geo. R. 53 ; Hathoway vs. Foy, 40 Mo. 540 ; Temple vs. Lawson, 19 Ark. 148. (g) Shaw vs. Coster, 8 Paige, Ch. 339 ; Losier vs. Van Saun, 2 Green's Ch. R. 325. (h) M. & B. B. B. Co. vs. Chile, 4 Paige, Ch. R. 384 ; Thompson vs. EboeU, Hopk. Ch. R. 272. (t) Badeau vs. Sogers, 2 Paige, Ch. R. 209. (j) 2 Bark Ch. Pr. 118 ; Burnett vs. Anderson, 1 Mer. 405 ; Martin vs. MoJberryj 1 Dev. Ch. R. 169. (*) Nash vs. Smith, 6 Conn. R. 421. BILL OF INTEEPLEADEE. 281 Nature of, and When Proper. was disputed, he has been allowed to compel the parties to interplead. (Z) A bill of interpleader will not lie if the complainant himself claims any interest in the property in dispute, (m) Nor where the complainant denies any liability to either of the defend- ants, and neither admits that anything is due to one of them, (n) nor offers to bring the amount in dispute into court, (o) It cannot be sustained where the complainant is obliged to admit that, as to either of defendants, he is a wrong-doer. (j>) Nor where it appears, fsom the bill itself, that there can be no doubt as to which of the defendants is entitled to the fund or duty claimed, (j) Nor by a sheriff against several creditors, where a controversy arises as to the application of the money in his hands, derived from a sale of a debtor's property on exe- cution, (r) Nor can a sheriff, who has seized, on execution, property claimed by a stranger, file a bill against the claimant and the parties to the suit, to settle the question of property, (s) And a mere agent, having a fund in his hands, as such, which is claimed by a third person, cannot file a bill of interpleader ; but if the claimant claims title derived from the principal, the bill will lie. (f) Where the case presented by the bill of interpleader is not a claim by different parties to the same fund or assets in the hands of the complainant, for which he has a right to ask them to discharge him, and interplead between themselves, relief will be denied, (u) 'And where no right to compel the defend- (?) Jew vs. Wood, 1 Craig & Phil. 185; 2 Barb. Ch. Pr. 118. (»») Cody vs. Potter, 55 Barb. N. Y. 463; Long vs. Barker, 85 111. 431; Cogswell vs. Armstrong, 77 111. 139; Alley vs. Supervisors, 76 111. 101; Hell- man vs. Schneider, 75 111. 422. (m) 45 Barb. N. T. E. 657 ; 42 N. H. E. 78 ; 2 Story's Bq. PI. § 292. (o) lb. ; lb. ; McGarrah vs. Prather, 1 Blackf. Ind. 299. (p) Shorn vs. Coster, 8 Paige, Ch. E. 339 ; Quinn vs. Green, 1 Ired. Ch. B. 229. (q) M. & H. B. B. Co. vs. ClMte, 4 Paige, Ch. E. 384. (r) 42 N. H. Eep. 78 ; Shorn vs. Coster, 8 Paige, Ch. E. 339. (<) Quinn, vs. Green, 1 Ired. Ch. E. 229 ; Quinn vs. Patton, 2 Ired. Ch. 48. (t) Gibson vs. Golthwaite, 7 Ala. B. 281. (w) Leddle vs. Starr, 20 N. J. Eq. E. 274 ; Haseltine vs. Brickey. 16 Qratt. Va. 116 ; Tyns vs. Bust, 37 Geo. 574; Dunaher vs. Prentiss, 22 Wis. 311; 4 B. I. Eep. 313. 282 BILL OF INTERPLEADER. Nature of, and When Proper. ants to interplead, whatever rights they may claim, each defend- ant may demur, (v) To maintain a bill of interpleader, it is necessary that the complainant should he uncertain to whom the right belongs, (w) And it must be shown that there are persons in esse capable of interpleading, and setting up opposite claims, (x) Bills of interpleader do not ordinarily lie except in cases of privity of some sort between all the parties — such as privity of estate, or title, or contract — and where the claim is all of the same nature ; for where the claimants assert their rights under adverse titles, and not in privity, and where their claims are of different natures, the bill cannot be maintained, (y) Thus, a tenant liable to pay rent, may file a bill of interpleader, where there are several persons claiming title to it in privity of con- tract, or of tenure, to compel them to ascertain to whom it is properly payable, (s) But if a mere stranger should set up a claim to the rent by a title paramount, and not in privity of con- tract or tenure; or a claim of a different nature — such as a claim to mesne profits in virtue of his title paramount — no bill of interpleader would lie on behalf of the tenant ; for the debt or duty is not of the same nature, (a) But if a person who has a legal demand for a sum of money assigns his interest, the debtor may compel the assignor and assignee to interplead. (&) So an auctioneer may maintain a bill of interpleader between a vendor and purchaser, who both claim the deposit money at a sale ; he being deemed the agent for both parties, (c) (b) Well Bq. PI. 182, 153 ; 2 Barb. Ch. Pr. 118. ' (w) 2 Barb. Ch. Pr. 118 ; Well Eq. PI. 152 ; Barton's Suit in Eq, 69 ; East India Co. vs. Edwards, 18 Ves. 377. (x) Coop. Eq. PI. 46; Story's Eq. PI. § 295; Metcalf vs. Seroey, 1 Ves. 248. (y) Coop. Eq. PI. 48 ; Mitf . Eq. PI. 142 ; Dungey vs. Angove, 2 Ves. Jr. 304. {z) Welf. Eq. PI. 152; Story's Eq. PI. § 239; LowndUe vs. Comfort, 18 Ves. 298 ; Langston vs. Baylston, 2 Ves. Jr. 101. (a) Story's Eq. PI. § 239 ; 2 Barb. Ch. Pr. 119 ; Welf. Eq. PI. 153 ; Clark vs. Byne, 13 Ves. 383, 386 ; Lowe vs. Richardson, 3 Mad. 277. (6) East India Co. vs. Edwards, 18 Ves. R. 377. . and E. F., who are made parties defendant to this bill, may be required to make full and direct answers to the same ; and that the defendants may severally set forth to which of them the said sum of does of right belong, and is payable, and how in particular they make out their claim thereto ; and that the defendants may interplead, and settle and adjust their said demands between themselves ; your orator being willing and desirous, and agreeing, that the said sum may be paid to such of them to whom the same shall, in the judgment of the court, appear of right to belong ; and that your orator may be at liberty to bring and pay the said sum of dollars into this honorable court, which your orator hereby offers to do, for the benefit of such of the defendants who shall appear to be entitled thereto, and subject to the further order of the court ; and that the defendant, E. F., may be restrained, by the injunction of this court, from proceeding against your orator in the said action at law for the purchase money of said property, and that all the defendants may be restrained from commencing any action or actions against your orator for the recovery of the said sum of dollars, or touch- ing any matters or things aforesaid ; and that the said C. D. may be decreed to deliver the said promissory note to your orator to be canceled ; and that your orator may have such other and farther relief in the premises as equity may require, and to your honor shall seem meet. May it please your honor, etc. (Pray process and injunc- tion, ante, page 73, and add affidavit as follows :) No. 110. Affidavit to he annexed to hill of interpleader. State of I > ss. County of — A. B., of, etc., on oath states, that he lias exhibited his bill ■ of interpleader against the defendants C. D. and E. F., named in the foregoing bill, without any fraud or collusion between 286 BILL OF INTERPLEADER. Defenses to — Demurrer. him and the said defendants, or any or either of them ; and has not exhibited his said bill at the request of the said defendants, or either of them ; and further states, that he has exhibited his said bill with no other intent but to avoid being sued or mo- lested by the said defendants, who are proceeding or threaten to proceed at law for the recovery of the funds mentioned in B aid bill. A. B. Subscribed, etc. SECTION III. DEFENSES TO. Demurrer. — If the bill does not show a right to compel the defendants to interplead, a demurrer lies, (n) And if the bill does not show that each of the conflicting parties claims a right, both the defendants may demur ; one, because the bill shows no claim of right in him ; the other, because the bill showing no claim of right in the co-defendant, shows no cause of interpleader, (o) And the want of the affidavit that there is not collusion is clearly a ground for demurrer, (p) Whenever an objection to a bill of interpleader appears upon its face, such qbjection should be raised by demurrer. For if the defendants, instead of demurring, put in an answer insisting that the bill is improperly filed, they will only be allowed, upon the dismissal of the bill, the costs to which they would have been entitled upon the allowance of a demurrer, (y) If the controversy, is concerning a sum of money, the bill must offer to bring it into court, or it will be demurrable, (r) (n) Mitf. Eq. PI. 142; Welf. Eq. PI. 156; Story's Eq. PI. § 292. (o) Id. lb. 2 Story's Eq. Juris. § 821 ; Shorn vs. Coster, 8 Paige, Ch. B. 339 ; Cochrane vs. O'Brien, 2 Jones & La. T. 380. (p) Metcalfvs. Harvey, 1 Ves. 248 ; Shaw vs. Chester, 2 Edw. Ch. E. 405; Qibson vs. Ooldthwaite, 7 Ala. 281. (q) Shaw vs. Coster, 8 Paige, Ch. R. 339 ; 2 Barb. Ch. Pr. 123. (r) McOarrah vs PratJier, 1 Blackf. 299 ; Shaw vs. Chester, 2 Edw. Ch. 405 ; but see Nash vs. Smith, 6 Conn. 421 ; Coop. Eq. PI. 49 ; Barton's Suit in Eq. 47, note 1. BILL OF INTERPLEADER. 287 Defenses to — Forms of Demurrer — Answer. No. 111. Demurrer to bill of interpleader, for want of affidavit of non-collusion. (As in No. 16, ante, page 108, to the asterisk (*_,) and then proceed) that although the complainant's said bill is on the face thereof a bill of interpleader, and prays that this defendant and the other defendant thereto may interplead together con- cerning the matters therein mentioned, and may be restrained by injunction from proceedings at law against the complainant touching such matters, yet the complainant has not annexed an affidavit to his said bill that he does not collude concerning such matters with any of the defendants thereto, which affida- vit ought, according to the rules of this honorable court as this defendant is advised, to have been made and annexed to the said bill. Wherefore, etc. (Conclude as in No. 16.) No. 112. Demurrer to bUl w of interpleader for not showing any claim of right in defendant. (As in No. 16, ante, page 108, to the asterisk *, and then) That the complainant has not, in and by the said bill of inter- pleader, shown any claim or right, title or interest whatsoever, in this defendant, in or to the said , in the said bill par- ticularly mentioned and described, in respect whereof this defendant ought to be compelled to interplead with the E. F. in the said bill named, the other defendant thereto. Wherefore, etc. (Conclude as in No. 16.) No. 113. Demurrer to Mil of interpleader, for not showing •any right in complainant to compel defendants to inter- plead. (As in No. 16, ante, page 108, to the asterisk *, and then) That the complainant has not, in and by his said bill, shown any right or title whatsoever, to compel this defendant and E. F. the other defendant to the said bill, to interplead. Wherefore, etc. (Conclude as in No. 16.) Answer. — The defendant may also put in an answer ad- mitting or denying the facts stated in the bill. If the defend- ants, or either of them, deny the allegations in the bill, or set up distinct facts in bar of the suit, the complainant must 288 BILL OF INTERPLEADER. Defenses to — Answer — Injunction, etc. reply to the answer, and close the proofs, in the usual manner, before he can bring his cause to a hearing, (s) If one of the defendants, in a bill of interpleader, in his answer, makes a claim against the complainant beyond the amount admitted to be due and paid into court, and which is not claimed by the other defendant, he will be permitted to proceed at law to establish his right to that part of his de- mand which is not in controversy with the other defendant. (£) Where the facts stated in the bill are admitted in the answer, and no new facts are set up in bar of the suit, the cause, upon a replication being filed, is set down for a decree to interplead, before the proofs are taken as between the defendants, and the complainant is dismissed with his costs up to that time, paid out of the fond, (u) It is said, however, that it is not usual for the complainant, in such cases, to file a replication, although it is admissible for him to do so. (v) Injimciion, etc. — Until the complainant has brought the money into court, he cannot proceed compulsorily by injunc- tion, (w) The common order for an injunction upon a bill of interpleader is, that it issues upon the complainant paying the money into court. This is a condition precedent, and an order for an injunction not containing it will be discharged, .(a?) The injunction on an interpleading bill stays all proceed- ings, {y) It may be moved for at once on payment of the money into court, and before the time for answering has expired, (s) («) 2 Barb. Ch. Pr. 123 ; City Bank vs. Bangs, 2 Paige, Ch. 570. (t) City Bank vs. Bangs, 2 Paige, Ch. 570. (u) City Bank vs. Bangs, 3 Paige, Ch. 570 ; Leonard vs. Jamison, 2 Edw. Ch. 136. (b) Yates vs. Tisdale, 3 Edw. Ch. 71 ; see Atkinson vs. Hanks, 1. Cow. 691. (a>) Surry vs. Waltham, 2 Anst. 539, note ; Meux vs. Bell, 6 Sims. 175 ; Mohawk & Hudson B. B. Go. vs. Clute, 4 Paige, Ch. R. 384 ; Shaw vs. Ches- ter, 2 Edw. Ch. R. 405. (x) Sieveking vs. Behrens, 2 My. & Craig, 581 ; Welf. Eq. PI. 156 ; 2 Barb. Ch. Pr. 123. (y) Warrington vs. Wheatstone, Jacob, 205. (z) Id. Vieary vs. Widger, 1 Sim 15. BILL OF INTEKPLEADEB. 289 . t : ___ Form of Order for Injunction — Taking Bill as Confessed. ( Afo. 111^. Order for injunction on bill of interpleader. {Caption, and title of cause as in No. 79, ante, page 198.) On filing bill of interpleader in this cause, duly verified, and an affidavit of non-collusion, it is ordered that an injunction issue pursuant to the prayer of said bill, upon the complainant paying into the hands of the register (or clerk) of this court, the sum of dollars mentioned in the said bill. Taking bill as confessed. — If one of the defendants does not appear, the bill may be taken as confessed as to him. (a) And where this is done, if such defendant is an absentee, the other defendant who appears, will not be entitled to the possession of the fund until the expiration of the time limited by the statute for the absent defendant to appear ; unless he gives security to repay the money in case the absent defendant appears and estab- lishes his right, (b) If a defendant permits a bill of interpleader to be taken as confessed against him, it is an admission that, as to him; the bill was properly filed, and that he has made an improper claim against the fond, (c) Where one of the defendants is out of the jurisdiction, the complainant is bound to bring him within the jurisdiction in a reasonable time ; and if he omits to do so, the other defendant is, upon indemnifying the complainant against those out ot the jurisdiction, entitled to the thing in dispute. If the com- plainant has used due diligence to bring the party within the jurisdiction, the court will not permit such party afterwards to proceed at law. (d) The court will not actively interfere to dispose of a fund, except in favor of one who appears, either from proof or a pro confesso, to be best entitled. () Atkinson vs. Monks, 1 Cow. 691. BILL OF INTERPLEADER. 293 Form of Decree, etc And upon snch reference, either party is to be at liberty to summons witnesses and proceed before said master in such manner as said master shall direct ; and that the solicitor of each defendant have notice of all proceedings before the said master. And it is further ordered, adjudged, and decreed, that the complainant be dismissed with his costs of this suit up to this time, to be taxed, to be paid out of the said fund in court. And this court reserves the consideration of all questions of costs as between the defendants, and all other questions and directions, until the coming in of the master's report ; but with liberty to either party to apply for such other instructions or directions to the master as may be necessary or proper, pending the reference, (w) (w) See Oity Bank vs. Bangs, 2 Paige, Ch. K. 573 ; Seat on on Decrees, 839. CHAPTER XXIII. BILLS AND PETITIONS TO PERPETUATE TESTIMONY. Section 1. Nature op the Proceedings. 2. Frame of a Bill to Perpetuate Testimony 3. Defenses, and Proceedings. 4. Petition to Perpetuate Testimony. SECTION I. NATTJEE OF THE PROCEEDINGS. A bill to perpetuate testimony is used where there is reason to fear that the evidence necessary to establish facts, which will probably become the subject of controversy at a future period, may become lost by the death, or absence from the country of a material witness, (a) But such bills will not generally be entertained for the purpose of being used upon a future occa- sion, unless where it is absolutely necessary to prevent a failure of justice, (b) If it be possible that the matter in question can, by the party who files the bill, be made the subject of imme- diate judicial investigation, no such is entertained, (o) SECTION II. FEAME OF A BILL TO PERPETUATE TESTIMONY. The bill should state all the material facts which are neces- sary to maintain the jurisdiction. It must, in the first -place, state the subject matter, touching which the complainant is desirous of 'giving evidence, (d) Thus, for example, if the (a) Barton's Suit in Eq. 73 ; Story's Eq. PI. § 300 ; Welf. Eq. PI. 139 ; 2 Barb. Ch. Pr. 136 ; 1 Coop. Eq. PI. 52; Mitf. Eq. PI. 148. (b) Bellamy vs. Jones, 8 Ves. 31 ; Shelby vs. , 13 Ves. 56 ; see also Angell vs. Angell, 1 Sim. & Stu. 89. (c) Van Hey. Eq. Drafts. 358. () It should also pray the proper process, but it should not pray that the defendant may abide such order and decree as the court shall think proper to make, for that will turn it into a bill for relief, which is inconsistent with the nature of a bill (f) 1 Mitf. Eq. PL 52, 148; North vs. Gray, 1 Dick. R. 14, 55; Ch. Pr. 531 ; Story's Eq. PI. § 303 ; AngeU vs. AngeU, 1 Sim. & Stu. 83. (&) Coop. Eq. PL 53; Wyatt, Pr.Reg. 74; CannvB. Conn, 1 P. Wms.568. ©' Mitf. Eq. PL 52 ; Story's Eq. PL § 303 ; 1 Sim. & Stu. 93 ; Mtzhugh vs. Lee, Amb. 05. (m) Story's Eq. PL § 303 ; see Pearson vs. Ward, 1 Cox, 177. (n) Earl of Suffolk vs. Green, 1 Atk. R. 450 ; 2 Barb. Ch. Pr. 141 ; Mitf. Eq. PL 52, 150 ; Story's Eq. PL § 304 ; Ph&Hps vs. Oarew, 1 P. Wms. R. 117 ; Shirley vs. Ferrers, 3 P. Wms. R. 77. (o) 2 Barb. Ch. Pr. 141. (p) Mitf. Eq. PL 51 ; Story's Eq. PL § 306 ; 2 Barb. Ch. Pr. 141 ; Coop. Eq. PL 53. PEKPETUATION OF TESTIMONY. 297 Form of Bill, etc. to perpetuate testimony, (j) If the bill should pray relief, it will be demurrable, and may be dismissed for this cause, {r) Care should be taken not to mix up in the bill matters which may require very different decretal orders as to the pub- lication of the testimony, otherwise it will be demurrable. («) JFo. 116. BUI to perpetuate tesUmony. To the Honorable , Judge of the . Court of the County of , in the State of , In Chancery sitting : Tour orator, A. B., of, etc., respectfully represents unto your honor, that one C. D., late of, etc., was in his lifetime, and at the time of his death, seized in fee simple of the following de- scribed real property, to wit : {Sere insert description ;) and being of sound mind and memory, made his last will and testament in writing, which was duly executed and attested by E. F. and G. H., of, etc., two credible persons, which said will, with the attestation thereof, is in the words and figures following, to-wit : {Here set forth copy of the will, etc. ;) as by the said will, when produced iu court, will more fully appear. Tour orator further represents that afterwards, on, etc., the said C. D. departed this life, without revoking or altering his said will, or any part thereof; whereupon your orator by virtue of the said will, became entitled in fee simple to all of the said described premises, subject to the payment of so much of the debts and funeral expenses of the said C. D. as his personal estate may fall short of paying ; and your orator accordingly, soon after the death of the said C. D. entered in-to possession of the said premises, and now has the exclusive use and control of the same, with the rents and profits thereof. And your orator well hoped that he and his heirs and assigns would have been permitted to enjoy the same quietly, without any inter- ruption from any person whomsoever. Bnt now so it is, may it please your honor, that E. D., of, etc., the defendant herein- after named, who claims to be a brother and heir at law of the (q) Rose vs. OanneU, 3 Atk. R. 439 ; Vaugkan vs. Fitzgerald, 1 Sch. & Lei 316 ; Jerome vs. Jerome, 5 Conn. R. 352 ; Coop. Eq. PI. 52 ; Story's Eq PI. § 306. (r) Dalton vs. Thompson, 1 Dick. R. 98 ; Story's Eq. PI. § 306 ; 2 Barb. Ch. Pr. 142. (*) Dew vs. Clark, 1 Sim. & Stu. R. 108 ; Story's Eq. PI. § 306 ; 2 Barb. Ch. Pr. 142 ; Welf. Eq. PI. 140. 298 PERPETUATION OF TESTIMONY. Form of Bill — Defenses, and Proceedings. said C. D., pretends that the said C. D. did not make and exe- cute such last will and testament in writing, or that he was not of sound mind and memory at the time of the execution there- of, or that the same was not execitted in the form and manner required by law ; and therefore he insists that your orator has no right or title to the said premises, or any part of the same, but that on the death of the said C. D. the same descended unto the said E. D., as heir at law of the said C. D. Whereas your orator charges the contrary of such pretenses to be true. Yet the said E. D. revises to contest the validity of the said will during the lifetime of the subscribing witnesses thereto, and he threatens that he will hereafter dispute the validity of the said will when all the subscribing witnesses are dead, or. gone out of the country, whereby your orator and his heirs and assigns will be deprived of the benefit of their testimony. Your orator further represents, that the said E. F. and G. H., the subscribing witnesses to the said last will and testament, are both aged and infirm, both being above the age of seventy years, and are not likely long to live, and your orator is in danger of being deprived of the benefit of their testimony in relation to the execution of said will, and the state of the mind and memory of the said C. D. deceased. . Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said E. D., who is made a party defendant to this bill, may be 'required to make full and direct answer to the same, and show why your orator should not have the testimony of the said witnesses E. F. and G. H. perpetuated ; and that your orator • may be at liberty to examine the said witnesses with respect to the execution and attestation of the said will, and the sanity of mind of the said C. D. at the time of the making of the same, so that their testimony may be perpetuated and pre- served. May it please your honor, etc. (Pray process as in Wo. 85, ante, page %09, and add affidavit, as in Wo. 118, post, 301.) SECTION III. DEFENSES, AND PK0CEEDESTG8. The defense to a bill to perpetuate testimony is the same as in other cases, by demurrer, plea or answer, according to the nature of the case. To a bill to prove a will, and to perpetuate testimony, the defendant may plead that he is a purchaser PERPETUATION OF TESTIMONY. 299 Defenses to Bill — Demurrer — Answer. without notice of the will, and insist that if the complainant has a title, he may immediately proceed at law. (i) Demurrer.— A demurrer will seldom lie to a hill of this nature, (u) But if it clearly appears that the jurisdiction does not arise upon the case made by the bill, a demurrer will hold, (v) As where specific allegations of the facts upon which the com- plainant claims the aid of the court are not made by the bill, (w) So if a bill prays relief it will be demurrable, {x) But it has been held that where relief and discovery prayed by the bill were both demurrable," the defendant could not demur to so much of the bill as sought to perpetuate testimony, (y) If the bill contains matters which may require very different decretal orders as to the publication of the testimony, it will be liable to demurrer, (s) Answer. — An answer may be filed as in other cases. The complainant compels the defendant to answer, and the suit is proceeded with in the usual way, by filing a replication and issuing a commission for the examination of witnesses, (a) If the cause should be improperly brought to a hearing, it will be dismissed. But the depositions taken will still be used as evidence, even though the bill is dismissed. (5) A bill to perpetuate testimony is never brought to a hear- ing- ( In Chancery sitting : Tour orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., C. D., of, etc., the defendant hereinafter named, filed his bill of complaint in this honorable court against your orator, thereby praying, etc., (Here state the prayer of the bill;) and your orator, being duly served with process, appeared and put in his answer thereto, to which answer the said C. D. filed a replication ; and issue being thus loined, testimony was taken on both sides, and the proofs closed ; whereupon the said cause was set down for hearing, as by the said bill, and other pleadings and proceedings in the said cause, now remaining as of record in this honorable court, reference being thereto had, will more fully appear. Your orator further represents, that the said cause has not yet been heard; and on, etc., the said CD., by a certain writ- ing of release, of that date, did remise, release and forever quit- claim ,unto your orator, his heirs, executors and administrators, CROSS-BILLS. 311 Forma of. the several matters and things complained of in and by the said bill of the said C. D., and in question in the said suit, and each and every of them, and of all sums of money then due and owing, or thereafter to become due and owing, together with all, and all manner of actions, causes of actions, suits, and demands whatsoever, both at law and in equity, or otherwise howsoever, which he the said C. D. then had, or which he.should or might at any time or times thereafter have, claim, allege, or demand, against your orator, for, or by reason or means of any matter, cause or thing whatsoever, from the beginning of the world to the day of the date of the said deed or writing of release ; as by the said, release, reference thereunto being had, and a copy of the same hereto attached, marked " Exhibit A," and made a part of this bill, will more fully appear. And your orator hoped that in consequence of the said release, the said C. D. would not have proceeded in the said suit against your orator ; but the said 0. D., notwithstanding the said release, threatens and intends to proceed in the said suit, and to bring the same on for hearing in due course ; and he pretends that no such release was ever executed by him, or if so, that the same was obtained by fraud and surprise, and therefore void. Whereas your orator charges that the same was, in every respect, fairly and properly obtained by your orator, and duly executed by the said C. V. And your orator further represents, that under the circum- stances aforesaid, he is unable to put the said release in issue, or to use the same as a plea in bar of the said suit. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. D., who is made a party defendant to this cross-bill, may be required to make full and direct answer to the same, but not under oath, the answer under oath being hereby waived; and that the said release may be established and declared by this honorable court a sufficient bar to any further proceedings by the'said C. D. in the said suit; and that the bill of the said C. D. therein, may, under the circumstances, be forthwith dis- missed with costs ; and that your orator may have such other and further relief in the premises as equity may require and to your honor shall seem meet. (If new parties are added, pray process as in No. 85, ante, page 209, and attach "Exhibit A") 312 CKOSS-BILLS. When to be Filed. SECTION HL WHEN TO BE FILED. The proper time for filing a cross-bill, when such a bill is necessary, is at the time of putting in the answer to the original bill, and before issue is joined by, the filing of a repli- cation, (v) As the matters of defense upon which a cross-bill is founded must be stated in the answer to the original bill, as well as in the cross-bill, it can seldom be necessary to delay the filing of the cross-bill till after the original cause is at issue, (w) But the rule that a cross-bill should be filed at the same time with the answer, does not apply to such a bill by one defendant against a co-defendant, for the reason that, until the answers are filed, neither defendant can know what defense the other will set up. (x) A defendant desiring, to file a cross-bill should do so without delay, and have the same at issue, if practicable, so as to be heard with the original bill. If he desires further time, he must seek it as a matter of indulgence, (y) The proceedings in the original suit will not be delayed, unless on the special order of court, founded upon notice of the application to the adverse party, (s) The defendant cannot claim, as a matter of right, a continu- ance, where the original cause is ripe for hearing, by filing a cross-bill, and having the same answered, without showing sufficient cause for delay, (a) To entitle him to a delay of the original proceedings, the cross-bill must be sworn to positively, (v) Irving vs. BeKay, 10 Paige, Ch. E. 319 ; Wiley vs. Platter, 17 111. 540. (w) 2 Barb. Ch. Pr. 129. (as) Vanderveer vs. Eolcotrib, 21 N. J. Eq. 105 ; see Berryman vs. Ghrahwm, lb. 370. (y) Beauehamp vs. Putman, 34 111. 378 ; Beed vs. Kempf, 16 111. 445 ; Youngs vs. Overseers etc. 2 Green, N. J. 521. z) Cartwright vs. Clark, 4 Met. 104 ; Field vs. Schieffelin, 7 Johns. Ch. 250 ; White vs. BvXoid, 2 Paige, Ch. 164 ; Coleman vs. Moore, 3 Litt. 355 ; • Beauehamp vs. Putman, 34 111. 378 ('() V/iley vs. Plotter. 17 111. :>;i$ ; see Reed vs. Kempf, 1G 111. 448. CROSS-BILLS. 313 Leave to File — Process upon. either by the complainant thereto or by the person from whom his information of the facts was derived. (J) The court itself will sometimes, in its discretion, where it appears that the suit is insufficient to bring before the court the rights of all the parties, and the matters necessary to a just determination of the cause, at the hearing, direct a cross-bill to be filed, (c) Leave toJUe. — A defendant cannot file a cross-bill before the original bill is answered, (d) And then only upon leave ob- tained from the court for that purpose, (e) In Illinois it is held that the filing of a cross-bill is a matter of right and requires no leave, but it does not necessarily stay the original cause. (^) SECTION IV. PROCESS UPON. By the statute of Illinois, it is provided that " where it is necessary for the defendant to bring a new party before the court, he shall state it in his cross-bill ; and a summons shall be issued, and other proceedings had, as in the case of other defendants." (g) This was the rule independent of such statute and before its passage. (A) As against the parties to the orig- inal bill, no process is necessary. {€) In Kentucky it is held that process must issue on the filing of the cross-bill, or the defendants are not bound to notice it. (J) (6) Talmage vs. PeU, 9 Paige, Ch. 410 ; Irving vs. DeKay, 10 Paige, Ch.319. ' (c) Field vs. Schieffelin, 7 Johns. Ch. 250 ; Latouche vs. Dunsaney, 1 Sch. & Let 137 ; Story's Eq. PI. § 396 ; Mitf. Eq. PI. 82, 83. (d) AUen vs. AUen, Hemp. 58. (e) Branson vs. LaCrosse & Milwaukee R. R. Co. 2 Wall. TJ. S. 283. (/) Beauchamp vs. Putman, 34 111. 378 ; Jones vs. Smith, 14 111. 229; W. U. Teleg. Co. vs. P. & A. Teleg. Co. 49 111. 90. {g) Rev. Stat. (1874) 202; Rev. Stat. (1877) 187. (h) Jones vs. Smith, 24 HI. 229; Hurd vs. Case, 32 HI. 45. (t) Rev. Stat. (1874) 202; Rev. Stat. (1877) 187; Fleece vs. Russell, 13 111. 31. (J) Miles vs. Bacon, 4 J. J. Marsh, 457: Ward vs. Davidson, 2 lb. 443; Garner vs. Beaty, 7 lb. 223; Talbot vs. McGhee, 4 Monr. 375; Anderson vs. Ward, 6 Monr. 419. 314 CROSS-BILLS. Defenses to — Demurrer. SECTION V. DEFENSES TO. D&mwrer. — A demurrer for want of equity will not lie to a cross-bill filed by a defendant in a suit against the complain- ant in the same suit, touching the same matter. For being drawn into court by the complainant in the original bill, he may avail himself of the assistance of the court without being put to show a grpund of equity to support its jurisdiction, (k) Where a cross-bill seeks relief which is of an equitable nature, it should contain all proper allegations which confer an equit- able title to such relief upon the party ; otherwise it will be open to demurrer. Thus where an original bill was filed to enforce a security, and the defendant filed a cross-bill to have the security delivered Up as a usurious security, and the cross-bill did not offer to . pay the sum really due, a demurrer was allowed. (Z) If a cross-bill is not confined to the matters in litigation in the original suit, but seeks to bring before the court other dis- tinct matters and rights, it is no longer entitled to be deemed a cross-bill, but is an original suit, and, it seems, a demurrer would lie. (m) So, if a cross-bill is filed contrary to the prac- tice of the court, and under circumstances in which a pure bill of this nature is not allowed^ or if it seeks to bring into ques- tion facts which the party has admitted in his answer to the original bill, it is open to a demurrer, (n) (k) Ddble vs. Potmcm, Hardr. 160 ; Coop. Eq. PI. 81, 215 ; Mitf . Eq. PI 203; 2 Barb. Ch.Pr. 133. (I) Mason vs. Gardiner, 4 Bro. C. C. 436 ; Busfield vs. Solomons, 9 Ves 84 ; Hickson vs. Ayheard, 3 Molloy, 1 ; Welf . Eq. PI. 230 : Oalatian vs. ffl-win, Hopk. 48, 59; S. C, 8 Cowen, 561; Tobey vs. Foreman, 79 111. 489. (m) Welf. Eq. PI. 230 ; 2 Barb. Ch. Pr. 133. (m) Story's Eq. PI. § 628-633 ; Coop. Eq. PI. 87 ; 2 Barb. Ch. Pr. 133 ; Welf. Eq. PI. 230 ; Berkley vs. Ryder, 2 Ves: 533, 537 ; 1 Mont. Eq. PI. 328 , White vs. BvZoid, 2 Paige, Ch. R. 164 ; Field vs. Schieffelin. 7 Johns. Ch. 250 ; HoWrook vs. Prettyman, 44 111. 311. CROSS-BILLS. 315 Defenses to — Pleas — Answer. Pleas. — A plea to the person of the complainant does not lie to a cross-bill, unless it is exhibited by a person incapable alone to institute a suit ; nor does a plea to the jurisdiction to such a bill ; for the defendant, by filing his original bill, has affirmed the sufficiency both of the person and the jurisdiction, (o) Neither can a cross-bill, though between the same parties, as an original suit, be met by a plea of a suit for the same object pending in a court of concurrent jurisdiction ; thus, after a bill brought in the exchequer to foreclose a mortgage, it was held that a de- fendant may bring a_bill in the court of chancery to redeem," and the pendency of the former suit is not pleadable, (p) In all other respects cross-bills are liable to all the pleas in bar, to which original bills are liable; and the converse is equally true, that a cross-bill is not liable to any plea which will not hold to an original bill. And, as it seems, that a de- fendant cannot, by a cross-bill, compel the complainant in the original to make discovery of the defendant's title, the objec tion may be taken by plea ; and it may also be insisted on by answer, (y) Answer. — The rules relating to answers to original bills, apply fully to answers to cross-bills. It is to be observed, however, that the complainant in the original bill has the right to the first answer ; and may move to stay proceedings in the cross-suit until the original bill is answered, (r) And the com- plainant in the original suit does not waive his right to an answer by obtaining an order for time to answer the cross- bill. (*) (©) Welf . Eq. PL 329 ; Mitf . Eq. PI. 290, 291 ; Coop. Eq. PI. 804 ; Beames. PI. in Eq. 302, 308 ; 2 Barb. Ch. Pr. 132. (p) LordNewburgh-rs. TTrero, I Vern. 220 ; 2Dan.Ch. Pr.148; Welf.Eq. r;. 229. i q) Bellioood vs. TT< therell, 1 Young'e & Coll. 21 1 ; Olegg vs. Legh, 1 Bligh, :■.". S. 302 ; Cherry vs. Legh, lb. 306 ; Welf. Eq. PI. 230 ; 2 Barb. Ch. 132, 133. • Ir) Harris vs. Harris, Tur. & Bass. 165 ; Wigley vs. Whitaker, 1 Beavan, 349. (*) 2 Barb. Ch. Pr. 134 ; see Bamkissenseat vs. Barker, 1 Atk. 20. 316 CROSS-BILLS. Proceedings upon. SECTION VI. PBOCEEDINGS UPON. The complainant in the original suit is not compelled in any case to stay proceedings therein upon the filing of a cross-hill, except by a special order of the court. And it is not a matter of course for the court to stay the proceedings in the original suit, in any case, except where the defendant in the cross suit . is in contempt for not answering, (t) If the complainant in the cross-bill desires to have the proceedings in the original suit stayed, the cross-bill should be sworn to, (u) by some person who knows the facts, (v) A final decree upon the filing of a cross-bill, granting the relief thereby sought, cannot be rendered in the absence of an answer, unless steps have been taken to place the defendants in default, (w) After both causes are at issue or in a situation to be heard, the complainant in the cross suit may have an order that they be heard together. But the delay of the complainant in the cross suit will not be permitted to delay the hearing of the original cause, (x) An order should be obtained, when both causes are ready, that they be brought on for hearing together, (y) (<) White vs. Bvloid, 2 Paige, Ch. 164. {u) lb. ; 2 Barb. Ch. Pr. 134. (v) TaMnage vs. Pell, 9 Paige, Ch. 410. (to) West. Un. Teleg. Go. vs., P. & A. Teleg. Go. 49 111. 90. (x) White vs. BvZoid, 2 Paige, Ch. 164. (y) 2 Barb. Ch. Pr. 135; Hindes, Pr. 54. CHAPTEK XXV. BILLS FOE SPECIFIC PERFORMANCE. Section 1. Nature of, and When Proper. 2. Parties to. 3. Frame of Bill. 4. Decree. SECTION L NATURE OF, AND WHEN PROPER. The essential conditions of a contract which will be specific- ally enforced in a court of equity are, that the contract must be made between competent parties ; it must be entered into willingly ; the terms must be understood by the parties, and be certain and defined ; the consideration must be valua- ble ; there must be mutuality of consideration and remedy ; it must be properly proved ; the party seeking its performance, must fulfill his obligations under it ; it must be such as the court can enforce ; it must be one proper to be executed ; it must be one on which there is not an adequate remedy at law ; it must not be an unreasonable contract, on which there might be a remedy at law ; and the conduct of the party seeking the per- formance must have been correct, (a) A court of equity will often refuse to enforce a contract which it would also refuse to annul, and will leave the parties to their remedy at law. (5) A specific performance rests in the sound discretion of the court, under all the circumstances of the particular case ; (c) (a) Batten on Spec. Perf. of Cont.; see Taylor vs. Merrill, 55 111. 52; Fitch vs. Boyd, Id. 307; Fleming vs. Carter, 87 111. 565. (6) Jackson vs. Ashton, 11 Pet. 229; Seymour vs. Delancey, 6 Johns. Ch. R. 222; Clitherall vs. Ogilvie, 1 Dessau. 250; Barksdale vs. Payne, Riley, Ch. 174; Gasqtie vs. Small, 2 Strobh. Eq. 72; Hendersons. Hays, 2 Watts, 148. (c) McComas vs. Easley, 21 Gratt. Va. 23; Wynn vs. Smith, 40 Geo. 4.j7; Race vs. Weston, 80 111. 91; McCormick vs. Sage, 87 111. 484; Kerfoot vs. Breckeurichje, S7 111. 105. 318 BILLS FOR SPECIFIC PERFORMANCE. Nature of, and When Proper. and it is not decreed where there has been long delay, or laches, or a material change of circumstances. () McCarUe vs. Brown, 9 S. & M. 167 ; Voorhees vs. DeMeyer, 2 Barb. R. 37 ; Shaw vs. Livermore, 2 Green, N. J. Ch. 338. (x) Woodward vs. Harris, 2 Barb. B. 439 ; Buttrick vs. Holden, 13 Met. 355 ; see Olicer vs. CrosweU, 42 111. 41 ; Fallon vs. Railroad Co. 1 Dillon, 121 ; see Wallace vs. McLaughlin, 57 111. 53. (y\ Garnett vs. Mason, 2 Brockenbrough's R. 186 ; S. C. 6 Call, 308 ; Mor- gan's Heirs vs. Morgan, 2 Wheat. 290 ; Bank of Columbia vs. Hagner, 1 Pet. 455. (s) Hepburn vs. Auld, 5 Cranch, 262. (o) Watts vs. Waddle, 6 Pet. 389 ; S. C. 1 McLean, 200 ; Soheir vs. Williams, 1 Curtis, 479. (b) Baker vs. Bishop HiB Colony, 45 HI. 264 ; Mix vs. Beach, 46 m. 311 ; bat see Boston vs. Nichols, 47 111. 353. 21 322 BILLS FOE SPECIFIC PEEFOEMANCE. Nature of, and When Proper. offers to perform his contract, he cannot insist on performance by the other party until he relieves the title from such subse- quent encumbrances, (c) The right of a purchaser of land from two joint owners, to have a specific performance of the contract cannot be impaired by reason merely that one of the vendors has failed to comply with an agreement with the other in respect to the subject matter of the contract, (d) Although courts of equity will enforce specifically, contracts relating. to personalty, in many cases, yet they will weigh with greater nicety contracts of this description than such as relate to lands, (e) And if a breach of a contract relating to per- sonal property may be compensated by damages, equity will not, as a general rule, interfere. {/) The transfer of stock will not always be decreed, (g) Though a contract for insurance, or for the delivery of a policy of insurance by the company, will be enforced, even after a loss. (A) An agreement to sing at concerts will not be specifically enforced, (i) And a husband will not be compelled, specifically, to perform an agreement to procure his wife to join him in a conveyance of real estate. (J ) And where a wife refuses to execute a contract by her husband and herself, to convey her land, he will not be compelled to convey his wife's estate to the purchaser, to make compensation for the principal estate, (k) (c) Cooper vs. Tyler, 46 111. 462 ; see Brown vs. Cannon, 5 Gilm. 174. (d) Harding vs. ParshaU, 56 111. 219. («) Mechanic's Bank vs. Beaton, 1 Pet. 299. (/) Cowles vs. Whitman, 10 Conn. 121 ; Hoy vs. Hamsborough, 1 Freem. Ch. 533 ; Caldwell vs. Myers, Hardin, 551 ; Phillips vs. Berger, 2 Barb. R. 608 , Bavery vs. Spenee, 13 Ala. 561 ; SvMvan vs. Tuck, 1 Md. Ch. Decis. 59 ; Waters vs. Howard, Id. 112 ; Boundtree vs. McLain, 1 Hemp. 245 ; The Jus- tices vs. Croft, 18 Geo. 473. (g) Ferguson vs. PaschaU, 11 Miss. 267 ; Boss vs. Union Pacific B. B. Co. 1 Wool. 26. (h) Taylor vs. Merchants Mre Ins. Co. 9 How. U. S. 390 ; see Carpenter vs". Mutual Safety Ins. Co. 4 Sandf . Ch. 408 ; Commercial Mutual M. Ins. Co. vs. Union Mutual Ins. Co. 19 How. U. S. 318 ; 8. G. 2 Curtis, C. C. R. 524. (i) Banquirico vs. Benedetti, 1 Barb. 315. (j) Clark vs. Bavier, 7 Watts, 107 ; Weed vs. Terry, 2 Doug. 844. (*) Clark vs. Beins, 12 Gratt. Va. 98. BILLS FOE SPECIFIC PERFORMANCE. 323 Nature of, and When Proper — LoBt Instruments. The specific performance of a mere voluntary agreement will not be enforced ; (Z) a voluntary settlement will, however, be en- forced, at the instance of a child, against the heir, if the former have the preferable equity ; (m) and it has been held that a voluntary agreement, if executed, would be aided in equity, (n) A contract to build a railroad will not be enforced in equity, (o) A contract to build a hotel, at joint risk and expense, was enforced, where one of the parties had performed his part of the contract, (jj) A specific performance of a contract, to indemnify against a pecuniary liability, may be enforced, (j) The fact that damages may be recovered at law, is no reason, of itself, why performance should not be decreed ; (r) nor is the commencement of a suit at law, of itself, a bar. (s) Perform- ance may be decreed, in a proper case, where the party has lost his remedy at law. (i) But specific performance of a contract will not be decreed, where the law would not allow damages, (u) In applications for specific performance of agreement, it is immaterial what the form of the instrument is, whether it is a covenant or a penal bond, with a condition to do the thing, (v) Lost instrument. — A specific performance of a contract for the sale of land will be decreed, although the contract may be lost, on showing clearly the loss of it, and its contents, (to) (I) Shepherd vs. Shepherd, 1 Md. Ch. Decis. 244 ; Vaaser vs. Vosser, 28 Miss. 378 ; Bote vs. Davis, 14 Texas, 331. (m) Haines vs. Haines, 6 Md. 435. (n) Read vs. Long, 4 Terg. 68. (o) Boss vs. Union Pacific 'B. B. Co. 1 Wool. 26 ; Fulton vs. BaUroad Go. 1 Dillon, 121. (p) Berchett vs. Boiling, 5 Munf. 462. (q) Chamberlain vs. Blue, 6 Blackf. 491 ; see Robinson vs. Gathca/rt, 2 Cranch, C. C. 590. (r) Washburn vs. Dewey, 17 Vt. 92. (») Brush vs. Vandenbergh, 1 Edw. Ch. 21. (*) Sogers vs. Saunders, 16 Maine, 92. (u) Allen vs. Beat, 3 A. K. Marsh. 554 ; see however OetcheU vs. Jeioett, 8 Greenl. 350. (v) BroadvseU vs. Broadwell, 1 (Jilm. 470. (w) Gowkoski vs. Day, 16 111. 259. 324 BILLS FOE SPECIFIC PEKFORMANCE. Of an Award — Parol Contracts. Of cm award. — The peformanee of an award will be en- forced, on the ground that such performance is an execution of the agreement of the parties, as fixed by the arbitrators, (as) But the enforcement of an award for the payment of money has been refused ; (y) although where some other specific act is prescribed by the award, its performance will be enforced. (3) Specific performance of an agreement to refer a disputed matter to arbitrators, cannot be decreed ; (a) although it has been held that submission by adult heirs, of an equitable claim to land, of which their ancestor died seized, may be enforced. (5) Parol contracts. — The specific performance of a parol con- tract for the conveyance of land will be enforced where the consideration has been paid, and the purchaser has taken possession ; (c) or where the vendee has paid part of the con- sideration, and taken possession and made valuable improve- ments, and tendered the balance of the purchase money before the expiration of the contract, though the vendor has sold the land to a second vendee, (d) To entitle a party to a specific performance of a verbal agreement, the proofs must clearly establish a contract, and all its terms and conditions, and that the purchaser has relied upon aad performed his part of the agreement, and that it has (x) McNeil vs. Mages, 5 Mason, 344 ; Ballance vs. Underhitt, 3 Scam. 453 ; Jones vs. Mill Creek Corporation, 4 Pick. 507 ; Cook vs. Vick, 2 How. Miss. R. 882. (y) Turpin vs. Bauton, Hardin, 312. (s) Story vs. Norviick & Wos. B. B. Co. 24 Conn. 94 ; Kirksey vs. Fike, 27 Ala. 383. (as) Copper vs. Wells, Saxon, 10 ; Tobey vs. County of Bristol, 3 Story, 800 ; Conner vs. Drake, 1 Ohio State E. 166. (b) Boyd vs. Magruder, 2 Rob. Va. 761. (c) Bflmsey vs. Litton, 25 111. 114; Qibbs vs. Blackwell, 37 111. 191 ; Clay- ton vs. Frazier, 33 Texas, 91; Langston vs. Bates, 84 111. 524. (d) Blunt vs. Tomlin, 27 111. 93 ; Keys vs. Test, 33 111. 316 ; see DeWolf vs. Pratt, 42 111. 198 ; Cnambers vs. Bowe, 36 111. 171 ; see Earsha vs. Beid, 45 N. F. 415 ; ffowe vs. Bogers, 32 Texas, 218 ; Freeman vs. Freeman, 43 N. T. 34. BILLS FOE SPECIFIC PEEFOEMANCE. 325 Parol Contracts — Parties to. been so far performed as to take it out of the statute of frauds, (e) A parol contract by a father to convey to his son, on con- dition of his taking possession and making improvements, on a proper and clear case shown, will be enforced. (/") SECTION n. PAETTES TO. In case of a contract for the sale of real estate,, if the vendor should die, and a bill is brought by his personal representa- tives for a specific performance of the contract, all the heirs of the vendor ought to be made parties^ either as complainants or as defendants, before a specific performance is decreed, (g) For the same reason, if the vendee should die, on a like bill brought by the vendor or his personal representatives for a specific performance, the heirs, or devisees, if any, of the ven- dee, as well as his personal representatives, should be made parties to the bill. (A) Where a vendor has, by his bond or covenant, bound his heirs to the performance of the obligation or covenant, if he should die, and a bill should be brought for specific perform ance against the heirs, the executor or administrator would be a necessary party. (*) The general rule is, that the parties to the contract are the only proper parties "to a suit for a specific performance ; and, except in the case of an assignment of the entire contract, (e) Hartwell vs. Slack, 48 111. 301;. see Traitor vs. HiU, 2 Gilm. 364; Hawkins vs. Hunt, 14 HI. 43; Beckham vs. Barker, 8 B. I. 17; Welsh vs. Bayard, 21 N. J. Eq. 186 ; Hedrick vs. Hern, 4 W. Va. 620. (/; See Bright vs. Bright, 41 111. 97 ; Neale vs. Neale, 9 Wallace, 1 ; OaU braith vs. Qalbraith, 5 Kansas, 402. (g) Story's Eq. PI. § 160 ; Morgan vs. Morgan, 2 Wheat. 297, 298 ; Ed- wards on Parties, 129-136; Calvert x>n Parties, 163-170; Roberts' vs. Mar- ehant, 1 Hare, 547. (A) Townsend vs. Camperdown, 9 Price, 130 ; Story's Eq. PI. § 160, 177. (t) Story's Eq. PI. § 173 ; Knight vs. Knight, 3 P. Wms. 333 ; Plunkett vs. Benson, 2 Atk. 51 ; Coop. Eq. PI. 38, 39. 326 BILLS FOE SPECIFIC PEEFOEMANCE. Parties to — Frame of Bill. there must be some special circumstances to authorize a de- parture from the rule. (_;') All the heirs of an intestate as well' as- the administrator, should be made parties to a bill in chancery to enforce the specific performance of a contract made by the intestate in his lifetime, to convey a tract of land, (k) SECTION III. FRAME OF BILL. The bill, in cases of specific performance, shordd describe the land with such accuracy as to enable the court to decree a conveyance. (I) The complainant should set out in his bill the contract according to its legal effect, and should aver a performance of all the conditions precedent on his part ; (m) but a general allegation that,he has " done all that he was bound by the con- tract to do," is held insufficient; the particular facts which he has performed should be stated, in order that the court may determine whether he has done all that he ought, (ri) '"Where, however, the complainant has partially performed the contract on his part, a formal allegation in the bill, that he is ready to complete the performance, is unnecessary, (o) The bill may be framed so as to obtain specific performance or cancellation of the contract, (p) If the complainant wishes to set off against the amount to be paid by him, an indebtedness to him from the other party, he must lay the proper foundation for it in his bill, or he can- not have the same allowed, (q) (j) Willard vs. Taylor, 8 Wallace, 557 ; Tasker vs. Small, 3 Mylne & Craig, 69 ; Story's Eq. PI. § 177, b ; Gibba vs. Blockwell, 37 111. 191. (k) Duncan vs. WickKffe, 4 Scam. 452 ; Mix vs. Beach, 46 111. 311. (Z) Gray vs. Dams, 3 J. J. Marsh. 381. (m) Bates vs. Wheeler, 1 Scam. 54; see Morton vs. Smith, 86 111. 117. (n) Davis vs. Harrison, 4 Litt. 261. (o) Hatchervs. Hatcher, 1 McMullen, Ch. 311; Robyvs. Cossitt, 78 111. 638. (p) Mills vs. Metcalf, 1 A. K. Marsh. 477 (q) Scott vs. Shepherd, 3 Gilm. 483. BILLS FOR SPECIFIC PERFORMANCE. 32? Tender — Form of Bill. The complainant need not at his peril state the precise amount due on the contract. He may state his case most favorable to himself, and if, upon the equities of the case, the court should decree a different amount, he can then conform to its judgment, (r) Tender. — It is not only necessary that a party asking to enforce a contract for the purchase of a tract of land, should make a tender of the purchase money, but he must bring the money into court, and deposit it with the clerk, (s) Wo. 121. BUI for specific performance of a written agreement — by a vendee vs. vendor. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., one C. D., being, or pretending to be seized and possessed in fee simple of the following described real property, situate, lying and being in the county of , in the Btate of , to wit: (Here describe the premises) and being so seized, on that day, entered into a written agreement with your orator, for the sale of the same, which said agreement was signed by the said C. D. and your orator, and .by which the said C. D. covenanted and agreed for himself, his heirs, execu- tors and administrators, for and in consideration of the sum of dollars, to be paid as hereinafter mentioned, well and truly to convey by a good and sufficient warranty deed, in fee simple, to your orator, his heirs or assigns, the tract or parcel of land above described ; and, in consideration whereof, your orator covenanted and agreed to pay the said C. D., his heirs, executors, or administrators, the said sum of dollars, in manner following, to wit : {Here state the manner of payments, as in agreement^) as by the said agreement, ready to be pro- duced in court, and a copy of which, hereto attached and filed, marked " Exhibit A," and made a part of this bill, will more fully appear. if) Hull vs. Peer, 27,111. 312. (*) Doyle vs. Teas, 4 Scam. 202; Wright vs. McNeely, 11 111. 241; De Wolfe vs. Long, 2 Gilm. 679 ; see Webster vs. French, 11 III. 254 ; Anderson vs. White, 27 111. 63; Irwin vs. BleaMey, 67 Pa. St. R. 24; Deichman vs. Deichmaa, 49 Mo. 107. 328 BILLS FOE SPECIFIC PEEFOEMANCE. Fornjs of. Bills. Your orator farther represents, that he has always, been wil- ling and ready to comply with the terms of said agreement on his part to be performed; that on, etc., he applied to the said C. D., and offered to pay him the sum of dollars, being the balance then due the said 0. D., under the said agreement, on his delivering to your orator a sufficient warranty deed for the said premises, according to the said agreement ; yet the said C. D. refused, and still refuses, to comply with the agreement on his part; although your orator is, and always has been, ready to pay the said sum of dollars, and to fully perform his part of the said agreement, whenever the said 0. D. will make and deliver to him a good and sufficient deed for the premises aforesaid. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity, and to the end that the said 0. D., who is made a party defendant to this bill, may be made to make full and direct answer to the same, but not wider oath, the answer wider oath being hereby wowed; and that the said defendant may be. decreed specifically to perform the said agreement entered into with your orator" as aforesaid, and to make a good and sufficient deed of conveyance to your orator for the s*aid described premises, your orator being ready and willing, and hereby offering specifically to perform the said agreement on his part, and upon the defendant's making out a good and sufficient title to the said premis'es, and executing a proper conveyance thereof to your orator, pursuant to the terms of the said agreement, to pay to the defendant . the residue of the said purchase money ; and that your orator may have such other and further relief as equity may require, and to your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sheriff of the said county of , com- manding him that he summon the defendant, C. D., to appear before the said court, on the first day of the next term thereof, to be held at the court house in , in the county of — — aforesaid, then and there to answer this bill, etc. Sol. for Complainant. No. 1%®. Bill for specific performance of a toritten" agreement — by a vendor vs. vendee. To the Honorable , Judge of the — — Court, of the County of , in the State of , In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto ^our honor, that your orator being seized in fee simple of the BILLS FOE SPECIFIC PERFOEMANCE. 329 Forms of Bills. following described real property, with its appurtenances, situated in the county of , in the state .of , to wit : {Here describe the premises) and being desirous of selling such premises, and one C. D. being minded to purchase the same, your orator and the said C. D., on, etc., entered into and signed a memorandum of agreement, in writing, respecting the said sale and purchase, in the words, or to the purport and effect following, to wit : {Here state the agreement verbatim) as by the said memorandum of agreement, ready to be pro- duced in court, will fully appear. And your orator further represents that the said C. D. paid to your orator 'the sum of dollars, part of the said purchase money, at the time of signing the said agreement ; and your orator delivered an abstract of his title to the said premises to the said C. J). ; and your orator has always been ready and willing to perform his part of the said agreement, and, on being paid the remainder of his said purchase money, with interest, to convey the said premises to the said C. J). and his heirs, and to let him into possession and the receipt of the rents and profits thereof from the time in the said agree- ment in that behalf mentioned ; and your orator hoped that the said C. D. would have performed the said agreement on his part, as in justice and equity he ought to have done. But now, so it is, may it please your honor, that the said C. D. alleges that he is and always has been ready and willing to perform the said agreement on his part in case your orator could have made, or can make, him a good and sufficient title to the said premises. But that your orator is not able to make a good title thereto ; whereas, on the contrary, your orator charges and insists that he can make a good and sufficient title to the said premises. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity; and to the end thai the said C. I)., who is made a party defendant to this bill, may be made to make full and direct answer to the same, but not under oath, the answer under oath being hereby warned; and that the said C. D., defendant, may be compelled by the decree of this honorable court, specifically to perform the said agree- ment with your orator, and to pay to your orator the remainder of the said purchase money, with interest on the same from the time the said purchase money ought to have been paid, your orator being willing, and hereby offering, specifically to perform the said agreement on his part, and on being paid the said remaining purchase money and interest, to execute a proper conveyance of the said described premises to the said 330 BILLS FOE SPECIFIC PEEFOEMANCE. Forms of Bills. C. D., and to let him into possession of the rents and profits thereof, according to the tenor and effect of the said agree- ment ; and that your orator may have such other and further relief as equity may require and to your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sheriff of the said county of , commanding him that he summon the said defendant, C. D., to appear before the said court, on the first day of the next term thereof, to be held at the court house in , in the county of , aforesaid, then and there to answer this bill, etc. , Sol. for Complainant. No. 123. Bill for specific performance, on a bond for a deed; vendee vs. the legal representatives of vendor. Tq the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your honor that, on, etc., one C. D., late of, etc., being the owner in fee simple, of the following described real property, situate, lying and being in the county of, etc., known and designated as follows, to wit: {Here wisert description.) And being desirous to sell the said premises, and your orator being mindful to purchase the same, the said C. T>., on the day aforesaid, entered into a certain writing obligatory or bond for a deed with your orator, for the sale thereof to him, which, said writing obliga- tory or bond, bearing date on the day and year above mentioned, and signed and sealed by the said C. D., is in the words and figures following, to wit: {Here set out the bond verbatim,) as by the said writing obligatory or bond for a deed, ready to be produced in court, will more fully appear. Your orator further represents, that on, etc., he paid the said C. D. the sum of dollars, being a part of the purchase money due by the terms of the said writing obligatory, which said sum was received by the said C. D., and indorsed by him upon the said writing obligatory. Your orator further represents, that on or about the day of , 18 — , the said C. D. departed this life, intestate, leav- ing D. D., his widow, and E. D. and F. D., his children and only heirs at law ; and that afterwards, on, "etc., one E. F., of, etc., was duly appointed by the court of said county of , administrator of the estate of the said C. D., and then and there took upon himself the burden of such administration. BILLS FOR SPECIFIC PEKFOKMANCE. 331 • Forms of Bills. Your orator further represents that afterwards, on, etc., he paid to the said E. F., administrator as aforesaid, the sum of dollars, being the balance due to said estate of the said C. D., according to the terms and conditions of said writing obli- gatory. Y our orator further represents, that the said C. D., in his life- time, and the said E. F., administrator as aforesaid, since the death of the said C. D., have wholly failed to execute and deliver to your orator a good and sufficient deed of conveyance for the said premises ; the said E. F. insisting that he, as such administrator, has no power or authority to do so. And your orator further shows that the said E. D. and F. D. are minors, under the age of years, and have no legal guardian. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said D. D., E. JD., F. D. and E. F., administrator, of the estate of C. D., deceased, who are made parties defendant to this bill, may be required to make full and direct answer to the same, but not under oath, the answer under oath being hereby waived; that a guardian ad litem may be appointed for the infant defendants named above ; that a good and perfect deed of conveyance may be made to your orator for the premises aforesaid, that a commissioner may be appointed by the court to make and execute such deed, or that the master in chancery of this court be directed to execute the same; and that your orator may have such other and further relief as equity may require and to your honor shall seem meet. And may it please your honor to grant the writ of summons in chancery, directed to the sheriff of the said county of , commanding him that he summon the defendants above named, to appear before the said court, on the first day of the next term thereof, to be held at the court house in — , in the county of aforesaid, then and there to answer this bill, etc. Sol. for Complainant. JFo. 1%4~ .Bill for specific performance, by lessee against lessor, of a written agreement for a lease of a house. To the Honorable , Judge of the court of the County of , in the State of , In Chancery sitting: Your orator, A. B., of, etc., respectfully represents unto your honor, that C. D., of, etc.," the defendant hereinafter named, being possessed ot the premises described as follows, to wit.: 332 BILLS FOR SPECIFIC PERFORMANCE. Forms of Bills. I {Here insert description?) And being desirous to let the same, on, etc., proposed and agreed to lease to your orator the same, with the appurtenances, and thereupon your orator and the de- fendant executed a certain memorandum or agreement of that date, in the words and figures following, that is to say : {Here set out copy of agreement verbatim,) as by the said agreement, ready to be produced in court, will appear. Your orator further represents, that in expectation and confi- dence that a lease would have been executed to him of the premises, pursuant to the terms of the said agreement, your orator has expended sundry sums of money in the said premises ; and has always been ready to perform his part of the said agreement, and to accept a lease of the said premises, pursuant to the terms thereof. And for that purpose caused a draft of a lease to be drawn pursuant to the terms of the said agreement, and tendered the same to the defendant for his perusal and approbation, but he refused to accept or peruse the same. And your orator has frequently applied to the defendant and request- ed him to execute to your orator a lease of said premises con- formable to the said agreement. And your orator well hoped that no dispute would have arisen, touching the said agreement and the leasing of said premises, but that the defendant would have complied with the reasonable request of your orator, as in equity he ought to have done. But now so it is, the defendant pretends that no such agreement was ever entered into between your orator and the defendant, or any agreement, or that he consented to grant a lease to your orator, whereas your orator charges the contrary of such pretenses to be the truth. Never- theless the defendant refuses to comply with your orator's said reasonable requests, or to perform the aforesaid agreement. Forasmuch, therefore, as your orator is without an adequate remedy in the premises, except in a court of equity; and to the end that the said C. D., who is made party defendant to this bill, may be required to make full and direct answer to the same, out not under oath, the answer under oath being hereby waived; that the court may decree that the said agreement may be specifically performed and carried into execution; that the defendant may be decreed to execute a lease of the said premises to your orator according to the terms of said agreement, your orator hereby offering to execute a counterpart thereof, and in all other respects to perform his part of the said agreement ; and that your orator may have such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please your honor to grant the writ of summons in BILLS FOE SPECIFIC PERFORMANCE. 333 Decree — Declaration of Eight to. chancery, directed to the sheriff of the said county of - commanding him that he summon the defendant, C. D., to appear before the said court, on the first day of the next term thereof, to be held at the court house in , in the county of aforesaid, then and there to answer this bill, etc. Sol. for Complainant. SECTION IV. DECREE. Declaration of right to specific performance. — According to the old practice, there were two ways of framing a decree in a suit for specific performance. The one was to declare that the complainant was entitled to a specific performance, if a good title could be shown, and then to direct a reference as to the title ; the other, to refer the title to the master, and to follow up that direction by a declaration, that if a good title was shown, the agreement ought to be specifically performed, (t) And the omission of this declaration is often attended with in- convenience, (u) "Where the question of title is not the only issue, but the de- fendant resists specific performance on any other ground, it was specially necessary that a declaration that if a good title was shown, the agreement ought to be performed, should be insert- ed, (v) Of late, however, it is seldom inserted, (w) Neverthe- less, where a reference of the title is directed, it will, it seems, be implied, (a;) Where a reference of title is directed, the declaration as to the righf to specific performance is usually made on further directions, (y) (f) Seaton on Decrees, 209 ; Stevens vs. Ouppy, 3 Russ. 182. (u) Id. lb. ; Mole vs. Smith, Jac. 495. (c) Seaton on Decrees, 210 ; Pitt vs. Davis, 3 Buss. 182, note. (w) Harding vs. Beckford, cited in Seaton on Decrees, 210 ; Burroughs vs. Oakley, 3 Swanst. 172 ; Le Grand vs. Whitehead, 3 Bass. 309, note ; but see Burton vs. Todd, 1 Swanst. 258. (x) Seaton on Decrees, 210 ; see Mole vs. Smith, Jac. 494 ; Le Grand vs. Whitehead, 1 Buss. 309. (y) Seaton on Decrees, 210 ; Bridges vs. Robinson, 3 Mer. 694 1 334 BILLS FOR SPECIFIC PERFORMANCE. Decree — Reference of Title. Where specific performance is decreed without a reference of title, it will be made upon the original hearing, (s) Reference of title. — Generally, either the vendor or the pur- chaser may insist upon a reference of the title in the first instance ; the vendor being entitled to the opportunity of per- fecting it, and the purchaser of fully investigating it, before the master. But either party may preclude himself from this' right by his mode of pleading, (a) So where the acts of the pur- chaser amounted to a waiver of his right, specific performance was decreed in the first instance ; (5) but taking possession and acts of ownership were held not to be a waiver under the cir- cumstances, (c) The direction is to inquire whether the vendor can make title, not whether he could do so at the time of entering into the contract, (d) If a title can be made before the hearing, (e) or before the report, (f ) or upon the hearing for further direc- tions, (g) it is sufficient. Formerly the court directed a reference of the title only in the first instance, and, upon further directions, directed a refer- ence back to inquire at what time a good title could be made, with a view to costs. (A) But now the reference will be extended to both objects in the first instance, (i) If a refer- ence for the latter purpose is not obtained in the first (a) Margravine of Auspaeh vs. Noel, 1 Mad. 317 ; Dakin vs. Cope, 2 Bnss. 175. (a) Jenkins vs. Hiles, 6 Ves. 653, 654 ; Seaton on Decrees, 210. (b) Fleetwood vs. Oreen, 15 Ves. 594; Margravine of Auspaeh vs. Noel, 1 Mad. 310 ; see Fludyer vs. Cocker, 12 Ves. 25 ; Balfour vs. Wetland, 16 Ves. 151. (c) Burroughs vs. Oakley, 3 Swanst. 159. (d) Langford vp. Pitt, 2 P. Wms. 630. (e) Wynn vs. Morgan, 7 Ves. 202. (f) Langford vs. Pitt, 2 P. Wms. 630 ; Jenkins vs. HUes, 6 Ves. 655 ; Seton vs. Blade, 7 Ves. 279 ; Mortlock vs. BuUer, 10 Ves. 315 ; Hepburn, vs. Bunlap, 1 Wheat. 179 ; see Coffin vs. Cooper, 14 Ves. 205. {g) Paton vs. Rogers, 6 Mad. 256. (A) Gibson vs. Clarke, 2 V. & B. 103. (») Seaton on Decrees, 211 ; Wright vs. Bond, 11 Ves. 39 ; Jennings vs. Hbpton, 1 Mad. 211 ; Anon. 3 Mad. 495. BILLS FOE SPECIFIC PERFORMANCE. 335 Decree — Payment of Purchase Money, etc. — Form of Decree. instance, the defendant is not precluded from obtaining it after the report. (J) Payment of purchase money and execution, of conveyance. The payment of the purchase money and the execution of the conveyance are simultaneous acts, and should be done interchangeably, (k) Delivery of deeds, etc. — There should be a direction for the delivery up of deeds, writings, etc., pertaming to the title of the estate. (T) Wo. 125. Decretal order for a reference as to the title of a vendor, etc. > {Caption, and title of cause as in No. 79, ante, page 198.) This cause coming on to be heard upon the pleadings filed and proofs taken therein, and the said pleadings and proofs having been read, and the counsel for the respective parties having been heard, and in consideration of the premises, it is ordered, that this cause be referred to the master in chancery of this court, to inquire whether a good title can be made to the premises comprised in the agreement between the parties to this cause, mentioned in the pleadings therein ; and that he state his opinion thereon to the court. And in case he shall be of opinion that a good title can be made, it is ordered that he do inquire and state when it was first shown that a good title could be made. And that the said master do inquire and report as to the quantity of land agreed to be conveyed by the complainant ; and that he take an account of the payments made upon such agreement, by the defendant; and that he ascertain and report the balance now due from him upon the said agreement. And for the better discovery of the matters aforesaid, the parties are to produce before the said master, upon oath, all (j) Id. ; Gibson vs. Clark*, 2 V. & B. 103 ; Daly vs. Osborne, 1 Mer. 382; Birch vs. Baynes, 2 Mer. 444; see Jennings vs. Hopton, 1 Mad. 211 ; Hyde vs. Wroughton, 3 Mad. 279 ; LiMn vs. Lightbody, 8 Price, 60G ; Anon. 3 Mad. 495. (Jfe) Margravine of Auspach vs. Noel, 1 Mad. 316 ; Urmston vs. Singleton cited in Seaton on Decrees, 214; Corbus vs. Teed, 69 111. 205. (Z) Id. lb.; McNatnara vs. Williams, 6 Ves. 144. 336 BILLS FOE SPECIFIC PEEFOEMANCE. Forme of Decrees. deeds, books, papers, and writings, in their custody or power, relating thereto ; and are to be examined upon interrogatories as the said master shall direct ; and to take such further proof as either party may produce before him in relation to the sev- eral matters mentioned, and report the same to the court. And this court reserves the consideration of all further directions, and of the costs of this suit, until after the said master shall have made his report. And either of said parties are to be at liberty to apply to the court as occasion may require. No. 126. Interlocutory decree for an account. (Caption, and title of cause as m No. 79, ante, page 198.) This cause coming on to be heard upon the pleadings filed and the proofs taken therein, and the said pleadings and proofs having been read, and the counsel for the respective parties having been heard, and the court being fully advised in the premises, and on consideration thereof, doth order, adjudge and decree, that this cause be referred to the master in chancery of this court to take a mutual account of all dealings and transac- tions between the complainant and defendant in this cause, for the better clearing of which account the parties are. directed to produce before the said master, upon oath, all deeds, books, papers, and writings in their custody or power, relating there- to, and are to be examined upon interrogatories as the said master shall direct ; who, in taking the said account, is to make unto the parties all just allowances ; and what, upon the bal- ance of the said account, shall appear to be due from either party to the other, is to be paid as the said master shall direct. And this court reserves the consideration of the costs of this suit, and of all other directions, until after the said master shall have made his report ; when either party is to be at liberty to apply to the court, as occasion shall require. No. 127. Final decree for a specific performance of an agreement. (Caption, and title of cause as im No. 79, ante, page 198.) This cause coming on to be heard for further directions on the report of the master in chancery, to whom the same stood referred, and the said report, together with the pleadings and proofs, having been read, and the counsel for the parties respectively having been heard, and the court being fully advised in the premises, and it appearing to the court that a BILLS FOR SPECIFIC PERFORMANCE. 337 Form of Decree. _ good title can be made by the complainant to the premises comprised in the agreement between the parties to this cause mentioned in the pleadings therein, and dated the day oi , 18 — ; it is therefore ordered, adjudged and decreed, and this court does order, adjudge and decree, that the said agree- ment so made and entered into between the complainant and defendant, and duly proved in this cause, be specifically per- formed. And it is further ordered, adjudged and decreed, that the complainant execute and deliver to the defendant a proper and sufficient conveyance in fee of the premises de- scribed in the same agreement between the parties, and par- ticularly described- therein, as follows, to wit: {Here insert description by metes and bounds^) to be approved by the master in chancery of this court, in case the parties differ about the same. And it is further ordered, adjudged and decreed, that the defendant, upon the tender or delivery to him of such conveyance, do pay unto the complainant the sum of dollars, the balance of the purchase money of said premises,, reported by the said master in chancery to be still due, with interest thereon at the rate of per cent, from the date of the said master's report. And it is further ordered, adjudged and decreed that the defendant pay to the complain- ant the costs of this suit, to be taxed. And it is further ordered, adjudged and "decreed, that the complainant have execution against the defendant for the said sum of dollars, the balance of said purchase money reported by the master to be due, with interest from the date of his report, and for the costs, to be taxed as aforesaid, according to the course and practice of the court. And either of the parties is to be at liberty to apply to this court as occasion may require. 22 CHAPTER XXYI. BILLS RELATING TO PARTNERSHIP MATTERS. Section 1. Where a Dissoltttion will be Decreed 2. Account Between Partners. 3. Appointment op a Receiver. 4. Forms op Bills. 5. Forms of Decrees and Orders. SECTION I. WHERE A DISSOLUTION WILL BE DECREED. Where a partnership is formed for a definite term, neither partner can file a hill for dissolution of the partnership, or for the appointment of a receiver, before the expiration of the time limited, merely -on the ground that he is dissatisfied, or that the partners quarrel, (a) In matters of difficulty or controversy between partners, a resort to a court of equity is most usual and most convenient for the adjudication and settlement of the same. (5) And where a party is a member of two different firms, chancery will adjust matters of difference which would otherwise be settled at law. (c) The courts of common law have no power whatever of de- creeing or causing a dissolution of a partnership, (d) In some cases, in which courts of equity would make such a decree, as where a partnership was formed through fraud, courts of law might apply the principle, that a contract so vitiated never had force, and on this ground declare it null, and avoid the partner- to) BennyB.Walsh, 2 Edw. Ch. 129 ; Loomis vs. MeKenzie, 31 Iowa, 425. (6) Bracken vs. Kennedy, 3 Scam. 559 ; Strong vs. Clawson, 5 Gilm. 346. (e) Haven vB.Wakefield, 39 111. 509. »(d) Parson on Part. 457 ; Story on Part. § 284 ; 1 Story's Eq. Jur. § 673 ; Stone vs. Fouse, 3 Cal. 294 ; Nugent vs. Lorke, 4 Cal. 320 ; Wilson vs. I/ussen, 5 Cal. 116 ; Barnstead vs. Empire Mining Co. 5 Cal. 299. BILLS RELATING TO PARTNERSHIPS. 339 Where a Dissolution will be Decreed. ship. But courts of equity have full power over this matter ; and upon a bill filed by any partner, alleging a sufficient cause, and upon proper evidence, if the facts are not admitted, the court will decree a dissolution of the partnership, (e) Where the duration of a partnership is fixed, it requires something more than the mere will of a party to dissolve it within the term ; but only a little more is needed, and a disso- lution will be granted where dissension prevents all hope of advantage. {/) "Where one partner got possession of the entire proceeds of the year's operation, without the consent of his copartner, (there being nothing in the copartnership agreement authorizing him to do so,) and assumed the exclusive control of the whole busi- ness, it was held to be such a breach of faith as to authorize a decree, for a dissolution of the partnership, (g) A decree for a dissolution will be warranted, if it is" impossi- ble that the partnership should be beneficially continued; namely, if the principles on which the scheme is based is found, on examination, to be erroneous and impracticable ; (h) or where the partnership is formed to effect a particular object, which is found to be impracticable, and wholly fails ; (i) or where the circumstances have so changed as to render it impossible to carry on the partnership without injury to all the partners ; (J ) or where the object of a partnership is destroyed, as a steamboat. (A) (e) Parson on Part. 457 ; Baxter vs. West, 1 Drewry & Sm. 173 ; Dumont vs. Rueppreeht, 38 Ala. 175 ; Meaher vs.Cae, 37 Ala. 201 ; Harper vs. Lamp- ing, 33 Cal. 641 ; Hamilton vs. Stokes, 4 Price, 161 ; Oldaker vs. Lavender, 6 Sim. 239 ; Green vs. BaVrett, 1 Sim. 45 ; Jones vs. Yates, 9 B. & C. 532 ; Colt vs. WoUaston, 2 P. Wms. 154 ; Fogg & Vanderslise vs. Johnston, 27 Ala. 432. (/) Bishop vs. Breekless, 1 Hoff. Ch. E. 534 ; Meaher vs. Cox, 37 Ala. 201. (jg) Kennedy vs. Kennedy, 3 Dana, 239 ; Gowan vs. Jeffries, 2 Ashm. 296 ; Maude vs. Bodes, 4 Dana, 144 ; Story vs. Moon, 8 Dana, 331 ; Garretson vs. Weaver, 3 Edw. Ch." 385. (A) Beaumont vs. Meredith, 3 Ves. & B. 180 ; Cloughva. Radcliffe, 1 DeGex &S. 164. (i) NockeUs vs. Crosby, 3 B. & C. 814; 5 Dowl. & R. 751. (j) Harrison vs. Tennant, 21 Beav. 482. (k) Claiborne vs. Creditors, 18 La. An. 501. 340 ' BILLS RELATING TO PARTNERSHIPS. Account between Partners. Bad temper, overbearing and oppressive conduct, quarrel- ing, indolence and inattention, intemperance or bad habits and disgraceful conduct, wild speculations, gross extravagance, absenting himself from his business or entering into other business engagements inconsistent with his duty to his partners, or any conduct which brings disgrace upon the firm or impairs their credit, (l) are all causes which may be sufficient, if their degree" be sufficient, and otherwise not. (m) SECTION II. ACCOUNT BETWEEN PARTNERS. Whenever there is a dissolution of a partnership, for any cause, it would seem that there must be an account, if it is demanded by any party in interest, (n) The taking of an account is a frequent preliminary to any further action by a court of equity ; because by this means alone can the court ascertain the true relation of the parties as to their rights and obligations, (o) An account and a dissolution seem to be so clearly connect- ed that an account is seldom granted unless a dissolution is also (I) Norway vs. Bowe, 19 Ves. 148 ; Waters vs. Taylor, 2 Ves. & B. 304 ; Howell vs. Hartley, 5 Ark. 278 ; Master vs. Kirton, 3 Ves. 74 ; Wilson vs. Greenwood, 1 Swanst. 481 ; Blakeney vs. Diifowr, 15 Beav. 40 ; Hall vs. Hall, 12 Id. 414, and note to 419 ; Williamson \e.Wilson, 1 Bland, 418 ; Fogg & Vanderslise vs. Johnston, 27 Ala. 432 ; Durbin vs. Barber, 14 Ohio, 811. (to) Parson on Part. 459. (n) Parson on Part. 511 ; Adams, Eq. 239, et seq. ; Collyer on Part. § 298 j 1 Story's Eq. Jur. g 671 ; Forman vs. Hanfray, 2 Ves. & B. 329 ; Harrison vs. ArmUage, 4 Mad. 143 ; Russell vs. Loscombe.A Sim. 8 ; Knowlesvs. Hough- ton, 11 Ves. 168 ; Waters vs. Taylor, 15 Ves. 15 ; Ex parte Broadbent, 1 Mont. & A. 635 ; see Hayes vs. Reese, 34 Barb. R. 151 ; Vermillion vs. Bailey, 27 III. 230 ; Pope vs. Salsman, 35 Mo. 362. (o) Baird vs. Baird, 1 Dev. & Bat. 524 ; McRae vs. McKinzie, 2 Dev. & Bat. 232 ; Camblat vs. Tapery, 2 La. An. 10 ; Kennedy vs. Kennedy, 3 Dana, 240. BILLS RELATING TO PAETNEfiSHIPS. 341 Account between Partners — Appointment of a Receiver. asked for ; (j>) but this cannot be deemed a rule of equity, (j) although in the great majority of cases, where the relations between the partners are such, that one of them can obtain an account only through the interposition of a court, a dissojution is and should be asked for. (r) On the filing of a bill in chancery for the settlement of part- nership accounts, the parties cannot introduce their individual accounts into the statement, (s) Equity will recognize and protect debts due from the firm to an individual memoer, or from a member to the firm. The proper remedy for the assignee of the rights of a part- ner, is a bill for the settlement of the partnership accounts, to which all the partners must be made defendants, (t) SECTION III. APPOINTMENT OF A RECEIVER. Where either partner has a right to dissolve the partnership, and the copartnership articles do not provide for the settlement of the concern, it is of course for a receiver to be appointed by the court, upon a bill for that purpose; (u) and the receiver will be directed to carry on the business, until a sale of the partnership property can be effected, (v) Where a bill is filed seeking a dissolution of a partnership, and it satisfactorily appears that the complainant will be enti- (p) Forman vs. Han/ray, 2 Ves. & B. 329 ; see Loscombe vs. Russell, 4 Sim. 8 ; Knowles vs. Havghtcm, 11 Ves. 168 ; Waters vs. Taylor, 15 Ves. 15 ; Walworth vs. Holt, 4 Mylne & Craig. 619, 635. (q) Richardson vs. Hastings, 7 Beav. 301 ; Fairthorne vs. Weston, 3 Hare, 387; Miles vs. Thomas, 9 Sim. 609 ; Goodman vs. Whitcomb, 1 Jac. & W. 593. (r) Loscombe vs. Russell, 4 Sim. 8 ; Waters vs. Taylor, 15 Ves. 10 ; For- man vs. Hanfray, 2 Ves. & B. 329 ; Chapman vs. Beach, 2 Jac. & W. 594 ; Pigott vs. Bagley, McClel. & T. 569 ; KrebeU Ma.White, 2 Tounge & C. 15 ; Parson on Part. 511-512. . (a) Hanks vs. Baber, 53 111. 292 ; see Bracken vs. Kennedy, 3 Scam. 559. (t) Bank vs. Carrollton Railroad, 11 Wallace, 624. («) Law vs. Ford, 2 Paige, Ch. R. 310; Oarretson vs. Weaver, 3 Edw. Ch. 885 ; Sloan vs. Moore, 37 Pa. St. R. 217. (v) Marten vs. Van Schaick, 4 Paige, Ch. R. 479; High on Receivers, § 481. 342 BILLS RELATING TO PARTNERSHIPS. Receiver — When Appointed — Form of Bill. tied to a decree for the dissolution, a receiver will be appointed as a matter of course, the obvious reason being that the same causes which would justify a decree for dissolution would also justify the appointment of a receiver, (w) When appointed. — Where it appeared that a copartnership was insolvent, and that the complainants, who were members, were excluded from their full share in the management of the concern, and that the defendant, who was the acting partner, neglected to keep proper books of account, and to keep them open for the inspection of the complainants, who were refused access to them, the court, on motion, appointed a receiver before answer and final decree, (x) As a general rule, a receiver will not be appointed without notice to those interested ; but where irreparable injury would arise from delay, a receiver will be appointed without notice, leaving the other party the right to apply to have the order superseded on cause shown, (y) For rules governing the appointment of a receiver, in a suit between partners, see Kerr on Receivers, 81-102; High on Receivers, § 472-552. SECTION IV. FOKMS OF BILLS. No. 128. Bill for a dissolution of a partnership, and for an injunction. To the Honorable , Judge of the Court of the County of — . — , in the State of , In Chancery sitting: Tour orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., your orator entered into an agreement with one C. D. and E. F., of the same place, the defendants hereinafter named, to form a copartnership with them in the (w) BvrdsaU vb. Colie, 2 Stockt. Ch. R. 65 ; Seighortner vs. Weisseriborn, 5 C. E. Green, 177 ; Dunn vs. MaNaught, 38 Geo. 179 ; Kirby vs. IngersoU. Harring. Ch. R. 18 ; Marten vb. Van Schaick, 4 Paige, Ch. 479. (x) Gowan vs. Jeffries, 2 Ashm. 296; High on Receivers, § 522-529. (y) Gowanvs. Jeffries, 2 Ashm. 296; Williamsonvs. Wilson, 1 Bland, 418. BILLS EELATING TO PARTNERSHIPS. 343 Form of Bill for Dissolution. business of auctioneers, which agreement was reduced to writ- ing and signed by your orator and the defendants, and was in the words and figures or to the purport and effect following, that is to say : (Mere set out the agreement verbatim,) as by the said agreement, ready to be produced in court, will appear. And your orator further represents, that the said copartner- ship business was entered upon and has ever since continued to be carried on by your orator and the defendants in pursu- ance of and under the said agreement, no other articles or instrument having ever been prepared and exeouted between them. Tour orator further represents, that having much reason to be dissatisfied with the conduct of the said C. D., and being desirous, therefore, to dissolve the said partnership, your orator on or about caused a notice in writing signed by your orator to be delivered to the said C. D. and E. F. in the words and figures or the purport and effect following, that is to say : [llere set met the notice, if one was given;) as in and by such written notice, now in the custody or power of the defendants or one of them, when produced, will appear. Your orator further represents, that the said 0. D. has from time to time since the commencement of the said partnership, applied to his own use from the receipts and profits of the said business very large sums of money, greatly exceeding the pro- portion thereof to which he was entitled, and in order to con- ceal the same the said C. D., who has always had the manage- ment of the said copartnership books, has never once balanced the said books. And your orator further represents, that having in the beginning of the year 18 — , discovered that the said C. D. was greatly indebted to the said copartnership, by reason of his application of the partnership moneys to his own use, your orator, in order to form some check upon the conduct of the said C. D., requested that he would pay all partnership moneys which were received into their bankers, and would draw for such sums as he had occasion for, but the said C. D. has wholly disregarded such request, and has continued to apply the partnership moneys received by him to his own use, with- out paying the same in to the bankers, and has also taken to his own use money received by the clerks, and has by such means greatly increased his debt to the partnership, without affording to your orator and the said E. F. any adequate means of ascer- taining the true state of his accounts. Your orator further represents, that he has, from time to time, applied to the said C. D. and requested him to come to a full and fair account in respect to the said copartnership trans- 344 BILLS RELATING TO PARTNERSHIPS. Form of Bill for Dissolution. actions, with which just and reasonable request your orator well hoped that the said C. D. would have complied, as in justice and equity he ought to have done. But now so it is, may it please your honor, the said C. D. absolutely refuses so to do; and he at times pretends that he has not received and applied to his own use more than is his due proportion of the partnership profits. Whereas your orator charges the contrary thereof to be the truth, and so it would appear if the said C. D. would set forth a full and true account of all and every his receipts and payments in respect of the said partnership transac- tions, and of the gains and profits which have been made in each year, since the commencement of the said partnership. And your orator charges that the said C. D. has in fact received the sum of dollars and upwards beyond his due proportion of the partnership profits, and that he is nevertheless proceeding to collect in the partnership debts and moneys, whereby the balance due from him will be increased, to the great loss and injury of your orator and the said E. F. And your orator charges that the said C. D. ought, therefore, to be restrained by the order and injunction of this honorable court from collecting and receiving any of the said partnership debts and moneys. And your orator further represents unto your honor, that the said E. F. refuses to join with your orator in this suit. (If deemed necessary, add interrogatories, see ante, page 72.) Forasmuch, therefore, as your orator is without adequate remedy in the premises, except in a court of equity ; and to the end that the said C. D. and E. F., who are made parties defendant to this bill, may be required to make full and direct answer to the same, ( If the oath is to he waived, say, "But not under oath, the answer under oath being hereby waived") that the said copartnership may be declared void, and that an account may be taken of all and every the said copartnership dealings and transactions from the time of the commencement thereof; and also an account of the moneys received and paid by your orator and the defendants respectively in regard there- to. And that the defendants may be decreed to pay to your orator what, if anything, shall upon the taking of the said accounts appear to be due to him, your orator being ready and willing, and hereby offering to pay to the defendants or either of them what, if anything, shall upon the taking of the said accounts, appear to be due to them or either of them from your orator. And that in the meantime the said C. D. may be restrained by the order and injunction of this honorable court from collecting or receiving the partnership debts or other money. And that your orator may have such other and further BILLS RELATING TO PARTNERSHIPS. 345 Bill for an Account — Affidavit for Injunction. relief in the premises as equity may require and to your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sheriff of the said county of , com- manding him that he summon the defendants, C. D. and E. F., to appear before the said court, on the first day of the next term thereof, to be held at the court house in , in the county aforesaid, then and there to answer this bill, etc. And may it please your honor to grant unto your orator the people's writ of injunction, to be directed to the said C. D., restraining him, his agents and attorneys, from collecting or receiving any of the debts due and owing to the said firm, and from using and applying any of the copartnership funds to his own use until the further order of said court. Solicitor for Complainant. A. B. (If an injunction is desired, add affidavit, as follows :) Wo. 1%9. Affidavit to a bill to obtain an injunction. State of - County of - > S8. On this — —day of , 18 — , before me personally ap- peared the above-named A. B. and made oath that he has heard read the above bill subscribed by him, and knows the contents thereof, and that the same is true, of his own knowl- edge, except as to the matters which are therein stated to be on his information or belief, and that as to those matters he believes it to be true. f Gierk y the Court Jfo. ISO. BUI for an account of partnership dealings, and an injunction, etc. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Tour orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., your orator and C. D., of the same place, entered into a general copartnership together for the pur- pose of carrying on a general wholesale ana retail dry goods business at, etc., the same to be carried on under the firm name and style of B. & D. ; that your orator engaged to and did bring into said business the sum of dollars, and was to receive Injoo-thirds of the profits, and, in the same propor- tion, to share the losses of said business ; and that the said C. D. engaged to and did bring into the said business the sum 346 BILLS KELATING TO PARTNERSHIPS. Form of Bill for Account, etc. of dollars, and was to receive one-third of the profits, and was to share the losses of said business in the same proportion; that the said copartnership business was com- menced on, etc., and was continued from that date until, etc., when the same was dissolved by mutual consent ; that during the continuation of said copartnership business a large amount of goods were sold by the said firm to various parties on a credit, and the said business remains unsettled. Your orator further represents unto your honor that no settlement of said copartnership business has ever been made between your orator and the said C. D. ; that since the expira- tion of the term of the said partnership, your orator has repeatedly applied to the said 0. D. to come to a final settle- ment and adjustment with respect thereto. And your orator well hoped that the said C. D. would have complied with your orator's reasonable request 'in that behalf, as in equity and justice he ought to have done. But the said C. D. de- clined, and absolutely refuses, so to do. Your orator further represents that Ihe said 0. D. has taken possession of the partnership books of the said firm, and has collected a large amount of the accounts due and owing to the same, and has refused to permit your orator to see and inspect said books of account, and wholly refuses to render to your orator any account of the copartnership moneys received by him, and to apply the same to the payment of the debts of the said firm. Your orator further represents that upon a just and true settlement of the accounts of the said partnership business, it would appear that there is a large balance due from the said C. D. to your orator, in respect of the said business. Your orator further represents, that the said C. D. is using the funds of the said copartnership in rash speculations on his own account, and is thereby in danger of drifting into insolv- ency ; and your orator fears, and charges that he is in danger of losing the amount so due him from the said C. D. in respect to the said copartnership dealings and transactions. By reason whereof the said C. D. ought to be enjoined and restrained by the injunction of this honorable court from further collecting the said copartnership accounts, and from using and further applying the funds of said firm to his own use ; and that some suitable person ought to be appointed by this honorable court to receive and take charge of the books of account of the said firm, and to collect the accounts due the same. Forasmuch, therefore, as your orator is without adequate remedy in the premises, except in a court of equity ; and to BILLS RELATING TO PARTNERSHIPS. 347 Form of Decree, etc. — Order Appointing Keceiver. the end that the said G. D., who is made party defendant to this bill, may be required to make full and direct answer to the same, but not under oath, the answer under oath being hereby waived; and fully set forth a true and just account of all his actings and doings in -respect to said copartnership business since the expiration thereof; and that an account may be taken nnder the direction of this honorable court, of all and every the said copartnership dealings and transactions, and that the same may be fully adjusted, and the respective rights of your orator and the defendant ascertained ; and that the defendant may be decreed to pay to your orator what, if anything, shall appear upon such account to be due from him ; your orator being ready and willing, and hereby offers to pay to the defend- ant what, if anything, shall appear to be due to the defendant from your orator ; and that some proper person may in the meantime be appointed by the court as receiver, to take charge of the said partnership books of account, and collect whatever money or property may belong or be due to the said firm; and that your orator may have such other and further relief in the premises as equity may require and to yqur honor shall seem meet. May it please, etc. [Add prayer for summons and injunc- tion as in the last precedent, No. 1%8, and affidavit, No. 129, ante, page 3^5.) SECTION V. FORMS OF DECREES AND ORDERS. No. 131: Order appointing a recewer in a suit between partners. (Proceed as in No. 81, ante, page WH, to the asterisk *, and continue:') It is ordered that E. F., of, etc., be, and he is hereby appointed receiver to receive the outstanding debts and effects of the late partnership of A. B. and C. D., in the pleadings in this cause mentioned ; that the said E. F. enter into a bond in the penal sum of dollars, with security, to be approved by the master in chancery of this court, con- ditioned for the faithful performance of his duties as such receiver, and that he will be answerable for what he shall receive of such outstanding debts and effects, and will pay the same, as this court shall, from time to time direct. And it is further ordered that the complainant and defend- ant do deliver over to the said E. F., as such receiver, all books 348 BILLS KELATING TO PARTNEKSHIPS. Decree for Account — Decree for Dissolution, etc. of account, securities and evidences of indebtedness, and effects belonging to the said partnership. And in case there shall be occasion to put any of the debts in suit for the recovery thereof, the said receiver is to make use of the names of the complainant and defendant, or either of them, as it may be- come necessary for that purpose. It is further ordered that the said receiver, from time to time, make report to the court of his proceedings in this behalf; and that he be at liberty to apply to the court for further directions as he may deem necessary. No. 132. Decree for cm account of partnership dealings. (Proceed substantially as in No. 81, ante, page W2, to the asterisk *, and then proceed as follows:') It is therefore ordered, adjudged and decreed, that this cause be referred to the master in chancery of this court to take an account of the partnership dealings between the complainant and defendant ; and for the better discovery of the matters aforesaid, the par- ties hereto respectively are ordered to produce before the said master, and to leave with him until otherwise directed, all books, papers and writings in their custody, or under their control, relating thereto ; and are to be examined upon oath and interrogatories, as the said master shall direct; and the said master will cause to come before him all such witnesses, whose testimony he may deem necessary, and examine them upon oath and interrogatories touching the said accounts. And it is ordered that what shall appear to be due from either party to the other on the balance of the said account, be paid by such party from whom such balance shall be found due to the other, within after the report of the said master shall have been approved and confirmed by this court. And it is further ordered that the said master make his report herein with all convenient speed ; and that the said master, or either of said parties, be at liberty to apply to the court for further directions, and the court reserves the consideration of costs until after the said master shall have made his report. No. 133. Final decree for a dissolution of partnership, and for an account. (Caption, and title of cause as in No. 79, ante, page 198.) This cause having come on to be heard upon the bill of com- plaint herein, the answer of the defendant thereto, the replica- tion of the complainant to such answer, and the report of the BILLS RELATING TO PARTNERSHIPS. 349 Decree for Dissolution and Account. master in chancery of this court, to whom this cause was here- tofore referred to take the proofs of the matters in issue in said cause, and to state an account of the partnership dealings be- tween said parties, which said report is hereby approved and confirmed, and having been argued by counsel for the respective parties ; and the court being lully advised in the premises, and on consideration thereof, doth find : that the allegations of the said bill are substantially true as therein stated ; and that the equity of this cause is with the complainant ; and that, etc. (Here insert any other matter fownd by the court) ; and that upon the statement of the account between the said parties, in respect to their partnership dealings, that there is now due from the defendant to the complainant the sum of dollars. It is tJterefore ordered, adjudged and decreed, by the court, that the copartnership heretofore existing between the said parties be, and the same is hereby, dissolved ; that the defend- ant pay to the complainant' within days from this date, the said sum of dollars, with lawful interest thereon from this day until paid, and also the costs of this suit to be taxed by the clerk of this. court ; and in default of such payment, that execution issue therefor. CHAPTEE XXYn. BILLS TO REDEEM. Section 1. Natttre of. 2. Who mat Redeem. 3. Within What Time to be Filed. 4. Pasties to. 6. Terms of Redemption. 6. Frame of Bill.* 7. Decree. SECTION I. NATUEE OF. It is a doctrine of courts of equity that a mortgage is a mere security for the debt, and only a chattel interest; and that until a decree of foreclosure, the mortgagor continues the real owner of the fee. The equity of redemption is considered to be the real and beneficial estate, tantamount to the fee at law ; and it is accordingly held to be descendible by inheritance, de- visable by will, and alienable by deed, precisely as if it were an absolute estate of inheritance at law. (a) It is not essential to the right of the mortgagor to redeem that he should do so within the time limited in the defeasance. There is no rule of law which requires that a redemption shall be made within the time limited by the mortgage. Until fore- closure, it is a subsisting right, unless barred by the lapse of time. (J) If a subsequent purchaser takes his conveyance with notice of the prior mortgage, he, of course, holds subject to the mort- gage, but he or his grantees have still the right to redeem, and can only be deprived of that right by a foreclosure of the mort- (a) Bruere VB.Wharton.'l Sim. 483 ; Russell vs. Topping, 5 McLean, 194; Russell vs. Ely, 2 Black, 575. (6) Preschbaker vs. Feaman, 32 111. 475 ; WUUtts vs. Burgess, 34 111. 494. BILLS TO EEDEEM. <► 351 Nature of — Deed Absolute on its Face, etc. gage, or by its being barred in some of the modes known to the law. (e) Deed absolute on its face, when deemed as a mortgage. — A deed absolute on its face will be deemed as a mortgage, in equity, if intended as a security for the payment of money ; (d) jnd the intention of the parties may be manifested either by a rritten defeasance, executed simultaneously with the convey- ance, or by the acts or parol declarations of the parties, (e) ind where a conveyance is in fact a mortgage, it continues a m ortgage, although Jihere may be a change of owners, if each change is coupled with notice of the original transaction, (f) If the transaction was in fact a loan or security for money owing, although the conveyance is absolute on its face, still it will be treated as a mortgage, but that fact must be satisfac- torily shown, {g) Where the evidence of indebtedness is retained by the mortgagee, after receiving a deed, absolute in terms, of the mortgaged premises, and the mortgagee gives back a lease to the grantor, and receives rent, equity will regard the deed as a mortgage. (A) The statute of Illinois provides that, " every deed conveying real estate, which shall appear to have been intended only as (e) Dunlap vs. Wilson, 32 111. 517. (d) Hughes vs. Edwards, 9 Wheat. 489 ; Sprigg vs. Bank of Mount Pleasant, 14 Pet. 201 ; 8. C. 1 McLean, 178, 384 ; Walton vs. Crowley, 14 Wend. 63 ; Morris vs. Nixon, 1 How. U. S. 118 ; Jaques vs. Weeks, 7 Watts, 261 ; Babcock vs. Wyman, 19 How. U. S. 289 ; Cornell vs. Pierson, 4 Halst. Ch. 478 ; S.C.% Curtis, C. C. 386 ; Chickering vs. Hatch, 3 Sum. 474 ; Par- rington vs. Pierce, 38 Maine, 447 ; Bentley vs. Phelps, 2 W. & M. C. C. E. 426 ; Eld/ridge vs. Jenkins, 3 Story, 181 ; Jewett vs. Cunard, 3 W. & M. C. C. K. 277 ; Graham vs. Sheken, 16 Legal Intel. 324 ; Harrison vs. Lemon, 3 Blackf. 51 ; Butphen vs.Cushman, 35 111. 186 ; De Wolfe vs. Strader, 26 111. 225 ; Dow vs. Chamberlin, 5 McLean, 281. (e) Delahay vs. Mc'Connel,^. Scam. 157 ; Coates vs. Woodworth, 13 111. 654 ; MiMer vs. Thomas, 14 111. 428 ; Tillson vs. Moulton, 23 111. 648 ; Deioen vs. Blake, 44 111. 135 ; Hunter vs. Hatch, 45 111. 178 ; Smith vs. Doyle, 46 111. 451. (/) Brown vs. Oaffney, 28 111. 149 ; Shamer vs. Woodward, lb. 277 ; Bet gard vs. McNeil, 38 111. 400. (g) Taintor vs. Keys, 43 111. 332 ; Dwen vs. Blake, 44 111. 135 ; ParmeUe vs. Lawrence, lb. 405. (A) Ennor vs. Thompson, 46 111. 214 352 - BILLS TO EEDEEM. Who may Redeem. a security in the nature of a mortgage, though it be an abso- lute conve3 r ance in terms, shall be considered as a mort- gage." (*) This statute is, however, only declaratory in its effect ; as such was the law before its passage. SECTION II. / WHO MAT EEDEEM. The equity of redemption is not only a subsisting estate and interest in the land in the hands of the heirs, devisees, assignees and representatives, strictly so called, of the mortgagor ; but it also may be asserted by any other persons who have acquired any interest in the lands mortgaged, by operation of law or otherwise in privity of title. (J) Such persons have a clear right to disengage the property from all incumbrances, in order to make their own claims beneficial or available. Hence a tenant for life, a tenant by the courtesy, a tenant in dower, a jointress, a reversioner, a remainderman, a judgment creditor, a junior mortgagee, and, indeed, every other person, being an incumbrancer, or having a legal or equitable title or lien thereon, may insist upon a redemption of the mortgage, in order to the due enforcement of their respective claims and interests in the land. (&) Even a person claiming under a prior or subsequent voluntary conveyance, may, as against a mortgagee, redeem. (?) When any such person does so redeem, he becomes substituted to the rights and interests of the original mortgagee in the land, (to) A junior incumbrancer has a right to redeem from a prior (i) Rev. Stat. (1874) 713; Rev. Stat. (1877) 676; see Heald vs. Wright, 75 III. 17; Knowles vs. Knowles, 86 111. 1; Hancock vs. Har/iei: 86 111. 445. (j) 4 Kent's Com. 162 ; 2 Story's Eq. Jur. § 291 ; Vpham vs. Brooks, 2 W. & M. 408. (k) 2 Story's Eq. Jur. § 1023 ; Pardee vs. Van Auken, 3 Barb. B. 534; Kinnoul vs. Money, 3 Swanst. 208 ; Dovme vs. Morris, 3 Hare, 394. (f) 2 Fonb. Eq. B. 3, ch. 1, § 8, and note p ; 2 Barb. Ch. Pr. 193, 194: Dunlap va.Wilson, 32 111. 517. (to) 2 Story's Eq. Jur. § 1023. BILLS TO REDEEM. 353 Within what Time to be Filed. mortgage by paying the amount due according to its terms as recorded, (w) As a general rule, the holder of the legal estate under the mortgagor is a proper person to redeem, whether he holds as trustee for others, or in his own right by a voluntary convey- ance from the mortgagor, (o) The complainant must be entitled to the legal estate of the mortgagor, or must claim a subsisting interest under him. (j>) # SECTION III. ■WITHIN WHAT TIME TO BE FILED. As a general rule there can be no redemption of a mortgage after twenty years from the time of the forfeiture, or of actual quiet and uninterrupted possession; (g) unless circumstances are proved by the mortgagor showing an acknowledgment of his title by the mortgagee ; (r) or unless the mortgagor has labored under some impediment; and even in that case, according to Lord Kenyon's opinion, there can be no redemp- tion after ten years from the time the impediment has been removed, (s) But it was held in Maryland that an. infant is to be allowed twenty years after he becomes of age to tile his bill to redeem, (f) Redemption will not be allowed before the time specified in a mortgage, even on tender of the principal of the debt, with interest, to the stipulated time of payment, and costs, (u) (n) Gardner vs. Emerson, 40 III. 296 ; Solbrook vs. Worcester Bank, 2 Curtis, 244. (o) Beach vs. Shaw, 57 111. 17 ; see Strang vs. Allen, 44 111. 428 ; Roberts vs. Fleming, 53 111. 196. (p) Grant vs. Duane, 9 Johns. 591 ; Purvis vs. Brown, 4 Ired. Eq. 413. (q) Whiting vs. White, Coop. 4; Demarest vs. Wynkoop, 3 Johns. Cli. 129 ; Beckford vs. Wade, 17 Ves. 99 ; Slee m. Manhattan Co. 1 Paige, Ch. 48 ; Anon. 3 Atk. 313 ; Moore vs. Cable, 1 Johns. Ch. 385 (r) Barron vs. Martin, 19 Ves. 327 ; Hodle vB.Heaiey, Mad. & Geld. 181 • Dexter vs. Arnold, 3 Sum. 152. («) Beckford vs. Wade, 17 Ves. 99. (t) Lamar vs. Jones, 3 Har. & McHen. 328 ; 2 Barb. Ch. Pr. 194-195 (v) Abbe vs. Goodwin, 7 Conn. 377. 23 354 BILLS TO REDEEM. Parties to — Complainants. A mortgagor seeking to redeem from a sale of the premises by the mortgagee, under a power in the mortgage, on the alleged ground of a defective notice of the sale and inadequacy of price, must file his bill in apt and reasonable time ; (v) and in such case the whole of the mortgage money must be ten- dered ; not merely the amount of the sale, (w) SECTION IV. PARTIES TO. 1. Complainants. — If the bill is brought byi the mortgagoi against the mortgagee, there having been no death or assign- ment on either side, it is, of course, that no other persons need be made parties. If the mortgagor is dead, then his heir, 01 his devisee, if the estate has been devised, is the proper party to redeem, if it is a mortgage in fee ; and if a mortgage for a term of years only, then the personal representative of the deceased, (x) If two estates are mortgaged, and by the death of the mortgagor, the equity of redemption of the two estates is vested in different persons, all of them must be made parties to a bill to redeem, (y) If the bill charges that a part of the mortgage, principal and interest, has been paid bj T the mortgagor; in his lifetime, the personal representative of the mortgagor, as well as his heir or devisee, is a necessary party to the account from what is due on the mortgage, (s) Indeed, as the personal assets are usually first to be applied in exoneration of the real estate mortgaged, it would seem that in a bill by an heir or devisee to redeem, he might properly make the personal representative of the mortgagor a party defendant, in order to have the assets 60 («) Hamilton vs. Lubukee, 51 III. 415. (w) Collins vs. Riggs, 14 Wallace, 491. (x) 2 Barb. Ch. Pr. 195 ; Story's Eq. PI. § 182. (y) Ctiolmondeley vs.CHnton, 2 Jac. & W. 1, 2. (z) 8. G. Id. 135 ; 2 Barb. Ch. Pr. 196 BILLS TO EEDEEM. 355 Parties to — Complainants. applied ; and thus relieve himself from the burden of the incumbrance, (a) ■ If a mortgagor has conveyed his equity of redemption to trustees, for the benefit of his other creditors, the trustees alone are generally the proper parties to a bill to redeem, and not any of the creditors entitled under the trust, (b) But a special case may exist, in which such creditors would be entitled to redeem ; as, for example, if the trustees should collude with the mort- gagee, or should refuse to sue, or should be insolvent, (c) In such a case the bill should be brought in behalf of all the cred- itors ; for a few could not redeem for their own benefit, (d) Where the mortgagor has conveyed the estate, subject to the mortgage, and the grantee is to pay off the mortgage, he may maintain a suit to redeem, without making the mortgagor a party. But if the conveyance be of the whole real estate, absolutely free from incumbrances, then the mortgagor should, or at least may, be made a party, in order to be bound by the decree, and to assist in taking the account ; he being primarily liable to discharge the mortgage. If the assignment is made to several persons jointly, all of them should be parties to the bill to, redeem, (e) To a bill brought by a second or subsequent mortgagee, to redeem either one or all of the antecedent mortgages, the mort- gagor or his heir or other proper representative in the realty, is a necessary party ; for it is said the natural decree in such a case is that the second mortgagee shall redeem from the first mortgagee, and the mortgagor, or his representatives in the realty, shall redeem from him or stand foreclosed. And a court of equity in such case, endeavors to make a complete decree that shall embrace the whole subject, and determine upon the (a) Story's Eq. PL § 182 ; 2 Barb. Ch. Pr. 196 ; Howell vs. Price, 1 P. Wms. 291 ; Bradshaw vs. Outran,, 13 Ves. 234 ; Duke of Cumberland, vs. Coddrinqton, 3 Johns. Ch. 257. (Z>) Coop. Eq. PI. 175 ; Troughton vs. Binkes, 6 Ves. 573, 575. (c) Troughton vs. Binkes, 6 Ves. 573, 575. (d) Id. lb. ; 2 Barb. Ch. Pr. 196. (e) Palmer vs. Earl of Carlisle, 1 Sim. & Stu. 423, 425 ; True vs. Haley, 24 Maine, 297 ; Story's Eq. PI. § 183. 356 BILLS TO EEDBEM. Parties to — Defendants. rights of all the parties interested in the estate. (/) But ill such a case, it seems, that the personal representative of the mortgagor would not be a necessary party, even though it might, perhaps, be competent to make him a party, (ff) 2. Defendants. — In general terms, it may be stated, that all persons ought to be made parties whose interests or rights may be affected by the decree. (A) The mortgagee is, of course, the only necessary and proper party in all cases, where there is no other outstanding interest under him. If the mortgage is in fee, and the mortgagee is dead, the heirs of the mortgagee, or other persons, in whom the legal estate is vested by devise or otherwise, must be made parties ; because they have the legal title, and are to be bound by the decree. And the personal representatives of the mortgagee must also be made parties ; because, generally, they are entitled to the mortgage money, when paid, as it is to be returned to the same fund out of which it originally came. (*) But if the mortgage is of a term of years, created by the owner of the fee, the personal represen- tatives of the mortgagee only, without the heirs, are the proper parties ; for they alone are interested in the term, unless the term has been disposed of in. favor of third persons ; in which case they also should be made parties. (J) When the mortgage has been absolutely assigned by the mortgagee, without the authority and privity of the mortgagor, it is not necessary, in a bill brought by the latter to redeem, to make any person but the last assignee a party to the bill, however many mesne assignments have been made; for, in such a case, the last assignee is understood to have contracted not only to stand in the place of the original mortgagee, and to represent him, but also to stand in the place, and as the i (/) Story's Eq. PI. § 183 ; Thompson vs. Baskerville, 3 Ch. R. 215. (g) Fell vs. Brown, 2 Bro. Ch. R. 278 ; 2 Barb. Ch. Pr. 196, 197 ; Polk vs. Clinton, 12 Ves. 58, 59 ; Hobart vs. Abbott, 2 P. Wms. 643. (h) Edwards on Parties, 87-98 ; Story's Eq. PI. § 188. (i) Story's Eq. PI. § 188 ; Coop. Eq. PI. 37 ; Anon. 2 Freem. 52 ; Clcvrk- son vs. Bovyyer, 2 Vern. 66 ; Dexter vs. Arnold, 1 Sumner, 109. (J) Osbowrn vs. Fallows, 1 Buss. & Mylne, 741 ; Coop. Eq. PL 37 BILLS TO REDEEM. 857 Parties to — Complainants — Terms of Redemption. representative of all the other mesne assignees, until the title was taken by himself; and he may accordingly be decreed to convey, (k) But where the mortgagor seeks in his bill an account of rents and profits, or other sums received by the mortgagee before the assignment, the mortgagee should be made a party to the bill, as well as the assignee, for he is a necessary party to the account. (I) "Where the mortgagee has not assigned his whole interest in the mortgaged property, but he retains an interest in it in part, he is a necessary party, as well as the assignee, to a bill to redeem, (m) So, where there are successive mortgages, the second embracing a part only of the estate comprehended in the first, if the second mortgagee brings a bill to redeem the first mortgage, and the equity of redemption of the mortgagor in the different estates has become vested in different persons, all of them should be made parties to the bill, for they are all interested in taking the account. (») Where the mortgagee has assigned his whole interest upon certain trusts, the trustee and cestuis que trust, or beneficiaries, are equally necessary parties to the bill to redeem, (o) SECTION V. TEEMS OF BEDEMPTION. A mortgagor cannot redeem without paying what is really due ; and where a mortgagee buys in an incumbrance, he will be allowed, as against the mortgagor, all that is due upon it, (k) Hill vs. Adams, 2 Atk. 39 ; Chambers vs. Goldwin, 9 Ves. 268, 269 ; Bishop of Winchester vs. Beamer, 3 Ves. 315, 316 ; Lennon vs. Porter, 2 Gray, 473. (I) Anon. 2 Freem. 59 ; Lowther vs. Carlton, 2 Atk. 139 ; Story's Bq. PI. §190. (m) Hdbart vs. Abbott, 2 P. Wms. 643 ; Norrish vs. Marshall, 5 Mad. 475. (n) Polk vs. Clinton, 12 Ves. 48 ; Chofonondeley vs. Clinton, 2 Jac. & Walk. 134 ; Story's Eq. PI. § 191. . (o) Whistler vs. Webb, Bumb. 53 ; Wetherell vs. Collins, 3 Mad. 255 ; Brew vs. Harman, 5 Price, 319. 358 BILLS TO REDEEM. Terms of Redemption. although he may have bought it for less. But it is otherwise • if the heir or trustee of a mortgagor buys in an incumbrance as against subsequent incumbrances and creditors ; in which case he can only be allowed what he has paid for the incum- brance. (_p) A mortgagor filing a bill to redeem . must pay the costs of persons defendants claiming under the mortgagee, upon the principle that, at law, the mortgage being forfeited, the mortgagee is at liberty to deal with it as his own prop- erty, (s) As a general rule, a party coming into a court of equity to redeem, pays costs to the defendant, in addition to the amount due upon the mortgage, although he obtains the relief prayed for ; (r) yet if the defendant improperly resists the claim of the complainant to redeem, or sets up an unconscientious defense, he will be refused his costs, and may be compelled to pay costs to the adverse party, in the discretion of the court, (s) There can be no redemption without an allegation of pay- ments, or a tender of the mortgage debt and interest, (i) But a bill for redemption, which sets forth a liquidation by the parties of the amount due, and" a tender and refusal thereof, was held not to be defective for want of an offer to pay what should be found due on account, (u) Payment may be made or tendered after the day named in the mortgage, (v) Any attempt to limit or fetter the right to redeem will be held void., (w) If several are interested in the equity of redemption, and (p) Darcey vs. Hall. 1 Vera. 18; M osier vs. Norton, 83 111. 519. (q) 2 Barb. Cli. Pr. 19!) ; Harpe,- vs. Ely, 70 111. 581. (r) Vroom vs. Ditmas, 4 Paige, Ch. 526 ; Benedict vs. Oilman, lb. 58 , SL e vs. Manhattan Co. lb. 49. (*) Id. lb. ; 2 Barb. Ch. Pr. 199. \t) Saunders vs. Frost, 5 Pick. 259 , Bank of South Carolina vs. Rose, 1 Strobh. Eq. 2.57 ; Hooper vs. Bailey, 28 Miss. 328. (u) Barton vs. May, 3Sandf. Ch. R. 450. (v) Rogan vs. Walker, 1 Wis. 527. (w) Robinson vs. Farelly, 10 Ala. 472 ; Henry vs. Dams, 1 Johns. Ch. 40 ; Clark vs. Henry, 2 Cow. 324 ; Wright vs. Bates, 13 Vt. 341 ; Dougherty vs Colgan, 6 Gill & J. 275. BILLS TO REDEEM. 359 Terms of Redemption — Frame of Bill. only one is willing to redeem, he must pay the whole mortgage debt, (x) The tender of the amount due must be absolute ; where the complainant offered to pay if the defendant would reassign and transfer to him, it was held insufficient ; (y) and not only the original consideration, but subsequent advances made by the mortgagee, must be tendered ; (s) nor can the mortgagor insist upon a release, (a) A party seeking to redeem a mortgage tainted with usury, will be required to pa^y legal interest, on the principle that he who asks equitable relief should do equity, and equitv would require him to pay legal interest, (b) It is essential to a bill to redeem a mortgage, that the com plainant should offer to pay the debt, interest and costs, (c) But it is not essential that he should pay the money due before filing his bill, or that he make any allegation of such offer. Such an oifer would, however, entitle him to costs and a sus- pension of interest, (d) SECTION VI. FBAME OF BILL. A bill to redeem may properly be framed with a double aspect, so that the complainant may avail himself of a tender if his proof thereon shall be sufficient, or, failing in that, prav an account and be permitted to pay the amount found due. Regularly, however, the prayer should be in the alternative, (e) (x) Gibson vs. Crehone, 5 Pick. 146 ; Taylor vs. Porter, 7 Mass. 355 ; Smith vs. Kelley, 27 Maine, 237. {y) Wendell vs. New Hampshire Bank, 9 N. H. 404. (z) Ogle vs. Ship, 1 A. K. Marsh. 287 ; see Brown vs. Gaffney, 82 111. 251. (a) Loring vs. Cook, 3 Pick. 48. , | (b) Snyder vs! Griswold, 37 111. 216 ; Cushman vs. Sutphen, 42 111. 256 ; see Gerrish vs. Black, 104 Mass. 400 ; Parkhurst vs. Cummings, 56 Maine, 155. (e) Beekman vs. Frost, 18 Johns. 144 ; S.G.I Johns. Ch. R. 288. (d) Barnard vs. Cushman, 35 111. 452 ; Dwen vs. Blake, 44 111. 185. (e) Gooding vs. Riley, 50 K. H. 400. 360 BILLS TO REDEEM. Bill by Heirs of Mortgagor against Mortgagee to Redeem. The complainant should offer in his bill to pay the amount due the defendant. {/) No. 134~ Bill by heirs at law of mortgagor, against mortgagee, to redeem. To the Honorable . Judge of the Court of the County of , in the State of , In Chancery sitting : Your orators, A. B. and B. B., of, etc., respectfully represent unto your honor, that they are the sons and only heirs at law ot C. B., late of, etc., deceased ; that the said C. B., in his life- time, to secure the payment of the principal sum and interest of one certain promissory note for the sum of dollars, bearing date, etc., and payable after date, with interest at the rate of per cent, per annum, signed by the said C. B., and payable to one E. F., the defendant hereinafter named, on, etc., by a mortgage deed of that date, conveyed to the said E. F. in fee simple, the following described real property, situate and being in tJie county of , in the state of , to wit : (Here insert description) subject, however, to a condition of defeas- ance upon the payment of the principal sum and interest afore- said, according to the tenor and effect of the said promissory note ; which said mortgage deed was, on, etc., filed for record in the recorder's office of the said county of ; as by the said mortgage' deed, now in the possession or under the control of the defendant, will, when produced, appear ; a copy of which is hereto attached and marked " Exhibit A," and is made a part of this bill. Your orators further represent that the principal sum and interest of the said promissory note was not paid at the time the same became due, whereby the estate of the defendant in the said premises became absolute at law; whereupon the defendant entered into possession of the same, and the receipts of the rents and profits thereof, and still retains the same. Your orators further represent, that the said C. B., on, etc., departed this life, leaving your orators, then infants under the age of twenty-one years, his sons and only heirs at law ; that your orator, A. B., on, etc., attained the age of twenty-one years, and your orator, B. B., attained the same age on,«etc. ; that your orators have, from time to time, since their majority applied to the defendant, E. F., to be let in to redeem the said mortgaged premises; but there being a considerable amount due upon the (P Beehman vs. Frost, 18 Johns. 148 ; 8. G 1 Johns. Ch R. 288. BILLS TO REDEEM. 361 Bill by Heirs of Mortgagor agsiast Mortgagee to Redeem. said mortgage, they were not then able to pay, and the defend- ant refused to permit your orators to redeem the said premises on any other terms than a full payment of all the money which he alleged to be due him, without deducting the rents and profits received by him while he held the possession of said premises. Tour orators further represent, that the interest of the said principal sum of dollars, and all, or the greater part of the principal, have been satisfied and paid out of the rents and profits of the said mortgaged premises, received by the defend- ant, which are quite considerable ; and your orators have lately renewed their requests to the defendant to permit them to redeem said premises, and to enable your orators to do so, to account with them for the rents and profits of the said prem- ises received by the defendant during the time he has been in the possession of the same, which the defendant refused to do, pretending that your orators have no equity- of redemption in the said premises. Forasmuch, therefore, as your orators are without remedy in the premises, except in a court of equity ; and to the end that the said C. D., who is made a party defendant to this bill, may be required to make full and direct answer to the same, but not wader oath, the answer under oath being hereby waived,' and especially that he may be compelled to fully and particu- larly answer and set forth whether any, and what part, of the said principal sum and interest of the said promissory note, is now due and owing to him on the security of the said mort- gaged premises, and particularly how he makes out and com- putes tiie same ; and whether the yearly rents and profits of the said premises, since the defendant has been in possession thereof, have not been much more, and how much, than suf- ficient to pay the interest due on the said principal sum, and all, or a considerable, and what, part thereof, or how otherwise ; and that the defendant may answer and fully set forth at what yearly rent or rents the- said mortgaged premises have, or might nave been let, since he has been in possession thereof; and whether he has not, or, without his willful neglect or default, might not have received the whole of the rents and profits of the said mortgaged premises, since he has been in possession thereof, and if not, why not ; and that an account may be taken, under the direction of the court, of what is now due and owing to the defendant for the principal sum and interest aforesaid ; and that an account may be taken of the rents and profits of the said premises, received by the defendant, or by any other person on his behalf, or which, without his willful neglect or 362 BILLS TO REDEEM. Bill to Redeem from Deed absolute on its Face. default, might have been received by him since he entered into the possession of said premises ; and that in taking such account, rests may be made, from time to time, when and as the rents and profits shall appear to have exceeded the interest in arrear ; and that upon the payment by your orators of what, if anything, shall be found remaining due to the defendant, in respect of the said principal sum and interest, which your orators hereby offer to pay, the defendant may be decreed to surrender and deliver up the possession of the said mortgaged premises to your orators; and that the defendant may be compelled to release said mortgage upon the records of said county ; and that your orators may have such other and further relief as equity may reqxiire, and to your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sheriff of the said county of com- manding him that he summon the defendant, E. F., to appear before the said court, on the first day of the next term thereof, to be held at the court house in , in the county of aforesaid, then and there to answer this bill, etc. Sol. for Complainant. (Attach " Exhibit A.") No. 135. Bill to redeem from a deed absolute on its face, but which was intended as a mortgage. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., your orator being indebted unto one C. D., of, etc., the defendant hereinafter named, in the sum of dollars, to secure the same, with interest thereon at the rate of — per cent, per annum, to be paid on, etc., by an absolute deed of conveyance of that date, conveyed to the said C. D. in fee simple, the following described real property, to wit : (Here insert the description /) which said deed was, on, etc., duly filed for record in the recorder's office of the said county of ; as by the said deed, now in the possession or under the control of the said C. D. will, when produced, appear ; a copy of which is hereto attached, and marked " Exhibit A," and is made a part of this bill of complaint. Your orator further represents, that the said deed of convey- ance, although appearing to be absolute on its face, was. not intended to be such by your orator and the said C. D., but on the contrary thereof, it was expressly agreed and understood BILLS TO EEDEEM. 363 Bill to Redeem from Deed absolute on its Face. between them, that the same, and the said premises thereby con- veyed, were to be held by the said C. D. simply as a security for the payment of the said sum of money, and interest as aforesaid ; and. that upon the payment of that sum and interest to the said C. D., the said C. D. would re-convey the said premises to your orator by an absolute deed. Tour orator further represents, that the said C. D., on, etc., entered, into the possession of the said premises, and the receipts of the rents and profits thereof, and still retains the same. Your orator further represents, that he has paid all the inter- est due on the said sum of dollars, to the said C. D., from the date of the said deed until, etc., when the said C. D. refused to receive further interest thereon from your orator ; that your orator has always been, and still is, ready to pay the said C. D. what is due to him for principal and interest on the said sum of money ; and your orator well hoped that the said C D. would have received the same, and that he would re-con- vey to your orator the said premises as in justice and equity he ought to have done. But now so it is, may it please your honor, he, the said C. D., in order to deprive and defeat your orator of the benefit of redeeming the said premises, does pretend and give out that your orator did not execute the said deed of conveyance to the said C. D. as a security for the repayment of the said sum of money, with interest as aforesaid, but does pretend that the said sum of dollars was paid to your orator in considera- tion of the absolute purchase of the said premises ; and that the said deed was not intended between the parties thereto to be a mere security for the said sum of money, and interest as aforesaid ; whereas, your orator charges the contrary of such pretenses to be the truth ; and, upon the pretenses aforesaid, the said C. D. refuses to come to any manner of account with your orator, or to re-convey the said premises to him, although your orator has freqnently, and in a friendly manner, applied to him for that purpose, and offered to pay him whatever, if anything, should be found to be due to the said C. D. upon an account being taken with reference to the said transaction. All of which actings, doings and pretenses of the said C. D. are contrary to equity and good conscience, and tend to the manifest wrong, injury and oppression of your orator. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity, and to the end that the said C. D., who is made a party defendant to this bill, may be required to make full and direct answer to the same, but 364 BILLS TO REDEEM. Bill to Redeem Goods Pledged, etc. not under oath, the answer under oath being hereby waived ; and that an account may be taken under the direction of. this honorable court, of what is now due and owing to the defend- ant for the principal sum and interest aforesaid ; and that an account may also be taken of the rents and profits of the said premises, received by the defendant, or by any other person on his behalf, or which, without his willful neglect or default, might have been received by him since he entered into the possession of said premises ; and that, in taking such account, rests may be made from time to time, when and as the rents and profits shall appear to have exceeded the interest in arrear ; and that upon the payment by your orator of what, if anything, shall be found remaining due to the defendant in respect of the said principal sum and interest, which your orator hereby offers to pay, the defendant may be decreed to surrender and deliver up the possession of the said premises to your orator ; and that the defendant may be compelled to re-convey the said premises to your orator by sufficient and proper deed of conveyance in fee ; and that he be compelled to surrender to your orator all deeds, writings and tax receipts pertaining to said premises; and that your orator may have such other and further relief as equity may require and to your honor shall seem meet. May it please your honor, etc. {Pray for process as in No. 134, ante, page 360.) JVo. 136. JSitt to redeem goods which were deposited as a security for money lent. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting: Tour orator, A. B., of, etc., respectfully represents unto your honor, that your orator having occasion for a sum of money for the purpose of his business, made application to one C. D., of, etc., the defendant hereinafter named, to lend him the same, and thereupon the said C. D., on or about , advanced and lent to your orator the sum of dollars, and in order to secure the repayment thereof, with interest at the rate of — per cent, per annum, your orator deposited with the defendant the following described property, to wit: (Here describe it,) which was of the value of dollars and up- wards, and at the same time executed and delivered to the defendant a bill of sale of the said goods and chattels so deposited with him, but it was not meant and intended thereby, BILLS TO REDEEM. 365 Bill to Set Aside Foreclosure, and to Redeem. either by your orator or the defendant, that the said trans- action should amount to an absolute sale of the said goods and chattels to the defendant, but it was expressly agreed between your orator and the defendant that your orator should, never- theless, be at liberty to redeem the same. And your orator further represents, that being desirous to redeem the said goods and chattels, he has repeatedly applied to the defendant and has offered to repay him the said sum of dollars, with lawful interest thereon, on having said goods and chattels re-delivered to him ; with which just and reasonable requests your orator well hoped that the defendant would have complied, as in justice and equity he ought to have done. But now so it is, may it please your honor, he, the said C. D., denies that said property was delivered to him as a security, and refuses to allow your orator to redeem the same, or to re-deliver the said property to your orator. Forasmuch, therefore, as your orator is without adequate remedy in the premises, except in a court of equity ; and to the end that the said C. D., who is made party defendant to this bill, may be required to make full and direct answer to the same, but not under oath, the answer under oath being hereby waived; and that an account may be taken of what is due to the defendant, for principal and interest, in respect to the said loan of dollars ; and that upon payment thereof by your orator, which he hereby offers to pay, the defendant may be decreed to deliver over to your orator the said goods and chattels so deposited with him as aforesaid ; and that your orator may have such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sheriff of the said county of , commanding him to summon the defendant, C. D., to appear before the said court on the first day of the next term thereof, to be held at the court house, in , in the county aforesaid, then and there to answer this bill, etc. Sol. for Complainant. No. 137. Bill to set aside a decree of foreclosure, etc., by heir of mortgagor against mortgagee. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your honor, that B. B., late of, etc., now deceased, in his lifetime, 366 BILLS TO EEDEEM. Bill to Set Aside Foreclosure, and to Redeem. on, etc., executed a mortgage deed in fee simple to one C. D., the defendant hereinafter named, upon the following described premises, to wit : {Here insert description ;) which said mort- gage was made to secure the payment of a certain promissory note of the same date, for the sum of dollars, payable to the defendant after date ; which said mortgage was recorded in the recorder's office of said county, on, etc., as will more fully appear from a copy of said mortgage hereto attached and marked " Exhibit A." Your orator further represents, that the said B. B. departed this life, on, etc., leaving your orator, his son and only heir at law, then of about the age of years. , Your orator further represents, that during his minority, and on, etc., the defendant filed his bill of complaint in this court against your orator, for a foreclosure of his right of redemption in the said mortgaged premises ; but your orator was not repre- sented in such bill to be then an infant; and the defendant caused and procured one E. F., since deceased, who had acted as the solicitor in the management of your orator's said father's affairs in his lifetime, to put in an answer in the name of your orator, and without ever, acquainting your orator or any of his friends or relations thereof; in which said answer a much greater sum was stated to be due from your orator, upon the said promis- sory note and mortgage to the defendant, than in fact was really owing to him, and for which it was untruly stated that the said mortgaged premises were an insufficient security ; and in conse- quence of such answer being put in, the defendant afterwards, on, etc., in conjunction with the said E. F., obtained an abso- lute decree of foreclosure against your orator ; which your orator has only lately discovered, and of which he had no notice ; and in which said decree no day was given to your orator, who was an infant when the same was rendered, to redeem when he became of the age of twenty-one years ; as by the record and proceedings of the said foreclosure now remaining in this court, reference thereto being had, will more fully appear. Your orator further represents, that he attained the age of twenty-one years on, etc. ; and shortly afterwards, having dis- covered that such transactions had taken place during his minority 'as aforesaid, by himself and his agent represented the same to the defendant, and requested him to deliver up posses- sion of the said mortgaged premises to your orator, upon being paid the principal sum and interest, if any, actually and fairly due thereon, which amount your orator tendered, and has always been ready to pay, and which would have been paid by the • BILLS TO REDEEM. 367 Decree. personal representatives of the said B. B., out of his personal assets, during your orator's minority, had any application been made for that purpose, but this the defendant refused to do. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. D., who is made party defendant to this bill, may be required to make full and direct answer to the same, but not under oath, the answer under oath being hereby waived ; and that the said decree of foreclosure may be set aside, and be de- clared to be null and void ; and that an account may be taken of what, if anything, is now due to the defendant for principal and interest on said promissory note and mortgage ; and that an account may also be taken of the rents and profit's of said mortgaged premises, which have or might have been received by or on behalf of the defendant since he came in possession thereof; and if the same shall- appear to have been more than the principal and interest due, then that the residue thereof may be decreed to be paid-to your orator, and that your orator may be at liberty to redeem the said mortgaged premises on payment of the principal sum and interest, if any, remaining due on the said security ; and that the defendant may be de- creed, on being paid such principal sum and interest, which your orator hereby offers to pay, to deliver Up the possession of said mortgaged premises,, free from all encumbrances, to your orator ; and that the said mortgage may be fully satisfied and released of record ; and that your orator may have such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sheriff of the said county of , commanding him that he summon the defendant, 0. D., to appear before the said court, on the first day of the next term thereof, to be held at the court house in in the county of aforesaid, then and there to answer this bill, etc. Sol. for Complainant. SECTION VII. DECREE. If the mortgagor is permitted to redeem, the decree directs a reference to the master in chancery to ascertain and report the amount due for principal and interest, and orders the com- plainant to pay that amount within a specified time after the confirmation of the master's report, together with the costs ; 368 BILLS TO EEDEEM. Decree for Redemption. and that upon his so doing, the mortgagor shall convey to him the mortgaged premises. And it directs that upon the com- plainant's default, the bill be dismissed with costs, (g) The time allowed for the redemption is not fixed and certain, but rests in the sound discretion of the court, to be regulated by circumstances. (A) And, in general, the time allowed will uot be afterwards extended, (i) "Where the party fails to redeem within the time specified, the usual decree is that the bill be dismissed ; and such dis- missal amounts to a bar of the equity of redemption. (J) But the dismissal of the bill, for want of prosecution, will not have that effect, (k) The decree of dismissal may be moved for, of course, after the master's report has been confirmed, upon an affidavit that the time has expired, and the money has not been paid. (Z) No. 138. Decree for redemption. {Caption, and' title of cause as in No. 79, ante, page 198.) This cause having come on to be heard upon the bill of com- plaint herein, the answer of the defendant thereto, the replica- tion of the complainant to such answer, and the proofs taken in said cause, and having been argued by counsel for the respective Sarties ; and the court being fully advised in the premises, doth nd : that the allegations in the said bill contained are true as therein stated ; ana that the equities of this cause are with the complainant. • It is therefore ordered, adjvdged and decreed, by the court, that this cause be referred to the master in chancery of this court, to take an account of what is due to the defendant for principal and interest on the said mortgaged indebtedness in the bill of complaint mentioned ; and also to take an account {g) 2 Barb. Ch. Pr. 199. (A) Perine vs. Dunn, 4 Johns. Ch. 140. (t) Id. ; Brinckerhoff vs. Lansing, 4 Johns. Ch. 65 ; Novosettski vs. Wake- field, 17 Ves. 417. {J) Perine vs. Dunn, 4 Johns. Ch. 143 ; Gholmiey vs. Duchess of Oxford, 2 Atk. 267 ; Bishop of Winchester vs. Paine, 11 Ves. 199 (k) Sandsand vs. Hardy, 18 Ves. 460. (I) Stuart vs. WorraU, 1 Bro. C. C. 581 ; Seaton on Decrees, 147 ; McDon- ough vs. Shev&ridge, 2 Ball & B. 564. BILLS TO EEDEEM. 369 Decree for Redemption. of the rents and profits* of the said mortgaged premises, which have come to the hands of the defendant, or of any other per- son or persons by his order, or for his nse, or which he, without his willful default, .might have received ; and what shall he •coming on the said account of rents and profits, is to be deducted out of what shall be found due to the defendant for principal and interest. And for the better taking of the said account, the parties are to produce before, and leave with, the said mas- ter, all deeds, books, papers, tax receipts, and writings in their possession or power relating thereto, and are to be examined on oath as the said master shall direct. And the said master will cause to come before him all such witnesses whose testi- mony he may deem necessary in the taking of the said accounts, and examine them upon oath and interrogatories touching the matters aforesaid. And what upon the balance of the said account, shall be certified to be due to the defendant, for his principal and interest, and costs, it is ordered, adjudged and decreed, that the complainant do pay to the defendant, within after the said master shall have made his report, and the same shall have been confirmed ; and that upon such payment being made, the defendant do resurrender the said mortgaged premises, to wit: {Here describe the premises^) unto the complainant, or unto such person or persons as he shall direct, free and clear of all encumbrance, done by him, or any person claiming by, from, or under him, and deliver unto the complainant all deeds and writings in his custody or power relating to the said mortgaged premises. But in default of the complainants paying unto the defendant what shall be so certified to be due him for principal, interest and costs as afore- said, after such deductions made thereout as aforesaid, at the time above mentioned, it is ordered, adjudged and decreed, that the complainant's bill do from thenceforth stand dismissed out of this court with costs to be taxed. at CHAPTER XXVIII. BILLS TO FORECLOSE MORTGAGES. Section 1. General Nature op. 2. When Proper. 3. Parties. 4. Frame of Bill. 5. Trust Deeds and Sale Mortgages. 6. Strict Foreclosure. 7. Defenses to. 8. Decrees of Foreclosure. SECTION I. GENERAL NATURE OF. A foreclosure in equity is a proceeding by which the mort- gagor's right of redemption in the mortgaged premises is forever barred and foreclosed. This takes place when the mortgagor has forfeited his estate by non-payment of the money due on the mortgage at the time appointed, but still retains the equity of redemption ; in such case the mortgagee may file a bill in a court of equity to compel the mortgagor to redeem his estate presently, or, in default thereof, to be forever closed or barred from any right of redemption. There are two general methods of foreclosing an equity of redemption after a breach of condition, through the medium of a bill in chancery. The one a strict foreclosure, as it is commonly called, whereby, after certain proceedings, the mort- gagee is adjudged absolute owner of the property to which he had before only a conditional or defeasible title : the other, and the most usual mode, a sale of the property under the direc- tion of an officer of the court, in which case the proceeds are applied to the discharge of incumbrances according to priority, and the balance, jf any, paid over to the mortgagor. The statute of Illinois has also provided a mode of fore- closure of mortgages by means of a proceeding by scire facias. BILLS TO FOEECLOSE MOETGAGES. 371 Nature of — When Proper. This statutory proceeding cannot be resorted to safely in every instance. And it may be remarked, generally, that where there are numerous or conflicting interests to be affected, or any complication, the safest mode of foreclosure is by a bill in chancery. For proceedings to foreclose by scire facias, see Puterbaugh's Com. Law PI. and Pr. pp. 659-663. SECTION n. WHEN PEOPEK. If the mortgagor has made default in the payment of the money due according to the terms of the mortgage, or lias incurred a forfeiture by reason of any other provision of the instrument, the mortgagee may file his bill to foreclose. If a defeasance in the usual form in a mortgage deed pro- vides that if the notes are not paid as they become due, that the mortgage is forfeited to that extent, the holder of a note is not obliged to wait for the whole indebtedness to mature before he can proceed to foreclose, (a) So, where the interest, falling due yearly, on a note secured by a mortgage, is not paid, the mortgage may be foreclosed to enforce its payment. In such case it is not necessary to wait until the note matures. (5) Where the condition of a bond and mortgage is, that on fail- ure to pay an installment of interest when due, the principal should immediately become payable, a neglect to pay an install- ment of interest, when it becomes due, works a forfeiture of the mortgage, (c) But where a mortgage was given to secure several notes, made payable at different times, with authority to make sale (a) Vansant vs. Allmon, 23 111. 31; see Hards vs. Burton, 79 111. 504. (6) Morgcmttein vs. Klees, 30 111. 422 ; Rugglet vs. S. M. B. It. Co. 5 Chi- cago Jjegal News, 110 ; see Williamson vs. New Albany & S. M. S. Co. 2 Red. Eailw. § 235. (e) Ottawa, S. P. R. Co. vs. Murray, 15 111. 336 ; Harper vs. Ely, 56 111.179 372 BILLS TO FORECLOSE MORTGAGES. When Proper — Parties — Complainants. of the premises upon the non-payment at maturity of any of the notes for the satisfaction of such of them as should then be due, if the mortgage resorts to equity to foreclose, he can only obtain foreclosure for such of the notes as shall have become due, as that is the limit of the power of sale in the mortgage, (d) And a foreclosure in such case, for the part of the debt which was due, would, of necessity, be a release of the security for the amount not due. (e) And in such case, the purchase of the premises by the mortgagee and holder of the notes not due, would operate as a satisfaction of the entire debt, {f) The assignee of a note is in equity regarded as the purchaser of all the securities and remedies attached to it, and may per- sue them at his discretion. So may the assignees in succession, of separate parts of the same debt ; and the assignee of the first due of several notes secured by mortgage has a priority of claim, and can foreclose and sell. And the holder of the other notes can redeem in succession, according to priority, (g) A foreclosure of a mortgage cannot take place as to one por- tion of the mortgaged premises, and not as to the residue. So long as the mortgagor is suffered to remain in possession of any part of the premises, his right of redemption to the whole will continue. (A) SECTION III. PARTIES. Complainants. — It may be stated, as a general rule, that all those who have an interest in the mortgage and may be affected by the decree are proper parties. If the mortgagee alone has any interest, he is of course the only necessary party complain- ant. If the mortgagee is deceased, the bill should be brought in the name of the executor or administrator, and not of the (d) Smith vs. Smith, 32 111. 198. (e) lb. ; see Hards vs. Burton, 79 111. 504. (/) Mines vs. Moore, 41 Ilh 273. (g) Vansant vs. Allmon, 23 111. 31. (h) Spring vs. Haines. 21 Maine, 126. BILLS TO FORECLOSE MORTGAGES. 373 Parties to — Complainants — Defendants. heirs, (t) If the mortgagee has assigned absolute]}*, and di- vested himself of all interest, he need not be made a party. (J) If the mortgagee has assigned the mortgage as security or pledge for a loan on a less amount than the mortgage, he may, especially where the assignee refuses to proceed, file a bill of foreclosure in his own name, (k) The assignee also has the right to file a bill in such a case, if he chooses. (I) An assignee, who took an assignment merely as a security for a debt, which has been paid, cannot maintain a bill of foreclosure, (m) Defenda/nts. — All persons having an interest in the equity of redemption should be made defendants to a bill of fore- closure, (n) And if the equity of redemption belongs to differ- ent persons as devisees, or as having charges as legatees, thereon, all of them should be joined as defendants, (o) And hence the general, though not universal, rule is that all encumbrancers should be made parties, if not indispensable, at least as proper parties to sucli a bill, whether they are prior or subsequent in- cumbrancers. ( p) The mortgagor, unless he has assigned the equity of redemp- tion, is an indispensable party, and if he has died without transferring or devising the equity of redemption, the heir then becomes a necessary party, and no decree can be entered until the heirs are before the court, (q) The wife of the mortgagor, who has joined in the execution (») Roathvs. Smith, 5Conn. 133; Freakevs. Horsley, 2Freem.l80; Brad- shaw vs. Outram, 13 Ves. 234; Griffin vs. Lovell, 42 Miss. 402. 0') Whitney vs. McKenney, 7 Johns. Ch. 144; Hahn vs. Ruber, 83 111. 243. \h) Norton vs. Warren, 3 Edw. 106. (I) lb. (m) Wilbur vs. Almy, 12 How. U.S. 180. (n) Story's Eq. PI. § 182, 193; Hoxie vs. Carr, 1 Sum. 173; Sla.de vs. Biggs, 3 Hare, 35; Coles vs. Forrest, 10 Beav. 552; Montgomery vs. Brown, 2 Gilm. 581; Mulvey vs. Gibbons, 87 111. 367. (o) McGown vs. Yorhs, 6 Johns. Ch. 450. (p) Haines vs. Beach, 3 Johns. Ch. 459; Ensworth vs. Lambert, 4 lb. 605; Cullum vs. Batre, 2 Ala. 415 ; Finley vs. Bank of U. S., 11 Wheat. 304; Walsh vs. Truesddll, 1 Bradwell's App. Ct. R. 126. (q) Lane vs. Erskine, 13 111. 501; Harvey vs. Thornton, 14 111. 217; Marsh vs. Green, 79 111. 385. 374 BILLS TO FORECLOSE MORTGAGES. Parties to — Defendants. of the mortgage, is a necessary party to a proceeding in equity to a foreclosure, (r) But upon a foreclosure of a mortgage given to secure the purchase money for the mortgaged premises, it is not necessary that the wife of the mortgagor should be made a party to the bill. («) A purchaser of land from a devisee is a necessary party to a bill for the foreclosure of a mortgage, which had previously been given upon the same premises by the testator, {t) Where three notes, payable at different times, were secured by a mortgage, and the first and second notes were assigned to one person, and the third note to another, it was held that on a bill to foreclose the mortgage by the holder of the first and second notes, the holder of the third note was a necessary party, (u) A mortgagor who is personally liable to the mortgagee for the payment of the debt secured by the mortgage, but who has parted with all his rights and interest in the mortgaged prem- ises, is a proper, but not a necessary party to a bill to foreclose the mortgage, (v) If the mortgagor has conveyed the equity of redemption absolutely and without warranty, the mortgaged premises are the primary fund for the payment of the mortgage debt ; and the grantee has no right to object that the mortgagor is not made a party to the bill of foreclosure. But where the com- plainant makes a mere surety of the mortgagor, for the payment of the debt, a party to the bill, for the purpose of obtaining a decree against such surety, if the mortgaged premises are found to be insufficient to satisfy the debt and costs, such surety has a right to insist that the principal debtor shall be made a party to the suit, if he is within the jurisdiction of the court. But not if the principal debtor is an absentee, and has assigned all his right and interest in the equity of redemption, (w) (r) Leonard vs. Villars, 23 111. 377; Wright vs. Lanqley, 36 El. 381; see Pope vs. North, 33 111. 440. (s) Stephens vs. Bichnell, 27 111. 444; Short vs. Raub, 81 111. 509 ; Fletcher vs. Holmes. 32 Ind. 497. (t) Ohlingvs. Luitjens, 32 111. 23; Dunlap vs. Wilson, lb. 517; Curtervs. Jones, 52 111. 84. (u) Myers vs. Wright, 33 111. 285. (») Bigelow vs. Bush, 6 Paige, Ch. 343; Marsh vs. Green, 79 111. 385. (w) 2 Barb. Ch. Pr. 175; Bigelow vs. Bush, 6 Paige, Ch. R. 343. BILLS TO FOKECLOSE MOKTGAGES. 375 « Parties to — Defendants — Frame of Bill. Where the mortgagee has assigned his bond and mortgage, and guaranteed the collection of the debt, the assignee may make him a party to the bill of foreclosure ; for the purpose of obtain- ing a decree over against him for the deficiency, in case the amount of such deficiency should not be collected from the mortgagor, (as) If a mortgage is foreclosed without making subsequent pur- chasers or incumbrancers parties, their rights to redeem are not affected thereby, (y) To a bill to foreclose against the principal mortgagor, the mortgagor of another estate, as a collateral security, is a neces- sary party, (s) SECTION IV. FRAME OF BILL. It is proper to remark, by way of caution to the pleader, that much diversity exists in the cases with regard "to foreclosure suits, since, in most of the states, there are statutes upon the subject, and a line of decisions peculiar to the state. The title in the mortgagor need not be averred in the bill, (a) In New Tork, it seems that the bill must allege that no proceedings at law have been had to recover the debt, or if there have been such proceedings, he must state the nature of them, and that they have been discontinued, or that the remedy at law has been exhausted ; (b) this is a statutory provision, (c) A similar statute seems to exist in Indiana. Where it was held that an omission of such a statement is fatal, (d) (a) Leonard vs. Morris, 9 Paige, Ch. 90. (y) Dunlap vs. Wilson, 32 111. 517 ; Garden vs. Hooart, 2 Sum. 402 ; Oliver vs. Piatt, 3 How. U. S. 333. (e) Stokes vs. Ckndon, 3 Swanst. 150, note ; S. 0. 2 Bro. Ch. Ca. 275, note. (a) Shed vs. Garfield, 5 Vt. 39 ; Racine & Miss. R. R. Co. ve. Farmer's Loan & Trust Co. 49 111. 331. (6) Pattison vs. Powers, 4 Paige, Ch. 549 ; Williamson vs. Champlin 1 Clarke, 9. (c) 2 Barb. Ch. Pr. 178. (d) McMuUen vs. Furness, 1 Smith, 73. 376 BILLS TO FORECLOSE MOKTGAGES. Frame of Bill — Form of Bill, Mortgagee vs. Mortgagor. In Illinois, it is held that a judgment on a note, secured by mortgage, which remains unsatisfied is no bar to a proceeding to foreclose, or that a mortgagee may bring ejectment, sue on the note at law, and maintain a bill to foreclose, at the same time ; that he may pursue the several remedies until his debt is satisfied, (e) The bill need not allege an indebtedness for which it was given ; and if alleged, it need not be proved. (/) In bills to foreclose, it is not necessary to set out at length the rights and interests of the defendants who are subsequent purchasers, judgment creditors or other incumbrancers. It is sufficient for the complainant, after setting out his own right and interest in the premises, to state generally that such de- fendants have, or claim to have, some interest in the premises, as subsequent purchasers or incumbrancers or otherwise, (g) And it has been held that where the bill unnecessarily sets out the rights of the several defendants at length, it may be excepted to for impertinence. (A) In a bill in chancery to foreclose a mortgage claimed to have been executed by husband and wife upon land the fee of which was in the latter, the mortgage may be stated according to its legal effect, without stating in detail the various matters which are necessary to a transfer of a married woman's title. (i) No. 139. BiU for foreclosure of mortgage; inortgagee vs. mortgagor. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your orator, A. B., of etc., respectfully represents unto your honor, that on, etc., C. C, of etc., being indebted to your orator in the sum of dollars, made and delivered to your (e) Vansant vs. AUmon, 23 111. 30 ; Hughes vs. Edwards, 9 Wheat. 489 ; Morrison vs. Buckner, Hemp. 442 ; see also Morgan vs. Sliervsood, 53 111. 171. (/) Day vs. Perkins, 2 Sandf. Ch. 359 ; see also Collins vs. Carlile, 13 111. 254. (g) 2 Barb. Ch. Pr. 177. (h) lb. ; Union Ins. Co. vs. Van Rensselaer, 4 Paige, Ch. 85. i) Williams vs. Soutter, 55 111. 130. BILLS TO FORECLOSE MORTGAGES. 377 Form of Bill, Mortgagee vs. Mortgagor. orator his certain promissory note of that date, and thereby promised to pay to your orator, after date, the said sum of dollars, with interest at the rate of — per cent, per annum, as will more fully appear by the said note, ready to be produced in court, and by the copy of the same herewith filed and marked " Exhibit A," and made part of this your orator's bill of complaint. Your orator further represents unto your honor, that to secure the payment of the principal sum and interest above mentioned, the said C. D. and D. D., his wife, on, etc., by their deed of that date, conveyed to your orator, in fee simple, the following described parcel of land, with its appurtenances, situate in the said county of , to wit : {Here describe the premises ,') subject, however, to a condition of defeasance upon the payment of the principal sum and interest aforesaid, according to the tenor and effect of the said promissory note ; which said deed was, on, etc., duly acknowledged, and after- ward, on, etc., filed for record in the recorder's office of the county of aforesaid, as by the said deed and its accom- panying certificates of acknowledgment and recording, ready to be produced in court, and by a copy thereof herewith filed and marked " Exhibit B," and made a part of this bill, will more fully appear. Tour orator further represents unto your honor, that the said C. D. has not yet paid the said principal sum of dollars, or such interest thereon, or any part thereof, although the same long since became due ; by means whereof the said mortgaged property has become forfeited, subject nevertheless to redemp- tion in equity by the said C. £>., his heirs and assigns. Your orator further represents unto your honor, upon infor- mation and belief, that E. F. and G. H., of, etc., have, or claim, some interest (the precise nature whereof is unknown to your orator) in the mortgaged premises aforesaid, as purchasers, mortgagees, judgment creditors, or otherwise, but such inter- ests, if any there be, have accrued since, and are subject to, the lien of your orator, by virtue of the said deed Qf mortgage. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity, and to the end that the said 0. D., D. D., E. F. and Gr. H., who are made parties defendant to this bill, may be required to make full and direct answer to the same, but not under oath, the answer under oath being hereby waived / that an account may be taken in this behalf, by or under the direction of the court ; that the said defendant, C. D., may be decreed to pay to your orator, what- ever sum shall appear to be" due to him upon the taking of 378 BILLS TO FORECLOSE MORTGAGES. Form of Bill, by Assignee of Mortgage. such account, together with the costs of this proceeding, by a short day to be fixed by the court ; that in default of such pay- ment the said mortgaged premises may be sold, as the court may direct, to satisfy such debt and costs ; that in case of such sale and of a failure to redeem therefrom pursuant to the stat- ute, the defendants, and all persons claiming through or under them, after the commencement of this suit, may be forever barred and foreclosed of all right or equity of redemption of the said mortgaged property ; and that your orator may have such other and further relief in the premises as equity may require and to 'your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sheriff of the said county of , commanding him, that he summon the said defendants, C. D., D. D., E. F. and G. H., to appear before the said court, on the first day of the next term thereof, to be held at the court house in • , in the county of aforesaid, and then and there to answer this bill, etc. Sol. for the Complainant. (Add copies of note and mortgage as Exhibits A and B.) HO. Bill for foreclositre, by assignee of mortgage. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting: Tour orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., C. D., of, etc., being indebted to one E. F., of, etc., in the sum of dollars, made and delivered to the said E. F. his certain promissory note of that date, and thereby promised to pay to the order of the said E. F., after date, the said sum of dollars, with interest ' at the rate of per cent, per annum ; as will more fully appear by the said note, ready to be produced in court, and by the copy of the same herewith filed, marked " Exhibit A," and made part of this your orator's bill of complaint. And the said C. D., to secure the payment of the principal and interest, mentioned in the said promissory note, did, at the same time, by his mort- gage deed of that date, convey to the said E. F., in fee simple, that certain parcel of land, with the appurtenances, in the said county of , described as follows, to wit: (Here set out the description of the mortgaged property;) subject, however, to a condition of defeasance upon the payment of the principal sum and interest aforesaid, according to the tenor and effect of the Baid promissory note ; which said mortgage deed was on, etc., BILLS TO FORECLOSE MORTGAGES. 379 Form, of Bill, by Assignee of Mortgage. duly acknowledged, and afterwards, on, etc., filed for record in the recorder's office of said county ; as by the said mortgage deed and its accompanying certificates of acknowledgment, and recording, ready to be produced in court, and by the copy of the same herewith filed, marked "Exhibit B," and made a part of this bill, will more fully appear. And your orator further represents unto your honor, that the said promissory note and mortgage deed have been duly assigned and transferred to your orator for a valuable consideration, and are now held and owned by your orator. And your orator further represents unto your honor, that the said principal sum of* dollars, with interest thereon from, etc., remains due and unpaid to your orator, although the same long since became due ; by means whereof the said mortgaged property has become forfeited, subject, nevertheless, to redemp- tion in equity by the said C. D., his heirs or assigns. And your orator is informed and believes, and so states, that G. H. and J. K., of, etc., have, or claim, some interests in the said mortgaged premises, or in some part thereof, as purchasers, mortgagees, judgment creditors, or otherwise, which interests, if any there be, have accrued subsequent to the lien of said mortgage deed, and are subject thereto. Your orator therefore asks the aid of this honorable court in the premises ; and makes the said C. D., G. H. and J. K. parties defendant to this bill, and to the end that they may be required to answer this, your orator's bill, according to the rules and practice of this honorable court, hit not under oath, their answer under oath being hereby waived; that an account may be taken in this behalf by or under the direction of the court ; that the said defendant, C. D., may be decreed to pay your orator whatever sum shall appear to be due him upon the taking of such account, together with his costs of this pro- ceeding, by a short day to be fixed by the court ; that, in default of such payment, the said mortgaged property may be sold, as may be directed by the court, to satisfy the amount due and costs; that, in case of such sale, and a failure to redeem there- from, pursuant to the statute, the defendants, and all persons claiming through or under them, subsequent to the commence- ment of this suit, may be forever barred and foreclosed of all right and equity of redemption in the said premises ; and that your orator may have such other and further relief in the premises as equity may require and to your honor may seem meet. ' And may it please your honor to grant the writ of summons in chancery, directed to the sheriff of said county, commanding 380 BILLS TO FORECLOSE MORTGAGES. Form of Bill, by Mortgagee vs. Executor, etc. him that he summon the defendants, C. D., G. H. and J. K., to appear before this honorable court, on the first day of the next term thereof, to be held at the court house in , in the said county, then and there to answer this bill, etc. , Sol. for Complainant. (Add exhibits.) No. llf.1. Bill for foreclosure, by mortgagee vs. executor, etc., of deceased mortgagor. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Tour orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., one E. F., late of, etc., being indebted to your orator in the sum of dollars, made and delivered to your orator his two certain promissory notes of that date, one of the same being for the sum of dollars, and payable to your orator afterdate, and the other for the sum of dollars, payable after date, both of said notes to draw interest per annum from their date, as will more fully appear by the said notes, ready to be produced in court, and by the copies of the same herewith filed, marked " Exhibit A," and made part of this your orator's bill of complaint. Your orator further represents unto your honor, that to secure the payment of the principal sums and interest above mentioned, the said E. F. and F. F., his wife, on the same day, by their mortgage deed of that date, conveyed to your orator, in fee simple, that certain parcel of land, with its appurtenances, in the said county of , known and described as follows, to wit : (Here set out the description ;) subject, however, to a con- dition of defeasance upon the payment of the principal sums and interest aforesaid, according to the tenor and effect of the said promissory notes ; which said mortgage deed was on, etc., duly acknowledged, and afterwards, on, etc., filed for record in the office of the recorder of the said county of , as by the said mortgage deed and its accompanying certificates, ready to be produced in court, a copy of which, marked " Exhibit B," is hereto attached, and made a part of this bill, will more fully appear. (*) Your orator further represents, that afterwards, to wit, on, etc., the said E. F. departed this life, leaving the said F. F., his widow, and G. F., H. F. and J. F., his children, who are' minors and his only heirs at law, him surviving ; that the said E. F., in his lifetime, duly made and published his last will and testa- BILLS TO FORECLOSE MOETGAGES. 381 Form of Bill, by Mortgagee vs. Executor, etc. ment in writing, bearing date, etc., by which one L. M. was appointed to be the executor of the said will ; that upon, or soon after, the death of the said E. F., the said L. M. duly proved the said will in the court of the county of, etc., and under- took the executorship thereof. (* *) Your orator further represents unto your honor, that the said principal sums of money, with interest from the day of, etc., remain due and unpaid to your orator, although the same long since became due, according to the tenor and effect of the said promissory notes ; by means whereof the said mortgaged property has become forfeited, subject, nevertheless, to an equity of redemption by the said legal representatives of the said E. F., deceased, or his heirs or assigns. Tour orator further represents, upon information and belief, that O. P. and Rs S., of, etc., have or claim some interests in the mortgaged property aforesaid, as purchasers, mortgagees, trus- tees, judgment creditors, or otherwise, the precise nature of which is unknown to your orator, but s\ich interests, if any there be, have accrued since, and are subject to the lien of your orator, by virtue of said mortgage deed. Your orator therefore asks the aid of this honorable court in the premises, and makes the said F. F., G. F., H. F., J. F. and L. M., executor of the last will and testament of the said E. F., deceased, and O. P. and R. S., parties defendant to this bill, to the end that they may be required to answer this your orator's bill, according to the rules and practice of this honor- able court, hut not under oath, the answer under oath being hereby waived : that a guardian ad litem may be appointed for said minor heirs ; and that an account may be taken in this behalf by or under the direction of the court ; that the said defendant may be decreed to pay your orator whatever sum shall appear to be due him upon the taking of such account, together with his costs of this proceeding, by a short day to be fixed by the court ; that in default of such payment the said mortgaged property may be sold, as may be directed by the court, to satisfy the amount due and costs ; that in case of such sale and a failure to redeem therefrom, pursuant to the statute, the defendants, and all persons claiming through or under them, subsequent to the commencement of this suit, may be forever barred and foreclosed of all right and equity of redemption in the said premises ; and that your orator may have such other and further relief in the premises as equity may require, and to your honor may seem meet. And may it please your honor to grant the writ of summons in chancery, directed to the sheriff of said county, command- 382 BILLS TO FORECLOSE MORTGAGES. Form of Bill, by Mortgagee 0*. Administrator, etc. — Trust Deed, etc. ing him that he summon the defendants ahove named to appear before this honorable court on the first day of the next term thereof, to be held at the court house, in , in the county aforesaid, then and there to answer this bill, etc. , Sol. for Complainant. (Attach Exhibits A and B.) No. 11$. BUZ for foreclosure, by mortgagee vs. administrator, etc., of mortgagor. (Commence and proceed as in No. HI, ante, to the asterisk *, and then proceed as follows :) Tour orator further represents unto your honor, that after- wards, on or about the day of , 18; — , the said E. F. departed this life intestate, leaving the said F. F., his widow, and G. FJ, H. F. and J. F., his minor children, and his only heirs at law, him surviving ; that soon after the death of the said E. F., R. M., of, etc., was, by the court of the said county of , duly appointed administrator of the goods and chattels, etc., of the said E. F., deceased. (Then proceed as in the same form, No. HI, from the double asterisk, describing the said JR. S. as " administrator of the estate of the said E. F., deceased" instead of as executor, etc.) SECTION V. TBTJST DEEDS AND SALE MOETGAGES. The act of 1879 provides " That no real estate within this state- shall be sold by virtue of any power of sale contained in any mortgage, trust deed or other conveyance in the nature of a mortgage, executed after the taking effect of this act ; but all such mortgages, trust deeds, or other conveyances in the nature of a mortgage, shall only oe foreclosed in the manner provided for foreclosing mortgages containing no power of sale; and no real estate shall be sold to satisfy any such mortgage, trust deed, or other conveyance in the nature of a mortgage, except in pursuance of a judgment or decree of a court of competent jurisdiction." (J) U) Laws of 111. 1879, pp. 211, Bradwell's ed. 162 BILLS TO FOEECLOSB MORTGAGES. 383 * Form of Bill to Foreclose Trust Deed, etc. e_ .. No. H3. Bill to foreclose deed of trust in the nature of a mortgage. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting: Your orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., one C. D., late of, etc., being indebted to your orator in the sum of dollars, made and delivered to your orator his certain promissory note of that date, and there- by promised to pay ypur orator the said sum of money in years after the date thereof, with interest thereon at the rate of — per cent, per annum, payable ; as will appear by the said note, ready to be produced in court, and by the copy of the same hereto attached, marked " Exhibit A," and made a part of this your orator's bill of complaint. Your orator further represents, that to secure the payment of the principal sum and interest above mentioned, the said C. D. and D. D., his wife, on, etc., by their deed of trust of that date, conveyed to one E. P. in fee simple, the following described real property, with the appurtenances thereto belong- ing, to wit : (Here describe the premises y) in trust, nevertheless, for the purposes of securing the principal sum and interest so due your orator as aforesaid, and subject to a condition of defeasance upon the payment " of the said principal sum and interest, according to the tenor and effect of the said note; which said deed of trust was, on, etc., duly acknowledged, and' afterwards, on, etc., filed for record in the recorder's oflace of the county of aforesaid ; as by the said deed of trust and its accompanying certificates of acknowledgment and recording, ready to be produced in court, will more fully appear ; a copy of the same is hereto attached, marked " Exhibit B," and is hereby made a part of this bill of complaint. Your orator further represents, that on, etc., the said C. D. departed this life, intestate leaving the said D. D., his widow, and E. D. and F. D., his children and only heirs at law ; that afterwards, on, etc., one GL H., of, etc., was by the court of the county of aforesaid, duly appointed administrator of the estate of the said C. D., deceased ; and that the said Gr. H. entered upon and assumed the duties of such adminis- tration. Your orator further represents, that the said C. D. was at the time of his decease, the owner of the equity of redemption of the said described premises. 384 BILLS TO FOEECLOSE MOKTGAGES. Bill to Foreclose Trust Deed, etc. — Strict Foreclosure. Yonr orator further represents, that the said C. D. did not, in his lifetime, nor has any person since his death, paid the said principal sum of dollars, or such interest thereon, nor any part of the same, although the same has long since become due ; by means whereof the said premises so conveyed has be- come forfeited, subject, nevertheless, to redemption in equity by the representatives and heirs of the said C. D., deceased. Your orator further represents, that by reason of the statute hi such ease made and provided, the said E. F., as such trustee in the said trust deed named, is divested of his authority to make sale of the said premises in the manner provided therein. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said D. D., E. D., F. D., E. F. and G. H., administrator of the estate of the said 0. D., deceased, who are made parties defendant to this bill, may be required to make full and direct answer to the same, but not under oath, the answer under oath being hereby waived ; that an account may be taken in this behalf, by or under the direction of this honorable court ; that .the defendants, or some of them, may be decreed to pay to your orator whatever sum shall appear to be due to him upon the taking of the said account, together with his costs of. this pro- ceeding, by a short day to be fixed by the court ; that in default of such payment the said premises may be sold, as the court shall direct, to satisfy the amount due your orator and the costs ; that in case of such sale, and of a failure to redeem therefrom pursuant to law, the defendants, and 'all persons claiming through or under them, after the commencement of this pro- ceeding, may be forever barred and foreclosed of all right or equity of redemption of the said mortgaged property ; and that your orator may have such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please, etc. {Pray process as wi No. 1L1, ante, page SECTION VI. STBICT FORECLOSURE. The object of a bill for strict foreclosure is to obtain a decree for the payment of the mortgage debt within a short period to be fixed by the court ; or that, in default thereof, the mortgagor, and all persons claiming under him, may be barred and fore- BILLS TO FORECLOSE MORTGAGES. 385 Strict Foreclosure — Parties to. dosed of all rights and equity of redemption in the mortgaged premises, and his and their title thereto be extinguished and vested in the mortgagee, without a sale thereof. Where a bill foi a foreclosure shows that the mortgage was given for the entire purchase money, no part of which or the interest had been paid, that the value of the premises does not exceed the amount due, and that they are but a slender and the only security for the debt, the mortgagor having absconded, a strict foreclosure is not improper, (k) A strict foreclosure is not, as a general rule, proper where there are other incumbrances on the property, or creditors, or purchasers of the equity of redemption. (I) If it does not appear that the mortgagor is insolvent, or that the mortgaged premises are not of sufficient value to pay the debt and costs, a strict foreclosure will not be decreed, (to) A strict foreclosure of a mortgage does not extinguish the debt, unless the value of the land is equivalent to the amount of the indebtedness, (ra) Parties to. — The parties, to a bill for strict foreclosure, are, in general, the same as to a bill for foreclosure and sale. The complainant should bring before the couirt all persons who have a right to redeem the premises, and all persons claiming an interest in the mortgage under himself. Therefore, if there are several derivative mortgagees, they must all be made parties, (o) A strict foreclosure cannot be entered where there are cred- itors entitled to the surplus, who are not made parties to the suit, (jp) (k) Wilson vs. Oeisler, 19 111. 49. (0 Farrell vs. Parlier, 50 111. 270 ; see Johnson vs. Donnell, 15 111. 97 ; Wener vs. Heintz, 17 111. 259 ; Stevens, vs. BichneU, 27 111. 444 ; Horner vs. Zimmerman, 45 111. 14. / (m) Slieldon vs. Patterson, 55 111. 507. (re) Vansant vs. Attmon, 23 111. 31 ; 4 Kent, Com. 182; but see Sagory vs. Wissman , 2 Benedict, 240. (o) Hobart vs. Abbot, 2 P. Wms. 643. (p) Warner vs. Hilm, 1 Gilm. 220. 386 BILLS TO FORECLOSE MORTGAGES. Form of Bill of Strict Foreclosure. Form of bill. — The form of a bill for a strict foreclosure is nearly the same as that for a sale. The prayer, however, is different. It prays that an account may be taken of what is due to the complainant on his mortgage, and that the mort- gagor may be decreed to pay the amount found due, by a short day to be appointed by the court ; or, in default thereof, that the mortgagor, and all persons claiming under him, may be debarred and foreclosed of, and from, all rights and equity of redemption in, or to, the mortgaged premises. No. 1H. BUI for strict foreclosure. To the Honorable , Jndge of the Court of the County of j in the State of , In Chancery sitting : Your orator, A. B., of etc., respectfully represents unto your honor, that on, etc., one C. D., of, etc., one of the defendants hereinafter named, became and was indebted to your orator in the sum of dollars, and being so 'indebted, on the same day, and in consideration thereof, made and executed to your orator his promissory note of that date for that amount, pay able to your orator after date, with interest, etc., as by the said note when produced, and a copy of the same hereto attached, marked " Exhibit A," and made a part of this bill of complaint, will more fully appear. Your orator further represents that the said C. D. and E. D., his wife, on, etc., to secure the payment of the principal sum and interest mentioned in the said promissory note, made and executed under their hands and seals, and delivered to your orator a mortgage, conditioned for the payment of the said slim of dollars and interest mentioned in said note, accord- ing to the tenor and effect thereof; by which said mortgage the said C. D. and E. D., his wife, conveyed to your orator, in fee, the following described real property, to wit : {Sere insert description of 'mortgaged premises /) which said mortgage was duly acknowledged ; and afterwards, on, etc., duly recorded in the office of the recorder of the said county of , in the state of , in book — , of mortgages, at page — , as by the said mortgage and its accompanying certificates of acknowledg- ment and recording, ready to be produced in court, and a copy of the same hereto attached, marked "Exhibit B," and made a part of this bill, will more fully appear. Your orator further represents, that the sum of dollars, BILLS TO FOKEOLOSE MOKTGAGES. 387 Form of Bill of Strict Foreclosure. with interest from, etc., remains due and unpaid to your orator on the said note and mortgage, and that no proceedings at law have been had to recover the debt secured thereby, or any part thereof. Your orator further represents that the said C. D. is now wholly insolvent, and unable to redeem the said premises; and that the sajd mortgaged property is meagre and scant security for the said sum of dollars, and the interest mentioned in the said note and mortgage, and now due your orator; and that the value thereof is wholly insufficient to pay the amount so due. with the costs of this proceeding. And your orator further represents that E. F. and G. H., of, etc., have, or claim to have, some interest in the said mort- gaged premises, or some part thereof, as judgment creditors or otherwise, which interests, if any, have accrued subsequent to the lien of the said mortgage of your orator, and are subject thereto. _ ■ Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. T>., E. D., E. F. and G. H., who are made parties defendant to this bill, may be required to make full and direct answer to the same, but not under oath, the answer under oath being hereby waived; that an account may be taken in this behalf, by or under the direction of this honorable court ; that the defendants, or some of them may be decreed to pay to your orator what may be found due to him on taking the said account, together with his costs of this suit, by a short day to be appointed by the court for that purpose ; or, in default thereof, that the defendants, and all persons claiming under them, may be absolutely and forever debarred and foreclosed of and from all right and equity of redemption in or to the said mortgaged premises, and every part thereof; and that the said C. D. may deliver up to your orator all deeds, papers or writings in his custody or power relating to or concerning the said mortgaged premises, or any part thereof; and that your orator may nave such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please your honor, etc. {Pray process as in No. HI, ante, page 380, and add exhibits.) 388 BILLS TO FORECLOSE MORTGAGES. Defenses to. SECTION VII. DEFENSES TO. A mortgagor is not permitted to deny his own title. ( p) Where a mortgage is given upon one tract of land to secure the purchase money of another tract, which the mortgagee covenants to convey with warranty, but to which he has no title, such failure of title in the vendor is a good defense in equity in a proceeding to foreclose the mortgage, (q) An assignee of a note secured by mortgage takes it subject to prior equities between the original parties, (r) It is said, that a mortgagee, with notice of subsequent liens, has no right to release his mortgage, to the prejudice of such liens, (s) Upon this principle it has been held, that if the mort- gagee, for a consideration, release that portion of the land which was primarily liable for the debt, he thereby discharges the other portion, (t) So, if two estates are mortgaged in one deed, and transferred to different persons, and one released by the mortgagee; the owner of theiother, on redeeming', cannot compel contribution, but may claim a deduction from the debt in proportion to the value of the parcel released, (u) A party seeking to foreclose a mortgage tainted with usury, and the usury being established, a forfeiture of all interest is the necessary consequence. If, however, the mortgagor was seeking relief against a usurious mortgage, then the court would require him to pay legal interest, on the principle that he who asked equitable relief should do equity, and equity (p) Racine & Miss. B. B. Co. vs. Farmer's Loan & Trust Co. 49 111. 331. (q) Smith vs. Newton, 38 111. 230 ; see also Weaver vs. Wilson, 48 111. 125. (r) Loch vs. JPulford, 52 111. 166 ; Hubbard vs. Turner, 3 McLean, 519. («) McLean vs. Lafayette, etc. 3 McLean, 587. {t) Paxton vs. Harrier, 11 Penn. 312; see Holman vs. Bank, etc. 12 Ala. 369; Hawhe vs. Snydaker, 86 111. 197. (ii) Turkman vs. Welch, 19 Pick. 238; see also Tglehart vs. Crane, 43 111. 261; Luck vs. Falford, 53 111. 160; see further defenses of this nature, 1 Hilliard on MoitjfHjfi s. ?>l! et seq. BILLS TO FORECLOSE MORTGAGES. 389 Decree of Foreclosure. would require him to pay legal interest. In such a case, a court of equity could prescribe the terms of its interference, (v) "We have not the space to enter into a more full examination of defenses to a foreclosure. Works specially treating of the subject of mortgages will have to be consulted, (w) SECTION VIII. DECREE OF FORECLOSURE. We have already considered the general requisites of a decree in equity, and need now only mention a few points having special reference to a decree of foreclosure. The statute of Illinois provides that, " in all decrees here- after to be made in suits in equity directing foreclosure of mort- gages, a decree may be rendered for any balance of money that may be found due to the complainant over and above the pro- ceeds of the sale or sales, and execution may issue for the col- lection of such balance, the same as when the decree is solely for the' payment of money. And such decree may be rendered conditionally, at the time of decreeing the foreclosure, or it may be rendered after the sale and the ascertainment of the balance due : Provided, that such execution shall issue only in cases where personal service shall have been had upon the defendant or defendants personally liable for the mortgage debt, unless their, appearance shall be entered in such suit." (x) The 92d rule for practice in the courts of equity of the United States, adopted at the December term, 1863, provides, " that in suits in equity for the foreclosure of mortgages in the circuit courts of the United States, or in any court of the terri- tories having jurisdiction of the same, a decree may be rendered for any balance that may be found due to the complainant over and above the proceeds of the sale or sales, and execution may issue for the collection of the same, as is provided in the 8th (■») Snyder vs. Griswold, 37 111. 216; Cushman vs. Sutphen, 42 111. 256. (w) See Hilliard on Mortgages; Fisher on Mortgages, utc. (x) Rev. Stat. (1877)676; Hoag vs. Starr. 60 111.362; tee McClurg vs. Phillips, 40 Mo. 315; Smll vs. Stanley, 58 hi. 31. 390 BILLS TO ■.FOBECLOSE MOBTGAGES. Decree of Foreclosure. rule of this court regulating tlie equity practice, where the decree is solely for the payment of money." Under rule 92, above referred to, the power of the circuit court of the United States, in a foreclosure suit, to order a general execution for any balance remaining due, after sale of the mortgaged premises, is a discretionary one. (y) The common practice in courts of chancery, upon a fore- closure of mortgages, is to decree a surrender of the possession and title papers by the mortgagor and those claiming under him. (s) Where the decree directs the mortgagor, or the party in pos- session of the mortgaged- premises, to surrender up the posses- sion to the purchaser, the court, upon an affidavit showing the service of a, copy of the order, accompanied with the demand of the possession, and a refusal of the party to comply, will issue a writ of execution of the order to put the purchaser in possession, (a) But where the decree contains no such order, the court, on motion, will make the order ; and upon the like service of a copy and demand of possession, the court will, on motion, and without notice, order an injunction against the party to surren- der possession ; and then, on an affidavit of the service of the injunction and refusal to deliver possession, a writ of assistance to the sheriff to put the purchaser in possession issues of course, on motion and without notice. (J) When premises have been mortgaged, and subsequently parcels of, or undivided interests in the same lands have been conveyed or incumbered, on a foreclosure of such mortgage, the decree should provide that the premises be sold in the inverse order of such conveyances or incumbrances, (o) (y) Phelps vs. Loyhed, 1 Dillon, 512. (z) Lawrence vs. Lane, 4 Gilra. 354. (a) Aldrich vs. Sharp, 3 Scam. 261; O'Brien vs. Fry, 62 111. 87. (6) lb.; Jackson vs. Warren, 32 111. 331. (c) Briggs vs. Kaufman, 2 Mich. N. P. 160; see Sibley vs. Baker, 23 Mich: 312; McCullum vs. Turpie, 32 Ind. 146, see Lock vs. Fulford, 52 111. 156; Payne vs. Avery, 21 Mich. 524; contra, see Barney vs. Myers, 28 [owa, 472; Niles vs. Harmon, 80 Til. 396: Hawhe vs. Snydaker, 86 111. 197; St. Joxeph M. Co. vs. Daggett, 84 111. 556. BILLS TO FORECLOSE MORTGAGES. 391 Form of Decree — Pro eonfess'o. A decree of strict foreclosure, which neither finds the amount due, nor gives time for redemption, but is final and conclusive in the first instance, cannot be sustained in the absence of some special law to authorize it. (d) No. 145. Decree of foreclosure and sale, pro confesso. (Caption, and title of cause as in No. 79, ante, page 198.) And now on this day comes the complainant, by his solicitor, and it appearing to the court here, from the writ issued herein to the gheriff of the county of , and the return thereon, that the defendants C. D. and E. F. had been duly served with process herein, at least ten days prior to the first day of the present term of this court, and the defendants having been severally three times called in open court to plead, answer or demur to the complainant's bill, came not, but herein made default ; it is therefore ordered, adjudged and decreed that the same be taken for confessed against the said defendants. And the court having ordered this cause to be referred to the master in chancery of this court, to take proofs of the mat- ters stated in the bill, and to compute the amount due the complainant upon the note and mortgage mentioned in said bill ; and the said master having made report thereof to the court, which said report is hereby approved and confirmed by the court ; and thereupon this cause coming on for a final hearing upon the bill and the said report of the master ; and the court being fully advised in the premises, doth find : That the allegations in said bill contained are true, as therein stated; that the court has jurisdiction of the subject matter, and the parties in this cause ; and that the equity of this cause is with the complainant ; and that there is now due from the defendant C. D. to the complainant, for principal and interest on said note and mortgage, the sum of dollars. (*) It is therefore ordered, adjudged and decreed, by the court, that the defendants pay to the complainant, within days from this date, the said sum of dollars, with lawful inter- est to be computed thereon, from this day until paid, and also the costs of this suit, to be taxed by the clerk of this court. And it is further ordered, adjudged and decreed, that in de- fault of said payment being made as aforesaid, by the defendants, then, and in that case, the said mortgaged premises mentioned in the bill of complaint in this cause, to wit : (Here describe {d) Clark vs. Beyburn, 8 Wallace, 318. 392 BILLS TO FORECLOSE MORTGAGES. Form of Decree — Pro confesso. the mortgaged premises,) or so much thereof as may be sufficient to realize the amount so due the complainant, principal and interest, and also the costs of this suit, including the fees, dis- bursements and commissions on the sale herein mentioned, and which may be sold separately without material injury to the parties interested, be sold at public vendue, for cash in hand, to the highest and best bidder, at the front door of the court house in said county of ; that the master in chancery of this court execute this decree ; that he give public notice of the time and place of said sale, by previously pnblishing the same for the space of days in a newspaper published in said county ; and that the complainant, or any of the parties in this cause, may become the purchaser or purchasers ; that the said master, on such sale being made, execute a certificate of pur- chase to each purchaser or purchasers thereof, or any portion thereof; which certificate shall specify the lands or tenements purchased by such purchaser or purchasers, and the sum paid therefor; or, if purchased by the complainant in said bill, the amount of his bid, and the time when the purchaser will be entitled to a deed for such lands or tenements, unless the same shall be redeemed according to law, and the said master shall also file, in the office of the recorder of said county, a duplicate of such certificate or certificates signed by him. And the said master, out of the proceeds of such sale, shall retain his fees, disbursements and commissions on said sale ; that he pay the officers of this court their costs in this suit ; and that out of the remainder of said proceeds he pay to the complainant the said sum of dollars, together with legal interest thereon, from the date of this decree, to the day of sale ; or, if such remainder shall be insufficient to pay the whole of said amount and interest, as aforesaid, then that he apply said remainder to the extent to which it may reach in satisfac- tion of said amount and interest ; and that the said master take receipts from the respective parties to whom he may have made payments as aforesaid, and file the same, together with his report of sale, in this court. And that, in case the said premises shall sell for more than sufficient to pay the principal, interest and costs in this suit, then that the said master, after making pay- ments as aforesaid, bring such surplus moneys into court with- out delay, to abide the further order thereof. And it is farther ordered, adjudged and decreed that the defendants, and all persons claiming by, through or under them, since the commencement of this suit, be forever barred and foreclosed from all equity of redemption, and claim of, in and to said mortgaged premises, or any part thereof, if the BILLS TO FORECLOSE MORTGAGES. 393 Form of Decree — Pro confesso. same are not redeemed, according to law, by the defendants, their heirs, executors, administrators or grantees, within twelve months next after the day of such sale, and by all judgment creditors, and their representatives and assigns within fifteen months next after the day of said sale ; and that at the expira- tion of said fifteen months next after the day of said sale, if said mortgaged premises, or any portion thereof, are not redeemed as aforesaid, then, in that case, upon the production to the then acting master in chancery, and filing in his office of the certificate of purchase executed by the master in chan- cery, as aforesaid, to the purchaser or purchasers of said mort- gaged premises, or any portion thereof, by such purchaser or purchasers, his or their representatives or assigns, said master shall make, execute and deliver to such purchaser or purchasers, or his or their representatives or assigns, good and sufficient conveyance or conveyances, in fee simple of said premises, or such portion thereof as shall have been sold to such purchaser or purchasers respectively. And it is further ordered, adjudged and decreed, that upon the execution and delivery of the conveyance or conveyances as aforesaid, the said purchaser or purchasers, his or their repre- sentatives or assigns, be let into possession of the portion of said mortgaged premises so conveyed to him or them ; and that any of the parties in this cause, who may be in possession of said premises, or any part thereof, and any person who, since the commencement of this suit, has come into possession, under them or either of them, on the production of the master's deed of conveyance, and a certified copy of the order of this court, confirming the report of said sale, shall surrender pos- session thereof to such purchaser or purchasers, their repre- sentatives or assigns, and on refusal so to Ao f will be con- sidered in contempt of this court. And it is further ordered, adjudged and decreed, that if the moneys arising from said sale shall be insufficient to pay the amount so due the complainant, with interest as aforesaid, after deducting the costs and expenses of sale, as aforesaid, that said master specify the amount of such deficiency in his report of said sale, and that on the coming in and confirmation of said report, the defendant C. D., who is personally liable for the payment of the debt secured by said mortgage, pay to the com- Elainant the amount of such deficiency, with interest thereon, ■om the date of such last mentioned report, and that the com- plainant have execution therefor. It is further ordered, that the master in chancery, if practica- ble, report his proceedings in the premises to the court, at the 394 BILLS TO FOEECLOSB MOKTGAGES. 7 Decree of Sale — Decree of Strict Foreclosure. first term of this court, to which time this cause is here continued. No. H6. Decree of foreclosure, and sale upon a hearing (Caption, and tiUe of cause as in No. 79, ante, page 198.) This cause having come on to be heard upon the bill of co plaint herein, the answers of the defendants thereto, the rej cation of the complainant to such answers, and the proofs tak in said cause, and having been argued by counsel for the resp tive parties ; and the court being fully advised in the premis doth find : that the allegations in the said bill contained i true as therein stated ; and that the equities of this cause i with the complainant ; and that there is now due from 1 defendant C. D. to the complainant, for principal and inter on said note and mortgage, the sum of dollars. (Proceed with the ordering part as in No. lift, ante, pt 391, from t/ie asterisk. * ) No. 14-7.. Decree of strict foreclosure. (Proceed as in No. lJfi, above, to the asterisk *, and tl as follows :) And the court further finds, that the defe: ant C. D. is now wholly insolvent and unable to redeem i said mortgaged premises ; and that the said mortgaged pre ises is meager and'scant security for the amount so found to due as aforesaid ; and that the value of said premises is who insufficient to pay the amount so found to be due and the co of this proceeding; and that no benefit can inure to 1 defendants, or either of them, by a sale of said mortgag premises. It is therefore ordered, adjudged and decreed', by the con that the defendant pay to the complainant within mom from this date, the said sum of dollars, with lawful int est to be computed thereon from this day until paid, and a the costs of this suit, to be taxed by the clerk of this court. And it is further ordered that upon the defendant paying the complainant the sum of dollars as aforesaid, wifl the time above mentioned, that the complainant do reconv the said mortgaged premises to the defendant 0. D., by a st able or proper instrument of conveyance ; to be approved the master in chancery of this court, in case the said part cannot agree upon the form thereof; and further that the co plainant cancel and discharge such mortgage of record. I in case of default of the defendant's paying to the complain! BILLS TO FOKECLOSE MOKTGAGES. 395 Decree of Strict Foreclosure. such principal, interest and costs as aforesaid, by the time lim- ited for that purpose, then it is ordered, adjudged and decreed, that the defendant be forever barred and foreclosed from all equity of redemption, and claim of, in and to said mortgaged premises, to wit : (Here describe the mortgaged premises) and to any part thereof; and that the complainant or his legal representatives or assigns, be let into possession thereof; and that the parties in this cause, who may be in possession of said premises, or any part thereof, and any person who, since the commencement of this suit, has come into possession under them, or either of them, on the production of a certified copy of this order, surrender the possession thereof to the complain- ant, his representatives or assigns, and on refusal so to do, be considered in contempt of this court. For additional Illinois cases relating to foreclosure, see Dickman vs. Wood, 69 111. 329 ; Hards vs. Burton, 79 111. 504 : Dowden vs. Wilson, 71 111. 485 ; Terry vs. Eureka Col- lege, 70 111. 236 ; Be Leuw vs. Neely, 71 111. 473 ; Klock vs. Walter, 70 111. 416 ; Nat. Ins. Co. vs. Webster, 83 111. 470 ; Hanford vs. Blessing, 80 111. 188 ; Wiles vs. Harmon, 80 111. 39t> ; Cable vs. Ettis, 86 111. 674 ; Sheen vs. Hogan, 86 111. 16 ; Maker vs. Zanfrom, 86 111. 513 ; Mulvey vs. Gibbons, 87 111. 367; Haworth vs. Hiding, 87111. 23; Shaver vs. Williams, 87 111. 469 ; Mv.rch vs. Mayers, 85 111. 177; Haas vs. Chicago Building Co., 89 111. 498. CHAPTER XXIX. Section. 1. When a Creditor's Bill may be Filed. 2. What mat be Reaches by. 3. Parties to the Bill. 4. Priority and Lien of Bills. 5. Frame of Bell. SECTION I. WHEN A CREDITOR'S BILL MAY BE FILED. The jurisdiction of a court of chancery in suits brought by judgment creditors to enforce the collection of their judgments, after, having exhausted their remedy at law, although it may have previously existed, is generally expressly declared and particularly defined by statutes. The statute of Illinois, with respect to bills of this nature, which is the foundation of the present practice of the court in such cases, in that state, is as follows : " Whenever an execution shall have been issued against the property of a defendant, on a judgment at law or in equity, and shall have been returned unsatisfied, in whole or in part, the party suing out such execution may file a bill in chancery against such defendant, and any other person to compel the discovery of any property or thing in action, belonging to the defendant, and of any property, money or thing in action due to him, or held in trust for him, and to prevent the transfer of any such property, money or thing in action, or the payment or delivery thereof, to the defendant, except when such trust has, in good faith, been created by, or the fund so held in trust has -proceeded from, some person other than the defendant himself. The court shall have power to compel such discovery, and to prevent such transfer, payment or delivery, and to decree satisfaction of the sum remaining due on such judgment, CREDITOE'S BILL. 397 Nature of — When Proper. out of any personal property, money or things in action, belong- ing to the defendant, or held in trust for him, with the excep- tion above stated, which shall be discovered by the proceedings in chancery, whether the same were originally liable to be taken in execution at law or not : Provided, that no answer made to any bill filed under this and the preceding section, shall be read in evidence against the defendant on the trial of any in- dictment for fraud charged in the bill." (a) When proper. — A creditor must first obtain a judgment and Beek to collect his debt by execution before he can resort to the equitable estate of his debtor. (J) But in proceedings against intestate estates which are insolvent, a resort to equity may be had without this preliminary step, since, by the statute, an execution cannot issue upon a judgment against an adminis- trator, (c) In order to maintain a strict creditor's bill within the mean- ing of the section of the Illinois statute, which we have quoted, the remedy at law must appear to have been exhausted, by ob- taining a judgment, and, if the defendant was not insolvent, an execution returned nulla bona, (d) But the law is other- wise, where a creditor by his bill merely seeks to remove a (a) Rev. Stat. ^STi|2jy ; i!ev. Stat. (1877) 18U. (6) Ishmad vs. Parker, 13 111. 324 ; Bay vs. Cook, 31 HI. 336 ; Seacock vs. Durand, 43 HI. 230 ; McConnel vs. Dickson, 43 111. 99 ; Newman vs. WO- letts, 52 111. 98 ; see Duberry vs. Clifton. Cooke, 328 ; Morgan vs. Crabb, 3 Porter, 470; Wright vs. Petrie, 1 S. & M. Ch. 282; Scott vs. Wallace, 4 J. J. Marsh. 654 ; Danna vs. Banks, 6 Id. 219 ; Wooley vs. Stone, 7 Id. 302 ; Beck vs. Burdett, 1 Paige, Ch. 305 ; McElwain vs. Willis, 9 Wend. 548 ; Screven vs. Bostick, 2 McCord, Ch. 410 ; Clark vs. Banner, 1 Dev. & Bat. Ch. 608 ; McDermot vs. Blois, Chart. K. M. 281 ; Parish vs. Lewis. 1 Freem. Ch. 299 ; West vs. McCarty, 4 Blackf. 244 ; Kelso vs. Blackburn, 3 Leigh, 299 ; Rice vs. Barnard, 20 Vt. 479 ; North Am. Fire Ins. Co. vs. Graham, 5 Sandf. 197 ; Barrotcvs. Bailey, 5 Florida, 9; U. S. vs. Sturges, 1 Paine's R. 525; Moshier vs. Meek, 80 111. 79; Lawson vs. Grubbs, 44 Geo. 466. (c) McDowell vs. Cochran, 11 111. 31 ; Armstrong vs. Cooper, 11 111. 560; Van Syckel vs. Richardson, 13 111. 174 ; Bay vs. Cook, 31 111. 337; Steere vs. Hoagland, 39 111. 264 ; see Ryan vs. Jones, 15 111. 1 ; Smith vs. Sheppard, 2 Hey. 163 ; Horner vs. Zimmerman, 45 III. 14 ; Mugge vs. Ewing, 54 111. 236 ; Hogan vs. Walker, 14 How. U. S. 29. (d) Miller vs. Davidson, 3 Gilm. 518 ; Newman vs. WiUetts. 52 Dl. 98. 398 CEEDITOR'S BILL. When Proper — What may be Reached by. fraudulent conveyance out of the way of his execution. But in that case the bill must show that the judgment was an exist- ing lien on the property conveyed. If it appears that a year had elapsed after the rendition of the judgment with an execu- tion being issued thereon, the bill cannot be maintained, (e) Justice's judgment. — A judgment before a justice of the peace is a sufficient foundation for a creditor's bill, if the amount is large enough to confer jurisdiction on the court. {/) In United States court. — A creditor's bill may be filed in the circuit court of the United States, in the mode authorized by the local state law. Q/) But a bill will not lie in a state court on a judgment obtained in the federal court, (h) SECTION II. WHAT MAT BE REACHED BT. Upon a creditor's bill every species of property belonging to the debtor may be reached and applied to the satisfaction of his debts ; and his debts, choses in action, and other equitable rights may be assigned or sold under the decree of the court for that purpose. (*) Upon a bill of this nature the complainant may reach the defendant's interest in the effects of a copartnership, after pay- (e) Newman vs. Wttletts, 52 111. 98 ; Weightman vs. Match, 17 111. 281 ; see also Greenway vs. Thomas, 14 111. 271 ; Turner vs. Adams, 46 Mo. 95; Webster vs. Folsom, 58 Maine, 230 ; Bailey vs. Burton, 8 Wend. 339. (/) Bteere vs. Hoagland, 39 111. 264. (g) Buydam vb.' Beats, 4 McLean, 12; Lanmon vs. Clark, Id. 18 ; Wilkin- son vs. Tale, 6 McLean, 16 ; see Babcock vs. Wttlard, 4 West. Law Monthly, 314. (h) Bteere vs. Hoagland, 39 111. 264. (i) Edmeston vs. Lyde, 1 Paige, Ch. 637 ; see Craig vs. Hone, 2 Edw. Ch. 554 ; Weed vs. Pierce, 9 Cow. 722 ; Congden vs. Lee, 3 Edw. Ch. 304 ; Tliomp- son vs. Nixon, lb. 457 ; Brewster vs. Power, 10 Paige, Ch. R. 562 ; Benson-ve. LeRoy, 4 Johns. Ch. R. 651 ; Cohen vs. Carroll, 5 S. & M. 545 ; Wagoner vs. Speck, 3 Ham. 294 ; Piatt vs. Judson, 3 Blackf. 235 ; Demaree vs DriskeU lb. 115. CREDITOR'S BILL. 399 What may be Reached by. ment of the partnership debts, and satisfying all prior equities in favor of his copartners. (J) So, where an express trust has been created to receive the interest or income of trust property, and to apply it to the use of a person from time to time, the surplus beyond what is necessary for his support and mainte- nance may be reached by a creditor's bill, after such interest or income has become due. (k) On a creditor's bill, the court may so control the custody ot negotiable notes, and provide for demand and notice, as to pre- Tent their being negotiated, and protect the rights of all parties thereto. {I) The complainant, by his bill, can only reach the property which belonged to the defendant at the time of the commence- ment of the suit, or the proceeds of the property and effects in which he then had an interest. If he wishes to reach after acquired property, he must file a supplemental bill, (m) Upon this principle it has been held, that the complainant in a credi- tor's bill cannot reach the salary or compensation which is to become due to the defendant at a future time, for the performance of services which had not been completed at the time of filing the bill, in a case where the defendant would have no legal or equitable right to demand payment for the services already performed, if he should thereafter neglect to complete the unperformed services, (n) Where work is performed by the piece or lot, the wages therefor may be reached by a creditor's bill, filed after the work has been performed, though before the customary day of payment, (o) The interest of a debtor, under a contract for the purchase of land, can be reached by a creditor's bill, (p) So, a note held by a defendant, secured by a deed of trust on land, may be (J) Eager vs. Price, 2 Paige, Ch. R. 334. (k) Clute vs. Bool, 8 Paige, Ch. R. 83 ; see Craig vs. Hone, 2 Edw. Ch. 554 If) Buckcock vs. Millard, 4 West. Law Mo. 314. (ot) Sampson vs. Taylor, cited in 2 Barb. Ch. Pr. 153. (n) Browning vs. Bettis, 8 Paige, Ch. 569 ; McConn vb. Dorsheimer, 1 Clarke, 144 (») Thompson vs. Nixon 3 Edw. Ch. 457. (p) Brewster vs. Power. 10 Paige, Ch. 562. 400 CREDITOR'S BILL. Parties to the Bill — Complainants. subject to a creditor's bill, and the land conveyed by the deed of trust be sold to pay it. (q) Where a debtor purchased land with his own money, and took the conveyance in the name of his infant son, for the pur- pose of securing the land against his debt, it was held, that the creditor, at the time of such conveyance, having obtained a judgment, might, by bill in equity, subject the land to his debt, {r) SECTION IIL PAETIES TO THE BILL. CornplaMicmts. — A creditor may file his bill in his own name, for his own benefit, without joining other creditors ; (s) or he may file a bill in behalf of himself and all others, being judg- ment creditors, whose executions have been returned unsatis- fied, and who may choose to come in and contribute to the expense of the suit, (f) But a creditor cannot sue on behalf of himself and others who have no common interest with him. (u) Judgment creditors, who have exhausted their remedies at law, may unite in a bill to set aside a fraudulent assignment by their debtor, (v) So, if one creditor by judgment, and another by decree, have acquired liens upon the property of their debtor, ' they may join in filing such a bill, (w) But as to property, on which no creditor has obtained a lien by judgment and execu- tion, a creditor who has exhausted his legal remedy may file a (y) Cohen vs. Carroll, 5 S. & M. 545. {r) Demaree vs. DriskeU, 3 Black! 115 ; see Weightman vs. Hatch, 17 111. 281 ; Moritz vs. Hoffman, 35 111. 553 ; Newman vs. WUletts, 52 111. 98 ; Mugge vs. Ewing, 54 111. 236. (s) Balentine vs. Beall, 3 Scam. 203. (t) JEdmeston vs. Lyde, 1 Paige, Ch. 63? ; Wakeman vs. Qrover, 4 Paige, Ch. 23 ; Lenttthon vs. Moffat, 1 Edw. Ch. 451. («) Burney vs. Morgan, 1 Sim. & Stu. 358. , (o) Lentilhon vs. Moffat, 1 Edw. Ch. 451 ; Bailey vs. Burton, 8 Wend. 389 ; Dunyan va.Vattier;3 Blackf. 245. (u>) Clarkson vs. DePeyster, 3 Paige, Ch. 320. OEEDITOE'S BILL. 401 Parties to the Bill — Defendants. bill for his own benefit only, without making other creditors, standing in the same situation, parties, (as) Other creditors may come in after the bill has been filed ; (y) and the court should call in all the creditors of the estate to receive divi- dends, (a) Where the plaintiff in a judgment, after execution thereon returned unsatisfied, assigns the judgment, the assignee may file a bill of this nature in his own name, without taking out a new execution after the assignment, (a) Defendants. — It is a general rule that all the parties against whom the judgment was recovered, should be made parties defendants to a bill of this nature. (J) But if one of them is insolvent and wholly destitute of property, or out of the juris- diction of the court, or a mere surety for the other defendants, it is not necessary to make him a party. These facts must, however, be distinctly averred in the bill, or the defendants may demur for want of parties, (c) Even where one joint debtor has not been served with process at law,, it is proper to make him a party to the bill ; for although his separate property cannot be reached directly, yet his co-defendants, if compelled to pay the debt, may claim contribution, (d) If the property of the judgment debtor, against whom an execution has been returned unsatisfied, is in the actual pos- {x) Wakeman vs. Graver, 4 Paige, Ch. 23; McCalmont vs. Latrrence, 1 Blatchf. C. C. R. 232: Pennell vs. Lamar Ins. Co., 73 III. 303. (y) The Bank etc. vs. Dunyan, 2 Bland, 254 ; see Story's Eq. PI. § 99-102 : Myers vs. Fenn, 5 Wallace, 205. (z) Kinney vs. Harney, 2 Leigh, 70 ; Williamson vs. Wilson, 1 Bland, 418 ; see Brooks vs. Gibbons, 4 Paige, Ch. 374 ; Parmlee vs. Bgan, 7 Paige, Ch. 610 ; Birley vs. Staley, 5 Gill & J. 432 ; Shubrick vs. Shubrick, 1 McCord, Ch. 406 ; Wabash & Brie Canal Co. vs. Beers, 2 Black, U. S. E. 448. (a) Oleason vs. Gage, 7 Paige, Ch. 121 ; Strange vs. Longley, 3 Barb. Ch. B. 650 ; see to the contra, Storms vs. Buggies, 1 Clarke, 148. (6) Child vs. Brace, 4 Paige, Ch. K. 309 ; Commercial Bank of Lake Brie vs. Meaeh, 7 Paige, Ch. R. 449 ; Spear vs. Campbell, 4 Scam. 424. (c) Van Cleef vs. Sickles, 5 Paige, Ch. 505 ; Commercial Bank of Lake Erie vs. Meach, 7 Paige, Ch. R. 449. (d) Id. lb. ; 2 Barb. Ch. Pr. 155 ; see Thomas, Truster, vs. Adams, 30 111.37. 26 402 CKEDITOE'S BILL. Parties to the Bill — Defendants. session and control of his wife, under circumstances which render it impossible to reach and obtain possession of it by a creditor's bill filed against the husband alone, it seems a bill may be filed against her and her husband jointly, 60 as to obtain a decree which will reach the property in her hands and compel her to deliver it up for the satisfaction of her husband's debts, (e) Judgment creditors are necessary parties in proceedings to subject lands upon which they have liens to the payment of other judgment liens, (f) If a debtor has conveyed different portions of his property to different persons, in fraud of his creditors, all the grantees may be joined in one bill with the grantor, {g) So, two or more persons holding the property of the judgment debtor under different conveyances, or becoming indebted to him at different times, or for distinct sums, may be joined with him as defendants in a creditor's bill, (h) A debtor to the judgment debtor may be made a party de- fendant to a creditor's bill, for the purpose of compelling him to pay to the complainant the debt which he owes to the judg- ment debtor. But he is not a necessary party ; and he is, in general, entitled to his costs out of the fund recovered. If there is no fund, the complainant is frequently compelled to pay them himself. (£) Creditors and legatees are exceptions to the general rule requiring all persons interested in the subject of the bill to be made parties. (J) () Cassidy vs. Meachan, 3 Paige, Ch. 311; see Mitchell vs. Byrns, 67 111. 522. (x) Pardee vs. DeGala, 7 Paige, Ch. 132; see Ishmeal vs. Parker, 13 111. 824; Newman vs. WiHette, 52 111. 98. (y) Gleaeon vs. Gage, 7 Paige, Ch. 121. (s) Van Cleef\B. Sickles, 2 Edw. Ch. 392. (a) Conant vs. Sparks, 3 Edw. Ch. 104. (6) Miers vs. ZanesmUe & MaysvUle Turnpike Go. 11 Ohio, 273 ; OadwaL lader vs. Granville Alexandrian Society, Id. 292. (c) 2 Barb. Ch: Pr. 165 ; Steer vs. Miller, 9 Paige, Ch. R. 605. (d) Id. 406 CREDITOR'S BILL. Form of Bill. No. 148. Creditors UU. To the Honorable -, Judge of the Court of the County of , in. the State of , In Chancery sitting : Your orators, A. B., E. F. and G. H., of, etc., partners under the name and style of B. F. & Co., respectfully represent unto your honor, that at the term, 18 — , of the court of said county, and on, etc., being one of the regular days of said term, your orators recovered a judgment against one C. D., one of the defendants hereinafter named, for the sum of dollars, damages and the costs of suit, whereof the 6aid C. D. stands convicted ; as by the record of the said judgment in the office of the clerk of said court, reference being thereto had, will more fully appear. Your orators further represent, that the said judgment remaining in full force and effect, and the damages aforesaid unsatisfied, your orators, on, etc., for the purpose of obtaining satisfaction of the said judgment, sued aDd prosecuted out of the said court, a writ of fieri facias, directed to the sheriff of the county of , that being the county in which the defendant C. D. reside'd at the time of the issuing of said writ ; by which said writ the said sheriff was commanded; that of the goods, chattels, lands and tenements of the defendant CD. in his county, he should cause to be made the said sum of dollars, which your orators in the said court recovered against the said C. D., and that he should have the money at the clerk's office' of said court, at , in said county, in ninety days from the date thereof, to satisfy the judgment so recovered by your. orators as aforesaid, and that he should have then and there that writ. And your orators further represent that the said writ of fieri facias, before the delivery thereof, was duly indorsed, and was afterwards, on, etc., delivered to the said sheriff, to be by him executed in due form of law. And your orators further represent, that the said sheriff, on, etc., made a return of said writ with an indorsement thereon, that, etc. {Mere insert the return of the sheriff :) as by the said writ of fieri facias, and the sheriff's return as aforesaid, now on file m the office of the clerk of the said court, will more fully appear. And your orators further represent, that the said judgment still remains in full force and effect, not reversed, satisfied or otherwise vacated ; that there is now actually and equitably CKEDITOK'S BILL. 407 Form of Bill.' due your orators upon the same, the sum of dollars, together with interest thereon from the date of the rendition thereof, over and ahove all claims of the defendant, C. D., by way of set-off, or otherwise. And your orators further represent, that at the time of the recovery of the said judgment, against the defendant C. D., he the said C. D., was, and for several years previous thereto had been, engaged in the mercantile business at the of- ; and your orators are informed and believe that in the course of the said mercantile business of the said C. D. divers persons became indebted to him, to a large amount, and that the de- fendant C. D. has, at, the time of filing this your orators' hill of complaint, debts due to him, and for which he holds divers securities and evidences, to a large amount, and has divers goods, wares and merchandise, or other articles of personal property, which belong to him, or in which he is in some way or manner beneficially interested, and that he has equitable interests and things in action of some nature or kind, which might and ought to be applied to the payment of your orators' said judgment against him, the defendant C. D. And your orators further represent, that the defendant C. D. is the owner of, or in some way or manner beneficially in- terested in, some real estate, in this or some other state or ter- ritory, or some chattels real of some name or kind, or some contract or agreement relating to real estate, or the rents, issues, and profits of some real estate ; and also that the defendant C. D. is the owner of, or in some way or manner beneficially inter- ested in the stock of some company, incorporated or unincor- porated, or in the profits of some company or copartnership ; and also that he has in his possession, at the time of the filing of this your orators' bill of complaint, some money in coin, or bank bills ; or that he has money deposited in some bank or elsewhere, to his credit ; or that he has money or securities for the payment of money, held by some other person in trust or otherwise for his benefit. And if the defendant C. D. has made any sale, transfer or assignment of his property or effects, or any part thereof, your orators expressly charge that they believe such sale, transfer or assignment is merely colorable, and made with a view of protect- ing the property or effects of the defendant C. D. so assigned, and placing the same beyond the reach of your orators' said judgment, and enabling the defendant C. D. to control and enjoy the same, and the avails thereof; and that it would so appear, if the defendant C. D. would state and set forth when and to whom such sale, transfer or assignment was made, and W8 CREDITORS BILL. Form of Bill. what was the amount in value, of the property or effects so assigned, sold or transferred, and what were the terms and con- ditions upon which such sale, transfer or assignment was made, and what disposition has been made of the property or effects so sold, transferred or assigned, and in whose possession the same now is, or what has been done with the avails thereof. And yeur orators claim a full and complete discovery of all such property, effects and things in action, belonging to the defend- ant C. JD., and of all trusts whereby any property, debts or other effects are held for the use or benefit of the defendant C. D., and of every sale, transfer or assignment which the defend- ant C. D. has made of his property, debts or other effects, and of the person or persons to whom such assignment, sale or transfer has been made, the amount and value of the property, debts or other effects so assigned, sold or transferred, and the trusts or other conditions upon which such sale, assignment or transfer was made, and all the facts and circumstances relating thereto ; and particularly what is the situation of the property, debts or other effects assigned or transferred, at the time of filing this your orators' bill of complaint. And your orators further represent, that they have reason to believe, and do believe, and so charge the fact to be, that the defendant C. D. has property, debts, and other equitable inter- ests, things in action or effects, of the value of more than dollars, exclusive of all prior just claims thereon, and which your orators have been unable to reach by execution on said judgment against the defendant C. D. ; and that this your ora- tors' bill of complaint is not exhibited by collusion with the defendant C, D. or with any other person, or for the purpose of protecting the property or effects of the defendant C. D. against the claim of other creditors, but for the sole and only purpose of compelling payment and satisfaction of the judgment so as aforesaid recovered by your orators against the defendant. C. D. And your orators further represent, that they are informed and believe, and so state the fact to be, that L. M., ~N. O., P. Q., and B. S., of, etc., other parties defendants hereinafter named, or some one or more of them, have in their possession or control, divers goods, wares, and merchandise, and other articles of personal property, which belong to the defendant C. D., or in which the defendant C. D. is in some way or manner beneficially interested ; or that they or some of them have in their possession or under their control, some money, stock, bonds, promissory notes, bills of exchange, judgments, mort- gages, deeds of trust, books of account, debts, evidences of indebtedness or other choses in action, which they or some of CREDITOR'S BILL. 409 Form of Bill. them hold in trust or otherwise for the use and benefit of the said C. D., or in which he is in some way or manner benefi- cially or otherwise interested ; or that they or some of them hold in trust or otherwise, for the defendant C. D., some real estate in this or some other state or territory ; or some chattels real of some kind ; or some contract or agreement relating to real estate ; or the rents, issues and profits of some real estate ; or some stock of some company, incorporated or unincorporated ; in trust for, or in which the defendant C. D. is in some way or manner beneficially or otherwise interested ; and that it would so appear, if the defendants last named, would each for himself, state and set forth every thing according to the best of their knowledge, information and belief, relating to any and all such property, real and personal, effects, choses in action, etc., and how, and upon what terms and conditions, and for what purpose, the same is so held by them, and all the facts and circumstances relating thereto. And your orators claim a full and complete discovery of all such property, effects and things in action, held or controlled by the said last named defendants, or by any or either of them, in trust or otherwise, for the benefit of the defendant C. D. And that each of the said last named defend- ants shall set forth and state, the nature and description of any property, effects, and choses in action, the amount, kind, value and particulars thereof, and the precise terms and conditions upon which the same are so held and controlled by them, or any or either of them. {Here insert such other charges as the nature of the ease may seem to require, and if any other persons are supposed to have property, etc., in their possession or under their control in which the defendant is interested, charge the facts, and make them parties.) And your orators well hoped, that the defendant C. D. would have paid to your orators the amount due to them on their said judgment, or would have applied for that purpose any property, money, debts or other equitable interests or things in action belonging to him, or in which he is in any way interested, as in equity and good conscience he ought to have done. But now so it is, the defendant combining and confederating with divers other persons, to your orators unknown, but whose names, when discovered, they pray may be inserted herein, with proper and apt words to charge them, and contriving how to injure and defraud your orators in the premises, neglects and refuses to pay the amount so due to your orators on their said judgment, or to apply for that purpose any property, 410 CREDITOR'S BILL. Form of BUI; money, debts, or other equitable interests or things in action, belonging to the defendant C. D. ; and for reason whereof the defendant C. D. sets up a variety of unfounded pretenses. All which actings, doings, neglects and pretenses are contrary to equity and good conscience, and tend to the manifest wrong and injury of your orators in the premises. . Forasmuch, therefore, as year orators are without remedy in the premises, except in a court of equity ; and to the end that the said C. D., L. M., N. O., P. Q. and R. S., who are made parties defendant to this bill, may be required upon their several and respective corporal oaths, and according to the best and utmost of their several and respective knowledge, remem- brance, information and belief, full, true, direct and perfect answer make, to all and singular the matters and things herein- before stated and charged, as fully and particularly as if the same were here again repeated and they severally thereto dis-' tinctly interrogated paragraph by paragraph, and especially that they may each set forth and discover the nature and situation, amount and value of all the property, interests and effects of the defendant C. D., including all things in action, of whatever nature or kind, with all the particulars relating thereto, and that they may severally and respectively answer and state whether at the time of filing this your orators' bill of complaint the defendant C. D. has not debts due to him to a considerable amount ; and if so, that they state particularly the amount of such debts respectively, and from whom the same are due, and what securities are held therefor, and also which and what amount of said debts are good and 3ollectable, and which and what amount bad and doubtful ; and whether at the time of filing this your orators' bill of complaint, the defendant C. D. had not or has not now some property, real or personal, in law or equity, belonging to him, or held in trust for him, or in which he has some beneficial interest of some kind or description, and if so, that they may severally state and set forth a full, true and particular account thereof, and the nature and value of his interest therein ; and that they may also severally state whether the defendant C. D. has not money of some kind in his possession, or under his control, or deposited to his credit, or for his use, or in some way or manner held for his benefit, and if so, that the defendants may respectively state and set forth particularly the amount thereof, and how and by whom the same is held ; and that the defendants may severally state whether the defendant C. D. has any other equitable interests or things in action, or other means belonging to him, or in which he is in any way interested, whereby he could pay any CKEDITOITS BILL. 411 Form of Bill. part of the amount so, as aforesaid, due to your orators upon their said judgment against the defendant C. D. And if the defendant C. D. has made any sale, assignment or transfer of his property and effects, or any part thereof, that then the defendants may severally and respectively state and set forth generally, hut not in items, what property or effects have been so sold, assigned or transferred, and the value there- of, and particularly when, and to whom, and for what purpose, and upon what terms and conditions, such sale, assignment and transfer was made, and what has been done under such sale, assignment or transfer, and what has been done with the prop- erty or effects so sold^ assigned or transferred, and the avails thereof. And that the defendants may also severally answer make to Buch of the several interrogatories hereinafter numbered and set forth, as by the note hereunder written, they are respectfully required to answer ; that is to say : 1. Whether, etc., etc. 2. Whether, etc. 3. Whether at the time of the filing of this bill of com- plaint you had, or have now, in your possession, custody or charge, any lands, tenements, goods, chattels, moneys, bonds, promissory notes, bills of exchange, judgments, mortgages, deeds of trust, stocks, choses in action, credits or effects of any kind or nature belonging to the defendant 0. D., or in which he is in any manner directly or indirectly beneficially or other- wise interested ? If yea, set forth fully and particularly the kind, number, quantity and value thereof respectively ; and state fully the terms and conditions upon which the same are so held. 4. Were you at or after the time of the filing of this bill of complaint, or are you now, in any manner indebted to the said C. D. \ If yea, set forth fully and particularly for what, how, and to what amount you were or are so indebted to him. 5. Whether, etc. And that the defendant C. D. may be decreed to pay your orators the amount so as aforesaid due to them for principal and interest on their said judgment, together with your orators' costs and charges in this behalf sustained ; and may be decreed to apply for that purpose any money or property real or per- sonal, in law or equity, debts, choses in action or equitable interests belonging to him, or held in trust for him, or in which he is in any way or manner beneficially interested ; and that the defendant C. D. may be enjoined and restrained from sell- ing, assigning, transferring, delivering, negotiating, discharging, 412 CEEDITOE'S BILL. Form of Bill. receiving, collecting, encumbering, or in any way or manner disposing of, or intermeddling with, any debts or demands due to him, or any bills, bonds, notes, drafts, checks, book accounts, mortgages, judgments, or other debts due "to him, whether in his possession or held by some other person in trust for him, or to his use and benefit ; and also from assigning, transferring, or in any manner incumbering or disposing of, or intermeddling with, any money in coin, bank bills, drafts or checks belonging to him, whether in his possession, or held by any other person in trust for his use or benefit ; or any stock, or interest in any private or incorporated company, or any property, real or per- sonal, things in action or chattels real, held by him, or by any other person for him, or in which he has any interest whatever, except where such trust has been created by, or the fund so held in trust has proceeded from some person other than the defendant C. D. And that the defendant C. D. may also be in like manner prohibited from making any assignment of hia property, and from confessing any judgment for the purpose of giving preference to any other creditor over your orators, and from doing any other act to enable other creditors to obtain his property. And that a receiver may be appointed, according to the course of practice of this court, and with the usual powers of receivers in like cases, of all the property, equitable inter- ests, things in action, and effects of the defendant C. D. And that your orators may have such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sheriff of the said county of , com- manding him that he summon the defendants C. D., L. M., K O., P. Q. and E. S., to appear before the said court, on the first day of the next term thereof, to be held at the court house in , in the county of aforesaid, then and there to answer this bill, etc. And may it please your honor to grant unto your orators th§ people's writ of injunction, to be directed to tbe defendant 0. D., restraining him, his agents and attorneys from, etc., (accord- ing to the prayer of the bill,) until the further order of said court. ■ , Sol. for Complainants. State of ) County of ( 8S - A. B., on oath states, that he is one of the complainants in the foregoing bill named, and has heard the same read, and CREDITOE'S BILL. 413 Form of Bill in Aid of Execution, etc. knows the contents thereof. That the matters and things in the said bill contained is true of his own knowledge, except as to those matters which are therein stated to be on his informa- tion and belief, and as to those matters he believes it to be true. Subscribed and sworn to, etc. A. B. Note. — The defendants are each required to answer the inter- rogatories in the foregoing bill of complaint, numbered respec- tively 1, 2, 3, 4, 5, etc. The defendant C. D. is required to answer all of said interrogatories except the 3d and 4th. , Sol. for ComplafoumU. No. lJf9. Bill in aid of an execution to remove a fraudulent conveyance. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting: Tour orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., your orator recovered a judgment in the court, of the county of , in this state, against one C. D., one of the defendants hereinafter named, for the sum of dollars, damages, and the costs of that suit, whereof the said C. D. stands convicted, as by the record of the said judgment, in the office of the clerk of the said court, reference thereto being had, will more fully appear. Your orator further represents that, previous to the time of the rendition of the said judgment, the defendant C. D. was the owner in fee simple of the following described real estate, to wit : (Here insert description.) Tour orator further represents, that on, etc., the said judg- ment remaining in full force and effect, and the damages and costs aforesaid unsatisfied, your orator, for the purpose of obtaining satisfaction of the same, caused a writ of fieri facias to be issued and delivered to the sheriff of the said county of , where the defendant C. D. then resided, and still resides, and the said real estate is situated, in the usual form, command- ing the said sheriff that of the goods, chattels, lands and tenements of the defendant C. D., in his county, he should cause to be made the said sum of dollars, which your orator in the said court recovered against the said C. D., and he should have the money at the clerk's office of said court, at , in said county, in , ninety days from the date thereof, to satisfy the judgment so recovered by your orator as aforesaid, and that he should have then and there 414 CKEDITOK'S BILL. Form of Bill in Aid of Execution, etc that writ; which said writ of fieri facias was duly indorsed and, on the same day, delivered to the said sheriff, to be by him executed in due form of law. . And your orator further represents, that the said execution is still in the hands of the said sheriff, not returned, and is un- satisfied in whole or in part. Your orator further represents, that prior to the rendition of the said judgment, but after the indebtedness upon which the same was rendered had accrued, to wit, on, etc., the defend- ant C. D. made a pretended conveyance in fee of the said described real estate to one G. EL, another defendant herein- after named, for a pretended consideration of dollars. And your orator further represents, that the said conveyance was not real, but was a mere sham, and made with the inten- tion of defrauding your orator, and the other creditors of the said G. D., out of their just demands; that no consideration was paid by the said G. H. to the said C. D. for the said con- veyance; and that the said premises are now held by the said G. H. in trust for the said C. D., and for his use and benefit, and for the purpose of preventing a levy and sale of the same under and by virtue of said execution. Your orator further represents, that the said G. H. is a man of no pecuniary responsibility, and is possessed of little or no property other than that so fraudulently conveyed to him as aforesaid, and is in embarrassed circumstances, and involved and largely in debt. Your orator further represents, that the said C. D. has no personal or real estate liable to levy and sale, except the premises aforesaid, on which the said sheriff could make a levy and realize the amount of, the said judgment and costs ; and that, although the said sheriff has frequently demanded of the said C. D. to pay the amount due upon the said judgment or that he turn out property upon which he could make a levy, the said C. D. has refused to pay the same, or turn out property, and fraudulently insists that he has neither money norproperty to satisfy the same. Your orator further represents, that the said judgment still remains in full force and effect, not reversed, satisfied or other- wise vacated,; that there is now actually and equitably due your orator upon the same the sum of dollars, together with interest thereon from the date of the entry of the said judgment, over and above all claims of the said C. D. by way of set-off or otherwise. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that CKEDITOE'S BILL. 415 Form of Bill in Aid of Execution, etc. the said C. D. aud G. H., who are made parties defendant to this bill, may be required upon their several and respective corporal oaths, and according to the best and utmost of their several and respective knowledge, remembrance, information and belief, full, true, direct and perfect answer make, to all and singular the matters and things hereinbefore stated and charged, as fully and particularly as if the same were here again repeat- ed and they severally thereto interrogated, and especially that they may each set forth and state the facts and circumstances attending the said conveyance, the amount of money actually paid thereon by the said G. H. to the said C. D., and how and in what manner* the payments were, or were to be made, from whence the said G. H. derived the funds with which to make said purchase, and the purpose of said conveyance ; and that the defendants may also severally answer make to such of the several interrogatories hereinafter numbered, as by the note hereunder written, they are respectively required to answer, that is to say : 1. Whether, etc. (Sere insert as many interrogatories as may he deemed necessary?) And that upon the hearing thereof, the said conveyance, including the deed thereof, as to the complainant, be set aside, vacated and declared null and void; that an injunction be allowed, restraining the said defendants, or either of them, from disposing of, transferring, incumbering, or in any manner interfering with the said property, or any part thereof; that a' receiver be appointed, with the usual powers and duties of a receiver ; and that the complainant may be authorized to pro- ceed upon his said writ of fieri facias issued as aforesaid, or issue another writ thereon, as it may be deemed necessary ; and that the sheriff of said county thereupon be directed to proceed to levy upon, advertise and sell said premises for the payment and satisfaction of your orator's said judgment, inter- est and costs ; and that your orator may have such other and further relief in the premises as equity may require; and to your honor shall seem meet. May it please your honor, etc. (Pray process, and for an injunction, and add affidavit and note, as in the last form —No. 148.) 416 CREDITOR'S BILL. Form of Bill against Executrix, etc. No. 150. Bill by creditor against executrix of a deceased debtor. To the Honorable , Judge of the Court, of the County of , in the State of , In Chancery sitting : Tour orator, A. B., of, etc., for and on behalf of himself and all other creditors of C. D., late of, etc., deceased, who shall come in and contribute to the expense of this suit, respectfully represents unto your honor, that the said C. D., deceased, was in his lifetime, and at the time of his decease, indebted to your orator in the sum of dollars, for and on account of, etc., {Here state the nature of the indebtedness^) which said sum of dollars still remains due and owing to your orator. And your orator further represents, that the said C. D. was also at the time of his decease, as it is alleged, indebted to cer- tain other persons by specialty, simple contract or otherwise. And that the said C. D. being so indebted, and being possessed of, or well entitled to, considerable real and personal estate, departed this life on or about the day , 18 — , having first duly made and published his last will and testament in writing, bearing date, etc., and thereby gave and bequeathed all his estate and effects in the words and manner following, that is to say : " I give and bequeath unto my dear wife E. 1)., all my estate, real and personal, and effects whatsoever, and wheresoever absolutely. And I appoint my said wife executrix of this my last will and testament, and I revoke all other wills by me heretofore made. It is my will that letters testamentary issue to my said wife without it being required of her to enter into bond with security as such executrix." And your orator further represents, that the said testator departed this life with- out having revoked or altered his said will, and that immedi- ately after his decease the said E. D. possessed herself of a con- siderable part of his personal estate and effects, and converted the same to her own use, and entered into possession of his real estate and receipt of the rents and profits thereof. And that afterwards, on, etc., the said E. D. duly proved the said last will and testament in the court of the county of aforesaid, and letters testamentary were granted to her by said court, without requiring her to enter into bond with a good and sufficient security condition according to law, and she took upon herself the burden of the execution thereof. And your orator further represents, that afterwards, on, etc., your orator presented his said claim before the said court, CREDITOR'S BILL. 417 Form of Bill against Executrix, etc. and the same was then and there duly probated and allowed to the said amount of dollars, by that court, as a claim against the estate of the said C. D., deceased, as a debt of the class. Tour orator further represents, that the said E. D., immedi- ately after the proving of the said will, and the issuing of the letters testamentary as aforesaid, possessed herself of the resi- due of the estate and effects of the said testator, to a very considerable amount and value, and, together with the effects of the said testator so possessed and converted to "her use before that time, as aforesaid, much more than sufficient to discharge and satisfy all his just debts, funeral and testamentary ex- Senses, but that the said E. D. has not yet paid or satisfied the ebt due to your orator, or any part thereof, and the same, together with some other of the debts owing by the said C. D. at the time of his decease, still remain unsatisfied. And the said E. D., having as aforesaid possessed assets of the said C. D., much more than sufficient to satisfy all his debts, your orator has applied to and requested the said E. D. to satisfy the same accordingly. And your orator well hoped that the 6aid E. D. would have complied with such request, as in justice and equity she ought to have done. But now so it is, may it please your honor, that the said E. D. combining and confed- erating with divers other persons at present unknown to your orator, etc., refuses to pay the debt of your orator, and alleges that the personal estate and effects of which the said . C. D., deceased, was possessed of, or entitled to, at the time of his decease, and which have come to her hands, or to the hands of any person or persons by her order, or for her use, was small and inconsiderable, and has already been exhausted in the payment of his funeral expenses, and debts of a class superior arid prior to that of your orator, and other creditors having claims of a similar class ; and that nothing now remains in her hands of the assets of the said C. D., deceased, with which to pay such unsatisfied debts ; and she wholly refuses to sell the said real estate or any part thereof, for the purpose of paying the said debts from the proceeds thereof; and refuses to apply the rents and profits of the said real estate, to the payment of said demands, but applies and converts the same to her own use, and refuses in any man- ner to account for the same, and insists that she is now the absolute owner of all such real estate, and the personal prop- erty now in her hands ; whereas your orator charges that the contrary of such pretenses is true, and that upon a Sir account ing with respect to said estate, a sufficient sum would appear to be in the hands of the said E. D., to satisfy all said debts. 8* 418 CEEDITOE'S BILL. Form of Bill against Executrix, etc. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity, and to the end that the said E. D., who is made a party defendant to this bill, may be required to make full and direct answer to the same ; and especially that she may set forth and discover the nature, amount and value of all the property, real and personal, inter- ests and effects of the said C. D., deceased, of whatever nature and kind, with all the particulars relating thereto, owned by the said C. D. at the. time of his death, and which came into the possession or control of the defendant, or into the possession of any other person or persons for her use, and what has been done with the- same or the avails thereof; and that the defend- ant may answer make to the several interrogatories hereinafter numbered and set forth, that is to say : 1. "Whether you, the said E. D., did not, soon after the death of the said C. D., take possession of a considerable por- tion of the personal property and effects of the said C. D., and convert the same to your own use ? If yea, give the nature, amount and value of the same, and state what has been done with the proceeds or avails thereof. 2. Whether, etc. (and so on, inserting such interrogatories as may he deemed necessary.) And that an account may be taken by and under the direc- tion of this honorable court of the real and personal estate of the said C. D., deceased, and of the debt due your orator, and of the- debts due to the other creditors of the said C. D. remaining unsatisfied at the time of his decease, and of the rents and profits of his real estate, which have been possessed by, or come to the hands of, the defendant, or of any person or persons by her order or for her use ; and that the real and personal estate of the said 0. D., or so much thereof as remains unapplied and undisposed of may be applied, in the first place, in or towards the satisfaction of his funeral expenses, in case the same have not been satisfied, and then, etc. (as required by law m reference to preference /) then in satisfaction of the debt due to your orator, and the other creditors of the same class, who shall come in in like manner and contribute to the expense of this suit, equally and share alike in due course of administration ; and that a receiver may be appointed by this honorable court to collect in and receive the outstanding per- sonal estate and effects belonging to the said C. D., and the rents and profits of his real estate; and that the defendant may be restrained, by the injunction of this honorable court, from receiving the rents and profits of his real estate, and from collecting in and receiving any such outstanding personal CBEDITOE'S BILL. 419 Form of Order appointing Receiver, etc. estate, and from assigning, selling, or" parting with any part of the personal estate and effects of or belonging to the said C. D., now in the custody or power of the said defendant, or in the custody, possession or power of any persons or persons in trust for her ; and that your orator may have such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please your honor, etc. {Pray process and for injunc- tion as in No. 148, ante, page 406.) No. 161. Order appointing a receiver in a creditor's suit. {Proceed as in No. 81, ante, page 20%, to the asterisk*, and continue :) It is ordered that E. F., of, etc., be and he is hereby appointed receiver of" the estate and property, real and personal, things in action, debts, equitable interests, and other effects of the de- fendant C. D., and which belonged to, or were held in trust for him, at the time of the commencement of this suit, or in which he had any beneficial interest, except such property as is by law exempt from execution ; and, also, except where such trust property has, in good faith, been created by, or the fund so held in trust has proceeded from some person other than the defend- ant C D. himself, and of the real estate mentioned and de- scribed in the complainant's bill, to wit : ' {Here describe it,) and the rents, issues, incomes and profits thereof, with the usual powers and duties of receiver, upon the said receiver executing and filing with the clerk of this court a bond in the usual form, to the people of this state, in the penal sum of dollars, with sureties to be approved by this court. And it is further ordered that the defendant C. I), do assign, transfer and deli- ver to said receiver, on oath, under the direction of the master in chancery, all such property, real and personal, things in action, equitable interests, and other effects, except as aforesaid, property exempt by law from execution, and trust property, where the trust has been created by, or trust fund proceeded from, some person, in good faith, other than the defendant himself. And that he deliver to said receiver, in like manner, all bills, notes, contracts, books of account, etc., and other evidences relating thereto. And that the defendant C. D. execute and deliver to said receiver, under the direction of the said master, a general assignment of such property and effects ; and also execute, acknowledge and deliver to said receiver, un- der the direction of the said master, a conveyance and assign- ment of the real estate mentioned in said bill, and hereinbefore 420 CEEDITOK'S BILL. Order of Reference — Decree, etc. described, and of the rents, issues and profits thereof. And that the defendant C. D., and his tenants, etc., attorn to the said receiver, and pay to him the rents and profits, and that the said receiver have power to make leases of such real estate, from time to time, not exceeding one year, as he may deem advisable. And that the defendant appear before the said master in chan- ery, as he shall be summoned or required to do, from time to time, and produce such books, papers and accounts, and submit to such examination, as said master shall direct in relation to any matter which he may be lawfully required to disclose. The above order to be varied to conform to the circumstances of each particular case. If any further special direction or provision is desired, insert it at the end of the form. No. 152. Order referring creditor's bill to master, to examine defendant and witnesses. (Proceed as in No. 81, ante, page 202, to the asterisk*, and proceed :) It is ordered that this cause be referred to the master in chancery of this court, to examine the defendant C. D., and such witnesses as shall be produced before him under oath, and upon interrogatories, concerning the property, chattels, things in action, equitable interests, and effects of the defendant, CD., and to report the same to this court with all convenient speed ; and that the defendant C. D. do appear and attend from time to time, and when summoned or required so to do, before said master, and produce such books, accounts and papers, and submit to such examination as the said master shall direct, in relation to any matter which he may lawfully be required to disclose ; and that the said master, or either party, be at liberty to apply to the court at any time for further directions. No. 153. Decree that complainant? 's debt be paid out of funds in the hands of the receiver. (Caption, and title of cause as in No. 79, ante, page 198.) This cause having come on to be heard upon the bill of com- plaint herein, the answers of the defendants thereto, the replication of the complainant to, such answers, and the report of the receiver heretofore appointed in this cause, and the report of the master in chancery, to whom the same was referred to examine the defendant and other witnesses in the CREDITOR'S BILL. 421 Form of Decree. ' cause, which said reports are each hereby approved and con- firmed ; and this cause having been argned by the counsel for the respective parties ; and the court being fully advised in the premises, doth order, adjudge and decree, that out of the moneys in the hands of the said receiver, collected and held by him, as shown by his said report, the said receiver, after deduct- ing his charges for disbursements and commissions, do pay the costs of this suit, to be taxed by the clerk of this court, and out of the residue of said moneys, he pay the complainant the amount of the said judgment, to wit, the sum of dollars, with interest thereon from the time the said judgment was entered, to wit, the — •— day of, etc., and that he take from the complainant an acknowledgment of satisfaction of said judg- ment, and deliver the same to the defendant C. D., to the end that said judgment may be canceled and discharged of record. (If there is no other claimant upon the fund in the hands of the receiver, add :) And it is further ordered, adjudged and decreed, that the said receiver do pay over to the defendant C. D. the residue of the moneys so remaining in. his hands, or account with him for the same, and deliver to him all and singular the property and effects, books of account, evidences of debt, or other papers or documents relating to said trust estate, on demand of the defendant C. D. ; and also, if the defendant C. D. shall so require, that the said receiver execute back to him a general release and assignment of all and singular the property, equit- able interests and effects, of said trust estate, remaining in his hands undisposed of. On which assignment and delivery being made, it is adjudged that the said receiver be discharged from his said trust. If the amount in the receiver's hands is not sufficient to pay the debt and costs, the decree must of course be varied to meet the facts, and will merely direct the receiver to pay the amount so collected upon the judgment, and take the complainant's receipt therefor. If assets, etc., remain undisposed of, the court may direct their sale and application. If there are other claimants upon the fund, or the receiver- ship has been extended over the property in a subsequent suit,' the court, instead of ordering the surplus to be paid over to the defendant, will direct it to be brought into court, to abide its farther order. 422 CREDITOR'S BILL. Form of Decree in Aid of Execution. N~o. 15$.. Decree setting aside a fraudulent conveyance in aid of an execution. (Caption, and title of cause as in ITo. 79, xate,page 198.) This cause coming on to be heard upon the bill of complaint herein, the answers of the defendants thereto, the replication of the complainant to such answers, and the report of the mas- ter in chancery to whom the same was referred to take proofs of the matters alleged 'in the bill, which said report is hereby approved and confirmed; and the court having heard the arguments of the counsel of the respective parties, and being fully advised in the premises, doth order adjudge, and decree that the deed of conveyance, bearing date on, etc., made and executed by the defendant C. D. to G. BL, for the premises described therein, and in the complainant's bill, to wit : {Sen describe the premises^) be and the same is hereby set aside and vacated and declared null and void, and of no effect whatever, as against the complainant. And it is further ordered, adjudged and decreed that the complainant be authorized to proceed upon his writ of fieri facias, issued upon the judgment rendered in the court of the county of aforesaid, described in the said bill of com- plaint, wherein he is plaintiff, and the defendant C. D.. defend- ant,' for dollars and costs; or issue another writ of fieri facias thereon, if it be necessary, and that the sheriff of said county thereupon proceed to levy upon, advertise and sell said real estate for the payment and satisfaction of the said judgment interest and costs. And it is further ordered, adjudged and decreed that the defendant 0. D. pay the costs of this proceeding to be taxed by the clerk of this court ; and if the proceeds of the sale of the said premises be not 'sufficient to pay said judgment, inter- est and costs, and the costs of this suit, that the complainant have further execution for the same against the defendant C. D. For additional Illinois cases in relation to creditor's bills, see Higgins vs. Curtiss, 82 111. 28 ; Lewis vs. Lamphere, 79 111. 187; Burham vs. Lamar Ins. Co., 79 111. 160; White vs. Hussell, 79 111. 155 ; Phelps vs. Curtis, 80 111. 109 ; Gould vs. Steinbury, 84 111. 170. chapter yyy PAKTITCOX SOTS. Section 1. >ATCKE OF, AND HOW LvbTlTUTKU. 2. Parties to. 3. BnX OK PeTITIOJi. 4. Process of Appearance IK. 5. Ijstkrfleadkr. 6. Decree for Partition. 7. PROCEEDINGS BT COMMISSIONERS. & EXCEPTIONS TO REPORT OF COMMISSIONKBS. 9. Decree of Sale. 10. Exceptions to Beport of Sale. 11. COSFIRMATION OF SALE. SECTION L JffATUKE OF. AND HOW rSSTTTUTED. Partition is the severance of common or undivided Interests. It is particularly applied to interests in realty. At common law lands held by two or more persons were held by them either in joint tenancy, in common, or in coparcenary. The first two of these estates were created by the act of the parties. The last was created by operation of the law, when in casting a descent it devolved a single estate upon two or more heirs : as, for example, when an estate in fee of one who left no male succession, passed to his daughters or other female relatives. These, persons were called coparceners. Theirs was the only joint estate of which the common law would compel a dissolu- tion at the request of a single party. Joint tenants and tenants in common became so by their own mutual agreement and act, and the tenancy could be justly severed only by their mutual consent. But coparceners are rendered so by operation of law, and lest any one of them be prejudiced by the perverseness of his fellows, the law will lend its aid, if he ask it, and help him by partition, to the enjoyment of his separate interest. 424 PARTITION SUITS. Nature of, and how Instituted. In the reign of Henry VIII, (1527,) and of William IV, (1833,) special statutes were passed extending this common law benefit, which hitherto coparceners alone had enjoyed, to joint tenants and tenants in common, so that partition then became incident to all estates held in common. In the United States the technical joint tenancy is quite obsolete ; joint ownership being, if not under express statute, yet in effect, only tenancies in common. So, also the technical distinctions between estates in common and in coparcenary have lost nearly all their force. Much, therefore, of "the cunning learning of partition," as it exists in the English law, is inapplicable here. Yet, as among us, real property generally passes, on the death of an ancestor, to more persons than one, partition still retains an importance in respect to the tenancies in common of heirs and devisees. In some of the states the operation of this remedy is extended by statutes beyond the limits fixed for it by the common law, or the statute of Henry VIH. Partition in England was made either by mutual consent or upon compulsion. In the latter case the relief was sought either by a writ of partition, sued out by one party, at common law, or by his petition to the court of chancery. If the courts of law ever had exclusive jurisdiction of par- tition, as it is sometimes asserted, it must have been at a very remote period. For as early as the reign of Elizabeth, (1571,) it is certain that chancery took cognizance of the matter, and in modern times has exercised an almost exclusive jurisdiction. There is good reason, in most of the states, for the preference of chancery courts over courts at law, in matters of partition ; the proceeding at law being regarded as far less effectual than that in equity. The courts of law are generally limited to a mere allotment according to the proportional shares of the parties in interest ; and this often causes a purely mechanical, and some- time a prejudicial, division, of an estate. But chancery is not restricted to the exact balancing of equivalent shares, but is capable of all equitable adjustments of the matter, and may distribute among the proprietors the separate, though unequal, parcels of the estate, assigning to the" several parties the por- PARTITION SUITS. 425 Nature of — Statute of Illinois. tions which will best suit their respective condition, equalizing such a partition by decreeing pecuniary compensation to be made, or in other cases ordering equitable payments by some for im- provements made in the common property of others. This jurisdiction is exercised with peculiar fitness in all cases where purely equitable rights, conflicting claims of parties, or modes of enjoyment are to be adjusted, (a) This distinctive feature, favorable to equitable procedure in partition cases, is measurably avoided in Illinois, by the act of 1874, which provides, that " in all suits for the partition of real estate, whether by bill in chancery or by petition under this act, the court may investigate and determine all questions of conflicting or controverted titles, and remove clouds upon the titles to any of the premises sought to be partitioned ; invest titles by their decrees, in the parties to whom the prem- ises are allotted, without the forms of conveyances by infants or unknown heirs, or other parties to the suit ; assign dower, and order a sale of the premises, for the purpose of dividing the premises in proper cases, and by its decree invest the pur- chaser with title, and apportion incumbrances among the parties to whom the incumbered premises are allotted." (b) This is a substantial revision of the acts of February 12, 1861, and February 28, 1867. (c) In most, if not all, the states the jurisdiction of the courts in relation to partition suits is regulated by very minute stat- utory provisions, and to these reference must be made for the particular methods of procedure, and the powers of court. In Illinois, the first section of the act of 1874, to revise the law in relation to the partition of real estate, provides : "that when lands,, tenements or hereditaments are held in joint tenancy, tenancy in common or coparcenary, whether such right or title is derived by purchase, devise or descent, or whether any or all of the claimants are minors or of full age, (a) Gregory vs. Gover, 19 ID. 608; Walker vs. Laflin, 26 111. 472; Wilton vs. Tazewell, 86 HI. 29; Labidie vs. Hewett, 85 111. 341. (6) Rev. Stat. (1874)753; Rev. Stat. (1877) 710; Henrichsen ys.Hodgen, 67 111. 179. (c) Laws of 111. 1861, p. 177; Laws of 1867. 426 PAETITION SUITS. Parties to — Complainant or Petitioner. any one or more of the persons interested therein may compel a partition thereof by bill in chancery, as heretofore, or by petition in the circuit court of the proper county, or if the pro- ceeding is in the county of Cook, in the circuit or superior court of said county." Section 25 provides, that : " If a person to whom any share has been allotted is evicted by a person who, at the time of the partition, had a title older and better than the titles of those who were parties to the suit, the person so evicted may have a new partition of the residue, as if no partition had been made, if such new partition can be justly made, or he may have' contribution from the others, so as to make his share just and equal with the others, according to his rights in the premises." SECTION n. PAETTES TO. Complamant or petitioner. — A party seeking a partition of land must have some interest in it. A person who is a mere guardian of an infant owner, cannot maintain the suit. In such case the proceeding must be brought in the name of the ward, by the guardian, (d) The statute provides, that " infants may petition by guardian, or next friend, and other persons under guardianship, by their conservators." (e) As a general rule, courts will refuse to make partition of land between parties claiming to be tenants in common, unless it clearly appears that the several persons claiming to be owners hold title to the premises. (/") So, where the party shows merely a. prima facie title, arising under color of title, possession and payment of taxes for seven years, he cannot obtain a partition. But he might no doubt file a bill in (d) Bowles vs. McAllen, 16 HI. 30. (e) Rev. Stat. (1874) 749; Rev. Stat. (1877) 707. (/) .Ross vs. Cobb, 48 111. Ill; Schneider vs. Seibert, 50 111. 284; Williams vs. Wiggand, 53 111. 233 PAETITION SUITS. 427 Parties to — Complainants, etc. — Defendants. chancery against those claiming adversely, making them and the other tenants in common parties, and have such adverse claim removed, as a cloud upon his title, and then obtain a partition, (gr) A remainder man, or reversioner in fee, of an undivided interest in lands may maintain a suit for partition against the owner of the remaining undivided interest in remainder, the whole premises being subject to a life estate in another, and unexpired. (A) But a suit cannot be maintained by a person who has merely a future contingent interest in an undivided share of the property, (i) A partition of lands among several joint owners will not be made, unless those by whom the partition is sought have a legal title to the portions claimed by them. A party who has a mere equitable right to a conveyance of an undivided inter- est is not in a position to ask a partition. (J) Defendants. — The statute of Illinois requires that "Every person having any interest, whether in possession or otherwise, and who is not a petitioner, shall be made a defendant to such petition." Previous to the revised statute, it has been held that neither a mortgage nor a judgment creditor was a proper party to a partition suit, and that their rights could not be affected by a sale of the lands ; (&) but inasmuch as the statutes have author- ized the court to decree a sale, which will give a purchaser a perfect title, or to apportion encumbrances among the parties to whom the encumbered portion is allotted, it is necessary that all encumbrancers should be made parties. (I) All persons having an interest in the subject matter of the (g) Ross vs. Cobb, 48 m. 111. (A) ScomUe vs. Httliard, 48 111. 453 ; Billiard vs. ScomUe, 52 111. 449. (») Striker vs. Mott, 2 Paige, Ch. 387. (J) Williams vs. Wiggand, 53 111. 233 ; see Lemerton vs. Waters, 7 Coldw. Tenn. 20 ; Oourley vs. Woodbury, 43 Vt. 89. (k) Welton vs. Copeland, 7 Johns. Ch. 140 ; Sebring vs. Mersereau, Hopk. Ch. 501 ; Earwood vs. Kirby, 1 Paige. Ch. 469 ; (I) Loomis vs. Riley, 24 111. 307 ; see KUg'our vs. Crawford, 51 111. 249. 428 PARTITION SUITS. • Parties to, etc. — Bill or Petition, etc. proceedings must be made parties, or they will not be bound by the judgment, except as a color of title under the statute of limitations, (m) Unknown defendants. — The statute of Illinois provides that " When there are any persons interested in the premises whose names are unknown, or the share or quantity of interest of any of the parties is unknown to the petitioner, or where such share or interest shall be uncertain or contingent, or the ownership of the inheritance shall depend upon an executory devise, or the remainder shall be contingent, so that such parties cannot be named, the same shall be so -stated in the petition. " All persons interested in the premises in which partition is sought to be made according to the provisions of this chap- ter, whose names are unknown, may be made parties to such petition by the name and description of unknown, owners of the premises, or as the unknown heirs of any person who may have been interested in the same." Pv/rchaser pedente lite.— A purchaser from one of the parties to a pending suit for partition acquires his interest in the property, subject to such decree as may be rendered on the hearing. Thus a mortgagee is limited to that portion allotted to his mortgagor, (n) SECTION III. BILL OE PETITION. Form of petition. — The 5th section of the statute of Illinois provides that, "the petitioner shall, particularly describe the premises sought to be divided, and shall set forth the interests of all parties interested therein, so far as the same are known (m) Hassett vs. Ridgely, 49 111. 197 j see Kester vs. Stark, 19 111. 328; ffickenbotham vs. Blackledge, 54 111. 316. (») Loomis vs. RUey, 24 IH. 307 ; see Jackson vs. Warren, 32 111. 331 , Dickson vs. Todd, 43 111. 504; Roberts vs. Fleming, 53 111. 196; see Smith vs. Crawford, 81 111. 296. PAKTITION SUITS. 429 Bill or Petition — Form of Bill. to the petitioners, including tenants for years, for life, by the courtesy or in dower, and of all persons entitled to the rever- sion, remainder or inheritance, and of every person who, upon any contingency, may be or become entitled to any beneficiary interest in the premises, so far as the same are known to the petitioners, and shall pray for the division and partition of the premises according "to the respective rights of the parties inter- ested therein, or that if a division and partition of the same cannot be made without manifest prejudice to the owners, a sale thereof shall be made, and the proceeds divided according to the respective rights of the parties ; and such petition shall be verified by affidavit. " The petitioner may, in his petition, require the defendants, or any of them, to answer his petition on oath, in which case the answer shall have the same effect as an answer in chancery • under oath." (o) The particular matters required by the statute to be stated in a petition for partition, should be set forth, (p) No. 155. BUZ for partition ietween two heirs, subject to widow's dower. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Tour orator, A. B., of, etc., respectfully represents unto your honor, that B. B., late of, etc., deceased, the father of your ora- tor, was in his lifetime, and at the time of his death, the owner, and seized in fee simple of the following described real- estate, to wit: (Here describe tJie premises.) Your orator further represents, that the said B. B. being so seized of the said real estate, on or about, etc., departed this life, intestate, leaving C. B., his widow, and your orator and D. B., his sons, and only heirs at law. And your orator further represents, that by the death of the said B. B., your orator and the said D. B. became seized in fee as tenants in common, by descent from the said B. B., of the said described premises; that is to say, your orator and the said (») Rev. Stat.' (1874) 750; Rev. Stat. (1877) 708; Louvalle vs. Menard, 1 Gilm. 69. (p) Ripple vs. Gilbourne, 8 How. U. S. 458. 430 PAETITION SUITS. Form of Bill. D. B. each became seized of the one equal undivided half part of the said premises, each of the said portions being subject, however, to the right of dower of the said C. B., widow of the said B. B. And your orator further represents, that the dower of the said widow, in the said described premises, has never been admeasured, or in any way set apart to her from the estate of the said B. B. Tour orator further represents, that no person or persons, other than your orator and the said D. B. and C. B., have any interest in, or title to, the said described premises, or any part thereof, in possession, remainder, reversion or otherwise. Tour orator further represents, that he is desirous that a par- tition or division should be made of the said several parcels of land, between your orator and the said D. B., according to their- respective rights, estates and interests therein ; or in case the same cannot be divided and partitioned without material injury to the parties interested therein, then that the same may be sold, and the proceeds thereof divided among such parties, accord- • ing to their respective rights and interests. Tour orator further represents, that he has frequently applied to the said D. B., and requested him to come to an equitable and just division and partition of the said described premises, between your orator and the said D. B., or in case they cannot agree upon an amical division, that they join in making sale of the said premises, and divide the proceeds thereof ; but so it is, may it please your honor, the said D. B. wholly refuses to join in any just and equitable division or partition of the said described premises, or to join in the sale thereof, as afore- said. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said D. B. and C. B., who are made parties defendant to this bill, may be required to make full and direct answer to the same, but not under oath, the answer under oath being hereby waived ; and that division and partition of the above described premises may be made between the parties, according to the course of practice in this court, and the statute in such case made and provided, and according to the respective rights of the parties interested therein, subject to the widow's dower, as aforesaid ; and in case it shall appear that a partition thereof cannot be made without manifest injury to the rights of the parties therein, then that the said premises may be decreed to be sold under the direction of this court, and the proceeds of the sale, after paying the costs and charges of this suitj be PARTITION SUITS. 431 Form of Bill. divided among the said parties, according to their respective rights and interests therein. And that the rights and interests of the said parties in the premises, or in the proceeds thereof, •may be ascertained and declared by the court ; and that your orator may have such other and further relief in the premises, as equity may require, and to your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sheriff of the said county of com- manding him that he summon the defendants D. B. and C. D. to appear before the said court, on the first day of the next term thereof, to be held at the court house in , in the county of aforesaid, then and there to answer this bill, etc. ( Add affidavit.) No. 156. BUI for partition. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your orator and oratrix, A. B. and B. B., his wife, of, etc., respectfully represents unto your honor, that E. F., the father of your oratrix, B. B., and late of, etc., now deceased, was, at the time of making his last will and testament, and also, at the time of his death, seized in fee simple, and possessed of all the following described real estate, to wit : (Here describe the prem- ises;) and being so seized and possessed as aforesaid, the said E. F. departed this life on or about the, etc. And your orator and oratrix further represent, that the said E. F., in his lifetime, to wit, on or about the, etc., made and published his last will and testament in due form of law, and duly authenticated to pass real estate ; and in and by the said last will and testament, the said testator did, among other things, give, devise and bequeath unto his son, A. F., and to his heirs forever, all of the above described premises, subject to a life estate therein of his mother, B. F., the widow of the said E. F. ; as will more fully appear by the said will, when pro- duced, and by a copy thereof, hereto attached, marked " Exhibit A," and made a part of this bill. Tour orator and oratrix further represent, that the said last will and testament of the said E. F., was afterwards, on, etc., duly proved and probated by the court of, etc., as will more fully appear by the record thereof, in the office of the clerk of said court, reference thereto being had. Your orator and oratrix farther represent, that the said A. 432 PARTITION SUITS. Form of Bill. F., on, etc., departed this life intestate and without lawful issue ; leaving your oratrix, the said B. B., wife of your orator, A. B., S. M., widow of 0. M., deceased, J. B., C. D. and M. W., his only heirs at law him surviving. And your orator and oratrix further represent, that the said B. F., widow of the said E. F., the testator aforesaid, departed this life on or about, etc. ; and that by means of the deaths of the said A. F. and B. F., as aforesaid, the said described prem- ises became and was vested in your oratrix, 8. M., widow of C. M., deceased, J. B., 0. D. and M. W., the only heirs at law of the said A. F., as tenants in common in fee. Tour orator and oratrix further represent, that on, etc., and subsequent to the death of the said A. F., the said J. B. and S. B., his wife, by their certain deed, executed and acknowledged in due form of law, to pass the title to real estate, did remise, release, and quit-claim unto your orator all their right, title and interest of, in and to the aforesaid described premises ; as by the said deed, when produced, will more fully appear. And your orator and oratrix further represent unto your honor, that the several parties to this suit are seized in fee sim- ple, and entitled to the said described premises, as tenants in common ; and that their rights and interests therein are as fol- lows, to wit : your orator, A. B., as the grantee of the said J. B., is seized of and entitled to an undivided part thereof; that your oratrix, B. B., in her own right^is also seized of, and entitled to an undivided part thereof, etc. (Here set forth the interests of all the parties}) Tour orator and oratrix further represent, that the aforesaid premises is the only real estate owned in common by the par- ties to this suit ; and that no other person or persons, than the parties above named 1 ; have any interest in, or title to, the said described premises, or any part thereof, in possession, remainder, reversion or otherwise. And your orator and oratrix further represent, that they are desirous that a division or partition of the said described prem- ises should be made among the several parties seized of, or en- titled thereto, according to their respective rights and interests therein ; and in case the same cannot be divided among the owners thereof, without manifest injury or prejudice to the parties interested therein, that then the same may be sold, and the proceeds thereof divided among such parties, according to their respective rights and interests ; and for that purpose have made frequent applications to the other owners thereof. And your orator and oratrix well hoped that they would have come to an equitable division and partition, as requested by your PARTITION SUITS. 433 Bill for Partition and Dower. orator and oratrix, as in justice and equity they ought to have done. But now so it is, may it please your lienor, that the said S. M., C. D. and M. W., defendants in this suit, refuse, under various pretenses, all of which are untrue, to comply with the reasonable request of your orator and oratrix, to join in a par- tition and division of the said premises. All of which actings, doings and pretenses are contrary to equity. Forasmuch, therefore, as your orator and oratrix are without remedy in the»premises, except in a court of equity ; and to the end that the said S. M., C. D. and M. W., who are made parties defendants to this bill, may be required to make full and direct answer to the same, but not under oath, the answer under oath being hereby waived ; tliat the parts or shares justly belonging to your orator and oratrix, and all the other owners hereinbe- fore named, of, in and to the aforesaid premises, may be settled and ascertained by and under the direction of this court; and that a fair division and partition thereof may be made between your orator and oratrix and all other persons who shall appear to be owners of or interested therein, according to the respective rights and interests of each therein ; and that proper commissioners may be appointed to make division and partition of the said premises among the parties interested therein; or, in case a partition thereof, or any part thereof, by metes and bounds, or a division cannot be made without manifest prejudice to the owners, then that the same, or such parts thereof as cannot be so divided and partitioned, may be sold by and under the direction of this court, and that the proceeds of the sale, after paying the costs and charges of this suit, may be divided among the owners thereof according to their several rights and interests therein ; and that, to that end, the rights and interests of the parties interested in the said premises, or in the proceeds of the sale thereof, may be ascer- tained and declared by the order or decree of this court ; and that your orator and oratrix may have such other and further reliei in the premises as equity may require and to your honor shall seem meet. May it please your honor, etc. {Prayer for process, etc., as in No. 155, ante, page 4&9.) HFo. 157. Bill for partition and dower. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your oratrix, A. B., and your orators, B. B. and C. B., of, etc., respectfully represent unto your honor, that on, etc., one E. B., 434 PAETITION SUITS. Bill for Partition and Dower. late of, etc., departed tins life intestate, Reaving your oratrix. A. B., his widow, and your orators, B. B. and C. B., his sons, and F. B., G. B. and H. B., his daughters, and only children and heirs at law ; that at the time of his death the 6aid E. B. was possessed and seized in fee simple of the following described real estate, to wit: {Here describe the premises /) and that the said E. B. derived title to the said premises in the manner fol- lowing, to wit : [Here set forth the chain of title.) And your oratrix and orators, further represen't, that no per- son or persons, other than your oratrix and orators^ and the .said F. B., G. B. and H. B., have any interest in, or title to, the said described premises, or to any part thereof, in posses- sion, remainder, reversion or otherwise. Your oratrix and orators further represent, that the said G. B. and H. B. are minors under the age of years ; and that no legal guardian has been appointed for' them, by reason whereof the said G. B.and H. B. are severally incompetent to join in a voluntary partition and division of said premises, and to set apart the dower of your oratrix therein, or to consent to a sale thereof; and, as your oratrix and orators are advised, no valid division and partition, or assignment of dower, or a sale of said premises can be effected without the aid and interpo- sition of some court of competent jurisdiction. Forasmuch, therefore, as your oratrix and orators are without remedy in the premises, except in a court of equity ; and to the end that the said F. B., G. B. and H. B., who are made parties defendant to this bill, may be required to make full and direct answer to the same, but not under oath, the answer under oath being hereby waived: that a guardian ad litem may be appointed by the cour,t for the said infant defendants ; that the dower of your oratrix in the said premises may be assigned and set apart to her ; and a division and partition of the residue thereof may be made by and under the direction of this court, between your orators B. B. and C. B., and the defendants F. B., G. B. and H. B., according to their respective rights and interests therein, to be adjudged by the court ; and that in case an assignment of dower, and division and partition in the said premises cannot be made without manifest prejudice to the parties interested, that the same may be sold, under the direc- tions of the court, and the proceeds thereof distributed between the parties, according to their respective interests ; and that your oratrix^ and orators may have such other and further relief in the premises, as equity may require and to your honor shall seem meet. f May it please your honor, etc. {Prayer for process as in No. 156, zntejjtage 4%9, and add affidavit.) PARTITION SUITS. 435 Petition for Partition — Affidavit to. No. 158. Petition for partition. To the Honorable , Judge of the Court of the County of , in the State of Illinois. The petitioners, C. D., E. F. and G. H., of, etc., "respectfully represent unto your honor, that your petitioners, together with K. L. and M. N., of, etc., are the owners in fee simple as tenants in common, in equal parts, of the following described real estate, to wit, etc. : (Here describe the real estate.) That they derived title to the said premises in the following manner, that is to say, (Here set forth tlie chain of conveyances through which the parties claim) title, or other facts shovying their right or title to the land,) which said title, or evidence thereof, your petitioners are ready to produce and show on the hearing here- of, as this honorable court may require. And your petitioners further represent, that no person or persons, other than your petitioners and the said JL. L. and M. N. have any interest in, or title to, the said land or any part thereof, in possession, remainder, reversion, or otherwise. And your petitioners further represent, that the said K. L. and M. N. are minors under the age of twenty-one years. Your petitioners, therefore, pray that a guardian ad litem may be appointed by the court for said minors, that process of sum- mons may issue against the said K. L. and M. N., returnable at the next term qf this court. Your petitioners further pray, that upon a final hearing of this cause, your honor will order and decree a division and partition of said premises, according to the respective rights of the parties interested therein ; and in case the court shall find that said premises are so circumstanced that a division thereof cannot be made without manifest prejudice to the par- ties interested in the same, that a sale thereof be ordered, in accordance with the statute in such case made and provided. O. P., Solicitor for Petitioners. C. D. E. F. G. H. State of Illinois, County of - I C. D., of the county and state aforesaid, being duly sworn on oath, says, that he is one of the petitioners to the foregoing petition, and that the matters and things in said petition con- tained are true in substance and in fact. C. D. Subscribed and sworn to before me, this day of , A. D. 18 — . 436 PARTITION SUITS. Piocess of Appearance — Summons — By Copy, etc. i SECTION IV. PKOCESS OF APPEAHANCE VS. The statute of Illinois, revised in 1874, in respect to process and service on defendants in partition suits, is as follows : Sow summoned. — "The defendants to any such petition shall be summoned in the same manner as defendants in suits in chancery." (g) Unknown parties. — "Unknown owners, or parties in inter- est, of the premises, and the unknown heirs of any such persons, may be notified by advertisement, as in cases in chancery." (r) Absent defendants. — "When it shall appear by affidavit, filed, as in cases in chancery, that any defendant resides, or has gone out of, this state, or, upon due inquiry, cannot be found, or is concealed within this state, so that process cannot be served on him, and the affiant shair state the place of reti- dence of such defendant, if known, or that upon diligent inquiry, his place of residence cannot be ascertained, he may be notified in the same manner as in such case in chancery." (s) Service ly copy of petition. — " Non-resident defendants may be served by a copy of the petition in the same manner that 3uch defendants in chancery may be served by a copy of the bill of complaint, and the service thereof may be proved as in such case provided." (t) q) Ante, pp. 74-7T; see Nichols vs. Mitchell, 70 HI. 258. (r) Ante, p. 81. (s) Ante, pp. 77-79. (t) Ante, pp. 79-81. PARTITION SUITS. 437 Interpleader — Decree for Partition — Hearing. SECTION V. INTERPLEADER. The 14th section of the revision of the statute of Illinois provides that "Daring the pendency of any snch suit, any person claiming to be interested in the premises to be assigned or aparted may appear and answer the petition, and assert his or her rights by way of interpleader ; and the court shall de- cide upon the rights of persons appearing as aforesaid, as though they had been made parties in the first instance." If the proceeding is under the statute any party in interest may interplead at any time previous to the final disposition of the case, and all orders and proceedings may be altered so as to meet any new facts presented by new parties, (u) A creditor of one of the parties having a lien on the premises to the extent of the share of his debtor, has a right to file his bill in the nature of an interpleader in the case, (v) Liens on shares of part owner. — The 24th section of the statute provides that "A person having a mortgage, attach- ment, or other lien on the share of a part owner, shall be concluded by the judgment in partition, so far as it respects the partition and the assignment of the shares; but his lien shall remain in full force upon the part assigned to or left for such part owner." SECTION VL DECREE FOE PARTITION. The statute of Illinois, revised in 1874, provides as follows, in relation to the hearing, and decrees of the court : Searing. — (§ 15.) " The court shall ascertain and declare the rights, titles and interests of the parties to such suit, the peti- (u) Kester vs. Stark, 19 111. 328. (r) Schneider vs. Seibert, 50 111. 284; see Hards vs. BurUm, 79 111. 504. 438 PARTITION SUITS. Decree — Appointment of Commissioners — Dower. tioners as well as the defendants, and shall give judgment according to the rights of the parties." (w) Appointment of commissioners. — (§ 16.) " The court, when it shall order a partition of any premises to be made, under the provisions of this act, shall appoint three commissioners, not connected with any of the parties, either^by consanguinity or affinity, and entirely disinterested, to make partition of the premises. (§ 20.) " The commissioners shall at all times be subject to the direction of the court ; and any one or more of them may, before the final confirmation of the report, be removed, and others appointed in their stead. (§ 21.) " If the lands lie in different counties, the court may i appoint separate sets of commissioners for each county, or one set for all of them, as may seem most for the benefit of the ' parties interested." A co-tenant is entitled to a decree in his favor for rent in arrear, if his right thereto is clearly established, (as) And where an incumbrance has been paid off by one tenant in com- mon, he has a lien therefor, and his rights will be protected by the court, (y) If a portion of the premises has been improved by a co- tenant, that portion should be set off to him if practicable, without taking into consideration the value of the improvements, {s) Where land descends to the wife, the decree should direct it to be set off to the husband and wife in right of the wife, or to her alone, not to them jointly and in fee. (a) Allotment of dower or homestead.—^ 22.) " If. dower has not been allotted to the person entitled thereto, or the homestead set off, in ease any party to the suit is entitled to an estate of homestead in the premises, or any part thereof, such dower may (w) See SicJceribotham vs. Blackledge, 54 111. 316. (a) Hawkins vs. Taber, 47 111. 459. (y) Titisworth vs. Stout, 49 111. 78. (s) Dean vs. O'Meara, 47 111. 120 ; see Kurtz vs. Stbner, 55 Ul. 514. (o) Cost vs. Rose. 17 111. 276. PARTITION SUITS. 439 Costs Apportioned — Form of Decree for Partition. be allotted, and such homestead set off by the commissioners ; and if the court shall so direct, the premises so allotted or set off may be partitioned among the claimants subject thereto." Costs apportioned. — According to the statute (§ 40), " In all proceedings for the partition of real estate, the court may apportion the costs", including the reasonable solicitor's fees, among the parties to the proceeding, so that each party shall pay his equitable portion thereof." Ko. 159. Decree for partition. (Caption, and title of cause as in JYo. 79, ante, page 198.) This cause having come on to be heard upon the bill of com- plaint herein, the answer of the defendants thereto, and the replication of the complainant to such answer, and the report of the master in chancery, to whom this cause was heretofore referred to take the proofs therein, which said report is hereby approved and confirmed by the court ; and the court haying heard the arguments of counsel for the respective parties, and being fnlly advised in the premises, doth find, that, etc. ; {Here insert the finding of the court, as set out in the bill,) and that the allegations in the bill contained are true ; and that parti- tion and division ought to be made as therein prayed. It is therefore ordered, adjudged and decreed, by the court, that the complainant A. B. and the defendant D. B., are each entitled to one-half of the said premises, to wit ; (Here describe the land,) subject to the dower of the said C. B., widow of the said B. B., deceased, in fee simple ; and that a division and partition of said -premises be made ; and that E. F., G. H. and L. M., of, etc., neither of whom appear to be connected with any of the parties by consanguinity or affinity, and who are entirely disinterested, be and they are hereby appointed com- missioners to make partition of said premises; that each of Baid commissioners take and subscribe an oath or affirmation, as required by law, to fairly and impartially make partition of the said premises, according to the rights and interests of the parties, as herein declared by this court, if the same can be done consistently with the interests of the parties ; or if the same cannot be so divided, without manifest prejudice to the parties in interest, that they will fairly and impartially appraise the value of each piece or parcel of the premises sought to be divided, and a true report make to the court ; that the said com- 440 PARTITION SUITS. Form of Decree for Partition. missioners shall go upon the premises, and if the same are sus- ceptible of division, they shall make partition thereof, allotting the several shares to the respective parties, quality and quantity relatively considered, according their respective rights and interests as hereby adjudged, designating the respective shares by metes and bounds, or other proper description, and that they employ a surveyor with necessary assistants to aid therein ; and if the premises are not susceptible of division, without manifest prejudice to the parties in interest, they shall value each piece or parcel separately; and that they report their actings and doings in the premises, under their hands and seals, to the court, as soon as practicable. JVo. 160. Decree for partition. {Caption, and title of cause as in No. 79, ante, page 198.) This day came the petitioners, by L. M., their solicitor, and the defendants P. Q. and K. S., by T. Y., their guardian ad litem; and it appearing to the court that the defendants were each duly served with process of this court more than ten days prior to the commencement of the present term ; and the court having appointed T. V., Esq., guardian ad litem for the infant defendants ; and the said guardian ad litem having filed an answer to said petition, and the petitioners their replication thereto; and the court having ordered that this cause be referred to the master in chancery of this court to take proof of the matters alleged in said petition, and to report the same to the court ; and the said master having made report, which is hereby approved and confirmed. And this cause coming on to be heard upon the petition, answer of the defendants, by T. V., Esq., their guardian ad litem, and the replication thereto, together with the testimony taken, and reported to the court by the said master ; and the court having heard the arguments of counsel, and being fully advised in the premises, and, on consideration thereof, doth find, etc. {Here state the facts set out in the petition, which may be as follows :) That the petitioners and the defendants are the owners in fee simple as tenants in common, in equal parts, of the following described real estate, to wit : {Sere describe the land.) That they derived title to the same from, etc. {Sere set forth the source of title.) That no person or persons, other than said parties, have any interest in, or title to, the said lands, or any part thereof, in possession, remainder, reversion or otherwise. The court doth therefore order, adjudge and decree that the said petitioners C. D., E. F. and G-. H., and the defendants PARTITION SUITS. 141 Form of Decree for Partition and Dower. P. Q. and K. S., are each entitled to one-fifth part of said premises in fee simple; and the court doth further order, adjudge and decree that a division and partition of said premises be made; that B. A., D. C. and F. E., neither of whom appear to be connected with any of the parties, either by consanguinity or affinity, and who are entirely disinter- ested, be, and they are hereby, appointed commissioners to make partition of said premises; each of said commissioners shall take and subscribe an oath, or affirmation, fairly and impartially to make partition of said lands, in accordance with the judgment of the court, as to the rights and interests of said parties, if the same can be done without manifest preju- dice to the parties in interest. The said commissioners are ordered to go upon the premises and make partition of said lands, tenements and hereditaments, assigning to each party his or her share, quality and quantity relatively considered, by metes and bounds, or other proper description, and they may employ a surveyor, with necessary assistance to aid therein; and if said commissioners shall find that said premises are so circumstanced that a division thereof cannot be made without manifest prejudice to the parties in interest, they will value each piece or parcel separately, and make report under their hands and seals to the court, during the present or next .suc- ceeding term thereof. jPFo. 161. Decree for partition and dower. {Caption, and title of cause as in No. 79, ante, page 198.) This day came the complainants, by their solicitor, and the said defendants, G. B. and H. B., by W. X., their guardian ad litem, no counsel appearing for the defendant F. B. ; and it appearing to the court that each of the defendants was duly served with process more than ten days previous to the com- mencement of the present term ; and it having further appeared to the court that the defendants G. B. and H. B. are infants, under the age of twenty-one years; and the court having appointed W. X., Esq., guardian ad litem for said infant defend- ants ; and the said guardian ad litem having filed his answer herein, and the complainants their replication thereto ; and the defendant F. B. still failing to plead, answer or demur to the said bill, it is ordered, adjudged and decreed by the court, that the same be taken pro confesso against the said F. B.; and the court having ordered that this cause be referred to the master in chancery of this court to take proof of the matters alleged in said bill, and report the same to the court ; and the said master t42 PAKTITION SUITS. Form of Decree for Partition and Dower. having made his report, which is hereby approved and con- firmed ; and this cause coming on to be heard upon the bill, the answer of the defendants Gr. B. and H. B. by W. X., their guard- ian ad litem, and the replication thereto, together with the ex- hibits and testimony taken and reported to the court by the said master ; and upon the bill taken as confessed against the defend- ant F. B.; and the cause having been argued by counsel ; and the court being fully advised in the premises, on consideration there- of, doth find, etc. (Here state the facts as they appear, which may he as. follows :) That on, etc., one E. B., late of, etc., departed this life, intestate, leaving the complainant A. B. his widow, and the complainants B. B. and C. B., his sons, and the defend- ants F. B., G. B. and H. B., his daughters, and only heirs at law ; that at the time of his death the said E. B. was seized in fee simple of the following described real estate, to wit : (Here describe the land.) That the said E. B. derived title to said premises from the United States, by patent bearing date on, etc. (Here set out the title fully.) That no person or persons other than the complainants and defendants, have any interest in, or title to, the said lands or to any part thereof, in possession, remainder^ reversion or otherwise. The court doth therefore order, adjudge and decree that the said. complainant A. B., widow of the said E. B., be endowed of one full equal third part of the said lands and premises ; and that the said complainants B. B. and C. B., and the defendants F. B., Gr. B. and H. B., are each entitled to one- fifth part of said premises, in fee simple, subject to said dower ; and the court doth further order, adjudge and decree that the said A. B. recover her dower in said premises, and that division and partition be made of the. remainder thereof after the assignment of said dower, between the said B. B., C. B., F. B., Gr. B. and H. B., in accordance with their respective interests therein ; that B. A., D. C. and F. E., neither of whom appear to be connected with any of said parties, either by con- sanguinity or affinity, and are entirely disinterested, be, and they are hereby appointed commissioners to assign dower and make partition of said premises; each of said commissioners shall take and subscribe an oath or affirmation as required by law, and to go npon said premises, and jwst set off, allot and assign to said A. B. her dower in said premises, by metes and bounds, or other proper description, according to quality and quantity of said premises, giving her the homestead, or dwell- ing-house of the homestead, if she desires it, and may assign the whole of said dower in a body, or out of two or more' of Buch tracts, in such manner as they may deem best for all per- PARTITION SUITS. 443 Proceedings by Commissioners — Oath Required. sons interested ; and, secondly, after assigning the widow's dower, as aforesaid, said commissioners are ordered to make division and partition of the remainder of said premises be- tween the said B. B., C. B., F. B., G. B. and H. B., respect- ively, assigning to each one-fifth part thereof by metes and bounds, or other proper description, quality and quantity relatively considered ; and that they employ a surveyor, with necessary assistance, to aid them ; and it said commissioners shall find that said premises are so circumstanced that dower cannot be assigned, and a division and partition made without manifest prejudice to the parties in interest, they will fairly and impartially appAise the value ef each piece or parcel of the said premises, and a true report make, under their hands and seals, to the court during the present or at next term thereof. SECTION vn. PROCEEDINGS BY COMMISSIONERS. Required to take an oath. — The 19th section of the statute reqiures that " Such commissioners shall each take and sub- scribe an oath or affirmation fairly and impartially to make partition of the premises, according to the rights and interests of the parties, as declared by the judgment of the court, if the same can be done consistently with the interests of the parties ; or, if the same cannot be so divided without manifest preju- dice to the parties in interest, that they will fairly and impar- tially appraise the value of each piece or parcel of the premises sought to be divided, and a true report made to the court." The commissioners should take the oath or affirmation- as required by the statute, and proceed in conformity thereto. (5) Where the oath and report of the commissioners bore date previous to the date of .the decree appointing them, the pro- ceeding was held, in a direct proceeding, to be erroneous, although the report was subsequently^ approved by the court, (c) (6) TObs vs. AUen, 27 IU. 119 ; see Durham vb. MuUcey, 59 ni 91. (e) Sullivan vs. StUUvan, 42 HI. 315. 444 PAETITION SUITS. Form of Oath of Commissioners — Duty of Commissioners. No. 162. Oath of commissioners. In the Court. A. B. et al. ) Term, 18—. vs. \- for Partition. C. D. et al. ) State of Illinois, ) County of j SS- I do solemnly swear (or affirm) that I will fairly and im- partially make partition of the premises mentioned in the decree rendered by the court in the above entitled cause, on, etc., according to the rigtits and interests of the parties, as de- clared therein by the judgment of the court, if the same can be done consistently with the interests of the parties ; or if the same cannot be so divided without manifest prejudice to the parties in interest, that I will fairly and impartially appraise the value of each piece or parcel of the premises sought to be divided, and a true report make to the court, so help me God. B. A. D. C. F. E. Subscribed and sworn, etc. Duty of commissioners. — The 18th section of the statute provides that " the commissioners shall go upon the premises, and if the same are susceptible of division they shall make partition thereof, allotting the several shares to the respective parties, quality and quantity relatively considered, according to their respective rights and interests as adjudged by the court, designating the respective shares by metes and bounds, or other proper descriptions, and they may employ a surveyor with neces- sary assistants to aid therein ; and if the premises are not sus- ceptible of division without manifest prejudice to the parties in interest, they shall value each piece or parcel separately." The commissioners may set off part "of the premises to some of the parties to the proceeding, and recommend the sale of the remainder for the benefit of the others, as the interests of the parties may require. (oT) Where a portion of the premises has been improved by one (d) Kester vs. Stark, 19 111. 328, 330; see Greenup vs.SeweU.18 111.51,53. PARTITION SUITS. 445 Report of Commissioners — Form of Eeport. of the parties, such portion should be set off to him, without taking into consideration the value of such improvements, (e) The 23d section of the statute provides that, " Several parties interested in the premises may, if they so elect, have their shares set off together or in severalty." Report of commissioners. — The statute provides that (§ 19.) " The commissioners shall make report, in writing, signed by at least two of them, showing what they have done, and if they shaH have made a division, describing the premises divided," and the shares of each party by metes and bounds, or other proper description ; or if they find that the lands cannot be divided, they shall so report, and shall report their valua- tion of each piece or tract separately." The report of the commissioners must conform to the re- quirements of the statute. (f) And where the land is to be divided it must be under seal ; but where the land is reported as not susceptible of division, a seal is not required, {g) No. 163. Report of commissioners making partition, etc. In the Court. A. B.etal.) Term, 18—. vs." > In Chancery for Partition. C. D. et al.) * To the Honorable , Jndge of the Court of the County * of , in the State of Illinois, In Chancery sitting : In pursuance of a decree rendered in the above entitled cause, on, etc., we, the commissioners thereifl named, respect- fully report to the court, that, after each of ns having taken and subscribed an oath {or affirmation) fairly and impartially to make partition of the premises mentioned in the said decree, according to the rights and interests of the parties as declared therein by the judgment of the court, if the same could be done consistently with the interests of the parties ; or if the same («) Dean vs. O'Meara, 47 111. 120; Kurtz vs. Winter, 55 111. 514; Bow- man vs. Bowles, 19 111. 21; Louvalle vs. Menard, 1 Gilm. 39; Roberts vs. Bechwith. 79" 111. 246. (/) Tibbs vs. Allen, 27 111. 119; Durham vs. Mulkey, 59 111. 9-1. (?) Sullivan vs. Sullivan, 42 111. 315. 446 PAETITION SUITS. Form of Report of Commissioners, etc. could not be so divided 'without manifest prejudice to the par- ties in interest, that we would fairly and impartially appraise the value of each piece or parcel of the premises sought to be divided, and a true report make to the court, — which said oath is hereto attached for greater certainty ; we went upon the premises described in said decree, to wit : [Here describe the •premises})* and made partition thereof, allotting the several shares to the respective parties, quality and quantity relatively considered, according to their respective rights and interests as declared by the judgment of the court, in said decree, that is to say, we set off and allotted to A. B. in severalty, for his interest and share of said premises, being the part thereof, accord- ing to the relative value thereof, the following, to wit : (Here describe the part so allotted by metes and bounds, or other proper description /) and to the said C. D., etc. (Here set out the same as in the last, and so proceed with each share.) And we would further report, that we employed R. S., a surveyor, with necessary assistants to aid therein, in making such partition ; and that the items of the various expenses attending the execution of the said decree, including our fees, are contained in a schedule hereto annexed, marked " A," and forming a part of this our report. And that for the better understanding and more clear elucidation of the shape and situ- ation of the said premises, and of the manner in which such partition has been made by us, we have caused to be made a map thereof, showing what parts of the said premises have been allotted to the respective parties ; which- map forms a part of this our report, and is hereto attached, marked " Exhibit B." All of which is respectfully submitted for the approval of the court. In witness whereof, we, the said commissioners, have set our hands and seals to this our report, this day of , in the year 18 — . B. A. [l.s.] - D. C. [l.s.] F. E. [l.s.] (Attach the oath, schedule A, and exhibit JB.) No. 16 Jf.. Report of commissioners that the premises are not susceptible of division. (Proceed as in last form, No. 163, to the asterisk*, and then) And upon examination thereof, we determined, and so report to .the court, that the said premises, and each piece or parcel there- of, are not susceptible of division without manifest prejudice to the parties in interest. We further report that we have fairly PARTITION SUITS. 447 Decree Confirming Report of Commissioners. and impartially appraised the value of each piece or parcel of the premises sought to be divided, and fix the va*ue of each piece or parcel separately, as follows, that is to say, we fix the value of, etc., (Sere describe the piece or parcel?) at dol- lars ; and of, etc., (Here describe the second piece or parcel,) at dollars ; and of, etc. (and so on each tract.) And we would further report that the items of the various expenses attending the execution of the said decree, including our fees, are contained in a schedule hereto annexed marked "A," and forming a part of this our report. All of which is respectfully submitted. In witness whereof, we, the commissioners, have set our hands and seals to this our report, this day of — — , in the year 18 — . B. A. " D. 0. F. E. (Attach oath and schedule A.) L.S. L.S. L.S. JTo. 165. Decree confirming report of commissioners. (Caption, and title of cause as in No. 79, ante, page 198.) This day came B. A., D. C. and F. E., commissioners, appointed by the court to make partition of the lands in a former decree mentioned between the parties thereto,' and made report of their proceedings, and that they had made partition as in and by said decree they were required ; and the court having examined the 6ame, doth find that the said com- missioners have, in every respect, proceeded according to law, and the judgment of the court in said decree declared, and that said partition was fairly and impartially made, and no. objections or exceptions being made by any of the parties herein thereto ; and the court being fully advised in the prem- ises, doth order, adjudge and decree tha{ the proceedings, par- tition and report of said commissioners be, and the same are hereby approved and confirmed, and that the said parties hold in severalty the shares set off and assigned to each, respect- ively, by the said commissioners, and that the title to the shares set off and assigned by said commissioners to each of said parties, respectively, be, and the same is hereby vested in the said parties, respectively> according to said assignment. And it is further ordered that the report of said commission be spread at large upon the records of this court. And it is further ordered that the costs and expenses of this proceeding be paid within days by the parties, in the following proportions, to wit: That, etc., (Here set out tlie 448 PARTITION SUITS. 'Exceptions to Report of Commissioners — Decree of Sale. proportions each party is required to pay f) and that the same be paid within days from this date, and in default thereof, that execution issue therefor. SECTION VIII. EXCEPTIONS TO EEPOET OF COMMISSIONERS. On filing of the report of the commissioners in partition, either party may file exceptions thereto, and the court will hear evidence in support and against such report, and approve or disapprove of the same, as the facts may justify. And inequality of value, as well as inequality in quantity, is held to be a good cause for setting aside a report of commissioners ; and, upon the hearing of such exceptions, the facts may be shown by affidavit. (A) SECTION IX. DECKEE OF SALE. The statute of 1874 provides that (§ 26.) " When the whole ,or any of the premises sought to be partitioned cannot be divided without manifest prejudice to the owners thereof, and the commissioners appointed to divide the same shall so report, the court shall order the premises so not being susceptible of division to be sold at public vendue, upon such terms and notice of sale as the court shall direct. , (§ 27.) " But no piece or parcel of the premises shall be sold, if it will not bring at least two-thirds 'as much as it shall have been valued by the commissioners, unless the other piece will, at the same time, sell for enough to make the total amount of the sales equal to two-thirds the total amount of the valuation of all the premises to be sold : Provided, that if it shall appear to the court that any of the premises will not sell for two-thirds the amount of the valuation thereof, the court may appoint other commissioners to revalue such premises, and their valuation (h) Biggs vs. Dickinson, 2 Scam. 438. PARTITION SUITS. 449 Decree of Sale — Dower Interest — Unknown Owners. shall be taken instead of the valuation of the commissioners first appointed. (§ 28.) " The court may direct the sale to be made for cash or on such credit as may be deemed most for the interest of all the parties." An order of sale cannot be made until after a decree of par- tition shall first be entered of record, and the preliminary steps provided by statute taken under such decree, and the commis- sioners shall report that partition cannot be made without manifest prejudice to the parties in interest, (a) Dower interest, etc. — The statute provides that (§ 32.) " In case of sale the court may, with the assent of the person entitled to an estate, in dower or by the courtesy, or for life or for years, or of homestead, to the whole or any part of the premises, who is a party to the suit, sell such estate with the rest; but such assent shall be in writing, and signed by such person, and filed in the court wherein the said proceedings for partition are pending. (§ 33.) " If such persons are incapable of giving assent, the court may determine, taking into view the interests of all the parties, whether such, estate ought to be excepted from the sale, or sold. (§ 34.) " When any such interest is sold, the value thereof may be ascertained and paid over in gross or the proper pro- portion of the funds invested, and the income paid over to the party entitled thereto, during the continuance of the estate." Interest of unknown owners. — The statute further provides that (§ 35.) " If the person entitled to any such estate is unknown, the court may determine whether the estate shall be sold or not, as in ease of persons under disability, and in the event of sale, make such order for the protection of the rights of such person, in the same manner, as far as may be, as if the person were known and had appeared. (i) McLain vs. Van Winkle, 46 111. 406. 450 PAKTITION SUITS. Form of Decree of Sale. (§ 36.) " Where a sale of premises is made, and no person appears to claim such portion of the money as may belong to any non-resident or person whose name is unknown, the court shall require such money to be deposited in the state treasury, sub- ject to the further order of the court, and all moneys so required to be deposited shall be received by the 6tate treasurer and paid out upon the order of the court. (§ 37.) " When money is deposited in the state treasury, under the provisions of this act, the person or persons entitled to the same may, at any time, apply to the court making the order of sale, and obtain an order for the same upon making satisfactory proof to the court of his right thereto." No. 166. Decree for sale of premises. {Caption, and UUe of cause as in No. 79, ante, page 198.) This day came again the petitioners {or complainants), by L. M-j their solicitor, and the infant defendants E. F. and G-. H., by E. S., their guardian ad litem, no counsel appearing for the deferfdant C. D., and the 6aid B. A., D. C. and F. E., commissioners, heretofore appointed herein by the court to make partition of the premises hereinafter mentioned, made report that the same are so circumstanced that a division thereof cannot be made without manifest prejudice to the par- ties interested; and the court having examined said report doth find that said commissioners have^ in all respects, pro- ceeded in accordance with the law and the terms of the decree under which they were appointed ; and the court being fully advised in the premises, doth order, adjudge and decree that the proceedings of said commissioners and their report be, and the same are hereby approved and confirmed ; and, thereupon, this cause coming on to be heard upon the report of said commissioners, and the court having heard the arguments of counsel, and being fully advised in the premises, and on consideration thereof, doth order, adjudge and decree that the said premises, to wit : {Here describe the premises) be sold at public auction, at, etc., to the highest and best bidder, provided the said bid upon each piece or parcel shall be equal to at least two-thirds of the valuation put upon the same, as shown by the report of the commissioners here- tofore appointed by the court to make partition thereof, which said sale shall be made on the following terms : {Here set out the terms of sale.) That the master in chancery of PARTITION SUITS. 451 Exceptions to Report of Sale — Confirmation of Sale. this court be, and he is hereby directed to make said sale, and to carry into effect this decree. The said master will first rive public notice of such sale, and the time, place and terms thereof, by publication in some public newspaper printed and published in said county, for at least four weeks prior to such sale, and by posting written or printed notices thereof in at least five of the most public places in the neighborhood where said premises are situate ; and, upon the confirmation of the report of said master, he shall execute and deliver to the purchaser or purchasers of the premises so sold a proper deed or deeds of conveyance thereof. The said master will bring the money, etc., realized from suoh sale into court, to be distributed to the parties entitled thereto, under the direction of the court ; the said master will report his proceedings herein to the court at the next term thereof, to which time this cause is hereby con- tinued. SECTION X. EXCEPTIONS TO EEPOET OF SALE. Upon the master's making report of sale, exceptions may be taken, and if it appears that the requirements of the statute or decree of sale have not been complied with, or any other suffi- cient ground appears, the court will set the sale aside. And some proof, independent of the assertion of the master or com- missioner making the sale, must be made that public notice was given of a sale of land in partition, otherwise the sale will not be confirmed. (J ) SECTION XL CONFIRMATION OF SALE. (§ 30.) " Upon the confirmation of the report of the master, special commissioner or other officer making the same, or some person specially appointed thereto, shall execute and deliver to the purchaser or purchasers of the premises sold proper convey- ances thereof, taking in case of sale on credit, security as required by the decree ; which conveyance shall operate as an effectual (j) Tibbs vs. Allen, 29 111. 535; see Dunning vs. Dunning, 37 111. 306; Gometock vs. Purple, 49 111. 158. 452 PARTITION SUITS. Form of Decree Confirming Sale. bar against all parties and privies to said proceeding, and all persons claiming under them." No. 167. Decree confirming sale m partition. {Caption, and title of cause as in No. 79, ante, page 198.) This day came the master in chancery, appointed by a former decree of the court, herein, to make sale and to carry into effect said former decree, and made report of his proceedings ; and the court having examined the same, doth find that the said master has in every respect proceeded in due form of law, and in accordance with the terms of said decree, and that said sale was fairly made ; and the court being fully advised in the premises, doth order, adjudge and decree that the proceedings, sale and report of said master be, and the same are hereby approved and confirmed; and it is further -ordered that the said master execute and deliver to the said O. M., the purchaser at said sale, proper conveyances of the premises so sold ; and that out of the proceeds of said sale, he pay first the costs and charges of this proceeding, and that the said master dis- tribute the residue of said moneys between the said parties in the following proportions, to wit : To the Baid A. B. dollars ; to C. V. dollars ; to, etc. etc. For additional Illinois cases in relation to partition, see Fight vs. Ball, 80 111. 84 ; Turner vs. Bennett, 70 111. 263 ; LeMoyne vs. Quimby, 70 111. 399 ; III. L. &L. Co. vs. Bonner, 75 111. 315; Wadhams, vs. Gay, 73 111. 415; .Kingsbury vs. Buckner, 70 111. 514 ; Nichols vs. Podfield, 77 111. 253 ; La- lidie vs. Hewitt, 85 111. 341. CHAPTEE XXXI. PROCEEDINGS FOK DOWEB. Section 1. Nature of Dower. 2. In what Property Dower Attaches. 8. Dower, how Barbed. , 4. Elements and Incidents of Dower. 5. Suns «)R Dower. 6. Frame op Petition. 7. Process of Appearance in. 8. TN'I'Ktf FT.'KAmCR , 9. Hearing and Decree. 10. Commissioners to Assign Dower. 11. Allowance in Lieu of Dower. 12. Damages for Refusal to Assign Dower. 13. Mode of Ascertaining Value of Dower. 14. Miscellaneous Provisions of the Statute. SECTION L NATURE OF DOWER. Dower is an estate for life which the law gives the widow in the lands and tenements, or hereditaments, of which the husband was seized during coverture. Strictly, it applies only to what the law gives her, independent of any act of the hus- band, and which, in fact, it is not in his power to bar. A marriage portion, therefore, whether given with the wife or secured to her use, and whether so given or secured by the father or other relative, or by the husband himself, is not dower ; and yet the term by which such marriage portion was designated in the Roman law was used by Bracton and other English writers, for the right of the widow in the lands and tenements of her deceased husband given to her by the com- mon law, as well as the endowment in contemplation of marriage, which last was also called donatio ante nuptias. The English word dower expressed the former, and also the donation before marriage, which was in two modes, viz., ad 454 PBOCEEDINGS FOE DOWER. Nature of Dower. ostium ecclesim, and ex assensu patris. Both of these endow- ments were made at the porch of the church, after affiance and before marriage; in the one the husband endowed the wife of lands of which he was himself seized ; in the other, with the consent of his father, he endowed her of lands belonging to the father ; and it was usual to specify the particular lands intended. Endowments at the church door was the common mode of . providing for the wife in the time of Bracton Q.260), and no other mode could be substituted, as by will or other convey- ance, the object of which was to prevent fraud. The feudal restriction, against alienation of lands was, how- ever, extended to dower, and the husband was not allowed to endow the wife ad ostmm ecclesiw of more than one-third part of his lands. This gave rise to the common law rule which has ever since prevailed. In the absence of such donation, or in case of the omission to specify the particular lands, it was prescribed that the wife should be entitled to one-third of the lands of the husband for life if she survived him, which was called dos rationabUis. It was at first limited to the lands which the husband had at the time of the donation, unless he especially charged -his future acquisitions ; and in case he had no lands, or not sufficient, he was permitted to endow his wife of personal property, which was held to be a bar against any claim to dower of lands there- after acquired. But in Magna Charta it was provided that the wife should have for dower the third part of all lands which the husband had held during his lifetime, unless she had been en- dowed with less ad ostium ecclesim. In the reign of flenry IV, (A. D. 1403,) it was denied that the wife could be endowed of her husband's goods and chattels ; and Littleton, who wrote in the reign of Edward IV, (1466,) asserted that she could be endowed ad ostium ecclesiw of more than a third part of the lands, and that she had the election, after the death of her husband, to accept it or to take her dower at common law. In consequence of this uncertainty, that mode of endowment fell into disuse, but was never abolished by law until the. reign of William IV, (1833.) PROCEEDINGS FOR DOWER 455 Nature of Dower. Dower at common law is different from the dotation of other countries, in being limited wholly to lands, and to snch only as the husband holds in fee. By the civil law the donatio ante nuptias or, as Justinian called it, propter nuptia», was all the provision made for the wife. It might consist of either lands or personal property ; but though it went into the possession of the husband, it could not, if it consisted of lands, be alien- ated by him even with the wife's consent, for which the reason given'is the fragility of the female sex. Upon the death of the husband, or dissolution of the marriage otherwise, the wife only took what had been given her on the marriage, or of which a donation had been made during the marriage. Of the other property of the husband she could take nothing either as widow or heir. In France, the two modes of providing for the wife are desig- nated by the discriminative terms dot and douaire ; the former of which is defined to be that which the wife brings in mar- riage ; the latter is the right which the wife has, by custom or matrimonial contract, to a certain portion of the estate of the husband upon his death. The origin of douaire was that in some provinces of France, called France coutumiere, women were not endowed on marriage, and hence grew up the custom that the husband, at his death, should leave something for the support of the wife. What was so left was called either dot or douaire, the wife being said to be douee or dotee. But as it was intended for her support merely, it was provided that after her death it should go to the children of the husband if he left any. Philip Augustus, (A. D. 1484,) fixed the dower of the wife at one-half of the goods which the husband had at the marriage. Henry II, (A. D. 1164,) of England, established in his French provinces a rule that dower should be one-third, and this difference continued to exist on the opposite sides of the Loire, nntil the customary law was swept away by the legisla- tion which succeeded the revolution of 1789. By the present law of France married people may, by stipu- lation made before marriage, become subject to the law of the community, or to the law of dowery. If the former, it brings 456 PROCEEDINGS FOE DOWER. Nature of Dower. into common stock all the movables of which the parties are possessed at the time of marriage, and of the immovable which shall be acquired during marriage. Dower (la dot) is what the wife brings to the husband in marriage, and it may be either by donation from another or by a settlement of the wife npon herself, and it may extend to all the present or future property of the wife, but cannot be consti- tuted or augmented during marriage. The parties may stipu- late for a community of future acquisitions only. The husband has the management of dotal property, but is accountable as a usufructuary, and in case it be put in peril the wife may obtain a separation of goods. The English law of dower has undergone very great changes. By statute 3 and 4, William IV, ch. 105, the widow is not entitled to dower of lands which the husband has disposed of in his lifetime, or by will. All charges by will and all debts and incumbrances to which the estate of the husband is sub- ject, take priority of dower ; and dower is made subject to any restrictions which the husband may impose by will. But, on the other hand, the wife is entitled to equitable dower of any beneficial interest of the husband which shall amount to an estate of inheritance in possession, except joint tenancy ; and no gift of personal property by the husband can invalidate the right to dower, unless so expressly declared by will. This modification of the law of dower has probably grown out of the general custom prevailing in England among the land proprietors of making marriage settlements. In cases where this is omitted, the wife still has some provisions under the statute of distribution of 29 Charles II, (1679,) which gives her one-third of the personal estate of the husband when he dies intestate, not for life merely, but absolutely. In the United States, the general rule prevails of allowing to the widow an estate for life in one-third of all the lands of which the husband was seized in fee. The rule, however, varies in different states in two particulars : In New York, Illinois, and most other states, dower is a charge upon all the lands of which the husband was seized at any time during coverture, except such as she has released by joining in the PROCEEDINGS FOR DOWER 457 In what Property Dower Attaches. conveyance thereof by the husband. In some of the states, as Vermont, Connecticut, Tennessee, North Carolina, and Georgia, it is limited to the lands of which the husband was seized at the time of his death ; but the husband is not allowed to bar dower by will, nor by a voluntary conveyance, in which any benefit is reserved to himself. Again, in Pennsylvania, Ten- nessee, and Missouri, dower does not attach to lands sold under judicial process, nor to lands sold under a mortgage 'executed by the husband alone. The rule is genera^ perhaps universal, that the wife takes one-third of the personal estate upon the death of her husband in accordance with the English statute of distribution. In almost all the states the mode of assigning dower is regulated by very minute statutory provisions ; and to these, in each state, reference must be made for the particular mode of procedure, and the powers of the court.* section n m WHAT PROPERTY DOWEB ATTACHES. The 1st section of the revised law of 1874, in relation to dower, provides " That the estate of courtesy is hereby abol- ished, and the surviving husband or wife shall be endowed of the third part of all the lands whereof the deceased husband or wife was seized of an estate of inheritance at any time during the marriage, unless the same shall have been relin- quished in legal form. Equitable estates shall be subject to such dower, and real estate of every description contracted for by the deceased husband or wife, in his or her lifetime, the title to which may be completed after his or her decease." A widow can be endowed of estates of inheritance only, {a) To entitle the widow to dower on account of the equitable estate of her husband, he must at some time during coverture have been seized of an equitable estate of inheritance in the property ; that is, an equitable title to the property must have (a) Davenport va. Farrer, 1 Scam. 314 ; StrOUng vb. Bou, 16 DJ. 122. 458 PROCEEDINGS FOR DOWER. In what Property Dower Attaches. presently existed in him, which title, had he died at the mo- ment, would have descended to his heirs at law as real estate, instead of going to his personal representatives as chattel in- terest or chose in action. (J) She is not dowable of improve- ments put upon the land after the alienation by her husband, but is entitled to the benefit of its increased value, arising from other cause than the labor and expenditure of the alienee, (c) A preemption right is not an estate of which a widow can be endowed, (d) Nor will dower be assigned in an estate em- braced in a contract of purchase which was assigned by the husband in his lifetime, (e) If the husband never had a title to land, but only a contract, which might ripen into a title, which he assigned, any act of the husband in completing the. title, subsequent to the assignment, will not aid the wife in obtaining dower. (_/) But if the contract is transferred after its terms are complied with, and the husband is entitled to a conveyance, the lands are subject to dower, {g) A sale of land under a mechanic's lien, which attached before the execution of a deed of trust on the same property, will de- feat the title under the deed of trust, and will revive the right of dower in the widow, although the wife had joined in the deed of trust. (A) A widow is dowable in wild or unimproved lands, (*) and in inheritable equitable estates, (J) and in money paid for lands condemned for public uses, (k) Where a person holds land in trust for another, the wife of (b) Niehol vs. Ogden, 29 111. 377; see Nichol vs. Miller, 37 111. 388; Atkin vs. Merrell, 39 111. 62; Stowe vs. Steele, 45 111. 328; Gale vs. Kinzie, 80 111. 132. (c) Summers vs. Babb, 13 111. 483; Gove vs. Cather, 23 111. 634. (d) Davenport vs. Farrer, 1 Scam. 314. (e) Owen vs. Bobbins, 19 111. 545; Morse vs. Thorsell, 78 111. 600. (/) Porter vb. Bmmg, 24 111. 617 ; Owen vb. Bobbins, 19 HI. 545 ; WooBeg vs. Magie, 26 111. 526. {g) Stowe vs. Steele, 45 111. 328. (ft) Gove vs. Gather, 23 111. 634. (i) Schnebly vs. Schnebly, 26 111. 116. (j) Atkins vs. Merrell, 39 111. 62 ; Stowe vs. Steele, 45 111. 328; Steele vs. Magie, 48 111. 396 ; see Strawn vs. Strawn, 46 111. 412. (k) Bonners vs. Peterson, 44 111. 253. PEOCEEDINGS FOR DOWER. 459 Aliens Entitled to — Mortgaged Land, etc. the trustee is not entitled to dower. But, until the establish- ment of the trust, the widow is prima facie entitled to dower. {I) Aliens entitled to dower. — The 2d section of the revised dower act provides that " The surviving husband or wife of an alien shall be entitled to dower the same as if such al.cu had been a native born citizen of the United States." Dower in lands mortgaged hefore marriage. — The statute provides : (§ 3.) " Where a person seized of an estate of inheritance in land, shall have executed a mortgage of such estate before marriage, the surviving husband or wife of such person shall, nevertheless, be entitled to dower out of the lands mortgaged, as against every person, except the mortgagee and those claim- ing under him." Dower in lands mortgaged to secure purchase money. The statute is as follows : (§ 4.) " Where a husband or wife shall purchase lands dur- ing coverture, and shall mortgage such lands to secure the payment of the purchase money thereof, the surviving wife or husband shall not be entitled to dower in such lands, against the mortgagee or those claiming under him, although she or he shall not have united in such mortgage, but shall be enti- tled to dower as against all other persons." Dower in surplus after sale on mortgage. — The statute pro- vides as follows : I (§ 5.) " When, in either of the cases specified in the two preceding sections (3 and 4), the mortgagee, or those claim- ing under him, shall, after the death of such husband or wife, cause the land mortgaged to be sold, either tinder a power contained in the mortgage, or by virtue of the judg- ment or decree of a court, and any surplus shall remain, after the payment of the moneys due ou such mortgage, and the L — ■ (0 Bailey vs. West, 41 111. 290. 460 PROCEEDINGS FOR DOWER. Dower, how Barred — Jointure, etc. costs and charges of sale, such survivor shall be entitled to the interest or income of one-third part of such surplus, for life, as dower." Money borrowed of a third person and invested in the pur- chase of land, is not purchase money within the meaning of the 4th section of the dower act, which we have above quoted, (m) Dower does not attach to estate created by mortgage. — The 6th section of the dower act provides that (§ 6.) " No person shall be endowed of lands conveyed to his or her wife or husband by way of mortgage, unless such wife or husband have acquired an absolute estate during the marriage." SECTION in. DOWEE, HOW BABBED. At common law, dower is barred in various ways : 1st. By adultery of the wife, unless it has been condoned. 2d. By a joint settlement on the wife. 3d. By the wife joining her husband in a conveyance of the estate. 4th: By the husband and wife levying a fine, or suffering a common recovery. 5th. By a divorce a vinculo matrimonii. 6th. By an acceptance by the wife of a collateral satisfaction, consisting of land, money or other chattel interest, given instead of it by the husband's will, and accepted after the husband's death. The right of dower is liable to be defeated by every subsist- ing claim or encurnbiance existing prior to the husband's title, and which would have defeated his seizin. By jointure, etc. — The sections of the revised dower act, as to the effect of jointure, are these : (§ 7.) " "When an estate in land shall be conveyed to an intended husband and wife, or to either of them, or to any person in trust for such intended husband and wife, or either (m) Jeneson vs. Owrden, 29 111. 199. PROCEEDINGS FOR DOWER. 461 Dower, how Barred — By Will, etc of them, for the purpose of creating a jointure in favor of either of them with his or her assent, to be taken in lieu of dower, such jointure shall bar any right or claim for dower by the party jointured in any lands of the other. (§ 8.) "The assent required in the preceding section shall be evinced by the party, if of full age, becoming a party to the conveyance by which such jointure is settled, or, if a minor, by joining with the father or guardian in such convey- ance. (§ 9.) " If before mjrriage, but without such assent, or if after marriage, land shall be given or assured for the jointure of a wife or husband in lieu of dower, such wife or husband may elect whether to take such jointure, or to be endowed as herein provided, but shall not be entitled to both." By wiU, etc. — The following are the sections of the statute in relation to the effect of a will upon dower : (§ 10.) " Any devise of land, or any estate therein, or any other provision made b^ the will of a deceased husband or wife for a surviving wife or husband shall, unless otherwise expressed in the will, bar the dower of such survivor in the lands of the deceased, unless such survivor shall elect to and does renounce the benefit of such devise or other provision, in which case he or she shall be entitled to dower in the lands and to one-third of the pergonal estate after the payment of all 'debts. (§ 11.) " Any one entitled to an election under either,of the two preceding actions shall be deemed to have elected to take such jointure, devise or other provision, unless, within one year after letters testamentary or of administration are issued, he or she shall deliver or transmit to the county court of the proper county a written renunciation of such jointure, devise or other provision." A widow, under the statute, is only barred of her dowei when the husband has made a devise of land to her, or some interest therein, with her express or implied assent. The 462 PROCEEDINGS FOR DOWER. Dower, how Barred — By Will, etc. mere bequest of personal property without a provision that it shall bar dower, would not produce that result, (n) Where a will directs that land shall be converted into money and given to distributees, it is personalty, and does not give an interest in the land ; and if the widow was one of the distributees, her right of dower is not thereby barred, (o) A widow, by claiming her share of the purchase money arising out of contracts for the sale of real estate made by the testator in his lifetime, no deeds having been executed, thereby bars her right of dower in the lands sold. ( p) It is a general rule that when the inchoate right to dower is once vested, that right cannot be divested, except by her own voluntary act, performed in the mode prescribed by law. (o) "Where a deed from a husband and wife becomes inoperative as to the husband's estate, because made in fraud of the rights of creditors, or from any previous lien or incumbrance, or where the purchase money is recovered back for a defect of title in the husband, or by reason of any wrongful act on the part of the husband, the wife's dower in the land is not barred by the deed, (r) Where husband or wife die without issue, etc. — The statute provides that (§ 12.) " If a husband or wife die testate, leaving no child or descendants of a child, the surviving husband or wife may, if he or she elect, have, in lieu of dower in the estate of which the deceased husband or wife died seized, whether the right to such dower has accrued by renunciation as hereinbefore pro- vided, or otherwise, and of any share of the personal estate which he or she may be entitled to take with such dower, abso- lutely, and in his or her own right, one-half of all the real and personal estate which shall remain after the payment of all just (») Stribling vs. Ross, 16 111. 122 ; Jennings vs. Smith, 29 HI. 116. (o) Jennings vs. Smith, 29 111. 116. (p) Skinner vs. Newberry, 51 111. 203. (?) NicoU vs. Ogden, 29 111. 386 ; Nichol vs. Miller, 37 HI. 388 ; see BoyUt vs. McMurphy, 55 111. 236. (r) Morton vs. Noble, 57 El. 176. PROCEEDINGS FOE DOWER. 463 Dower, how Barred — Eenunciation of Will — Divorce, etc. debts and claims against the estate of the deceased husband or wife. The election herein provided for may be made whether dower has been assigned or not, and at any time before or within two months after the notification to the survivor of tbe payment of debts and claims, and not afterwards." Hemmciation of right under will, etc. — The statute provides that a husband or wife may renounce his or her rights under a will or jointure in the following manner : (§ 13.) " The renunciation in the preceding sections (7, 8, 9, 10, 11 and 12) required, may be in the following form, to wit: 'I, A. B., surviving wife (or husband) of C. D., late of the county of , and state of , deceased, do hereby renounce and quit all claim to the benefit of any jointure given or assured to me in lieu of dower (or any devise or other provision made to me by the last will and testament of the said C. D., or other- wise, as the case may be,) and I do elect to take in lieu thereof my dower and legal share in the estate of the said 0. D., (or otherwise, as the case may require.)' " Which renunciation shall be filed in the office of the derk of the county court, and entered by said clerk at large upon the records of the court, and shall operate as a complete bar to any claim which such survivor may afterwards set up to any jointure, devise, testamentary provision or dower thus renounced." («) Effect of divorce, etc. — The statute in relation to the effect of a divorce upon dower is as follows : (§ 14.) " If any husband or wife is divorced for the fault of misconduct of the other, except where the marriage was void from the beginning, he or she shall not thereby lose dower nor the benefit of any such jointure ; but if such divorce shall be for his or her own fault of misconduct, such dower or jointure, and any estate granted by the laws of this state, in the real or personal estate of the other, shall be forfeited." (*) See Brovm vs. Pitney, 39 111. 468 ; Simmons vs. Johnson, 47 Dl. 350. 464 PROCEEDINGS FOE DOWER. Dower, how Barred — Abandonment — Judgment — Exchange, etc. If upon a divorce a decree is rendered granting alimony to the wife in lieu of dower, the dower will be barred, (t) By abandonment and adultery. — The statute further pro- vides that (§ 15.) " If a husband or wife voluntarily leave the other and commit adultery, he or she shall be forever barred of dower and of the benefit of any such jointure, unless they are afterwards reconciled and dwell together." Not by judgment, etc. — The statute provides that (§ 16.) " No judgment or decree confessed or recorded against a husband or wife, and no laches, default, covin, for- feiture or crime of either, no deed or conveyance of either, without the assent of the other, evinced by the acknowledg- ment thereof, as required by law, shall prejudice the right of the other to dower or jointure, or preclude the other from the recovery thereof, if otherwise entitled thereto." The dower of the wife is not defeated by a sale on judgment and execution against the husband, or otherwise than by her own assent or misconduct, (u) Insanity furnishes no reason for a court of equity to interfere to deprive a person of dower to which he or she is entitled. It can only be done by the voluntary act of such person. («) And it would be erroneous to debar a woman of her claims to dower in premises included in a mortgage which she did not sign, (w) or acknowledge in the mode pointed out by the statute. (») By exchange of lands, etc. — It is further provided that (§ 17.) " If a husband or wife seized of an estate of inherit- ance in lands, exchange it for other lands, the surviving hus- (f) See Armstrong vs. Armstrong, 35 111. 109 ; Marvin vs. Collins, 48 111. 156. (u) Sisk vs. Smith, Admr. 1 Gilm. 503 ; Francisco vs. Hendricks, 28 111. 64 (n) Ex parte McElwain, 29 111. 442. \v>) Gold vs. Ryan, 14 111. 53. (se) Russell vs. Rumsey, 35 111. 362; Steele vs. Oellatly, 41 111. 39; see Johnson vs. Montgomery, 51 111. 185. PROCEEDINGS FOR DOWER. 465 Elements and Incidents of Dower. band or wife shall not have dower of bolh, but shall make election as hereinbefore provided, to be endowed of the lands given, or of those taken in exchange ; and if such election be not evinced, by the commencement of proceedings for the recovery and assignment of dower of the lands given in ex- change, within one year after the death of snch husband or wife, the survivor shall be deemed to have elected to take dower of the lands received in exchange." Persons selling by order of court for payment of debts do not thereby relinquish dower, etc. — The statute provides that (§ 46.) "No person who sells and conveys lands by order of court for the payment of debts shall be deemed to have relinquished, by reason of such conveyance, any right of dower which he or she may have in such lands, unless his or her relinquishment is specified in the deed or conveyance." SECTION IV. ELEMENTS AND INCIDENTS OF DOW Kit. To the consummation of dower, three things are indispensa- bly requisite : lBt. Marriage. This must be a marriage not absolutely void, and existing at the death of the husband ; a wife de facto, whose marriage is voidable by decree, as well as a wife dejure, is entitled to it ; and the wife shall be endowed, though the marriage be within the age of consent, and the husband dies within that age. (y) 2d. Seizin. The husband must have been seized, some time during the coverture, of the estate of which the wife is dowable. (s) 3d. Death of the husband, (a) Transfer of dower, etc. — Dower is a right resting in action only, until it is assigned it is inchoate,, and is not the subject (y) Co. Litt. 33,a; 7 Co. 42; Doct.& Stud. 22; see Sink vs. Smith, Admr. IGUm. 503. (e) Co. Litt. 31, a ; 4 Sent, Com. 38 ; 2 Black. Com. 132. (o) Cruise, Dig. lit. 6, ch. 2, § 22 ; 1 Venn. E. 218 ; 1 Salk. 291 ; Sisk vs. Smith, Admr. 1 Gilm. 503. 30 466 PROCEEDINGS FOR DOWER. Suits for Dower — Duty of Heirs to Assign. matter of sale or transfer. It cannot be sold under execution. The" only use the widow can make of her dower interest, is to release it to the owner in fee, until it shall have been set apart to her. She may release it to the owner of the fee, but she cannot transfer it to a stranger. (5) A woman during coverture cannot release her dower to lands of a prior husband, (c) A widow's right of dower in land not assigned is not liable to sale on execution, (d) A former owner of the fee in land in which a dower right still exists, who has conveyed the same, with warranty, may purchase the right of dower for the benefit of his grantee, however remote, and thus prevent a breach of his covenant, (e) SECTION V. 8urrs FOB DOW KB. Duty of heirs to assign dower, etc. — The statute provides that (§ 18.) " It shall be the duty of the heir at law, or other person having the next estate of inheritance or freehold in any lands or estate of which any person is entitled to dower, to lay off and assign such dower as soon as practicable after the death of the husband or wife of such person.. (§ 19.) " If such heir or other person shall not within one month next after such death, satisfactorily assign and set over to the surviving husband or wife, dower in and to all lands, tenements and hereditaments whereof by law he or she is or may be dowable, such survivor' may sue for and recover the same by petition in chancery, as hereinafter prescribed, against such heir or other person, or any tenant in possession, or any other person claiming right or possession of said estate." (6) Blain vb. Harrison, 11 111. 384 ; Johnson vs. Montgomery, 51 HI. 185 • La Framboise vs. Grow, 56 111. 197 ; Bummers vs. Bdbb, 13 111. 483 ; Hoots vs. Graham, 23 111. 81 : Bobbins vs. Kimie, 45 111. 354 ; Chicago Bock Co. vs. Kinzie, 49 111. 289 ; Wheeler vs. Kinzie, Id. 297. ' (c) Osborne vs. Horine, 19 111. 124 ; Bailey vb. West, 41 111. 290. (cZ) Newman vs. WiOetts, 48 111. 534. (e) La Framboise vs. Grow, 56' 111. 197. PROCEEDINGS FOR DOWER. 467 Who may File Petition, etc. — Frame of Petition. Who may fie petition. — (§ 43.) " Heirs, or, if under age, their guardians, or any other persons interested in lands, tene- ments or hereditaments, may also petition the court to have dower assigned to the person entitled thereto, which shall be proceeded in in the same manner as is prescribed in other Where petition may be fled. — (§ 20.) " The petition may be filed in any court of record of competent jurisdiction in the county where the estate, or some part thereof, is situated." Where infants are petitioners or defendants — Guardian ad litem. — By the statute, (§ 21.) "Infants may petition by guardian or next friend, aud other persons under guardianship by their conservators. When an infant or person under guardianship is a defendant, he may appear by guardian or conservator, or the court may appoint a guardian ad litem for such person, and compel the person so appointed to act." A gnardian or minor cannot be in default for not assigning dower; and an infant is not bound by such assignment, (f) SECTION VI. FRAME OF PETITIOIT. The statute provides that (§ 22.) " The petition shall set forth the nature of the claim, and particularly specify the premises in which dower is claimed, and shall set forth the interests of all parties interested therein so far as the same are known to the petitioner,, and shall pray for the assignment of such dower." Parties to. — (§ 23.) " Every person having any interest in the premises, whether in possession or otherwise, and who is not a petitioner, shall be made a defendant to such petition." (/) Bonner vs. Peterson, 44 m. 253 ; Stravm vs. Btraicn. 50 111. 256. 468 PROCEEDINGS FOE DOWER. Parties to, etc. — Form of Petition, otc. Unknown defendants. — The statute further provides that (§ 24.) " When there are any persons interested in the prem- . ises whose names are unknown, or the share or quantity of interest of any of the parties is unknown to the petitioner, or where such share or interest shall be uncertain or contingent, or the ownership of the inheritance shall depend upon an executory devise, or the remainder shall be contingent, so that such parties cannot be named, the same shall be so stated in the petition. (§ 25.) " All persons interested in the premises in which dower is claimed, whose names are unknown, may be made parties to such petition by the name and description of un- known owners of the premises,- or as the unknown heirs of any person who may have been interested in the same." Answer of defendants. — (§ 31.) "The petitioner may, in his petition, require the defendants, or any of them, to answer his petition on oath, in which case the answer shall have the same effect as an answer in chancery under oath." Wo. 168. Petition for dower hy widow. To the Honorable , Judge of the Court of the County of , in the State of Illinois. The petition of A. B., of, etc., respectfully represents, that your petitioner, on or about the day of , 18 — , inter- married with B. B., late of, etc., who afterwards, on or about the day of =, 18 — , departed this life intestate, leaving your* petitioner, his widow, and C. B. and D. B., his children and only heirs at law. That the said B. B. during the time of said marriage with your petitioner, was seized in fee of the following described real estate, situate, lying, and being in the county of , in the State of Illinois, to wit : {Here insert description of the premises.) That your petitioner, by virtue of her said marriage, upon the death of the said B. B., became and was entitled to dower in the lands above described, which said dower has never been assigned or set off to your petitioner, and she has never received any compensation or equivalent therefor, or for any part thereof. Your petitioner therefore prays the aid of this honorable court in the premises, and that the writ of summons may issue out of and under the seal of this court, commanding the said C B. PROCEEDINGS FOE DOWER. 469 Forms of Petition, etc. — Affidavit. and D. B., who are made parties defendant hereto, to person- ally appear before this court, on the first day of the next term thereof, to be held at the court house in , in the county of , on the Monday of , 18 — , and then and there full, true, direct and perfect answer make to all and sin- gular the matters herein stated, and to stand and abide by the order of this honorable court in the premises ; and that upon the hearing hereof, a decree may be made by this honorable court that your petitioner recover dower in the premises above described, and that such dower may be assigned and set off to her in the manner and according to the provisions of the stat- ute in such case made and provided ; and that your petitioner may have such other and farther relief in the premises as equity may require, and to your honor may seem meet. . , Sol. for Petitioner. A. B. {Add affidavit, as follows :) JSTo. 169. Affidavit to petition for dower. State of Illinois, County of - ss. On this day of , 18 — , personally appeared the above-named A. B. and made oath and says that she has heard read the foregoing petition, and knows the contents thereof, and that the same are true of her own knowledge in substance and in fact, except as to such matters as are therein stated to be on information and belief, and as to such matters she believes them to be true. A. B. Subscribed, etc. No. 170. Petition by a husband. To the Honorable , Judge of the Court of the County of , in the State of Illinois. The petition of A. B., of, etc., respectfully represents, that your petitioner, on, etc., intermarried with 0. B., late of, etc., who afterwards, on, etc., departed this life intestate, leaving your petitioner, her husband, and D. B., E. B. and F. B., her children and only heirs at law. That the said C. B. died seized in fee of the following described real estate, situate, lying, and being in the county of , in the State of Illinois, to wit : (Here describe the premises?) That your petitioner, by virtue of his said marriage, upon the death of the said C. B., became and was entitled to dower in the lands above described, which said dower has never been assigned or set off to your petitioner, 470 PROCEEDINGS FOE DOWEE. Forms of Petitions. and he has never received any compensation or equivalent therefor, or for any part thereof. Your petitioner therefore prays the aid of this honorable court in the premises, and that the writ of summons may issue out of and under the seal of this court, commanding the said D. B., E. B. and F. B., who are made parties defendant hereto, to personally appear before this court, on the first day of the next term thereof, to be held at the court house in , in the county of , on the Monday of , A. D. 18—, and then and there full, true, direct and perfect answer make to all and singular the matters herein stated and to stand, to abide by the order of this honorable court in the premises ; and that upon the hearing hereof, a decree may be made by this honorable court that your petitioner recover dower in the prem- ises above described, and that such dower may be assigned and set off to him in the manner and according to the provisions of the statute in such case made and provided; and that your petitioner may have such other and further relief in the prem ises as equity may require, and to your honor may seem meet. , Sol. for Petitioner. A. B. {Add affidavit, No. 169.) No. 171. Petition by heirs to have dower assigned. To the Honorable , v Judge of the Court of the County of — — , in the State of Illinois. The petition of A. B. and B. B. respectfully represents that on, etc., one C B., late of, etc., departed this fife intestate, leaving E..B., the mother of your petitioners, his widow, and your petitioners, his children and only heirs at law. That the said 0. B. died seized in fee of the following described real estate, situate, lying and being in the county of , in the State of Illinois, to wit : {Here describe the premises?) That the said E. B., by virtue of her said marriage, upon the death of the said C. B., became and was entitled to dower in the lands above described, which said dower has never been assigned or set off to her, and she has never received any com- pensation or equivalent therefor, or for any part thereof. Tour petitioner therefore prays the aid of this honorable court in the premises, and that the writ of summons may issue out of and under the seal of this court, commanding the said E. B., who is made party defendant hereto, to personally appear before this court, on the first day of the next term thereof, to be held at the court house in in the county of , on the Monday of , 18—^-, and then and PROCEEDINGS FOR DOWER. 471 Process of Appearance, etc there full, true, direct and perfect answer make to all and singular the matters herein stated, and to stand and abide by the order of tins honorable court in the premises ; and that upon the hearing hereof, a decree may be made by this honorable court that the dower of the said E. B., in the premises above described, may be assigned and set ofl' to her in the manner and according to the provisions of the statute in such case made and provided ; and that your petitioners may have such other and further relief in the premises as equity may require and to your honor may seem meet. A. B. , Sol. for Petitioners. B. B. {A,dd affidavit, No.J.69, ante, page 469.) SECTION VII. FEOCESS OF APPEAEAJJCE. The statute in respect to process and service on defendants in suits for dower is as follows : Sow summoned. — (§ 26.) " The defendants to any such petition shall be summoned in the same manner as defendants to suits in chancery." (g) Unknown. parties. — (§ 27.) "Unknown owners, or parties in interest, of the premises, and the unknown heirs- of any such persons, may be notified by advertisement as in cases in chancery." (h) Non-resident defendants. — (§ 28.) " When it shall appear by affidavit, filed as in cases in chancery, that any defendant resides or has gone out of the state, or, npon due inquiry, cannot be found, or is concealed within this state, so that pro- cess cannot be served on him, and the affiant shall state the place of residence of such defendant, if known, or that upon diligent inquiry his place of residence cannot be ascertained, he may be notified in the same manner as in such case in chancery." (i) (g) Ante, pp. 14-17. (A) Ante, p. 81. (») Ante, pp. 77-79. 472 PROCEEDINGS FOR DOWER. Interpleader — Hearing and Decree. Service Jy copy of petition. — (§ 29.) "Non-residents may be served by a copy of the petition in the same manner that such defendants in chancery may be served by a copy of the bill of complaint, and the service thereof may be proved as in such case provided." (J) Setting aside decree where defendants are not personally served. — The statute provides that if (§ 30.) " Any defendant who is not summoned, served with a copy of the petition, or shall not receive the notice required to be sent him by mail, or the heirs, devisees, executors, admin- istrators, and other legal representatives of such person may appear and answer the petition within the same time and upon the same conditions, and with like effect as in other cases in chancery." (k) section vm INTERPLEADER. The statute provides that (§ 32.) " During the pendency of any such suit or proceed- ing any person claiming to be interested in the premises may appear and answer the petition, and assert his or her rights, by way of interpleader; and the court shall decide upon the rights of persons appearing as aforesaid, as though they had been made parties in the first instance." SECTION K. HEARING AND DECEEE. The statute provides that (§ 33.) " Petitions for the recovery and assignment of dower shall be heard and determined by the court upon the petition, answer, replication, exhibits, and other testimony, (J) Ante, pp. 79-81. (*) Ante, pp. 91-94. PROCEEDINGS FOR DOWER 473 Form of Decree for Dower, etc. without the necessity of formal pleading. The court may direct an issue or issues to be tried by a jury, as in other cases in equity." (?re) ( No. 172. Decree for dower, and appointing commissioners to {Caption, and titie of cause as in Wo. 79, ante, page 198.) This day came the petitioner, by L. M., her solicitor, and the defendants G. H. and J. JL, by A. B., their guardian ad litem / and it appearing to the court that the defendants were eseh duly served with process more than ten days prior to the commencement of the present term of this court ; and it ap- pearing to the court that the defendants G. H. and J. K. were minors under the age of twenty-one years, and the court hav- ing appointed A. B., Esq., guardian ad litem for the defend- ants ; and the defendants, by their guardian ad litem, having filed an answer to said petition, and the petitioner her replica- tion thereto ; and the court having ordered said cause to be referred to the master in chancery of this court to take, and report to the court, the proof of the matters alleged in said petition; and the said master having made report thereof, which is hereby approved and confirmed by the court ; and this cause coming on to be heard, upon the petition, exhibits, an- swer of the defendants, by their guardian ad litem, and the replication thereto, together with the testimony taken and re- ported to the court by said master, and the court having heard the arguments of counsel; and being fully advised in the premises, and on consideration thereof, doth find, that the petitioner is the widow of one E. F., who died intestate, on etc., and, as such widow, is entitled to dower of one-third part of all the lands whereof her said husband was seized during coverture; that during said period of time her husband was seized in fee simple of the following described real estate, to- wit : (Here describe the land.) That at the time of the death of said E. F. he left heirs at law, to-wit : G. H. and J. K., who are the children of the said E. F., and the only persons inter- ested in said premises except the petitioner. The court doth, therefore, order, adjudge, and decree that the petitioner be endowed of one full equal third part of said premises, and the court doth hereby appoint B. A., D. C, and F. G., who are not connected with any of the parties, either (m) Ante, pp. 18&-191. 474 PROCEEDINGS FOR DOWER. Commissioners to Assign Dower — Oath of Commissioners. by consanguinity or affinity, and are entirely disinterested, commissioners to assign dower to the petitioner. The said commissioners will first take the oath required by law, and then, go upon said premises, and set off and allot to the petitioner her dower by metes and bounds, according to the quality and quantity of said premises, giving her the homestead, or dwell- ing-house of the husband if she desires it, and may set off and allot the dower in the whole of such lands in a body, or out of two or more of such tracts of land, in such manner as they may deem best for all persons interested, and make return in writing under their hands and seals to the court, of their doings in the premises by virtue hereof, and if the said commissioners find that said premises are not susceptible of division without great injury thereto, they will so report to the court. SECTION X. COMMISSIONERS TO ASSIGN DOWEE. Appointment of.— It is directed by statute that (§ 34.) " When the court ■ adjudges that the one entitled thereto recover dower, it shall be so entered of record, together with a description of the land out of which he or she is to be so endowed, and the court shall thereupon appoint three com- missioners, not connected with any of the parties either by consanguinity or affinity, and entirely disinterested, each of whom shall take the following oath : No. 173. \ Oath of commissioners to assign dower. {Title, etc., as in No. 162, ante, page 444-) "I do solemnly swear that I will fairly and impartially allot and set off to A. B., surviving wife (or "husband) of C. D., her (or his) dower out of the lands and tenements described in the order of the court for that purpose, if the same can be done consistently with the interests of the estate according to the best of my ability : so help me God." G. H. Subscribed, etc. K. L. ' M.K Duty of commissioners. — (§ 35.) " The commissioners shall go upon the premises, and if the same are susceptible of division, without manifest prejudice to the parties in interest, PROCEEDINGS FOE DOWER. 475 Duty of Commissioners, etc. — Report of. Bhall set off and allot to the person entitled thereto his or her dower, by metes and bounds, according to quality and quantity, of all the premises described in the order of the court." Dower may be assigned m a body. — (§ 36.) " The dower need not be assigned in each tract separately, but may be allotted in a body out of one or more of the tracts of lands, when the same can be done without prejudice to the interests of any person interested in the premises." « Homestead, etc. — (§ 37.) " The surviving husband or wife shall have the homestead or dwelling-house, if he or she desire, and such allotment shall not affect his or her estate of home- stead therein, but if the dower is allotted out of other lands, the acceptance of such allotment shall be a waiver and release of the estate of homestead of the person entitled to dower, and his or her children, unless it shall be otherwise ordered by the court." The commissioners appointed to set off a widow's dower have no authority to make a' partition of land among the par- ties entitled to it. They must be sworn, and the statement of that fact and the oath they took should accompany their report. And a report made by others than the commissioners appointed by the court would be void, (n) In assigning dower, commissioners should have reference to quantity and quality, so that the portion of the widow shall be equal in its yearly value to one-third of the yearly value of the tract from which it is assigned, taking into estimation its capacity for production at the time. () • Commissioners subject to the direction of the court. — The statute provides that (§ 42.) " The commissioners shall, at all times, be subject to the direction of the court ; and any one or more of them may, before the final confirmation of the report, be removed, and others appointed in their stead. SECTION XI. ALLOWANCE IN LIEU OF DOWEE. The statute provides that (§ 39.) " When the estate out of which dower is to be assigned consists of a mill or other tenement which cannot be divided without damage to the whole, and in all cases where the estate cannot be divided without great injury thereto, the dower may be assigned of the rents, issues and profits thereof, to be had and received by the person entitled thereto as tenant in common with the owners of the estate, or a jury may be impaneled to inquire of the yearly value of the dower therein, who shall assess the same accordingly, and the court shall there- upon enter a decree that there be paid to such person as an allowance in lieu of dower, on a day therein .named, the sum so assessed as the yearly value of such dower, and the like sum on the same day of each year thereafter during his or her natu- ral life, and may make the same a lien on any real estate of the party against whom such decree is rendered, or cause the same to be otherwise secured." (p) See No. 163, ante, p. 445. PROCEEDINGS FOR DOWER. 477 Damages for Refusal to Assign Dower. (§ 40.) " Whenever any such decree is made a Ken on any Teal estate, as provided in the preceding section, and a sale of snch real estate shall become necessary to satisfy any such in- stallment, the property shall be sold subject to the lien of the installments not then due, unless the court shall at the time direct otherwise, and subsequent sales may, from time to time, be made to enforce such lien as the installments may become due, until all the installments are paid." Where a widow has petitioned to recover dower, and by reason of the indivisibility of the property, an allowance has been made to her in lieu of dower, the sum so fixed cannot afterwards be changed by a court of equity by reason of the property subsequently becoming greatly enhanced or depre- ciated in value, (§) SECTION xn. DAMAGES FOB BEFUSAL TO ASSIGN DOWEB. The statute provides that (§ 41.) " Whenever in any action brought for that purpose, a surviving husband or wife recovers dower in any lands, he or she shall be entitled, to recover reasonable damages from the time of his or her demand, and a refusal to assign reasonable dower, which may be assessed by the court, or a jury, if re- quired, may be impaneled for that purpose, and execution may issue therefor." From the time a demand for dower is made, the widow is entitled to damages ; and the third of the rents which may have accrued after the demand, is held, generally, to form their proper measure, (r) The commencement of a suit for dower may be regarded as a demand therefor, (s) (q) Donoghvs vs. City of Chicago, 57 DL 235. (r) Atkin vs. MerreU, 39 111. 62 ; but see also Bonner vs. Peterson, 44 DX 253 ; Peyton vs. Jeffries, 50 111. 143 ; Walsh vs. Beis, 50 HI. 477 ; Stow vb Steele, 45 111. 328 ; Stravm vs. Strawn, 50 111. 256. (3) Id. lb. 478 PROCEEDINGS FOR DOWER. Mode of Ascertaining Value of Dower. Where the dower right is in separate tracts, and the yearly value thereof is assessed, the gross sum thus ascertained should not be made a charge on all the lands, but each separate tract should be charged only with the value of the dower that arises therefrom, (f). section xm. MODE OB" ASCERTAINING VALUE OF DOWEE. ETO. The value of life estates is usually ascertained by reference to scientific tables. In Massachusetts, Dr. Wiggleworth's table has been adopted by the courts as a rule in estimating the value of such estates, (u) Additional Illinois cases relating to dower : Sutherland vs. Sutherland, 69 111. 481 ; Nichol vs. Todd, 70 111. 295 ; Lomlard vs. Kinzie, 73 111. 446 ; Gale vs. Kinzie, 80 111. 132 ; Lenfers vs. Henke, 73 111. 405 ; Greenbaum vs. Austrian, 70 111. 591 ; Scammon vs. Campbell, 75 111. 223 ; Welch vs. Dutton, 79 111. 465 ; Simpson vs. Ram, 78 111. 203 ; Hitt vs. Scammon, 82 111. 519; Rowand vs. Carroll, 81 111. 224.; Simpson vs. Leach, 86 111. 286. (*) Atkin vs. Merrett, 39 m. 63. (u) Estabrook vs. Hapgood, 10 Mass. 313. PROCEEDINGS FOR DOWER. 479 Tables to Ascertain Value of Dower, etc. DR. WIGGLEWORTH'S TABLE (®) Qf observation in New England, adopted by the Supreme Court of Massachusetts, as a ruU for estimating the value of life estates. ta 44 ■"■S tit *H ti ** "-•S « a . a Z. 3 . a " a . Age. = o a H .2 £-3 III Age. > =5 | H £ a.— rs Cr-"d EL, R Hg p. n o p HS At 33 1,848 38 1 67 809 37 birth. 4,893 1,264 28.15 . ** 1,810 38 68 772 37 . 1 3,629 274 * 35 1,778 35 28.22 69 735 37 2 3,355 188 36 1,737 35 70 698 37 10.06 3 3,167 132 37 1,702 35 71 666 37 4 3,035 84 38 1,667 35 72 624 37 . 5 2,951 58 40.87 39 1,632 35 73 587 38 6 2,893 55 40 1,597 35 26.04 74 549 36 T 2,838 47 41 1,562 35 75 511 37 7.83 8 2,791 40 42 1,527 35 76 474 37 9 2.751 36 43 1,492 35 77 437 37 10 2,717 28 39.23 44 1,457 34 78 400 37 11 2,687 27 45 1,423 27 23.92 79 363 37 12 2,660 27 46 1,396 27 80 366 35 5.85 13 2,633 27 47 1,369 27 81 291 34 14 2,606 27 48 1.342 27 82 257 34 15 2,579 34 36.16 49 1,315 27 83 223 34 16 2,537 43 50 1,288 27 21.16 84 189 34 17 2,494 43 51 1,261 27 85 ,155 21 4.57 18 2.451 43 52 1.234 27 86 134 21 • 19 2.408 43 53 1,207 27 87 113 21 20 2.365 43 34.21 54 1,180 27 88 92 20 21 2,322 42 55 1,153 27 18.35 1 89 72 20 22 2,280 42 56 1,126 27 90 52 8 3.73 23 2,238 42 57 1,199 27 91 44 7 24 2,196 42 58 1,072 27 92 37 7 25 2,154 40 32.32 59 1,045 27 93 30 7 28 2,114 38 60 1,018 27 15.43 ! 94 23 7 27 2,076 38 • 61 991 27 95 16 6 1.69 26 2,038 38 62 964 27 96 10 5 29 2,000 38 63 937 27 97 5 3 30 1,962 38 30.24 k 910 27 98 2 1 31 1,924 38 883 37 12.43 99 1 1 32 1,886 38 66 846 37 A TABLE Showing the present value of an annuity of one dollar, from 1 to S6 years, the calculation being made at the rate of S per cent, per annum. Tears. Dollars. Cents. Tears. Dollars. Cents. Tears. Dollars. Cents. 1 95.23 13 9 39.35 25 14 09.39 2 1 85.94 14 9 89.86 26 14 37.51 3 2 72.32 15 10 37.96 27 14 64.30 4 3 54.59 16 10 83.77 28 14 80.91 5 4 32.94 17 11 27.40 29 15 14.10 6 5 07.56 18 11 66.95 30 15 37.24 7 ' 5 78.63 19 12 08.53 31 15 59.28 8 7 46.32 20 12 46.22 32 15 80.26 9 e 10.78 21 12 82.11 33 16 00.25 10 7 72.17 22 13 16.30 34 16 19.29 11 8 30.64 23 13 48.85 35 16 87.41 12 8 86.32 24 13 79.86 36 16 54.68 (v) Memoirs of the American Academy of Arts and Sciences, vol. 2, p. 181. 480 PROCEEDINGS FOE DOWER. Tables to Ascertain Value of Dower, etc. The rate of five per cent, interest per annum was taken be- cause the chief object is to estimate the value of dower. And it was observed that experience has shown that in estimating income from real estate, no more than five per cent, interest per annum can, in a majority of cases be allowed. Where the income is to be estimated at six ercent. per annum, the Portsmouth or Northampton table can be used. PORTSMOUTH OR NORTHAMPTON TABLES, And mode of computing value of life interest, etc. No. of years No of yeare Age. purchase the annuity Age. purchase the annuity is worth. is worth. 1 10.107 48 9.707 2 11.724 49 50 9.563 8 12.348 9.417 4 12.769 51.... 52 9.273 5...-. 12.962 9.129 6 13.156 58 54 8.980 7 13.275 8.827 8 13.337 55 8.670 9 13.335 56 57 58 8.509 10 13.285 a343 ' 11 13.212 8.173 18 13.130 59 7.999 IS 13.044 60 7.820 61.... J. 62 7.687 15 12.857 7.449 16 12.755 63 7.253 17 12.655 64 7.052 18 12.562 65 6.841 19 , 12.477 66 6.625 20 12.398 67 6.405 21 12.329 68 6.179 22 12.265 69 5.949 23 12.200 70 5.716 24 12.132 71 '. 5.479 25 12.063 .72 5.241 26 11.992 73 74 4.781 27 11.917 4.565 28 ...11.841 75 76 77 : 4.354 29 11.763 ..4.154 30 11.682 3.952 31 11.598 11.512 78 3.742 32 79 80 3.514 !&..*. 11.423 .-.11.331 8.281 34 81 82 83 3.156 35 r .11.236 2.926 36 11.137 2.713 37 .-> 11.035 84 2.551 38. 10.929 85 2.402 39 10.819 86 2.866 40 10.705 87 2.138 41 10.589 88 i 2.081 42 10.473 89 1.882 43 10.356 90 1.689 44 10.235 91 1.422 45 10.110 92 1.186 46 9.980 98 0.896 47 9.846 PROCEEDINGS FOR DOWER. 481 Tables to Ascertain Value of Dower, etc. Rule for computing the value of life estate or annuity : Calculate the interest at six per cent, for one year npon the sum to the income of which the person is entitled. Multiply this interest by the number of years' purchase set opposite the person's age in the table, and the product is the gross value of the life estate of such person in said sum. EXAMPLES. - Suppose a widow's age is 37, and she is entitled to dower in real estate worth $350.75. One third of this is $116.91$. Interest on $116.91 one year at 6 per cent, is $7.01. The number of years' purchase which an annuity of one dollar is worth, at the age of 37, as appears by the table, is 11 years and .0035 parts of a year, which, multiplied by 7.01, the income for one year, gives $77.35 and a fraction as the gross value of her right of dower. Suppose a man, whose age is 50, is tenant by the courtesy in the whole of an estate worth $9,000. The annual interest on the sum at 6 per cent, is $540. The number of years' pur- chase which an annuity of one dollar is worth at the age of 50, as per table, is 9.417 parts of a year, which, multiplied by 540, the value of one year, gives $5,085.18 as the gross value of his life estate in the premises or the proceeds thereof. The values in this table are calculated on the supposition that the annuities are payable yearly ; if payable half-yearly, one-fifth of a year's purchase should be added to those values, (w) SECTION XIV. MISCELLANEOUS PEOVISIONS OF THE STATUTE. Dower assigned in applications to county court for leave to sell lands to pay debts. — (§ 44.) " Whenever application is made to a county court for leave to sell real estate of a de- ceased person for payment of debts, or for the sale of real (w) See Jackson vs. Edwards, 7 Paige, 408, as to computation of dower right. 31 482 PROCEEDINGS FOR DOWER. Waste by Persons to Whom Dower is Assigned. estate of any ward, as authorized by law, and it appears that there is a dower and homestead, or either interest in the land sought to be sold, such court may, in the same proceeding, on the petition of the executor, administrator, guardian or conserva- tor, or the person entitled to dower and homestead, or either therein, cause the dower and homestead, or either, to be as- signed, and shall have the same power, and may take like pro- ceedings therefor, as hereinbefore provided for assignment of dower." (%) Waste by persons to whom dower is assigned. — (§ 45.) "Uo person who is endowed of any lands shall commit or suffer any waste thereon on penalty of forfeiting that part of the estate whereupon such waste is made, to him or them that have the immediate estate of freehold or inheritance in remain- der or reversion ; but every person so endowed shall maintain the houses and tenements with the fences and appurtenances in good repair, and shall be liable to the person having the next immediate estate of inheritance therein for all damage occasioned by any waste committed or suffered by him or her." (§ 47.) " Section 78 of an act entitled ' An act in regard to the administrations of estates,' approved April 1, 1872, is hereby repealed: Provided, that this section shall not be so construed as to affect any rights existing or actions pending at the time this act shall take effect." (x) Laws of 1875, p. 75; Rev. Stat. (1877) 420. CHAPTER XXXII. BILLS FOE DIYOECE. Section 1. Nature op. 2. Cause for Divorce. 3. Jurisdiction of, asd Where Commenced. 4. Natural Impwtenct. 5. Hating a Wife or Husband Living at Time of Marriage. 6. Adultery. 7. Willful Desertion. 8. Habitual Drunkenness. 0. Attempting the Life of the Other. 10. Extreme and Repeated Cruelty. 11. Conviction of Crime, etc. 12. Defenses to. 13. Injunction in. 14 Hearing and Decrees. • 15. Aldxony and Expenses. SECTION I. NATTJBE OF. A divorce is the dissolution of a marriage contracted be- tween a man and a woman, by the judgment of a court of competent jurisdiction, or by an act of the legislature. It is so called from the diversity of the .minds of those who are married, because such as are divorced go each a different way from the other, (a) Until a decree of divorce be actually made, neither party can treat the other as sole, even in cases where the marriage is utterly null and void for some preexist- ing cause, (b) A decree of divorce must also be made during the lifetime of both the parties. After the decease of either the marriage will be deemed legal in all respects, (c) (a) Kedly's Civ. and Eccl L. pp. 11, 112 ; Bouv. L. D. 439. (b) 3 Penn. Law Journal, 151, 153. (c) Reeves, Dom. Rel. 204 ; 1 Black, Com. 440 ; Bony. L. D. 439, 44a 484 BILLS FOE DIVORCE. Nature of. Divorces are of two kinds: First, d vinculo matrimonii — a total severance of the marriage tie ; and, second, ji mensa et thoro — "from bed and board," — which merely separates the parties. The divorce d vinculo matrimonii was never granted by the ecclesiastical law, except for the most grave reasons. These, according to Lord Coke, are causa jyroconbractus, causa metus, causa impotentice, seu fridigitatis, causa qffmitatis, et causa consanguinitatis — on account of precontract, fear, impotence or frigidity, affinity or consanguinity, (d) In England, such a divorce bastardizes the issue, and, generally speaking, is allowed only on the ground of some preexisting cause ; (e) but sometimes by an act of parliament for a supervenient cause. {/) When the marriage was dissolved for canonical causes of impediment, existing previous to its taking place, it was de- clared void ah initio. In some of the states of the Union divorces d vinculo are granted by the state legislatures for such causes as may be sufficient to induce the members to vote in favor of granting them ; and they are granted by the courts to which such juris- diction is given, for certain causes particularly provided for by law. In some states the legislature never grants a divorce until after the courts have decreed one. This is still the case in Mississippi. In Wisconsin the constitution prohibits the legislature from granting divorces. In Illinois the only divorce authorized is d vinculo matri- monii, and it is granted as well for causes arising after as for those existing before marriage, (g) (d) Co. Litt. 235. a. (e) Reeves, Dom. Rol. 204-205. (/) 1 Black. Com. 440; Bouv. L. D. 440. (fir) Clark vs. Lott, 11 111. 105. , BILLS FOR DIVORCE. 485 9 Causes for Divorce. — Jurisdiction of, and Where Commenced. SECTION IL CAUSES FOB DIVORCE. The statutes of the different states vary as to the causes of divorce. In Illinois, the revised statute of 1874, in force July 1, 1874, provides that (§ 1.) " In every case in which a marriage has been, or hereafter may be contracted and solemnized between any two persons, and it shall be adjudged, in the manner hereinafter provided, that either party, at the time of such marriage, was and continues to be naturally impotent ; or that he or she had a wife or husband living at the time of such marriage ; or that either party has committed adultery subsequently to the mar- riage ; or has willfully deserted or absented himself or herself from the husband or wife, without any reasonable cause, for the space of two years ; or has been guilty of habitual drunk- enness for the space of two years ; or has attempted the life of the other by poison or other means showing malice ; or has been guilty of extreme and repeated cruelty ; or has been con- victed of felony or other infamous crime, it shall be lawful for the injured party to obtain a divorce and dissolution of such marriage contract." section in. JURISDICTION OE, AND WHEEE COMMENCED. The statute of Illinois provides that (§ 4.) " The circuit courts of the respective counties and the superior court of Cook county shall have jurisdiction in all cases of divorce and alimony allowed by this act." Where commenced. — The statute further requires that (§ 5.) " The proceedings shall be had in the county where the complainant resides, but process may be directed to any county in the state." 486 BILLS FOE DIVOKCE. Complainant must be a Resident. — Impotency. Complcdna/nt must be a resident, etc. — The statute provides that (§ 2.) " No person shall be entitled to a divorce, in pur- suance of the provisions of this act, who has not resided in the state one whole year next before filing his or her bill or petition, unless the offense or injury complained of was com- mitted within this state, or whilst one or both of the parties resided in this state." Effect of dworce. — (§3.) "No divorce shall in anywise affect the legitimacy of the children of such marriage, except in cases where the marriage shall be declared void on the grounds of a prior marriage." (g) It will be convenient to consider the several grounds for divorce in Illinois separately, under various sections, which will be done. SECTION IV NATURAL INPOTENCT AT TIME OF HAKRIAGE. We have seen, that under the first section of the revised divorce act, if either party at the time of marriage was, and continue to be, naturally impotent, it is a good ground for divorce in Illinois. It has always been deemed requisite to the entire validity of every marriage, not only that the parties should be of different sex, but that they shall be essentially complete in their several organizations and capabilities. " As the first cause and reason of matrimony," says, Ayliffe, " ought to be the design of having offspring ; so the second ought to be the avoiding of fornica- tion." (A) And the law recognizes these two " as the principal ends of matrimony," namely, " a lawful indulgence of the pas- sions to prevent licentiousness, and the procreation of children according to the evident design of Divine Providence. (*) When one knowingly marries another who is past the age (S) See CUurk vb. Lott, 11 m. 105. (h) Ayl. Parer. 360. rt) 1 Robert, 279 ; 3 Phill. 325, 1 Eng. Eccl. R. 408, 409. BILLS FOE DIVOKCE. 487 Natural Impotency. of procreation, he cannot complain on the ground of unfruit- fdlness. (J) If the party married be within that age, and have the power of copulation, there is, ordinarily, no" means of cer- tainly determining that at the time of the marriage an incura- ble sterility existed. Indeed medical writers have stated with- out qualification, that there is no bnch means, (k) which is probably true, wherever there is no discoverable malformation. In all the reported cases, therefore, the principal inquiry has beeu as to the ability to copulate, and when, from any cause which is irremediable, there is an inability, the object of the marriage is frustrated. (I) Every marriage contract implies a capacity in the parties of consummation, (wi) When a person, knowing his own defect, induces another, who is ignorant of it, to marry him, he com- mits a gross fraud and a grievous injury ; (n) and when he is himself ignorant of it, there is equally a violation of the con- tract, and an equal injury, though there be no intentional wrong. In the former case, the marriage would be clearly voidable on the single ground of fraud, if the principles which govern ordinary contracts were to be applied to it ; and, in the latter case, it would seem to be equally so on the ground of mis- take, and the violation of the implied warranty, (o) But owing to the peculiar nature of the contract of marriage, this infirmity, though sometimes treated as a pure fraud, (j?) is, according to better opinions, regarded in a somewhat different aspect, (q) This matrimonial impediment is termed impotence, or impo- tency. It may be difficult to give to it a perfectly accurate and unexceptional definition : in Mr. Shelford's work, it iB said to (j) Brovm. vs. Brovm, 1 Hagg, 523, 3 Eng. Eccl. B. 229. (k) Guy's Forensic Mefl. Amer. Ed. 51. (0 Bishop on Mar. & Div. § 226. (m) Chitty's Med. Juris. 378 ; Eoynter on Mar. & Div. 123. (n) Briggs vs. Morgan, 3 Phill. 325, 1 Eng. Eccl. R. 408,410. () And the burden of proof is on the complainant to establish that it ex- isted at the time of the marriage, and that it is incurable. (io) The sentence of divorce on the ground of impotency .declares the marriage void from the beginning, (x) On a bill by the husband for the wife's impotency, it was held, that the wife will be compelled to submit to a surgical examination ; but if she has already submitted to an examina- tion by competent surgeons, whose testimony can be readily obtained, she will be excused from further examination, {y) A motion for an order to compel the defendant to 6ubmit to an examination is addressed to the discretion of the chancellor, and his ruling is held not to be appealable, (s) Where there is reason to believe that the incapacity can be removed by a slight surgical operation, the court will not annul the marriage. But the court has no power to compel a wife to submit to such operation ; and her refusal to do so furnishes no ground to annul the marriage, (a) (r) Shelford on Map. & Div. 202. (») Frazer on Dom. Bel. 53. («) Bishop on Mar. & Div. § 228. (■») Bishop on Mar. & Div. § 235 ; Boscomb vs. Boscomb, 5 Foster, 267. (») Ferris vs. Ferris, 8 Conn. 166 ; 2 Atkin. 188 ; J. O. vs. H. O. 33 Md. 401. (to) Newell vs. Newell, 9 Paige, Ch. R. 25 ; Bevanbagh vs. Bevanbagh, 5 Paige, Ch. R. 554 ; Welde vs. Welde, 2 Lee, 580 ; Bishop on Mar. & Div. § 235. (a;) BishoR on Mar. & Div. § 46, 53, 59, 226, 227, 235, 261. (y) Bevanbagh vs. Bevanbagh, 5 Paige, Ch. R. 554 ; see NewcU vs. Newell, 9 Paige, Ch. R. 25. (z) Anon. 35 Ala. 326 ; see LeBarron vs. LeBarron, 35 Vt. 365. (a) Bevanbagh vs. Bevanbagh, 6 Paige, Ch. 175. BILLS FOE DIVORCE. 489 Form of Bill on the Ground of Impotency. No. 17 % BUI for dworce on the ground of impotency. To the Honorable , Judge of the Court of the County of , in the State of Illinois, In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., your orator intermarried with one C. D., now C. B., at, etc. ; and that your orator is now, and has been a resident of this state for over one whole year next be- fore the filing of this bill. Your orator further represents, that immediately after the said marriage took place your orator discovered that the said C. B., at the time of her intermarriage with your orator as aforesaid, was, and has continued to be naturally impotent, and physically incapable of entering into the marriage state ; that, etc., {Here state the particular character of the impotency /) so that the said marriage could not be consummated by the 6exual intercourse of the parties. And your orator further represents, that as he is informed and believes, and so charges the fact to be, that the said im- potency and physical incapacity of the said C. B. still exists and is incurable. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. B., who is made a party defendant to this bill, may be required to make full • and direct answer to the same ; and that the said marriage between your orator and the said C. B. may be dissolved and declared null and void by the decree of this court, according to the statute in such case made and provided ; and that your orator may have such other and fur- ther relief iu the premises as equity may require and to your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sheriff of the said county of , commanding him that he summon the defendant C. B. to appear before the said court, on the first day of the next term thereof, to be held at the court house in , in the county of aforesaid, then and there to answer this bill, etc. 490 BILLS FOR DIVORCE. Divorce on the Ground of Former Marriage. — Form of Bill. SECTION V. ON ACCOUNT OF HAVING A WIFE OE HUSBAND LIVING AT THE TIME OF MAEEIAGE. The statute authorizes a dissolution of a marriage where either party had a wife or husband living at the time of such marriage. A second marriage, while the first remains undissolved by death or divorce, is, by the common law, null and void. (J) But to render the second marriage null, the first must be valid, (c) A husband is not entitled to a decree of nullity of marriage on the ground that the former husband of his wife obtained a divorce by her fraudulent collusion, {d) Where a marriage is declared void on the grounds of a prior marriage, the children of the subsequent marriage are illegitimate, (e) No. 175. Bill for a dimorce on the ground of a former ipaw- riage, etc., praying to oe allowed to resume maiden name. To the Honorable , Judge of the - Court of the County of , in the State of , In Chancery sitting : Your oratrix, A. B., of, etc., respectfully represents unto your honor, that her maiden name was A. M., and she was the daughter of L. M., late of, etc., now deceased ; that on, etc., your oratrix intermarried with one C. B., the defendant here- inafter named, at, etc. ; and that your oratrix is now, and has been a resident of this state for more than — : — years last past; that your oratrix lived and cohabited with the said C. B., as his wife, from the time of their marriage until, etc., when she left him, and has ever since refused to live and cohabit with him. (6) Games vs. Self, 12 How. U. S. 472 ; Gaines vs. Bennen, 24 How. U. S. 554 ; Carre vs. Carre, 2 TeateB, 207 ; 2 Kent's Com. 79 ; Bishop on Mar. & Div. § 205. (c) 2 Add. 471 ; 2 Bng. Bed. E.381 ; 12 Jur. 174 ; 11 Queen'B B. Rep. 173. (d) Kiwnier vs. Kinnier, 53 Barb. N. T. 454. {e) Clark vs. Lott, 11 111. 105 ; see § 3 of the revised divorce act of 1874. BILLS FOE DIVORCE. 491 Adultery. Tour oratrix farther represents, that the said 0. B., at the time of such marriage with your oratrix, had a wife, who was then, and is still living, to wit : one E. B., of, etc. ; that the said C. B. and E. B. were lawfully married at, etc., on, etc., and for a considerable time thereafter lived and cohabited as husband and wife ; which said marriage was at the time of the marriage of your oratrix and the said 0. B., still subsisting ; by reason whereof the said marriage of your oratrix and the said C. B. was, and is, wholly null and void. Forasmuch, therefore, as your oratrix is without remedy in the premises, except in a court of equity ; and to the end that the said C. B., who is made party defendant to this bill, may be required to make full and direct answer to the same ; and that the said marriage between your oratrix and the defendant may be decreed by the court to be null and void, according to the statute in such case made and provided ; that your oratrix may be allowed to resume her maiden name of A. M. as before marriage ; and that your oratrix may have 6uch other and fur- ther relief in the premises as equity may require, and to your honor may seem meet. May it please your honor, etc. {Pray process as in No. 17 1^ ante, page 489.) SECTION VL ADULTERY. The statute, as we have already seen, provides that a divorce may be granted where either party has committed adultery subsequently to the marriage. A similar provision is in the statutes of almost every state of the Union. A suit for a divorce, on the ground of adultery, will be barred by proof of a like offense by the complaining party, though committed even during the pendency of the suit. {f) Adultery, to be the foundation for a divorce, must be volun- tary. If a wife be compelled by force, or ravishment, or has carnal knowledge of a man not her husband, through error or (/) Danria vs. Dams, 19 111. 334; Christiariberry vs. OhriMianberry, 3 Blackf. 203 ; Mattox vs. Mattox, 2 Ham. 233 ; Letseuer vs. Lesseuer, 31 Barb. N. T. 330 ; Clapp vs. Glapp, 97 Mass. 531 ; liibet vs. Bibet, 39 Ala. 348. 492 BILLS FOE DIVORCE. Adultery. — Circumstantial Evidence. mistake, she believing him to be her husband, (17) or while she is insane, (A) or by her husband's procurement, (£) or marry another man through a belief that her former husband is dead, and during the continuance of such belief lives in matrimonial intercourse with him, (j) a divorce will not be granted. Oircwmstantial evidence. — Adultery being peculiarly a crime of darkness and secrecy, may be, and ordinarily must be, estab- lished by circumstantial evidence, (k) To prove adultery by circumstantial evidence, two points are to be ascertained and established — the opportunity for the crime, and the will to commit it. Where both of these are established, the court will infer guilt. (Z) The partdceps crmvmis is a competent witness for the com- plainant; (m) but a court will seldom grant a divorce on such testimony unless corroborated, (n) It is not sufficient, to convict parties who may be supposed willing to commit adultery, to prove that they were in a posi- tion where it was possible to commit it. It must be shown that they were together under suspicious circumstances, which cannot be easily accounted for unless they had that design, or which could not be well explained without it. (0) (ff) Ayl. Parer. 226; Frazer on Dom. Rel. 81, 657 ; Bishop on Mar. & Div. § 204, 418. (A) Broadstreet vs. Broadstreet, 7 Mass. 474; Matchin vs. Matchin, 6 Barr, 332 ; Nichols vs. Nichols, 31 Vt. 328 ; see Wray vs. Wray, 19 Ala. 522 ; Wray ye. Wray, 33 Ala. 187. (i) Pierce vs. Pierce, 3 Pick. 299 : Myers vs. Myers, 41 Barb. N. T. 114; Henden vs. Henden, 6 C. E. Greene, 61. (j) Valleau vs. VaUeau, 6 Paige, Ch. 207 ; Bishop on Mar. & Div. § 418. (k) 4 Porter, 467 ; Matchin vs. Matchin, 6 Barr, 332 ; Bailey vs. Bailey, Wright, Ch. Ohio, 514; Bay vs. Bay, 3 Green's Ch. 444; Ferguson vs. Fer- guson, 3 Sandf . Ch. 307 ; Van JEpps vs. Van Spps, 6 Barb. N. T. 320 ; Mehlt vs. Lapeyrollerie, 16 La. An. 4; Bast vs. Bast, 82 111. 584. (I) Moore vs. Moore, 1 Green, N. J. 122, 276; see Angelo vs. Anaelo, 81 111. 251. (to) Moulton vs. Moulton, 1 Shep. Maine, 110. (n) Banta vs. Banta, 3 Edw. Ch. 295; see Jenkins vs. Jenkins, 86 111. 340. (0) Mayer vs. Mayer, 6 C. E. Greene, N. J. 246; Thompis vs. Thomas, 51 M. 162; Larrison vs. Larrison, 5 C. E. Greene, N. J. 100; Hedden vs. Hed- den, 6 C. E. Greene, N. J. 61; Thayer vs. Thayer, 101 Mass. Ill; Lyon -vs. Lyon, 62 Barb. N. T. 138; Blake vs. Blake, 70 111. 618. BILLS FOR DIVORCE. 493 Frame of Bill for Adulteiy* etc. — Form of Bill. Frame of MU charging adultery. — A divorce cannot be decreed upon a bill charging adultery generally, without stating either time, place or circumstances, though the persons with whom it is committed are unknown. ( p) And it is held, that if the bill alleges adultery with a particular person, it will not be sustained by proof of adultery with any other per- son, (j) The name of the person with whom the adultery was commit- ted should be given, (r) A charge of adultery with a certain woman is too indefinite, (s) if known ; and if not known, it must be alleged that it is unknown. The time and place of committing the act should also be stated with reasonable cer- tainty, (t) A charge of extreme and repeated cruelty and a charge of adultery may be joined in the same bill, and the court will decree a divorce according to the evidence produced, (u) No. 176. BUZ by husband for a divorce, charging adultery. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., your orator was lawfully joined in marriage with C. B., the defendant hereinafter named ; /and that your orator is now a resident of said county, and is now, and has been a resident of this state for more than years last past ; that your orator lived and cohabited with the said C. B. as her husband from the time of their intermarriage until, etc., and in all respects demeaned himself as a kind and indulgent husband ; that on, etc, becoming acquainted with the facts hereinafter set forth, he left the said C. B., and has refused to live and cohabit with her since that time. Your orator further represents, that on, etc., at, etc., and at (p) Kane vs. Kane, 3 Edw. Ch. 389. (q) Washburn vs. Washburn, 5 N. H. 195. (r i Bird vs. Bird, Wright, Ch. 98 ; Richards vs. Richards, lb. 802 ; Mor- rell vs. MorreU, 1 Barb. 318. (*) Mansfield vs. Mansfield, Wright, Ch. 284. (t) MorreU vs. MorreU, 1 Barb. N. T. 318. («) Young vs. Young, 4 Mass. 430. 494 BILLS FOE DIVOECE. Form of Bills Charging Adultery, etc. various other times, and places, since the said marriage, the said C. B., in utter disregard and in violation of her marriage duty and obligations, committed adultery and had carnal knowledge with one E. F. ; and that the said C. B. has at divers other times and places to your orator unknown, since the said mar- riage, committed adultery with divers other persons to your orator unknown. (Sere set forth any other act accordmg to circumstances.) Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. B., who is made party defendant to this bill, may be required to make full and direct answer to the same ; and that the said marriage between your orator and the defendant may be dissolved and declared null and void, by the decree of this court, according to the statute in such case made and provided ; and that your orator may have such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sheriff of the said county of , com- manding him that he summon the defendant C. B. to appear before the said court, on the first day of the next term thereof, to be held at the court house in , in the county ot aforesaid, then and there to answer this bill, etc. No. 177. Bill for divorce by wife, charging adultery, and praying for alimony and the custody of children. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting: Your oratrix, A. B., of, etc., respectfully represents unto your honor, that she is an actual resident of said county, and is now, and has been for over one whole year last past a resident of the State of Illinois ; that on, etc., at, etc., she was lawfully married to one C. B., the defendant hereinafter named, and continued to live and cohabit with him as his wife, until, etc., when she learned, and became convinced, of his infidelity to his marriage vows and obligations as hereinafter charged, and thereupon left him, and has refused to live and cohabit with him as his wife ever since. Tour oratrix further represents, that she has ever since said marriage demeaned herself to the said C. B. ae a faithful, chaste, and affectionate wife; and*as the issue of such marriage your oratrix has born of the said C. B. two children, viz., F. B.' BILLS FOE DIVOECE. 495 Fonn of Bill for Divorce for Adultery, etc. — Alimony, etc. and G. B., now aged three and five years respectively, who are both living, and have remained under the care and control of your oratrix. Your oratrix further represents, that the said C. B., wholly regardless of his marriage duty, obligations, and plighted faith, has for a considerable time past, and subsequently to the said marriage, to-wit, from, etc., given himself up to adulterous and licentious practices ; and that on, etc., at, etc., he, the said C. B., committed adultery and had carnal connection with one G. H. ; and has at divers other places and times, since said marriage, to your oratrix unknown, committed adultery with the said G. H., and with divers other lewd women, whose names are also to your oratrix unknown. (Mere set forth any other act of adultery, gvovng names, time, place, and circum- stances as near as possible?) Your oratrix further represents, that the said C. B. is a" man of low, vicious, and vulgar habits; and is addicted to the use of obscene and profane language towards your oratrix and their eaid children, in the presence and hearing of the said children ; and is a person wholly unfit to be intrusted with the care, cus- tody, and education of children. Your oratrix further represents, that the said C. B. is the owner in fee simple of the following described real property, to-wit : (Here describe his real estate}) of great value, to-wit, of the value of dollars ; and is the owner of a large amount of personal property, consisting of, etc. (Here describe it and set forth his pecuniary circumstances and calling fuUy). That your oratrix is poor, without means to support herself and children, and to prosecute this suit; and that the said C. B. is abundantly able to supply all the necessities and wants of your oratrix and the said children, but wholly neglects and refuses so to do ; and your oratrix is now com- pelled to accept assistance from her relatives and friends to live and subsist from day to day ; and that the said children and your oratrix are but pooriy supplied with clothing and other comforts of life suitable to her and their condition in life. Your oratrix further represents, that the said C. B. threat- ens, and your oratrix fears that he will carry his threat into execution, to sell off all his real'and personal property, to pre- vent your oratrix from obtaining alimony therefrom for the support of herself and her said children ; and that the said C. B. ought to be restrained by the injunction of this honor- able court from selling, assigning, incumbering or otherwise disposing of the said property until the hearing of this cause, and suitable provisions are made for the support of your oratrix and the said children. 496 BILLS FOE D1VOKCE. Willful Desertion, etc Forasmuch, therefore, as your oratrix is without remedy in the premises, except in a court of equity ; and to the end that the said C. B., who is made party defendant to this bill, may be required to make full and direct answer to the same ; that your oratrix may be divorced and forever freed from the bonds of matrimony now existing between her and the said C. B. ; that the care, custody and education of the said children may be awarded to your oratrix ; that your honor will decree to your oratrix such portions of the property of the said C. B., or such sums of money to be paid by the said C. B. to her, as your honor may deem necessary and proper for the maintenance df your oratrix and the said children ; and that the said C. B. may be required to pay to your oratrix a sufficient sum of mo- ney to enable her to employ counsel and to prosecute this suit, and for the support of herself and the said children during the pendency thereof; and that the said C. B. may be restrained by the injunction of this court from selling, assigning, incumbering or otherwise disposing of the said property until the further order of this honorable court ; and that your oratrix may have such other and further relief in the premises as equity may require, and to your honor shall seem meet. May it please your' honor to grant the writ of summons in chancery, directed to the sheriff df the said county of , commanding him that he summon the defendant to appear before the said court on the first day of the next term thereof, to be held at the court house in , in the county of aforesaid, then and there to answer this bill, etc. And may it please your honor, to grant unto your oratrix the people's writ of injunction, to be directed to the said C. B., restraining him, _ etc., from, etc., {Here set forth the matter sought to be enjoined, as in the above prayer,) until the further order of this court. {Add affidavit, No. 129, ante, page 345.) SECTION vn. WILLFUL DESERTION. The 1st section of the revision of the statute, as we have seen, provides that if either party " has willfully deserted or absented himself or herself from the husband or wife, without any reasonable cause, for the space, of two years," a divorce may be granted to the party deserted for that cause. BILLS FOR DIVORCE. 497 Willful Desertion — Bill for. Before a divorce can be obtained in Illinois on the ground of desertion, such desertion must continue for the full space of two years, without reasonable cause. («) And a desertion for the period of two years by the husband, residing in this state, although commenced in a foreign juris- diction, will enable a wife to obtain a divorce, though she may not have resided in the state for one year prior to the filing of the bill, (w) Desertion, to be a cause for divorce, must be willful, and con- tinue for the full period of two years. If a bill is prematurely filed, the defect cannot be cured by filing a supplemental bill after the two years have elapsed. A hearing can only be had on the grounds which existed when the suit was commenced, and subsequent grounds cannot be incorporated into the case after the commencement of the proceedings, (as) Two periods of desertion cannot be added together to make up the tima specified in the statute, (y) Separation and intention to abandon must concur in order to constitute the ground for divorce. But they need not be identical in their commencement. If one should leave the other on business, and afterwards determine not to return, the desertion would commence from the time the intention was formed, (z) , The term " willful desertion," as used in the statute, signifies an intentional desertion. It does not imply malice towards the other party, (a) No. 178. BUI for divorce for wiUfvl desertion. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your (v) Thomab vs. Thomas, 51 111. 162 ; see Reazis vs. Seams, 1 Scam. 343. (w) Ashbaugh vs. AsKbaugh, 17 111. 476. (x) Embree vs. Embree, 53 111. 394. (y) 33 Miss. 152. (z) Pinkard vs. Pinhard, 14 Texas, 356 ; Reed vs. Reed, Wright, Ch. 234 ; Phelan vs. Phelan, 12 Florida, 449; Kennedy vs. Kennedy, 87 111. 350. (a Benkert vs. Benkert, 32 Cal. 467. 32 498 BILLS FOE DIVORCE. Habitual Drunkenness, honor, that he is an actual resident of the said county of ■ and is now, and has been for years last past, a resident of the State of Illinois ; that on, etc., at, etc., he was lawfully married to one C. D., now 0. B., the defendant hereinafter named, and from the time of the said marriage until, etc., he lived and cohabited with the said C. B. as her husband ; and always conducted himself towards his said wife as a true, kind and indulgent husband, and provided her with all the neces- saries and comforts of life, according to the best of his means and their situation in life. Tour orator further represents, that the said C. B., wholly regardless of her marriage covenants and duty, afterwards, on, etc., willfully deserted and absented herself from your orator, without any reasonable cause, for the space of two years and upwards ; and has persisted in such desertion, and yet contin- ues to absent, herself from your orator. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. B., who is made a party defendant to this bill, may be required to make full and direct answer to the same ; and that the said marriage between your orator and the said C. B. may be dissolved and declared null and void by the decree of this court, according to the statute in such case made and pro- vided ; and that your orator may have such other and farther relief in the premises as equity may require, and to your honor may seem meet. May it please your honor, etc. {Pray process as in No. 174, ante, page 489.) section vni. HABITUAL DRUNKENNESS Habitual drunkenness, for the space of two years, is a ground .for divorce under the statute of Illinois. . What amounts to habitual drukenness is generally a question of law ; and, therefore, on the hearing of the cause, it is not sufficient that the witness testify in general terms that the de- fendant is an habitual drunkard, but the witness should give the particular facts and circumstances, so that the court may judge of their sufficiency, (b) (6) Bishop on Mar. & Div. § 532 ; Batcheldcr vs. Batehelder, 14 N. H. 380. BILLS FOR DIVORCE. 499 Habitual Drunkenness — Form of Bill for. In this state, where the defendant appears and denies the charges in the bill, the trial is by jury. In such case, the ■witness should state facts and circumstances, and the jury will decide from these whether the defendant is an habitual drunkard or not. It would be improper to allow a witness to give his opinion on the subject. A fixed habit of drinking to excess, to such a degree as to disqualify a person from attending to his business, during the principal portion of the time usually devoted to business, is such habitual intemperance as is made a ground for divorce, (c) A divorce cannot be obtained for habitual drunkenness, if the complainant was aware of this before marriage, (d) No. 179. Bill for divorce, charging habitual drunkenness, and praying for custody of children, alimony, injunction, etc. To the Honorable , Judge of the Court of the County of , in the State of Illinois, . In Chancery sitting: Tour oratrix, A. B., of, etc., respectfully represents unto your honor, that she is an actual resident of the said county of , and is now, and has been a resident of the State of Illinois for over one year last past ; that on, etc., at, etc., she was lawfully married to one C. B., and from that time until, etc., lived and cohabited with him as his wife, and during all that time faith- fully performed all her duties and obligations as a wife, bearing with her husband's faults and errors, and striving to make their home and family comfortable and happy. Your oratrix further represents, that the said C. D., wholly regardless of his obligations as a husband, a few years after the said marriage, commenced the excessive use of intoxicating liquors, and for more than two years last past has been guilty of habitual drunkenness ; that he has constantly been on sprees, and remained in an intoxicated condition almost continually, and has been wholly unfit to attend to his usual occupation and business during that period ; that while he is thus intoxi- cated, he is very quarrelsome and ill-treats his family, using abusive language and opprobrious epithets, rendering your (c) Mahone vs. Mdhone, 19 Cal. 627. (d) Poritt vs. Poritt, 16 Mich. 140. 500 BILLS FOE DIVOECE. Form of Bill Charging Habitual Drunkenness. oratrix's condition intolerable, and her life burdensome; in consequence of which she was compelled to withdraw with her children from their home. Tour oratrix further represents, that as the issue of such marriage she has had by the said C. B. three children, viz., E. B., now aged years ; F. B., now aged years ; and G. B., now aged years ; and that in consequence of his drunken habits and abusive language the said C. B. is a person wholly nnfit to have the care, custody and education of said children. Tour oratrix further represents, that the said C. B. is the owner in fee of thevfollowing described real property, to wit : {Here describe the real estate]) of great value, to wit, of the value ot about dollars ; and is the owner of the following described personal property and effects, to wit : {Here describe;) that your oratrix is without means of subsistence, except as she is able to earn the same by her own labor ; that the said C. B. is able to support your oratrix and their said children if he was disposed to do so. Tour oratrix further represents, that the said C. B. has given out his intention, and threatens, to sell and dispose of all his property as aforesaid, and to leave your oratrix and the said children without any means of support ; and your oratrix has good reasons to Year, and does fear, that he will carry his said threats and intentions into execution unless he is restrained by the injunction of this honorable court. Forasmuch therefore, as your oratrix is without remedy in the premises, except in a court of equity ; and to the end that the said C. B., who is made party defendant to this bill, may be required to make full and direct answer to the same ; that your oratrix may be divorced and forever freed from the bonds of matrimony now existing between her and the said C. B. ; that the care, custody and education of the said children may be awarded to your oratrix; that your honor will decree to your oratrix such portions of the property of the said C. B., or such sums of money to be paid by the said C. B. to her, as your honor may deem necessary and proper for the mainte- nance of your oratrix and the said children ; and that the said C. B. may be required to pay to your oratrix a sufficient sum of money to enable her to employ counsel, and to prosecute this suit, and for her support, and that of said children, during the pendency thereof; and that the said C. B. may be re- strained by the order and injunction of this honorable court, from selling, assigning, encumbering or otherwise disposing of the said property, until the further order of this honorable BILLS FOR DIVORCE. 501 Attempting Life of the Other — Form of Bill for. court ; and that your oratrix may have such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please your honor, etc. {Praying process and for injunction, and adding affidavit for injunction, as in JVo. 177, ante, page 49^.) SECTION TX. ATTEMPTING THE LIFE OF THE OTHEB. The new statute of Illinois in relation to divorce provides for a divorce where a husband or wife has attempted the life of the other, by poison or other means, showing malice. This is an entirely new provision of the statute. No. 180. Bill for divorce, for attempting the Ufe of the complainant. To the Honorable , Judge of the Court of the County of , in the State of Illinois, In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your honor, that he is an actual resident of the said county of , and is, and has been a resident of the State of Illinois for years iast past ; that on, etc., at, etc., he was lawfully married to one C. I)., now C. B., the defendant hereinafter named ; and from the date of the said marriage until, etc., he lived and cohabited with the said C. B.- as her husband ; and always conducted himself towards her as a true, kind and indulgent husband. Your orator further represents, that the said C. B., wholly regardless of her marriage covenant and duties, on, etc., at, etc., did willfully and maliciously attempt the life of your orator by means of a certain poison, to wit : two drachms of arsenic, with the intent, in so doing, willfully and maliciously to take the life of your orator. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. B., who is made party defendant to this bill, may be required to make full and direct answer to the same ; and that the said marriage between your orator and the said C. B. may be dissolved and declared null and void, by the decree of 502 BILLS FOE DIVOECE. Extreme and Repeated Cruelty. this court, according to the statute in such case made and pro- vided ; and that your orator may have such other and further relief in the premises as equity may require, and to your honor may seem meet. May it please your honor, etc. {Pray process as in No. 11 % ante, page 489.) SECTION X. EXTBEME ATO EEPEATED OEUELTT. If a hushand or wife has been guilty of extreme and repeated cruelty towards the other, a divorce may be obtained under the statute for that cause. The cruelty must consist in physical violence, and not in angry or abusive epithets, or even profane language, and it must be shown to have been repeated, (e) Austerity of temper, sal- lies of passion, or abusive language, do not constitute such extreme and repeated cruelty, within the statute, as to author- ize a decree of divorce, {f) A wife is not entitled to a divorce on the ground of violence, if such ill-treatment has been drawn upon her by her own mis- conduct and provocation, even though such violence should proceed to blows, (g) But where a blow is given in a manner to endanger life or cause a serious bodily injury, unless given in strict defense of life and limb, no decree of provocation can excuse the act. (A) Where the husband is the complainant, it is not sufficient to («) Ernbree vs. Embree, 53 111. 394 ; Vignos vs. Vignos, 15 111. 186 ; Shaw vs. Shaw, 17 Conn. 189 ; Peabody vs. Peabody, 104 Mass. 195 ; Moyler vs. Moyler, 11 Ala. 620 ; Hughes vs. Hughes, 19 Ala. 307 ; Bailey vs. Bailey, 97 Mass. 373 ; Odom vs. Odom, 36 Geo. 286. (/) Turbitt vs. TurUU, 21 111. 438 ; SheU vs. Shell, 2 Sneed, Tenn. 716 ; Ford vs. Ford, 104 Mass. 198 ; Hughes vs. Hughes, 44 Ala. 698 ; Conesey vs. Oonesey, 60 111. 188. (g) Von Glahn VB.Von Glahn, 48 111. 134; Knight vs. Knight, 31 Iowa, 451 ; Fellows vs. Fellows, 8 N. H. 307 ; Johnson vs. Johnson, 14 Cal. 459 ; Bamd vs. David, 27 Ala. 222 ; Skinner vs. Skinner, 5 Wis. 449 ; Trowbridge vs. Carlin, 12 La. An. 882 ; Howe vs; Howe, 4 Nev. 395. (h) Von Glahn vs. Von Glahn, 46 111. 134; EidenmuUer vs. EidenmuUer, 37 Cal. 364. BILLS FOE DIVORCE. 503 Extreme and Repeated Cruelty — Bill for. show slight acts of violence on the part of the wife towards him. (i) It is not required, under the statute of Illinois, that a party should endure " extreme and repeated cruelty " for two years, before applying for a divorce for t>at cause, (j) Where extreme cruelty is alleged as a cause of divorce, there should be a specification of the acts of cruelty complained of. (A) Although the specific acts of cruelty must be set out in the bill, yet the evidence is not necessarily limited to the particular facts charged. Thus, acts of personal violence, when intrinsically and separately considered, may not justify a divorce ; yet when attended by habitual brutal behavior, so as to be a constant outrage upon the sense of decency and pro- priety of the party to be affected by them, a case of extreme cruelty within the meaning of the statute is established. (I) Wo. 181. Bill for divorce on the ground of extreme and repeated cruelty. To the Honorable , Judge of the — — Court of the County of , in the State of Illinois, In Chancery sitting: Tour orator, A. B., of, etc., respectfully represents unto your honor, that he is an actual resident of the county of afore- said, and is, and has been, a resident of che State of Illinois for years last past; that on, etc., at, etc., he was lawfully married to one C. I)., now C. B., with whom he resided until, etc., when he was compelled to leave and cease living with her in consequence of the ill-treatment hereinafter mentioned ; that during the time he so lived with the said C. B. he always con- ducted himself towards her with kindness, and as a true and indulgent husband, supplying all her wants and necessities, according to the best of his means and ability, and suitable to his and her condition in life. (») Birkby vs. Birkby, 15 111. 120 ; Be La Hay vb. Be La Hay, 21 111. 252 ; see Lynch vs. Lynch, 33 Md. 328. (j) Harmon vs. Harmon, 16 111. 85 ; Conesey vs. Conesey, 60 111. 188. (k) Fellows vs. FeUmes. 8 X. H. 160 ; Hill vs. HUl, 10 Ala. 527 ; Wright va Wright, 3 Texas, 168 ; Byrne vs. Byrne, lb. 336. (0 Briggs vs. Briggs, 20 Mich. 34; see Berdell vs. Berdell, 80 III. 604; Farnham vs. Farnham, 73 111. 497. 504 BILLS FOR DIVOECB. Form of Bill on the Ground of Extreme and Repeated Cruelty. Your orator further represents, that the said C. D., not regarding her marriage relations and duties, has, since the said intermarriage, been guilty of extreme and repeated cruelty towards your orator, in this, that she is a woman of great austerity of temper, and very frequently, during the past years, indulged in violent sallies of passion, and used towards your orator very obscene and abusive language, without any provocation whatever, and frequently refused to prepare your orator's meals, and perform such other household duties as it was incumbent upon her to perform ; and, on numerous occa- sions during the time mentioned, has used personal violence towards your orator, which he did not feel disposed to resent, or even defend himself, on account of her sex ; and particu- larly your orator charges, that on or about, etc., at, etc., the said 0. B., without any provocation whatever, struck your orator a violent blow over the head with a club ; and again, on or about, etc., the said C. B. again attacked your orator in their house, and severely beat and bruised him with' a chair, and broke the chair in pieces ; and that on or about, etc. (Set forth each act of violence according to the facts.) Inasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. B., who is made party defendant to this bill, may be required to make full and direct answer to the same ; and that the said marriage between your orator and the defendant may be dissolved and declared null and void by the decree of this court, according to the statute in such case made and provided ; and that your orator may have such other and further relief in the premises, as equity may require and to your honor shall seem meet. . . May it please your honor, etc. (Pray process as in No. 176, ante, page 493.) No. 182. Bill for dvoorce, charging extreme and repeated cruelty, and praying for an injunction, etc. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your oratrix, A. B., of, etc., respectfully represents unto your honor, that she is an actual resident of the county of afore- said, and has been for more than years last past a resident of the State of Illinois ; that on, etc., at, etc., she was lawfully married to one C. B., the defendant hereinafter named, and has had by him one child, viz., E. B., now aged about years ; BILLS FOE DIVORCE. 505 Form of Bill on the Ground of Extreme and Repeated Cruelty. that since her intermarriage with the said C. B. she has always behaved herself towards him as a chaste, dutiful and affection- ate wife. Your oratrix further represents, that the said C. B., wholly disregarding his marriage vows and obligations towards your oratrix, has ever since said marriage been guilty of extreme and repeated cruelty towards your oratrix ; that is to say, that the said C. B. on divers days and times since said marriage, has beaten, struck, kicked and choked her, and has neglected to furnish her and her said child with proper and necessary food and clothing, and particularly that on, etc., at their house, the saic C. B. struck your oratrix a violent blow in her face with his fist, knocking her doVn, and otherwise greatly injuring your oratrix ; and that afterwards, on, etc., the said C. B. again attacked your oratrix, in their said house, kicked, choked and forced her out of said house; and again on, etc., he struck and kicked your oratrix in a violent manner, and otherwise ill treated her ; and, on, etc. {Insert each act of violence accorcL- ing to the facts /) and on each of said occasions, and on numerous other occasions has used towards your oratrix and her said child, the most obscene, profane and opprobrious language, rendering her life miserable. Tour oratrix further represents, that since she left the said C. B. he has continued to annoy and abuse her ; and threatens to take the said child from your oratrix by force, and to kill your oratrix if she refuses to let him take the said child from her ; and your oratrix fears and believes that the said C. B. will carry his threats into execution, unless restrained by the injunction of this honorable court. Your oratrix further represents, that the said C. B. is pos- sessed of the household furniture and property used by your oratrix and him in keeping house, but now threatens to sell and dispose of the same to prevent your oratrix from obtaining possession thereof; and your oratrix fears and believes he will carry said threat into execution, unless restrained by the injunc- tion of this honorable court. Forasmuch, therefore, as your oratrix is without remedy in the premises, except in a court of equity ; and to the end that the said C. B., who is- made party defendant to this bill, may be required to make full and direct answer to the same ; that your oratrix may be divorced and forever freed from the bonds of matrimony now existing between your oratrix and the said C. B. .; that the care, custody and education of the said child may be awarded to your oratrix ; that your honor will decree to your oratrix the household furniture and property of the 506 BILLS FOE DIVORCE. Conviction of Crime, etc. said C. B., and such sums of money to be paid by the said C. B. to her as your honor may deem necessary and proper for the maintenance of your oratrix and the said child ; and that the said C. B. may be required to pay to your oratrix a sufficient sum of money to enable her to employ counsel and to carry on this suit, and for the support of herself and said child during the pendency thereof ; and that the said C. B. may be restrained by the order and injunction of this honorable court, from selling, assigning or otherwise disposing of the said household furniture or property, or from in any manner interfering with your oratrix or the said child until the further order of this court ; and that your oratrix may have such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please your honor, etc. {Praying process and for an imjimction, and adding affidavit as m No. 177, ante, page 494-) SECTION XI. CONVICTION OF CEIME, ETC. Where either party has been convicted of felony or other infamous crime, the statute of Illinois authorizes the injured party to obtain a divorce on that ground. It is no ground for a divorce, within the statute, that a party has committed a larceny, where no conviction has been had. The statute declares, that, to be a cause of divorce, the party must be convicted of felony, or other infamous crime. But a court has no authority to convict a defendant of a felony or infamous crime in a suit for a divorce, and then make such conviction the basis of a decree of divorce, (m) It is said that conviction and imprisonment in another juris- diction is not a cause of divorce in New Hampshire, (n) (m) Thomas vs. Thomas, 51 111. 162 ; see Mormon vb. Harmon, 16 111. 85 ; Vtsler vs. Utsler, Wright, Ch. 627. (n) Martin vs. Martin, 47 N. H. 52; see Sherman vs. Sherman, 18 Texas, 621. BILLS FOR DIVORCE. 507 Form of Bill Charging Conviction of Crime. No. 183. Bill for a divorce, dtarging a conviction of a felony etc.; praying to he allowed to resume maiden name. To the Honorable — : — , Judge of the Court of the County of , in the State of Illinois, In Chancery sitting : Your oratrix, A. B., of, etc., respectfully represents unto your honor, that she is an actual resident of the said county of , and is now, and has been for years, a resident of the State of Illinois; that your oratrix' maiden name was A .M., and she is the daughter of L. M., of, etc. ; that on, etc., at, etc., she was lawfully married to one C. B., of, etc., and from that time until, etc., she lived and cohabited with him as his wife, and always conducted herself towards him as a true, faithful and affectionate wife. Your oratrix further represents, that on, etc., at, etc., at a term of the court of the county of , in said state, begun and held in said county, on, etc., before the Honorable , judge thereof, presiding, the said C. B. was duly convicted of the crime of larceny, and was then and there, by the judgment of. that court, sentenced to confinement in the penitentiary of said state for the term of years, at hard labor, which said judgment" still remains in full force and effect, not reversed, annulled or vacated, as by the records and proceedings in said court now remaining, reference thereto being had, will more fully appear. Forasmuch, therefore, as your oratrix is without remedy in the premises, except in a court of equity ; and to the end that the said C. B., who is made party defendant to this bill, may be required to make full and direct answer to the same ; and that the said marriage between your oratrix and the said C. B. may be dissolved and declared null and void by the decree of this court, according to the statute in such case made and pro- vided ; and that your oratrix may be allowed to resume her maiden name of A. M., as before marriage ; and that your oratrix may have such other and further relief in the premises as equity may require and to your honor may seem meet. May it please your, honor, etc. {Pray process as m No. 174, ante, page 489.) 508 BILLS FOR DIVORCE. Defenses to — Condonation. SECTION XII. DEFENSES TO. The defendant may appear, except, demur, plead or answer the bill of complaint as in other cases in chancery. The statute in regard to divorces provides that (§ 6.) " The process, practice and proceedings under this act shall be the same as in other cases in chancery, except as herein otherwise provided, and except that the answer of the defend- ant need not be on oath." The statute does not require an answer to be sworn to, but provides that it need not, and is different from the general chancery practice in that respect. The statute having dis- pensed with such oath, the defendant acquires no advantage by swearing to his answer in such a case. Such a sworn answer has no more effect than the bill, and is not evi- dence, (o) But a verified answer may be read as an affidavit on a motion for alimony, pendente Ute. (p) If the complainant is not a resident of the county where the suit is brought, and that fact does not appear upon the face of the bill, the objection can only be raised by a plea. If a de- fendant proceeds to answer the bill, the objection of want of jurisdiction is waived, (q) Nothing in an answer will be considered as . impertinent which tends to show the conduct of either party against the other. In addition to a denial of the treatment alleged in the bill, the defendant may. allege, in his answer, conduct on the part of the complainant calculated to irritate and provoke him, and to excite his jealousy or alienate his affections from her. (r) Condonation. — If the injured party cohabits with the other subsequent to an adulterous offense, having the ability to prove (o) Conesey vs. Conesey, 60 111. 180. (p) Anthony vs. Anthony, 3 Stockt. N. J. 70. (q) Parker vs. Parker, 61 111. 369. (r) Hopper vs. Sopper, 11 Paige, Ch. 46. BILLS FOE DIVORCE. 509 Defenses to — Condonation. the offense, it will be a bar to a proceeding for divorce. («) But the effect of cohabitation, as condonation of adultery, is less binding upon the wife than upon the husband. (£) And con- donation is always accompanied with the implied condition that the injury shall not be repeated. Thus, cruelty of an aggravated character may revive the offense of adultery im- pliedly condoned, and when properly brought to the knowl- edge of the court, during the pendency of a suit for a divorce for adultery, w^l authorize a decree for a divorce, (u) Condonation of the adultery is a conditional forgiveness of the offense, and a repetition of the adultery revives the offense, (v) Cohabitation, after extreme and repeated cruelty, is not a bar to divorce for that cause, although it is so in cases of adultery. The distinction between the cases seems to be founded on a just conception of the conjugal relations, {w) Although it has been held, that where a wife continued to live with her husband after acts of violence, it is proof that she did not consider herself in danger, (x) Condonation on the part of the wife is not pressed with the same rigor as condonation on the part of the husband; yet where the wife has forgiven the husband for injuries inflicted (a) Davis vs. Davis, 19 DL 334 ; Williamson vs. Williamson, 1 Johns. Ch. 488 ; Johnson vs. Johnson, 14 Wend. 637 ; S. G. 4 Paige, Ch. 460 ; S. G. 1 Edw. Ch. 439 ; Phillips vs. Phillips, 4 Blaekf. 131 ; Hall vs. Hall, 4 N. H. 462 ; Dettiber vs. Delliber, 9 Conn. 233 ; Anon. lb. 147 ; North vs. North, 5 Mass. 320 ; Quincy vs. Quincy, 10 N. H. 272 ; Master vs. Master, 15 N. H. 159 ; Buckholts vs. Buekholts, 24 Geo. 238 ; Armstrong vs. Armstrong, 3 George, Miss. 279; Twyman vs. Toyman, 27 Mo. 383 ; Marsh vs. Marsh, 2 Beasley, N.J. 281; Trumbull vs. Trumbull, 23 Ark. 615. (<) Johnson vs. Johnson, 1 Edw. Ch. 439 ; Armstrong vs. Armstrong, 3 George, Miss. 279 ; Hollister vs. SoUister, 6 Barr, 449. («) Davis vs. Davis, 19 111. 334 ; Odom vs. Odom, 36 Geo. 286 ; Armstrong vs. Armstrong, 27 Ind. 186; Farnham vs. Farnham, 73 111. 497. (r) Smith vs. Smith, 4 Paige, Ch. 432; Johnson vs. Johnson, lb. 460; Collier vs. Collier, 1 Dev. 352. (w) Hollister ys Hollister, 6 Barr, 449; Whispell vs. Whispell, iBaib. 217; Eeese vs. Reese, 23 Ala. 785; Nogees vs. Nogees, 7 Texas, 538. (x) Griffin vs. Griffin, 8 B. Monr. 120; see Phillips vs. Phillips, 1 Brad- well, App. Ct. E. 245. 510 BILLS FOR DIVORCE. Defenses to — Recrimination — Injunction. upon her, and the parties have become reconciled, courts are averse to listen to the old grounds of complaint, (y) Recrimination. — A husband cannot resist a divorce for adul- tery by setting up desertion by the wife ; (2) nor can a wife set up cruelty of the husband as a defense to a bill filed against her for adultery, (a) Where a husband and wife each file a bill for divorce, the one for cruelty and the other for adultery, and both the charges are sustained, each will be considered a bar to the other, and a divorce will be denied to both. (5) If the party seeking a divorce on the ground of adultery has been guilty of the same offense, either before or after the offense committed by the other, it is a conclusive bar to the suit, (c) But proof of adultery on the part of the complainant is no bar to a divorce grounded on the subsequent adultery of the defendant, if there has been an intervening condonation of the complainant's offense, (d) SECTION XIII. INJUNCTIONS IN. The statute provides that (§ 12). " The court may prohibit the husband from inter- posing any restraint on the personal liberty of the wife during the pendency of the suit." (y) Barnes vs. Dames, 55 Barb. 130 ; Bowie vs. Borne, 3 Md. Ch. Decis. 51 ; Sterling vs. Sterling, 12 Geo. 201. (s) 4 Porter, Ind. R. 467 ; Wood vs. Wood, 5 Ired. Eq. 674 ; but see AUm vs. Allen, 4 Allen, Mass. 39. (a) Betz vs. Bets, 2 Rob. N. Y. 694 ; Monk vs. Monk, 7 Rob. N. T. 153. ' (6) Ribet vs. Bibet, 39 Ala. 348. (c) Smith vs. Smith, 4 Paige, Ch. 432 ; Pastoiet vs. Pastoiet, 6 Mass. 276 : Christiariberry vs. Christianberry, 3 Blackf. 203 ; Mattox vs. Mattox, 2 Ham. 0. 233 ; Holmes vs. Holmes, Walk. Miss. 474 ; Burdell vs. BurdeU, 2 Barb. 473 ; Leseuer vs. Leseuer, 31 Barb. 330 ; Olapp vs. Clapp, 97 Mass. 531. (d) Master vs. Master, 15 N. H. 159. BILLS FOE DIVORCE. 511 Injunction — Custody of Children, etc. Custody of children, pendente lite. — (§ 13.) " The court may, on the application of either party, make such order con- cerning the custody and care of the minor children of the parties during the pendency of the suit, as may be deemed expedient, and for the benefit of the children." When proper.— It may be stated, as a general rule, that pending proceedings for a divorce, upon a proper ease shown, the husband may be restrained from interfering with the cus- tody of the children, or of property in the possession of the wife, (e) So a husband will be enjoined from disposing of his property in such manner as to prevent the wife from obtaining alimony or a separate maintenance, on a bill pending for that purpose. (/) Mere apprehension of abandonment by the husband, and a failure to support the wife, is not sufficient cause to warrant the interposition, of equity in restraining him from disposing of his property, since injunctions are not usually allowed upon mere apprehensions of future wrong, (g) And where a preliminary injunction has been allowed in such a case, it will be dissolved on the coming in of the answer denying any intention on the part of the husband to abandon the wife. (A) An injunction may be obtained by the wife to restrain the husband from encumbering as well as from selling his pro- perty, (j) But the wife will not be allowed in such case to restrain the husband from using his property for ,the support of himself and his children, nor will he be enjoined from using the tools and implements of his trade, or from carrying on his ordinary business. (J) (e) Wilson vs. Wilson, Wright, O. Ch. 129 ; Edwards vs. Edwcvrds, lb. 308. (/) Questel vs. Questel, Wright, Ch. 492 ; Johnston vs. Johnston, lb. 454 ; Baseomb vs. Bascomb, lb. 632 ; Ricketts vs. Ricketts, 4 Gill, 105 ; High on Inj.§843. (g) Anshute vs. Anshutz, 1 C. E. Green, N. J. 162. (A) High on Inj. § 844 ; Anshutz vs. Anshute, 1 C. E. Green N. J. 162. (i) Vanzant vs. Yanzant, 23 HI. 536. (j) Rose vs. Rose, 11 Paige, Ch. 166 ; High on Inj. § 845. 512 BILLS FOE DIVORCE.. Hearing and Decree, etc. On granting a decree of divorce in favor of the wife, it k improper to perpetually enjoin the husband from selling hie property to insure the payment of alimony, (k) SECTION XIV. HEARING AND DECREES. Trial by a jury. — The statute provides that (§ 7.) " When the defendant appears and denies the charges in the complainant's bill for a divorce, either party shall have the right to have the cause tried by a jury." Forming an issue. — The court may direct an issue to be tried by the jury, as the same may be made up by the plead- ings. And it would tend to promote justice, and aid the court in its decree, if the jury were instructed to find on each issue raised by the pleadings and proof, instead of finding a general verdict. (Z) The issues, if there be more than one, should be distinct and explicit, presenting in each a single question, so clearly that it cannot be misunderstood by the jury, and their verdict should be responsive to each, (m) No. 184- Order directing issues of fact to he tried by a jury in a divorce suit. (Caption, and title of cause as m Wo. 79, ante, page 198.) It is ordered that upon the pleadings filed in this cause, the following issues of fact be submitted to and tried by the jury, to wit : 1. Has the defendant committed adultery subsequently to his marriage with the complainant, in manner and form as charged in the bill ? 2. Has the defendant been guilty of extreme and repeated cruelty towards the complainant, in manner and form, as charged in the bill % (Let the questions correspond with the issues presented by the pleadings.) Qc) Errisiman vs. Errusman, 25 111. 136. (Z) Von Olahn vs. Von Glahn, 46 111. 134. (m) Ante, p. 190 , Milk vs. Moore, 39 111. 588. BILLS FOR DIVOKCE. 513 Hearing and Decree — In case of Default, etc. In case of default. — The statute provides that (§ 8.) " If the bill is taken as confessed, the court shall proceed to hear the cause by examination of witnesses in open court, and in no ease of default shall the court grant a divorce, unless the judge is satisfied that all proper means have been taken to notify the defendant of the pendency of the suit, and that the cause of divorce has been fully proven by reliable witnesses. Whenever the judge is satisfied that the interests of the defendant require it, the court may order such additional notice as equity may seem to require." A court has no authority to decree a divorce on a bill taken for confessed, without proof to sustain its allegations. The court may, under the statute, examine witnesses orally in court, or it may, under its general chancery powers, refer the cause to the master to take proofs, or depositions in writing may be used ; but in some way, the facts, to justify granting the divorce, must be proven to the court. (») In proceedings for a divorce, where the bill is taken for con- fessed, it is sufficient that the record shows proof was heard sustaining the allegations of the bill, without preserving the evidence in the record, (o) Confessions of defendant. — The statute provides that (§ 9.) " No confession of the defendant shall be taken as evidence unless the court or jury shall be satisfied that such confession was made in sincerity and without fraud or collusion to enable the complainant to obtain a divorce." But in a matter of divorce, it will be presumed that the court granting it, if it received admissions as evidence, properly scrutinized the evidence, so as to be satisfied that the admissions were made in sincerity and without fraud. (jo>) ■ Mere confession of adultery is not suificient in itself to sup- (n) ShUUnger vs. ShiUinger, 14 El. 147. (p) Davy vs. Davis, 30 HI. 180 ; Hawes vs. Hawes', 33 111. 287 ; ShiUinger vb. ShiUinger, 14 111. 147. (p) Bergen vs. Bergen, 22 Dl 187 33 514 BILLS FOE DIVOECE. Hearing and Decree — Form of Decree of Divorce. port the charge, (g) The proof must be clear and positive, (r) It must be proved by direct or circumstantial evidence, and not on mere suspicion, or even on bad reputation, (s) Collusion. — The statute further provides that (§ 10.) " If it shall appear, to the satisfaction of the court, that the injury complained of was obtained by the collusion of the parties, or done with the assent of the complainant for the purpose of obtaining a divorce, or that the complainant was consenting thereto, or that both parties have been guilty of adultery, when adultery is the ground of complaint, then no divorce shall be decreed." Where there is collusion between the parties, a divorce will not be granted, (t) Proof of foreign marriages. — The statute provides that (§ 11.) " A marriage which may have been celebrated or had in any foreign state or country, may be proved by the acknowl- edgment of the parties, their cohabitation, and other circum- stantial testimony." Changing of wife's name. — The statute authorizes, (§ 16.) " The court, upon granting to a woman a divorce from the bonds of matrimony, may allow her to resume her maiden name, or the name of any former husband." Wo. 185. Decree of divorce on the ground of adultery, pro confesso ; changing name of complainant. {Caption, and title of cause as in Wo. 79, ante, page 198.) This cause having come on to be heard upon the bill of com- plaint therein, taken as confessed by the defendant, and the oral testimony of witnesses sworn and examined in open court ; and the court having heard the arguments of counsel, and being (?) Hansley vs. Hansley, 10 Ired. Eq. 506 ; Bergen vs. Bergen, 22 m. 187 ; Write vs. Write, 45 N. H. 121 ; Derby vs. Derby, 6 C. E. Greene, N. J. 36. (r) Berekmans vs. Berekmans, 2 C. E. Greene, N. J. 453 ; Clare vs. Clan, 4 C. E. Greene, N. J. 37. (*) Thomas vs. Thomas, 51 111. 162. (t) Wolfva.Wolf, Wright, Ch. 243. BILLS FOE DIVOECE. 515 Form of Decrees — For Adultery, etc fully advised in the premises, and on consideration thereof, finds that all the material facts charged in the said bill are true, and that the defendant has committed adultery subse- quently to his marriage with the complainant ; It is therefore ordered, adjudged and decreed, by the court, that the marriage between the complainant and the defendant be dissolved, and the same is hereby dissolved accordingly ; and the said parties are, and each of them is, freed from the obligations thereof. It is further ordered, adjudged and decreed, that the complainant be allowed to resume her maiden name of A. M., the same as if such marriage had not taken place. It is further ordered, that the defendant pay the costs and charges of this suit, and that execution issue therefor. No. 186. Decree for divorce on the ground of adultery ;■ and for the custody of children, pro confesso. {Caption, and title of cause as in Wo. 79, ante, page 198.) This cause having come 6n to be heard upon the bill of complaint therein ; and the defendant having been duly served with the process of summons in this cause, more than ten days prior to the first day of the present term of this court ; and having been three times called in open court, to appear, except, demur, plead or answer the complainant's bill, came not, but herein made default ; and the court having ordered that the said bill of complaint and the matters therein contained be taken as confessed ; and the court having heard the oral testi- mony of witnesses, sworn and examined in open court ; and having heard the arguments of counsel, and being fully advised in the premises, and on consideration thereof doth find that all the material facts alleged in the said bill are true, and that the defendant has committed adultery subsequently, to his mar- riage with the complainant ; and that he is a person wholly unfit to have the care, custody, control or education of children ; It is therefore ordered, adjudged and decreed, by the court, that the marriage between the complainant and defendant be dissolved, and the same is hereby dissolved accordingly ; and the parties are, and each of them is, freed from the obligations thereof. It is further ofdered, adjudged and decreed, by the court, that the complainant have the care, custody, control and educa- tion of the said children, to wit., C. B. and D. B., without any interference on the part of the defendant, until the further order of this court. 536 BILLS FOR DIVORCE. Form of Decree of Divorce, etc. — Alimony and Expenses. It is further ordered, that the defendant pay the costs of this suit, and that execution issue therefor. And the court reserves the consideration of alimony for a future order and decree herein. N~o. 187. Decree for dimorce on the ground of extreme and repeated cruelty, upon verdict of a jury. {Caption, and title of cause as in No. 79, ante, page 198.) This cause having come on to he heard upon the hill of complaint herein, the answer of the defendant thereto, and the replication of the complainant to such answer ; and a jury hav- ing heen called, selected and sworn, to wit : {Here insert the names of the jurors^) to try the issue herein, viz. : whether the defendant has been guilty of extreme and repeated cruelty towards the complainant, in manner and form as charged in the complainant's bill of complaint ; and the said trial having proceeded, and the said jury having heard the evidence offered by the respective parties, and the arguments of counsel, found the said issue in the affirmative; and the defendant having interposed a motion to set aside said verdict and for a new trial ; and the court having heard the arguments of counsel thereon, and the reasons in support thereof, and, on consideration of the same, having overruled said motion ; It is therefore ordered, adjudged and decreed, by the court, that the marriage between the complainant and the defendant be dissolved, and the same is hereby dissolved accordingly; and the said parties are, and each of them is, freed from the obligations thereof. And the court not being sufficiently ad- vised as to the question of alimony in said cause, does reserve the consideration thereof until a future and further hearing thereon. SECTION XV. ALIMONY AND EXPENSES. Pendente lite. — It is provided by the statute that (§ 15.) " In all cases of divorce, the court may require the husband to pay to the wife, or pay into court for her use during the pendency of the suit, such sum or sums of money as may enable her to maintain or defend the suit ; and in every Buit for a divorce, the wife, when it is just and equitable, shall be entitled to alimony during the pendency of the suit. And in case of appeal or writ of error by the husband, the court in BILLS FOR DIVORCE. 517 Alimony and Expenses. which the decree or order is rendered, may grant and enforce the payment of such money for her defense, and such equitable alimony during the pendency of the appeal or writ of error, as to such court shall seem reasonable and proper." Alimony pendente lite is a common law right, and courts of chancery are bound to enforce it as much as any other pro- vision of the common law. (u) When a suit is pending for a divorce, it is legally improper for the parties to cohabit together, (v) This single fact, there- fore, is sufficient to entitle the wife, who has not sufficient pro- perty of her own, whether complainant or defendant, to alimony during its pendency, (w) Upon the same principle, the hus- band, who has all the money, while the wife has none, is bound to furnish her, whether plaintiff or defendant, with the means to defray her expenses in the suit ; otherwise she would be denied justice, (x) "Where the wife has sufficient separate property of her own, the reason for giving her either temporary alimony, or money to defray her expenses in the suit does not exist, and she will not be entitled to either, (y) The allowance of alimony pendente lite is discretionary with the court, {z) It is therefore necessary that a meritorious case be presented for its consideration. The court will seldom deny alimony to the wife when she is made defendant. If a man brings suit against his wife, he should be prepared to. furnish her means for her defense. (u) Petrie vs. The People, 40 111. 334; see Dinet vs. Pfirshing, 86 III. 83. (o) SuUivan vs. BuUivan, 2 Add. 299, 2 Eng. Eccl. R. 314; Clowes vs. Clowes, 9 Jar. 356 ; Bishop on Mar. and Div. § S27. (w) Jones vs. Jones, 2 Barb. Ch. R. 146 ; Holmes vs. Holmes, Walker, Ch. R. 474 ; Wilson vs. Wilson, 2 Hagg. Ch. R. 203 ; Armstrong vs. Armstrong, 35 m. 109. (a) D'AguUwr vs. D'AguUar, 1 Hagg. Ch. R. 773, 3 Eng. Eccl. R. 329, 338; 6 Eng. Eccl. R. 372; Holmes vs. Holmes, Walker, Ch. R. 474; Holmes vs. Holmes, 2 Lee, 90 ; Thirst vs. Tursi, 2 Lee, 92 ; Armstrong vs. Armstrong, 35 111. 109 ; Logan vs. Logan, 2 B. Monr. 142 ; Rose vs. Rose, 11 Paige, Ch. 166; Newman vs. Newman, 69 111. 167. {y) Bishop on Mar. and Div. § 572; Poynt. on Mar. and Div. 260, 261 ; Barllelt vs. Bartlett, 1 Clarke, N. Y. 460. (z) Bergen vs. Bergen, 22 111. 187; see Blake vs. Blake, 80 111. 523. 518 BILLS FOE DIVORCE. Alimony, etc — Petition for, etc Prosecuting as a poor person. — The statute provides that (§ 14.) " Any woman suing for a divorce who shall make it appear satisfactorily to the court that she is poor, and unahle to pay the expenses of such suit, shall be allowed by the court to prosecute her complaint without costs ; and in such cases no fees shall be charged by the officers of the court." Questions of guilt not considered. — The question of the guilt or innocence of the wife will not be entered into in settling the allowance of alimony pendente lite, by hearing conflicting affidavits, (a) She must, however, in her petition for alimonj, deny the charges contained in the bill, or show some valid defense to the husband's suit, unless she has denied . it on oath in her answer. (5) The husband may, however, it is said, show that her mis- conduct was so glaring that no aid should be given to her to prosecute her suit ; or, if she had been charged with adultery, that she was still living with the partner of her guilt, (e) How applied for. — In a suit for a divorce, the application for alimony and expenses should be made upon petition, after due notice to the opposite party, (d) No. 188. Petition for alimony pendente lite, and expenses. In the Court. A. B. | Term, 18 — . vs. V In Chancery for a Divorce. B. B. ) To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : The petition of B. B., of, etc., the above-named defendant, respectfully represents unto your honor, that the complainant, (a) Wood vs. Wood, 2 Paige, Ch. 114 ; Osgood vs. Osgood, Id. 621 ; Smith vs. Smith, 1 Edw. Ch. 255. (b) Osgood vs. Osgood, 2 Paige, Ch. 621 ; Wood vs. Wood, lb. 114 (c) Fowler vs. Tmder, 4 Abbott, N. T. 412 ; see Griffin vs. Griffin, 21 How. N. T. 364; S. a 23 How. N. T. 189. ' (d) Longfellow vs. Longfellow, 1 Clarke, N. T. 344 ; 2 Barb. Ch. Pr. 268. BILLS FOE DIVOEOE. 519 Petition for Alimony — Order of Reference as to. A. B., has lately filed his bill in this court, against your peti- tioner, to obtain a decree dissolving the marriage between him and your petitioner, charging your petitioner with the crime of adultery (or whatever the charge may be) ; that your petitioner has put in her answer to the bill of complaint denying such charge, as by reference to the said answer, now on file in said cause, will more fully appear. And your petitioner further represents, that she is wholly destitute of the mfeans of supporting herself during the pendency of this suit, and of carrying on the "defense, and defraying the costs and expenses attending the same ; that your petitioner has been informed and believes, and so states the facts to be, that the complainant has real estate and personal property to a large amount, and amply sufficient to enable him to advance thereout, to your petitioner, such sums as may be necessary for the above- mentioned purpose ; that your petitioner is informed and be- lieves, that the complainant is the owner of property to the amount of more than -= — dollars, and that his annual income is about dollars. Tour petitioner, therefore, prays that the complainant may, by an order of this court, be required to pay to your petitioner a reasonable sum for her support and maintenance during the pendency of this suit ; and such sum or sums of money as may be necessary to enable her to carry on her defense, to pay solic- itor's fees, and to defray the other necessary costs and expenses thereof; and for such other and further relief in the premises as to your honor may seem meet. Subscribed and sworn to, etc. C. D. The amount of allowance. — The amount of the allowance of alimony pendente lite, and for expenses, may be settled by the court without a reference, whenever the facts are sufficiently before it. (e) In general, however, a reference to the master is directed, (f) No. 189. Order of reference as to alimony pendente lite, and {Caption, and title of cause as in No. 79, ante, page 198.) On reading and filing the petition of the defendant in this cause, duly verified, and the affidavits accompanying the same, («) Hammond vs. Hammond, 1 Clarke, X. Y. 151 ; Monroy vs. Monroy, 1 Edw. Ch. 382. (/) 2 Barb. Ch. Pr. 268 ; 2 Van Santv. Eq. Pr. 275-276. 5540 BILLS FOE DIVOKCE. Beport of Master as to Alimony. and the affidavits by the complainant in opposition thereto, and upon hearing the arguments of the counsel for the respective parties, and the court not being . sufficiently advised in the premises, doth order that it be referred to the master in chancery of this court to inquire and report what would be a reasonable sum to be allowed to the defendant for her support and maintenance during the pendency of this suit And it is further ordered, that the said master inquire and report what would be a reasonable sum to be allowed to the defendant, to enable her to carry on her defense in this suit, and to defray the necessary costs and expenses thereof; and that the said master report as to the times and manner in which the said sums should be paid by the complainant. , ' JSTo. 190. Report of master as to allowance of alimony. {Title of cause as in No. 188, ante, page 518.) To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : In pursuance of an order of this court entered on, etc., whereby it was referred to me, the undersigned, master in chancery, to inquire and report what would be a reasonable sum to be allowed, etc. {as m the order), I, the said master, do report : That having given due notice to the respective parties of the time and place of the hearing thereof, and having been attended by the solicitors for the complainant and defendant respectively, and having heard the allegations aDd proofs as to the value of the complainant's {or defendant's) estate at the time of the commencement of this suit, and the allowance proper to be made, I certify and report, that the complainant {or defendant) has real estate, to wit, etc. {Here describe it), of the value of about dollars, the yearly income of which is about dollars ; that the whole personal property of the complainant {or defendant) consists of, etc., and its value is about dollars ; that two children of the complainant and defendant live with and are entirely supported by, etc., one being a boy, aged years, and the other a girl, aged years. I further report that, in my opinion, the sum of dollars a year, payable monthly, is a suitable allowance for the present separate maintenance and alimony of the defendant {or com- plainant;) that it ought to be payable from, etc. ; that dollars would be a reasonable sum to be allowed to the defend- BILLS FOR DIVOECE. 521 Orders for Alimony — Permanent Alimony, etc. ant (or complainant) to enable her to carry on her defense (or prosecution), and defray the necessary costs and expenses in this suit ; and that my fees amount to dollars. All of which is respectfully submitted. Dated, etc. , Master in Chancery. No. 191. Order confirming master's report of alimony, etc. (Caption, and UUe of cause as in No. 79, ante, page 198.) And now, on this day, comes the master in chancery of this court, and makes report of what would be a reasonable sum to be allowed, etc., (as in report;) and the court having heard the arguments and allegations of the counsel for the respect- ive parties, in support of and against the confirmation of said report, and having considered the same, and being fully ad- vised in the premises ; It is ordered, that the report of the master in chancery afore- said, be, and the same is in all things, approved and confirmed ; and that the complainant (or defendant) do pay to the defend- ant, etc. (As in the report?) No. 192. Interlocutory decree for alimony, etc., pendente lite, and expenses, without reference. (Caption, and title of cause as in No. 79, ante, page 198.) And now, on this day, came the complainant, by L. M., her solicitor, and the defendant, by R. S., his solicitor, and this cause coming on to be heard upon the application of the com- plainant for alimony pendente Ute, and the court having heard the evidence, and the arguments of counsel for the respective parties, and being fully advised in the premises, doth order, adjudge and decree that the defendant pay to the complainant, or her solicitor, the sum of dollars on, etc., and that he pay to the complainant, or her solicitor, the further sum of dollars on or before the 1st day of each and every month, commencing on, etc., for her support during the pendency of this suit. Permanent alimony and maintenance. — The statute pro- vides that (§ 1§,) "When a divorce shall be decreed the court may make, such order touching the alimony and maintenance of the wife, the care, custody and support of the children, or any of them, as, from the circumstances of the parties and the nature 522 BILLS FOE DIYOECE. Permanent Alimony, etc. of the case, shall be fit, reasonable and just ; and in case the wife be complainant, to order the defendant to give reasonable security for such alimony and maintenance, or may enforce the payment of such alimony and maintenance in any other manner consistent with the rules and practice of the court. And the court may. on application, from time to time, make such alterations, in the allowance of alimony and maintenance, and the care, custody and support of the children, as shall appear reasonable and proper. (§ 19.) '• When a divorce is granted to a woman who shall, in good faith, have intermarried with a man having at the time of such marriage another wife, or wives, living, the court may, nevertheless, allow the complainant alimony and maintenance the same as in other cases of divorce ; but no such allowance shall be made as will be inconsistent with the rights of such other wife or wives, which shall first be ascertained by the court before the granting of such alimony or maintenance." Sales of real estate to satisfy decree. — The statute further provides that (§ 20.) " Whenever, in any case of divorce, a decree for ali- mony or maintenance is made a lien on any real estate to secure the payment of any money to become due by installments, and a sale of such real estate shall become necessary to satisfy any of such installments, the property shall be sold subject to the lien of the installments not then due, unless the court shall, at the time, direct otherwise, and subsequent sales may, from time to time, be made to enforce such lien as the installments may become due, unless all installments are paid." The allowance of alimony for the wife is discretionary with the court, and so also is the allowance for the maintenance of infant children, {g) And the supreme court will not disturb the decree of the court below on a question of alimony, unless manifest injustice has been done, {h) Alimony will be granted in proportion to the wants of the party asking it, and the ability of the person who is to pay (g) Bergen vs. Bergen, 22 IE. 187; Plaster vs. Plaster, 67 111. 93. (h) Steteartson vs. Stetvartson, 15 111. 145; see Ross vs. Ross, 78 111. 402. BILLS FOE DIVOECB. 523 Alimony — Decree for, etc. it. And it may at any time be increased or diminished, (i) It will be allowed in such form as will best meet the condition of the parties, and make the provisions'a sure reliance. The court may decree the lands of the defendant to the complain- ant in fee, and may change, after the decree, the allowance, in any manner consistent with equitable principles. (J) Upon a decree of divorce, instead of directing that the de- fendant" be perpetually enjoined from selling his property, and that he be imprisoned until he give bond and security for the payment of alimony, the decree should make the alimony a lien upon his reality, to be secured by mortgage ; the sale to be enjoined until such mortgage be completed, (k) An allowance of a sum in gross in lieu of alimony, is a bar to all further claims therefor. ( I ) Title of property held by one party, which equitably belongs to the other. — It is provided by the statute, that (§ 17.) " Whenever a divorce is granted, if it shall appear to the court that either party holds the title to property equitably belonging to the other, the court may compel conveyance thereof to be made to the party entitled to the same, upon such terms as it shall deem equitable." JVb. 193. Decree for permanent alimony {Caption, and title of cause as m No. 79, ante, page 198.) This cause again coming on to be heard, as to the allowance of alimony to be paid by the defendant to the complainant ; upon the bill of complaint herein, the answer thereto, the replication of the complainant to such answer, and the proofs taken in said cause, and the testimony introduced and heard in open court; and the court having heretofore rendered a decree in said cause, dissolving the marriage between the com- (i) Foote vs. Foots, 22 Dl 425 ; Parker vs. Parker, 61 111. 369. (j) Wheeler vs. Wheeler, 18 Dl. 39 ; Armstrong vs. Armstrong, 35 111. 109 ; Bergen vs. Bergen, 22 111. 189 ; Miff vs. Joliff, 32 111. 527 ; see Von Glahn vs. Von Glahn, 46 111. 134 ; Keating vs. Keating, 48 Dl. 241 ; Plaster vs. Plas- ter, 53 HI. 445 ; Wightman vs. Wightman, 45 111. 167. (k) Errisman vs. Errisman, 25 III. 136 ; Keating vs. Keating, 48 111. 242. (0 Plaster vs. Plaster, 47 111. 290 524 BILLS FOR DIVORCE. Decree for Alimony. plainant and defendant; and having reserved the consideration of the question of alimony ; and +he counsel for the respective parties having been heard, and the court being fully advised in the premises, and on consideration thereof; It is ordered, adjudged and decreed, by the court, that the defendant pay to the complainant the sum of dollars, during each and every year, commencing on, etc., and payable quarterly in advance, until further ordered by this court ; and that the defendant pay the costs of this suit to be taxed by the clerk of this court, within days from the rendition of this decree ; and that in default of the payment of any of said sums, in the manner, and at the times herein provided, that execution issue therefor. It is further ordered* adjudged and decreed, by the court, that this decree shall be and remain a lien upon all the lands and tenements of the defendant, until the defendant shall execute a good and sufficient mortgage upon his real estate, or so much thereof as may be necessary to secure the prompt pay- ment of the sums herein ordered to be paid, and such mort- gage be approved by the court, or under its direction. For other Illinois cases relating to alimony, see Chestnut vs. Chestnut, 77 111.346; Deenis vs. Deems, 79 111. 74; Andrews vs. Andrews, 69 111. 609 ; Becker vs. Becker, 79 111. 532 ; Dinet vs. Eigenmahn, 80 111. 274 ; Resser vs. Messer % 82 111. 442. CHAPTEK XXXI11. 8EPAEATE MAINTENANCE. Section 1. When Granted. 2. Proceedings to Obtain. 8. Defenses to. 4. Practice in, and Decrees. SECTION I. WHEN GRANTED. The statute of Illinois provides that married women who, without their fault, now live, or hereafter may live separate and apart from their husbands, may have their remedy in equity in their own names respectively, against their said husbands, for a reasonable support and maintenance, while they so live or have so lived separate and apart; and in determining the amount to be allowed, the court shall have reference to the condition of the parties in life, and the circumstances of the respective cases ; and the court may grant allowance to enable the wife to prosecute her suit as in cases of divorce. Ground of separate maintenance. — We apprehend that the phrase " without their fault," used in the statute, has the same significance as the statute of New York allowing a separation and limited divorce. And what will justify a proceeding in the one case, is applicable to the other. At common law such a proceeding was unknown ; it is, therefore, purely a statutory remedy. In New York, an action for limited divorce or separation, may be brought for the following causes : first, the cruel and inhuman treatment, by the husband, of the wife ; second, such conduct on the part of the husband towards his wife, as may render it unsafe and improper for her to cohabit with him ; and third, the abandonment of the wife by the husband, and his refusal or neglect to provide for her. 526 SEPARATE MAINTENANCE. When Granted — Grounds for. In the case of a separation sought on the ground of cruel and inhuman treatment, it was held, in New York, that the cruelty which will entitle the party to such a judgment, is that kind of cruelty which endangers the life or health of the complain- ant, and renders cohabitation unsafe, (a) But to constitute cruelty, bodily injury or acts of personal violence, are not necessary. It is made out if there is a series of unkind treat- ment, accompanied by words of menace, creating a reasonable apprehension that bodily injury may result unless prevented ; and the word " unsafe," in the New York statute, means the same thing. (5) Words of menace, accompanied by a proba- bility of bodily violence, will be sufficient; and it may be enough if he inflict indignity merely, and threaten pain, (c) But the causes for apprehension must be weighty, and show an impossibility that the duties of the marriage life can be dis- charged, (d ) Thus, the husband's refusal to permit his wife to attend church, of which she is a member, is not a ground for separation, (e) Nor is occasional, or even frequent intoxication a ground for separation ; nor do occasional sallies of passion, from whatever cause, amount to legal cruelty, so long as they do not threaten bodily harm. (_/) An allowance will not be allowed to a wife on account of the cruelty of her husband, if the violence complained of was induced by a sufficient provocation on her part, (g) As to a proceeding for separate maintenance, on the ground of abandonment, it has been held, that, there must be shown both an abandonment and a neglect to provide. (A) For any of the grounds for divorce, alluded to in the pre- ceding chapter, a bill for separate maintenance no doubt could () Even if he has no property, and depends merely upon his labor for support, he may be compelled to apply a part of his daily earnings to this purpose, (q) Where a separation is decreed, and the wife's conduct is blameless, an allowance equal to what the law gives her on the death of her husband is reasonable, (r) Thus, in a judg- ment for separation on the ground of abandonment, a provision that the wife have the use of one-third of his real estate during her life, and the same proportion of his personal estate abso- lutely, was held to be proper. («) When the property is not sufficient for the support of all (m) Lawrence vs. Lawrence, 3 Paige, Ch. 267 ; Amos vs. Amos, 3 Green, N. J. Ch. 171 ; Turner vs. Turner, 44 Ala. 437. (n\ lb. ; Morrell vs. MorreU, 2 Barb. S. C. R. 480. (o) Germond vs. Germond, 4 Paige, Ch. 643 ; Burr vs. Burr, 10 Paige, Ch. 20. (p) Eallock vs. Bollock, 4 How. N. T. 160. (g) lb. ; Evrby vs. Kirby, 1 Paige, Ch. 261 ; Prince vs. Prince, 1 Eich. S. C. Ch. 282 ; see Bailey vs. Bailey, 21 Gratt. Va. 43. (r) TJwrnberry vs. Thorriherry, 4 Litt. 252 ; Peckford vs. Peckford, 1 Paige, Ch. 274; Burr vs. Burr, 7 Hill, Ch. 207. (*) FisUi vs. Fwldi, 2 Litt. 337 ; Miller vs. Miller, 6 Johns. Ch. 91 ; Burr vs. Burr, 10 Paige, Ch. 20. SEPARATE MAINTENANCE. 533 Decree for Separate Maintenance. dependent upon it, and the parties have been accustomed to rely upon joint labor for support, the allowance ought not to be so large as to relieve the wife from all necessity for doing anything for her own support, (t) In adjudging the amount of allowance, the husband's estate will be presumed to yield a reasonable income, unless the con- trary be shown, with a sufficient reason for its unproductive- ness ; and the reduction of the husband's estate by gifts cannot be allowed to diminish the wife's alimony, (u) * Modification of allowance. — The allowance in the final decree is subject to modification from time to time, and leave should be given in the decree to apply for such modification as the changing circumstances of the parties may render just, (v) No. 197. Decree for a separate maintenance. (Caption, and title of cause as in No. 79, &nte,page 198.) This cause having come on to be heard upon the bill of com- plaint herein, the answer of the defendant thereto, the replica- tion of the complainant to such answer, and the proofs taken in this cause, and the report of the master in chancery filed herein, which said report is hereby approved and confirmed ; and the court having heard the arguments of the counsel for the respective parties, and being fully advised in the premises, doth find that the allegations in the said bill contained are true, as therein stated ; and that the equities of this cause are with the complainant. It is tfterefore ordered, adjudged and decreed, by the court, that the complainant is entitled to a separate maintenance from the defendant ; and that she be allowed, and that the defend- ant do pay to the complainant, the sum of dollars a year, commencing from the date of the filing of the complainant's bill of complaint herein, to wit, from, etc., and that the said sum be paid in monthly installments of dollars each, pay- able in advance, on the day of each and every month, until the further order of the court ; and it is further ordered, (t) Brown vs. Brown, 22 Mich. 843. (t») Forrest vs. Forrest, 5 Bosw. 672. (t) Forrest vs. Forrest, 3 Abbott, N. T. 144 ; Lockridge vs. Lockridge, 8 B. Monr. 258 ; Rogers vb. Tinea, 6 Ired. Eq. 298 ; Wheeler vs. Wheeler, 18 111. 39 ; Waldron vs. Waidron, 5 P. F. Smith, Pa. 281 ; Fisher vs. Fisher, 32 Iowa, 20. 634 SEPAKATE MAINTENANCE. Decree for Separate Maintenance. adjudged and decreed, that this decree be and remain a lien on the real estate of the defendant nntil he shall have given security for its faithful performance, to the satisfaction of the court or to the complainant, and that the defendant pay the costs of this suit; and in case of default in the payment of the. said installments of money as the same become due, or the costs herein, that execution issue thereon ; and that either party be at liberty to apply to the court as circumstances may require. See decree for alimony in suits for divorce, No. 193, ante, page 523. CHAPTEE XXXIV. BILLS TO QUIET TITLE. Section 1. When Pkopeb, and Nature of. 3. Forms of Bills. 3. Form of Decree. SECTION L WHEN PBOPER, AND NATUBE OF. The 50th section of the Chancery Practice Act, of Illinois, in force July 1, 1872, provides, " The court may hear and determine bills to quiet title, and to remove clouds from the title to real estate, whether the lands in controversy are improved or unoccupied, or unim- proved or unoccupied ; and the taking possession of such lands, after the commencement of suit by the party claiming the title or the adverse title, or any one under or through such person or persons, shall not in anywise affect the complainant's right to a final decree upon his bill." (a) This is the act of 1869, re-written, (b) Prior to the statute above referred to, it was always held that a bill to quiet title would not lie where the complainant had a remedy at law, or could maintain ejectment, (c) But such bills were proper where the complainant was in posses- sion, (d) accompanied, by title, to remove a cloud upon such title, (e) (a) Rev. Stat. (1874) 204; Rev. Stat. (1877) 189; see Sea vs. Morehouse, 79 111. 216; Brooks vs. Kerns, 86 111. 547. (6) Laws of 111. 1869, p. 356. (c) Alton M. & F. Co. vs. Buckmaster, 13 111. 201; Kennedy vs. Northup, 15 Dl. 148, 152; Smith vs. McConnell, 17 HI. 135; Wing vs. Sherrer, 77 111. 200. (d) Stoat vs. Cook, 37 m. 283 ; Conway vs. Cable, 37 Dl. 82 ; Morris vs. Hogle, 37 111. 153 ; FUts vs. Davit, 42 HI. 391 ; McFadden vs. WoHhington, 45 111. 363 ; Christie vs. Hale, 46 111. 117 ; Sucker vs. Dooley, 49 111. 378 : Car- roll vs. Safford, 3 How. U. S. 459 ; Scott vs. Onderdonk, 14 N. Y. 9 ; Hatch vs. Buffalo, 38 N. T. 276 ; Orten vs. Smith, 18 N. H. 263. («) Bayerque vs. Cohen, \ McAllister, 113 ; (Herman vs. Parker, Hemp. 692: see Collins™. Collins, 19 Ohio St. R. 468; Hardin vs. Jnuex. 8(i 11. 313. 536 BILLS TO QUIET TITLE. Nature of, and when Proper. A court of equity has jurisdiction to set aside a title pro- cured by fraud; (/") or to establish an equitable title of the complainant, where the defendant is in possession under a legal title, (g) A bill to quiet the title to lands, will not lie by one in pos- session, who does not first show some right, legal or equit- able. (A) The jurisdiction of equity to quiet title is intended to reach persons out of possession, who cannbt be compelled to defend their right at law. (*) The rule seems to be, in cases of bills to remove clouds upon titles, that where the claim of an adverse party to land is valid upon the face of the instrument^ or the proceedings sought to be set aside, and it requires the establishment of extrinsic facts to show the supposed conveyance to be inoperative and void, a court of equity may interfere to set it aside as a cloud upon the real title to the land, and order the same to be delivered up and canceled. (J) A bill in equity which states only a pretended title in the defendant, and prays for relief against it on the ground of an apprehended injury, cannot be maintained, (k) But it need not show that the claim set up by the defendant is one which would he prima facie good at law; nor need it set forth the ground upon which the defendant asserts the validity of his title. {I) (f) Nelson vs. Rock/well, 14 111. 375 ; Kennedy vs. Northup, 15 111. 152. (g) Shay vs. Norton, 48 111. 105, 106, and cases there cited. (A) Stark vs. Starr, 6 Wallace, 402 ; Kings vs. French, 5 Chicago Legal News, 470 ; Hopkins vs. Granger, 52 III. 504 ; West vs. Sclmebly, 54 111. 523 ; Hoar vs. Harris, 11 111. 24; Bowles vs. McAUen, 16 111. 30. (t) Barron vs. Bobbins, 22 Mich. 22 ; see King vs. Higgins, 3 Oregon, 406. (J) Reed vs. Tyler, 56 111. 288 ; Hamilton vs. Gummings, 1 Johns. Ch. 517 ; Pettit vs. Shepherd, 5 Paige, Ch. 493 ; PiersaU vs. Elliott, 6 Pet. 95 ; Ward vs. Dewey, 16 N. T. 519 ; OovXson vs. City of Portland, 1 Deady, 481 ; Fonda vs. Sage, 48 N. T. 173 ; Mulligan vs. Baring, 3 Daley, N. T. 75 ; Crooke vs. Andrews, 40 N. Y. 547. (k) Torrent vs. Booming, 22 Mich. 354 (J) HoVbrook vn.Winson, 23 Mich. 394. BILLS TO QUIET TITLE. 537 Nature of, and when Proper. Where land has been laid out in town lots, and the occu- pants are threatened with numerous suits, a bill will lie to quiet the title, though each of the complainants may have a legal title, and, therefore, an adequate remedy at law. (to) Under the right conferred by the statute, a bill of peace will He against a number of parties having distinct claims, to quiet the complainant's title to lands granted by act of congress? (n) "Where a written proposition for the sale of lands without consideration and not under seal, was delivered bv the owner thereof to another, but which offer of sale was not accepted by the latter so as to be binding upon the former, and the vendee afterwards wrote upon the same an acceptance of the offer, and caused the proposal and acceptance to be recorded in the recorder's office of the county in which the land was situated, in violation of a pledge to the contrary, and in fraud of the rights of the vendor, the instrument, as it stood upon the record, was regarded as a cloud upon the title of the latter, which, upon a bill tiled for the purpose by the vendor against the vendee and his assignee, who had notice of the facts, a court of chancery would take jurisdiction to remove the cloud upon the title, (o) A bill in equity to quiet title will lie in favor of an occu- pant of part of a house against one who, having entered another part by the complainant's permission, remains there, claiming title to the whole house under a deed alleged by the plaintiff to be a forgery. (j>) • Where a grantor in possession asserts that the deed was intended as a mortgage, the grantee may maintain a bill to quiet title, unless the grantor has the legal title and no inter- vention of equities renders the remedy at law incomplete, (g) Although a sale of a house dtr.ated on leased ground, owned and occupied as a homestead, under an execution, confers no {m\ Crete* vs. Bnrchom, 1 Black, D. S. 853; see Gage vs. Chapman. 56 m. SH- OO Central Pacific B.R.Co.ys. Dger, 1 Sawyer, Ml. («) Ijarmou vs. Jordan. 56 T.l. 20i; Sri^tlura vs. Masker, 71 111. 41. (p) Sullivan vs. Finmegon. 101 Ma_-s. H~: see Gould a. Su.alu, j, S4 m. no. (a) Shags vs. Xorlm. iS TA. 100. 538. BILLS TO QUIET TITLE. Nature of, and when Proper. title, still, it being a cloud on the title, equity will take juris- diction to remove the eloud, especially when the purchaser under the execution is in possession, and threatens to remove the house, and thus commit waste, if) Where a sheriff, who was interested in a cause, was improp- erly allowed, after his term of office had expired, to amend the return upon the summons therein, so as to obviate an objection as to the jurisdiction, and it appearing he was insolvent, a court of equity had jurisdiction upon a bill filed for that purpose, to relieve the defendant, in the original proceeding, from the effect of the amended return — the same, under such circumstances, being fraudulently made, and operating as a cloud upon his title. (*) In a bill to quiet title the complainant is not bound to show a perfect title as against all the world, if) Equity will entertain jurisdiction at the instance of the owner in fee of lands to remove a cloud upon his title created by a sale of the premises, and a deed thereto under a decree of foreclosure of a mortgage thereon, although the decree and deed as to him are void, he not having been served with process in the foreclosure suit, and although the land is not chargeable with the mortgage by reason of the same not having been recorded, and because he had no notice of its existence at the time he purchased, (w) Although the levy and sale, and deed in pursuance of them, are void for uncertainty, yet when the defendant claims title under them, a court of chancery will render a decree quieting the title, {v) A conveyance by virtue of a void decree, though of no effect, is still a cloud on the title which a court of equity will take cognizance of and remove, (w) And although parties claiming (r) Oonklin vs. Foster, 57 111. 104. (*) ffOonner vs. Wilson, 57 111. 226. («) Bucker vs. Dooley, 49 111. 377. («) Sodgen vs. Outtery, 58 111. 431. («) Stout vs. Cook, 37 111. 283. (u>) Campbell vs. McCanhan, 41 111. 46 ; Johnson vs. Johnson, 30 111. 215 ; Morris vs. Hogle, 37 111. 150; Groves vs. Webber, 72 111. 606; Emmons vs. Moore, 85 111. 304. BILLS TO QUIET TITLE. 539 Nature of, and when Proper. under a void sheriff's deed had no right to the land, yet it was such a cloud on the owner's title, as would warrant a court of equity in entertaining a bill for its removal, (x) On a bill to quiet title, where it is alleged that a sheriff's deed, executed to the defendant, is a cloud upon such title, it will be proper, the facts warranting it, to quiet the title of the complainant by setting aside the sheriff's deed, but the court should not decree a conveyance by a holder of such deed to the complainant, (y) Before the statute„to which we have referred, it was held in Illinois, that a court of equity would not inquire into the validity of a tax sale, merely to determine whether it is a cloud on the legal title, and to enjoin the holder from asserting it. It was held solely in the province of a court of law to try its validity, (s) But it is now held that a party in possession of land may maintain a bill in chancery against one out of pos- session, to set aside as invalid, and a cloud upon complainant's title, a sale of the land for taxes and a deed thereunder, (a) In the case of a tax certificate, issued upon an illegal sale of land for taxes, a court of equity will take jurisdiction to annul the sale and cancel the tax certificate, and thus remove a cloud upon the title to the land, (b) In a proper case the court will only set aside the tax sale, upon -condition that all the taxes paid by the party claiming under the tax sale should be refunded to him. (c) A court of equity has power to remove a cloud upon the title of a party in possession of land, claiming to be the owner, such cloud arising upon a collector's deed on a sale for taxes, when the taxes had been, in fact, paid before sale, (d) (x) Fitts vs. Davis, 42 111. 391; Conwell vs. Walkins, 71 111. 488. (y) Rucker vs. Dooley, 49 111. 377. (z) Hamilton vs. Quigley, 46 111. 90; Springer vs. Rosette, 47 III. 223. (a) Reed vs. Tyler, 56 111. 288; Gage vs. Chapman, Id. 311; Gagevs. Bil- lings, Id. 268; Gage vs. Rohrback, Id. 262; see Whitney vs. Stephens, 77 111. 585. (6) Gage vs. Chapman, 56 III. 311; Reed vs. Tyler, Id. 288; see Gage vs. Rohrback, 56 111. 262; Gage vs. Billings, lb. 268. (c) Reed vs. Tyler, 56 III. 288; Phelps vs. Harding, 87 111. 442. (d) Gage vs. Billings, 56 111. 268. 540 BILLS TO QUIET TITLE. Form of Bill to Cancel Deed. SECTION II. FOKM8 OF BILLS. Wo. 198: Bill to quiet title and to cancel deed. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., one E. F., late of, etc., now deceased, being the owner in fee simple of the following described real estate, to wit : {Here describe the same,) by his deed of that date, duly executed and acknowledged, conveyed the said described premises to one G. H., of, etc. ; and that afterwards, on, etc., the said G. H., by his deed of that date, duly executed and acknowledged, conveyed the said premises to B. B., late of, etc., but now deceased, the father of your orator. Your orator further represents, that on, etc., the said B. B. departed this life, intestate, leaving your orator his only heir at law, by means whereof your orator became, and now is, the owner in fee of the said premises. Your orator further represents, that up to and at the time of the conveyance from the said G. H. to the said B. B. the said premises were vacant and unoccupied ; that soon after your orator's father purchased said lands he took possession and commenced the improvement of the same, and the said premises are now in a full state of cultivation, with a valuable dwelling- house, barn, and other improvements thereon ; and that the same have been in the actual use, occupation, and possession ot the said B. B. and your orator ever since the said purchase by the said B. B. from the said G. H. Your orator further represents, that all the said deeds of con- veyance, except the deed from the said E. F. to the said G. EL, were duly recorded in the recorder's office of said county soon after the same were executed and delivered ; that the said deed of conveyance from the said E. F. to the said G. H., by some accident or oversight on the part of the said G. H., was not recorded until, etc. ; and that one J. K.,'the defendant herein- after named, who is a speculator in "lands and defective titles, discovered, by some means, that there was no deed on record from the said E. F. deceased, and that there was a link want- ing in the chain of your orator's title to said premises, well knowing that your' orator was in the possession of the same, claiming title thereto in fee, on, etc., made application to D. F. BILLS TO QUIET TITLE. 541 Form of Bill to Set Aside Tax Deed. and C. F., the sons and only heirs at law of the said E. F., deceased, as it is claimed, the said E. F. then having been dead for a long space of time, and, by some means or repre- sentations, procured a quit-claim deed of conveyance from the said D. F. and C. F. as the heirs at law of the said E. F., for the said described premises; and on, etc., filed the same for record in the recorder's office in said county, and, by reason of his said deed being first of record, and in order to annoy and vex your orator in the premises, now sets up and claims title to the said lands as against your orator, but refuses to com- mence a suit at law against your orator to try title to the said premises. Your orator further represents, that the said deed of convey- ance of the said D. F. and C. F. to the said J. K., by reason of the same having been first placed on record in the recorder's office of said county, is a cloud upon the title of your orator in said premises, and tends to depreciate the value and sale thereof. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said J. K., who is made party defendant to this bill, may be required to make full and direct answer to the same, but not under oath, the answer under oath being hereby waived / and that the said deed of conveyance from the said D. F. ana C. F. to the said J. K., bearing date on, etc., as aforesaid, of the said premises, may be set aside and declared void as against your orator, as a cloud upon the title of your orator ; and that the said deed may be delivered up to be canceled; and that your orator may have such other £nd further relief in the premises as equity may require and to your honor shall seem meet. Mayit please your honor to grant the writ of summons in chancery, directed to the sheriff of the said county of , commanding him that he summon the defendant J. K. to appear before the said court, on the 1st day of the next term thereof, to be held at the court house in , in the county of aforesaid, then and there to answer this bill, etc. No. 199. Bill to quiet title, and to set aside a tax deed. To the Honorable , Judge of the — — Court of the County of , in the State of , In Chancery sitting: Your orator, A. B., of, etc., respectfully represents unto your honor, that your orator is the owner in fee simple of the following 542 BILLS TO QUIET TITLE. Form of Bill to Set Aside Tax Deed. described real estate, to wit : {Here describe the premises ;) that he derived title thereto as follows: {Here set forth the chain, of title;') that ever since your orator purchased the said prem- ises as aforesaid, he has been,. and is now, in the actual pos- session thereof, and has paid all the taxes assessed thereon as the same became dne and payable. Tour orator further represents, that for the year 18 — , there was assessed upon the said premises for the state and county taxes for that year, the sum of dollars, which said assess- ment was on, etc., duly paid by your orator to E. F., the col- lector of taxes, in and for the township of , that being the township in which said premises are situated ; as will appear by the tax receipt therefor, ready to be produced, a copy of which is hereto attached, marked " Exhibit A," and is made a part of this bill of complaint. Tour orator further represents, that on, etc., one G. H., the county treasurer of said county, filed in the county clerk's office, of the county aforesaid, a delinquent list, and published notice of application for judgment, in which said delinquent list and notice the said premises were not included-; and he did not, with the county clerk of said county, correct the said delinquent list, and make the affidavit required by law, on the first day of the term of the county court of said county ; that, notwithstanding the defects and omissions of duty as aforesaid, and that the taxes on the said premises had been duly paid by your orator as aforesaid, the said county treasurer sued for, and on, etc., obtained a judgment and precept in the county court aforesaid against the said premises, and afterwards, on, etc., at a public sale of lands and town lots for the taxes due and re- maining unpaid thereon for the year 18 — , as aforesaid, sold the said premises to one It. S., and issued the usual certificate of purchase therefor ; that the said E. S. afterwards, on, etc., assigned his said certificate of purchase to one O. P. ; that afterwards, on, etc., upon a fraudulent and defective affidavit of the said O. P., the clerk of the county court of said county, executed a deed of conveyance to the said O. P. ; and that the said 0. P. afterwards, on, etc., by his quit-claim deed of that date, conveyed all his right, title and interest in the said prem- ises, to C. D., of, etc., the defendant hereinafter named ; that the said tax deed to the said O. P., and the quit-claim deed from the said O. P. to the said C. D., were filed for record in the recorder's office of the said county of , on, etc., and duly recorded in book of deeds, on pages . Tour orator further represents, that he had no notice of the said premises having been so sold, for said taxes, or the execu- BILLS TO QUIET TITLE. 543 Form of Bill to Set Aside Tax Deed. tion of the said certificate of purchase, or the making of the said deeds of conveyance, until, etc. ; and that as soon as he learned thereof, he called upon the said C. D. and exhibited to him your orator's tax receipt as aforesaid, showing that said taxes had been paid by your orator, and the said sale had been erroneously made, and demanded of the said C. D. that he exe- cute a quit-claim deed for said premises to your orator, and thus relieve the title of your orator in the said premises from the cloud cast thereon by the tax sale and deeds as aforesaid, with which reasonable request in that behalf, the said C. D. refused to comply, falsely pretending that the said taxes had not been paid, and that the judgment for taxes, sale and deeds were in every respect regular and valid ; and claimed to have a valid title to said premises, but declined to institute a suit at law against your orator to test the validity of his title to said premises. Tour orator further represents, that the said tax deed to the said O. P., and the quit-claim deed from the said O. P. to the said C. D. are clouds upon the title of your orator in the said premises, and tend to depreciate the value thereof, and ought, therefore, to be set aside and declared null and void, and be delivered up to be canceled under the direction of this honor- able court. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. D., who is made party defendant to this bill, may be required to make full and direct answer to the same, but not under oath, the answer under oath being hereby waived; and that the said judgment against the said premises, the proceed- ings thereon, the tax deed to the said O. P., and the deed from the said O. P. to the defendant as aforesaid, may be set aside and declared void as against your orator, as a cloud upon the title of your orator ; and that the said deeds may be decreed to be delivered up to be canceled ; and that your orator may have such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please your honor, etc. (Pray process as in No. 198, ante, page 5Jfi.) 544 BILLS TO QUIET TITLE. Form of Bill to Set Aside a Contract. No. WO. BUL to qwiet title and to set aside a contract of sale, (e) To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your honor, that your orator is seized in fee simple of the following described real estate, to wit : (Here insert description;) that on, etc., one C. D., of, etc., one of the defendants hereinafter named, applied to your orator, and represented that he was the agent of the Rock River College Association, and as such was about to purchase lands in the vicinity of the above described premises, and obtained from your orator a proposition for the sale of the said premises, in the words and figures following, to wit : " Chicago, January 22, 1869. " I will sell to C. D., Sup't Rock River College Association, the {Here describe, the premises) for dollars per acre, one fourth cash, balance one, two and three years, with interest at eight per cent. I further agree to wait until May 1, 1869, for first payment, by purchaser giving bond with approved secu- rity for payment, with interest at eight per cent, as above. A. B." Tour orator further r ^presents, that the said C. D., at the time of the making of such proposition, requested your orator to give him ten days' refusal upon the terms mentioned therein, which your orator refused to do, but did tell, him that if, within the next ten days after that, he received an offer to purchase the said premises, he would advise the said C. D. of such offer before selling the same. Your orator further represents, that your orator saw "the 6aid C. D. almost daily for the next ten days after the making of the said proposition ; that the said C. D. never notified your orator during that time of any acceptance of said proposition ; and that afterwards, on the 30th day of January, 1869, your orator and the said C. D. met, and, by mutual consent, the said proposition was abandoned; that afterwards, on the 1st day of February, 1869, your orator contracted to sell an undivided half of the said premises to one E. F. ; and after- wards, on the 10th day of February, 1869, your orator bound himself to convey five acres of the said premises to Cook («) Larmon vs. Jordon, 56 111. 204. BILLS TO QUIET TITLE. 545 Form of Bill to Set Aside » Contract. county, for the purposes of a Normal school ; that on the 8th day of the same month, the Park bill passed one branch of the legislature, and was expected to pass die other branch, which would greatly enhance the value of said premises ; that after- wards, on the 17th day of February, 1869, the said C. D. applied to your orator and offered to pay him dollars, and take a contract for the sale of the said premises, which offer your orator declined, aud declared the said former pro- posal abandoned. Your orator further' represents, that on the 18th day of February, 1869, the said C. D., in order to defraud your orator, and to compel your* orator to make sale of said premises to him under said proposition, wrote, under the said proposal, the following words, to wit : " The above proposal accepted, and notice given February 18, 1869. C. D." And afterwards, on the 26th day of March, 1869, doused the said proposal and acceptance to be recorded in the recorder's office of Cook county, wherein the said premises were situated. # Tour orator further represents, that afterwards, the said C. D. assigned the said proposal to one G. H., of, etc., another defendant hereinafter named, who now pretends to hold the same as a valid contract with your orator. Tour orator further represents, that the said proposal, with the said acceptance thereunder written, and recorded as afore- said, is a cloud upon your orator's title in the said premises, and has the effect to greatly depreciate the value thereof, and to prevent your orator from making sale of the same. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. D. and G. H., who are made parties defendants to this bill, may be required to make full and direct answer to the same, hut not under oath, the answer under oath hevng hereby waived y and that the said supposed contract may. be declared null and void, and as a cloud upon the title of your orator may be removed, and be delivered up to be canceled; and that your orator may have such other and further relief in the premises as equity may require, and to your honor shall seem meet. May it please your honor, etc. {Pray process as in Wo. 198, ante, page 540.) 35 546 BILLS TO QUIET TITLE. Form of Decree. SECTION II. FORM OF DECREE. No. 201. Decree to quiet title and to cancel deed. {Caption, and title of cause as in No. 79, ante, page 198.) This cause having come on to be heard upon the bill of complaint herein, the answer thereto, the replication of the complainant to such answer, and the proofs taken in said cause, and having been argued by counsel tor the respective parties, and the court having duly considered the same, and being fully advised in the premises ; Doth order, adjudge and decree that the said deed of con- veyance from the said D. F.jand C. F. to the defendant J. K., bearing date on, etc., of the said premises, to wit: {Here describe the premises^) and recorded in the recorder's office of the said county of , be and the same is hereby set aside and declared null and void, as against the complainant, his heirs and assigns, as a cloud upon the title of the complainant; and that the defendant J. K. do deliver up the said deed to be canceled by the clerk of this court. It is further ordered, that the defendant pay the costs of this suit, to be taxed by the clerk, and that execution issue therefor. On a bill to remove a cloud upon the title of complainant, it is not proper for the aourt to decree a conveyance of the title, alleged to be a cloud, to the complainant. It is sufficieut for the court to remove the deeds as a cloud and. no more, (f) (f) Conwell vs. WatMns, 71 111. 488. CHAPTEE XXXV. BILLS TO SET ASIDE WILLS. Section 1. Nature of, and Whew Pkopeb. 2. What Necessary to Constitute a Valid Win. 3. Fraud in Pbocuring Execution op Will. 4. Want -of Capacity to Make a Will. 5. Form of Bill. 6. Issue of Facts to be Tried by a Jury. 7. Decree. \ SECTION I. NATTTEE of, and when peopeb. Parties in interest may contest the validity of a will by a bill in chancery, as well as before the probate court, (a) The 7th section of the statute of wills of Illinois provides, that if any person interested shall, within three years after the probate of a will or codicil in the county court, by his bill in chancery, contest the validity of the same, an issue at law shall be made up, whether the writing produced be the will of the* testator or not, which shall be tried by a jury in the circuit court of the county wherein the will or codicil was proven and recorded, according to the practice of courts of chancery in similar cases ; but if no such suit shall be commenced within the time aforesaid, the probate shall be forever binding and conclu- sive on all parties concerned, saving to infants, femes covert, persons absent from the state or non compos mentis, the like period after the removal of their respective disabilities. And in all such trials by jury the certificate of the oath of the wit- nesses at the time of the first probate shall be admitted as evidence, and have such weight as the jury shall think it may deserve. (a) Duncan vs. Duncan. 23 111. 264 ; FKnn ys. Owen, 58 111. 111. 548 BILLS TO SET ASIDE WILLS. What Necessary to Constitute a Valid Will. The certificate of the oath of the witnesses at the time of the first probate of the will is prima facie evidence of its validity. This testimony raises a presumption of the competency of the testator, which would be valid until disproved by counter testi- mony, and places upon the contestants the burden of showing the incompetency of the testator by proof sufficient to overcome the prima fade case, (b) The burden of proof, in the first instance, is on the party affirming the validity of the will, (c) But when the will has been probated, and an original suit has been instituted to set it aside, for want of capacity in the testator, or for fraud, the party alleging the incapacity or fraud is put upon the proof ot his allegations, (d) , SECTION n. WHAT NECESSARY TO CONSTITUTE A VALID WILL. To entitle a will to probate, four things must concur : first, it must be in writing, and signed by the testator or testatrix, or in his or her presence ; second, it must be attested by two or more credible witnesses ; third, two witnesses must prove that they saw the testator or testatrix sign the will in their presence, or that he or she acknowledged the same to be his or her act and deed ; and fourth, they must swear that they believe the testator or testatrix to be of sound mind and memory at the time of signing and acknowledging the same, (e) The statute does not require that the attesting witnesses to a will should be in the presence of each other when they sign it- if) (ft) Biggs vs.WiUon, 13 111. 15 ; Potter vs. Potter, 41 HI. 80 ; Sollovxiyvs. Galloway, 51 111. 159. (c) Tingley vs. GowgiU, 48 Mo. 291 ; Renn vs. Lamon, 33 TexaB, 760. (d) Renn vs. Lamon, 33 Texas, 760 ; Roe vs. Taylor, 45 111. 485. («) Dickie vs. Carter, 42 III. 376 ; but see Allison vs. Allen, 46 IU. 61. (/) Flinn vs. Owen, 58 IU. Ill; Ambre vs. Weishaar, 74 IU. 109. BILLS TO SET ASIDE WILLS. 549 Fraud in Procuring Execution of a Will. SECTION m. FRAUD IN PROCURING EXECUTION OF A WILL. In the absence of fraud or contrivance shown to indnce a party of sound mind to make a will in a particular way, it will be valid ; if all is fair, and the result of honest argument and persuasion, or of such influence as one may properly obtain over another, the will must stand, (g) A testator of so\ina mind may make such final disposition of his estate by will as he may choose, subject to the statutory rights of his widow, if he leave one. (A) Any influence which induces a testator to make a disposition of property which he does not desire and intend, notwithstand- ing he is not controlled by any act of force, coercion, or per suasion put forth at the time of signing, is such undue influence as will avoid a will, (i) If the jury is satisfied from the evidence, taken as a whole, that the will would not have been executed by the testator, but for the influence exercised over him by the devisee, they Bhould find that the will was procured by undue influence, and was not his last will. (J) Whenever a person, under circumstances which enable him to exercise a strong influence over the mind of a testator, such as great age, or a confidential relation, procures such testator to make a will in his favor, the burden of proof is upon such person to show that no undue influence was exercised ; but the (g) Dickie vs. Carter, 42 III. 376 ; Brovmfield vs. Brovmfield, 43 111. 147 ; Carmwhael vs. Seed, 45 111. 108; SmaU vs. Alien, 8 Term, R. 147 ; Tingley vb. Cowgill, 48 Mo. 291 ; Small vs. SmaU, 4 Greenl. 220 ; see Kempsey vs.Ma- ginnis, 2 Mich. N. P. 49. (h) Hewer vs. Harris, 42 111. 425 ; Brovmfield vs. Brovmfield, 43 111. 147 : Rhoads vs. Rhoads, lb. ,239 ; CarmicJiael vs. Reed, 45 111. 108. (») Forney vs. FerreU, 4 W. Va. 729, and cases there cited. (J) Honey vs. Sullens, 46 Mo. 147. 550 BILLS TO SET ASIDE WILLS. Want of Capacity to Make a Will. testator acted voluntarily and with a full understanding of what he was doing. (A) SECTION IV. WANT OF CAPACITY TO MAKE A WILL. A will, the provisions of which are attributable to partial insanity, is invalid. But the law presumes the sanity of the testator. (I) What constitutes the want of a sound disposing mind and memory is incapable of a definition suited to all cases. Each case, therefore, must be determined by its own circum- stances, (m) Great age is not of itself an incapacity, (n) Nor is the unreasonableness of a will of itself intrinsic proof of the want of a disposing mind, (o) Nor do long continued habits of drunkenness raise the presumption of imcompetency to make a will, (p) The omission of the name of a child in a last will does not, of itself, prove that the testator was incapacitated ; nor will such omission destroy its validity, {q) (k) Boyd vs. Boyd, 66 Penn. St. R. 283 ; Harvey vs. Sullens, 46 Mo. 147; Taylor vs. Taylor, 8 How. U. S. 183 ; Van Rom. vs. Keenan, 28 111. 452 ; see Bloeum, vs. Marshall, Wash. C. C. 400 ; Jenkins vs. Pye, 12 Pet. 241 ; Lind- say vs. Lindsay, 50 111. 81. , (l) Cotton vs. Vlmer, 45 Ala. 378 ; see Turner vs. Hand, 3 Wall. Jr. 88; Matter of Hutchins, 7 Phil. Pa. E. 69 ; Chandler vs. Barrett, 21 La. An. 58 ; Py/ryear vs. Reese, 6 Coldw. Tenn. 21 ; Sloan vs. Maxwell, 2 Green, Cli. 553. (m) Thompson vs. Kyner, 65 Penn. St. 368. (») Collins vs. Townley, 21 N. J. Eq. 353 ; Clearwater vs. Kimler, 43 111. 272. (o) Munday vs. Taylor, 7 Bush, Ky. 491 ; see Burch vs. Brown, 46 Ma 441; see Rutherford vs. Morris, 77 111. 397; Carpenter vs. Calvert, 83 111. 62. {p) Gardner vs. Gardner, 22 Wend. 526; Whltenack vs. Stryker, 1 Green, Ch. 8; see Yoe vs. McCord, 74 111. 73. (g) Snow vs. Benton, 28 111. 306. BILLS TO SET ASIDE WILLS. 551 Form of. SECTION V. FORM OF BILL. No. £0£. Sill by heirs at law to set aside a will. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your oratrix, A. B., and your orator, B. B., the hnsband of the said A. B., of, etc., respectfully represents unto your honor, that one C. D., the father of your oratrix, A. B., late of, etc., but now deceased, on, etc., executed a certain instrument in writing purporting to" be his last will and testament; and after- wards, on, etc., departed this life, leaving the following named persons, besides your oratrix, his heirs at law, and legal repre- sentatives, to wit : E. D., his widow, F. D., his son, G. H., his daughter, late G. D., since intermarried with L. H., of, etc., H. D. and J. D., infant children of O. D., deceased, late son of the said C. D., deceased, the defendants hereinafter named. And your oratrix and orator further represent, that the said C. D., in and by the said instrument of writing, so purporting to be his last will and testament, professedly bequeaths all his estate, both real and personal, as follows, that is to say : To the said E. D., his widow, etc. etc. ; to the said E. D., his son, all, etc. ; and to all the other of his children and grandchildren nothing whatever, as will more fully appear from the said instrument in writing, when produced in court, and from a copy of the same which is hereto attached, marked " Exhibit A," and is made a part of this bill. Your oratrix and orator further represent, that on, etc., the said instrument in writing, purporting to be the last will and testament of the said C. D., was exhibited to the court of the county of , for probate, and the same was then and there probated, and letters testamentary thereon were granted to one W. P., the person named in the said instrument of writing, and one of the defendants hereinafter named, to act as executor thereof; and the said W. P. then and there took upon himself the burden of sole executor of the said supposed will of the said C. D., deceased. Your oratrix and orator further represent, that the said C. D., at the time of executing the said instrument in writing, purporting to be his last will and testament, was not of sound 552 BILLS TO SET ASIDE WILLS. Form of. mind and memory ; but, on the contrary, was in his dotage, and his mind and memory was so impaired as to render him wholly incapable of making any just and proper distribution of his estate. Your oratrix and orator further represent, that the defendants E. D. and F. D., the only legatees in the said pretended will, used and exercised many undue arts and fraudulent practices, and resorted to falsehood and misrepresentation to induce the said C. D. to execute said instrument of writing, and the said C. D., in executing the same, was, in fact, under improper restraint and undue influence from the said arts and fraudulent practices pf the defendants E. D. and F. D. And your oratrix and orator particularly represent, that the defendants E. D. and F. D., in order to induce the said C. D. to execute the said instrument in writing, did, etc. {Here set forth, any particular acts resorted to to obtam the execution of the will.) Your oratrix and orator further represent, that the said H. D. and J. D., children of the said O. D. deceased, are infants under the age of years, and have no legal guardian, and therefore a guardian ad litem should be appointed by the court, to appear for and represent the interests of the said minor defendants. Forasmuch, therefore, as your oratrix and orator are without remedy in the premises, except in a court of equity, and to the end that the said E. D., F. D., G-. EL, L. H., H. D., J. D. and W. P., executor of the last will and testament of C. D. deceased, who are made parties defendants to this bill, may be required to make full and direct answer to the same, but not under oath, the answer under oath being hereby waived / that a guardian ad litem may be appointed for the court by the defendants H. D. and «T. D., infants ; that the said instrument in writing and the probate thereof may be set aside and declared null and void, and not the last will and testament of the said C. D. deceased, and the estate of the said C. D. distributed among his heirs according to law ; and that your oratrix and orator may have such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sheriff of the said county of , commanding him that he summon the defendants E. D., F. D., G. H., L. H., H. D., J. D. and W. P., executor of the last will and testament of the said C. D. deceased, to appear before the said court on- the first day of the next • term thereof, to be held at the court house in , in the county of aforesaid, then and there to answer this bill, etc. Sol. for Complainants. BILLS TO SET ASIDE WILLS. 353 Issue of Fact to be Tried by a Jury — Decree, etc. SECTION VI ISSOK OF FACTS TO BE TBXED BY A JURY. .The statute, as we have seen, requires an issue at law to be made up, whether the writing produced be the will of the tes- tator or not, which shall be tried by a jury in the circuit court of the county wherein the will or codicil was proven and re- corded, according to the practice of courts of chancery in similar cases, (r) No. 203. Order directing an issue of fact to ie tried by a jury as to the validity of a vML. {Caption, and title of cause as in No. 79, ante, page 198.) This cause came on to be heard upon the pleadings filed, and the issues made up by the pleadings. It is ordered that the following issues of fact be made and tried by a jury, to wit : 1. Was the writing read in evidence, purporting to be the last will and testament of E; F., deceased, the last will and testa- ment of the said E. F. or not. 2. Was the said E. F., at the time of the execution and attestation of the said writing read in evidence, purporting to be the last will and testament of the said E. F., of sound mind and memory. 3. Was, etc. {Here insert any other issue of fact raised by the pleadings.) SECTION VIL DECBEE. No. 204~ Decree setting aside a will, etc. {Caption, and title of cause as in No. 79, ante, page 198.) This cause having come on to be heard upon the bill of com- plaint herein, the answer of the defendants thereto, and the replication of the complainant to such answer ; and the court (r) See Hubbard vs. Evbbard, 6 Ma»s. 399; Brooks vs. Barrett, 7 Pjck. 98; Rigg vs. Wilton, 13 111. 15; Myatt vs. Walker, 44 111. 485; Pankey vs. Baum, 51 111. 88; Toe vs. McCord, 74 111. 33; Rutherford vs. Morris, 77 111. 397. 554 BILLS TO SET ASIDE WILLS. Decree. having heretofore directed an issue at law to be made tip, whether the writing referred to in the pleadings, and purport- ing to be the last will and testament of the said E. P., was the last will and testament of the said E. E. or not ; and a jury, to wit : {Mere set forth the names of the jwrors,) having been duly called, selected and sworn to try the said issues ; and the said jury having heard the evidence, of the respective parties, and the arguments of counsel, in open court, and under the direction of the court ; and having found by their verdict, that the said writing was not the last will and testament of the said E. F. ; and that the said E. F., at the time of the, execution and attestation of the said writing, was not of sound mind and memory ; and the defendants having interposed a motion in this cause to set afeide said verdict and for a new trial ; and the court having heard the grounds and arguments in support thereof, and being fully advised in the premises, overruled the said motion ; It is therefore ordered, adjudged and decreed, by the court, that the said instrument in writing, purporting to be the last will and testament of the said E. F., deceased, and the probate of the said will in the county court of said county, and the pro- ceedings thereunder, be and the same are hereby set aside, and be, and the same are hereby declared null and void. It is further ordered, that the defendants pay the costs of this suit, to be taxed by the clerk of this court, and that execution issue therefor. CHAPTEK XXXYI. tfE EXEAT. Section 1. Nature op, and when Pkopkb. 2. Bill FOB. 3. How Obtained, etc. 4. 'Proceedings upon. SECTION L NATUBE OF, AND WHEN PBOPEB. The writ of ne exeat repvMica is a process issuing out of a court of record to restrain a person from leaving the state. It was originally applied only to great political objects and purposes of state, for the benefit or safety of the realm. In the time of Richard II, a statute was passed prohibiting all persons whatso- ever, excepting lords, great men, merchants and soldiers, from going abroad, (a) It is remarked by Fitzherbert, that, by the common law, every man may go out of the realm at his pleas- ure, without the king's leave ; yet, because every man is bound to defend the king and his realm, therefore the king, at his pleasure, by his writ, may command a man that he go not beyond the sea, or out of the realm without license ; and if he do the contrary, he shall be punished for disobeying the king's command, (b) In the United States it is only applied to civil purposes, in aid of the administration of justice. It is resorted to for the purpose of obtaining equitable bail ; (c) and its object and de- sign is to hold a party amenable to justice, and to render him (a) Fleta, 383; Beames on Ne Exeat, 6; Apon. 1 Atk. 521 ; Flack vs. Holm, 1 Jac. & Walk. 405, 413, 414. (6) Fitzherbert's Natura Bremum, 85 : 2 Story's Eq. Juris. § 1466 ; 2 Co. Inst. 54'; 3 Co. Inst. ch. 84, p. 178, 179 ; Ex parte Brunker, 3 P. Wms.312. (e) Mitchell vs. Burch, 2 Paige, Ch. 606; Gfresliam -vs. Peterson, 25 Ark. 877. 556 NB EXEAT. Nature of, and when Proper. personally responsible for the performance of the orders and decrees of the court by preventing him from withdrawing him- self from its jurisdiction, (d) In some of the states it is granted only in eases of equi- table debts and claims ; (e) and refused where the debt is such as that it is demandable in a suit at law. (/) The statute of Illinois, revision of 1874, however, provides " that writs of ne exeat republica may hereafter be granted, as well in cases where the debt or demand is not actually due, but exists fairly and bona fide in expectancy at the time of making application, as in cases where the demand is due ; and it shall not be neces- sary, to authorize the granting of such writ of ne exeat, that the applicant should show that his debt or demand is purely of an equitable character, and only cognizable before a court of equity." (§ 2.) " In cases of joint, or joint and several obligors and debtors, if one or more of them be about to remove without the jurisdictional limits of the state, taking their property with them, leaving one or more co-obligors or co-debtors bound with them for the payment of any sum of money, or for the delivery of any article of property, or for the conveyance of land at a certain time, which time shall not have arrived at the time of such intended removal, such co-obligor or co-debtor who remains, shall be entitled, on application, to a writ of ne exeat, to com- pel the co-obligor or co-debtor who is about to remove, to secure the payment of his part of the sum to be paid, or of the delivery of the property, or to convey, or to join in the con- veyance of the land. Also, in cases of security, the writ of ne exeat may issue, on application of a security against the principal or co-security, when the obligation or debt shall not (d) Gleason vs. Bisby, 1 Clarke, 551 ; Cowdin vs. Cram,, 3 Edw. Ch. 231 ; Seymour vs. Hazard, 1 Johns. Ch. 1 ; Johnson vs. Clendenin, 5 Gill & J. 463 ; Hunter vs. Nelson, 5 Blackf. 263 ; Gresham vs. Peterson, 25 Ark. 377 ; see Samuel vs.WUey, 50 N. H. 353 ; fflios vs. Hunter, 4 Gilm. 211. (e) Palmer vs. Van Voren, 2 Edw. Ch. 425 ; Seymour vs. Hazard, 4 Johns. Ch. 1 ; Hunter vs. Nelson, 5 Blackf. 263 ; Dean vs. Smith, 23 Wis. 483 (/) Nixon vs. Miehardson, 4 Dessau. 108 ; Brown vs. Haff, 5 Paige, Ch. 235 ; see Fisher vs. Stone, 3. Scam. 68. NE EXEAT. 557 Nature of, and when Proper. yet be due, and the principal or co-security is about removing ont of the state." (^) Independent of the statute, courts of chancery may award the writ of ne exeat upon all equitable demands. It is an efficient remedial process in cases of a bill for an account or for alimony. (A) The 12th section of article II of the constitution provides that "no person shall be imprisoned for debt unless upon refusal to deliver up his estate for the benefit of his creditors, in such manner as shall be prescribed by law, or in case where there is strong presumption of fraud." This provision of our constitution has abolished such imprisonment as practiced under the common law, and where a debt is the basis of the action, in order to justify imprisonment, the foundation must be laid in the fact of a refusal to deliver up property for the benefit of creditors, or fraud in contracting or evading pay- ment of the debt. And in proceedings for ne exeat, the bill must show, by facts stated and circumstances detailed, that the debtor has been guilty of fraud or that there. is a strong pre- sumption of fraud, (j) A writ of ne exeat will not be granted where it appears from the bill or petition that a complete remedy may be had at law; (_;') and where it is based on the ground that the defendant has sold all his property, and is about to depart the state, it must show that the property alleged to have been sold was not exempt from execution, or it will be defective. (Jc) (g) Rev. Stat. (1874) 716; Rev. Stat. (1877) 678. (A) Denton vs. Denton, 1 Johns. Ch. 441; Dean vs. Smith, 23 Wis. 483; Hammond vs. Hammond, 1 Clark, 551; Prather vs. Prather, 4 Dessau. 33. (0 Malcolm vs. Andrews, 68 111. 100; see Ex parte Smith, 16 111. 347; Parker vs. Follensbee, 45 111. 73; West vs. Walker, 6 Blackf. 420. (j) Victor Scale Co. vs. Shurtliff, 81 111. 313. (k) Jones vs. Kennicott, 83 III. 484. 558 NE EXEAT. Form of Bill. SECTION II. BILL FOE. Wo. 205. BiUfor ne exeat republica. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your honor, that on, etc., one C. D., being indebted to your orator in about the sum of dollars, your orator instituted a suit against him before L. M., Esq., a justice of the peace, in and for said county, and on, etc., recovered a judgment before said justice against the said C. D., for the sum of dollars, and costs of suit ; that on, etc., the said C. D. appealed from such judgment, rendered by the said L. M., as justice of the peace as aforesaid, to the circuit court of said county, and executed- an appeal bond to your orator, conditioned according to law, bearing date on, etc., in the penal sum of dollars, with one E. F., as security ; which bond was duly approved by said justice; as will more fully appear by said appeal bond now on file in the office of the clerk of the circuit court of said county, reference thereto being had ; a copy of which is hereto attached, marked " Exhibit A," and is made a part of this bill. And your orator further represents unto your honor, that subsequently to the taking of such appeal, viz., on or about the ' day of, etc., the said E. F. became insolvent and left the state. And your orator further shows, that the said C. D. has lately threatened and given out that he will speedily leave this state and go to the State of. Kansas. Tour orator, therefore, charges that the said C. D. is about to remove from this state, taking his property with him ; and that your orator will be left without any security whatever for the amount of his said judgment. x our orator further represents unto your honor, that the said appeal is still pending and undetermined in said circuit court. That the said sum of dollars is justly due your orator ; that your orator believes, and so states the facts to be, that the said 0. D. took said appeal for mere delay. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. D., who is made party defendant to this bill, may NE EXEAT. 559 How Obtained — By whom Granted — Bond, etc be required to make full and perfect answer to the same, bitt not under oath, the answer voider oath being hereby waived; and that the defendant may be stayed by the people's writ of ne exeat republioa from departing out of the jurisdiction of this court ; and that your orator may have such other and further relief in the premises as eqxuty may require and to your honor • shall seem meet. May it please your honor to grant unto your orator the people's writ of ne exeat repiMica, staying the said C. D. from departing into parts beyond this state, and out of the jurisdic- tion of this court, without leave first had, in pursuance of the statute in such case made and provided. , Sol. for Complainant. A. B. {Add affidavit as follows ;) JVb. £06. Affidavit to a bill for ne exeat. State of ) „„ ss. County of- \ A. B., of, etc., on oath, states that he is the complainant in the above bill, subscribed by him ; that he has heard the same read, and knows the contents thereof; that the allegations therein contained are true in substance and in fact. Subscribed and sworn to, etc. A. B. SECTION TIL HOW OBTAINED, ETC. By whom granted. — The statute provides that (§ 3.) " The superior court of Cook county, and the circuit courts in term time, and any judge thereof in vacation, shall have power to grant writs of ne exeat. (§ 4.) " When no judge authorized to issue writs of ne exeat is present in the county, or being present, is unable or incapaci- tated to 'act, a master in chancery in such county may order the issuing of such writs." {a) BUI or petition for — Bonds to be given, etc. — The revised statute of Illinois, of 1874, in relation to ne exeat, provides that, (§ 5.) " No writ of ne exeat shall be granted but upon bill or petition filed, and affidavit to the truth of the allegations (a) Bassett vs. Bratton, 86 111. 152. 560 NE EXEAT. How Obtained — Order Granting, etc. therein contained. Upon the granting of any such writ, the court, judge or master shall indorse, or cause to be indorsed, upon the bill or petition, in what penalty, bond and security shall be required of the defendant. Said court, judge or mas- ter shall also take, or cause to be taken, of the complainant, before the writ shall issue, bond with good and sufficient surety, in such sum as the court, judge or master shall deem proper, conditioned that the said complainant will prosecute his bill or petition with effect, and that he will reimburse to the defendant such damages and costs as he shall wrongfully sustain by occasion of the said writ. If any defendant to such writ of ne exeat shall think himself aggrieved, he may bring suit on such bond ; and if, on trial, it shall appear that such writ of ne exeat was prayed for without a just cause, the per- son injured shall recover damages, to be assessed as in other cases on penal bonds." No writ of ne exeat will be granted but upon bill or petition filed, and affidavit of the truth of the allegations therein con- tained, (k) The affidavit must be positive ; (Z) information and belief will not be sufficient, (m) Mere apprehensions of the complainant will not authorize the issuing of the writ, (n) Order directing clerk to issue writ, etc. — The statute provides that, (§ 6.) " When a writ of ne exeat is granted by a judge or master in vacation, he shall direct the clerk of the court to which the writ is to be returnable to issue the same. (§ 7.) " All writs of ne exeat shall be returnable into the court out of which they issue." No. 207. Order of judge granting a writ ofne exeat. Let a writ of ne exeat issue as prayed for in the within bill, returnable to the next term of the court, upon the complainant (Jc) Mattocks vs. Tremain, 3 Johns. Ch. 75, (J) Thome vs. EaUey, 7 Johns. Ch. 189 ; Gilbert vs. CoU, Hopk. Ch. 496. (m.) Gowdin vs. Oram, 3 Edw. Ch. 231. (n) Woodward vs. Schatzell, 3 Johns. Ch. 412. NE EXEAT. 561 Order, etc. — Proceedings Upon, etc. filing a bond in the sum of dollars with E. E. as security, conditioned according to law. The clerk will "indorse on said, writ that the defendant be required to give bond, with security, in the sum of dollars. 2Fo. 208. Order of master in chancery granting a ne exeat in the absence of the judge. It appearing to the undersigned that the honorable J. K., judge of the circuit court, presiding in said county, is absent from the county, it is ordered that the clerk of said court issue a writ of ne exeat, as prayed for in the within bill, returnable to the next term of said court, upon the complainant filing bond in the sum of dollars, with E. E. as security, con- ditioned according to law. The clerk will indorse on said writ that the defendant be required to give bond, with security, in the sum of dollars. SECTION IV. PROCEEDINGS UPON. The writ — Defendant's dond,etc. — The statute directs that, (§ 8.) " The writ of ne exeat shall contain a summons for the defendant to appear in the proper court, and answer the petition or bill, and upon the writ being served upon the said defendant, he shall give bond, with surety, in the sum indorsed on such writ, conditioned that he will not depart the state with- out leave of said court, and that he will render himself in exe- cution to answer any judgment or decree which the said court may render against him ; and in default of giving such security, he may be committed to jail, as in other cases, for the want of bail. No temporary departure from the 6tate shall be consid- ered as a breach of the condition of the said bond, if he shall return before personal appearance shall be necessary to answer or perform any judgment, order or decree of said court." Surety may surrender principal. — The statute provides that, (§ 9.) " The surety in any bond for the defendant, as afore- said may, at any time before the said bond shall be forfeited, 36 562 NE EXEAT. Proceedings Upon, etc. surrender the said defendant, in exoneration of himself, in the same manner that bail may surrender their principal, and obtain the same discharge." Proceedings in cowrt. — The statute provides that, (§ 10.) " On the return of the writ of ne exeat, if the same shall have been duly served, the court shall proceed therein as in other cases in chancery, if the time of performance of the duty or obligation of the defendant has expired ; if not, then the proceedings shall be stayed until it has expired." Quashing writ, etc. — It is provided by the statute, that, (§ 11.) "Nothing contained in the preceding section shall prevent the court from proceeding at any time to determine whether the writ ought not to be quashed or set aside." CHAPTEE XXXVII. BILLS TO RESTRAIN WASTE. Section 1. Nature op, and when Proper. 2. Form of Bill. SECTION I. NATURE OF, AND WHEN PROPER. Courts of equity will interfere to restrain waste by persons having limited interests in property, on the mere ground of the common law rights of the parties, and the difficulty of obtain- ing the immediate preservation of the property from destruc- tion or irreparable injury, by the process of the common law. (a) There are many cases where a person is punishable at law for committing waste, and yet a court of law will enjoin him, as, where there is a tenant for life, remainder for life, remainder in fee, the tenant for life will be enjoined from committing waste. (5) So, a landlord may have an injunction to stay waste against an under-lessee, (c) So, an injunction may be obtained against a tenant from year to year, after notice to quit, to re- strain him from removing the crops, etc., according to the usual course of husbandry, (d) And an injunction may be obtained against a lessee, to prevent him from making material alterations in a dwelling-house, (e) An injunction to restrain waste lies in cases where the ag- grieved party has equitable rights only ; Thus, for instance, in (a) 2 Story's Eq. Juris. § 912. (6) 2 Story's Eq. Juris. § 913 ; Powys vs. Blagrame, 27 Eng. Law & Eq. R. 568 ; see Abraham vs. Bubb, 2 Freem. Ch. 53 ; Garth vs. Cotton, 1 Isick. 185, 205, 208 ; Eden on Inj, ch. 9, pp. 162, 163 ; Dams vs. Leo, 6 Ves. 78V. (e) Farrant vs. LoveU, 3 Atk. 723 ; 8. C. Ambler, 105. (d) Pratt vs. Brett, 2 Mad. 62 ; Onslow vs. , 16 Ves. 173. («) Douglas vs. Wiggins, 1 Johns. Ch. 435 ; 2 Story's Eq. Juris. § 913. 50-1 BILLS TO KESTKAIN WASTE. Nature of, and when Proper. cases of mortgages, if the mortgagor or mortgagee in posses- sion commits waste, or threatens to commit it, an injunction will lie. (/) Equitable waste is defined to consist of such acts as are not Considered waste at law, being consistent with the legal rights i the party committing them, but which are deemed waste in equity on account of their manifest injury to the inherit- ance, {g) The remedy by injunction to restrain waste being to prevent a known and certain injury, is applicable to every species of waste. (A) And if the tenant for life commits waste mali- ciously, he will be enjoined, even though he had the power to do the acts complained of. (*) And the fact that the power is being exercised in an unreasonable manner and against con- science is sufficient to warrant the interference, {J) So, too, the assignee of the tenant for life without impeachment of waste, will be restrained. {&) The general rule is, that everything is waste which occasions a permanent injury to the inheritance; but it has been said that the situation of this country requires an application of the rule different from that which might be proper in England. (I) A threat to commit waste is sufficient to ground an injunc- tion upon j (to) but the mere apprehension of waste intended is not sufficient where the defendant denies any intention. («.) Where the title is doubtful or disputed, as between devisee (/) Farrant vs. LoveU, 3 Atk. 723 ; Phomix vs. Clark, 2 Halst. Ch. 447 ; Eden on Inj. ch. 9, pp. 165, 166 ; Brady vs. Waldron, 2 Johns. Ch. 148 ; 2 Story's Eq. Juris. § 710, a, 914. (g) Story's Eq. Juris. § 915 ; High on Inj. § 432. (A) Hawley vs. Clowes, 2 Johns. Ch. 122. (t) Abraham vs. Bubb, 2 Freem. Ch. 53 ; see Vane vs. Barnard, 1 Salk. 161 ; Clement vs. Wheeler, 25 N. H. 360 ; Packington vs. Packington, 3 Atk. 215. (j) Aston vs. Aston, 1 Ves. 264 ; Marker vs. Marker, 9 Hare, 1. (k) Clement vs. Wheeler, 25 N. H. 361. (Z) Keeler vs. Eastman, 11 Vt. 293 ; Mndlay vs. Smith, 6 Munf. 134. (to) London vs. Warfield, 5 J. J. Marsh. 196 ; Livingston vs. Reynolds, 26 Wend. 115 ; Gibson vs. Smith, 2 Atk. 183. (») 7 Ves. 309 ; see Coffin vs. Coffin, Jac. K. 70. BILLS TO RESTRAIN WASTE. 565 Nature of, and when Proper. and heir at law, or otherwise, an injunction will not be granted, (o) A bill in equity is the appropriate remedy for a mortgagee against a mortgagor in possession, who is impairing the security by committing waste. (j>) A tenant in dower of coal lands, or a tenant for life, may take coal to any extent from a mine already opened, or sink new shafts into the same vein of coal ; (j) and may take reason- able firewood ; (r) but it has been held, that a tenant for life has no right to take ,jclay or wood from the premises for the manufacture of bricks, (s) An injunction to stay waste is, as a general rule, prospect- ive, and the court will not, unless under very special circum- stances, grant an injunction to prevent the removal of timber already cut; (t) and, so far as the bill seeks to recover for waste already committed, it cannot be sustained, (u) An injunction against waste may be obtained against a vendor if the contract is admitted ; (v) so also against a mort- gagor, (w) or a mortgagor in fee, or for years ; (a?) but a mort- gagor may cut under-wood of proper growth, (y) It also lies against lessee to prevent his cutting growing timber ; (s) or injuring fish ponds; (a) or breaking up ancient meadow or (o) Field vs. Jackson, 2 Dick. 599; Smith vs. GoUyer, 8 Ves. 89 ; PUs- worth vs. Hopton, 6 Ves. 50, a; Norway vs. Rouse, 16 Ves. 146, 154. ( p) Cooper vs. Davis, 15 Conn. 556 ; Brady vs. Waldron, 2 Johns. Ch. 148 ; Salmon vs. Clagett, 3 Bland, 125 ; Capner vs. Flemington Mining Co. 2 Green, Ch.467. (g) Crouch, vs. Fury ear, 1 Rand. 258 ; 7 Harris, 323 ; 12 Id. 162. (r) Gardiner vs. Bering, 1 Paige, Ch. 573. (*) Livingston vs. Reynolds, 2 Hill, Ch 157 ; 26 Wend. 115. (<) Watson vs. Hunter, 5 Johns. Ch. 169. (u) Downing vs. Palmater, 1 Monr. 64. («) Norway vs. Rowe, 19 Ves. 150 ; Smith vs. Price, 39 111. 28. (to) 8 Atk. 210 ; Gray vs. Baldwin, 8 Blackf . 164 ; Maryland vs. Northern, etc 18 Md. 193. (a) 3 Atk. 723; Nelson vs. Pinegar, 30 HI. 473 ; Ensign vs. Cotburn, 11 Paige, Ch. 503. (y) Hampton vs. Hodges, 8 Ves. 105. (s) Vansendau vs. Rose, 2 Jac. & W. 264; Bishop of Winchester vs. Wot gar, 3 Swanst. 493, note a. (o) Earl ofBathurst vs. Burden, 2 Bro. Ch. Ca. 64. 566 BILLS TO KESTKAIN "WASTE. Form of Bill. pasture land ; (5) or from sowing lands with mustard or any other pernicious crop ; (c) or from digging the soil for bricks^ (d) or acting contrary to his express covenants, (e) The threatened inclosure of a highway will be prevented by an injunction. (/") An executor who has no estate in premises, but who is authorized to lease them, cannot maintain an action on the case for waste. Such action must be by a reversioner in fee. The only remedy of the executor for the injury is by actioD upon the covenants in the lease, (g) The reader is referred to 2 Story's Eq. Juris. § 909-920 High on Inj. § 419-457, for a further investigation of waste. SECTION II. FOEM OF BILL. No. £09. Bill by landlord against tenant to rest/rain waste — injunction, etc. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting: Tour orator, A. B., of, etc., respectfully represents unto your honor, that before and at the time of making the lease herein- after mentioned, your orator was seized in fee simple of the f>remises hereinafter described ; and being so seized, by a certain ease, bearing date on, etc., and made by and between your orator, of the one part, and C. D , of, etc., the defendant here- inafter named, of the other part, your orator demised, leased, and to farm let, unto the defendant, all, etc., (Here describe the premises f) to hold the same, with the appurtenances, unto the defendant, on, etc., for the term of years, then next ensu- (6) Lord Gray de Wilton vs. Saxton, 6 Ves. 106 ; Drwry vs. MoUns, 6 Ves. 228. (e) Pratt vs. Brett, 2 Mad. 62. (d) Bishop of London vs. Webb, 1 P. Wms. 527. (e) Simpton vs. Eve, 2 Ves. & B. 349 ; Steward vs. Winters, 4 Sandt Ch. 587 ; Baugher vs. Crane, 27 Md. 36 (/) Craig vs. The People, 47 111. 487 (g) Page vs. Davidson, 22 111. 112 BILLS TO RESTKAIN WASTE. 567 Form of Bill. ing, at the annual rent of dollars ; and the defendant did thereby covenant, promise and agree with your orator, that he would, during the said term, keep the said premises in good repair, and manage and cultivate the said farm and lands in a proper, husbandlike manner, according to the custom of the country, as by the said indenture of lease, reference being there- unto had, will more fully appear. Your orator further represents, that the defendant, under and by virtue of the said indenture, entered upon the said demised premises, with the appurtenances, and became, and was pos- sessed thereof for the said term so to him granted thereof by your orator as aforesaid. And your orator further represents, that at the time the defendant entered upon the said premises, the _ same were in good repair and condition, and your orator hoped the defendant would so have kept the same, and have cultivated the said lands in a proper and husbandlike manner, according to the custom of the country, and that such part of the said premises as consisted of meadow or pasture ground would have remained so, and not have been ploughed up, and converted into tillage ; and that no waste would have been committed on the said premises. But now so it is, the defendant contriving how to wrong and injure your orator in the premises, pretends that the said premises are now in as good repair as when he entered upon the same, and that he has cultivated the said farm and lands in a proper and husbandlike manner, and that no waste has been committed by him thereon. Whereas, your orator charges, that the said premises, and the buildings, out- houses, gates, stiles, rails and fences, were in a good and perfect state and condition, when the defendant entered upon the said premises, but now are very ruinous and bad, and the land very much , deteriorated, from the willful mismanagement and im- proper cultivation thereof, by the defendant, who has ploughed up certain fields situated, etc., containing respectively acres, and has otherwise committed great spoil, waste and de- struction in, tipon and about the said premises. Your orator further represents, that the defendant threatens, and is about to plough up the remaining pasture-fields on said premises, and to commit other waste upon said lands and appur- tenances, which will be an irreparable injury to the same ; and that the defendant is so insolvent that any judgment your orator might recover against him in an action at law, could not be collected from him. And your orator further charges, that the defendant ought to put the said premises in the same condition they were in when 568 BILLS TO KESTKAIN WASTE. Form of Bill. he entered thereon, and to make your orator a reasonable com- pensation for the waste and damage done or occurred thereto ; and that the defendant ought to be restrained by the order and injunction of this honorable court, from ploughing up the remaining pasture-fields upon said premises, which he threatens to do, and also restrained from committing any further or other waste, spoil, or destruction, in and about or to the said estate and premises or any part thereof. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. D., who is made party defendant to this bill, may be required to make full and direct answer to the same ; but not under oath, the answer under oath being hereby warned; and that upon the final hearing hereof, the defendant may be decreed to -p 11 * the said premises into such repair and con- dition, in every respect, as far as circumstances will permit, as the same were in at the time he entered upon the same under said lease as aforesaid ; and to make a reasonable compensation to your orator for all wastes done, committed or suffered by him on the said premises, and all damages occasioned thereto by his mismanagement or neglect ; and that he may be decreed to keep the said premises in good and sufficient repair and condition during the remainder of his time therein, and to manage and cultivate said farm and lands in a proper and hus- bandlike manner, according to the custom of the country; and that he may be restrained by the order and injunction of the court from ploughing up the said remaining pasture-fields forming part of said demised premises, and from committing or permitting any further waste or spoil in, on or to the said premises, or any part thereof; and that your orator may have such other and further relief in the" premises as equity may require and to your honor shall seem meet. May it please, etc. {Conclude with a prayer for summons and injunction, and affidavit as m, Wo. 1J$, ante, page 406.) CHAPTEE XXXVm. BILLS RELATING TO TBU8TB. Section 1. Nature of, btc. 2. Fosm of Bills. SECTION I. NATURE OF, ETC. Chancery always has jurisdiction to enforce a trust, and for this purpose may appeal to the conscience of the trustee ; and, although the trust may he established by other evidence, this does not impair the jurisdiction of a court of chaneeiy to enforce the trust, (a) If a trustee neglects his duties as trustee, a court will remove him aniappoint another. (J) While a court of equity will not enforce the acceptance of a trust, it will, when it is voluntarily assumed, enforce a faithful execution of it, for the preservation of rights depending upon and derivable from it. (c) Where a conveyance is made to several, in trust, the failure of one of the co-trustees to act will not defeat the conveyance. In such a case equity will entertain jurisdiction, for the pur- pose of preserving the trust, (d) After a trust has been declared in a deed, the grantor, by express agreement or otherwise, has no power to alter and change the terms or conditions of the trust. The beneficiaries (a) Goates vn.Woodworth, 13 111. 654; Norton vs. Mxon, 25 111. 440 ; see Doyle vs. Murphy, 22 HI. 502. (6) Lill va. Neafie, 31 HI. 101 ; see Attorney General vs. Garrison, 11 Mass. 223. (e) Cooper vs. McClun, 16 111. 435 ; see NiehoU vs. Ogden, 29 El. 323 ; Dorsey vs. Garey, 30 Md. 489. (d) NiehoU vs. MiOer, 37 111. 388; McCosker vs. Brady, 1 Barb. Ch. R. 329. 570 BILLS RELATING* TO TRUSTS. Nature of, etc take by the deed a vested interest that is not subject to the control of the grantor, nor to any change by the trustees, (e) In all cases, in order to invoke the interposition of a court of equity, the trust and the abuse of it must be clearly estab- lished in accordance with the rules by which courts are gov- erned in administering justice. (/") Courts of chancery have power, in cases of necessity, to order a disposition of trust estates which is not in accordance with the provisions of the deed creating the trust. This power will, however, be exercised with great caution ; and it is the duty of the court, when unforeseen exigencies arise, which make its exercise necessary, to place itself in the position of the creator of the trust, and to do as he would have desired if he had an- ticipated the existing circumstances, {g) Where the sole trustee for infants, appointed under a will, dies, and the will does not provide for the appointment of a successor, a court of equity will appoint one. (A) And where it was shown that the cestui que trust was prohibited by the laws of the state from coming within its limits, the court sub- stituted for such trustee, a person living in the state where the cestui que trust resided. (*) Where an estate is given to trustees, to be disposed of by them at their discretion for the support of a cestui que trust, a court of equity will not interfere to control that discretion, unless there has been abuse of the trust, (j) (e) McDonald vs. Starkey, 42 111. 442; Padfield vs. Padfield, 72 HI. 322. (/) Happy vs. Morton, 33 111. 398; s^e Brunnenmeyer vs. Buhre, 32 111. 183; Marlow vs. Marlow, 77 111. 633. (q) Curtiss vs. Brown, 29 111. 201; see Alemany vs. Wensinger, 40 Cal. ' 288; Jenkins vs. Dolittle, 69 111. 415. [h] Dunscomb vs. Dunscomb, 2 Hen. & M. 11; Ouion vs. Pickett, 42 Miss. 77; Buchanan vs. Hart, 31 Texas, 647. (0 Ex parte Tunno, 1 Bailey, Ch. 395; see Maxwell vs.Finnie, 6 Cold w. Tenh. 534. (j) Smith vs. Wildham, 37 Conn. 384; see Adams vs. Adams, 79 111. 517; ' Steele vs. Clark, 77 111. 471; Emmons vs. Moore, 85 111. 304; Atty. Gen. vs. III. Ag. College, 85 111. 516. BILLS KELATING TO TKUSTS. 571 Form of Bill to Remove Trustee. SECTION II. FOKM OF BILLS. Wo. 210. Bill to remove trustees, for injunction and receiver. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your orator, A. B., and your oratrixes, B. B., the wife of A. B., and C. B., the daughter and only child of A. B. and B. B., all of, etc., respectfully represent unto your honor, that on, etc., a cer- tain deed of conveyance of that date was executed between your orator, A. B. and your oratrix, B. B., his wife, of the one part, and C. T>. and E. F., of, etc., the defendants hereinafter named, of the other part, which said deed is in the words and figures and to the purport following, that is to say, (Sere set out copy of deed verbatim,) as by the said deed, ready to be produced in court, will appear. Your orator and oratrixes further represent, that the defend- ant C. D. has principally acted in the trust of the said deed, and has^ by virtue thereof, from time to time, received consid- erable sums of money and other effects, but he has applied a small part thereof upon the trusts of the said deed, and has applied and converted the residue thereof to his own use ; and, in particular, the said C. D. has, within a few months past, received a considerable sum of money from the estate and effects of the said I>. B., the whole of which he applied to his own use. Your orator and oratrixes further represent, that they have repeatedly applied to the defendants for an account of the said trust property received and possessed by them,, and of their application thereof. And your orator and oratrixes well hoped that the defendants would have complied with such reasonable request, as in equity they ought to have done. But now so it is, the defendants combining and confederating, and contriving so to wrong and injure your orator and oratrixes in the premises, absolutely refuse to comply with such requests ; and pretend that the trust property and effects possessed and received by them were to an inconsiderable amount, and that they have' duly applied the same upon the trusts mentioned in said deed. Whereas your orator and oratrixes charge the contrary of such pretenses to be the truth; and that so it would appear if the 572 BILLS EELATING TO TKUSTS. Form of Bill to Remove Trustee. defendants would set forth, as they ought to do, a full and true account of all and every the said trust property and effects which they have respectively possessed and received, and of their application thereof. Your orator and oratrixes further represent, that the de- fendant C. D. threatens and intends to use other parts of the said trust property, and to apply the same to his own use, and will do so, unless he is restrained therefrom by the injunction of this court ; that both said defendants ought to be removed from being trustees under the said deed, and that some other person or persons ought to be appointed by this court, as such trustees in their place and stead; and that in the meantime some proper person ought to be appointed to receive, take charge of and collect the said trust property. Forasmuch, therefore, as your orator and oratrixes are with- out remedy in the premises, except in a court of equity ; and to the end that the said C. D. and E. F., who are made parties defendants to this bill, may be required to make full and direct answer to the same, but not under oath, the answer under oath being hereby waived ; and set forth a true and perfect account in items of all the trust funds and effects received by them re- spectively, by virtue of the said deed, and of their application thereof; and that upon the hearing hereof an account may be taken of all and every the said trust property and effects, which have, or but for their willful default or neglect might have, been received by them, or either of them, or by any other person or persons, by their or either of their order, or to their or either of their use ; and also an account of their application thereof; and that the defendants may respectively be decreed to pay what shall appear to be due from them upon such account ; and that the defendants may be removed from being trustees under the said deed ; and that two other persons may be ap- pointed trustees under the said deed in their place and stead ; and that in the meantime some proper person may be appointed to receive and collect the said trust estate and effects ; and that your orator and oratrixes may have such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please your honor, etc. {Mere insert prayer for injunction and summons and affidavit, as in No. W8, ante, page 3J$.) BILLS RELATING TO TETJSTS. 573 Form of Bill for Appointment of New Trustee, etc No. 911. Bill for the appointment of a new trustee under marriage settlement. To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : Your orator A. B., and oratrix B. B., his wife, and your orators C. B. and D. B., minors, under the age of twenty-one years, by the said A. B., their father and next friend, and your orator E. F., all of, etc., respectfully represent unto your honor, that on, etc., your orator A. B. and oratrix B. B., then B. E., being about to be united in the bonds of matrimony, entered into an ante-nuptial contract or marriage settlement, signed by each, and bearing date on that date, which is in the words and figures and to the purport following, that is to say : (Mere insert copy of marriage settlement verbatim,) as by the said instrument, ready to be produced in court, will appear. Tour orators and oratrix further represent, that the said ante- nuptial contract or marriage settlement contains no power or authority to appoint a new trustee in the place or stead of either of the said trustees therein named, who should decline to act in the said trusts, or be desirous to be removed there- from, as by the said instrument will appear. Your orators and oratrix further represent, that the said in- tended marriage was soon afterwards, to-wit, on, etc., had and solemnized between your orator A. B. and oratrix B. B. ; and that your orators C. B. and T>. B. are the only children born of such marriage. That the said G. H., the defendant hereinafter named, one of the trustees named in the said instrument, as co-trustee of your orator E. F., declines to act in the trust of the said instrument, and is desirous to be relieved and dis- charged therefrom, but by reason that no power is reserved in the said instrument for the appointment of a new trustee, your orators and oratrix are advised that he cannot be discharged from such trust, nor any new trustee appointed in his stead, without the aid of a court of equity. Forasmuch, therefore, as your orators and oratrix are without remedy in the premises, except in a court of equity ; and to the end that the said G. H., who is made party defendant to this bill, may be required to make full and direct answer to the same, but not under oath, the answer under oath being hereby waived ; and that the court may appoint a new trustee under the said marriage settlement, in the place and stead of the defend- ant; and that the defendant may be decreed to join in such 574 BILLS RELATING TO TRUSTS. Form of Bill for Appointment of New Trustee, etc. instrument or instruments as may be necessary to convey or release the said trust premises to your orator E. F., his co- trustee, and such new trustee upon the trusts of the said mar- riage settlement ; and that thereupon the defendant may be discharged from the trusts of the said instrument; and that your orators and oratrix may have such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sheriff of the said county of , com- manding him that he summon the defendant G-. H. to appear before the said court, on the first day of the next — = — term thereof, to be held at the court house in , in the county of aforesaid, then and there to answer this bill. , Sol. for ComplaJmwnta. CHAPTER XXXIX. PBOCEEDINGS TO ENFORCE MECHANIC'S LIEN. Section 1. Nature of. 2. Where a Lien is Given. 3. The Contract upon which it is Founded 4. Discharge of Lien. 5. Limitation of Lieu. 6. Incumbrances and Other Liens. 7. Sub-Contractor's Lien. 8. Bills and Petitions. 9. Proceedings Upon. 10. Amendments. 11. Answer. 12. Cross-Bill. 13. Decrees. 14. Costs. SECTION I. NATURE OF. Proceedings to enforce mechanics' liens being in derogation of the common law, and deriving all their validity from the statutes, mnst, in all essential particulars, conform to the requirements of the statutes. The statutes in reference to liens have been thoroughly revised by the legislature at its adjourned session of 1874, and the mode of proceeding is plainly pointed out in its numerous provisions. The pleadings are made up as in other cases in chancery, and the practice and proceedings are, in the main, governed by the same rules as in other equitable suits, (a) <■ The mechanic's lien law only applies to individuals and private corporations ; it does not apply to work done on state, county, city or other public corporations, (a?) (a) Kimball vs. Cook, 1 Gilm. 430; Sutherland vs. Ryerson, 24 111. 518; Brady vs. Anderson, 24 111.112; Hamilton vs. Dunn, 22 111. 259; Westwa. Fleming, 18 111. 248. (x) Thomas vs. Ind. University, 71 111. 310; Board of Ed. vs. Neiden- berger, 78 111. 58; Thomas vs. Urbana School Dist., 71 111. 283; Bouton vs. Supervisors etc., 84 111. 384. 576 MECHANIC'S LIEN. Where a Lien is given. SECTION II. WHERE A LIEN IS GIVEN. The revised act of 1874 provides, (§ 1.) " That any person who shall, by contract, express or implied, or partly expressed and partly implied, with the owner of any lot or piece of land, furnish labor, or material, or service as an architect or superintendent, in building, altering, repairing or ornamenting any house or other building or appurtenances thereto on such lot, or upon any street or alley, and connected with such building or appurtenance, shall have a lien upon the whole of such tract of land or lot, and upon such house or building and appurtenances for the amount due to him for such labor, material or services." House painters are within the protection of the mechanic's lien law, which secures to persons who furnish labor, materials for erecting, etc., a building. (5) The Hen commences on the delivery of the materials or th'e performance of the labor, and not from the date of the con- tract. It is not the contract which creates the lien, but the use of the materials or labor furnished under a contract for that purpose, (c) If the materials furnished and used become severed from the freehold by fire, the lien is not thereby destroyed, (d) There must be an actual use of the materials or labor on the building, or the lien will not attach, (e) Where lumber and materials are furnished on an open account, without reference to its being used in any particular building, the. lien will not be enforced. The contract must refer to some particular build- ing in order that the lien may take effect, {f) In a proceeding to establish a lien to secure payment for (6) Martine vs. Nelson, 51 111. 432. (c) McLaganvs. Brown, 11 111.519, 536; Williams vs. Chapman, 17 111. 435; Hunter vs. Blanchard, 18 111. 318. (d) Gaty vs. Casey, 15 111. 190; Steigleman vs. McBride, 17 111. 300; Sontag vs. Brennen, 75 111. 279. , (e) Hunter vs. Blanchard, 18 111. 318. (/) Hill vs. Bisho/i, 25 111. 349; Burhhart vs. Reisig, 24 III. 532. MECHANIC'S LIEN. 577 Where a Lien is given — Extent of, etc. lumber sold by the complainant to the defendant, the evidence showed that the lumber was used in completing the building on the defendant's premises, and that it was furnished for that purpose at his request. This was regarded as sufficient to bring the case within the statute of 1861. (g) Suits by and against administrators, etc. — The statute pro- yides that, (§ 26.) " Suits may be instituted under the provisions of this act, in favor of administrators or executors, and may be main- tained against the representatives in interest of those against whom the cause of action accrued; and in suits instituted under the provisions of this act, the representatives of any party who may die pending the suit, shall be made parties." Estate to which lien attaches. — The statute provides that, (§ 2.) " The lien provided for in sections one and twenty- nine of this act shall extend to an estate in fee, for life, for years, or any other estate, or any right of redemption or other interest which such owner may have in the lot or land at the time of making the contract." A widow's dower cannot be affected by a mechanic's lien. (A) But where the contract was made by the husband, for a build- ing on the wife's separate property, with her knowledge, appro- bation and consent, the property is subject to the lien. («) A contract with an infant is not binding upon him, and there can be no lien on his land for labor or materials, (j) Extent of lien. — The statute provides that, (§ 21.) '' Whatever right or estate such owner had in the land at the time of making the contract, may be sold, and the proceeds of the sale applied according to the provisions of this act." (k) (g) Corey vs. Croskey, 57 111. 251. (A) Sliaeffer vs. Weed, 3 Gilm. 511. (i) Schwartz vs. Saunders,4S 111. 18 ; see Baxter vs. HutcMngs, 49 111. 116. , (J) McCarty vs. Carter, 49 111. 53. (k) See Kidder vs. Alwltz, 3G 111. 478 ; Donaldson vs. Holmes, 23 111. 85. 37 578 MECHANIC'S LIEN. Where a Lien is given — Extent of Lien. If the person who procures the work to be done, or materials to be furnished, has any estate less than a fee simple, or if the lands are incumbered in any way, the person who procured the work to be done, or materials to be furnished, will, neverthe- less, be considered the owner to the extent of his interest or. right in the premises ; and the lien will bind his whole estate or title in the same manner that a mortgage would have done, and his whole estate may be sold and the proceeds applied to pay the debts and liens on the same. (5) Where A. bought land and took only a contract for a deed when he paid the purchase money, and afterwards, with the knowledge of his vendor, contracted for the erection of a house, it was held that he was the owner within the meaning of the statute ; and in this case the court ordered the land to be sold and the mechanics to be first paid out of the proceeds, and the balance to the vendor of the land, (m) .The fact that only one of the defendants owned the land will not defeat the lien, (n) And where one member of a firm owns a lot, and the firm ordered materials and made the im- provement, the lien would hold, notwithstanding the title was in one member, and a note was given by the firm in payment for such materials, (o) Where the real owner of land stands by and suffers another to contract for the building of a house upon it, he will be estopped from Betting up title to defeat the lien, (j?) A person in possession of public lands has an estate in the premises subject to a mechanic's lien, (y) but the decree can only affect the interest which the defendant has in the pro- perty, (r) Where labor or materials are furnished on separate lots, the (Z) Tvrney vs. Hmmfhrs, 4 Scam. 531; Dobschuets vs. Hollidmj, 82111. 372. (m) Donaldson vs. Holmes, 23 111. 85. (n) Roach vs. Chopin, 27 111. 197 ; Van Qowrt vs. BushneU, 21 111. 626. (o) Croskey vs. Corey, 48 111. 444. (p) Donaldson vs. Holmes, 23 111. 85 ; Higgin vs. Ferguson, 14 111. 270, Schwartz vs. Saunders, 46 111. 18 ; Baxter vs. Hatchings, 49 111. 116. {q) Twrney vs. Saunders, 4 Scam. 527. (r) Garrett vs. Sterevson. 3 Gilm. 261; Judson vs. Stephens, 75 111. 255. MECHANIC'S LIEN. 579 Contract upon which it is Founded — Implied Contract, etc. lien will be against each lot separately, for the amount of labor or materials furnished on each respectively. But where they are furnished to build one block, all under one roof, all compact as one building, though covering more than one lot, it was held proper to decree a lien against the entire block which the building covered, (s) section in. THE CONTRACT UPON WHICH IT IS FOUNDED. Within what time to he completed. — The statute provides that, (§ 3.) " When the contract is expressed, no lien shall be created under this act, if the time stipulated for the completion of the work or furnishing materials is beyond three years from the commencement thereof, or the time of payment beyond «ne year from the time stipulated for the completion thereof. If the work is done or materials are furnished under an implied contract, no lien shall be had by virtue of this act, unless the work shall be done or materials be furnished within one year from the commencement of the work or delivery of the mate- rials." Where there was an expressed contract, it was held that the time for completing the work or furnishing the materials should be specified in the contract or the lien would not attach, (t) Implied contracts. — The contract must have reference to some particular tract of land or town lot, in order that a lien may take effect, (u) But where a contract is made to furmish materials for a building in process of erection, it is sufficient, although the ground upon which it is erected is not described. Where materials are furnished and placed in a building, if there (s) James vs. Hambleton, 42 111. 310. {t) Cook vs. Vreeland, 21 111. 436; Seniorvs. Brebnar, 22 111. 252; Moter vs. Matt, 24 HI. 198; Coburn vs. Tyler, 41 111. 354; Baxter vs. Hutchings, 49 111. 116; see Clark vs. Manning, 90 111. 380. (mJ Burkhart vs. Reisig, 24 111. 532. 580 MECHANIC'S LIEN. Contract on which it is Founded — Discharge of Lien. is nothing showing a different intention, a jury would be war- ranted in finding that they were furnished to be used in such building, (v) The law implies a contract to pay for the work when it shall be done, if other terms are not specified, (w) Owner of la/ad failing to corn/ply with contract. — The statute provides that, (§ 11.) " When the owner of the land shall have failed to perform his part of the contract, and by reason thereof the other party shall, without his own default, have been prevented from performing his part, he shall be entitled to a reasonable com- pensation for as much thereof as he has performed, in proportion to the price stipulated for the whole, and the court shall adjust his claim accordingly." Materials furnished contractors. — Where a party contracts to build a house, and other parties furnish materials, which are used in the building, on the credit of the contractor, the material men have no lien on the building for materials so furnished, (a?) SECTION IV. DISCHARGE OF LIEN. A note, unless taken in payment absolutely, will not dis- charge a lien, (y) although it bears interest. (2) But where a note of a firm is taken in satisfaction for work and materials furnished to one of the partners, and the settlement is made in •accordance with the usual mode of doing business between the parties, and the property against which the lien is claimed has been sold on a trust deed, a mechanic's lien cannot afterwards be sustained against the premises for said work and mate- rials, (a) (®) Power vs. McGord, 36 III. 214; Martin vs. Mersai, lb. 222. (w) Claycomb vs. Cecil, 27 111. 497. (as) Wetherill vs. OMendorf, 61 111'. 283. [y) Van Court vs. Buslmell, 21 111. 626. (2) Brady V8. Anderson, 24 111. 113 ; see Cowle vs. Varnum, 37 111. 181. (a) Benneson vs. Thayer, 23 111. 374 ; see Groskey vs. Corey, 48 111. 442. MECHANIC'S LIEN. 581 Limitation of Lieu, etc. If it appears that a petitioner has taken other security, either on property or of persons, to satisfy him for his labor and materials, the statutory lien will be discharged, (b) But an agreement to extend the time of payment beyond a year, pro- vided a mortgage should be given, will not defeat a mechanic's lien if the mortgage should not be executed. The giving of the mortgage in such case is a condition precedent, (c) A party does not waive his right to enforce a mechanic's lien by commencing a suit in attachment, as they are concurrent remedies, (d) And the pending of a proceeding for mechanic's lien cannot be pleaded in abatement of an action to recover the value of the labor and materials, (e) SECTION V. LIMITATION OF LIEN. As against owner. — It was held, under the law of 1839, that there was, under the law, no limitation in time upon the right of the creditor to enforce his lien against the debtor, (f) And there is no change in that respect in the present statute. As against creditors etc. — The statute of 1879 provides that (§ 2S.) " No creditor shall be allowed to enforce the lien created under the foregoing provisions, as against or to the prejudice of any other creditor or any incumbrance or pur- chaser, unless suit be instituted to enforce such lien within six months after the last payment for labor or materials shall have become due and payable." (g) The provision df the statute, that if the mechanic or ma- terial man fails to assert his rights within six months after the (b) Kinzey vs. Thomas, 28 111. 502; see Conover vs. Warren, 1 Gilni. 501; Croskeyvs. Corey, 4? 111. 444; Gardner vs. Hall, 29 111. 277; Clement vs. Newton, 78 111. 427. (c) Gardner vs. Hall, 29 111. 277. (d) West vs. Fleming, 18 111. 248; Culver vs. Elwell, 73 111. 536 (e) Delahay vs. Clement, 3 Scam. 201. (/) Garrett vs. Stevenson, 3 Gilm. 261. (g) Laws of 1879, p. 191; hunt vs. Stephens, 75 111. 507; Beitz vs. Coyer, 83 111. 28; Crowl vs. Nagle, 86 111. 437; Rogers vs. Powell, 1 Bradwell, App. a. E. 631. 583 MECHANIC'S LIEN. Incumbrances and other Liens, eta last payment shall have become due under his contract, the lien created by the statute shall not prevail against the rights of creditors of the party with whom the contract was made, is for the benefit of the creditors, and has no application as between the mechanic or material-man and the principal debtor, (h) SECTION VI. INCUMBRANCES AND OTHER LIENS. Prior incumbrances. — A mechanic's lien takes precedence of prior incumbrances to the extent of the improvements made under such contract, (i) An incumbrancer anterior to the mechanic's lien looks to the premises as they were at the time of his incumbrance for the satisfaction of his debt, and the mechanic or material-man to the additions for his, unless the proceeds will pay both. (J) The statute of 1874 provides that, (§ 17.) " No incumbrance upon land created before or after the making of a contract under the provisions of this act shall operate upon the building erected or materials furnished until the lien in favor of the person doing the work or furnishing the materials shall have been satisfied; and upon questions arising between previous incumbranees and creditors, the pre- vious incumbrance shall be preferred to the extent of the value of the land at the time of making the contract, and the court shall ascertain, by jury or otherwise, as the case may require, what proportion of the proceeds of any sale shall be paid to the several parties in interest." * Rule for adjusting conflicting claims. — The rule for the ad- justment of the different rights of parties holding separate liens upon property which is sought to be subjected to the payment of a : — (h) Van Pelt vs. Bunford, 58 m. 145. (t) Shaeffer vs. Weed, 3 Gilm. 511 ; Raymond vs. Ewing, 26 111. 343. (j) Smith vs. Moore, 26 111. 392 ; Brown vs. Moore, lb. 421 ; Croskey vs. N. W. Manuf. Co. 48 111. 481 ; Howett vs. BeJby, 54 HI. 151 ; Raymond vs! Emng, 26 111. 329 ; Gaty vs. Casey, 15 111. 190 ; Lomax vs. Bore, 45 111. 380. MECHANIC'S LIE},. 583 Incumbrances and other Liens — Conflicting Liens. a mechanic's lien is this : Neither prior or subsequent incum- brances can operate upon the building erected or the materials furnished to the prejudice of the persons performing the labor or furnishing the materials ; a prior incumbrance shall be pre- ferred to the extent of the value of the land at the time of making the contract for the erection of the building, and lie also has a subsequent lien on the building, subject to the iirst lien of the mechanic, and the mechanic, in like manner, has a prior lien on the building and a subsequent lien on the land. Each may have his debt satisfied out of the fund upon which he has a first lien, and if that should be insufficient, then the residue out of any surplus of the other fund which might remain after satisfying the prior lien thereon, (k) In order to know what proportion of the proceeds of the sale of the premises should be paid to the prior incumbrancer and upon the mechanic's claim respectively, the court should by a jury or master, ascertain the separate value of the land and of the building, and direct the distribution of the pro- ceeds according to the respective rights of the parties as fixed by the foregoing rule. (J) Ccmflictvng liens. — The statute .provides that, (§ 14:.) " Upon questions arising between different creditors having liens under this act, no preference shall be given to him whose contract was first made. (§ 15.) " The court shall ascertain the amount due each creditor, and shall direct the application of the proceeds of sales to be made to each in proportion to their several amounts." (m) It is suggested as a better practice to impanel a jury to find the amount due each claimant, as if there were separate pro- ceedings ; but where there are few claimants, and there is no (k) North Presbyterian Church of Chicago vs. Jevne, 32 111. 214; Croskey vs. N. W. Manuf. Co., 48 111. 481; Dingledine vs. Hershman, 53 11). 280; Howett vs. Selbf), 54 111. 151 ; Tracy vs. Rogers, 69 111. 662; Lunt vs. Stephens, 75 111. 507; Grwideis vs. Hartwell, 90 111. 824. (I) N. Pres. Church vs. Jevne, 32 111. 214; Croskey vs. N. W. Manuf. Co., 48 111. 481 ; see Rogers vs. Powell, 1 Bradwell, App. C. R. C31. (m) Power vs. McCord, 36 111. 214;. Croskey vs. Corey, 48 111. 442; see Raymond vs. Etoing, 26 111. 329; Buchter vs. Dew, 39 111. 40. 584 MECHANIC'S LIEN. Conflicting Liens, etc. complication, no objection is perceived to submitting all the claims to the same jury, (n) Where damns are not due. — The statute provides that, (§ 16.) " Parties entitled to liens under this act, whose claims are not due or payable at the time of the commencement of suit by any other party, shall be permitted to become parties to the suit, and their claims shall be allowed, subject to a reduc- tion of interest from the date of judgment to the time such claim is due or payable." (o) Parties claiming liens may_ contest each other's rights. — It is provided that, (§ 18.) " Parties claiming may contest each other's rights, as well with respect to amount due, as with respect to their right . to the benefit of the lien hereby created ; and upon all questions made by parties, the court shall require issues of law or fact to be formed so as to bring about speedy decision thereof." Fraudulent incumbrances. — The statute provides that, (§ 19.) " Any incumbrance, whether by mortgage, judgment or otherwise, charged and shown to be fraudulent in respect to creditors, may be set aside by the court, and the premises made subject to the claim of the complainant or petitioner, freed and discharged from such fraudulent incumbrance." Delay in one case not to delay trial in respect to others. — It is provided by the statute that, (§ 20.) " In no case shall the want of preparation for trial of one claim delay the trial in respect to others, but trial shall be had upon issues between such parties as are prepared, without reference to issues between other parties ; and when one credi- tor shall have obtained a decree or judgment for the amount due, the court may order a sale of the premises on which the lien operates, or a part thereof, so as to satisfy the judgment : Provided, that the court may, for good cause shown, delay (to) Power vs. McOord, 36 111. 214 (o) See Kinney vs. Hudnvi, 2 Scam. 472. MECHANIC'S LIEN. 585 Sub-Contractor's Lien. making any order of sale or distribution until the rights of all parties in interest are ascertained and settled by the court." SECTION VII. sub-oonteaotoe's lien. The statute provides that, (§ 29.) " Every sub-contractor, mechanic, workman or other person, who shall hereafter, in pursuance of the purposes of the original contract between the owner of any lot or piece of ground, or his agent and the original contractor, perform any labor or furnish any materials in building, altering, repairing, beautifying or ornamenting any house or other building or appurtenance thereto, on such lot or on any street or alley, and connected with Buch building or appurtenances, shall have a lien for the value of such labor and materials upon such house or building and appurtenances^ and upon the lot or land upon which the same stands, to the extent of the right, title and in- terest of such owner at the time of making the original con- tract for such house or the improvement ; but the aggregate of all the liens hereby authorized shall not exceed the price stipulated in the original contract between such owner and the original contractor for such improvement. ' In no case shall the owner be compelled to pay a greater sum for or on account of such house, building or other improvement than the price or sum stipulated in said original contract or agreement : Pro- vided, if it shall appear to the court that the own%r and con- tractor fraudulently, and for the purpose of defrauding sub- contractors, fixed an unreasonably low price in the original contract for the erection or reparation of such building, then the court shall ascertain how much of a difference exists between a fair price for the labor or materials used in said building or other improvements, and the sum named in said original con- tract, said difference shall be considered a part of the contract and be subject to a lien ; but in no case shall the original con- tractor's time or profits be secured by this lien, only so far as the sum named in the original contract or agreement." 586 MECHANIC'S LIEN. Sub-Contractor's Lien — Notice to Owner, etc. Notice to be given to owner. — (§ 30.) " The person perform- ing such labor, or furnishing such materials, shall cause a notice, in writing, to be served on such owner or his agent, substan- tially in the following form : ' To : You are hereby notified that I have been em- ployed by , to {Here state whether to labor or furnish materials, and substantialVy the nature of the undertaking or demand) upon your (here state the building, and where situ- ated, in general terms) ; and that I shall hold the (building, or as the case may be,) and your interest in the ground liable for the amount that is (or may become) due me on account thereof. [Date] [Signature] ' " Copy of cont/ract to be served on owner. — (§ 31.) " If there is a contract in writing between the original contractor and the sub-contractor, a copy of such sub-contract, if the same can be obtained, shall be served with such notice and attached thereto, which notice shall be served within forty days from the com- pletion of such sub-contract, or within forty days after payment should have been made to the person performing such labor or furnishing such materials." Notice to be fled with circuit clerk, etc. — (§ 32.) " In all cases where the owner cannot be found in the county in which said improvement is made, or shall not reside therein, the person furnishing labor or materials shall file said notice in the office of the clerk of the circuit court, who shall enter, in a book to be kept for that purpose, alphabetically, the names of the own- ers, and opposite thereto the names of the persons claiming liens, for which the clerk shall receive a fee of fifty cents. A copy of said notice shall be published in some newspaper printed in said county, for four successive weeks after filing such notice with the clerk as aforesaid. If, however, there- is no paper published in said county, then the claimant of the lien shall post notices in four of the most public places in the vicinity of said improvement." Extent of lien. — (§ 33.) " No claim of any sub-contractor, mechanic, workman, or other person, shall be a lien under section twenty-nine of this act, except so tar as the owner may MECHANIC'S LIEN. 587 Sub-Contractor's Lien, etc. be indebted to the contractor at the time of giving such notice, as aforesaid, of such claim, or may become indebted afterward to him as such contractor." Owner may retain money to pay sub-contractor. — (§ 34.) " TThen the owner or his agent is notified, as aforesaid, he may retain from any money due or to become due the original con- tractor, an amount sufficient to pay all demands that are or will become due such sub-contractor, mechanic, workman, or other person so notifying him, and may pay over the same to the persons entitled thereto. In case there is not a sufficient amount due to such original contractor to pay such persons so entitled in full, the same shall be divided and paid to such persons pro rata, in proportion to the amounts due them respectively at the time of snch payment. All payments so made shall, as between such owner and contractor, be con- sidered the same as if paid to such original contractor." Statement of persons employed to be furnished the owner. — (§ 35.) " The original contractor shall, as often as requested, in writing, by the owner, or lessee, or his agent, make out and give to him a statement of the number of persons 'in his employ, and sub-contractors, giving their names and the rate of wages or terms of contract, and how much, if anything, is due to them or any of them — which statement shall be made under oath, if required. (§36.) "If any contractor shall fail to furnish such state- ment within five days after demand made, as aforesaid, he shall forfeit to such owner the sum of fifty dollars for every such offense, which may be recovered in an action of debt, before a justice of the peace." WJien sub-contractor may enforce lien. — (§ 37.) " If the money due to the person giving such notice shall not be paid within ten days after service thereof, as aforesaid, or within ten days after the money shall become due and payable, and any money shall then be due from such owner to the original con- tractor, then such person may file his petition and enforce his 588 MECHANIC'S LIEN. 4 Sub-Contractor's Lien, etc. lien, in the same manner as hereinbefore provided in case of original contractors ; or he may sue the owner and contractor jointly for the amount due him, in any court having jurisdiction of the amount claimed to be due, and a personal judgment may be rendered therein as in other cases." Judgment before justice of the peace. — (§ 38.) "If execution issued on a judgment obtained before a justice of the peace shall be returned not satisfied, a transcript of such judgment may be taken to the circuit court, and spread upon the records thereof, and execution issued thereon as in other cases." Ovmer, etc., may file bill, etc. — (§ 39.) "If there are several liens, under section twenty-nine, upon the same premises, and the owner, or any person having such lien, shall fear that there is not a sufficient amount coming to the contractor to pay all of such liens, such owner, or any one or more persons having such lien, may file his or their sworn bill or petition in the circuit court of the proper county, stating such fact, and such-other facts as may be sufficient to a full understanding of the rights of the parties. The contractor and all persons having liens upon, or who are interested in the premises, so far as the same are known to or can be ascertained by the claimant or petitioner, upon diligent inquiry, shall be made parties. Upon the hearing, the court shall find the amount coming from the owner to the contra tor, and the amount due to each of the persons having liens ; and in c:ti~e the amount found to be coming to the con- tractor shall be insufficient to discharge all the liens in full, the amount so found in favor of the contractor shall be divided between the persons entitled to such liens pro rata in propor- tion to the amounts so found due to them, respectively. If the amount so found to be coming to the contractor shall be suffi- cient to pay such liens in full, the same shall be so ordered. The premises may be decreed to be sold for the payment of such liens as in other cases." Proving claims, etc. — (§ 40.) "All persons who shall be duly notified of such proceeding, and who shall fail to prove MECHANIC'S LIEN. 589 Sab-Contractor's Lien — Contractors may give Bond, etc their claims, whether the same be in judgment against the owner or not, shall forever lose the benefit of and be precluded from their liens and all claims against the owner. (§ 41.) " Upon the filing of such bill or petition, the court may, on motion, of auy person interested, stay any further pro- ceedings upon any judgment against the owner on account of such lien." Contractor may give bond, etc. — (§ 42.) "Upon entering into a contract to do any work or furnish materials for which a lien might accrue under section one of this act, if the contractor will enter into a bond with the owner, for the use of all persons who may do work or furnish materials pursuant to such con- tract, conditioned for the payment of all just claims for such work or materials as they become due (which bond shall be in such an amount, not less than the price agreed to be paid for the performance of such contract, and with such surety as shall be approved by the judge of the circuit court, or a master in chancery of said court), and shall file the same in the office of the clerk of said court, then no lien shall attach in favor of such sub-contractor, mechanic or other person. (§ 43.) " A like bond may be made and filed, as provided in the foregoing section, at any time after the making of such contract, and shall have the effect to discharge all such liens as shall have accrued before the filing thereof, and to prevent the accruing of any such liens thereafter. (§ 44.) " Any person having a claim against such contractor for work done or materials furnished pursuant to such contract may put the said bond in suit for his use, or in case the same shall have been put in suit, have his damages assessed as in other suits upon penal bonds." Where contractor fails to complete his contract.^- (§ 45.) "Should the original contractor, for any cause, fail to com- plete his contract, any person entitled to a lien as aforesaid, may file his petition in any court of record, against the owner and contractor, setting forth the nature of his claim, the amount due, as near as may be, and the names of the parties employed 590 MECHANIC'S LIEN". Bills and Petitions. on such house or other improvement subject to liens; and notice of such suit shall be -served on the persons therein named ; and such as shall appear shall have their claims adju- dicated, and decree shall be entered against the owner and original contractor for so much as the work and materials shall be shown to be reasonably worth according to the original con- tract price, first deducting so much as shall have been rightfully paid on said original contract by the owner, and damages, if any, that may be found to be occasioned the owner by reason of the non-fulfillment of the original contract, the balance to be divided between such claimants in proportion to their respect- ive interests, to be ascertained by the court. The premises may be sold as in other cases under this act. (§ 46.) " No payments to the original contractor or to his order shall be regarded as rightfully made, if made in violation of the rights and interests of the persons intended to be bene- fited by this act." Lvrmtation. — (§ 47.) " No petition shall be filed or suit commenced to enforce the lien created by section twenty-nine, unless the same is commenced within three months from the time of the performance of the sub-contract, or during the work or furnishing materials, as aforesaid : Provided, if any delay in filing such petition or commencing suit is caused in consequence of the amount not being due the original con- tractor, the time of such delay shall not be reckoned." SECTION Till. BILLS ASTD PETTnONS. The statute of 1874 provides that, (§ 4.) " The lien given by this act may be enforced by Ml or petition in any court of record of competent jurisdiction in the county in which the land or lot, or some part thereof, lies. (§ 5.) " The bill or petition shall contain a brief statement of the contract on which it is founded, if expressed, or if the MECHANIC'S LIEN. 591 Bill or Petition — Parties to. work is done or materials are furnished under an implied con- tract, the bill or petition shaJJ so state, and shall Bhow the amount due and unpaid, a description of the premises which are subject to the lien, and such other facts as may be necessary to a full understanding of the rights of the parties." The petition or bill should aver that the times for delivery, performance and payment are within the several periods named by the statute ; and these averments must be proved, so that the court may know that the conditions required by the statute have been complied with, (p) The bill or petition must show that the work was completed ; and a contract which does not specify a time within which the work is to be completed and the money is to be paid, is defect- ive, (g) So, also, in regard to the time when materials were to be furnished and paid for under the agreement, (r) If the claimant is entitled to interest, he. should claim it in his bill or petition, or he cannot recover it. (s) Parties. — Suits to enforce a mechanic's lien being a chancery proceeding, all persons interested in the property should be made parties, (i) And persons not parties to the proceeding will not be affected by it. (u) Thus judgment creditors should be made parties, if it is designed to affect or defeat their rights, (v) A widow is not a proper party where her only interest in the premises is her dower, (w) (p)' Cook vs. Heald, 21 111. 429; Phillips vs. Stone, 25 111. 77; Columbus Mach. M. Co. vs. Doncin, lb. 169; Ron-ley vs. James, 31 III. 298; Sutherland vs. Rijerson, '2A III. 517; Powell v«. Webber. 79 111. 134. (q) Rogers vs. Ward, 23 111. 473; Cook- vs. Heald, 21 111 429; Burhhart vs. Reisig, 24 111. 529; Kinzey vs. Thomas. 28 111. 502; see § 11 of revised act of 1874; Grandies vs. Hartwell. 90 111. 324. (r) Cook vs. Rofinot, 21 111. 437; Brady vs. Anderson, 24 111. 112; Bush vs. Connelly, 33 111. 448; see contra Roach vs. Chapin, 27 111. 195. (s) Preseott vs. Maxwell, 48 111. 82; Mills vs. Heeney, 35 111. 173. {t) Lomax vs. Bore, 45 111. 379; Greenleaf vs. Beebe, 80 111. 520. (w) Steigleman vs. McBride, 17 IH. 300; Williams vs. Chapman, Tb. 422; Raymond vs. Ewing, 26 111.. 329; Meeks vs. Sims, 84 111. 422. (v) McLagan vs. Brown, 11 111. 519; see Race vs. Sullivan, 1 BradwelTs App. Gt. R. 04. (k>) Shaeffer v.,. H% t .i, 3 Giliu. 511. 592 MECHANIC'S LIEN. Form of Bill for Lien, on Written Contract. The statute provides that, (§ 12.) " In proceedings und^r this act all persons interested in the subject matter of the suit, or in the premises intended to be sold, may, on application to the court wherein the suit is pending, be made or become parties at any time before final judgment. (§ 13.) "Parties in interest, within the meaning of this act, shall include all persons who may have any legal or equitable claim to the whole or any part of the premises upon which a lien may be attempted to be enforced under the provisions of this act." No. %11i. Bill for a mechanic's lien, on written contract. To the Honorable , Judge of the Court of the County of , in the State of Illinois, In Chancery sitting : Your orator, A. B., of, etc., respectfully represents unto your honor, that he is by occupation a contractor and builder ; that on, etc., one C. D., of, etc., one of the defendants hereinafter named, applied to your orator to build for him a dwelling- house, upon the premises hereinafter named, and thereupon your orator and the said C. D. entered into a written contract, with drawings and specifications attached, in the words. and figures as follows, to wit : {Here set out copy of contract, etc.,) as will appear by the said contract, drawings and specifications ready to be produced in court upon the hearing hereof. Your orator further represents, that immediately after the making of said contract", and in compliance with the terms thereof, he commenced work under the same, on the following described premises, to wit : {Here describe the premises on which building was erected]) the said C. D. being, at the time of the making of the said contract, and still is, the owner of the said premises. Your orator further represents, that he did, in compliance with the said contract, within the time therein specified, erect and finish for the said C. D., on said premises, a dwelling-house, and did furnish all the necessary materials and labor for that purpose, and did in all respects comply with the terms of the said contract, and the specifications and drawings thereto at- tached, by him required to be performed. Your orator further represents, that in accordance with the conditions of the said contract, your orator, on, etc., procured MECHANIC'S LIEN. 593 Form of Bill for Lien, on Written Contract. from E. F., the architect and superintendent of the erection of the said building, a certificate in writing that your orator had completed his part of the said contract according to the terms and conditions thereof, which said certificate is now in the pos- session and control of the said C. D. Your orator further represents, that immediately after the completion of the said building, to wit, on, etc., the said C. D. accepted the same, and took possession thereof, and has ever since occupied the same with his family as a dwelling-house. Your orator further represents, that the said C. D..has only paid your orator the sum of dollars on said contract, and that there is now due to your orator thereon the sum of dollars, from the said 0. D., together with interest thereof from, etc. ; and your orator attaches hereto a schedule, marked A., as a part of this bill, showing the amount due your orator under said contract, and all payments, with the dates thereof^ made by the said 0. D. to your orator. Your orator further represents, that he has frequently re- quested the said C. D. to pay the said sum of dollars, the balance due your orator from him as aforesaid, but the said 0. D. has neglected and refused to do so ; by means whereof your orator is entitled, under the statute in such case provided, to a lien upon the said premises for the amount due your orator as aforesaid. Your orator further represents, upon information and belief, that G-. H. and L. M., of, etc., have or claim, some interests in the said premises, as purchasers, mortgagees, judgment cred- itors, or otherwise, the precise nature whereof is unknown to your orator; but such interests, if any there be, have accrued since, and are subject to the lien of your orator as aforesaid. Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity ; and to the end that the said C. D., G. H. and L. M., who are made parties defend- mts to this bill, may be required to make full and direct an- swer to the same, but not under oath, the answer v/nder oath being hereby waived / that an account may be taken in this behalf under the direction of the court ; that your orator may be decreed to be entitled to a lien upon the said premises for the amount due your orator under the said contract, in pursu- ance of the statute in such case made and provided ; and that the defendant 0. D. may be decreed to pay your orator the amount due, by a short day to be fixed by the court, and that in default of snch payment the said premises may be sold, as the court shall direct, to satisfy such amount and costs ; that in case of such sale and of a failure to redeem therefrom pursuant 38 594 MECHANIC'S LIEN. Petition for Lien, on Verbal Contract. to law, the defendants, and all persons claiming through or under them, after the commencement of this proceeding, /may- be forever barred and foreclosed of all right or equity of re- demption of the said premises ; and that your orator may have such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please your honor to grant the writ of summons in chancery, directed to the sheriff of the said county of , commanding him that he summon the defendants C. D., G. H. and L. M., to appear before the said court, on the first day of the next term thereof, to be held at the court house in , in the county of aforesaid, then and there to answer this bill, etc. {Add schedule A.) No. 813. Petition for mechanics lien, on verbal contract. To the Honorable , Judge of the — — Court of the County of , in the State of Illinois, The petition of A. B. and C. D.", of, etc., partners under the name and style of B. & D., respectfully represents, that your petitioners are, by occupation, builders and dealers in lumber and other building materials, and their place of business is in, etc. That on or about, etc., one E. F., who is made party de- fendant to this petition, applied to your petitioners and desired them to furnish all the materials and labor for, and to build for him a dwelling-house on the following described lot, to wit : {Here describe the premises upon which building was erected f) owned in fee simple by the said E. F. ; and thereupon a verbal contract was entered into between your orators and the said E. F., by which your petitioners were to furnish all the necessary materials, as follows, to wit : {Sere describe materials to be used,) and all necessary labor, and erect for the defendant a dwelling- house ,on the said described lot, and have the same completed, ready for occupancy by, etc. ; and it was agreed by the parties in said contract, that, etc.; {Sere set forth the terms of the con- tract as to how the house should be constructed, finished;) and it was further stipulated and agreed by the defendant that he would pay your petitioners for such materials, and all neces- sary materials and labor upon said building, as much as the same were reasonably worth; and that the defendant would pay to your petitioners, as the work progressed, as follows, to wit : {Here insert the terms of payment.) Tour petitioners further represent, that they did, in pursu- ance of the terms of said contract, at once, on the making of MECHANIC'S HEN. 595 Petition for Lien, on Verbal Contract. caid contract, proceed to furnish a large amount of labor and materials for the construction of the said building; a particular bill and accoimt of all such labor, and materials furnished, and used in the construction of the said dwelling-house, is hereto attached, and marked '* Exhibit A.," and is made a part of this petition. Your petitioner further represents, that in said bill of par- ticulars marked " Exhibit A," each and every item of materials furnished, and of the labor performed and bestowed in the erection of said building, is fairly and justly set down, with the date of each respectively, and the price of each item of labor and material itf set down opposite the same ; that each and every item, and all the material and labor mentioned in said bill, were actually furnished under said contract and used in said building of the defendant, and the same were necessary to complete the said dwelling-house; and the price charged for each article or item is a fair and reasonable one ; that all of the said materials so furnished by your petitioners and put into said building were of excellent quality ; and all the work done by your petitioners in putting up said house was done in a good and workmanlike manner. Your petitioners further represent, that the said building was actually erected on said lot, under said contract, and the same constitutes a valuable and permanent improvement on the said premises ; and that the said building was fully com- pleted and accepted by the defendant on or before the, etc., the time stipulated in said contract, as a complete performance by your petitioners of all the said contract, on their part to be performed. Your petitioners further represent, that there now remains due and unpaid to your petitioners from the defendant on said contract the sum of dollars ; which said sum the defendant wholly neglects and refuses to pay, although often requested so to do; by reason whereof your petitioners are entitled to a lien on said premises to secure the payment of the amount so due your petitioners aforesaid. Forasmuch, therefore, as your petitioners are without remedy in the premises, except in a court of equity, and to the end that the said E. F., who is made party defendant to this petition, may be required to make full and direct answer to the same, but not under oath, the answer under oath being hereby waived ; that the defendant may be decreed to pay your petitioners the amount so due them, as aforesaid, within a short day to be fixed by the court ; and that in default thereof, then the eaid premises may be decreed to be subject to your petitioners' 596 MECHANIC'S LIEN. Petition for Lien, on Implied Contract. lien on the same, and may be oold as the court shall direct to satisfy the amount so due the petitioners as aforesaid, together with the costs of this proceeding, in pursuance to the statute in such case provided ; that in case of such sale, and a failure to rededm therefrom, pursuant to law, that the defendant and all persons claiming through or under him, after the commence- ment of this suit, may be forever barred and foreclosed of all right or equity of redemption of the said premises ; and that your petitioners may have such other and further relief in the premises as equity may require and to your honor shall seem meet. May it please your honor, etc. (Pray process as m number 212, ante, page 592.) No. 214- Petition for a mechanics lien on an implied contract. To the Honorable , Judge of the Court of the County of , in the State of Illinois. Your petitioner, A. B., of, etc., respectfully represents unto your honor that he is, and has been for a number of months last past,'engaged in dealing in lumber and other building mate- rials in , In said county ; that on, etc., one C. D., of, etc., who is made a party defendant to this petition, who was then erecting, or about to commence the erection and construction of a flouring mill, contracted with your petitioner for the' sale and delivery to him of lumber of various sorts, dressed and undressed, shingles, lime, cement and other building materials, to be used in and about the construction of said mill, the same to be, and then being erected on the following described prem- ises, to wit : {Here describe the premises on which mill was built,) of which the said C. D. was then and still is the owner. Your petitioner further represents, that no particular amount of lumber and other materials was specifically contracted for, nor was the kind or quality specifically named, nor was the time or times of the delivery thereof definitely fixed, but it was understood and agreed between your petitioner and the said C. D. that jour petitioner should furnish and deliver to the said C. D. such quantities of lumber and other materials, and of the kind and quality, as your petitioner might nave for sale, and the said C. u. might need in and about the construc- tion of the said mill, and as he might call for or order from time to time, during the process of the erection of the said 'mill, which was to be completed on, or before, etc. ; and that the whole amount of lumber and materials contracted for as afore- MECHANIC'S LIEN. 597 Petition for Mechanic's Lien, on Implied Contract. said, were to be furnished within that time ; that your peti- tioner was to furnish the said lumber and other materials to the said C. D. at the usual and market price, and that the same were to be paid for on delivery. Your petitioner further represents, that in pursuance of said contract, and upon the request of the said 0. D., your peti- tioner, on, etc., commenced furnishing and delivering to the said C. 1>. lime, lumber and other materials for his said build- ing, and continued thereafter and until, etc., to furnish and deliver to him such materials of the kinds, qualities, amounts and dates respectively as is shown by the bills thereof, hereto attached, marked exhibits 1, 2, 3 and 4, and made a part of this petition. Tour petitioner further represents, that the whole of said lumber and other materials shown by said bills, were actually used in and about the erection and construction of said mill, situate and built upon the premises aforesaid. Tour petitioner further represents, that the prices annexed respectively to the several items for materials in said bills con- tained are the usual and market price for such materials, at the times respectively when the same were furnished ; that your petitioner has been paid in cash to apply upon said mate- rials so furnished, the amounts as shown in and by the credits upon said bills, and no more, and that there still remains due your petitioner thereon the sum of dollars, together with interest thereon from the time said materials were furnished, which the said 0. D. agreed to pay, and which your petitioner claims. Tour petitioner further represents, that he has frequently applied to the said C. D. for the payment of the amount so remaining due, but the said C. D. has hitherto failed and neg- lected to pay the same or any part thereof. Tour petitioner further represents, upon information and be- lief, thatE. F. and G. H., of, etc., have or claim, some interests, (the precise nature of which is unknown to your petitioner,) in the said premises, as purchasers, mortgagees, judgment cred- itors, or otherwise; but such interests, if any there be, have accrued since, and are subject to the lien of your petitioner, by virtue of the statutes of this state in relation to liens. Forasmuch, therefore, as your petitioner is without remedy in the premises, except in a court of equity ; and to the end that the said C. T>., E. F. and G. H., who are made parties defendants to this petition, may be required to make full and direct answer to the same, but not under oath, the answer under oath being hereby waived ; that your petitioner be allowed to have and 598 MECHANIC'S LIEN. Proceedings upon — Process — Docketing, etc. maintain a lien upon said premises, in accordance with the • statute in such case made and provided ; and that an account may be taken, under the direction of the court, of the amount due your petitioner, from the said C. D., as aforesaid, and that a decree may be rendered in favor of your petitioner for the amount so found due ; and that the said C. D. may be decreed to pay the same, together with the costs of this proceeding, by a short day to be fixed by the court ; and that in default of such payment the said premises may be sold, as the court shall direct, to satisfy such debt and costs ; that in case of such sale and a failure to redeem therefrom pursuant to law, the de- fendants, and all persons claiming through or under them, or either of them, after the commencement of this proceeding, may be forever barred and foreclosed of all right or equity of redemption of the said premises ; and that your petitioner may have such other and further relief in the premises as equity may ' require, and to your honor shall seem meet. May it please your honor, etc. (Pray process as in Wo. 212, ante, page 592.) SECTION IX PROCEEDINGS UPON. Summons. — The statute provides that, (§ 6.) " Upon the filing of such bill or petition, summons shall issue, and service thereof be had, as in suits in chancery." (x) Notice by publication. — (§ 7.) " When any defendant resides or has gone out of the state, or on due inquiry cannot be found, or is" concealed within this state,' so that process cannot be served upon him, the complainant or petitioner may cause notice to be given to him in like manner and upon the same conditions as provided in ^uits in chancery." i y ) Cases to be placed or, c'^ncery docket. — The statute re- quires that, (§ 8.) " Suits instituted under the provisions of this act shall be placed upon the chancery docket, and stand for trial as other suits in chancery." (x) Ante, pp. 74r-77. (y) Ante, pp. 77-79. MECHANIC'S LIEN. 599 Amendments — Answer. SECTION X. AMENDMENTS. The statute provides that, (§ 9.) " For the purpose of bringing all parties in interest before the court, the court shall permit amendments to any part of the pleadings, and may issue process, make all orders requir- ing parties to appear, and requiring notice to be given, that are or may be authorized in proceedings in chancery, and shall have the same power and jurisdiction over the parties and subject ; and the rules of practice and proceedings in such cases Bhall be the same as in other cases in chancery, except as is otherwise provided in this act." (s) SECTION XL ANSWEB. The statute requires that, (§ 10.) " Defendants shall answer the bill or petition under oath, unless the oath is waived by the complainant or peti- tioner, and the plaintiff shall except or reply to the answer as though the proceeding was in chancery. The answer shall be regarded as the plea of the defendant, and by replication thereto an issue or issues shall be formed, which shall be tried by the court, or by a jury under the direction of the court, as the court may direct or the parties agree." Where the bill or petition waives the sworn answer, although the answer be sworn to, it cannot be received in evidence, and has no other or greater weight than an answer not swGrn to. (a) (z) Ante, pp. 164-170. (a) Clarke vs. Boyle, 51 111. 104; see L. S. & M. S. R. R.Co.vb. McMillan, 84 III. 208. 600 MECHANIC'S LIEN. Form of Answer by Owner, Defendant. No. 215. Answer of owner defendant to a bill or petition for a mechanic's lien. In the Court. Term, 18—. • In Chancery. The separate answer of C. D., one the defendants to the bill of complaint (or petition) of A. B., com- plainant, (or petitioner.) This defendant reserving to himself all right of exceptions to the said bill of complaint (or petition), for answer thereto says,(*) ' ^ He admits that he did, abont the time mentioned in said bill (or petition), make a verbal contract with the complainant (or petitioner) to build for him a house, and to furnish all the ma- terials and labor necessary to erect the same; and admits that a part of the terms of said contract are substantially mentioned in said bill (or petition)', but this defendant denies that said contract is correctly set forth in said bill (or petition), but, on the contrary, avers that in said contract it was expressly agreed and contracted that the complainant (or petitioner) should fur- nish only the best quality of lumber and materials for said building, and that all the flooring should be well seasoned, clear, and free from knots and other imperfections, and should be well laid and blind nailed, and planed off smooth, after being laid, so as to make the same level and smooth. And this defendant avers, that the complainant (or peti- tioner) did not use the best quality of lumber in constructing said house, but did use a very inferior kind of lumber ; and this defendant especially states that the flooring used in said house were not well seasoned, and not clear and free from knots and other imperfections, but, on the contrary thereof, was wholly unseasoned, and was green, and full of knots and other imperfections ; and that, by reason thereof, the said floor has shrunk and warped, and become loose and unfit for use ; that, the large number of knots in said flooring have become loose and have fallen out, and left holeB, and so this defendant says that the complainant has not and did not comply with his said contract, in that respect. This defendant further answering admits, that soon after the said house appeared to be finished and completed, the com- Elainant (or petitioner) came to this defendant and stated that ' e had completed and finished the said house, and desired this MECHANIC'S LIEN. 601 Form of Answer by Owner. defendant to examine and accept the same as fully completed and finished according to the terms of the contract, and this defendant did look at said house, and the same appeared to be built and completed in a substantial and workmanlike manner, as, so far as this defendant could then see, the same appeared to be constructed of good material ; but this defendant says he could not see, and could not by any means then determine or know whether said flooring was of seasoned or unseasoned lumber. And this defendant avers, that the complainant (or petitioner) then assured this defendant that all the materials in said house were of the best quality, and that all the lumber put in said house was well seasoned and dry ; and this defendant, believ- ing the said representations of the complainant (or petitioner), and acting on the same, did accept the said house from the complainant (or petitioner), and did shortly thereafter move into and occupy the same with his family. And this defendant further answering avers, that within a few days after he commenced living in said house, and had begun to have fires in the different rooms, so as to dry out and season the said lumber, in said floors, the same began to warp and shrink, and did continue to season and warp and shrink, until many of the boards became loose, and the said floors in the said house, and in all of the same, became shrunk, and warped and loose ; and this defendant has been compelled to expend a large 6um of money, to wit, the sum of dollars, in laying down new floors in the rooms of said house ; and this defendant avers, that the damage which he has sustained by reason of the said failure of the complainant (or petitioner) to use good seasoned lumber in said floors, and by reason of the putting in of said green and unseasoned lumber in said floors in said house, greatly exceeds the whole amount which the complainant (or petitioner) claims in his said bill (or petition) to be due to him. (Here set forth any other matter by way of defense!) And this defendant further answering, denies that the com- plainant (or petitioner) is entitled to the relief or any part thereof, in the said bill (or petition) demanded ; and prays the same advantage of this answer as if he had pleaded or demurred to the said bill of complaint (or petition /) and prays to be dismissed with his reasonable costs and charges in this behalf most wrongfully sustained, etc. Sol. for Defendant. C. D.' (If oath is not wowed, add affidavit, No. 58, ante, page lift.) 602 MECHANIC'S LIEN. Forms of Answers, etc. No. 216. Answer to a petition for a mechanic's lien, setting up a discharge of Hen. (Proceed as in No. 215, ante, page 600, to the asterisk, (*) and then proceed :) This defendant admits that he did make a contract with the petitioner as set forth in his said petition, and that the peti- tioner did construct a house substantially as required in said contract ; but this defendant avers that the petitioner is not entitled to a lien on the said premises' in any sum whatever; because he says, that after the completion of' the said building by the petitioner, and before the commencement of this suit, and on, etc., the petitioner applied to this defendant for a settle- ment of the matters relating to said contract, and upon such settlement and adjustment of accounts, there was found to be due to the petitioner on .said contract a balance of dollars ; and the petitioner then required of this petitioner security for the amount so remaining due ; and this* defendant did then and there execute and deliver to the petitioner a promissory note of that date, for the said sum of * dollars, payable in after date ; and then and there, at the request of the . peti- tioner, procured one E. F. to sign said note with this defendant as security for said amount, and the said E. F. did sign the same accordingly ; and this defendant avers that the petitioner did then and there accept the said note from this defendant in full payment and discharge of the said balance so being and remaining due on said contract as aforesaid ; and so this defend- ant says, that the lien of the petitioner, if any he ever had, has been canceled, waived and fully discharged. And now having fully answered the said petition, this de- fendant prays to be dismissed with his costs and charges in this behalf most wrongfully sustained, etc. Sol. for defendant. 0. D.. (If oath is not waived, add affidavit, No. 58, ante, page 149.) No. 217. Answer of defendant setting up a lien for materials, etc. (Proceed as in No. 215, ante,, page 600, to the asterisk, (*) and then proceed :) This defendant answering says, it may be true, for anything this defendant knows to the contrary, that, etc. (Here substan- tially set forth the statement of the petitioner's claim ;) but this defendant is an utter stranger to all and every such matters, MECHANIC'S LIEN. 603 Form of Answer. and can neither admit nor deny the same, but calls for strict proof of such matters. This defendant further answering says, that on, etc., the said defendant C. D. was engaged in building a mill on, etc. {Here describe the premises on which the building was erected, ) as in said petition is alleged ; and at the same time this defendant was a dealer in lumber, at, etc., and on, etc., the said defend- ant C. D. applied to this defendant, and desired this defendant to furnish him a large quantity of lumber to be used in and about the construction of the said mill, and thereupon this defendant did agree with said defendant C. D., that he would furnish him such lumber as he, the said C. D. might, from time to time order, or desire for use in constructing said mill ; and this defendant did afterward, on, etc., and at different times, furnish to the defendant C. D. divers large quantities of lumber, to be used in constructing said mill on said premises ; and this defend- ant attaches to this answer, and as a part thereof, a bill of said lumber, so furnished, marked " Exhibit A," which contains a par- ticular description of said lumber, with the dates when the same was furnished, and with the price and value of each item or article of lumber set opposite the same; and this defendant avers that all the items or articles of lumber in said bill men- tioned, were furnished to the defendant C. D. under the said agreement, at the times specified in said bill, td be used in the construction of said mill ; and that each and all of the said items of lumber were actually used in the construction of said mill. And this defendant, further answering, says, that at the time of the selling said lumber to the defendant C. D., there was no agreement as to the price or value of the same, nor was any agreement made as to when the defendant- C. I), should pay for the same; and this defendant avers that he is by law entitled to ask and receive for said lumber as much as the same was reasonably worth, and was entitled to receive his pay therefor as soon as said' articles were delivered ; and that the last of said articles was delivered on, etc. ; and that the whole amount of said bill, to wit, the sum of dollars, was justly due and payable to this defendant from the defendant C. D. on the' day last named ; and that the same is still due and remains wholly unpaid. Wherefore, this defendant claims and insists that he is entitled to have a lien on the said premises, equal to that of the petitioner or any other person having a lien thereon for work done or materials furnished. This defendant, therefore, prays that on the hearing of this cause, a decree may be made by the court, giving to this de- fendant a lien upon said premises for the said sum of 604 MECHANIC'S LIEN. Form of a. Cross-Bill in. dollars; and that the said sum may be decreed to be paid to this defendant within a short day to be named in the said decree, and that in default of such payment the said premises may be decreed to be sold, and the proceeds applied accord- ing to the statute in such case made and provided. SECTION XII. CEOSS-BLLL. No. 218. Cross-hill by a defendant to a bill or petition for a mechanic's lien to enforce Hen of defendant. To the Honorable , Judge of the Court of the County of , in the State of Illinois, In Chancery sitting : Tour orator, A. B., of, etc., respectfully represents unto your honor, that on, etc, C. D., of, etc., one of the defendants here- inafter named, exhibited in this honorable court his bill of complaint {or petition) against one E. F. and G. BL, of, etc., defendants hereinafter named, and your orator, to enforce a mechanic's lien therein described, and thereby praying that, etc. {Here set. forth the substance of the prayer f) and your orator being duly served with process, appeared and put in his answer thereto, as by the said bill {or petition) and other pro- ceedings in the said cause, now remaining on file and of record in this honorable court, reference thereto being had, will more fully appear. Your orator further represents, that it is true as stated in said original bill," that the said E. F. named in said bill was, on, etc., engaged in building a house on the premises described in said original bill, to wit : {Here describe the premises,) of which said lot the said E. F. was then, and still is, the owner. . And your orator further represents, that on, etc., the defend- ant E. F. applied to your orator, who is a brick and stone mason by occupation, and desired him to do certain work, that is to say, to build the foundation, basement and cellar walls, and chimneys of said house; and, thereupon, your orator and the said E. -F. contracted that your orator waSNto build the foundation, basement and cellar walls, and chimneys to said house, all of .said work to be done under the direction of the defendant E. F. or his agent ; and the said E. F. then and there agreed to and with your orator to pay him for such work the sum of dollars per thousand, according to the custom- ary manner of measuring such work. MECHANIC'S LIEN. 605 Form of Cross-Bill. And your orator further represents, that, in pursuance of Baid contract, he did, on, etc., the time indicated by the said E. F., commence work for the said E. F. under said contract, and did' so continue to work until all of said work, and all the work that the said E. F. desired your orator to do was fully completed. Your orator further represents, that all said work was done under the direction of the said E. F., and. in the manner indi- cated by him ; and that under said contract your orator laid up in said walls thousand brick, as shown by the bill of items hereto attached, marked " Exhibit A.," and made a part hereof; that the whole amount due your orator for said work is dollars. Your orator further represents, that no time was agreed upon when said work was to be paid for, but your orator avers, that by the understanding of the parties, the said sum became due to your orator as soon as said work was finished ; and your orator represents that the said work was all finished and com- pleted on, etc. ; and that the said sum of dollars became due on the said day last aforesaid, and still remains wholly unpaid. Your orator further represents, that all of said work was done and finished within one year from the time of commencing to do said work, as fully appears by the dates heretofore given ; and by reason of the premises, and of the failure of the said E. F. to pay him the said sum of money so due as aforesaid, your orator is entitled to a lien on the said premises to secure your orator the sum so due him as aforesaid. Forasmuch, therefore, as your orator is without remedy in the premises, except by filing this his cross-bill in the said proceedings commenced by the said C. D. against your orator and the said E. F. and G-. H., and to the end that the said C. D., E. F. and G. H., who are hereby made parties defend- ants to this cross-bill, may be required to make full and direct answer to the same, but not under oath, the answer under oath being hereby waived ; that an account may be taken of the amount due your orator; and that the defendant E. F. be de- creed to pay your orator the amount which shall be found to be due, by a short day to be fixed by the court ; that the rights and interests of each and all of said parties may be ascertained and adjusted ; and that your orator may have a lien on said premises for the amount of his said claim ; and in case default shall be made by the defendant E. F. in making said payment within the time limited as aforesaid, that the said premises be sold under the direction of this court, and the proceeds of said 606 MECHANIC'S LIEN. Decrees, etc. sale be applied to the payment of snch claims, including your orator's, as may appear to be liens upon such premises; and that your orator may have such further and other relief in the premises as the nature of his case shall require and to your honor may seem meet. {Attach exhibits, cmdif any new parties are to be made, add prayer for process as i/n No. %1%, ante, page 59%.) SECTION XIII. DECREES, ETC. The court generally may, if it sees proper, direct the sale of the estate of all the parties having an interest in the premises. But the better practice is not to do so if the objects of the statute can be attained by decreeing a sale of the interest of those parties only against whose interests the lien equitably attaches, (b) Where apart can be sold, etc. — The statute provides that, (§ 22.) " If any part of the premises can be separated from the residue, and sold without damage to the whole, and if the value thereof is sufficient to satisfy all the claims proved in the cause, the court may order a sale of that part." Sales, how made. — (§ 23.) " The sale shall be made in the same manner as other sales of real estate under decrees in chancery." Redemption allowed. — (§ 24.) "Upon all sales under this act, the right of redemption shall exist in favor of the same persons, and may be made in the same manner as is or may be provided for redemption of real estate from sales under judg- ments and executions at common law." Execution allowed for balance due. — The statute further pro- vides that, (§ 25.) " If, upon making sale of any premises under this act, the proceeds of such sale shall not be sufficient to pay the (6) Kidder vs. Aholtz, 36 111. 478. MECHANIC'S LIEN. 607 Form of Decree, etc. claims of all parties, according to their rights, the judgment shall be credited by the amount of such sale, and execution may issue in favor of any creditor whose claim is not satisfied, for the balance due, as upon a judgment in actions of debt or assumpsit, and in case of excess of sales over the amount of judgment, such excess shall be paid to the owner of _ the land, or to the person who may be entitled to the same, under the direction of the court." No. 219. Decree allowing Men. and for a sale of the premises. (Caption, and Me of cause as in No. 79, ante, page 198.) This cause having come on to be heard upon the bill (or peti- tion) of complaint herein, the answer thereto, the replication of the complainant (or petitioner) to such answer, and the court having heard the evidence both oral and documentary, and the same having been argued by the counsel for the respective parties; and being fully advised in the premises, doth find that the matters in the said bill (or petition) are true; and that, etc., (Sere set forth the substance of the facts as found* or stated in the bill or petition.;) and that there is now due the complainant (or petitioner) the sum of dollars, for which gum he is entitled to a lien on the said premises, to wit : (Sere describe the lot on- which building was erected^) in accordance with the statute in such case provided. It is therefore ordered, ad/judged and decreed, that the com- plainant (or petitioner) have a lien on the said described prem- ises for the amount so found to be due from the defendant C. D. ; that the defendant C. D. pay to the complainant (or petitioner) the said sum of dollars, with interest from the date of this de- cree, within days from this date ; and in case the said defend- ant C. D. shall make default in the payment of the said sum of money within the time herein limited, that the master in chan- cery of this court shall make sale of the said premises, or such part or parts thereof as may become necessary to pay the amount aforesaid, at public vendue, to the highest and best bidder for cash, after having first given public notice, by publication in some newspaper published in said county, of the time and place of said sale, and the terms thereof; and upon the making of such sale the said master will issue a certificate of purchase to the purchaser, as provided by law ; and out of the proceeds of such sale the said master will pay first, the costs of these proceedings, including his commissions and the expenses of the sale, and second, pay to the complainant (or petitioner) the said 608 MECHANIC'S LIEN. Forms of Decree, etc. sum of dollars, and the interest due on the same ; and the surplus, if any, to the defendant C. D. ; and the said master will report his doings in the premises to the court. No. 220. Decree for mechanic's lien, where there are other proceedings pending unadjusted. (Caption,' and title of cause as in No. 79, ante, page 198.) And now this cause coming on to be heard on the complain- ant's bill, and the answer of 0. D., one of the defendants, and the replication of the complainant thereto, and the court having heard the evidence in this case, and being fully advised in the premises, doth find that the allegations of the complainant's bill are substantially true ; and that the said defendant C. D. did make a contract with the complainant for the purchase of a quantity of lumber, to be used in the erection of a dwelling on the following described premises, to-wit: (Here describe the premises on which the iuUdmg was erected ;) and that the com- plainant did, under said contract, furnish to the defendant 0. D. a large quantity of lumber to be used in erecting said house, and that the said lumber was actually delivered on said lot on, etc. And it appearing to the court that there is now due to the complainant from the said defendant 0. D., for said lumber, the sum of dollars ; and the court being fully advised in the premises, doth find that the complainant is by law entitled to a lien on said premises for said amount; the court doth therefore order, adjudge and decree, that the said defendant 0. D. pay to the complainant A. B. the said sum of dollars within days from filing of this decree, with inter- est on the same from the date of the filing hereof until the same is paid; and doth further order that the complainant have a mechanic's lien on said premises with the appurtenances for the said sum of dollars, and that said lien commence and take effect from, etc. ; and because other claims for me- chanic's lien are now in this cause pending and undetermined, the court will hereafter make such further decree as to equity shall seem fit. No. 221. Decree allowing mechanic's Hen where there are several liens and a mortgage to he adjusted. (Caption, and. title of cause as im, No. 79, ante, page 198.) This tsause having come on to be heard upon the original bill of complaint, the answers thereto, and the replications to \ MECHANIC'S LIEN. 609 Form of Decree. Bach answers, and the several cross-bills, answers to such cross- bills and replications, and the other pleadings, and proceedings heretofore had in this cause : and the court having heard the evidence, both documentary and oral, and the report of the master in chancery to whom this cause was heretofore referred to take the evidence as to the value of the premises meationed in the several pleadings in this cause, to wit : {Here describe the premises on which the building was erected^) prior to the making of the improvements referred to in the pleadings, and the additional value which said improvements have given to the said premises; and the court doth find that, in addition to the liens heretofore decreed in this cause, the said E. F. did furnish to G. D., one of the defendants, a large quantity of brick, to be used in constructing the said building on said premises, and that the same were furnished under a contract for that purpose, and were to be and were used by the defend- ant C. D. in constructing said house on said premises, and that there is due the said E. F. from the defendant C. D. the sum of dollars for the materials so furnished ; and the court doth therefore order, adjudge and decree that the said C. D. do pay the said E. F. the said sum of dollars as herein- after provided, and that the said E. F. have a lien on said premises to secure the same, as the law provides. And the court doth further find that, in addition to the liens heretofore decreed in this cause, the said G. H. did fur- nish to the defendant C. D. a large quantity of lumber to be used in the erection of said house on the said premises, and that said lumber was furnished under a contract for that purpose, and were to be and were used by the defendant C. D. in con- structing the said house on said premises, and that there is due to the said G. H. from the defendant C. D. the sum of dollars, for the lumber so furnished ; and the court doth there- fore order, adjudge and decree, that the defendant C. D. do pay to the said G. H. the said sum of , as hereinafter provided, and that the said G. H. have a lien on the said premises to 6eeure the same, as the law directs. And the court having, heretofore, on, etc., made a decree in this cause, that the defendant C. D. was indebted to the com- plainant A. B. in the sum of dollars, and that the com- plainant have a lien on the said premises to secure the payment thereof; and the court having also, by another decree hereto- fore, on, etc., rendered in this cause, ascertained and decreed that L. M., one of the parties hereto, was the holder of a mort- gage on the said premises, which was a lien on, etc., prior to the time when any of the mechanic's liens mentioned in this 39 (510 MECHANIC'S LIEN. Form of Decree. cause commenced to take effect ; and the court having heard the arguments of the counsel for the respective parties, and heing fully advised in the premises, doth find that the said premises, lip to and before the time of the commencement of the making of the said improvements thereon, for which liens in this case are sought to be enforced, was worth dollars; and that the said buildings and improvements men- tioned in said pleadings, and for the construction of which the several claims for liens in this cause are sought to be enforced, have increased the value of said premises dollars, so that, the said premises are now worth dollars. The court doth further order, adjudge and decree, that the defendant C. D. do pay the said several sums in this decree, and the several decrees hereinbefore mentioned, within days from this date ; and in case of default in the payment of said sums, or either of them, that then and in that case the' master in chancery of this court is ordered to sell said premises at public auction to the highest bidder for cash; that said sale be made at the front door of the court house in , in the county of aforesaid ; and that the said master give public notice of the time and place and terms of said sale, such as the law requires in case of sheriff's sale of land on execution, and that the said master execute to the purchaser or purchaser? at such sale a certificate of purchase for the premises sold, ac- cording to law. It is further ordered, adjudged and decreed, that as to part of the proceeds of said sale, the said L. M., the holder of the said mortgage, shall have a first and prior lien, and that as to the remaining part of the proceeds aforesaid, the said complainant A. B., and the said E. F. and G. H., shall share pro rata to the amount of their several claims, and as to the -part of the said proceeds of sale, the said A. B., E. F. and G. H. shall have a pro rata secondary lien of the said L. M., the holder of the said mortgage ; and the said master is ordered, out of the proceeds of said sale, to pay, first, the costs of this proceeding, including his commissions and the expenses of sale, which are adjudged against the defendant 0. D., and that the remainder he shall distribute between the said parties as hereinbefore provided ; and should any overplus remain after paying all claims in full, then the said master will pay the same to the defendant C. D., the owner of said lot. The said master will report his doings herein to the court at the next term thereof, to which term this cause is now continued. MECHANIC'S LIEN. 611 Costs. SECTION XIV. COSTS. The statute, revised in 1874, provides that, (§ 27.) " The cost of proceeding as between creditors claim- ing liens and the person against whom the lien is intended to be enforced, shall abide the event of the suit ; and the costs, as between creditors aforesaid, in contests relative to each other's claim, shall be subject to the order of the court, and the same rule shall prevail in respect to costs growing out of proceedings against and between incumbrances." For other cases under Mechanic's Lien Law, see Cunning- ham vs. Ferry, 74 111. 426 ; Kelly vs. Kellogg, 79 111. 477 ; Taylor vs. GUsdorff, 74 111. 354; Schnett vs. Clements, 73 111. 613; Theilman vs. Carr, 75 111. 385; Drew vs. Mason, 81 111. 498 ; Orr vs. N. M. L. Ins. Co., 86 111. 260 ; Wing vs. Carr, 86 111. 347 ; Dunphey vs. Riddle, 86 111. 22 ; Strawn vs.CHara, 86 111. 53 ; Davis vs.Conn. M. Life Ins.Co., 84 111. 508 ; Reed vs. Boyd, 84 111. 66 ; Johnson vs. Estabrook, 84 111. 75 ; Rogers vs. Powell, 1 Bradwell, App. Gt. R. 631. As to SuB-CoNTEACTOKS, see Morehouse vs. Moulding, 74 El. 322 ; Biggs vs. Clapp, 74 111. 335 ; NewhaU vs. Kastens, 70 111. 156 ; Brown vs. Lowell, 79 111. 484 ; M'ehrle vs. Dunne, 75 111. 239 ; Bridge Co. vs. L. 'N. A. ds St. L. Ry. Co. 72 111. 506 ; Mete vs. Lmoell, 83 111. 565 ; Work vs. Hall, 79 111. 196 ; Culver vs. Elwell, 73 111. 536 ; First Baptist Church vs. An- drews, 87 111. 172 ; Adams vs. Russell, 85 111. 284 ; Quinn vs. Alien, 85 111. 39 ; Meeks vs. Sims, 84 111. 422. CHAPTEE XL, INJUNCTIONS. An act to revise the law in relation to injunction. Approved March 25, 1874. In force July 1, 1874. Judges authorized to grant. — (§ 1.) "That the superior court of Cook county, and the circuit courts in term time, and any judge thereof in vacation, shall have power to grant writs of injunction, (a) Master may grant, when. — (§ 2.) " "When no judge author- ized to grant writs of injunction is present in the county, or being present, is unable or incapacitated to act, a master in chancery in such county may order the issuing of such writ. Notice of application. — (§ 3.) " No court, judge or master shall grant' an injunction without previous notice of the time and place of the application having been given to the defendants, to be affected thereby, or such of them as can conveniently be served, unless it shall appear from the bill or affidavit ac- companying the same, that the rights of the complainant will be unduly prejudiced if the injunction is not issued immediately or without such notice. To stay judgments, where had. — (§ 4.) "When an injunction shall be granted to star a suit or judgment at law, the pro- ceeding shall be had in the county where the judgment was obtained, or the suit is pending ; but the writ may be sent in the first instance into any county in this state where the de- fendant resides. Shall operate as a release of errors. — (§ 5.) "Every injunc- tion, when granted, shall operate as a release of all errors in the proceedings at law that are prayed to be enjoined. (J) (a) See Phelps vs. Foster, 18 111. 309 ; Welch vs. Byrns, 38 111. 20. (&) See McConnell vs. Ayres, 3 Scam. 210. INJUNCTIONS. 613 Judgments, etc. — Bond. Judgments before justice of the peace. — (§ 6.) " No writ of injunction shall be granted to stay proceedings under a judgment obtained before a justice of the peace for a sum not exceeding twenty dollars, besides the costs, (c) As to part of judgment. — (§ 7.) " Only so much of any judgment at law shall be enjoined as the complainant shall show himself equitably not bound to pay, and so much as shall be sufficient to cover costs, (d) Complainant to give bond. — (§ 8.) " Before an injunction shall issue to enjoin a judgment, the complainant shall give bond to the plaintiff therein, in double the amount of such judgment, with sufficient surety approved by the court, judge or master, conditioned for the payment of all moneys and costs due to the plaintiff in the judgment, and such damages as may be awarded against the complainant in case the injunction is dissolved. If the injunction be dissolved in whole or in part, the complainant shall pay, exclusive of legal interest and costs, such damages as the court shall award, not exceeding ten per centum, on such part as may be released from the injunction. (§ 9.) "In all other cases, before an injunction shall issue, the. complainant shall give bond in such penalty, and upon such condition and with such security as may be required by the court, judge or master granting or ordering the injunction : Provided, bond need not be required when, for good cause shown, the court, judge or master is of opinion that the injunc- tion ought to be granted without bond. Approval of bond. — (§ 10.) " The bond in any case may be entered into before the clerk of the court from which the writ is to be issued — the conrt, judge or master granting or order- ing the injunction having first approved the security, or it may be entered into before such court, judge or master, (e) (e) See Breckenridge vs. McCormick, 43 111. 491 ; Wiley vs. Sutherland, 41 111. 25. (d) Duncan vs. Morrison, Breese, 151 ; Holmes vs. Stateler, 57 III. 209. («) See Forni vs. Tesson, 51 111 393. 614 INJUNCTIONS. Suggestion of Damages, etc. Bond to be -filed before writ issues.-*- (§ 11.) "All bonds re- quirefl by this act Bhall be filed with the clerk of the court to which the writ is returnable, before such writ shall issue. Assessment of damages on dissolution. — (§ 12.) "In all cases where an injunction is dissolved by any court of chancery in this state, the court, after dissolving such injunction, and. before finally disposing of the suit, upon the party claiming damages by reason of such injunction, suggesting, in writing, the nature and amount thereof, shall hear evidence and assess such damages as the nature of the case may require, and to equity appertain, to the party damnified by such injunction, and may award execution to collect the same : Provided, a failure so to assess damages shall not operate as a bar to an action upon the injunction bond. {/) Contempt in violating. — (§ 13.) " Upon satisfactory proof being made in vacation that an injunction ^as been violated, the judge granting the same, or the judge of the court from which the writ was issued, may issue an attachment and cause the party violating the injunction to be brought before him. Upon his being brought before the said judge, unless he shall disprove or purge the said contempt, the said judge may, in his discretion, commit him to jail until the sitting of the court in which the said injunction is pending, or take bail for his ap- pearance in the said, court at the next term thereof, to answer for the said contempt, and to abide the order of the court thereon, (g) Motion to dissolve in vacation. — (§ 14.) " A defendant may move to dissolve or modify an injunction in vacation, either for (/) See Winkler vs. Winkler, 40 111. 179 ; Misner vs. Bullard, 43 111. 470 ; Buck vs. Beekly, 45 111. 100 ; Beauchamp vs. Kankakee Co. 45 111. 274 ; Hart- well vs. Black, 48 111. 301 ; Smith vs. Powell, 50 111. 21 ; Shaffer vs. Sutton, 49 111. 506 ; Collins vs. St. Olair, 51 111. 328 ; Forth vs. Town of Xenia, 54 111. 210 ; Russell vs. Rogers, 56 111. 176 ; Holmes vs. Stateler, 57 I11.-209 ; Jernie vs. Osgood; lb. 340; BroWnfieU vs. Browrifield, 58 111. 152; Hamilton vs. Stuart, 59 111. 330 ; Albright vs. Smith, 6 Chicago Legal News, 247. (0) See The People, etc. vs. Gilmer, 5 Gilm. 242 ; Welsh vs. Byrns, 38 I1L 20 ; Orook vs. The People, 16 111. 534. INJUNCTIONS. 615 Motion to Dissolve, etc. want of equity in the bill or upon the coining hi of the answer, and the judge of the court from which the injunction was issued may hear and determine the motion upon five days' notice of the hearing having been given to the complainant or his solicitor. (A) Motion to dissolve for want qf equity. — (§ 15.) "A motion to dissolve an injunction may be made at any time upon answer, or for want of equity on the face of the bill. Motion to be det&ftnined on testimony.— (§ 16.) " Upon a motion to dissolve an injunction after answer, the court shall not be bound to take the answer as absolutely true, but shall decide the motion upon the weight of testimony. (*) Affidavits upon hearing of motion to dissolve. — (§ 17.) " The complainant may support his bill, and the defendant may sup- port his answer by affidavits filed with the same, which may be read in evidence on the hearing of the motion to dissolve the injunction. Continuance of motion to dissolve. — (§18.) "If, after a motion is made to dissolve an injunction, the complainant in the bill will satisfy the court by his own affidavit; or that of any disinterested person, that the answer, or any material part thereof (to be specified in such affidavit) is untrue, and that he has testimony which will disprove the answer, or such material part thereof, which he can produce at the next term of the court, or at an earlier day, and that he has had no Opportunity to procure such testimony since the coming in of the answer, the court may grant a continuance of such motion until the next term, or until such testimony can be procured. Depositions may be read on motion to dissolve. — (§ 19.) " The testimony of witnesses to be used upon such motion, except such as may be contained in the affidavits filed with the bill or answer, shall be depositions in writing, which shall be (A) See Wangelin vs. Qoe, 50 111. 459 ; Titus vs. Mabee, 25 111. 257. (t) See Gray vs. McCance, 11 111. 325. 616 INJUNCTIONS. Appeal, etc. — When granted on Sunday. taken in the same manner as other testimony in cases in chancery. Depositions may he vead on final hearing. — (§ 20.) "Depo- sitions taken upon a motion to dissolve an injunction may he read in the final hearing of the cause. Effect of an oyppeal on injunction. — (§ 21.) " No appeal from a decree dissolving an injunction shall have the effect to continue in force the injunction, unless the appeal is prayed at the time of the entering of such decree, and the court allowing the same shall so order, or unless the party praying the appeal shall, within ten days after the appeal is allowed, procure from the supreme court, if in session, or a judge thereof if in vaca- tion, an order directing that the appeal shall have the effect to continue such injunction in force ; and no such order shall be granted except for good cause appearing in the record, nor when the bill is dismissed by the complainant. The supreme court, or a judge thereof, may, for good cause, extend the time for procuring such order. Further bond on continuing of injunction. — (§ 22.) " The court or judge granting the order for the continuance in force of any such injunction may require, as a condition of granting the same, such further bond and security, to be filed with the clerk of the supreme court, as may be deemed equitable. When granted on Sunday. — (§ 23.) " "When an application shall be made on a Sunday for a writ of injunction, and there shall be filed with the bill an affidavit of the complainant, or his, her or their agent or attorney, stating that the benefits of an injunction will be lost or endangered, or irremediable dam- age occasioned unless such writ be immediately issued, and giving the reasons for such statement, then it shall be lawful for any officer who is authorized by the law of this state to grant writs of injunction, if it appears to him from such affidavit that the benefits of an injunction will be lost or endangered, or irremediable damage occasioned unless such writ be immediately issued, and if the complainant otherwise INJUNCTIONS. 617 Form of Suggestion of Damages. be entitled to such writ under the law, to grant a writ of injunction on a Sunday ; and it shall be lawful for the clerk to issue, and for the sheriff or coroner to serve such writ of injunction on a Sunday as on any other day, and all affidavits and bonds made and proceedings had in such case shall have the same force and effect as if made or had on any other day.»(i) No. 222. Suggestion of da/mages on the dissolution of an injunction. •Term, 18— . Court. In Chancery. C. D. " And now on this day of , 18 — , comes the defend- ant, by his solicitor, and according to the form of the statute in euch case made and provided, suggests to the court here, that by reason of the wrongful suing out of said injunction in this cause, this defendant was compelled to, and did, pay out and expend divers sums of money, amounting to the sum of dollars, for the fees and charges of solicitors and counsel, and for other charges and expenses in and about his defense in that behalf; {Any other damages may oe here alleged in like man- ner /) by means of which premises, the defendant has sustained damages to the amount of dollars, and the said damages remain wholly unpaid to the defendant ; wherefore the defend- ant asks that said damages may be assessed to him, against the complainant, in pursuance of said statute, (k) , Sol. for Defendant. (J) See Langaber vs. Pontiae & N. W. S. S. Co. Chicago Legal News, 190. (ft) See note (/), ante, p. 614. CHAPTER XLI. MISCELLANEOUS F0KM8. During the preparation of this work want of space has been constantly apprehended, and many less important forms were omitted in their proper places. It has been thought advisable to give some of them a place under the head of " miscellaneous forms." No. %23. Order where defendant appears, or is brought into court by attachment and admits his contempt, that he put in his answer within a specified time, {a) {Caption, with title of cause as in No. 79, ante, page 198.) It appearing to the court that the defendant C. D. being in contempt for not appearing or answering to the bill of com- Elaint in this cause, a writ of attachment had issued against im, directed to the sheriff of the county of , returnable forthwith; whereupon the sheriff has returned that he had attached the defendant C. D.; and had him in custody before the court ; and the said C. D. how being before the court, and consenting to put in his answer, in this suit, and to pay the costs of his contempt, when duly taxed ; on motion of Mr. , solicitor for the complainant, it is ordered that the said C. D. put in his answer to the bill of complaint within days from the date of this order, or that the complainant may apply to this court for such further order as may be just. Wo. 22Jj~ Order for commitment of defendant for disobeying order to put in his answer, (b) (Caption, with title of cause as in No. 79, ante, page 198.) An order having been entered in this cause on the — — day of , 18 — , requiring the defendant C. D. to put in his an- swer to the bill of complaint within days from the date of said order, or that in default thereof the complainant might (a) See ante, pp. 81-84. (6) See ante, pp. 83-84. MISCELLANEOUS FORMS. 619 Orders. be at liberty to apply to this court for such further order as might be just ; and it appearing to the court that the defendant CD. has failed to put in his answer as required by said order ; and this court now adjudging the said C. D. to have been guilty of the misconduct alleged, and that such misconduct was calcu- lated to, or did actually defeat, impair, impede or prejudice the rights or remedies of the complainant in this cause, it is there- upon, on motion of Mr. , solicitor for the complainant, ordered that the said C. D. be, and he is hereby ordered, to stand committed to the common jail of the county of , there to remain charged upon this contempt until he shall have put in his answer as aforesaid ; unless the court shall see fit sooner to discharge him. And it is further ordered that a warrant issue for that purpose. No. £S5. Order in case of contempt, for not answering — . where defendant denies his contempt — directing the filing if interrogatories, etc. (c) {Caption, with title of cause as in No. 79, ante, page 198.) It appearing to the court that the defendant C. D., being in contempt for not appearing or answering to the bill of com- plaint in this cause, a writ of attachment had issued against him, directed to the sheriff of the county of , returnable forthwith; whereupon the sheriff has returned mat he had attached the defendant C. D., and had him' in custody before the court ; and the said C. D. being now before the court, and denying that he is guilty of the misconduct alleged against him ; it is ordered that the complainant do within days file, with the clerk of this court, interrogatories specifying the facts and circumstances alleged against the said C. D. ; and that he serve a copy thereof on the said C. D. ; and that the said C. D. put in written answers to such interrogatories, upon oath, and file the same within days, after the time when such interrogatories are served on him, in the office of the clert of this court. And it is further ordered, that it be referred to the master in chancery of this court, to examine the said C. I)., on oath, upon the said interrogatories; and to take snch fur- ther proofs as either party may produce before him in relation to the alleged contempt ; and that he report such answers and proofs to this court. And it is further ordered that the said sheriff detain the defendant in his custody ; and that the sair* C D. attend, from day to day, before this court, until the fui ther order of the court. (e) See ante, pp. 81-84. 620 MISCELLANEOUS FORMS. Orders. On a reference of this nature the master is not authorized to receive the ex parte affidavits of witnesses, unless the order of reference expressly authorizes him to do so. The parties must produce and examine the witnesses before the master ; so that they may be cross-examined by the adverse party, (d) No. 286. Order convicting defendant of a contempt after his examination upon interrogatories, (e) (Caption, and title of cause as vn No. 79, ante, page 198.) A writ of attachment having 1seen heretofore issued out of and under the seal of this court, against the defendant C. D., for his contempt in not answering the complainant's bill, di- rected to the sheriff of the county of , and returnable forthwith : and the said sheriff having returned that he had attached the said C. D., and taken his body, and had him in custody before the court ; and the said C. 1). having been by virtue of such attachment personally before the court, on the said day of instant ; and denying the alleged con- tempt, it was thereupon ordered that the complainant in this cause should, within days, file in the office of the clerk of this court interrogatories specifying the facts and circum- stances alleged against the said C. D. ; and that he serve a copy thereof on the said C. D. ; and that the said C. D. should ait in written answers to such interrogatories, upon oath, and le the same within days after the service of such inter- rogatories; and that it should be referred to the master in chancery of this court, to examine the said C. D., on oath, upon such interrogatories, and to take such further proofs as either party might produce before him in relation to the alleged eon- tempt ; and it now appearing to the court from the report of the said master, and the answers and proofs thereto annexed, that the said C. D. has committed the contempt with which he is charged, and this court now adjudging him to have been guilty of the misconduct alleged, and that such misconduct was calculated to, or did, actually defeat, impair, impede or preju- dice the rights of the complainant in this cause ; it is therefore ordered, that a fine of dollars be, and the same is hereby imposed upon the said C. D. for his said misconduct. And it is further ordered, that the said C. D. do pay to the said complain- ant the costs and expenses of the proceedings for such miscon- (d) Owmming vs. Wagoner, 7 Paige, Ch. 603. («) See ante, pp. 81-84. I MISCELLANEOUS EOEMS. 621 Orders. duct, and now taxed at the sum of dollars. And it is further ordered, that the said C. D. be, and he is hereby directed to stand committed to the common jail of the county of , there to remain charged with this contempt until he shall have fully answered the said bill of complaint, and paid such fine and costs ; unless the court shall see fit sooner to discharge him. And that a warrant issue for that purpose. Upon this order a mittimus, or warrant of commitment for contempt in not appearing, will issue. No. 227. Order to refer second or third answer on the old exceptions. (f) {Caption, and title of cause as in No. 79, amte,page 198.) Exceptions having been heretofore taken to the answer of the defendant C. D., and such answer having been reported insuffi- cient in the matters of the first and fourth exceptions, the defendant has put in a second {or third) answer to the bill in this cause ; which answer the complainant alleges to be insuffi- cient in the matters of the said first and fourth exceptions : It is therefore ordered that it be referred to the master in chancery of this court, to whom such exceptions were originally referred, to look into the bill of complaint, the answer of the defendant, and the said first and fourth exceptions, and to report whether such second {or third) answer is sufficient in the matters of the exceptions, or not. No. 228. Order for sheriff acting as sergeant-at-arms. {g) {Caption, and title of cause as in No. 79, ante, page 198.) The defendant CD. being in contempt for not appearing and answering to the bill of complaint in this cause, and a com- mission of rebellion having been heretofore issued out of and under the seal of this court, directed to certain commissioners therein named, commanding them to attach the said C. D. as a rebel and contemner of the law, and to have him before this court, on the day of instant ; and the said commis- sioners having returned that they had made diligent search and inquiry after the said C. D. so as to attach his body by virtue of the said commission, but that notwithstanding all their endeavors they could not meet with him for that purpose, as by such commission and the return thereto appears. It is {/) See ante, pp. 81-84. (g) See ante, p. 85. 6.22 MISCELLANEOUS FORMS. Orders. thereupon ordered that the sheriff of the county of , now attending this court at its present term, and executing all the powers and duties of a sergeant-at-arms, do forthwith go and take the said C. D. into his custody, and him safely keep, and bring him immediately into this court, before the court, to answer for his contempt, and to do and receive what this court shall thereupon further order in the premises. And it is fur- ther ordered that the said sheriff do with all convenient speed certify to this court, under his hand, his doings in the premises. Upon this order a warrant to the sheriff acting as sergiant-at- a/rms will issue. Wo. ?i%9. Order for a sequestration. (h) (Caption, and title of cause as in Wo 79, ante, page 198.) The defendant being in contempt for not appearing and answering the bill of complaint in this cause, and a warrant having been issued to the sheriff of the county of , attend- ing this court at its present term, and as such, executing all the duties of a sergeant-at-arms, requiring him forthwith to go and take the said 0. D. into his custody and bring him into this court to answer for his contempt, in pursuance of an order of this court made on the day of ; and the said sheriff, acting as sergeant-at-arms, having returned that he had made diligent search and inquiry after the said C. D., but that he did so abscond and secrete himself that he could not be found to be apprehended, as by the said warrant and the return thereof appears ; it is therefore ordered that a commission of sequestra- tion do issue against the said C. D., directed to E. F., G. JEE. and J. K., commissioners, directing them to sequester the defendant C. D.'s personal estate, and the rents, issues and profits of his real estate, until the defendant C. D. shall appear to the bill of complaint in this cause, clear his contempt, and this court shall make an order to the contrary. Upon this order being made, a writ of sequestration will issue. Wo. %30. Order of reference when defendant does not submit to answer exceptions. (Caption, and title of cause as in Wo. 79, ante, page 198.) Exceptions for insufficiency having been filed to the answer of the defendant C. D. on the day of last, and the (A) See ante, p. 86. MISCELLANEOUS FOEMS. 623 Orders. Baid C. D. not having submitted to answer said exceptions, it is ordered that it be referred to the master in chancery of this court, to look into said bill and answer of the defendant C. D. and such exceptions, and report whether said exceptions are well taken or not. No. 231. Order for further answer after report of master. {Caption, and title of cause as in No. 79, ante, page 198.) The answer of the defendant C. D. having been reported insufficient in the matters of the first and fourth exceptions thereto, by the master in chancery to whom the exceptions of the complainant to srfch answer were referred, and the report of the said master being approved by the court, against the defendant C. D., it is therefore ordered that the said C. D. put in a further answer to the matters of the said first and fourth exceptions within days from this date, and pay the costs of such exceptions. No. 232. Order for an attachment on third answer being held insufficient. (Caption, and title of cause as in No. 79, wake, page 198.) The third answer filed by the defendant C. D. having been reported insufficient, on a reference to the master in chancery upon the original exceptions, in the matters of the first and fourth exceptions, and the report of said master having been filed and having become absolute, it is ordered that an attach- ment issue against the defendant C. D. No. 233. Order for examination of defendant on interroga- tories, etc., on third answer being held insufficient. (Caption, and tide of cause as in No. 79, ante, page 198.) The third answer of the defendant C. D. having been re- ported insufficient, on a reference to the master upon the origi- nal exceptions, in the matters of the first and fourth exceptions, and the report of the said master having been filed, and having become absolute, an attachment was thereupon issued against the said C. D., in pursuance of an order of this court rendered on the day of — — last. And the said C. D., now being personally before the court by virtue of the said attachment, and this court now adjudging the defendant to have been guilty of the misconduct alleged, and that such misconduct was calcu- lated to, or actually did defeat, impair, impede or prejudice the 624 MISCELLANEOUS FORMS. Orders. rights or remedies of the complainant in this cause ; it is there- fore ordered that the said C. D. he examined upon interroga- tories before the master in chancery of this court, to the points wherein his said third answer is reported insufficient ; and that he stand committed to the common jail of the county of until he shall have answered such interrogatories to the satis- faction of the said master, and paid the costs incurred by reason of his default, now taxed at dollars ; and that a warrant issue for that purpose. And it is further ordered, that the sheriff of said county do keep the defendant in his actual custody until the court shall have made some order in the premises, and that he take the said C. D. before the said master to be exam- ined, at such times as such master shall appoint. No. £3£. Order for leave to amend bUl after a plea to part is allowed. (*) {Caption, and title of cause as in No. 79, suite, page 198.) The plea of the defendant C. D. to the bill of complaint in this cause having been, on argument, allowed as to part of said bill, on motion of Mr. , of counsel for the complainant, it is ordered that the complainant have leave to amend said bill by, etc., {Here state the manner in which it is to be amended]) upon payment of costs to be taxed. It is further ordered that such amendment be filed with the clerk of this court within days from this date. No. £35. Order of reference to the master. {J) {Proceed as in No. 81, ante, page W2, to the *, and con- tinue :) That this cause be, and the same is hereby, referred to the master in chancery of this court, to inquire and state to the court, etc. {Here insert the subject matter of reference;) and for the better discovery of the matter aforesaid, the par- ties respectively are to produce before the said master all deeds, books, papers and writings in their possession, custody or power relating thereto, and are to be examined upon oath and interrogatories as the said master shall direct; and the said master will cause to come before him all such witnesses whose testimony he may deem necessary, and examine them upon oath and interrogatories touching the matters aforesaid; and toe said master will make his report thereon with all con- (tl See ante, p. 168. (J) See ante, pp. 183-186. MISCELLANEOUS POEMS. 625 Orders. venient speed ; and if any special questions shall arise, the said master is at liberty to state the same to the court. No. 236. Order of reference of a plea of former suit pending, (k) {Caption, and tide of cause as in No. 79, ante, page 198.) On filing a plea in this cause averring that there is a former suit depending in this court for the same matters as are involved in the present suit, it is therefore ordered that it be referred to the master in chancery of this court, to look into the bill and the plea in this cause, and the bill in the said plea alleged to have been exhibited by the complainant against the defendant previous to the commencement of this suit, and into the other pleadings and proceedings therein, and to report whether the said plea is true. No. 237. Order directing plea to stand for an answer. (T) (Caption, and title of cause as in No. 79, ante, page 198.) The plea of the defendant C. D. to the bill of complaint in this cause having heretofore come on to be argued, and counsel for the respective parties having been heard thereupon, it is ordered that the said plea do stand for an answer, with liberty to the complainant to except thereto. Wo. 238. Order allowing the complainant to dismiss his hill. (Caption, and tide of cause as in No. 79, ante, page 198.) The complainant applying to dismiss his bill in this cause, on motion of. Mr. , solicitor for the complainant, it ia ordered that leave to dismiss the same be granted accordingly, on the complainant paying to the defendant his costs in this auit, to be taxed. No. 239. Order to pay money into court, (m) (Caption, and title of cause as in No. 79, ante, page 198.) On reading and filing the bill and answer in this cause, and on motion of Mr. , solicitor for the complainant, and on hear- ing Mr. , solicitor for the defendant, in opposition to said (£) See ante, p. 132. (i) See ante, p. 130. (m) See ante, p. 196. „ MISCELLANEOUS FOKMS. Orders. motion, it is ordered, that the defendant C. D. do, within days from the date of this order, pay into the hands of the clerk of this court, in trust in this cause, the sum of dol- lars, admitted by the answer of the defendant to be due from him ; and that when such money is paid in it be deposited by said clerk, in trust, in the Bank of -, to the credit of this cause, there to remain until the further order of this , court. No. %Jfi. Final decree, dismissing biM at the hearing, (n) {Proceed as in No. 81, ante, page 80S, to the *, and con- tinue:) That the complainant's said bill of complaint be and the same is hereby dismissed, with costs to the defendant, to be taxed. No. B%1. Order for cause to stand over, to add new parties, (o) (Caption, and title of cause as in No. 79, ante, page 198.) This eause coming on to be heard this day, and counsel for both parties having been in part heard ; and it appearing to the court that E. F. and G. H. are necessary parties to this cause, it is ordered that this cause do stand over, to the end that the complainant may make the said E. F. and G. H. par- ties thereto, either by amendment or supplemental bill, as he may be advised. Wo. 21$. Order for cause to stand over to supply proof s. (p) (Caption, and title of cause as in No. 79, ante, page 198.) This cause coming on to be heard this day, and counsel for both parties having been in part heard ; and it appearing to the court that the complainant has omitted to introduce proof of the death of E. F., his intestate, it is ordered, that this cause do stand over, to the end that the complainant may examine witnesses to prove the death of such intestate. (n) See ante, p. 197. . (o) See ante, pp. 165-167. (p) See ante, pp. 165-167. MISCELLANEOUS FORMS. 627 Interrogatories — Answers to. No. 2^3. Interrogatories for the examination of a party in contempt for not answering, in pursuance of No. 2%5, ante, page 619. {g) {Title of cause as in No. S4S, post, page 628.) Interrogatories to be exhibited on the part of the com- plainant, for the examination of 0. D., the defend- ant in this cause, pursuant to an order made in said cause on the day of , 18 — . First. — Were you not, on or about the day of last, or at any other *nd what time, duly served with a sum- mons in the above entitled cause ? When and by whom and how was such service made ? Answer this interrogatory fully and particularly. Second. — Is not the writ of summons now shown to you the one served, and a copy of the same left with vou ? Answer fully. Third. — Were, etc. {Here insert such additional inter- rogatories as may he deemed necessary.) , Sol. for Complainant. No. &££. Answer to interrogatories in the last form, No. %li3. {Title of cause as in No. %]£, Yost, page 628.) The answer and examination of C D., the defendant in this cause, to the interrogatories exhibited by the complainant for his examination, pursuant to an order of this court, made in said cause, on the day of , 18—. To the first interrogatory, this defendant answers and says, that, etc. To the second interrogatory, he answers and says, that, etc., {and so on.) C. D. Sworn and subscribed to before me this day of , 18—. , Master m Chancery. (g) See ante, pp. 81-84. 628 MISCELLANEOUS FORMS. — _ Master's Report upon Exceptions, etc. — Further Answer, etc Wo. 2Jp5. Master's report v/pon exceptions to answer for insufficiency, (r) In the • Court. In Chancery. Term, 18 To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting: In pursuance of an order of this court made in the above entitled cause, on the day of , 18 — , whereby it was referred to me, as master in chancery of this court, to look into the complainant's bill of complaint, the answer of the defend- ant C. D., and the exceptions taken to said answer by the com- plainant, and report whether said exceptions are well taken or not. I, the said master in chancery, do hereby respectfully certify and report, that having been attended by the counsel of the respective parties, and having looked into said bill and answer, and the exceptions taken thereto, and having duly considered the same, I, find that the first and fourth exceptions to said answer are well taken, and that the second, third and fifth exceptions are not well taken. All of which is respectfully submitted. , Master in Chancery, County. Wo. 246. Further answer after exceptions and amendment. Court. Term, 18—. In Chancery. The further answer of the defendant C. D. to the original bill of complaint ; and the answer of the same defendant to the amended bill of the com- plainant. This defendant, saving and reserving to himself the same benefit of exception to the said original and amended bill, as by his former answer to the said original bill, is saved and (r) See ante, pp. 158-160. MISCELLANEOUS FOEMS. 629 Beport of Master, etc. — Exceptions to Report, etc. reserved for answer thereto, or so much, etc., {as in No. 67, ante, page 148,) answers and says, etc. And this defendant, in further answer to such original bill, as to the matters of the first exception taken by the complain- ant to his former answer, says, etc {and so on.) And this defendant, for further answer to the amendments made to such original bill, says, etc. No. 2Jfl. Master's report as to sufficiency of defendants examination. {Title of cause as in No. 245, ante, page 688.) To the Honorable , Judge of the Court of the County of , in the State of , In Chancery sitting : In pursuance of an order of this court made in the above entitled cause, on the day of , 18 — , whereby it was referred to me, as master in chancery of this court, to examine the defendant C. D. on interrogatories to the points wherein his third answer to the bill in this cause was reported insuf- ficient. I, the said master, do hereby respectfully certify and report that, having been attended by the counsel for the respective parties, and having caused the said C. D. to bo brought before me, I examined him upon oath upon the writ- ten interrogatories filed for that purpose, and also viva voce, and that his examination thereto is contained in a schedule hereto annexed, marked A. And I do further certify and report that, in my opinion, the said examination is sufficient. All of which is respectfully submitted. Dated at, etc , Master in Chancery. No. 248. Exceptions to masters report on exceptions to answer, (s) {Title of cause as in No. 245, ante, page 628.) Exceptions taken by the complainant to the report of the master in chancery of this court, to whom it was referred to report as to the exceptions filed to the answer of the defendant C. D. JFlrst. — For that the said master has, in and by his said report, certified that, etc. {Sere set out the words of the report?) "Whereas, the said master ought to have certified that (*) See ante, p. 157, et teq. 630 MISCELLANEOUS FOKMS. Agreement to Submit Cause, etc. — Abstract of Pleading, etc. the exceptions to the answer of the defendant C. D. were well taken, and that the said answer of the defendant C. D. was imperfect, insufficient and evasive in the particulars ex- cepted to. Second. — For that the said master has certified, etc., (and so on.) In all which particulars the report of the said master is erroneous, and the complainant appeals therefrom to the judg- ment of this honorable court. , Sol. for .Complainant. No. IMfi Agreement to submit the cause on written arguments. In the Court. A. B. ) Term, 18- vs. > In Chancery. C. D. [ It is stipulated and agreed that this cause be submitted to the court on written arguments. The complainant's counsel to 6erve his argument within days, and the defendant's counsel to answer the same within days thereafter, and the complainant's counsel to reply within days after the defendant's argument shall have been served. Dated, etc. Sol. for Comylavnant. Sol. for Defendant. No. 250. Abstract of pleadings, etc. In the Court. Term, 18—. In Chancery. The bill in this cause was filed on the day of 18 — ; The answer was filed on the day of , 18 — ; and the replication on the day of , 18 — . The following wit- nesses were examined on the day of , 18 — , before the master in chancery, in pursuance of an order of reference, made on the day of , 18 — , to-wit : E. F. and G. H. on the part of the complainant, and J. K. and L. M. on the part of the defendant. The- following documents were also produced, to-wit : etc. The object of the bill is to procure a conveyance from the defendant of the real estate described in the bill, and being the, etc. (Here insert the description.) MISCELLANEOUS FOKMS. 631 Abstract, etc — Brief and Points, etc BILL. States that before complainant purchased lot 7, etc, L. M. owned the improvements, etc Lot 9 was leased to L. M. on, etc., bat by an agreement, etc On the day of ,etc, both parties, etc Complainant paid, etc Usual charge of confederacy, etc Answer on oath prayed for. Prayer for injunction ; that defend- ant may be decreed to execute con- veyance ; and for general relief. REPLICATION. For complainant, E. F. testifies that, etc Q. H. testifies that, etc ANSWER. Admitted But the defendant, on, etc., purchased of L. M. all the im- provements. Denies, etc Substantially admitted Denied. General traverse, and usual con- clusion. For defendant, J. K. testifies that, etc L. M. testifies that, etc. Ifo. 251. Brief and points on hearing. Lithe A.B court. A. B. | vs. >In CD.) Chancery. Term, 18— v The complainant has a perfect remedy at law whereby he may avail himself of every ground of complaint set forth in the bill. Authorities cited. U. The conrt of chancery will not assume jurisdiction in this case upon the ground of its being a bill of peace. Because, First. — The bill is filed only against a single party, which party has. neither commenced nor threatened to commence i multiplicity of suits, etc. Second. — The apprehensions of the complainant that, etc Third.— That, etc. Authorities oited. 632 MISCELLANEOUS FOEMS. Brief and Points, etc III. The defendants are authorized by the act oi, etc., to Dass tLe ordinance in question. Authorities died. IV. The ordinance is a reasonable regulation of trade, etc. Authorities cited. CHAPTER XLII. PRACTICE IN THE" SUPREME AND APPELLATE COURTS. Section 1. Jurisdiction of the Supreme Court. 2. Jurisdiction op Appellate Court, etc. 3. Agreed Cases. 4. Writ of Error — Supersedeas. 5. Appeaijs. » 6. Records of Inferior Courts. 7. Docket. 8. Assignment of Error and Proceedings Thereon. 9. Motions. 10. Suggestions of Diminution of Record. 11. Original Papers. 12. Abstract of the Record. 13. Brief and Argument. 14. Advance Fee to Clerk. 15. Cases taken from Appellate to the Supreme Court. 16. Judgments. 17. Executions. 18. Rehearing. 19. Licensing Attorneys — Striking Names from the Roll. 20. Library. SECTION I. JURISDICTION OF THE SUPREME COURT. By the first section of Article VI of the Constitution of Illinois (18T0): "The judicial powers, except as in this article is other- wise provided, shall be vested in one supreme court, circuit courts, justices of the peace, police magistrates, and such other courts as may be created by law in and for cities and incorporated towns." The judiciary of this state cannot exercise any power or authority except such as is granted by the Constitution, (a) (a) Field vs. The People, 2 Scam. 79. 634 SUPREME AND APPELLATE COURTS. Jurisdiction of the Supreme Court. " The supreme court shall consist of seven judges, and shall have original jurisdiction in cases relating to the reve- nue, in mandamus and habeas corpm; and appellate jurisdic- tion in all other cases. One of said judges shall be chief justice ; four shall constitute a quorum, and the concurrence of four shall be necessary to every decision." (5) Original Jurisdiction. — The provision of the Constitution conferring original jurisdiction on the supreme court in cases relating to the revenue, mandamus and habeas corpus, are not to be construed as making such jurisdiction exclu- sive, (c) In revenue cases. — Section 260 of the Revenue Act pro- vides that " When suit is instituted in behalf of the state it may be in either division of the supreme court, or in the Sangamon county circuit court, or in any court of record in this state hav- ing jurisdiction of the amount ; and process may be directed to any county in the state. In any proceedings against any officer or person whose duty it is to collect, receive, settle for or pay over any 6f the revenues of the state, whether the proceeding be by suit on the bond of such officer or person, or otherwise, the court in which such proceeding is pending shall have power, in a summary way, to compel such officer or person to exhibit, on oath, a full and fair statement of all moneys by him collected or received, or which ought to be settled for or paid over, and to disclose all such matters and things as may be necessary to a full understanding of the case ; and the court may, upon hearing, give judgment for such sum or sums of money as such officer or person is liable in law or equity to pay. And if, in a suit upon the bond of any such officer or person, he or his sureties, or any of them, shall not for any reason be liable upon the bond, the court may, nevertheless, give judgment against such officer or per- (6) § 2, Art. VI, Const, of 1870. (c) Hundley vs. Commissioners etc., 67 HI. 559. SUPREME AND APPELLATE COURTS. 635 Original Jurisdiction of Supreme Court. son, or against such officer and such of his sureties as are liable, for the amount he or they may be liable to pay, with- out regard to the form of the action or pleadings." Section 261 provides that •* When suit has been instituted by the auditor, any party aggrieved may proceed under the judgment obtained, upon the bond, by writ of inquiry of damages, as in other cases upon bonds." In section 262 it is provided that ■• Cities, towns, villages or corporate authorities, or per- sons aggrieved, may prosecute suit against any collector or other officer collecting or receiving funds for their use, by suit upon the bond, in the name of the people of the state of Illinois, for their use, in any court of competent jurisdic- tion, whether the bond has been put in Suit at the instance of the auditor or not ; and in case of judgment thereon, the auditor may, if he shall so elect, have a writ of inquiry of damages for any amount that may be due to the state treas- ury from such officer. Cities, towns, villages and other cor- porate authorities or persons shall have the same rights in any suits or proceedings in their behalf, as is provided in case of suits by or in behalf of the state." (d) The rules of the supreme court in relation to cases in rev- enue suits are as follows : Rule 17. — "In proceedings in original actions relating to the revenue, the process or notice of a motion shall be served on the defendant at least twenty days before the \first day of the term. If there shall not be twenty days between the day of service and the first day of the term, the cause may be continued on the application of the de- fendant. Rule 18. — "In such original actions, if a declaration set- ting forth the cause of action shall not be filed at least (d) Rev. Stat. (1874) 900; Rev. Stat. (1877) 856. 636 SUPREME AND APPELLATE COURTS. Original Jurisdiction of Supreme Court. twenty days before the first day of the term, the cause may be continued on the application of the defendant." (e) Mandamus. — For proceedings in mandamus, see Puter- baugh's Com. Law PL and Pr., ch. vi, pp. 671-683. The supreme court is authorized to issue writs of manda- mus. Its process must run in the name of the people of the state of Illinois, bear teste in the name of the chief jus- tice, be signed by the clerk of the court for the grand divi- sion from which it is issued, dated when issued, sealed with the seal of the court, and made returnable according to law, or such rules or orders as may or have been prescribed by the court, and shall be executed by the officer or person to whom it is directed, in any county or place in this state, in the usual manner that process is or may be required to be executed and returned. (/") • The rule of the supreme court in relation to mandamus is as follows : Rule 19. — "Before an application for a writ of mandamus will be heard by this court, the applicant must show that all the parties interested in the subject-matter to be reached or effected by the issuance of the writ have been notified in writing of the time and place of the intended application, at least ten days previous thereto, unless the court for special reasons shall otherwise direct." (g) By the practice act it is not necessary, in an action of man- damus, to set out the cause of action in the writ, but it is sufficient to summon the defendant in a summons in the usual form, commanding him to appear and answer the plaintiff in an action of mandamus, and the issue is made up by answering, pleading or demurring to the petition, as in other cases. (A) (e) 55 111. xxii; Puterbaugh's Com. Law PI. and Pr. ix. (/) Rev. Stat. (1874), 328; Rev. Stat. (1877) 321. (?) 55 111. xxii; Puterbaugh's Com. Law PI. and Pr. ix. (h) Rev. Stat. (1874) 776; Rev. Stat. (1877) 735; The People vs. Glenn, 70 111. 232. SUPREME AND APPELLATE COURTS. 637 Appellate Jurisdiction of Supreme Court. The first section of the statute in relation to mandamus provides "That upon the filing of a petition for a mandamus the clerk of the court shall issue a summons in like form as other summons in suits at law, commanding the defendant to appear at the return term thereof, and show cause why a writ of mandamus should not be issued against him. If the summons is issued in vacation, it shall be returnable on the first day of the next term ; or, if in term time, it may be made returnable on *any day of the term, not less than five days after the date of the writ." (i) Habeas corpus. — For proceedings in habeas corpus, see Puterbaugh's Com. Law PI. and Pr., ch. xviii, pp. 712-731. The supreme court is authorized by the statute to issue the writ of habeas corpus. (J) But there is no provision in the statute giving the judges in vacation power, like circuit judges, to issue the writ, and determine the case ; and it would seem that applications for the writ can only be made to the court in session. Appellate Jurisdiction. — The appellate jurisdiction of the supreme court is exercised in cases brought before it for review by appeal or writ of error. And only in such cases as is or may be provided by law. (k) And a joinder in error will not confer jurisdiction in a case where the con- stitution has not given it. (I) It will give jurisdiction of the person, but not of the subject-matter, (m) A case cannot be heard in the supreme court by appeal or writ of error until after a final judgment or decree in the (i) Rev. Stat. (1874) 691; Rev. Stat. (1877) 656. (j) Rev. Stat. (1874) 328; Rev. Stat. (1877) 321. , (k) 0. & Miss. R. R. Co. vs. Lawrence Co., 27 111. 50; Hobson vs. Paine, 40 111. 26; Holden vs. Herkimer, 53 111. 258; Moore vs. Mansfield, 47 111. 169; Winkleman vs. The People, 50 111. 449; Peake vs. The People, 76 111. 289. (?) The People vs. Peggy Royal, 1 Scam. 557. (m) Woodside vs. Woodside, 21 111. 207. 638 SUPKEME AND APPELLATE COUKTS. Appellate Jurisdiction of Supreme Court. court below, (n) There must be a final disposition of the case as to all parties. A cause of action cannot be reviewed as to one party at one time, and as to another party at another time, (o) Whenever a decision of an inferior court is made which finally disposes of the subject-matter of litigation, so far as the court is concerned, of which a record can be made, which decides the rights of property or personal liberty, the same may be reviewed by the superior court, (p) An appeal or writ of error does not lie from an interlocu- tory decree or judgment, (q) Writs of error and appeals may be taken from judgments on awards ; (r) from final judgments upon the reports of auditors in an action of account ; (s) from decisions upon mandamus ; (t) quo warranto ; (u) condemnation cases ; (v) contested election cases ; (w) escheat cases ; (a?) from an order of an inferior court suspending an attorney from prac- (n) Cunningham vs. Loomas, 17 111. 555; Oder vs. Putnam, 22 111. 38; Cruel vs. Keener, 17 111. 242; Gage vs. Eich, 56 111. 297; Phelps vs. Fi&kes, 63 111. 201; Walker vs. Oliver, 63 111. 199; Williams vs. LaValle, 64 111. 110; The People vs. Neal, 3 Bradwell, App. C. R. 181; Trustees of Schools vs. School Directors, 88 111. 100. (o) Thompson vs. Follansbee, 55 111. 427; Freeman on Judgments, § 28; • The People vs. McFarland, 3 Bradwell, App. Ct. R. 237; see Waugh vs. Suter, lb. 271. (p) Sloo vs. The State Bank, 1 Scam. 428; Stewart vs. The People, 3 Scam. 395; Harrison vs. Singleton, 2 Scam. 21; Myers vs. Manny, 63 111. 211. {g) Keel vs. Bentley, 15 111. 228; Cornelius vs. Coons, Breese, 15; Penti- cost vs. Magahee, 4 Scam. 326; Hayes vs. Caldwell, 5 Gilm. 33; Fleece vs. BusseUf, 13 111. 41; Woodside vs. Woodside, 21 111. 207; Gage vs. Bohrback, 56 111. 262; Gage vs. Eich, lb. 297; Wright vs. Smith, 76 111. 216; see ante, 195-196; Puterbaugh's Com. Law PI. and Pr. 814. (» Rev. Stat. (1874) 150; Rev. Stat. (1877) 143. (s) lb. 102; lb. 98. (i) lb. 693; lb. 659. (m) lb. 788; lb. 748. (i>) lb. 477; lb. 466. («>) lb. 466; lb. 457; Hall vs. Thode, 75 111. 173. (x) lb. 480; lb. 469. SUPREME AND APPELLATE COURTS. 639 Appeals and Writs of Error from Appellate Court. tice ; (y) and from the final judgment of the circuit court on a certiorari at common law. («) Appeals and writs of error from, appellate court. — Section 8 of the act of 1877, to establish appellate courts, provides that "The said appellate courts created by this act shall ex- ercise appellate jurisdiction only, and have jurisdiction of all matters of appeal, or writs of error from the final judgments, orders or decrees of any of the circuit courts, or the superior courts of Cook county, or from the city courts in any suit or proceeding at law, or in chancery other than criminal cases, and eases involving a franchise or freehold or the validity of a statute. Appeals and writs of error shall lie from the final orders, judgments or decrees of the circuit and city courts, and from the superior court of Cook county, directly to the supreme court in all criminal cases and in cases involving a franchise or freehold or the validity of a statute. In all cases determined in said appellate courts, in actions ex contractu, wherein the amount involved is less than one thousand dol- lars f?l,000), exclusive of costs, and in cases sounding merely in damages, wherein the judgment of the court below is less than one thousand dollars (si, 000 \ exclusive of costs, and the judgment is affirmed or otherwise finally disposed of in the appellate court, the judgment, order or decree of the appellate court shall be final, and no appeal shall lie or writ of error be prosecuted therefrom : Prodded, the term . x contractu, as used in this section, shall not be construed to include actions involving a penalty. In all other cases appeals shall lie and writs of error may be prosecuted from the final judgments, orders or decrees of the appellate courts to the supreme court: Provided, al$>>, that if in any case a majority of the judges of the appellate court shall be of opinion that a case decided by them involving a less sum than one thousand dollars (81,000), exclusive of costs, also (y) Winkleman vs.. The People, 50 111. 449. (z) Trustees of Schools vs. School Directors, 88 III. 100. 640 SUPEEME AND APPELLATE COURTS. Appeals and Writs of Error from Appellate Court. involves questions of law of such importance, either on account of principal or collateral interests, as that it should be passed upon by the supreme court, they may in such cases grant appeals and writs of error to the supreme court on petition of parties to the cause, in which case the said appel- late court shall certify to the supreme court the grounds of granting said appeal." (a) Section 90 of the Practice Act, added by amendment by the act of 1817, provides that "In- all criminal cases, and in all cases where a fran- chise or freehold or the validity of a statute is involved, and in all other cases where the sum or value in the controversy shall exceed one thousand dollars (81,000), exclusive of costs, which shall be heard in any of the appellate courts upon errors assigned, if the judgment of the appellate court be that the order, judgment or decree of the court below be affirmed, or if final judgment or decree be rendered therein in the appellate court, or if the judg- ment, order or decree of the appellate court be such that no further proceedings can be had in the court below, except to carry into effect the mandate of the appellate court, any party to such cause shall be permitted to remove the same to the supreme court by appeal or writ of error, in the same manner as provided in sections sixty-seven (67) and seventy (70) of this act for appeals to said appellate court : Provided, that such appeal may be prayed for at any time within twenty (20) days after the rendition of such judgment, order or decree, whether such appellate court be in session or not ; and if such appeal be prayed for in vacation, any one or more of the judges of such appellate court may make and sign all orders necessary for the perfecting of such appeal, and the clerk shall enter up such orders aspart of the record in the case; and provided, further, that in all cases where the judg- ment, order or decree is for the recovery of money only, if the judgment, order or decree of the inferior or appellate (a) Laws of 1877. p. 69; Rev. Stat. (1877) 323; Hartshorn vs. Dawson, % Bradwell, App. Ct. R. 80; City of Chicago vs. Valcum Iron Works, lb. 189. SUPREME AND APPELLATE COURTS. 641 Jurisdiction of Appellate Courts, etc. court be affirmed by the supreme court, or the appeal or writ of error be dismissed, the supreme court may enter judgment against the appellant or plaintiff in error for dam- ages, not exceeding ten (10) per centum on the amount of the judgment recovered, and shall award execution therefor as on other judgments." ifi) Appeals from circuit courts, etc. — Section 88 of the Prac- tice Act, as amended by the act of 1879, (e) provides that v ' "Appeals and writs of error to circuit courts, the superior court of Cook county, the criminal court of Cook county, county courts and city courts, in all criminal cases, below the grade of a felony, shall be taken directly to the appellate court, and in all criminal cases above the grade of misde- meanors ; and cases in which a franchise or freehold or the validity of a statute or construction of the constitution is involved, and in all cases relating to revenue, or in which the state is interested as a party or otherwise, shall be taken directly to the supreme court," etc. (d) SECTION II. JTJBISDICTION OF APPELATE COURTS, ETC. It was provided in Section II, Article VI, of the Constitu- tion of 1870, that , "After the year of our Lord 1874, inferior appellate courts of uniform organization and jurisdiction may be created in districts formed for that purpose, to which such appeals and writs of error as the general assembly may provide may be prosecuted from circuit and other courts, and from which appeals and writs of error shall lie to the supreme court in all criminal cases, and cases in which a franchise or freehold, (6) Laws of 1877. p. 153; Rev. Stat. (1877) 746. (c) Laws of 1879, p. 222; Bradwell's ed. 169. (d) See Hartshorn vs. Dawson, 2 Bradwell's App. Ct. R. 80; City of Chi- cago vs. Valcum Iron Works, lb. 189. 642 SUPKEME AND APPELLATE COURTS. Jurisdiction of Appellate Courts, etc. or the validity of a statute, is involved, and in such other eases as may be provided by law. Such appellate courts shall be held by such number of judges of the circuit courts, and at such times and places, and in such manner, as may be provided^ by law ; but no judge shall sit in review upon .cases decided by him, nor shall said judges receive any ad- ditional compensation for such services." Under the above provision of the constitution the legis- lature of 1877 passed an act to establish appellate courts, dividing the state into four districts, — first, second, third and fourth, — and providing that each shall be held by three cf the judges of the circuit court, to be assigned by the su- preme court. Two of the judges so assigned in each district to constitute a quorum, and the concurrence of two to be necessary to every decision, ( . provide that ■'!No judgment will be pronounced in an j agreed case placed upon the records of this court unless an affidavit shall 'be filed setting forth that the matters presented by the record were litigated in good faith about a matter in actual controversy between the parties, and that the opinion of this court is not sought with any other design than to adjudicate and settle the law relative to the matter in actual controversy between the parties to the record." In the second district of the appellate court an affidavit is not necessary if not required by the court. {j> i The supreme court and appellate courts will not take juris- diction of an agreed case unless there has been a final judg- ment rendered in the court below, (q) Judge may certify questions of law. — Section 75 of the Practice Act, as amended by the act of 1877, provides that "Any judge of the circuit court or the superior court of Cook county, or of any city court, may, if the parties liti- gant assent thereto, certify any question or questions of law arising in any case tried and finally determined before him to the appellate or supreme court, together with his decision thereon ; or the parties in the case may agree as to the ques- tions or points of law arising in the ease, and the same may be certified by the counsel or attorneys of the respective parties, who shall sign their names thereto ; and upon such certificate being made the same shall be filed in the court rendering the decision, and a copy of such certificate, certi- fied by the clerk of said court, with the decision thereon and final decision in the case, to the appellate court or supreme court, and filed therein; and upon filing the same the like proceedings may be had in the appellate court or supreme (n) 55 111, 23; Puterbaugh's Com. Law PI. and Pr. 9. (o) 1 Bradwell's App. Ct. R. 22, 33, 46, 57. {p) See Rule 16, 1 Bradwell's App. Ct. R. 33. (q) Crull vs. Keener, 17 111. 246. SUPREME AND APPELLATE COURTS. 647 Writ of Error — Supersedeas. court as if a full and complete record had been transcribed and certified to said court." (/) The statute in relation to agreed cases, and certifying ques- tions of law, do not apply in cases in which the title to real estate is in question, nor to cases where any question of fact appertaining to the constitutional enactments of a law of this state is involved, (s) SECTION IV. WBIT OF EEEOE SUPERSEDEAS. Writ of error. — A writ of error is a writ of right, and may be prosecuted in all cases, unless prohibited by some statute or inflexible rule of law. (t) If a successful party is dissatisfied with a judgment ren- dered in his own rkvjor, he may prosecute a^writ of error for its reversal, but he cannot appeal, (u) Where a judgment is rendered against two or more per- sons, either may sue out a writ of error, and for that purpose may use the names of all said parties if necessary, bat no costs shall be taxed against any other person who shall not join in suing out the writ, (v) But such plaintiff in error cannot allege errors which relate exclusively to a party who is not complaining, and who is not before the court, (w) Limitation— r Section 85 of the Practice Act, as amended by the act of 1877, provides that (r) Laws of 1877, p. 150; Rev. Stat. (1877) 744. (s) Laws of 1877, p. 151; Rev. Stat. (1877) 744. (0 McClay vs. Norris, 4 Gilm. 370; Bowers vs. Green, 1 Scam. 42; Hall ws.Thode, 75 111. 173. (u) Addix vs. Fahnestock, 15 111. 448; Jones vs. Wright, 4 Scam. 338; Fullervs. Roll, 26 111. 246; see Teal vs. Russell, 2 Scam. 319; Davidson vs. Bond, 12 111. 84; Hartman vs. Belleville <& 0. F. R.R. Co., 64 111. 24. (c) Rev. Stat. (1877) 743. (w) Richards vs. Green, 78 111. 525; Fowcille vs. Sausser, 73 111. 451; Walker vs. Alt, 83 111. 226; Clark vs. Marfield, 77 111. 258; Kennedy vs. Kennedy. 66 111. 190; Havingiiorst vs. IAndberg, 67 111. 463; Smith vs. Hick- man. 68 111. 314. 648 SUPREME AND APPELLATE COURTS. Writ of Error — Process, etc. "A writ of error shall not be brought after the expiration of five years from the rendition of the decree or judgment complained of; but when a person, thinking himself aggrieved by any decree or judgment that may be reversed in the supreme court or the appellate court, shall be an infant, non compos mentis, or under duress, when the same was entered, the time of such disability shall be excluded from the computation of the said five years." (.v) Where a writ of error is sued out within five years, the failure to have the process served within that period will not bar the writ, (y) To whom directed. — Rule 4 of the supreme court, (2) and of the several appellate courts, {a) in relation to writs of error to inferior courts, is as follows : " IY. Writs of error shall be directed to the clerk or keeper of the record of the court in which the judgment or decree complained of is entered, commanding him to certify a correct transcript of the record to this court ; but where the plaintiff in error shall file in the office of the clerk of this court a transcript of the record duly certified to be full and complete, before a writ of error issues, it shall not be neces- sary to send such writ to the clerk of the inferior court, but such transcript shall be taken and considered as a due return to said writ." Process on writs of error. — The process on writs of error is prescribed by the 5th rule of the supreme court, (b) and of each of the appellate courts, (c) and is as follows : "V. The process on writs of ^rror shall be by scrre- facias to hear errors, issued on the application of the plaintiff in error to the clerk, directed to the sheriff or other officer (x) Laws of 1877, p. 152; Rev. Stat. (1877) 745. {y) Burnap vs. Wight, 14 111. 303. (s) 55 111. xviiij Puterbaugh's Com. Law PI. and Pr. vi. (a) 1 Bradwell's App. Ct. R. 18. 30, 42, 53. (6) 55 111. xviii; Puterbaugh's Com. Law PI. and Pr. vi. (e) 1 Bradwell's App. Ct. R. 19, 30, 42, 55. SUPREME AND APPELLATE COURTS. 649 Writ of Error — Praecipe for. of the proper county, commanding him to summon the de- fendant in error to appear in court, and show cause, if any he have, why the judgment or decree mentioned in the writ of error shall not be reversed. If the scire-facias be not returned executed, an aVias &nd piuries may issue without an qrder of court." The party or attorney prosecuting a writ of error should file with the clerk of the supreme or appellate court, as the case may be, apracipe, giving a full statement of the names of each of the parties to the judgment sought to be reversed, and in whose favor the judgment was rendered, and then directing the derk to issue the writ in favor of the plaintiifs in error, giving each of their names in full, and against the defendants in error, giving the name of each in full, (d) The praecipe should also direct the clerk to what county to issue the scire-facias to hear errors. No. 252. Pe^icipe for a writ of error. In the Supreme Court (or Appellate Court) of the State of Illinois. Grand Division, (or District) To the Term, 18—. C. D, Plaintiff in Error, 1 ErrQr to ^ Court of ^ A. B., Defendant in Error. ) Cowa! ^ of • Judgment {or decree) obtained by A. E. vs. C. D. in the court of the county of- , at the term, 18 — , in an action of , for § and costs of suit. Issue a writ of error to the clerk of the ■ — — court in and for the county of , returnable on the first day of the next term of said court. Dated, etc. Attorney for Plaintiff in Error. To the Clerk of the Supreme Court of Grand Division (or Appellate Court of District). (d) Napper vs. Short, 17 HI. 119. 650 SUPKEME AND APPELLATE COURTS. Writ of Error — Praecipe for Scire-Facias. If a transcript of the record is filed before a writ of error issues, it will not be necessary to send such writ to the infe- rior court ; in such case it will be necessary, however, to sue out a scirefacias to hear errors. No. 253. Precipe for a scirefacias to hear errors. (Insert, in lieu of the order for writ of error in the above form, the following : ) "Issue a writ of scirefacias to the said A. B., defendant in error, to hear errors, directed to the sheriff of the county of , to execute according to law, returnable on the first day of the next term of said court." Where no writ of error has been actually issued, the plain- tiff has no right to the writ of scirefacias until the transcript of the record is filed, (e) Return day. — Rule 6 of the supreme court and appellate courts, respectively, provides: ' ; VI. The first day of each term shall be return day for the return of process. And no party shall be compelled to answer, or prepare for hearing, unless the scirefacias shall have been served ten days before the return day thereof; nor shall a defendant be at liberty to enter his appearance and compel the plaintiff to proceed with the cause, unless he shall have given the plaintiff ten days' notice, before the term, of his intention to enter his appearance and have the case pro- ceed to a hearing." {f) Eule 7 of the same courts provides that : ' ' VII. Whenever a writ of error is made a supersedeas, the plaintiff in error shall, on filing the record with the clerk, at the same time order and direct a scirefacias to issue to hear errors, and shall use reasonable diligence to have the same served ten days before the first day of the term to which the writ of error is made returnable ; on failing to do (e) Breaton vs. Johnson, 1 Bradwell'a App. Ct. R. 160. (/) 55 111. xviii; 1 Bradwell's App. Ct. R. 19, 31. 43, 54. SUPEEME AND APPELLATE COURTS. 651 Writ of Error — Notice to Non -Residents. so, the defendant in error shall have the right to a hearing at the said term, after joining in error, without giving ten days' notice, as required by rule 6 : Provided, if there be not ten days between the allowance of the supersedeas and the sitting of the court, the cause shall stand continued until the next term, unless by consent of parties it shall be other- wise ordered." {g) Notice to non-resident defendants, etc. — Rule 8 of the su- preme court, in relation to publication of notice to defend- ants in error who are non-residents, or have gone out of the state, or cannot be found, has, since July 1, 1872, been super- seded by the 86th section of the Practice Act, which is as fol- lows : •• AVhen any plain tiff in error shall file in the office of the clerk of the supreme court, or appellate court, as the case may be, an affidavit showing that any defendant resides or has gone out of this state, or on due inquiry cannot be found, or is concealed within this state so that process cannot be served upon him, and stating the place of residence of such defendant, if known, and also the place of residence of the attorney who appeared in the ca6e in the court to which the writ of error is directed ; or that upon diligent inquiry their place of residence cannot be ascertained, the clerk of the supreme court, or appellate court, as the case may be, wherein the cause shall be pending, shall cause publication to be made in some newspaper published in the county in which the cause was originally instituted ; but if no newspaper shall be published in such county, then such notice shall be pub- lished in a newspaper published nearest to said county, con- taining notice of the pendency of such suit, the names of the parties thereto, the title of the court, and the time and place of the return of the summons in the case ; and he shall also, within ten (10) days of the first publication of such notice, send a copy thereof by mail, addressed to such defendant (g) 55 111. xix; Paterbaugh's Corn. Law PI. and Pr. vi; 1 Bradwell's App. Ct. E. 19, 31, 43, 54; see Gibbs vs. BlackweU, 40 111. 51. 652 SUPREME AND APPELLATE COURTS. Writ of Error — Supersedeas. and the attorney, whose place of residence are (is) stated in such affidavit. The certificate of the clerk, that he has sent such notice in pursuance of this section, shall be evidence. Such notice shall be published for four consecutive weeks, the first insertion of which said notice shall be at least forty days before the first day of the term to which said writ is made returnable ; and unless said time has intervened, no proceedings therein shall be had at said term, but the said cause shall stand continued to the next term of the court: Provided, that in case both parties appear and consent to the hearing, the said cause shall then be heard." (A) ■Notice to purchasers and terre-tenants. — Rule 9 of the supreme court (t) and rule 8 of the several appellate courts (J) provide that "In all cases wherein guardians, executors or adminis- trators, or others acting in a fiduciary character, having obtained an order or decree for the sale of lands in causes ex-parte, and a sale has been had under such decree or order, and the same shall be brought to this court for revision, the purchaser or terre-tenants of such lands, if known, shall be suggested to the court by affidavit of the plaintiff in error, and notice given them of the pendency of the writ of error ten days before the first day of the term of the court to which the writ of error is returnable, so that said terre-tenants may appear and defend." Supersedeas. — The supreme court (k) and the appellate courts respectively (Z) may issue writs of supersedeas. Such writs shall run in the name of the People of the State of Illinois, and bear teste in the name of the chief justice or presiding justice of the court from which it issues, be signed (h) Laws of 1877, p. 152; Rev. Stat. (1877) 745; see Cameron vs. Savage, ■ 40 111. 124. (?) 55 111. xx; Puterbaugh's Com. Law PI. and Pr. vii. 0') 1 Bradwell's App. Ct. R. 20, 31, 43, 54. (k) Rev. Stat. (1877) 321. (I) lb. 324. SUPEEME AND APPELLATE COURTS. 653 Writ of Error — Supersedeas — When Granted, etc. by the clerk, dated when issued, sealed with the seal of the court, and made returnable according to law. Tq have a writ of error made a supersedeas is not a consti- tutional right, hence the legislature may impose terms upon which it shall be granted. (») Section 77 of the Practice Act, as amended by the act of 1877, provides that "No writ of error shall operate as a supersedeas unless the supreme court or appellate court, as the case may be, or some judge thereof in vacation, after inspecting a copy of the record, shall order the same to be made a super- sedeas, nor until the party procuring such writ shall file a bond in the manner and with the conditions required in case of appeal, when the clerk issuing such writ shall indorse thereon that it shall be a supersedeas, and operate according- ly ; and the parties in writs of error shall be subject to the same judgment and mode of execution as is provided in case of appeal." (o) When granted — Application for. — Rules 1, 2 and 3 of the supreme court (p) and of the appellate courts respectively, (q) in relation to supersedeas, are as follows : "I. No supersedeas will be granted unless a transcript of the record on which the application is made be complete, and so certified by the clerk of the court below, and the requisite bond be entered into and filed in the office of the clerk of this court, according to law, with an assignment of errors written on or appended to the record. And on every application for a supersedeas an abstract of the record, with a brief containing the points and authorities relied upon, and pointing specifically to those portions of the record upon which the alleged errors arise, with the record, shall be pre- sented to the court or judge to whom the application is made. (n) Bryant vs. The People, 71 111. 32. (o) Laws of 1877, p. 151; Rev. Stat. (1877) 744. (jt>) 55 111. xvii; Puterbaugh's Com. Law PI. and Pr. v. (q) 1 Bradwell's App. Ct. R. 17, 27, 41, 52. 654 SUPREME AND APPELLATE COURTS. Writ of Error — Supersedeas. Every such application, whether made in open court or to a justice in vacation, must be accompanied by an affidavit of the proposed securities, or some other credible person, justi- fying the sufficiency of bail, sworn to and properly certified. " II. "Whenever a bond is executed by an attorney in fact the clerk shall require the original power of attorney to be filed in his office, unless it shall appear that the power of attorney contains other powers than the mere power to exe- cute the bond in question,, in which case the original power of attorney shall be presented to the clerk, and a true copy thereof filed, certified by the clerk to be a true copy of the original. "III. When a writ of error shall be made a supersedeas the clerk shall indorse upon said writ the following words : ' This writ of error is made a supersedeas, and is to be obeyed accordingly,' and he shall thereupon file the writ of error, with the transcript of the record, in his office. Said tran- script shall be taken and considered as a due return to said writ, and thereupon it shall be the duty of the clerk to issue a certificate, in substance as follows, to wit : ' ' State of Illinois, ss. "Office of the Clerk of the Supreme Court, (or Appellate Court of the District, ) "I do hereby certify that a writ of error has issued from this court for the reversal of a judgment obtained by rx. , in the Court of , at the term, A. D. 18 — , in a certain action of , which writ of error is made a supersedeas, and is to operate as a suspension of the execution of the judgment, and as such is to be obeyed by all con- cerned. " Given under my hand and the seal of the Supreme Court (or Appellate Court of the District), at , this day of , A.D. 18—. , Clerk." A supersedeas will not be granted on the application of a plaintiff in error who seeks the reversal of a judgment in his own favor, (r) (r) Carr vs. Miner, 40 111. 33; see Addix vs. Fahnestock, 15 111. 448. SUPREME AND APPELLATE COURTS. 655 « Writ of Error — Supersedeas — Costs. It will be granted when it appears, upon inspection of the record, that there is probable cause for reversing the judg- ment of the court below. (*) An application for a supersedeas made in open court in, the grand division or appellate district in which the writ of error must be sued out, will not be entertained unless the record has been filed and the cause docketed. In vacation the application may be made to one of the justices without having first filed the record. \f\ The transcript of -the record on which the application is made must be complete, and so certified by the clerk of the court below, or a writ of supersedeas will not be allowed, and if granted will be quashed, (w) And errors must be assig'ned. If the court should inadvertently award a suji.-r- sedeas without an assignment of errors on the record, it will, upon its attention being called to the omission, require thera to be assigned at once, and in default thereof, will dis- miss the cause, (v) Effect of supersedeas. — An order allowing a supersedeas does not operate as a suspension of the judgment until the oond is filed and a writ of error is issued, (w) The granting of a supersedeas will not have the effect to prevent the clerk of the- court below from issuing his fee bills to collect the costs in the cause, occasioned by the par- ties respectively ; it would only restrain the successful party from proceeding under his own judgment, (x) Security for costs. — A writ of error is considered a new action; and the statute requiring non-resident plaintiffs, etc., (») Lowry vs. Bryant, 2 Scam. 2. {t) Anonymous, 40 HI. 115. (u) Thompson vs. County Contra., 3 Scam. 66; Frink vs. Phelps, 4 Scam. 558. (r) Gibbs vs. Blackwell, 40 111. 51. («■) Blackberry vs. The People, 5 Gilm. 266; see Ambrose vs. Weed, 11 111. 488. (x) Carr vs. Minor, 40 111. 33; Perteet vs. The People, 70 HI. 171. 656 SUPREME AND APPELLATE COURTS. Appeals — Filing of Record. » to file a bond for costs before commencing suits applies in the case of a writ of error, {z) And where it is made to appear that the plaintiff in error has no property out of which the costs of the suit can be collected, (a) or where a writ of error has been sued out by an administrator, or a person act- ing in a fiduciary capacity, and it is shown that the estate he represents is utterly insolvent, (b) security for costs will be required. Rule 25 of the supreme court (c), and rule 20 of the first and 21 of the third and fourth districts of the appellate court (d), provide that ' ' Upon filing an affidavit that any plaintiff in error is not a resident of this state, and that no bond for costs has been filed, a rule shall be entered against him, of which he shall take notice, to show cause why the writ shall not be dis- missed." The motion for security for costs must be made at the earliest proceedings in the case, and before any pleadings in the case. It comes too late after a plea of release of errors, (e) SECTION V. APPEALS. We have already seen in what cases and from what courts appeals will lie to the supreme or appellate courts. (/") When record to be filed in appeal cases. — Section 72 of the Practice Act, as amended by the act of 1879, provides that (z) Roberts vs. Trustees etc., 32 111. 474; Ripley vs. Morris, 2 Gilm. 382; Hickman vs. Haines, 5 Gilm. 20. (a) Parr vs. Van Home, 40 111. 122. (6) Phelps vs. Funkhouser, 40 111. 27. (c) 55 III. xxiv; Puterbaugh's Com. Law PI. and Pr. x. (d) 1 Bradwell's App. Ct. R. 23, 46, 57. (e) Ruckman vs. Allwood, 40 111. 128; also see Puterbaugh's Com. Law PI. and Pr. 41. 42. (/) Ante, pp. 638-641. SUPREME AND APPELLATE COUKTS. 657 Appeals — Dismissal of, etc. "Authenticated copies of the records of judgments, orders and decrees appealed from, shall be filed in the office of the clerk of the supreme court, or of the appellate court, as the case may be, on or before the second day of the succeeding term of said courts : Provided, twenty (20) days shall have intervened between the last day of the term at which the judgment, order or decree appealed from shall have been entered and the sitting of the court to which the appeal shall be taken ; but if ten (10) days, and not twenty (20), shall have intervened as aforesaid, then the record shall be filed as aforesaid on or before the tenth (10th) day of said succeeding term, otherwise the said appeal shall be dismissed unless further time to file the same shall have been granted by the court to which said appeal shall have been taken upon good cause shown." (g) Prior to this amendment, the time within which the record was required to be filed was computed from the date of the judgment, instead of the last day of the term. (A) An application for further time within which to file a tran- script of the record in appeal cases must be made to the court within the time prescribed by law for the filing of such tran- script, (i) A motion for an extension of time to file a transcript of the record must be in writing and be supported by an affida- vit- (J) Dismissal of appeal — damages. — Section 73 of the Prac- tice Act, as amended by the act of 1877, provides that "When appeals from judgments, orders or decrees for the recovery of money are dismissed by the supreme or appel- late court for want of prosecution or for failing to file authen- ticated copies of records as required by law, the court shall {g) Laws of 1879, p. 221; Brad well's ed. 170. (h) Rev. Stat. (1877) 743; T. P. & W. R. W. Co. vs. Comes, 40 111. 37. (0 Adams vs. Robertson, 40 111. 40; Ragar vs. Tilford, Breese, app., 21 (Beecher's ed. 407); Frink vs. Phelps, 4 Scam. 581. U) Webster vs. Pierce, 40 111. 39. 658 SUPREME AND APPELLATE COURTS. Appeals — Effect of, etc. enter judgment against the appellants for not less than five (5) nor more than ten (10) 'per cent damages on the amonnt recovered in the inferior court, for the collection of which the appellee shall be entitled to execution as on other judg- ments." (k) Rule 37 of the supreme court (Z) and rules 30 of the first, 31 of the second, 34 of the third and 32 of the fourth dis- trict of the appellate court, (m) provide that "When appeals from decrees, judgments or orders for the recovery of money are dismissed by this court for want of prosecution or for failing to file authenticated copies of records as required by law, the court will award damages against the appellant at ten per cent upon the amount recovered in the court below, if it be less than one hundred dollars, and at five per cent upon the amount of such recovery if it equals or exceeds that sum." Where the record fails to show any such judgment as the appeal professes to be taken from, the appeal will be dis- missed, (w) No dismissal for want of sufficient bond. — Section 69 of the Practice Act provides that " No appeal to the supreme or appellate court shall be dismissed by reason of any informality or insufficiency of the appeal bond, if the party taking such appeal shall, with- in a reasonable time to be fixed by the court, file a good and sufficient bond in such case, to be approved by the said court." (o) Effect of an appeal. — The perfection of an appeal in an (fc) Laws of 1877, p. 150; Rev. Stat. (1877) 743; see Colby vs. Small, 40 HI. 42. (I) 55 111. xxvi; Pnterbaugh's Com. Law PI. and Pr. xii. (>») 1 Bradwell's App. Ct. R. 26, 37, 49, 60. (n) Armstrong vs. The People. 74 III. 178. (o) Rev. Stat. (1877) 743; Willenborg vs. Murphy, 40 111. 46; Propeller Niagara vs. Martin, 42 111. 106. SUPEEME AND APPELLATE COURTS. 659 Records of Inferior Courts. inferior court suspends all proceedings under the judg- ment. (j>) Cjxtn what a motion to dismiss appeal may he hosed. — The usual and correct practice on a motion to dismiss an appeal is, to base the motion upon a certified copy of the record of the judgment of the court appealed from, or a certificate of the clerk that an appeal had been allowed and perfected, whereby the judgment of the inferior court had been sus- pended, (j) ♦ SECTION VI. EECOEDS OF INFERIOR COURTS. How prepared. — Rules 10 and 11 of the supreme court, (r) and rules 9 and 10 of the appellate court of the first, third and fourth districts, (s) are as follows : 10 (9). "Hereafter the clerks of the inferior courts of this state, in cases of appeal and of error or certiorari, in making up "an authenticated copy of the record of the judg- ment appealed from," or in sending up a transcript of the record to this court as a return to a writ of error or certio- rari, shall certify to this court : first, a copy of the process ; second, the pleadings of the parties, respectively ; third, the verdict in jury trials ; fourth, the judgment of the court be- low whether tried by the court or jury ; fifth, all orders in the same cause made by the court; sixth, the bill of excep- tions; and seventh, the appeal bond in cases of appeal. And in no case shall the said clerk insert in such transcript any affidavit, account, or other document or writing, or other matter, which according to the decisions of this (supreme court) court, have been held to constitute no part of the (p) Ambrose vs. Weed, 11 111. 488; see Blacl&erry vs. The People, 5 Gilm. 66. (5) The People vs. Public Officers, 4 Gilm. 149. (r) 55 111. zx; Puterbaugh's Com. Law Fl. and Pr. vii. (s) 1 Bradwell's App. Ct. R. 20, 44, 55. 660 STJPEEME AND • APPELLATE COURTS. Records of Inferior Courts, etc. record of a cause. (*) This rule shall not extend to appeals or writs of error in chancery or criminal causes." The ninth rule of the appellate court of the second district is the same as the above to the asterisk (*), with the follow- ing addition after the asterisk (*) : "The transcript of the record in chancery causes shall contain, unless unnecessary to copy all, a copy of the pro- cess or of the notice, and proof of publication and of mail- ing or excuse for not mailing, the pleadings, the decree, and other record entries, the evidence as contained in the certifi- cate of evidence, the appeal bond, and such other matters only^ if any, as may be necessary to properly present in this court the matters in controversy." (tf) Knle 11, supreme court, and rule 10 of all the appellate courts : "The clerk of the court below shall arrange the several parts of the record aforesaid according to their chronological order. The clerk of this court shall not tax as costs in this court any matter inserted in such transcript contrary to the rule." Placita, or convening order. — If the transcript of the record contains no placita or convening order of the court, it will be a ground of reversal, (w) But it may be cured by its appearance in an additional record filed in the case, (v) It should show that the judge, clerk and sheriff were pres- ent, (w) But it cannot be aided by the bill of exceptions, (a:) What is not part of the record. — Affidavits in support of a (<) 1 Bradwell's App. Ct. R. 31. (u) Planing Mill Lumber Co. vs. City of Chicago, 56 111. 304; Rich vs. City of Chicago, 59 111. 286; Lawrence vs. Fast, .20 111. 338; Dukes vs. Row- ley, 24 111. 210; Keller vb. Brickley, 63 111. 496. (v) Dunham vs. City of Chicago, 55 111. 357; Truit vs. Griffin, 61 111. 26. (w) Dukes vs. Rowley, 24 111. 220. (ar) Planing Mill Lumber Co. vs. City of Chicago, 56 111. 304. SUPREME AND APPELLATE COURTS. 661 Records of Inferior Courts — Precipe for. petition for change of venue, (y) affidavits and motions of any kind, (s) reasons in writing for a new trial, (a) sworn answers of parties to an attachment for contempt, (J) a copy of instrument indorsed on declaration, (c) affidavits in aid of motion to set aside default, (d) the minutes of the judge, (e) affidavits for continuance, (f) the evidence on the trial, and instructions of the court, are no part of the record, unless preserved by a bill of exceptions. The appellate courts will not consider any question arising upon a record without it is full, or presents all parts or mat- ters material to the questions submitted. If the transcript is not certified to be a full copy of the record, but merely of certain papers and proceedings, the court will not reverse, (g) Praecipe for record. — Rule 12 of the supreme court, (/<) and rule 11 of the appellate courts respectively, {%) provide that '•The party or his attorney may, by pracipe, indicate to the clerk, and direct what of the files of the cause shall be copied into the record ; and in such case, if the record shall be insufficient, it shall be supplied at his costs, and if un- necessarily voluminous, he shall pay the costs accrued on account of the copying of such unnecessary matters." (y) Schlump vs. Reidersdorf, 28 IU. 68. (s) Lucas vs. Farrington. 21 111.31; McDonald vs. Arnout, 14 111. 58; Murphey vs. The People, 37 111. 447; McKindUy vs. Buck, 43 III. 488; Cun- ningham vs. Craig, 53 111. 252; Hay vs. Hayes, 56 111. 342; Snell vs. Church Trustees, 58 111. 292; Thompson vs. White, 64 111. 314; Van Pelt vs. Dumford, 58 111. 145. (a) Boyle vs. Lecings, 28 IU. 314; Nason vs. Letz, 73 111. 371. (6) Commissioners etc. vs. The People, 31 111. 97. (c) Franey vs. True, 26 111. 184. {d) Horn vs. Neu, 63 111. 539. («) SutOer vs. The People, 59 HI. 68. (/) Pick vs. Ketchum, 73 111. 366. (g) Bertrand vs. Taylor, 87 111. 235. (h) 55 111. xri; Puterbaugh's Com. Law PI. and Pr. viii (t) 1 BradweU's App. Ct. R. 21, 32, 44. 55. 662 SUPREME AND APPELLATE COURTS. Records of Inferior Courts — Praecipe for. No. 254. Precipe for record in inferior court, in common law cases. In the Circuit Court, A B ) Term, 18 vs. Y In an action of C D) The clerk of said court will make up an authenticated copy of the record in the above entitled cause, and will insert : 1. A copy of the process ; 2. The pleadings of the parties respectively ; 3. The verdict of the jury. 4. The judgment of the court ; 5." All orders in the cause made by the court ; >6. The bill of exceptions ; 7. The appeal bond (in case of appeal). Attorney for No. 255. Precipe for record in inferior court in chancery case. (Title of court and cause, as in last form.) The clerk of said court will make up an authenticated copy of the record in the above entitled cause, and will insert : 1. A copy of the process (or notice and proof of publica- tion and of mailing, or excuse for not mailing) ; 2. The pleadings in the cause ; 3. The decree, and other record entries ; 4. The evidence as contained in the certificate of evidence. 5. The appeal bond (in case of appeal), (and direct such other matters, if any, as may he necessary to present the matters in controversy). Solicitor for Enough of the record should be certified to enable the court to determine whether the errors complained of have intervened, (j) A transcript of a record in the circuit court, certified by the clerk, under the seal of the court, to be a true and full - ) Miller vs. Whitaker, 33 111. 386. SUPREME AND APPELLATE COURTS. 663 Records of Inferior Courts — Additional Record. copy of the proceedings in the cause, not shown by any evi- dence to be otherwise, must be taken to be the record in the cause, and imports verity. They are made up from the entries of the clerks in their minutes and order books, and from the files in the cause. The clerk takes daily minutes of the proceedings, and generally, at their leisure, enter them in the proper form in the order book, which, with the files, are the records in the cause, (k) A bill of exceptions in a suit at law, or a certificate of evi- dence in chancery, when properly filed, becomes a part of the record. (?) All proceedings in chancery other than oral evidence are a part of the record. The oral evidence must be preserved by a certificate of evidence, (m) The papers of a cause, when filed under our statute, be- come a part of the record, and transcripts are made by copying the files, the orders of the court, and such papers as are made a part of the record by a bill of exceptions or cer- tificate of evidence, (n) Amending the transcript. — The supreme or appellate court cannot amend a transcript of a record, even by the original papers, should they be produced by a party for that pur- pose ; (o) nor can the transcript be withdrawn from the files for the purpose of an amendment. (j>) Additional record. — A party may file an additional tran- script of the record, under certain circumstances, to correct {k) Schirmer vs. The People, 33 111. 276; Garden Oity Ins. Co. vs. Stag- art, 79 111. 259; C. B. & Q. R. R. Co. vs. Lee, 68 111. 576. (0 Wallahan vs. The People, 40 111. 102. (m) Ferris vs. McClure, 40 HI. 99; Smith vs. Newland, 40 111. 100; Mason vs. Bair, 33 111. 195; Waugh vs. Bobbins, 33 LI. 181; Eaton vs. Sanders, 43 111. 435; Bressler vs. McCune, 56 111. 475. (n) Stevison vs. Ernest, 80 III. 513; Harding vs. Larkin, 41 111. 423. (o) III. C. R. R. Co. vs. Garish, 40 111. 70; Ballance vs. Leonard, 40 HI. 72; Wilder vs. Bouse, 40 111. 92. (p) Rowley vs. Hughes, 40 111. 71; Rivard vs. Walker, 40 111. 120. 664 SUPREME AND APPELLATE COURTS. Records of Inferior Courts — Removing, etc. errors or omissions in the original transcript ; (q) and when it is so filed it becomes a part of the record in the case, and will be considered as such. (/•) Amendment of record in inferior courts. — The supreme or appellate court will not undertake to amend or correct the record of an inferior court. That belongs alone to the court where the record was made and the cause was tried. (*•) If a party desires an amendment or correction of the record in a cause after the term at which the judgment was rendered therein, application for that purpose must be made in open court, and upon notice to the opposite party, (t) Removing records from office of clerk. — Rule 15 of the supreme court, (w) and rule 14 of the appellate courts, (v) respectively provide that " No person shall remove from the office of the clerk any record of this court except on special leave granted for that purpose. No record shall be taken from the files of the court except on application therefor to the clerk or his deputy; and it is made the duty of the clerk to report promptly to the court every violation of this rule. The clerk shall be held responsible for the safe keeping and production of the records. Application for leave to remove records may be considered at any time in the discretion of the court." (q) Flagler vs. Crow, 40 111. 70; Rowley vs. Hughes, 40 111. 71. (r) Goodrich vs. Cook, 81 111. 41. («) Wilder vs. House, 40 111. 92; Gecum vs. Dean, 40 111. 92; Bergan vs. Biggs, 40 111. 61; Underwood vs. Hossack, 40 111. 98. (t) Wallahan vs. The People, 40 111. 102; Shepley-vs. Spencer, 40 I1L 105; Smith vs. Trimble, 27 111. 152; Brooks vs. Bruyn, 40 ID. 64. (u) 55 111. jnrii; Puterbaugh's Com. Law PI. and Pr. viii. (v) 1 Bradwell's App. Ct. R. 21, 33, 45, 56. SUPREME AND APPELLATE COURTS. 665 Docket — Docketing and Hearing. SECTION VII. DOCKET. Rules 13 and 14 of, the supreme court (ic), and rales 12 and 13 of the appellate courts, respectively, (») provide that 13. (12") ■ ' No case Drought to this court by appeal shall be placed on the court docket for hearing unless the record is filed within the time now prescribed by law {ij\ or within the further time allowed by the court for filing the record, except in extraordinary cases the court, upon special appli- cation, may order a cause to be placed on the hearing docket 14:. (13) "No case which may be brought to this court on writ of error shall be placed on the court docket for hear- ing, unless the record shall be filed on or before the second day of the term, or within such further time as may be allowed by the court for filing the same, except in extraordi- nary cases the court, upon special application, may order a cause to be placed upon the hearing docket." Docketing and hearing. — Rule 30 of the supreme court, (3) and rules 25 of the first, and 26 of the third district of the appellate court, {a) provide that '•Causes in which the people are a party, and in which, they have a direct interest in the decision, shall be placed at the head of the docket ; all other cases shall be docketed and called for argument in the order in which the records shall have been filed with the clerk." Advancing causes on the docket. — Rule 61 of the supreme court (b) provides as follows : (10) 55 HI. rri; Pnterbangh's Com. Law PL and Pr. viii. (*) 1 BradweU's App. Ct. R. 31, 32, 45, 56. (y) See ante, p. 656; Laws of 1879, 221 ; BradweU's ed. 170. (z) 55 111. xxy; Pnterbangh's Com. Law PI. and Pr. zi. (o) 1 BradweU's App. Ct.R. 24, 48. (6) 79 HI. Tii; Pnterbangh's Com. Law PL and Pr. xv. 666 SUPREME AND APPELLATE COURTS. Docket — Call of Docket. Rule 61. — "Ordered, That causes which, in the judgment of the court, involve important public interests, may be advanced on the docket." Re-docketing causes not decided. — The 63d rule of the supreme court, adopted at the September term, 1876, (c) is as follows : Rule 63. — "Ordered, That the clerks of this court, in the several grand divisions, are hereby directed, in preparing dockets of the business of all terms subsequent to this, to place upon the same all cases pending in their respective divisions, and in which final judgment has not been entered ; and in all such cases, where the case shall have been submit- ted to the court for consideration, the clerk shall note upon the docket the term at which such case was submitted." Call of docket. — Rule 31 of the supreme court, (d) and rules 26 of the first, 25 of the second, 26 of the third and 26 of the fourth district of the appellate court, (e) provide "That civil docket shall be called numerically, and the causes shall be argued, continued, or otherwise disposed of, as they are called, unless for good cause shown they be placed at the foot of the docket; all unexpired rules will terminate upon the call of the cause for hearing : Provided, That if the court shall give time to either party without the consent of the other, the cause shall not lose its precedence on the docket." Call of the docket — Time for filing abstracts and briefs — Supreme Court. — Rule 32 of the supreme court (/") pro- vides that "Hereafter, in the northern and central divisions, the call of the docket will commence with the second week of the (c) 79 111. vii; Puterbaugtfs Com. Law PL and Pr. rv. (d) 55 111. xxv; Puterbaugh's Com. Law PI. and Pr. xi. (e) 1 Bradwell'sApp. Ct. R. 24, 36, 48, 59. (/} 55 111. xxv; Puterbaugh's Com. Law PI. and Pr. xi. SUPEEME AND APPELLATE COURTS. 667 Docket — Time for Filing Abstracts, etc. term, and in the southern division on the third day of the term, and twenty cases per day will be subject to call. The abstract and brief of plaintiff in error or appellant must be filed in the clerk's office one day before the day when a cause stands subject to call, and in the event that either the abstract or brief is not filed within the prescribed time, the judgment or decree of the court below will, on the call of the docket, be affirmed. The defendant in error or appellee, in case he does not argue orally, can file a brief within ten days after the time fixed for filing the brief of plaintiff in error or appel- lant, and the latter can have ten days for a reply, at the expiration of which time the'cause will stand for decision, and no further arguments will be received." First district of appellate court. — Rule 27 of the first dis- trict of the appellate court [g) provides that • • In all cases where the record shall have been filed with the clerk not less than twenty days before the first day of the term, and including all causes continued from a former term, the plaintiff in error or appellant shall file with the clerk his abstract and brief at least five days before the first day of the term ; and in all other cases, down to and including number fifty of the term docket, the plaintiff in error or appellant shall file his abstract and brief on or before Monday of the second week of the term ; and in all cases from number fifty- one to number seventy-five inclusive, on or before Monday . of the third week of the term ; and in all cases from num- ber seventy-six to one hundred inclusive, on or before Mon- day of the fourth week of the term ; and in all cases from number one hundred and one to and including one hundred and twenty-five, on or before Monday of the fifth week of the term ; and in all cases subsequent to number one hun- dred and twenty-five, on or before Monday of the sixth week of the term. In case of the failure of the plaintiff in error or appellant to file either his abstract or brief within the time above prescribed, the judgment or decree of the court (ff) 1 Bradwell's App. Ct. R. 25. 668 SUPEEME AND APPELLATE COURTS. Docket — Time for Filing Abstracts, etc. below will, on the call of the docket, be affirmed. In all cases the appellee or defendant in error shall file his brief at least one day before the day the cause is called for hear- ing." Second district appellate court. — Rule 26 of the second dis- trict of the appellate court (h) provides that "Hereafter the call of the docket will commence with the third day of the term, and fifteen cases per day will be sub- ject to call. The appellant or plaintiff in error shall file his abstracts and briefs on or before the day fixed by law or by rule of this court for filing the transcript of the record of the court below, unless, for cause shown, the time shall be ex- tended. In the event that either the abstract or briefs be not filed within the prescribed time, the judgment or decree of the court below will, on the call of the docket, be affirmed. The defendant in error or appellee, if he do not argue orally, can file a brief within ten days after the time fixed for filing the brief of plaintiff in error or appellant, and the latter can have five days for a reply. At the expiration of this time the case will stand for decision, and no further argument will be received." Third district appellate court. — Rules 28 and 29 of the third district of the appellate court (i) provide that 28. "In all cases when the record shall have been filed with the clerk not less than ten days before the first day of the term, and in all cases continued from a former term, the plaintiff in error or appellant shall file with the clerk his abstracts and briefs at least five days before the first day of the term, and the defendant in error or appellee shall file his briefs one day before the case is subject to call for trial. All such cases shall be subject to call at the rate of twenty cases per day on and after the first day of the term. (k) 1 Bradwell's App. Ct. R. 36. (i) 1 Bradwell's App. Ct. R. 48. SUPREME AND APPELLATE COURTS. 669 Docket — Time for Filing Abstracts, etc. This rule shall not be in force at the present term. (No- vember t. 1877.) 29. " In all other cases not included in the above rule, the plaintiff in error or appellant must file his abstracts and briefs in the office of the clerk six days before the day when the cause stands subject to call ; and in all cases in the event that either the brief or abstract is not filed within the pre- scribed time, the judgment or decree of the court below will, on call of the docket, be affirmed. The defendant in error or appellee must file his brief in the clerk's office one day before the case is subject to call for hearing ; and no case under this rule shall be called before the second Tuesday of the term. All cases shall be called at the rate of twenty cases per day." Fourth district appellate court. — Rule 27 of the fourth district of the appellate court (j) provides that "Hereafter the call of the docket will commence on the third day of the term, and fifteen cases per day will be sub- ject to call. The abstract and brief of plaintiff in error or appellant- must be filed in the clerk's office one day before the day when a cause stands subject to call ; and in the event that either abstract or brief is not filed within the prescribed time, the judgment or decree of the court below will, on the call of the docket, be affirmed. The defendant in error or appellee can file a brief within ten days after the time fixed for filing the brief of plaintiff in error 6r appellant, and the latter can have five days from the date of filing brief of appellee or defendant in error for a reply, at the expiration of which time the cause will stand for decision." Effect of failure of defendant in error or appellee to fie brief 8. — Rule 33 of the supreme court (k) and rules 27 of the (j) 1 Bradwell's App. Ct. R. 59. (k) 55 El. xxvi; Puterbaugh's Com. Law PI. and Pr. xi. 670 SUPREME AND APPELLATE COURTS. Assignment of Errors; and Proceedings Thereon. second, 30 of the third and 28 of the fourth district of the appellate court (I) provide that " If the defendant in error or appellee fail to file his brief within the prescribed ten days, the judgment or decree will be reversed pro forma, unless the court, on examination of the record, shall deem it proper to decide the case upon its merits." Rehearing docket. — Rule 57 of the supreme court (to) and rules 36 of the second, and 37 of the fourth district of the appellate court (n) provide that "The clerk of this court shall, at each term, docket all petitions for rehearing, separate and apart from the trial docket." In the first district of the appellate court, all cases in which a rehearing has been granted, or in which a petition therefor is pending, are to be placed by the clerk on the term docket, in the order of their general number, (o) SECTION VIII. ASSIGNMENT OP EBBOBS, AND PEOCEEDINGS THEBEON. Rule 16 of the supreme court (p) and role 15 of the ap- pellate courts, respectively, (q) provide that " The appellant or plaintiff in error shall in all cases assign errors at the time of filing his record in this court, and on failing to do so the case may be dismissed, but other errors may be assigned after the filing of the record, by leave of the court. The appellee or defendant in error shall have the (1) 1 Bradwell's App. Ct. R. 36, 49, 59; Cox vs. City of Tuscola; 2 Brad- well's App. Ct. R. 628. (m) 59 111. xxi. (n) 1 Bradwell's App.Ct. R. 38, 61. (o) 1 Bradwell's App. Ct. R. 26, rule 32. (p) 55 111. xxii; Puterbaugh's Com. Law PI. and Pr. ix. (2) 1 Bradwell's App. Ct. R. 22, 33, 45, 56. SUPREME AND APPELLATE COURTS. 671 Assignment of Errors, and Proceedings Thereon. right to assign cross-errors within two days after the record is filed in this court, and not afterward without special leave of the court. The assignment of errors and cross-errors must be written upon or attached to the record." (/•) An assignment of errors is in the nature of a declaration, and at common law was either of errors in fact, coram nobis, or errors in law. The former consisted of matters of fact not appearing on the face of the record, which, if true, prove the judgment to have been erroneous. An error of fact and error of law could not be joined in one assignment. If they were so joined it could be taken advantage of by de- murrer, (s) Writs of error in fact, or coram nobis, are no longer in use in this state. The 66th section of the Practice Act provides that "The writ of error coram nobis is hereby abolished, and all errors in fact committed in the proceedings of any court of record, and which by the common law could* have been corrected by said writ, may be corrected by the court in which the error was commited, upon motion in writing made at anytime within five years after the rendition of final judg- ment in the case, upon reasonable notice. When the person entitled to make such motion shall be an infant, feme covert, non compos mentis, or under duress, at the time of passing judgment, the time of such disability shall be excluded from the computation of said five years." (t) Writs of error to correct errors of law appearing in the record of the proceedings, apparent on the face thereof, is the writ in common use in this state. Its object is to review and correct an error of the law committed in the inferior (r) Gibbs vs. Blackwell, 40 111. 51. (s) Tidd's Pr. 1168; Freeborn vs. Denman, 2 Halst. 190; Fitch vs. Lothrop, 2 Root, 524; Clarke vs. Bell, 2 Ljtt. 162; Moody vs. Vreeland, 7 Wend. 55. (t) Rev. Stat. (1874) 782; Rev. Stat. (1877) 742; see Coursen vs. Hixon, 78 111. 339; Fix vs. Quinn, 75 111. 232. 672 SUPREME AND APPELLATE COURTS. Assignment of Errors — Form of. court, which is not amendable or cured at common law or by some statutes of amendment or jeofail, (u) The supreme or appellate court will not consider any errors not assigned uoon the record, (v) Additional errors may be assigned, in the discretion of the court. But after issue is formed leave will not be granted to assign additional errors, except upon good cause shown, and a motion for that purpose must be in writing, (w) They cannot be assigned after the argument of the cause, unless by consent of the appellee or defendant in error, (a:) One defendant cannot assign or urge error as to another who is not complaining, unless it prejudices his rights or affects his interests, (y) N~o. 256. Form, of assignment of errors. In 'the Supreme (or Appellate) Court of the State of Illinois. Grand Division {or District), — Term, 18—. C. D., plaintiff in error (or appellant) vs. 'A. B., defendant in error (or appellee). And now comes C. D., the plaintiff in error (or appellant), by his attorney, and says, that in the record and pro- ceedings and in rendering judgment aforesaid, there is mani- fest error in this, to wit : (u) Tidd's Pr. 1060; Bacon's Abr., Error; 3 Black. Comm. 405. (») Gilbert vs. Maggard, 1 Scam. 433; Jackson vs. Warren, 32 111. 331; Protection Life Ins. Co. vs. Foote, 79 111. 361; Meyers vs. Andrews, 87 111. 433. (w) Anonymous, 40 HI. 54. (x) Bristol vs. City of Chicago, 21 111. 605. tv) Reed vs. Boyd, 84 111. 66; L. S. & M. S. R.R. Co. vs. McMillan, 84 111. 208; Stone vs. Wood, 85 111. 603; Robinson vs. Brown, 82 111. 279; Short vs. Raub, 81 111. 509; Rowand vs. Carroll. 81 111. 224; Kolb vs. O'Brien, 86 111. 210; Dickerson vs. Hendryx, 88 111. 66; Pierson vs. Hendryx, 88 111. 34; see Curtis vs. Baugh, 90 111. 184. Writ of error to (or appeal. from) the Court of the County of . SUPREME AND APPELLATE COURTS. 673 Assignment of Errors — Cross-Errors. i I. The court below admitted improper evidence on the part of the plaintiff. » II. The court below rejected proper evidence on the part of the defendant. III. The court erred m giving improper instructions on behalf of the plaintiff. • IV. The court refused proper instructions asked by the defendant. V. The court erred in overruling the motion of the de- fendant to set aside the verdict of the jury, and for a new trial. VI. The court erred in rendering a judgment in favor of the plaintiff and against the defendant. By reason whereof the plaintiff in error {or appellant) prays that said judgment may be reversed, etc. By , his attorney. Cross-errors. — Section 78 of the Practice Act, as amended by the act of 1877, provides that "In all cases of appeal to the supreme court or appellate court, or writ of error, the appellee or defendant in error may assign cross-errors, and the court shall dispose of the same as in other cases of assigment of error." (s) When the appellee or defendant in error does not assign cross-errors, he cannot insist on any errors as against him- self, (a) Joinder in error. — To an assignment of errors the appellee or defendant may plead the common plea, or joinder, as it is frequently called, is in nullo est erratum ; or that there is no error in the record or proceedings ; which is in the nature of a demurrer, and at once refers the matter of law arising thereon to the judgment of the court. By joining in error the appellee or defendant in error (z) Laws of 1877, p. 151; Rev. Stat. (1877) 744; see rule 16 of supreme court and 15 of appellate court, ante, p. 670; Hatfield vs. Fowler, 60 111. 15; Cable ts. Ellis, 86 111. 525. (a) Dickson vs. C. B. A Q. R.R. Co., 81 111. 215; The People vs. Brislin, 80 111. 433; Johnston vs. Maples, 49 111. 101; Pollard vs. King, 63 111. 286; III. B. Society vs. Baldwin, 86 111. 479. 674 SUPREME AND APPELLATE COURTS. Assignment of Ebworg — Form of — Release of. admits the record to be perfect ; the effect of his plea is that the record in its present state is without error ; (b) and there- fore after joining in error neither party can allege diminu- tion, or pray a certiorari, ('.■) without obtaining leave to withdraw the joinder for that purpose, (d) Mo. 257. Form of joinder in error. In the Supreme (or Appellate) Court of the State of Illinois. Grand Division (or District), ' — Term, 18^. A B ) ' f ' { Writ of error to (or appeal from) the Court of q ' jj l the County of . And the said A. B., the defendant in error (or appellee), by — — , his attorney, comes and says that there is no error, either in the record and proceedings aforesaid, or in giving judgment aforesaid, in manner and form as above assigned; and therefore he prays that the said judgment may be affirmed, that his costs may be adjudged to him, etc. By , his attorney. Special pleas to an assignment of errors contain matters in confession and avoidance, as a release of errors, or the stat- ute of limitation, etc., to which the plaintiff in error may reply or demur, and proceed to trial or argument. By pleading specially the appellee or defendant in error waives the right to join in error. If he should plead a re- lease of errors, and be unable to sustain his plea, he cannot afterward be allowed to join in error, (e) If a special plea is sustained by proof, the judgment of the court below will stand affirmed, (f) Release of error*. — A plea of release of errors should aver (6) Tidd's Pr. 1174. (e) Boynton vs. ChampUn, 40 111. 63. (d) lb.; Gibbs vs. Blackteell, 40 111. 63; Steele vs. The People, 40 111. 59. (e) Austin vs. Bainer, 40 III 82; see Dinet vs. Pfirshing, 86 HI. 83. (/) Smucker vs. Larimore, 21 HI. 267. SUPREME AND APPELLATE COURTS. 675 Release of Errors. that it was by deed, by parol, or by acts in pais. It should state the facts that are reKed on as a release of errors, ( Affidavits in support of motion.^- Rule 24 of the supreme court, and rule 19 of the first, second and fourth and 20 of the third districts of the appellate court, provide that " "When a motion is intended to be based" on matters which do not appear by the record, the facts must be disclosed and supported by affidavit." Thus, a motion for extension of time for filing a transcript (0 U. S. Ex. Co. vs. Bedbury, 40 111. 123. SUPREME AND APPELLATE COURTS. 679 Suggestion of Diminution of Record. of the record, (u) and a suggestion of diminution of record, must be in writing, and supported by an affidavit, (v) Motion to vacate orders. — Rule 20 of the appellate court of the fourth district provides that "Motions to vacate orders, affirming or reversing judg- ments pro forma and of continuance, and taking causes on the docket, will not be considered by the court unless reason- able notice, in writing, shall have been given to the opposite party or his attorney, of an intention to present such motion." SECTION X. SUGGESTION OF DIMINUTION OF EECOBD. If there is any portion of the record in the court below which has been omitted from the transcript of the record, it can only be supplied upon a suggestion of a diminution of the record, supported by an affidavit of that fact, when the court will award a writ of certiorari to the court from which the cause is brought for a complete record, (w) Should matter be copied into the transcript as a part of the bill of exceptions which is not contained in the original bill of exceptions, the proper course is, upon proper sugges- tion, supported by affidavit, to ask for a writ of certiorari, so that a correct record may be brought up. (a?) When to be suggested. — A defendant in error, to avail him- self of a diminution of record, should move for a writ of cer- (u) Webster vs. Pierce, 40 111. 39. (p) Von Glahn vs. Von Glahn, 40 111. 73; Waterman vs. Raymond, 40 Dl. 63. (w) Von Glahn vs. Von Glahn, 40 111. 73; Ballance vs. Leonard, 40 111. 72; Gardner vs. Diedrich, 40 111. 72; Rowley vs. Hughes, 40 111. 71; Schirmer vs. The People, 40 111. 66; Gibbs vs. Blackwell, 40 III. 66; Steele vs. The People, 40 111. 59; Boynton vs. Champlin, 40 111. 63; Waterman vs. Raymond, 40 Dl. 63; Bergan vs. Riggs, 40 111. 61; Brooks vs. Bruyn, 40 111. 64. (x) III. C. R.R. Co. vs. Garish, 40 111. 70; Reed vs. Curry, 40 III. 73. 680 SUPKEME AND APPELLATE COURTS. Suggestion of Diminution of Record — Form of. tiorari before joinder in error, or in case he has joined in error, should obtain leave to withdraw his joinder for that purpose, (y) An application for a writ of certiorari, to enable the party to bring up a more perfect transcript of the record, will not be entertained after the term at which the cause was sub- mitted to the court for decision, (2) nor will it be entertained on an application for a rehearing. Costs on certiorari.. — If it shall appear, upon a return of a certiorari, that the application for the writ was frivolous, the party will not be allowed any costs therefor. No. 259. Form of suggestion of diminution of record. In the Supreme (or Appellate) Court of the State of Illinois. Grand Division (or District), Term, 18—. A. B., pl'ff in error (or appellant) vs. C. D., deft in error (or appellee). And now, on this day of , 18 — , comes the de- fendant in error (or appellee), by , his attorney, and sug- gests to the court here that in the transcript of the record returned in this cause from the Court of the County of there are certain defects, that is to say : (Here set forth. particularly the defects or omissions.) Wherefore, the defendant in error (or appellee) prays that a writ of certiorari may be awarded, directed to the clerk of said court, to send up a true transcript of the record and pro- ceedings of the said court, etc. • . Atty.for deft, in error, (or appellant.) (Add affidavit of the defects or omissions.) (y) Boynton vs. Champttn, 40 111. 63; Gibbs vs. Blackwett, 40 111. 66; see Jones vs'. Sprague, 2 Scam. 55. (») Steele vs. The People, 40 111. 59; U. S. Ex. Co. vs. Bedbury, 40 111. 60. (a) Boynton vs. Champlin, 40 111. 63. Writ of error to (or appeal from) the Court of the county of '-. SUPREME AXD APPELLATE COUKTS. 681 Original Papers — Abstract of the Record. The granting of the writ of certiorari does not delay the hearing of the cause, without a special order to that effect, (b) SECTION XI. OBIGLNAL PAPERS. When they will he compelled to be produced. — "Where it is made to appear by affidavit that an original paper used on the trial below ought to be inspected by the supreme or appellate court, and such paper is in the hands of a party to the suit, a rule will be entered requiring such party to pro- duce the paper or show cause why he should not do so. (<■) But when the paper is in the custody of the court below, or of its legal custodian, the court above has no control over it. (d) The supreme or appellate court will, upon mere suggestion that the inspection of an original paper is important in determining the rights of the parties, request the clerk of the court below to send them up for that purpose. Or perhaps, upon proper application, the necessity of so doing being shown, the court would award a subpoena duces tecum, and thereby require the clerk to appear in person and produce the original papers for the inspection of the court, (e) SECTION XII. ABSTEACTS OF THE EECOBD. Rule 26 of the supreme court (f) is as follows: " In all cases, the party bringing a cause into this court (6) Seed vs. Curry, 40 HI. 73. (c) Holbrook vs. Nichol, 40 111. 75; Cameronvs. Savage, 40 111. 76; Anony- mous, 40 111. 77. (d) Cameron vs. Savage, 40 111. 76; Anonymous, 40 111. 77. (e) Anonymous, 40 III. 77; Cameron vs. Savage, 40 111. 76. (/) 55 111. xxiv; Puterbaugh's Com. Law PI. and Pr. x. 682 SUPREME AND APPELLATE COUETS. Abstract of the Record. shall furnish a complete abstract or abridgment of the record therein, referring to the appropriate pages of the record by numerals on the margin, and shall cause such abstract to be printed in a neat and workmanlike manner, with small- pica type and leaded lines, on one side only, upon white foolscap paper, leaving a margin at least two inches in width on the left-hand side of each sheet. Ten copies of such printed abstract shall be filed in each case, one for each of the judges, one for the defendant in error or appellee, one for the report- er, and one to be filed with the record." Rule 21 of the first district, 20 of the second, 22 of the third and fourth, are substantially the same as the rule of the supreme court, except that only six copies of the abstract are required to be filed in the first district, and five in each of the second, third and fourth districts.'^) Rule 27 of the supreme court, (A) and rules 22 of the first, 21 of the second, 23 of the third and fourth districts of the appellate court, (£) provide that " The defendant's counsel shall be permitted, if he is not satisfied with the abstract <5r abridgment furnished by the plaintiff's counsel, to furnish each of the justices of this court with such further abstracts as he shall deem necessary to a full understanding of the merits of the cause." When the defendant in error files an additional abstract, under the above rule, the court will, upon examining the case, determine upon the necessity of the additional abstract, and award the costs accordingly. (J) The supreme or appellate court will refuse to consider a case where a defective abstract is furnished, which only refers to the pages of the record to be examined, instead {g) 1 BradwelTa App. Ct. R. 23, 34, 47. 58. (h) 55 111. xxiv; Puterbaugh's Com. L. PI. and Pr. x. (i) 1 Bradwell's App. Ct. R. 23, 35, 47, 58. 0') Phelps vs. Funkhouser, 40 111. 27; Bosttoick vs. Williams, 40 111. 113; Johnston vs. Bancock, 38 111. 111. SUPREME AND APPELLATE COURTS. 683 Abstract of the Record. of presenting the questions of fact ; (k) and where no printed abstracts are filed the court may, in its discretion, dismiss the cause. (I) Where the abstract fails to present the evidence satisfac- torily, it is the privilege and duty of the appellee or defend- ant in error to file a corrected one, showing what is omitted or not fully stated, (m) Where an insufficient number of abstracts are filed, a short rule may be taken on the plaintiff in error or appellant to file the proper number, (n) Amended abstracts may be filed without leave of the court, (o) Evidence must be condensed in the abstract. If that which purports to be an abstract contains the questions pro- pounded, and the answers of the witnesses in full, it is in no sense an abstract of the testimony, but is in direct violation of the rules of the supreme court, and the party furnishing it will be allowed no costs for printing it. (p) If the error assigned is in sustaining a demurrer to pleas, the abstract should set out the demurrer and pleas, so as to enable the court to determine whether there was error or not. (j) Rule 59 of the supreme court, adooted at the January term, 1874, is as follows : "Ordered, In all cases where the evidence shall be taken and written out by a short-hand reporter, and shall be em- bodied in the bill of exceptions or certificate of evidence, (k) Kelleher vs. TisdaU, 23 111. 405: ShachUford vs. Bailey, 35 111. 387; see Marseilles Land Co. vs. Aldrich, 86 111. 504; Israel vs. Town of White' hall, 2 Bradwell's App. Ct. R. 509. (Z) Butterworth vs. Brown, 26 111. 156; Prettyman vs. Barnard, 37 111. 105; Holden vs. Herkimer, 53 III. 258; Chavis vs. Reed, 40 111. 55. (m) Yazel vs. Palmer, 88 111. 597. (n) Spear vs. VClercy, 40 111. 56. (o) Anonymous, 40 111. 56. (p) Kelly vs. Kellogg, -79 111. 477; Chicago <& A. R.R. Co. vs. Roekford, B. I. <£ St. L. R.R. Co., 72 111. 34; Sidles vs. Caruthers, 88 111. 458. (q) III. Cent. R.R. Co. vs. Parks, 88 III. 373. 684 SUPREME AND APPELLATE COURTS. Abstracts — Brief and Argument. the same shall not be printed in the abstract as returned by such reporter, but the same shall be by plaintiff in error or appellant condensed so as to present the substance of such evidence clearly and concisely in the abstract." (r) Time for filing abstracts. — See rules 32, 33 and 34 of the supreme court, and rules 27, 28 and 29 of the first and fourth, 26 and 27 of the second and 28, 29 and 30 of the third district of the appellate court, ante, page 666. Costs of abstracts. — Rule 53 of the supreme court, as amended by the court at October term, 1875, (s) and rules 36 of the first, 37 of the second, 44 of the third and 38 of the fourth district of the appellate court, (i) provide that "Upon printed abstracts being furnished, in any of the grand divisions, in conformity to the rules of this court, it shall be the duty of the clerk to tax a printer's fee, at* the rate of twenty cents for each one hundred words of one copy of such abstract, against the unsuccessful party not furnishing such abstracts, as costs to be recovered by the successful party furnishing the same." When an abstract is so imperfect and inartistically drawn as to give the court but little aid in examining the record, no costs will be allowed the appellant or plaintiff in error for making or printing the same, (u) SECTION XIII. BEIEF AND ARGUMENT. Briefs. — Rule 28 of the supreme court, (v) and rules 23 of the first and 24 of the third and fourth districts of the appel- late court, (w) are as follows: (r) Puterbaugh's Com. Law PI. and Pr. xv; 59 111. xxii. (g) 55 111. xxix; 69 111. x; Puterbaugh's Com. Law PI. and Pr. xiv. (t) Brad well's App. Ct. R. 27, 39, 51, 61. (u) Marseilles Land Co. vs. Aldrich, 86 111. 505. (e) 55 111. xxv; Puterbaugh's Com. Law PI. and Pr. x. (») 1 Bradwell's App. Ct. R. 24, 47. 58. SUPREME AND APPELLATE COURTS. 685 Brief and Argument. "Printed briefs will be required in all cases, whether argued orally, in full, or in part only, or when submitted on briefs without oral argument. The briefs required should contain a short, clear statement of the points and the au- thorities in support thereof; and in citing cases from pub- lished reports, counsel will be required not only to give the book and page, but also the names of the parties as they appear in the title of the reported case ; and the names of counsel filing brief or abstract must appear to the same. But the filing of a printed brief shall not preclude the party from filing full printed or written arguments in support of his brief, of points and authorities, provided he does so within the time his printed brief is required to be filed." Rule 22 of the second 'district of the appellate court.is the same as the above, with the following clause added: ■ • Briefs and arguments must not contain personal reflec- tions upon the court below, uncivil and unkind remarks or epithets in relation to the opposing counsel, nor unnecessary and irrelevant vilification of the opposite party and wit- nesses." (a;) Number of copies. — Rule 29 of the supreme court provides that "Ten copies of the briefs must be filed in each case: one for each of the judges, one. for the opposite party, one for the reporter, and one to be filed with the record." (y) Rule 24 of the second district of the appellate court (z) pro- vides that "In addition to the number of copies of abstracts, briefs and arguments required or permitted to be filed, the re- spective parties shall cause to be delivered to the opposite party, or his attorney, through the mail or otherwise, a copy {x) 1 Bradwell's App. Ct. R. 35; see Confrey vs. Stark, 73 111. 187. (y) 55 111. xxv ; Puterbangh's Com. Law PI. and Pr. xi. (z) 1 Bradwell's App. Ct. R. 35. 686 SUPREME AND APPELLATE COURTS. Brief and Argument — Oral Argument. of the printed abstract, brief and argument, or brief and argument, as the case may be, on or before the day it is required to file the'same in this court, unless the residence or address of such opposite party or his attorney cannot upon reasonable inquiry be ascertained." Rules 23 of the second and 25 of the third and fourth dis- tricts of the appellate court (a) are as follows: " Five copies of the briefs must be filed in each case: one for each of the judges, one for the opposite party, and one to be iiled with the record." Rule 24 of the first district of the appellate court (J) is the same as the above, except that it requires six copies of the brief to be filed, two to be filed with the record. If the briefs of counsel in the citation of cases from pub- lished reports fail to give the names of the parties as required by rule 28, they will not be regarded by the court. The necessity for the rule is obvious, for if a mistake occurs in referring to the page, the case cannot be readily found, (c) Printed briefs are required, whether the cause is submitted with or without oral argument, or though written arguments are filed, (d) And this rule applies though there be a printed argument, unless the points are clearly and separately set down in the argument, with the authorities in support thereof immediately following, (e) If the plaintiff in error, or appellant, fails to comply with the rule by filing a printed brief, the cause may, in the dis- cretion of the court, be dismissed, -(f) Oral argument. — One party may argue the case orally, and the other may file a written argument, (g) But oral (a) 1 Bradwell's App. Ct. R., 35, 47, 58. (b) 1 Bradwell's App. Ct. R. 24. \c) Snell vs. Stanley, 63 111. 391. (d) Anonymous, 40 111. 57; Gochenour vs. Mowry, 40 111. 57. (e) Gillespie vs. Rout, 40 111. 58. (/) Holden vs. Herkimer, 53 111. 253. (g) Bentley vs. IAll, 40 111. 58. SUPREME AND APPELLATE COURTS. 687 Brief and Arguments — Oral Arguments. argument will not be allowed by one party on the first call of the docket, and by the other on the second call. (A) Bule 34 of the supreme court (i) and rule 28 of the second district of the appellate court (J) are as follows : " Oral argument will be heard on the calling of a cause upon the regular call of the docket on behalf of the appellant or plaintiff in error, if he shall have complied with the rule in regard to filing printed abstracts and briefs, and on behalf of the appellee or defendant in error if he shall have filed his printed brief on or before the day preceding the calling of the cause.* Where a cause shall be argued orally in be- half of either party, printed or written argument in addition to his brief wiU not be received from such party, unless the same shall have been filed within the time prescribed in this rule for the filing of his printed brief." • Eule 28 of the first district of the appellate court (k) is the same as above to the asterisk (*), and then continues as follows : " Printed or written arguments on behalf of either party, in addition to the brief, will not be received unless the same shall have been filed within the time prescribed by these rules for the filing of printed briefs by such party, except that the appellant or plaintiff in error shall be at lib- erty to file a written or printed reply at any time before the argument of the case is commenced." Rule 31 of the third district of the appellate court (Z) is as follows : "On the calling of a case for hearing, it may be argued orally if the rules for filing abstracts and briefs have been complied with, or the case may be submitted on such (h) Comstock vs. Hitt, 40 111, 181. (i) 55 111. xxvi; Puterbaugh'a Com. Law PL and Pr. xi. (j) 1 Bradwell's App. Ct. R. 37. v (k) 1 Bradwell's App. Ct. R. 25. (I) 1 Bradwell's App. Ct. R. 49. 688 SUPREME AND APPELLATE COURTS. Abstracts and Briefs — Oral Arguments. abstracts and briefs, and the cause, in either case, shall then be taken for final determination ; but in case the appellant Or plaintiff in error does not argue the case orally, he shall be allowed three days after the call to file a brief in reply." Rule 29 of the fourth district of the appellate court (m) provides that "When any cause wherein the appellant or plaintiff in error shall have complied with the rule in regard to filing printed abstracts and briefs shall be called on the regular call of the docket, if either party shall desire to argue the case orally, then such ease shall be set down for oral argument on the day succeeding the time fixed by rule for brief of appellee or defendant in error to be filed, unless appellee or defendant in error shall waive his right to argue the case orally, in which event the appellant or plaintiff in error may submit an oral argument on call : Provided, no oral argument will be heard from the appellee or defendant in error unless he shall have complied with the rule in re- gard to filing his brief : Provided, also, oral arguments may be heard on call if both parties shall so agree, and if both parties shall have filed the abstract and briefs required." Rule 35 of the supreme court (n) and rale 29 of the second, 32 of the third and 31 of the fourth districts of the appellate court (o) provide that " Oral arguments will not be heard upon any motion, nor upon the rehearing of a cause, unless specially directed by the court." Time allowed for oral argument. — Rule 36 of the supreme court ( p) and rules 30 of the second, 33 of the third and 31 of the fourth district {q) provide that (m) 1 Bradweli's App. Ct. R. 59. (n) 55 111. xxvi; Puterbaugh's Com. Law PI. and Pr. xii. (o) 1 Bradweli's App. Ct. R. 37, 49, 60. (p) 55 111. xxvi; Puterbaugh's Com. Law PI. and Pr. xii. (q) 1 Bradweli's App. Ct. R. 37, 49. GO. SUPREME AND APPELLATE COURTS. 689 Advance Fees to Clerk. "The time allowed for each oral argument shall be re- stricted to. one hour, unless otherwise specially permitted. " Rule 29 of the first district of the appellate court (r) pro- vides that "The time allowed, for each oral argument upon the hearing of a cause shall be restricted to one hour, except the closing argument, which shall be restricted to thirty minutes, unless otherwise specially permitted. Oral argu- ments will not be heard upon any motion, unless specially directed by the court." SECTION XTV. ADVANCE FEES TO CLEEK. The last clause of section 12 of the act in relation to "Fees and Salaries," as amended by the act of 1875, (s) provides that "The clerk shall receive an advance fee of ten dollars when the record is filed, which shall be credited on the fees, and the clerk shall repay the same to the party entitled thereto, when the costs are collected. The clerk shall not be required to issue a final order in any cause until all costs for which the party seeking such final order is liable, in such cause, have been paid." Clerks of the appellate courts are allowed the same fees for services in the appellate court as are allowed for like services in the supreme court, (t) Rules 50 and 51 of the supreme court, adopted at the Jan- uary term, 1875, are as follows : 50. " There shall be advanced by the party filing the tran- script of the record from the court below in this court, in any (r) 1 Bradwell's App. Ct. B. 26. (s) Laws of 1875, p. 79; Rev. Stat. (1877) 489. (0 Laws of 1877, p. 69; Rev. Stat. (1877) 322. 690 SUPREME AND APPELLATE COURTS. Cases taken from Appellate to Supreme Court. of the several grand divisions, at the time of filing the same, the 'sum of five dollars, and there shall be advanced by the party filing abstracts in any such cases, at the filing the same, the further sum of five dollars, both said sums to apply on account of the taxable fees to the clerk. 51. "In the northern grand division the clerk shall not be allowed any fee for abstracts, except the fee allowed by law for filing the same." (u) Rule 56 of the supreme court, adopted at the September term, 1872, (u) provides that "The first clause of rule 50 is to be construed that the party filing the recosd shall only be required to advance five dollars on fees when a case is first placed on the docket, and no additional advanced fees shall be required of either party if the case shall be again docketed on any motion, petition for rehearing, or for any other purpose." It will be seen that rules 50 and 55, so far as the amount of the advance fees is concerned, are superseded by the statute above quoted, and that in all cases an advance fee of ten dollars is required when the record is filed. For the taxable fees of the clerk of the supreme court see Eevised Statutes of 1877, page 489. SECTION XV. OASES TAKEN FEOM THE APPELLATE TO THE SUPREME COUET. We have already seen in what cases appeals and writs of error may be prosecuted from the appellate courts to the supreme court, (w) In addition to the statutes already quoted, section 87 and 89 of the Practice Act, as amended by act of 1877, (as) provide that («) 55 lit. xxix; Puterbaugh's Com. Law PL and Pr. xiv. (») 56 111. xvi: Puterbaugh's Com. Law PL and Pr. xix. (jc) Ante, p. 639; §90 Pr. Act, Rev. Stat. (1877) 746. (x) Laws of 1877, p. 153; Rev. Stat. (1877) 746. SUPREME AND APPELLATE COURTS. 691 Appeals from Appellate to Supreme Court, etc. § 87. "If any final determination of any cause, as specified in the preceding sections, shall be made by the appellate court, as the result wholly or in part of the finding of the facts concerning the matter in controversy, different from the finding of the court from which such cause was brought by appeal or writ of error, it shall be the duty of such appel- late court to recite in its final order, judgment or decree, the facts as found, and the judgment of the appellate court shall be final and conclusive as to all matters of fact in contro- versy in such cause. § 89. " The supreme court shall re-examine cases brought to it by appeal or writ of error as to questions of law only ; and no assignment of error shall be allowed which shall call in question the determination of the inferior or appellate courts upon controverted questions of fact in any case, ex- cepting those enumerated in the preceding section " (§ 88). Manner of making up records in appellate court, and certi- fying to supreme court. — Section 91 of the Practice Act, as amended by the act of 1877, (y) provided that '•It shall be the duty of the supreme court to direct, by general rule, what portions of, and the manner in which, the records of the appellate court shall be made up and certified in cases removed from such appellate court to the supreme court by appeal or writ of error, except as otherwise provided in section eighty-eight (88) aforesaid." By rule ( 64) o, the supreme court, adopted at the Septem- ber term, 1877, (z) it was provided that "Pursuant to section 91 of 'An act in regard to practice in courts of record,' approved June 2, 1877 : Ordered by the court, That in all cases removed from the appellate courts to this court by appeal or writ of error, only so much of the record shall be made up and certified as shall be necessary to clearly and fully present the question upon which the (y) Laws of 1877, p. 154; Rev. Stat. (1877) 746. (z) 82 111. xi; Puterbaugh's Com. Law PI. and Pr. xvi. 692 SUPREME AND APPELLATE COURTS. Appeals from Appellate to Supreme Court, etc. decision of this court shall be sought, and the same shall be directed by at least two of the" judges of the court from which the record is brought, and their order to that effect shall be certified as a part of the record." Rule 37 of the first district of the appellate court (a) pro- vided as follows : "Whereas, by a rule of the supreme .court it is ordered, etc. (as above), Therefore, it is ordered by this court that the counsel for the party desiring to remove a cause from this court to the supreme court shall prepare and submit to the counsel for the opposite party a draft of an order of this court, as required by said rule of the su- preme court; which draft shall contain, first, a designation of the several parts of the record, including the final judg- ment or decree of the court below, ami the final judgment of this court necessary to present clearly and fully the ques- tions upon which the decision of the supreme court shall be sought ; and secondly, the facts found by this court from the evidence in the record, so far as said facts are perti- nent to said questions; and if the counsel cannot agree, they shall, after reasonable notice, each present to this court, or one of the judges thereof, their suggestions in relation thereto, in writing, in order that the points in difference,. if any, may be fairly settled in compliance with said rule of the supreme court." Rule 39 of the second district of the appellate court (b) provided that "Whereas, by a rule of the supreme court, etc. (as above set forth) It is hereby required by this court that the counsel of appellant or plaintiff in error shall prepare and submit to the counsel for appellee or defendant in error a draft of the order of this court, containing the statement of facts, and portions of the record only necessary to present clearly • (a) 1 Bradwell's App. Ct. R. 27. (6) 1 Bradwell's App. Ct. R. 39. SUPREME AND APPELLATE COURTS. 693 Appeals from Appellate to Supreme Court, etc. and fully the questions aforesaid ; and if the counsel cannot agree, they shall, after reasonable notice, each present to this court, or one of the judges thereof, their suggestions, in writing, in relation thereto, in order that the points in difference, if any, may be fairly settled and adjusted, in compliance with said order of the supreme court." Rules 40 of the third and 41 of the fourth districts of the appellate court (c) are as follows : "All parties praying an appeal, or prosecuting a writ of error to the supreme court, shall present to the court or judge allowing such appeal, or in case of a writ of error, to one of the judges, a brief statement in writing, stating the points or questions he desires to present to the supreme court for review, together with a statement of the parts of the record he desires sent up." Since the adoption of the above rules by the supreme and appellate courts, section 88 of the Practice Act was amended by the act of 1879, (d) which provides that * * * "In all cases of writs of error and appeals, prose- cuted or taken from any decision of any of the appellate courts to the supreme court, it shall not be necessary for the clerk of the appellate court, in which said cause was heard and deter- mined, to make out and certify a copy of the original transcript of the record, filed in the said appellate court, but it shall be sufficient for, and it is hereby made the. duty of the clerk of said appellate court to transmit the original transcript of the record filed in his office, with his official certificate and seal of office authenticating the same, with a true and perfect copy of all the orders and proceedings appearing of record in said cause ; which said copy of the record, and proceed- ings duly authenticated with the seal of said court, shall be transmitted to and filed in the supreme court; and the clerk of the appellate court shall be entitled to receive from the (c) 1 Bradwell's App. Ct. R. 50, 62. (d) Laws of 1879, p. 222; Bradwell's ed. 169. 694 SUPKEME AND APPELLATE COURTS. • Appeals from Appellate to Supreme Court — Judgments. party procuring said record and transcript the fees allowed by law for his certificate and copy of the proceedings had in the appellate court, and he shall not be entitled to charge or receive any fee for copying or transmitting said original transcript, other than for his certificate, and the reasonable cost of sending said transcript and record from bis office, either by mail or by express, to the clerk of the supreme court. That all laws or parts of laws in conflict with this act are hereby repealed." Application for an appeal in vacation. — Rules 39 of the third and 40 of the second district of the appellate court («) provide that "In all cases where an application is made in vacation for an appeal from this court to the supreme court, tlie party making such application shall present to one of the judges of this court a brief statement in writing, giving the title of the cause, the nature and amount of the judgment, order or decree from which the appeal is desired, the date of the rendition of such judgment, order or decree, and the names of the sureties proposed, accompanied with affidavit showing the solvency and sufficiency of the security so pro- posed." SECTION XVI. JUDGMENTS. In all cases of appeal and writ of error the supreme court or appellate court may give final judgment and issue execu- tion, or remand the cause to the inferior court. (f) And the said courts, or a majority of the judges thereof, may enter orders and judgments in vacation in all cases which have been argued or submitted to the court during any term thereof, and which shall have been taken under advisement: (g) (e) 1 Bradwell's App. Ct. R. 50, 62. (/) Rev. Stat. (1877) 744. (V) Rev. Stat. (1877) 321, 324; see BOls vs. Stanton, 69 Hi. 51; Coursen vs. Browning, 86 111. 57. SUPREME AND APPELLATE COURTS. 695 Judgments — Remittitur. The 81st section of the Practice Act, as amended by the act of 1877, (A) provides that " The supreme court or appellate court, in case of a partial reversal, shall give such judgment or decree as the inferior court ought to have given, and for this purpose may allow the entering of a remittitur, either in term time or vacation, or remand the cause to the inferior court for further proceed- ings, as the case may require." ^Remittitur. — Where the judgment of the inferior court is for too large a sum, the error may he cured by a remittitur of. the excess, (i) and the judgment be affirmed as to the resi- due, and the costs will be taxed against the appellee or de- fendant in error. (J) When the supreme court or appellate court has the power to render such judgment as the inferior court ought to have rendered, it will do so without sending the cause back for that purpose, (k) and a cause will not be remanded where the proceedings of the court below are coram nan jvdice. (Z) If the bill of exceptions enables the court to ascertain the sum that would have been recovered, if instructions asked for had been given, it is unnecessary to send the case back for a new trial, and judgment will be rendered for. the proper amount in the supreme or appellate court, (m) But the court will not render such a judgment as the infe- rior court should have rendered, unless the evidence on which a verdict is founded is before it. (») (h) Laws of 1877, p. 151; Rev. Stat. (1877) 745. (t) Thomas vs. Fisher, 71 III. 576; Welsh vs. Johnson, 76 HI. 295; Cheeney vs. City N. Bank, 77 111. 562; Trustees vs. Hihler, 85 111. 400. (j) Welsh vs. Johnson, 76 111. 295; Nixon vs. Halley, 78 111. 611; Pixley vs. Boynton, 79 111. 351; Convey vs. Sheldon, 1 BradwelTs App. Ct. R. 555. (ifc) Prime vs. Lamb, Breese, 378; Boyle vs. Carter, 24 111. 49; LazeU vs. Francis, 4 Scam. 422. (0 Dutch vs. Edwards, 1 Scam. 127. [m) Pearson vs. Bailey, 1 Scam. 507; Williams vs. Bank of Illinois, 1 Gilm. 667; Peck vs. Stevens, 5 Gilm. 127. (n) Howell vs. Barrett, 3 Gilm. 433. 696 SUPREME AND APPELLATE COURTS. Judgments, etc. — Executions. Reversal — Remanding. — The statute which provides that no more than two new trials shall be granted in the same case has special application to suits in the circuit court, and does not operate to restrict the power of the supreme or appellate court in reversing judgment in the same case any number of times, (o) Special directions. — A cause may be remanded with special directions, and when this is done the inferior court has no alternative but to enter judgment in conformity there- with, (p) Effect of reversal. — When a judgment of the inferior court has been affirmed, and upon a rehearing it is reversed, such judgment of reversal will not retroact and disturb any rights which may have been innocently acquired under the judg- ment of affirmance, and upon the faith of it whilst it was in full force, (o) SECTION XVII. EXECUTIONS. Rule 35 of the first district of the appellate court (/•) pro- vides that " Upon the affirmance of judgments, executions may issue, at the option of the party, from this court; or if such party so elect, a writ of procedendo shall be issued to the court below, upon the payment, by the successful party, of the costs made by him in this court." (o) Stanberry vs. Moore, 56 111. 472; see Silsbe vs. Lucas, 53 111. 479; Wol- brecht vs. Baumgarten, 26 111. 291. (p) Winchester vs. Grosvenor, 48 111. 515; see Hunter vs. Hatch, 45 111. 178; Edwards vs. Evans, 61 111. 492; Thompson vs. Hoagland, 65 111. 310; Northern Trans. Co. vs. McClary, 66 111. 233; First Baptist Church vs. An- drews, 87 111. 172. (g) Montague vs. Wattahan, 84 111. 355; Wadhams vs. Gay, 73 111. 415. (r) 1 Bradwell's App. Ct. U. 27. SUPREME AND APPELLATE COURTS. 697 Judgments — Executions — Rehearing, etc. Section 80 of the Practice Act, as amended by the act of 1877, (s) provides that "In all cases of appeal and writ of error the supreme court or appellate court may give final judgment and issue execution, or remand the cause to the inferior court, in order that an execution may be there issued, or that other proceedings may be had thereon. Any judgment rendered in the supreme court or appellate court shall become a lien on real estate after execution shall be issued and levied and a certificate thereof filed in the office of the circuit clerk of the county where the real estate levied on is situated." SECTION xvin. Application for — when and how made. — Rules 38 and 39 of the supreme court (t) are as follows : 38. "The manner of applying for a rehearing shall be as follows : Within fifteen days after an opinion is filed a party desiring a rehearing shall give actual notice in writing to the opposite party or to his attorney of his intention to make such application, and within thirty days after the filing of the opinion shall place on file in the clerk's office ten printed copies of the petition. 39. "Application for a rehearing of any cause shall be made by petition to the court, signed by counsel, briefly stating the grounds for a rehearing and the authorities relied on in support thereof. When a rehearing is granted, notice shall be given to the opposite party of the time when such rehearing will be had." In first district appellate court. — Rules 31 and 32 of the first district (u) provide that (*) Laws of 1877, p. 151 ; Rev. Stat. (1877) 745. (0 55 HI. xxvii; Puterbaugh's Com. Law Fl. and Pr. xii. («) 1 Bradwell'8 App. Ct. R. 26. 698 SUPREME AND APPELLATE COURTS. Rehearing, etc. 31. " The manner of applying for a rehearing shall be as follows : Within fifteen days after a decision is entered of record, party desiring a rehearing shall give actual notice in writing to the opposite party or to his' attorney of his inten- tion to make such application* and within thirty days after the filing of the opinion shall place on file in the clerk's office six printed copies of the petition. 32. "Application for a rehearing of any cause shall be made by petition to the court, signed by counsel, briefly stating the grounds for a rehearing and the authorities relied on in support thereof. All cases in which a rehearing has been granted, or in which a petition thereof is pending, shall be placed by the clerk on the term docket in the order of their general number." In the second and fourth districts, rules 32 and 33 of the second and 33 and 34 of the fourth districts (v) provide that 32-33. "Applications for rehearing will be entertained in that class of cases only in which the decision of this court cannot be reviewed by the supreme court. The man- ner of applying for a rehearing shall be as follows : "Within fifteen days after a decision shall have been entered of record the party desiring a rehearing shall give notice in writing to the opposite party or to his attorney of his intention to make such application, and within thirty days after the entry of such decision shall place on file in the clerk's office five printed copies of the petition, and deliver one through the mail or otherwise to the opposite party or his attorney, if the address of such party or his attorney can, upon reason- able inquiry, be ascertained. 33-34. " Applications for rehearing shall be made by pe- tition to the court, signed by counsel, briefly stating the reasons therefor and the authorities relied on in support thereof. If the application be allowed, notice of the time when such rehearing will be had shall be given to the oppo- site party." (v) 1 Bradwell's App. Ct. R. 37, 38, 60, 61. SUPREME AND APPELLATE COURTS. 699 Rehearing — Stay of Proceedings, etc. In the third district. — Rulos 35 and 36 of the third dis- trict () lb. (u>) 79 111. vii; Puterbaugh's Com. Law PI. and Pr. xvi. SUPREME AND APPELLATE COURTS. 707 Library. SECTION XX. LIBRARY. Utiles 47, 48 and 49 of the supreme court are as follows : 47. " The librarians of the law libraries attached to this court shall not permit any person, except those authorized by these rules, or by the laws of the state, to take from the rooms of this court any book or books belonging to said libraries, with- out the consent of tBe court being first obtained for that pur- pose ; and if any person not so authorized shall take away a book without such consent, such person shall be considered in contempt of the court, and may be fined at the discretion of the court. 48. " Books may be taken from the library in the central grand division upon the written order of a judge of the United States circuit or district court. 49. " The books of the law libraries shall not be marked or underlined with pen or pencil, nor shall the pages of the same be folded down. The librarians shall adopt such rules as to the safe keeping of the books as they may deem expedient." (x) (x) 55 DL xxix; Puterbaugh's Com. Law PI. and Px. xiii. RULES OF PRACTICE FOR THE COURTS OP EQUITY OF THE UNITED STATES. Revised and corrected at December Term, 1870. Section 1. Preliminary Regulations. 2. Process. 3. Service of Process. 4. Appearance. 5. Bills taken Pro Confesso. 6. Frame of Bills. 7. Scandal and Impertinence in Bills. 8. Amendment of Bills. 9. Demurrers and Pleas. 10. Answers. 11. Parties to Bnxs. 12. Nominal Partdss to Bills. 13. Bills of Revivor and Supplemental Bills. 14. Answers. 15. Amendment of Answers. 16. Exceptions to Answers. 17. Replication and Issue. 18. Testimony, how Taken. 19. Testimony De Bene Esse. 20. Form of the Last Interrogatory. 21. Cross-Bill. 22. Reference to and Proceedings before Masters. 23. Exceptions to Report of Master. 24. Decrees. 25. Guardians and Prochein Amis. SECTION L PR.V.T, TMTTJ AT?.V REGULATIONS. 1. The circuit courts, as courts of equity, shall be deemed always open for the purpose of filing bills, answers, and other pleadings, for issuing and returning mesne and final process RULES OF U. S. SUPREME COURT. 709 Preliminary Regulations. and commissions, and for making and directing all interlocu- tory motions, orders, roles, and other proceedings, preparatory to the hearing of all causes upon their merits. 2. The clerk's office shall oe open, and the clerk shall be in attendance therein, on the first Monday of every month, for the purpose of receiving, entering, entertaining, and disposing of all motions, rules, orders, and other proceedings, which are grantable of course, and applied for, or had by the parties, or their solicitors, in all causes pending in equity, in pursuance of the rules hereby prescribed. 3. Any judge of the circuit court, as well in vacation as in term, may, at chambers, or on the rule-days at the clerk's office, make and direct all such interlocutory orders, rules, and other proceedings, preparatory to the hearing of all causes upon their merits, in the same manner and with the same effect as the circuit court could make and direct the same in term, reason- able notice of the application therefor being first given to the adverse party, or his solicitor, to appear and show cause to the contrary at the next rule-day thereafter, unless some other time is assigned by the judge for the hearing. 4. All motions, rules, orders, and other proceedings made and directed at chambers, or on rule-days at the clerk's office, whether special or of course, shall be entered by the clerk in an order-book, to be kept at the clerk's office, on the days when they are made and directed ; which book shall be open at all office hours to the free inspection of the parties in any suit in equity, and their solicitors. And, except in cases where per- sonal or other notice is specially required or directed, such entry in the order-book shall be deemed sufficient notice to the parties and their solicitors, without further service thereof, of all orders, rules, acts, notices, and other proceedings entered in such order-book, touching any and all the matters in the suits to and in which they are parties and solicitors. And notice to the solicitors shall be deemed notice to the parties for whom they appear and whom they represent, in all cases where per- sonal notice on the parties is not otherwise specially required. Where the solicitors for all the parties in a suit reside in or near the same town or city, the judges of the circuit court may, by rule, abridge the time for notice of rules, orders, or other pro- ceedings not requiring personal service on the parties, in their discretion. 5. All motions and applications in the clerk's office for the issuing of mesne process and final process to enforce and exe- cute decrees, for filing bills, answers, pleas, demurrers, and other pleadings ; for making amendments to bills and answers ; 134 Bank, etc., y. Dnnyan, 2 Bland 401 Bank of South Carolina y. Rose, 1 Strobh-Eq. ■. 358 Bank of U. S. y. White, 8 Pet 254 Banks v. Anderson, 2 Hen. & M 251 Banta y. Banta, 3 Edw. Ch 492 Banta y. Moore, 2 McCarter's N. J. R. . 100 Barbour y. Whitlock, 4 Horn- 64 Barksdale v. Payne, Riley, 'Ch 317 Barnard y. Cnshman, 35 111 108,359 Barnes y. Hazelton, 50 HI 76 Barney y. Myers, 28 Iowa 390 Barns y. Dickinson, 1 Dey. Ch. R 254 Bamstead v. Empire Mining Co. 5 Cal. 338 Barring y. Nash, 1 Ves. & B 44 Barrington y. O'Brien, 2 Ball. & Beat. . 306 Barron y. Martin, 19 Ves. 353 Barron y. Bobbins, 22 Mich 536 Barron y. Bailey, 5 Florida 397 Barry y. Jenkins, 1 Mylne & Craig. 234 Barry y. Rogers. 2 Bibb 51, 65 Barstow v. Smith, Walk 101 Bartlett y. Bartlett, 1 Clarke, N. Y 517 Barton y. May, 3 Sandf. Ch. R 358 Barton y. Moss, 32111 66, 142 Bascomb v. Bascomb, 5 Foster 488 Bascomb v. Bascomb, Wright, Ch 511 Bassett y. Brown, 100 Mass 46 Batcbelder y. Batchelder. 14 N. H 498 Bate y. McLangblin, 1 A. K. Marsh. ... 141 Batemany. Willoc, 1 Sch. & Let. 64 Bates v. Delayan, 5 Paige 197 Bates y. Wheeler, 1 Scam 326 Batterson y. Ferguson, 1 Barb 136 Baxy. Whitbread, 16 Ves 200 Baxter y. Hntchings, 49 Hi 577, 578, 579 Baxtery. West, 1 Drewry & Sm 339 Bay y. Cook, 31 HI 897 Bayerque v. Cohen, 1 McAllister. 435 Beach y. Fulton, 3 Wend 163 Beach ys. Shaw,57Ill 353 Beams y. Denham, 2 Scam 171 Beard y. Fowler, 2 Bond 98, 113 Bearden y. Wood, 1 A. K. Marsh 319 Beaubien v. Sabine, 2 Scam 74 Beauchamp v. Kankakee Co. 45 HI... 612 Beanchamp y. Pntman, 34 HI.. 193, 194, 312 813 Beaugenan y. Lercotte, Breese 47 Beaumont v. Boulbree, 5 Ves 67, 166 Beaumont y. Meredith, 3 Ves. & B 339 Bechinall y. Arnold, 1 Vern 299 Beck y. Baxdett, 1 Paige, Ch 397 Beckford y. Wade, 17 Ves 353 Beckwith y. Butler, 1 Wash. Va 186 Bedell y. Hoffinan, 2 Paige, Ch. . . . 279, 292 Beekman y. Frost, 18 Johns 359, 360 Beekman y. Waters, 3 Johns. Ch 166 Bell y. Nims, 51 HI 90 Bell y. Pomeroy, 4 McLean 134, 269 Bellamy y. Bellamy, 4 Florida 199 Bellamy y. Jones, 8 Ves 294 Bellingall v. Gear, 3 Scam 75 Bellwood y.Wetberell, 1 Younge & Col. 315 Benedict v. Oilman, 4 Paige, Ch 358 Benedict y. Lynch, 1 Johns. Ch. R 318 Benkert y. Benkert, 32 Caj 497 Benneson y. Thayer, 23 HI 580 Bennett v. Lee,2Atk 254 Bennetty. Wolfolk, 15 Geo 269 Bennington Iron Co. v. Campbell, 2 Page, Ch. R 162, 169 Benson y. Le Roy, 4 Johns. Ch 398 Bentley y. Phelps, 2 W. & M 351 Bently y. Cournan, 6 Gill & J. 153 Benton y. Benton, 1 Day 487 Benzein v. Loyelass, Cam. & Nor. 169 Bercbett y. Boiling, 5 Munf. 323 Berckmans y. Berckmans, 2 C. E. Greene, N. J. 514 Bergen y. Bergen, 22 HI. . .513, 614, 617, 522 523 Berger y. Potter, 32 HI 102 Berkleyy. Ryder, 2Ves 314 TABLE OF CASES CITED. Berryman t. Graham, 81 N. J. Eq. 312 Beaimer v. The People, 15 HI 74 Besse T. Becker, 51 111 89 BetteB t. Dana, 2 Sumner, R 537 Betz v. Betz, 2 Rob. N. T 510 Biglow v. Bosh, 6 Paige, Ch. R. 374 Bignall v. Atkins, 6 Mad S05 Biilingslea t. Gilbert, 1 Bland. 140 Bingham t. Cabot, 3 Dall 43 Bingham v. Dawson, Jacob. 254 Binks t. Binks, 8 Bligh 222 Binney's Case, 2 Bland 189-, 141 Birch v. Haynea, 3 Mer 335 Birdv.Bird, Wright, Ch 493 BirdsaU v. Colis, 2 Stockt Ch 342 Birkby v. Birkby, 15 111 503 - Birley t. Staley, 5 Gill A J 43,401 Bishop v. Breckleas, lHoff. Ch* 339 Bishop of London v. Webb, 1 P. Wms. 566 Bishop of Winchester y. Wolgar, 3 Swanst 565 Bishop of Winchester v. Beaver, 3 Yes . . 357 Bishop of Winchester v. Paine, 11 Yes 368 Bishop t. Witherel, 9 Wall. TJ. S 80 Blain v. Harrison, 11 BJ. 466 Blaisdell v. Stevens, 16Vt 135 Blake t. Foster, 2 Holloy 253 Blakeney v. Dnf our, 15 Beav 340 Blount t. Garen. 3 Hey 100 Blunt v. Tomlin, 27 111 324 Board, etc v. Grcenbaum, 39 HI 187 Board of Supervisors vs. Henneberry, 41 HL 47 Boeve r. Skipwith, 1 Eq. Ca. Ab 205 Bogardos v. Trinity Church, 4 Paige, Ch 117, 118, 127, 128 Bohan v. Galoway, 13 111 62 Bonner v. Peterson, 44 HI 458, 467, 477 Boomer v. Cunningham, 22 HL 318 Borton v. Scheffer, 21 Gratt Va 318 Boston v. Nichols 88, 321 Botaf ord v. O'Conner, 57 HI. 75, 76 Bottorf v. Conner, 1 Blackf 103, 108 Bongher v. Miller, Wright 195 Bow v. Britten, 2 Chicago Legal Newa. 41 Bowan v. Gross, 4 Johns. Ch 143 Bowie v. Bowie, 3 Md. Ch. Decis 510 Bowie v. Minter, 2 Ala 204,225 Bowlesv. McAllen, 16 HI 426, 536 Bowles t. South, Hardin 253 Bowman r. McLaughlin, 58 Maine 98 Bowman v. Wettig, 39 111 175 Bowman v. Wood, 41 Dl 90 Bowyer v. Bright, 13 Price 212 Bowyer v. Pitchard, 11 Price 290 Boyd v. Boyd, Harper, S. C. Eq 526 Boyd v.Boyd, 66Penn. St. E. 550 Boyd v. Hoyt, 5 Paige, Ch 49, 402 Boyd v. Magruder, 2 Rob. Ya 324 Boyland, v. Boyland. 18 Dl 75. 76 Boyles v. McMurphy, 65 Dl 468 Boynton v. Rawaon, 1 Clarke. 403 Boze v. Davis, 14 Texas 323 Bozman v. Dronghan, S Stew 195 Bracken v. Kennedy, 3 Scam 338, 341 Bracken v. Martin, 3 Yerg. 230 Bradford v. Geisa, 4 Wash. C. C. R. . . 134 Bradish y. Gee, Ambl 200, 264 Brads haw v. Outram, 13 Yes 355, 373 Bradshaw v. Garrett, 1 Porter. 249, 254 Brady v. Anderson, 24 111 675, 580, 591 Brady v. Waldron, 2 Johns. Ch. ...564, 565 Brandleigh v. Ord, 1 Atk 295 Braehier v. Grata, fi Wheat 319 Brattle v. Waterman. 4 Sim 178 Breckenridge v. McCormick, 43 HI 613 Bree v. Bree, 51 Dl 89, 187 Brewer v. Bowman, 3 J. J. Marsh 250 Brewster v. Power, 10 Paige, Ch. . . .397, 399 Brickerhoff v. Brown, 6 Johns. Ch 105 Bridges v. Robinson, 3 Mer 333 Briggs v. Briggs, 20 Mich 503 Briggsv Gear, 3 Gilm 253 Briggs v. Kaufman, 2 Mich. N. P 390 Briggs v. Morgan, 3 Phil] 487 Bright v. Bright. 41 111 325 Brignardello v. Gray, 1 Wall. TJ. S. R. . 200 Brill v. Stiles, 35 HI '.. 99,100, 103 Brinckerhoff v. Lansing, 4 Johns. Ch. . 368 Broadstreet v. Broadatreet, 7 Mass 498 Broadwell v. Broadwell, 1 Gilm 318, 323 Brockett v. Brockett, 3 How. U. S 190 Brockman v. Aulger, 12 Dl 183 Brockway v. Copp, 3 Paige, Ch 101, 133 Broddus v. Ward, 8 Mo 320 Brook v. Mead, Walk. Ch 172 Brooks v. Barrett, 7 Pick : 553 Brooks v. Byam, 1 Story. 134, 135, 158 Brooks v. Gibbons, 4 Page, Ch 105, 401 Brown v. Bell, 4 Hey 306 Brown v. Brown, 1 Hagg. 487 Brown v. Brown, 22 Mich. 533 Brown v. Cannon, 5 Gilm .' 819, 322 Brown v. EdsaU, 1 Stockt. N. J. 269 Brown v. Gaffney, 28 HI 351 Brown v. Gaffney, 32 El 359 Brown v. Haff, 5 Paige, Ch 556, 557 Brown v. Haines, 12 Ohio..'. 319 Brown v. Higden, 1 Atk 203 Brown v. Hoglo. 30 HI 100, 101 Brown v. McDonald, 1 Hill, Ch 57 Brown v. Moore, 26 HI 582 Brown v. Pitney, 39 Dl 463 Brown v. Powell, 45 Ala 98 Brown v. Ricketts, 3 Johns. Ch 40S Brown V.Welch, 18 HI 165 Brownfleld v. Brownfleld, 43 HI 549 Brownfleld v. Brownfleld, 58 HI 614 Browning v. Bettis, 8 Paige, Ch 399 Brownlee v. Lockwood, 20 N. J. Eq. . . . 100 736 TABLE OF CASES CITED. Brownson v. La Croasc & Milwaukee B. K. Co. 2 Wall. tJ. S 313 Brownswordy. Edwards, 2 Ves. .. 105, 130 Bruen v. Bruen, 43 111 45 Bruerey. Wharton, 7 Sim 350 Brnnnenmeyer y. Buhre, 32 HI 570 BruBh v. Vandenberg, 1 Edw. Ch 323 Bryan v. BIythe, 4 Blackf 50 Buchanan v. Hart, 31 Texas 570 Buchter v. Dew, 39 111 683 Buckv. Beekly,45 111 92, 614 Buckholtz v. Buekholtz, 24 Geo 509 Buckingham v. Feddicord, 2 Bland 135 Buckland v. Goddard, 36 DL 96 Buckley v. Corge, Saxon, N. J 164 Buckley v. Starr,2Day 49 Buffalow y. Buffalow, 2 Ired. Ch 48, 102 Bugbee v. Sargeant, 23 Maine 49, 65 Bulkley y. VanWyek, 5 Paige, Ch 141 Buloid y. Miller, 4 Paige, Ch. E. . . 158, 161 Buntain y. Wood, 29 111 142 Burch y. Brown, 46 Mo 550 Burdell y. Bordell, 2 Barb 510 Burger y. Potter, 32111 115 Burgees y. Wheate, 1 Blacks 308 Burke y. Smith, 15 111. ... . 164, 165, 203, 205 Burkeley v. Dunbar, 1 Anst. E 153 Burkhart y. Beisig, 24 HI 676, 679, 591 Burn y. Poang, 3 Dessau 249 Burnett y. Anderson, 1 Mer 280, 283 Burnett y. Lester, 53 HI 49, 61, 102 Burnett v. Sanders, 4 Johns. Ch. E 277 278 Berney v. Chan/hers, Bumb 152 Burney y. Morgan, 1 Sim. & Stu 400 Burnhamy.Rangeley, 1W. &M. C. C.E. 115 Burnley y. Jeffersonyille, 3 McLean ... 135 Burr y. Burr, 7 Hill, Ch 532 Burr y. Burr, 10 Paige, Ch 526, 532 Burrall v. Baineteaux, 2 Paige, Ch. R. . 151 Burrelly. Leslie, 6 Paige, Ch 403 Burroughs y. Oakley, 3 Swanst... 333, 334 Burrows y. Taylor, Wright 228 Burt y. Eynex, 48 Mo 189 Burtisv. Burtis, 1 Hopk. Ch 487 Burton y. Black, 32 Geo 280 Burton v. Todd, 1 Swanst 833 Busfleld y. Solomons, 9 Ves 814 Bushy. Connelly, 33 111 691 Buehnell v. Bishop Hill Colony, 28 HI. . 175 Butler y. Catling, 1 Root 133 Buttrick y. Holden, 13 Met 821 Byrne y. Byrne, 3 Texas 603 Cabeen y. Gordon, 1 Hill, Ch 818 Cadwallader v. Granville Alexandrian Society, 11 Ohio 405 Cady y. Porter, 55 Barb. N. T. 279, 280, 281 Caldwell y. Blackwood, 1 Jones, N. C. Eq 106 Caldwell y. Boyer, 3 Atk 206 Caldwell y. Myers, Hardin 322 Calhoun t. Powell, 42 Ala 103 Caller y. Shields, 2 Stew. & Port. 249, 251 252, 253 Calmes y. Ament, 1 A. K. Marsh. 250 Calverley y. Williams, 1 Ves. Jr 308 Camblat v. Tapcry, 2 La. An 340 Campbell's Case, 2 Bland 403 Campbell y. Hannan, 43 HI 183 Campbell v. McCanham, 41 HI 538 Campbell v. Misier, 4 Johns. Ch 201 Campbell y. Morrison, 7 Paige, Ch 61 Campbell v. Solomons, 1 Sim. & Stu. . 291 Canfleld v. Morgan, Hopk. Ch 291 Cann y. Cann, 1 P. Wms 296 Cannon y. Norton, 14 Vt 65 Cannon y. Watson, 1 How. Miss 89 Capner v. Flemington Mining Co. 2 Green, Ch. 665 Carmichael v. Beed, 45 III 649 Camochan v. Christie, 11 Wheat 306 Carpenter y. Mutual Safety Ins. Co. 4 Sandf.Ch 822 Carry. Duyal, 14 Pet 321 (jarr v. Fielden, 18 HI 144, 145 Carrey. Carre, 2 TeateB 490 Carroll y. Parren, 1 Bland 256 Carroll y. Safford, 3 How. U. S 535 Carter v. Lewis, 29 HI 89 Carter v. Longworth, 4 Ham 101 Cartwright y. Clark, 4 Met 307, 312 Cartwright y. Green, 8 Ves 105 Caryy. Ector, 7 Geo 143 Cary y. Hatch, 2 Edw. Ch 60 Caseell v. Boss, 33 Dl 142 Cassidy y. Meacham, 3 Paige, Ch.. 404, 405 Caton y. Willis, 5 Ired. Ch 48 Catton y. Carlieele, 5 Mad. 204-214 Cawthorn y. Chalie, 2 Sim. & Stu 105 C. B. & Q. B. B. Co. y. Dunn, 62 HI. . . . 121 Central Pacific E. E. Co. y. Dyer, 1 Sawyer 58T Chaffln v. Heirs of Kimball, 23 HI 145 Chalmers v. Chalmers, 4 Gill. &J 45 Chamberlain v. Blue, 6 Blackf 323 Chambers v. Goldwin, 9 Ves 357 Chambers v. Eowe, 36 HI. . .56, 141, 171, 324 Chambers y. Warren, 13 Dl 277 Champlin y. Champlin, 2 Edw. Ch 134 Chandler y. Barrett, 21 La. An 650 Chandler y. Pettit, 1 Paige, Ch 803 Chapin v. Coleman, 11 Pick. 135 Chapman y. Beach, 2 Jac. & W 841 Chapman v. Turner, 1 Atk 114 Chase's Case, 1 Bland 100 Cliase v. Palmer, 12 Shep. 54 64 TABLE OF CASES CITED. 737 Cherry v. Legh, 1 Bligh, N. S 315 Chicago Artesian Well Co. v. Conn. M. Life Ins. Co. 57 111 306 Chicago Dock Co. v. Kinzie, 49 El.... 466, Chichester v. Vass, 1 Muni 269 Checkering v. Hatch, 3 Snm 351 Chicott v. Lequnee, 2 Ves 43 Child y. Brace, 4 Paige, Ch , 401 Childress v. Holland, 3 Hey 320 Chipman v. Thompson, Walker, Ch 65 Cholmley v. Duchess oi Oxford, 2 Atk. 368 Cholmondeley v. Clinton, 2 Jac & W. 354, 377 Chotean v. Rice, 1 Minn 99, 204, 214 Chrishman v. Sutphen, 42 HI 359 Christian v. Crocker, 25 Ark 102 Christianherry v. Christianherry, 3 Blackf. ».. 491, 510 ChriBtie v. Hale, 46 111 535 Chute t. Dacre, 1 Eq. Ca. Ab. 153 City Bank v. Bangs, 2 Paige, Ch. 288, 290 291, 293 Claiborne v. Creditors, 18 La. An 339 Claiborne v. Gross, 7 Leigh 403 Glamorgan v. Guisse, 1 Mo 51 Clapp v. Clapp, 97 Mass 491, 510 Clare v. Clare, 4 C. E. Green, N. J 514 Clare v. Wordell, 2 Vera 241 Clark v. Banner, 1 Dev. & Bat. Ch 397 Clark v. Bell, 2 B. Monr. 45 Clark t. Boyle, 51 HI 599 Clarkv. Byne, 13 Ves 282 Clark v. Henry, 2 Cow..,. 358 Clark v. Lott, 11 Hi '. 484,486, 490 Clark t. Phelps. 6 Johns. Ch 99, 100 Clark v. Quackenboss, 28H1 37 Clark t. Reins, 12 Gratt. Va 822 Clark v. Reyburn, 8 Wallace 391 Clark T. Savier, 7 Watts 322 Clarkv. Thompson, 47 HI 145 Clark v. Tinsley, 4 Rand. 162 Clarke v. Periam, 2 Atk. 43 Clarkson v. Bowyer, 2 Vem 356 Clarkson v. De Peyster, 3 Paige, Ch. 49, 400 Clay v. Turner, 3 Bibb 319 Claycomb v. Cecil, 27 El 580 Clayton v. Frazier, 33 Texas. 324 Clearwater v. Kimler, 43 HI 550 Clement v. Reid, 9 S. &M 318 Clement v. Wheeler, 25N.H 564 Cleveland v. Benton, 11 Vt 818 Clifton v. Haig, 4 Dessau 166 Clitherall v, Ogilvie, 1 Dessau 317 Cloud v. Hamilton, 3 Terg 306 Cloud v. Whitman, 2 Har 195 Ciongh T. Radcliffe, 1 De Gez &8 339 Clowes v. Clones, 9 Jur 517 Clute v. Boal, 8 Paige, Ch 399 Coale v. Barney, 1 Gill & J 819 Coatea v. Woodworth, 13 HI. . .103, 851, 569 47 Cobura v. Tyler, 41 IU 579 Cochrane v. O'Brien, 2 Jones & La. T. 286 Cock v. Evans, Terg. R 164 Cocke v. Gilpin, 1 Rob. Va. 196 Cockrell v. Gurley, 26 Ala. 43 Cody v. Hough, 20 HI 175 Coe v. Turner, 5 Conn 49 Coffin v. Coffin, Jac. E. 564 Coffinv. Cooper, 14Ves 334 Coffin v. Cooper, 6 Ves 51, 160 Cohen v. Carroll, 5S. &M 398, 400 Colclough v. Evans, 4 Sim. 164, 211 Cole v. Choteau, 18 Hi 178, 181 Cole v. VanRiper, 44 HI 121 Coleman v. Lyne, etc., 4 Band. 162 Coleman v. Moore, 3 Litt 312 Coles v. Forrest, 10 Beav 378 Collier v. Collier, 1 Dev 509 Collins v. Carlile, 13 HI 376 Collins v. Collins, 19 Ohio St. B 535 Collins v. Lavenberg, 19 Ala 204 Collins v. Biggs, 14 Wall 854 Collins v. St. Clair, 51 HI 614 Collins v. Townley, 21 N. J. Eq 650 Colson v. Thompson, 2 Wheat 321 Colt v. Wollaston, 2 P. Wms 839 Colton v. Earl of Carlisle, 5 Mad 286 Colton v. Ross, 2 Paige, Ch 58 C. & N. W. R. R. Co. v. Nichols, 67 HI. 102 Columbus Mach. M Co. v. Dorwin, 25 HI 591 Combs v. Proud, 1 Ch. Cas ; 252 Comber's Case, 1 P Wms. 234 Commack v. Johnson, 1 Green, Ch 403 Commercial Bank of Lake Erie v. Meach, 7 Paige, Ch 401 Commercial Mutual M. Ins. Co. v. Union Mutual Ins. Co. 19 How. U. 8 322 Comstockv. Purple, 49 HI 461 Conant v. Sparks, 8Edw. Ch 406 Conesey v. Conesey, 60 111 502, 503, 608 Congden v. Lee, 3Edw. Ch 898 Conklin v. Foster, 57 HI 538 Conley v. Good, Breese 98 Conner v. Board of Supervisors, 10 Minn. 106 Conner t. Drake, 1 Ohio St B. 824 Conover v. Warren, 1 Gilm 581 Contee v. Dawson, 2 Bland 63, 140 Conwayv. Cable, 37HI 535 Conwell v. Claypool, 8 Blackf 160 Conwell v. McCowen, 53 HI 138 Cook v. Arnham, 3 P. Wms 263 Cook v. Bamficld, 3 Swanst 265 Cook v. Bay, 14 How. Miss. 197 Cook v. Hadley, Cooke 63 Cook v. Heald, 21 HI 691 Cook v. Martyn, 2 Atk 68, 166 Cook v. Roflnot, 21111 591 Cook v. Vick, 2 How. Miss. R 824 738 TABLE OE CASES CITED. Oook y. Vreeland, 81111 679 Cook v. Wood, 24 HI 91 Cooley v. Scarlett, 38 111 87, 187, 198 Cooper v. Davis, 15 Conn S66 Cooper v. De Tastel, 1 Taml 283 Cooper v. McGinn, IB 111 569 Cooper v. Tyler, 46 111 322 Cooth v. Jackson, 6 Ves 129 Copen v. Flesher, 1 Bond... 99, 164, 204, 214 Copou.6 v. Kauffman, 8 Paige, Ch. . . f . . 402 Copper v. Wells, Saxon 324 Coquilland v. Snydam, 8 Blackf 143 Corby v. Bean, 44 Mo 47 Corey v. Croskey, 57 111 577 Corey v. Gertaken, 2 Mad 193 Corgan v. Anderson, 30 HI 177, 178 Corneal v. Banks, 10 Wheat 195 Cornell v. Bostwick, 3 Paige, Ch 96 Cornell v. Pierson, 4 Halst. Ch 351 Corning v. White, 2 Paige, Ch.... 401, 404 Cost v. Hose, 17 111 75, 144, 145, 438 Coster v. Murray, 5 Johns. Ch 102 Cottington v. Fletcher, 2 Atk. E 275 Cotton v. Ulmer, 45 Ala. 550 Conlson v. City of Portland, 1 Deady.. 536 Conleon v. Walton, 9 Pet 320 Conntess v. Gifferd, 2 P. Wins. E 152 Connty of Green, v. Bledsoe, 12 111 181 Cowdin v. Cram, 3 Edw. Ch 556, 560 Cowle v. Varnum, 37 111 580 Cowles v. Buchanan, 3 Ired. Ch. K.43, 46, 55 Cowles v. Whitman, 10 Conn 322 Cozine v. Graham, 2 Paige, Ch 114 Craig v. Hone, 2 Edw. Ch 398, 399 Craig v. Leiper, 2 Terg 320 Craig v. The People, 47 111. . 137, 158, 165, 566 Crane v. Decamp, 21 N. J. Eg.. 319 Creeley v. Bay State Brick Co., 103 Mass 136 Crews t. Bnrcham, 1 Black, 0. S 537 Crocker v. Higgins, 7 Conn 62 Crocket v. Lee, 7 Wheat 45, 46, 195 Crompton v. Wombwell, 4 Sim. . . . 203, 204 Cronan v. Frizell, 42 HI 88, 89 Crook v. The People, 16 111 614 Crook v. Andrews, 40 N. T 536 Croskey v. Corey, 48 HI . . . 578, 580, 581, 583 Croskey v. Northern Mannf. Co. 48 111. 306 582,583 Cross v. DeValle, 1 Wall, U. S 307 Crouch v. Hicken, 1 Keen 106 Crouch v. Puryear, 1 Band 565 Crowder v. Turney, 3 Cald. Tenn 108 Crutchfleld v. Patten, 44 Geo 305 Cullom v. Batre, 2 Ala 225, 373 Cullom v. Erwin, 4 Ala 306 Cummings v. Wagoner, 7 Paige, Ch 620 Cunningham v. Sogers, 14 Ala 204 Cunningham v. Stelle, 1 Litt 89 CurtisB v. Brown, 29 111 570 Curtiss v. Martin, 20111 181 Cushman v. Sutphen, 42 111 389 Cutlet v. McDonald, 13 La. An 61 Cutter v. Jones, '52 111 374 Cutting v. Gilbert, 5 Blatchf. C. C 51 D Dahbs v. Dabhs, 27 Ala 196 Dagley v. Cramp, 1 Dick 152 D'Aguilar v. D'Aguilar, 1 Hagg. Ch. B. 3 Eng. Eccl. B 517 Dailey v. Dailey, Wright, O. Ch 492 Dais v. Bouchaud, 10 Paige, Ch 102 Dakin v. Cope, 2 Buss 334 Dalton v. Thompson, 1 Dick 297, 299 Damond v. Mayer, 2 Johns. Ch. E 140 Dana v. Banks, 6 J. J. Marsh 397 Dancer v. Evett, 1 Vern 262 Danforthv. Smith, 23 Vt 57 Daniel v. Bishop, 13 Price 140 Daniels v. Taggart, 1 Gill & J 127, 311 Darcey v. Hull, 1 Vern 358 Darcy v. Lake. 46 Miss 49, 102 Davenport v. Farrer, 1 Scam 457, 458 David v. David, 27 Ala 502 DavieB v. Davies, 55 Barb 510 Davies v. Williams, 1 Sun. 105 Davis v. Collier, 13 Geo 133 Davis v. Davidson, 4 McLean 139 Davis v. Davis, 19 111 491, 509 Davis v. Davis, 2 Keen. 99 Davis v. Davis, 30 HI 182, 513 Davis v. Harrison, 4 Litt 326 Davis v. Leo, 6 Ves 563 Davis v. Mapes, 2 Paige, Ch. E. . . . 140, 160 Davone v. Fanning, 4 John s. Ch 50 Dawson v. Dawson, 7 Ves. 557 Dawson v. Pilling, 16 Sim 114 Dawson v. Sadler, 1 Sim. & Stu 101 Day v. Day, 3 Green, Ch 492 Day v. Perkins, 2 Sandf . Ch 376 Day v. Potter, 9 Paige, Ch. E 234, 23" Deanv. O'Meara, 47 111 438, 444 Dean v. Smith, 23 Wis 656, 557 Deare v. Attorney Gen. 1 Young & Col.. 273 Deatley v. Mnrphy, 3 A. K. Marsh 46 Decordova v. Smith, 9 Texas 320 Deichman v. Deichman, 49 Mo 227 Deininger v. McConnell, 41 HI 175 Delahay v. Clement, 3 Scam 581 Delahay v. McConnel, 4 Scam. 851 De la Hay v. De La Hay, 21 HI 503 De la Vergne v. Everston, 1 Paige, Ch. 66 Del. & H. Canal Co. v. Penn. Canal Co. 21Penn 195 Dell v. Hale, 2 Younge & Call. NewB. . 100 Delliber v. Dolliber, 9 Conn 509 Demaree v. Driekcll, 3 Blackf 171, 173 398, 400 TABLE OF CASES CITED. 739 Demarest v. Wynkoop, 3 Johns. Ch. . . 353 Deuison v. Bassf ord, 7 Paige, Ch. E. . . 140 Dunuy v. Filmer, 2 Freem 262 Dtnnyy. Gilman, 26 Maine 102 Denton v. Denton, 1 Johns. Ch . . . . 557 Derby v. Derby, 6 C. E. Greene, N. J. . 514 Derbyv. Gage, 38 Dl 171 Detillin v. Gale, 1 Sim. & Stn 86 Devanbagh v. Devanbagh, 5 Paige, Ch. 488 Devayues v. Morris, 1 Milne & Craig, 227 238 Devereaux v. Cooper, 11 Vt 134 Dew v. Clark, 1 Sim. & Stn 297 Dewen v. Blake, 44 111 351 De Wolf v. Long, 2 Gilm 171 DeWolf y. Pratt, 48 111 47, 165, 166, 324 DeWolfe v. Long, 2 Gilm 327 DeWolf e v. Strader, 26 HI ...*.. •. 851 Dexter v. Arnold, 5 Mason. . . 249, 252, 253 254, 260, 264, 265 Dexter v. Arnold, 1 Sumner 356 Dexter v. Arnold, 2 Sumner 186 Dexter v. Arnold, 3 Sumner 353 Dickenson v. Codnise, 11 Page, Ch 197 Dickie v. Carter, 42 Dl 548, 549 Dickinson v. Morgan, 8 Dana 195 Dickson v. Todd, 43 111 428 ■ Dilley v. Bernard, 8 Gill & J 46 Dillon y. Francis, Dick 60 Dineley v. Dineley, 2 Atk 103 Dinglcdtne v. Hcrshman, 53 Dl 583 Divilbliss y. Whitmire, 20 111 76 Doble y. Potman, Hardr 308, 314 Dodge v. Perkins, 4 Mason 42, 115 Dolder v. Bank of England, 10 Ves. . . . 158 Donaher y. Prentiss, 22 Wis 281 Donaldson v. Holrfes, 23 111 577, 578 Donne y. Lewis, 11 Yes 201 Donoghue v. City of Chicago, 57 Dl 477 Dormer y. Fortesque, 2 Atk.. 100, 205, 276 Dorseyy. Garey,30Md 569 Dougherty y. Colgan, 6 Gill & J 358 Dougherty y. Hampston, 2 Blackf 318 Dougherty y. Morgan, 6Monr 252, 259 Douglas y. Evans, 1 Overton 88, 89 Douglas v.Shennan,2 Paige, Ch.R.. 230, 241 Donglas v. Wiggins, 1 Johns. Ch. 563 Dow v. Chamberlin, 5 McLean 351 Dowes y. McMichael, 6 Paige, Ch. 113, 128 130 Downo v. Morris, 3 Hare 352 Downing v. Palmater, 1 Monr 565 Doyle v. Murphy, 22 Dl 569 Doyle y. Teas, 4 Scam .. 318, 327 Doyle y. Wiley, 15 111 177 Drew v. Hannan, 5 Price 357 Driver v. Fortner, 5 Porter. 57 Droullard v. Baxter, 1 Scam. 164, 165 Drury v. Molina, 6 Ves 228 Duberry y. Petrie, 1 S. & M. Ch 397. Duke of Cumberland v. Coddrington, 3 Johns. Ch 35B Duman v. Pepper, 43 Geo 193 Dumont v Ruepprecht, 38 Ala 339 Duncan v. Charles, 4 Scam 98 Duncan v. Duncan, 23 Dl 548 Duncan y. Ingles, Breese 267 Duncan v. Morrison, Breese 613 Duncan y. Wickliffe, 4 Scam 326 Duncan y. Wilson, 32 111 56, 142 Dundant v. Redman. 1 Vern 105 Dungey y. Angove, 2 Ves. Jr 282, 284 Dnnham v. Eaton & H. R. R. C. 1 Bond 43, 45 . Dunlap v. Wilson, 32 Dl. . 351, 352, 374, 375 Dunn v. Keegin, 3 Scam. ..90, 126, 127, 151 Dunn v. McNanght, 38 Goo 342 Dunning v. Dunning, 37 Dl. . . . 97, 201, 451 Dunscomb y. Dunscomb, 2 Hen. & M. 570 Dunyan y. Vatlier, 3 Blackf. 400 Durant v. Redman, 1 Vern 107 Dnrbin y. Barber, 14 Ohio 840 Durlingy. Hammer, 20 N.J. Eq.49, 100, 102 Dweny. Blake, 44 Dl 358 Dwight y. Humphreys, 3 McLean 60 E Eager y. Price, 2 Paige, Ch 399, 404 Eager y. Price, 2 Paige, Ch... 210, 215, 216 Earle v. Holt, 5 Hare 99 Earl of Bat hurst v. Burden, 3 Bro. Ch. Ca 565 Earl of Portsmouth v. Fellows, 6 Mad. 52 Earl of Suffolk y. Green, 1 Atk 296 East India Co. v. Edwards, 18 Ves. .282, 283 East India Co. v. Hinchman, 1 Ves. Jr. 107 Easton v. Altum, 1 Scam 74 Eberly y. Groff, 9Harris 55 Edgar y. Cleyenger, 2 Green, Ch 203 Edmeston y. Lyde, 1 Paige, Ch. 398, 400, 403 Edmundeon v. Mpseby, 4 J. J. Marsh. 249 Edwards y. Beaird, Breese 70, 94 Edwards v. Carroll, 2 Bro. P. C 263 Edwards v. Chilton, 4 W. Va 44 Edwards v. Edwards, Wright, O. Ch. . . 611 Edwards v. Helm, 4 Scam 138 Edwards v. Massey, 1 Hawks 45, 46 Egremont v. Cowell, 5 Beav 44 Egremont v. Hamilton, 1 B. & Beat. . . 234 Eidenmuller v. Eidenmuller, 37 Cal 502 Eldridge v. Jenkins, 3 Story 351 Ellsworth y. Curtis, 10 Paige, Ch. R. 153, 154 Ellzey y.Lane, 2 Hen. & M 250 Elmendorf v. Delancy, Hopk. 58 Elston y. Blan chard, 2 Scam 47 Embree y. Embree, 53 Dl 497, 502 Emerson v. Clayton, Dl 121 Emerson v. Dallison, 1 Ch 60 English v. Foxall, 2 Pet 57 740 TABLE OF CASES CITED. Ennor v. Thompson, 46 HI 351 Enos v. Hunter, 4 Gilm 57 Enos v. Hunter, 4 Gilm 556 Ensign v. Colburn, 11 Paige, Ch 565 Ellsworth y. Lambert, 4 Johns. Ch.. 205-206 373 Errington v. Attorney General, Bumb. 283 Errissman v. Errissman, 25 111. . . . 512, 523 Estabrook v. Hapgood, 10 Maes 478 Estep v. Watkins, 1 Bland 42, 45 Eubank v. Hampton, 1 Dana 320 Evans v. Billings, 5 Ala 166 Evans v. Clement, 14 HI 251, 252, 253 Everett v. Winn, 1 S. M. Ch. K 168 Ewinsv. Gordon, 49 N.H 318 Executors, etc. v. Roberts, 1 Wash. C. O.K. 128 Ex parte Broadbent, 1 Mont. & A. 340 Ex parte Dunham, 29 Leg. fat 404 Ex parte McElwain, 29 El 464 Exparte Smith, 16 111 557 Ex parte Tunno, 1 Bailey, Ch. . . 570 Eyere v. Dolphin, 2 Ball & B 129 F Fahs v. Roberts, 54 111 203 Fairthorne v. Weston, 3 Hare 341 Fallon v. Railroad Co. 1 Dillon 321 Fallowes v. Williamson, 11 Ves. 229,233, 234 Falls v. Carpenter, 1 Dev. & Bat. Ch.. 320 Fancher v. Ingraham, 6 Blackf. . . . 100, 101 Farebrother v. Prat tent, Dan. R. . . 282, 289 Farley v. Blood, 10 Foster 279 Farmers* Loan & Trust Co. v. Seymour, 9 Paige, Ch. R 229 Farnsworthv. Agnew, 27111 96 Farusworth v. Strasler, 12 HI 182 Farrant v. Lovell, 3 Atk. .- 563-564 Farrcll v. McKee,36Hl 171 Farrell v. Parlier, 50 HI 385 Farwellv. Meyer, 35 HI.. „ 165 Fashv. Blake, 38 HI *. 177 Fawkes v. Pratt, IP. Wms 58 Fay v. Jewett. 3 Edw. Ch 160 Feary v. Stephanson, 1 Beav. Ch. Pr. . . 206 Felch v. Hooper, 20 Maine 65 Fell v. Brown,2Bro. Ch. R 356 Fellows v. Fellows, 4 Cowen. .... 135, 402 Fellows v. Fellows, 8N.H 502, 503 Fellows v. Shelmire, 5 Blackf 88, 89 Ferguson v. Ferguson, 3 Sandf. Ch. .. 492 Ferguson t. Paschall, 11 Miss 322 Ferguson v. Sutphan, 3 Gilm. 88 Ferris v. Ferris, 8 Conn 488 Ferrisv. McClure, 36 111 306 Field v. Jackson, 2Dick 565 Field v. Ross, 1 Monroe 197 Field v. Schieffelin, 7 Johns. Ch.. 307, 312 813, 314 Finch v. Lord Winchelsea, 1 Eq. Ca. Ab 287, 228 Finch v. Martin, 19 HI >. 63 Findlay v. Smith, 6 Munf 564 Fish v. Miller, 5 Paige, Ch 127 Fisher v. Fisher, 54 111 75, 76, 144, 182 Fisher v. Fisher, 32 Iowa 533 Fisher v. Stone, 3 Scam 45, 103, 556 Fishli v. Fishli, 2 Litt 532 Fitch v. Boyd, 55 HI 317, 318 Fitch v. Creighton, 24 How. V. 8 49 Fitts v. Davis, 42 111 535, 539 Fitzhugh v. Lee, Amb 296 Fitzpatrick v. Beatty, 1 Gilm 321 Fitzpatrick v. Beaty, 1 Gilm 44, 137 Flack v. Holm, 1 Jac. & Walk 555 Flaglerv. Crow,40Ill 250 Flint v. Field, 2 Anst 43,44, 53 Fleece v. Russell, J3 HI 313 Fleetwood v. Green, 15 Ves 334 Fletcher v. Holmes, 32 Ind 374 Fletcher v. Wilson, 1 S. & M. Ch. . 306, 307 Flinn v. Owen, 58 111 547,548 Fludyer v. Cocker, 12 Ves '. 334 Fogg v. Johnston, 27 Ala 339, 340 Foley v. Hill, 4Milne&Craig 131 Fonda v. Sage, 48 N. Y 536 Foot v. Van Raust, 1 Hill, Ch. E. 186 Foote v. Foote, 22 HI 523 Forbes v. Whitlock, 3 Edw 104 Ford v. Ford, 104 Mass 502 Ford v. Peering, 1 Ves. Jr 99 Forman v. Hanfray, 2 Ves. & B. . 340, 341 Forney v. Ferrell, 4 W. Va 549 Forni v. Tesson, 51 HI 613 Forrest v. ForreBt, 3 Abbott, N. T 533 Forrest v. Forrest, 5 Boajv • 533 Forrest v. Robinson, 4 Porter, Ala 108 Forsyth v. Baxter, 2 Scam 181 Forth v. Town of Xenia. 54 HI. . . . 187, 614 Fobs v. Haynes, 31 Maine 133 Foster v. Deason, 6 Mad. R 218 Foster v. Hodgson, 19 Ves 102, 263 Foster v. Hunt, 3 Bibb 167 Foster v. Swasey, 2 W. & M. C. C 103 Fowler v. Fowler, 4 Abbott, N. T 518 Fowler v. Lewis, 3 A. K. Marsh. 114 Fowler v. Sanders, 4 Call 45 Fraglerv. Crow, 40 HI 200 Frame v. Frame, 16 HI 200 Francisco v. Hendricks, 28 111 464 Franklin v. Eeeler, 4 Paige, Ch 161 Franklin v. Wilkinson, 8 Munf 251 Eraser v. Hart, 2 Strobh. Eq 47 Frasnre v. Zimmerly, 25 HI 97 Freake v. Horsley, 2 Freem 373 Freeman . Freeman, 43 N. T. 324 Freeman v. Keagan, 26 Ark. 17 French v. Create, Breese 31 French v. Dear, 5 Ves 60 TABLE OF CASES CITED. 741 Friebie v. Ballance, 4 Scam S18 Fryrear v. Lawrence, S GUm 143 Poller y. Gibson, 2 Cox 283 Fulton v. Bailroad Co. 1 Dillon 333 Fulton Bank y. Beach, 6 Wend 140 Fulton Bank v. Beach, 3 Paige, Ch. R. . 140 Fulton Bank v. N. Y. & S. Canal Co. 4 Paige, Ch 803 Fnrman y. Coe, C. C. E 850 G Gadsden v. Lord, 1 Dessau. 869 Gage y. Billings, 56 HI 539 Gage y. Chapman, 56 HI 537, 539 Gage Y. Roorback, 56 111 539 Gaines y. Chew, 2 How. TJ. 8 :.. 49 Gaines y. Hennen, 24 How. U. S 490 Gaines Y. Keif, 13 How. TJ. S 490 Galatian y. Erwin, Hopk. Ch. . 98, 306, 307 314 Galbraith y. Galbraith, 5 Kansas 385 Gall&her y. Roberts, 1 Wash. C. C 98 Gardiner y. Deling, 1 Paige, Ch 565 GardnerY. Emerson, 40 HI.... 349, 859, 353 Gardner y. Gardner, 83 Wend 550 Gardner v. Hall, 89 HI 581 Gardner y. Kersey, 39 Geo 46 Garland y. Brit ton, 12 HL 74 Garlick y. Strong, 3 Paige, Ch ■ 106, 164 GarnerY. Beaty, 2 J. J. Marsh . 313 Gamett v. Mason, 2 Brockenbrough, 8 K 331 , Garretson y. Weaver, 3 Edw. Ch. . 339, 341 Garrett Y. Moss, 22 HI 349,851,252 Garrett Y. Stevenson, 3 Gilm 578, 581 Garth y. Cotton, 1 Dick 563 Garth v. Wood, 2 Atk 815 Gasque v. Small, 2 Strobh. Eg. 317 Ganlt y. Hoagland, 35 Dl 90 Gayle y. Singleton, 1 Stew 167 Geizer v. Bnrk, 3 S. & M 141 Gentry v. Thornberry, 3 Dana 854 German v. Machine, 6 Paige, Ch. R 159 Gcnnond y. Germond, 4 Paige, Ch 538 Gerrish y. Black, 104 Mass 359 Gaty y. Casey, 15 HI 583 Getchell v. Jewett, 3 Grcenl 323 Getzler v. Saroni, 18 Dl. . . 849, 254, 256, 259 Gibbs v. Blackwell, 37 111 : 324, 326 Gibson y. Carson, 3 Ala 44, 46 Gibson v. Chehone, 5 Pick 359 Gibson t. Clarke, 2 V. & B 334,335 Gibson v. Golthwaite, 7 Ala 381, 286 Gibson v. McCormick, 10 Gill £ J. 57 Gibson v. Ree>e, 50 Dl 89, 194. 205 Gibson y. Smith, 2 Atk 564 Gilbert y. Colt, Hopk. Ch 560 Gilchrist v. Buie, 1 Der. & Bat. Ch. R. 850, 859 Gilham y. Cairnes, Breese 68 Gill v. Clagett, 8 Gill & J. 50 Gillett v. Hall, 13 Conn 804-214 Gilmer v. Felhonn, 45 Miss 305 Gilmore v. Nowland, 26 HI 98 Giles y. Giles, 1 Keen 315 Glassington y. Thwaites, 2 Russ. R. 153-154 Glastenbnry v. McDonald, 44 Vt 47 Gleason v. Bisby, 1 Clarke 556 Gleason v. Gage, 7 Paige, Ch 401, 405 Glegg y. Legh, 1 Bligh, N. S. 315 Glover y. Fisher, 11 111 320 Gold v. Ryan, 14 HI 464 Goodell v. Field, 15 Vt 818 Gooding v. Beiley, 60 N. H SOB Goodman v. Whitcomb, 1 Jac. & W.. . 341 Goodrich v. Hanson, 33 111 181 Gorden v. Hobart, 2 Sum 875 Gorden v. Lowell, 81 Maine 403 Gordon v. Gordon, 3 Swanst 43, 200 Gore v. Cather. 23 111 458 Gore v. Pettis, 4 Sannd. Ch 42 Gorelin Y. Holland, 3 Ired. Ch 167 Gorman v. McCnllock, 5 Bro. P. C 264 Gondy Y.Hall, 36111 145 Gould v. Barnes, 1 Dick 233 Gould v. Rvon, 14 HI 67 Gould y. Womack, 2 Ala 318 Gourley v. Woodbury, 43 Vt 487 Gowan v. Jeffries, 2 Ashin 339, 348 Gowkoski y. Day, 16 HI 323 Graham v. Coape, 9 Sim 154 Graham v. Elmore, Hairing. Ch 90, 197 Graham v. Skeken, 16 Legal Int 351 Grant v. Dnane, 9 Johns 353 Grant v. Van Schoonhoven, 9 Paige, Ch. ti4 Graves v. Miles, Harring. Ch 204 Gray v. Baldwin, 8 Blackf 505 Gray v. Campbell, 1 Ross. & My 83 Gray v. Davis, 3 J. J. Marsh 326 Gray v. Hays, 7 Humph 196 Gray v. Regan, 23 Miss. Cush 135 Greathonse v. Kipp, 3 Scam 103 Green v. Barrett, 1 Sim 339 Green v. Campbell, 2 Jones, N. C. Eq. . 48 Green v. Dodge, 6 Ham 80, 99 Green v. Graig, 47 Mo 98 Green v. Massie, 21 Gratt. Va. 868 Green v. Mumford,4R. 1 879 Greenlcaf v. McDowell, 4 Ired. Eq. R.. 219 Greenman v. Harvey, 53 HI 76 Greenougb v. Gaskcll, 1 Mylne & Keen. 133 Greennp v. Sewell, 18111 444 Greenup v. Strong, 1 Bibb.., 319 Greenway v. Thomas, 14 111 397, 3"K Greenwich Bank v. Loomis, 2 Sandf. Ch. R 850. 252 Greenwood v. Atkinson, 4 Sim 2r-1 Grefcg v. Reufrews, 24111 142 Gregor v. Mnlceworth, 2 Ves 2ti4 742 TABLE OF CASES CITED. Gregory v. Gover, 19 HI 485 Gregory v. Molesworth, 3 Atk 53, 54 Gregson v. Oswald, 1 Cox. 338 Gresham v. Peterson, 25 Ark. 555, 556 Grey v. McCance, 11 111 815 Griffin v. Doe, 12 Ala 197 Griffin v. Griffin, 21 How. N. Y 518 Griffin v. Griffin, 8 B. Monr 509, 526 Griffin v. Lovell, 42 Miss 373 Griffing v. Gibb, 2 Black, U. S 99 Griffith v. Frederick Co. Bank, 6 Gill & J 318 Griffith v. Ricketts, 3 Hare 230 Griffith v. Wood, 11 Ves. 138,139 Griggs v. Gear, 3 Gilm. ... 225, 249, 251, 254 256, 260 Griggs v. Thompson, 1 Geo. Decis 101 Grobb v. Cnshman, 45 111 88, 174, 186 Grnbb v. Crane, 4 Scam 88, 90 Gnflford v. Gnilford, 9 Conn 487 Gnionv. Pickett, 42 Miss 570 Gunnell v. Bird, 10 Wall. U. S. K 183 Gwin T. HarriB, 1 S. & M. Ch 90 H Haffner v. Dickson, 2 Har. & J 320 Hagthorp v. Hook, 1 Gill & J.. 134 Haines y. Beach, 3 Johns. Ch 373 Haines t. Haines, 6 Md 323 Hale v. Wilkinson, 21 Gratt. Va. 317 Hall v.Davis, 44 HI 145 Hall v. Hall, 4 N. H 509 Hall v. Hall, 12 Beav 340 Hall v. Hnddeston, 2 P. Wms 299 Hall v. Towne, 46 Dl 195 Hallock v. Hallock, 4 How. N. T 532 Hamersley v. Wickoff, 8 Paige, Ch 61 Hamilton v. Cnmmings, 1 Johns. Ch. . . 536 Hamilton v. Dnnn, 22 Dl 97, 575 Hamilton v. Lnberken, 61 Dl 354 Hamilton v. Quigley, 46 Dl 539 Hamilton v. Stokes, 4 Price 339 Hamilton v. Stnart, 59 HI 614 Hammond v. Hammond, 1 Clarke, N.T. 619 629, 557 Hampton v. Hodges, 8 Ves 565 Hand v. Dexter, 41 Geo 102 Handly v. Young, 4Bibb 195 Handsand v. Hardy, 18 Ves 368 Hankinson v. Lombard, 25 111 177 Hanfcs v. Baber, 53 Dl 341 Hanna v. Katekin, 43 Dl . , 138, 306 Hammm v. Thompson, lJ3cam 74 Hansley v. Hansley, 10 Ired. Eq. •. . 514 Happy v. Morton, 33 Dl 570 Happy v. Morton, 33 111 47 Hardemann v. Harris, 7 How; U. S 161 Harding v. Bickford, Seaton Decrees.. 333 Harding v. Handy, 11 Wheat 46, 186 Harding v. Parshall, 56 Dl 322 Hardy v. Reeves, 4 Ves 102 Harkness v. Underhill, 1 Black 318 Harmon v. Campbell, 30 111 88, 90 Harmon v. Harmon. 16 Dl '. 503, 506 Harper v. Ely, 56 111 371 Harper v. Lamping, 33 Cal 339 Harrington v. M Lean, 1 Phillips, X C. Eq 104 Harrington v. Slade, 22 Barb. N. Y. . . . . 204 Harris v. Carter, 3 Stewart 62 Harris v. Galbraith, 43 Dl 94, 103, 268 Harris v. Harris, Tnr. & Rnss 315 Harris v. Ingledew, 3 P. Wms 157 Harris v. Johnson, 3 Yonng & Coll 238 Harris v. Knickerbocker, 5 Wend 44 Harris v. Pollaijd, 3 P. Wms.. 113, 233, 234 237 Harris v. Reese, 5 Gilm 140 Harrison v. Armitage, 4 Mad 340 Harrison v. Hogg, 2 Ves. Jr 49, 104 Harrison v. Lemon, 3 Blackf. 351 Harrison v. Nixon, 9 Pet 43 Harrison v.. Ramsey, 2 Ves 200 Harrison v. Tennant, 21 Beav 339 Harrison v. Urann, 1 Story 115 Harsha v. Reid, 45 N. Y 324 Hart v. Lindsay, Harring. Ch. 90, 91 Hart v. McKeen, Walker, Ch 47, 50 Hartwell v. Black, 48 Dl 325, 614 Hartwell v. Townsend, 2 Bro. P. C. 264 Harvey v. Branson, 1 Leigh 197 Harvey v. Sullens, 46 Mo 549, 550 Harvey v. Thornton, 14 Dl 373 Harward v. St. Clair & Monroe Levee and Drainage Co. 51 Dl 51, 65 Harwood v. Kirby, 1 Paige, Ch. 427 ■ Hasbrook v. Sinister, 4 Barb 204 Haseltine v. Brickcy, 16 Gratt Va 281 Hassett v. Ridgely, 49 Dl 62, 428 Hatchv. Bnflalo, 38 N. Y 535 Hatch v. Cobb, 4 Johns. Ch. R. 318 Hatcher v. Hatcher, 1 McMullen, Ch. . . 326 Hathoway v. Foy, 40 Mo 279,280 Haven v. Wakefield, 39 HI 338 Hawes v. Hawes, 33 111 513 Hawkins v. Clement, 15 Mich 100 Hawkins v. Hunt, 14111 325 Hawkins v. Taber, 47 HI 438 Hawks y. Lands, 3 Gilm. 181 HawK'y v. Clowes, 2 Johns . Ch 564 Hawley v. Cramer, 4 Conn 135, 269 Hawley v. Sheldon, Harring. Ch 318 Hayes v. Caldwell, 6 Gilm 133, 268, 275 Hayes v. Johnson, 4 Ala 279 Hayes v. Reese, 34 Barb 340 Hays v. Borders, 1 Gilm 177 Hays v. Mays, 1 J. J. Marsh 196 Haythorp v. Hook, 1 Gill & J 55 ' Hay ward v. Carroll, 4 Har. & J. . . 42, 45 TABLE OP CASES CITED. 743 Heacock v. Durand, 42 111 164,397 Heartt v. Corning, 3 Paige, Ch. 114, 126, 129 Heath v. ErieB. R Co. 8 Blatchf . . 99, 100 Heath y. Erie E. R. Co. 9 Blatchf 268 Hedden v. Hedden, 6 C. E. Greene, N. J. 492 Hedrick v. Hem, 4 W. Va 325 Heesv.Voss, 62 111 144, 182 Hendenv. Henden, 6C. E. Greene 492 Henderson v. Cammings, 41 HI 102 Henderson T. Hays, 2 Watts 317 Henn v. Walsh, 2 Edw. Ch 338 Henry v. Davis, 7 Johns. Ch 358 Henry Co. v. Winnebago Drain Co. 62 111 ; 47, 10S Henser v. Harris, 42 HI 549 Hepburn t. Aula, 5 Cranch 321 Hepburn v. Dunlap, 1 Wheat...: 334 Herbert v. Hobbs, 3 Stewart... 45 Hercy v. Dinwoody, 2 Ves. Jr. 234 Herrington v. Hubbard, 1 Scam 62 Hester v. Hooper, T S. &. II 318 Hester v. Weston, 1 Vem 106 Hewett v. Dement, 57 HI 161 Hickenbotham v. Blackledge, 51 HI. . 62, 100 101, 145, 428,~438 Hickey v. Forristal, 49 HI 107 Hickman t. Cooke, 3 Humph 50' Hickman t. Haines, 5 GOm. 37, 96 Hickson v. Aylward, 3 Molloy 314 Hiern v. Mill, 13 Ves - 57 Higgen v. Ferguson, 14 HI 578 HUdyard v. Cressy, 3 Atk. .128, 131, 132, 152 Hill v. Adams, 2 Atk. 357 Hill t. Bishop, 25 HI 576 Hillv.HiU, 10 Ala 603 Hilliardv. Scorille, 42 HI 427 Hilliary v. Hurdle, 6 Gill * 57 Hilton t. Barrow, 1 Ves. Jr 305 Hindman v. Taylor, Dick. E 275 Hitchell v. Hayne, 2 Sim & Stu 281 Hitt v. Ormsbee, 14 HI 142, 144 Hoarv. Harris, 11 HI 62,64, 536 Hobart v. Abbott, 2 P. Wms.. 356, 357, 385 Hobson v. McArthnr, 16 Pet 57 Hodgen v. Guttery, 58 HI 35, 92, 538 Hodges v. Mulliken, 1 Bland.. 249, 254, 255 Hodges v. Smith, 1 Coi's Ca 291 Hodgins v. White, 2 Ired. Ch 45 Hodgkin v. Longden, 8 Ves. E 273 Hodle t. Healey, Mad. & Geld 353 Hodson v. Ball, 11 Sim 218 Hodson v. Bntter5eld, 2 Sim. & Stu. . . 158 Hoffman v. Shields, 4 W. Va 402 Hogan v. Walker, 14 How. H. S 397 Holbrook v. Prettyman, 44 HI 814 Holbrook v. Winson, 23 Mich 536 Holbrook v. Worcester Bank, 2 Curtis. 353 Holder v. Mount, 2 J. J. Marsh 225 Bold.- worth v. Holdsworth, 2 Dick. 205 Holleclan v. Johnson, 2 Geo. Decis 101 Holliganv. C. & E. I. R R Co. 16 HL. 47 Hollingshead'B Case, 1 P. Wms 234 Hollingsworth vs. McDonald, 2 Har. & J. 249, 250, 255 Hollister v. Hollister, 6 Barr 509 Holloway v. Galloway, 51 HI 548 HoknaD v. Bank, etc. 12 Ala. 388 Holman v. Holman, 3 Dessau 45 Holmes v. Field, 11 HI 64 Holmes v. Holmes, 2 Lee 517 Holmes v. Holmes, Walk 510, 517 Holmes v. Stateler, 57 111 613, 614 Holmes v. Waring, 8 Price 108 Holtv. Rogers,8Pet 318, 320 Hony v. Hony, 1 Sim. Walker v. Walker, 3 Kelly 134 Wall v. Stubbs, -2 V«». SB 126 Wallace v. Hawley, 4 J. J. Marsh' to Wallace v. McLaughlin, 57 111 321 Waller v. Taylor, 42 Ala lo2 Wallwork v. Derby, 40 111 56, 140, 141 Walsh v. Reis, 50 HI 4T7 Walsh v. Smythe, 3 Bland 168. 169 Walton v. Crowley, 14 Wend 351 Walton v. Van Mater, Halst. Dig 193 Walts v. Waddle, H Pel 319 Walworth v. Holt, 4 Milne & Craig. . . . 341 Ward v. Davidson, 2 J. J. Marsh 313 Ward v. Dewey, 16 N. Y. . . . 536 Ward v. Jewett, Walker 88 Ward v. Owens, 12111 187 Warner v. Campbell, 26 111 175 Waruerv. Hilui, 1 Gilm 385 Warner v. Tomlinson, 1 Root 196 Warren v. Richmond, 53 111 47, 319 Warren v. Warren, 56 Maine 49 Warring v.Mackreth, Forrest, Ex. Rep. 273 Warrington v. Wheatstone, 1 Jac. 283, 388 Washburn v. Dewey, 17 Vt. 323 Washburn v. Washburn, 5 N. H 493 Washington etc Road v. State, 19 Md.. 99 Waters v. Brown, 7 J. J. Marsh 321 Waters v. Glanville, Gilb. R 132 Waters v. Howard, 1 Md. Ch. Decis.... 322 Waters v. Taylor, 2 Ves. & B 840, 341 Waters v. Taylor, 15 Ves. ." 340 Waters v. Travis, 9 Johns. R 320 Watkins v. Bush, 2Dick 107 Watkyns v. Watkyns, 2 Atk. 43 Watson v. Cox, llred. Ch 50 Watson v. Hunter, 5 Johns. Ch 565 Watts v. Crawford, 11 Paige, Ch 205 Watts v. Lawrence, 8 Paige, Ch. 96 Watts y. Waddle, 6 Pet 321 Waugeiin v. Goe, 50 HI. . 88, 95, 98, 103, 108 615 Waugh v. Robbins, 38 Dl 44 Weaverv. Wilson, 48 HI 388 Webb v. A. M. & F. Ins. Co. 5 Gilm. 172, 177 Webb v. Pell, 3 Paige, Ch. R... 251, 552, 255 256, 265 Webster v. Folsom, 58 Maine 898, 402 Webster v. French, 11 Dl 63, 827 Webster v. Webster, 55 HI 44 Weedv. Pierce, 9 Cow 398 Weedv. Terry, 2Doug 322 Weider v. Clark, 27 HI 143 Weirickv. DeZoya,2 Gilm. 47 Wellealy v. Wellealy, 17 Sim 218 Welsh v. Bayard, 21 N. J. Eq 8S6 756 TABLE OF CASES CITED. Welsh v. Byrns, 38 111 612, 614 Welsh v. Lewie, 31 111 241 Wells v. Wood, 10 Ves 152 Welton v. Copeland, 7 Johns. Ch 427 Wendell v. New Hampshire Bank, 9 N. H 369 Wener v. Heintz, 17 111 285 West v. Fleming, 18 111 575, 581 • West v. Hall, 3 Har. & J 46 West v. McCarty, 4 Blackf 397 Vestv. Randall, 2 Mason 49, 63 West v. Sohnebiy, 54 111 47, 536 West v. Williams, 1 Md. Ch. Decis 158 West. Un. Teleg. Co. v. P. & A. Teleg. Co. 49 111 80, 313, 316 West t. Walker, 6 Blackf. 557 Wcsteott v. Cady, 5 Johns. Ch. R 246 Westcott v. Minn. Mining Co. 23 Mich. 62 Wetherell v. Collins, 3 Mad 357-358 Wetherell v. Ohlendorf , 61 111 580 Wetherf ord v. James, 2 Ala 197 Wheeler v. Kinzie, 49 111 466 Wheeler v. Trotter, 3 Swanst 43 Wheeler v. Wheeler, 18 111 523, 533 Whispell v. Whispell, 4 Barb 509, 526 Whi6tlerT. Webb, Bumb 357 Whitcomb v. Golding, 2 P. Wms 61 Whitcomb v. Mnrchin, 5 Mad 206 White v. Bnloid,2Paige, Ch.. 307, 312, 314 316 White v. Delachneider, 1 Oregon 102 White v. Hoffackcr, 27 111 182 White v. Law, 7 Vt 318 White v. Lewis, 2 A. K. Marsh 45 White v. Morrison, 11 111. . . 44, 89, 170, 187 White v. White, 45 N. H 514 White v. Taw, 7 Vt 43, 44 Whitehurst v. Coleen, 53 111 37 Whitemarsh v. Campbell, 1 Paige, Ch 161,165, 168 Whitenack v. Stryker, 1 Green, Ch 550 Whiteside v. Pulliam, 25 111 183 Whiting v. Bank of U. S. 13 Pet.197, 250, 252 Whiting v. Rush, 2 Tounge & Coll 153 Whiting'v. White, Coop 353 Whitney v. Mayo, 15 111 62, 63 Whitney v. McKenney, 7 Johns. Ch. . . 373 Whitney v. Whitney, 5 Dana 50 Whittaker v. Degraffenreid, 6 Ala 45 Whittingham v. Bnrgoyne, 3 Anst 104 Wichalse v. Short, 8 Bro. P. L 127 Wickley v. Thompson, 44 111 94 Wiggin v. Mayor, etc. 9 Paige, Ch. 46 Wightman v. Hart, 87 111 142 Wightman v. Hatch, 17 111 398, 400 Wigley v. Whitaker, IBeavan 315 Wilber v. Collier, 1 Clarke 166 Wilbur v. Almy, 12 How. V.S 373 Wilbur t. Collier, 1 Clarke 404 Wilday v. Webster, 42 111 56, 142 Wileyv. Platter, 17 HI 312 Wiley v. Sutherland, 41 111 613 Wilford v. Beaseley, 3 Atk 194 Wilkes v. Rogers, 6 Johns. Ch. 43, 186 Wilkinson v. Beal, 4 Mad 57 Wilkinson v. Lovell, 2 Dick 234 Wilkinson v. Yale, 6 McLean 397, 398 Willard v. Taylor, 8 Wallace 326 Willenborg v. Murphy, 36 111. . . 56, 140, 141 Willetts v. Burgess, 34 111 ' 350 Willhite v. Pierce, 47 111 89, 182, 187 Williams v. Bishop, 15 111 189, 190 Williams v. Chapman, 17 111.. . 576, 583, 591 Williams v. Cooke, 10 Ves. R„. 227 Williams v. Mattocks, 3 Vt 320 Williams v. Soutler, 55 111 130 Williams v. Springfield, 1 Vera 358 Williams v. Stewart, 3 Meriv 99 Williams v. Wiggand, 53 HI 426, 42T Williamson v. Champlin, 1 Clarke 875 Williamson v. New Albany & S. R. H. Co. 2 Red. Railw 371 Williamson v. Williamson, 1 Johns. Ch. 509 Williamson v.Wilson, 1 Bland. 340, 342, 401 Willis t. Henderson, 4 Scam. .. 56, 63, 140 141 Wilson v. Geislcr, 19 HI 385 Wilson v. Greathouse, 1 Scam 75 Wilson v. Greenwood, 1 Swanst 340 Wilson v. Lussen, 5 Cal 338 Wilson v. Nettleton, 12 HI 96 Wilson v. Webb, 2 Cox 254 Wilson v. Wilson, 23 Md 102 Wilson v. Wilson, Wright, O. Ch 511 Wilson v. Wilson, 2 Hagg. Ch. R. 517 Windham v. Windham, Freem 200 Windsor v. Windsor, 2 Dick 58 Winkler v. Winkler, 40 HI. 45, 46, 103, 614 Winn v. Albert, 2 Md. Ch. Decis 210 Winnipiseogee Lake Co. v. Worster, 9 Foster. , 42 Winslow v. Newlan, 45 HI 177 Winston v. Johnson, 2 Munf 253, 254 Wisev. Twiss, 54 111 164, 166 Wiser v. Blackley, 2 Johns. Ch. R. 249, 250 253,256 Wisner v. Barnet, 4 Wash. C. $... 99, 102 Witeman v. Witeman, 45 111 523 Witherspoon v. Carmichael, 6 Ired. Eq. 47 Wolf v Wolf, Wright, Ch.._ 514 Wolfe v. Wolfe, 3Har. & J 133 Wood v. Beadel, 3 Sim 59 Wood v. Genet, 8 Paige, Ch 44 Wood v. Gosa, 24111 96 Wood v. Keyes, 6 Paige, Ch i 201 Wood v. Mann, 1 Sumner 115, 135, 161 Wood v. Mann, 2 Sumner 254 Wood v. Morrell, 1 Johns. Ch 134 Wood T. Rowe, 2 Bligh 114 Wood v. Scott, 14 Vt 65 TABLE OF CASES CITED. \#>od v. Strickland, 2 Yes. & B 131 Wood v. Wood, 2 Paige, Ch 618 Woody. Wood, Sired. Eq 510 Woodside v. Woodside, 21 HI 190 Woodward v. Astley, Bund 95 Woodward v. Harris, 2 Barb. E 321 Woodward v. Schatzell, 3 Johns. Ch.. . 560 Woodward v. Woodward, 1 Dick 205 Woodworth t. Huntoon, 40 HI 195 Wooley v. Stone, 7 J. J. Marsh 397 Woolley v. Magie, 26 m 458 Wooster v. Woodholl, 1 Johns. Ch 90 Wooto v. Tucker, 2 Vern 263,265 Worthington v. Lee, 2 Bland 154 Wray v. Hutchinson, 2 Myine & Keene 203 Wray t. Wray, 19 Ala. 492 Wray v. Wray, 33 Ala. 492 Wright v. Atkyns, 1 Ves. & B 59 Wright v. Bates, 13 Vt 358 Wright v. Bond, 11 Ves 334 Wright v. Dane, 22 Pick 42,44, 45 Wright v. Howard, 6 Mad 164 Wright t. Langley, 36 HI 374 Wright v. McNeely, 11 HI 827 Wright v. Wright, 3 Texas. 503 Wychv. Meal, 3 P. Wms. 103 Wylder v. Crane, 53 111 . . 56, 103, 141, 152 Wynkook v. Cowing, 21 HL 142 Wynn v. Morgan, 7 Ves 334 Wynn v. Smith, 40 Geo 317 Wynne v. Jackson, lMcClel.&Younge. 100 Y Tarborongh v. Thompson, 3 S. & M.. . 279 Yates v. Monroe, 13 111. . . 251, 253, 267, 278 Yates v. Tisdale, 3 Edw. Ch 280, 288 Youngv. Keighly, 16 Ves 254 Young v. Overseers, etc 2 Green, N. J. 312 Young v. Yonng, 4 Mass. 498 Youngblood v. Scamp, 3 S. & M 61 Yonnge v. Forgey, 4 Heyw 251 z Zoll v. Campbell. S W. Va 270 TABLE OF ADDITIONAL CASES CITED IN SECOND EDITION. A Adams v. Adams, 79 HI...'. 570 Adams v. Kobertson, 40 HI 657 Adams v. Russell, 85 HI 611 Addix v. Fahnestock, 15 HI 654 Adlardv Adlard. 65 111 140 Alley v. Supervisors. 76 HI 281 Ambre v. Weishaar, 74 HI 548 Ambrose v. Weed, 11 HI 659 Andrews v. Andrews, 69 III 524 Andrews v. Knox Co., 70 HI 141 Angles v. Angles, 81 HI 492 Armstrong v. The People, 74 HI 658 Attorney General v. HI. Agr. College, 85 HI 570 Austin t. Bainer, 40 HI 674,675, 677 B Babbitt v. Babbitt, 69 HI 526 Bakerv. Palmer,83Dl 38 Ballance v. Leonard, 40 HI 663, 679 Barnes v.Bragg, 70 HI...'. 164 Bassett v. Bratton, 86 HI 559 Bast v. Bast, 82 HI 492 Becker v. Becker, 79 HI 524 Bentley v. Lill. 40 HI 686 Berdell v. Berdell, 80 HI 503 Bergen v. Riggs, 40 HI 664, 679 Bertrand v. Taylor, 87 HI 661 Biggs v. Clapp, 74 HI 611 Bills v. Stanton, 69 HI 694 Black v. Lusk, 69 HI 89 Blackberry v. The People, 5 Gilm. 655, 659 Blake v. Blake, 70 HI 492; 80 111 517 Board of Ed. v. Neidenberger, 78 HI . . . 575 Bostwick v. Williams. 40 HI 681 Bouton v. Supervisors, 84 HI 575 Bowers v. Green, 1 Scam 647 Boyle v. Carter, 24 HI 695 Boyle v. Levings, 28 HI 661 Boyntou v. Champlin, 40 HI. 674, 679, 680, 701 Breaton v. Johnson, 1 BradwelTs App. Ct R. 650 Bressler v. McCune, 56 HI 663 Bridge Co. v. L. N. A. & St. L. Ry. Co., 72H1 611 Bristol v. City of Chicago. 21 HI 672 Brizzolari v. Mosher, 71 HI 537 Brockenbrough v. Dresser, 67 HI 187 Brooks v. Bruyn, 40 HI 664, 679 Brooks v. Kerns, 86111 525 Brown v. Lowell, 79 HI 611 Bryant v. The People, 71 HI 653 Burham v. Lamar Ins. Co. , 79 HI 422 Burnap v. Wight, 14 HI 648 Bntterworth v. Brown, 26 HI 683 C Cable v. Ellis, 86 HI 395, 673 Cameron v. Savage, 40 HI 652, 681 Carpenter v. Calvert, 83 111 550 Carr v. Miner, 40 HI 654,655 758 TABLE OF CASES CITED. C. B. & Q. R.E. Co. v. Lee, 68 111 663 Elder v. Jones, 85 Dl «E4 Chamblin v. Blair, 58 HI 675 538 570 683 695 Emerson v. W. TJ. R.R. Co., 75 Dl 115 Cheeney v. City Nat. Bank, 77 HI 164 Chestnut v. Chestnat, 77 Hi:.. 524 P C. & A R.R. - Co. v. R. R. I. & St. L R.R. Co 72 Dl 683 Farnham v. Famham, 73 HI 503 am City of Chicago v. Valcnm Iron Works 251 2 Bradwell's App. Ct. R. . .... 640 641 Ferris v. McClnre. 40 HI 663 579 Field v. The People, 2 Scam 633 Clark v. Marfield, 71 Dl. ... 77, 19%, 193 647 Fight v. Hall, 80 HI 452 Clarke v. Bell, 2 Litt 671 First Baptist Church v. Andrews, 87 HI Clement v. Newton, 78 HI 581 611 696 Cogswell v. Armstrong, 77 Dl. . .... 279 281 671 Colby v. Small, 40 111 658 671 Commissioners v. The People, 31 Dl. . 661 Flagle v. Crow, 40 Dl 664 Comstock v. Hitt, 40 HI 687 Fleese v. RnsseU, 13 Dl 638 Confrey v. Stark, 73 HI 685 Fleming v. Carter, 87 Dl 317 Convey v. Sheldon, 1 Bradwell's App Fonville v. Sausser, 73 Dl 6)7 Ct. R 695 Foreman v. Stickney, 77 Dl 144 206 Conwell v. Watkins, 71 HI . 65,539 546 Franey v. True, 26 Dl 661 Corona v. Teed, 69 HI .... 171 ,335 Freeborn v. Denman, 2 Halst 671 Cornelius v. Coons, Breese . . . 638 Frink v. Phelps, 4 Scam 655 657 675 694 Fuller v. Little. 61 Dl 701 647 671 G Cox v. City of Tuscola, 2 Bradwell's App. Ct. R 670 638 Crain v. Kennedy, 86 HI 102 Gage v. Rohrbach, 56 HI 638 Crowl t. Nagle, 86 HI .... 638 581 646 Gale v. Kinzie, 80 Dl 458 HI.. 478 Crull v. Keener. 17 HI Garden City Ins. Co. v. Stagart, 79 663 Culver v. Blwell, 73 HI .... 581 611 679 Cunningham v. Craig, 53 HI. . . 661 664 Cunningham v. Ferry, 74 HI. . . 611 Gibbs v. Blackwell, 40 Dl. 651, 665 ,671 674 Cunningham v. Loomis, 17 HI. 638 679 680 Curtis v. Bangh, 90 HI 672 67'? 686 D 6RH 647 611 186 Davis v. Conn. M. Life Ins. Co. ,84D1.. Goodrich v. Cook, 86 Dl 664 Deenis v. Deenis, 79 Dl Delahay v. McConnel, 4 Scam. Gould v. Steinbnry, 84 HI An 537 700 Grande is v. Hart well. 90 HI 583 591 89, 395 164 193 Dickerson v. Hendryx, 88 HI. . 672 478 Dickman v. Wood, 69 HI 395 581 Dickson v. C. B. & Q. R.R. Co. ,81D1.. 673 538 Dinet v. Bigenmann, 80 Dl . . . Dinet v. Pfirshing, 86 111 524 57 .... 517, 674 H Dobschuets v. Holliday, 82 Dl. 578 395 Haas v. Chicago Building Co., 89 HI. . . . 395 511 Hahnv. Hnber,83Dl 189 373 660 Hall v. Fnllerton, 69 HI : 448 Dunham v. City of Chicago, 55 Dl 660 Hall v. Hamilton. 74 Dl 675 99 Hall v. Jones, 32 HI 675 611 Hall v. Thode, 75 HI 638, 647 695 352 E Hanford v. Blessing. 80 111 395 535 663 696 Harding v. Larkin. 4i HI Hards v. Burton. 79 111. ... 371, 373 645. .395 663 437 TABLE OF CASES CITED. 759 Harper V.Ely, 70 111 358 Harrison v. Singleton, 2 Scam 638 Hartman v. Belleville & O. F. B.R. Co. 64H1 .' 647 Hartshorn v. Dawson, 2 Bradwell's App. CtrR 640, 641 Haskell v. Brown, 65 HI 152 Hatfield v. Fowler, 60 111 673 Havinghorst v. Lindberg, 67 111 647 Hawhe v. Snydaker, 86 111 388, 390 Haworth v. Hilling, 8T 111 895 Hay v. Hayes, 56 111 661 HayesT. Caldwell, 5 Gilm 638 Heald v. Wright, 75 ni 352 Heathv. Hurless, 73 HI... 279 Hedgesv. Mace, 72 111 76 Hellnian v. Schneider, 75 HI 281 Heminp, in the matter of, 3 Paige Ch. . 186 Henrichsen v. Hodgen, 67 HI 425 Henrickson v. Van Winkle, 21 HI 675 Hickman v. Haines, 5 Gilm 656 Higgins t. Curtis, 82 IU 422 Hittv. Scammon, 82 111 478 Hoag v. Starr, 69 HI 389 Hobson v. Paine, 40 HI 637 Hochlander v. Hochlander, 73 HI 74, 75 Hoig v. Sharp, 84 HI 251 Holbrook v. Uichol, 40 111 681 Holden v. Herkimer, 53 HI 637, 683, 686 Hollowbush y. McConnel, 12 HI 700 Holt v. Bees, 46 HI 675 Hopkins v. Snedaker, 71 HI 57 Horn v. Nen, 63111 661 Howell v. Barrett, 3 Gilm 695 Hoytj. Tuxbury, 70 m 165 Hundley v. -Commissioners etc., 67 HL. 634 Hnnterv. Hatch, 45 HI 696 I HI. B. Society v. Baldwin, 86 HI 673 HI. Cent. B.R. Co. v. Garish, 40 HI. 666. 679 El. Cent. R.K. Co. v. Parks. 88 HI. . 373 HI. L. L. Co. v. Bonner, 75 ni 452 Israel v. Town of Whitehall, 2 Brad- well's App. Ct K 683 J Jackson v. Warren, 32 HI 672 . Jefferson v. Kennard, 77 HI 141 Jenkins v. DoolitUe, 69 HI 570 Jenkins v. Jenkins, 86 HI 492 Johnson v. Estabrook. 84 HI... 611 Johnston v. Bancock, 38 HI 682 Johnston v. Maples, 49 HI 673 Jones v. Kennicott, 83 HI 557 Jones v. Neely, 72 HI > 199 Jones v. Spragne, 2 Scam 680 Jones v. Wright 4 Scam 647 Judson v. Stephens. 75 111 99", 252, 578 K Keel v. B entley , 15H1 638 Kelleherv. Tisdale, 23 HI 683 Kellerv. Brickley, 63 HI 660 Kelly v. Kellogg, 79 HI 511, 683 Kendall v. Limberg,69Hl 181 Kennedy v. Kennedy, 66 111. 647, 87 HI.. 497 Kerfoot v. Breckenridge, 87 HI 317 Kern v. Zink, 55 111 675, 676 Kingsbury v. Buckner, 70 HI 452 Klock v. Walter, 70 HI 395 Knowles v. Knowles, 86 HI 352 Kolbv. O'Brien, S6 HI 210 L Labidie v. Hewitt, 85 HI 425, 452 Lampsett v Whitney, 3 Scam 700 Langston v. Bates, 84 111 324 Larrison v. P. A. & D. B.R. Co., 77 HI. 143 Lawrence v. Fast, 20 111 660 Lawrence v. Lawrence, 73 HI 92 Lazell v. Francis, 4 Scam 695 LeMoyne v. Quimby, 70 HI 452 Leufers v. Henke, 73 HI 478 Lewis v. Lamphere, 79 111 422 Lombard v. Kinzie, 73 111 478 Long v. Barker, 85 HI 281 Lowry v. Bryant, 2 Scam 655 L. S. & M. S. B.E. Co. v. McMillan, 84 HI 599, 672 Lncas v. Farrington, 21 HI 661 Lnnt v. Stephens, 75 HI .' 581, 583 M Mack v. Brown, 73 HI 75. 77 Maherv. Lanfrom, 86 HI 395 Marlow v. Marlow, 77 HI 570 Marseilles Land Co. v. Aldrich, 86 HI. 683. U'y Marsh v. Green, 79 HI 164, 373, 374 Martin v. Gilmore, 72 HI 92 Mason v. Bair. 40 HI 663 McClay v. Norris, 4 Gilm 647 McConnel v. Ayers. 3 Scam 675 McCormick v. Sage, 87 HI 317 McDonald v. Arnout, 14 HI 661 McKindley v. Buck. 43 HI 661 McNab v. Young, 81 HI 75 McPhearson v. Nelson, 44 HI 701 Meeksv. Sims, 84 HI 591, 611 Meekerv. Meeker, 75 HI 189 Mehrle v. Dnnne. 75 HI 611 Metzv. Lowell, 83 HI 611 Meyers v. Andrews, 87 HI 672 Milcolm v. Andrews. 68 HI 557 Miller v. Handy. 40 111 75 Miller v. Whitaker, 33 HI 662 Mills v. Lockwood, 40 111 700 Mitchell v. Byrns. 67 HI 405 Montague v. Waljahan. 84 HI 696, 700 760 TABLE OF CASES CITED. 671 Phelps v. Funkhouser, 40 Dl Phelps v. Harding, 87 111 656 (m 637 599 Moorehouse v. Moulding, 74 HI. 611 Phillips v. Phillips, 1 Bradwell's APP 151 174 Ct. E 509 675 Pick v. Ketchum, 73 111 661 Morse v. Thorsell, 78 111 Morton v. Smith, 86 111 458 672 326 Pixley v. Bovnton. 7!) I'll 695 Planing Mill Lumber Co. > . City of Chi Mosier v. Norton, 83 111 358 v,m Mott v. Harrington, 15 Vt 186 Plaster v. Plaster. 67 111 522 Mulvey v. Gibbons, 87 HI Murcb. v. Mayers, 85 111 373 395 PoJlard v. King. 63 111 673 .. 165 395 Powell v. Webber. 79 111 591 Murphey v. The People, 37 111. . . 661 Prettyman v. B-.irmirrt. 37 111 h83 638 186 Prince v. Lamb. Hreese 695 N Propeller Niagara v. Martin, 42 111 658 Napper v. Short, 17 III 649 Protection Life Ins. Co. v. Foote, 79 111 672 Nason v. Letz, 73 111 661 Q Nat. Ins. Co. v. Webster, 83 111. .. 395 279 611 611 R1 R 517 Nichol v. Todd, 70 HI 478 Race v. Sulivan, 1 Bradwell's Apt .Ct Nichols v. Mitchell, 70 111 436 452 R Eace v. Weston, 86 111 o'Jl Nichols v. Padfleld, 77 111 317 Niles v. Harmon, 80 111 .. 390 396 695 696 Ragar v. Tilford, Breese (App.) . . . Reed v. Boyd, 84 111 Reedv. Curry, 40 111 611 679 657 Nixon v. Halley, 78 111 672 Northern Trans. Co. v. McClary, fift Til 681 Reese v. City of Chicago, 38 HI. . . 645 Resser v. Resser, 82 111 Reitz v. Coyer, 83 111 524 581 Oder v. Putnam, 22 111 638 Rich v. City of Chicago, 59 III 660 O'Brien v. Fry, 82 111 •.. .. 142 390 Richards v. Green, 78 111 647 0. & Miss. B.R. Co. v. Lawrence Co. 27111 637 675 hhd Orr v. N. M. L. Ins. Co., 86 111. . 611 Rivard v. Walker, 40 111 • bb3 P Roberts v. Beckwith, 79 111 445 Roberts v. Stigleman, 78 111 153 Padfleld v. Padfleld, 72 111 570 656 44 Roby v. Cossitt, 78 111 672 326 Parrv. Van Horn, 40 111 656 99 Peake v. The People, 76 111 637 Rogers v. Powell, 1 Bradwell's App. Ct 700 R 581 583 611 695 Ross v. Ross, 78 HI 522 695 Eowand v. Carroll, 81 111 Eowley v. Hughes, 40 111 663 478 664 672 679 Pennell v. Lamar Ins. Co., 73 111. 185, 186 401 Penticost v. Magahee, 4 Scam. . . 638 Euckman v. Alwood, 40 111. 656; 44 HI 675 Peopie v. Brislin, 80 111 673 Rutherford v. Morris, 77 111 550 553 636 645 s People v. McFarland. 3 Bradwell' sApp 478 Ct. B 638 Schirmer v. The People, 33 111. . . 663 679 People v. Neil, 3 Bradwell's App. Ct. E 638 Schlumb v. Eeidersdorf. 28 111 661 People v. Pearson, 3 Scam 700 Sc hnell v. Clements, 73 111 611 637 535 700 People v. Public Officers, 4 Gilm 659 People v. Young, 40 111 677 Shacklcf ord v. Bailey, 35 111 683 Perteet v. The People, 70 HI 655 Sharkey v. Miller, 69 111 189 Phelps v. Curtis. 80 111 422 Shaver v. Williams, 87 111 395 Phelps v. Fiskes, 63 111 638 395 TABLE OF CASES CITED. 761 Shepley v. Spencer, 40 111 664 Short v. Raub, 81 111 374, 672 Simpson v. Ham, 78 111 478 Simpson v. Leach, 86 111 478 Sims v. Lyle, 4 Wash. C. C. E 117 Skiles v. Carauthers, 88 111 683 Sloo v. The State Bank, 1 Scam 638 Smith v. Crawford, 81 111 428 Smith ex parte. 16 IU 557 Smith v. Hickman, 68 111 647 Smith v. Newland. 40 111 663 Smith v. Newton, 84 HI 189 Smith v. Trimble. 27 111 664 Smucker v. Larimore, 21 HI 674 Snell v. Chnrch Trustees, 58 IU 661 Snellv. Stanley, 63 111 686 ,Soiitag v. Brennen, 75 111 576 Spearv. D'Clercy, 40 m f 683 Spraggins v. Houghton. 2 Scam 645 Stanberry v. Moore, 56 111 696 Stanley v. Valentine, 79 111 57 Steele v. Clark, 77 El 570 Steele v. The People, 40 111 .... 674, 679, 680 Stevenson v. Manners, 67 HI 140 Stevison v. Ernest, 80 Dl 663 Stewart v. The People, 3 Scam 638 St. Joseph M. Co. v. Daggett, 84 111 ... . 390 St. L. & T. H. B.R. Co. v. Todd, 40 Dl. 675 Stone v. Wood, 85 Dl 672 Strawnv. O'Hara, 86 Dl 611 Sutherland v. Sutherland, 69 Dl 478 Snttler v. The People, 59 Dl 661 T Taylor v. Gilsdorf, 74 Dl 511 Taylor v. Turner, 87 Dl 46 Tealv. Hussell, 2 Scam 647 Terry v. Eureka College, 70 Dl 90, 236 Theilman v. Carr, 75 111 611 Thomas v. Coultas. 76 El 171 Thomas v. Fisher. 71 Dl 695 Thomas v. University, 71 Dl 575 Thomas v. Negus, 2 Gilm 675 Thomas v. Urbana School Dist., 71 Dl. . 575 Thompson v. County Com'rs., 3 Scam. 655 Thompson v. Follansbee, 55 Dl 638 Thompson v. Hoagland, 65 Dl .'. 696 Thompson v. White, 64 Dl 661 Titcomb v. Vantyle,84 Dl 189 Tobey v. Foreman, 79 Dl 314 T. P. & W. E'y Co. v. Comes, 40 Dl. . . . 657 Tracy v. Rogers, 69 Dl 583 Truit v. Griffin, 61 111 660 Trustees of Schools v. Hihler, 86 111. . 409, 695 Trustees of Schools v. School Directors, 88 111 638, 639 Turner v. Bennett, 70 Dl 452 u Underwood v. Hossack, 40 111 664 U. S. Ex. Co. v. Bedbury, 40 111. ... 678, 680 V Van Pelt v. Dumford. 58 111 661 Victor Scale Co. ». Shurtliff, 81 Dl 557 Von Glahn v. Von Ulahn, 40 111 679 W Wadhamsv. Gay, 73 111 452, 696 Walker v. Abt., 83 111 647 Walker v. Oliver, 63 Dl 638 Wallahanv. The People, 40111. 663,664 Walsh v. Truesdall. 1 BradwelTs App. Ct.R ■ ■!■■.. 373 Walton v. Westwood, 73 111 99 Waterman v. Eaymond. 40D1 679 Waugh v. Eobbins. 33 Dl 663 Waugh v. Suter, 3 Bradwell's App. Ct. E 638 Webster v. Pierce, 40 Dl 657, 679 Welch v. Dutton, 79 111 478 Welch v. Johnson, 76 111 695 Willenborg v. Murphy, 40 111 658 Williams v. Bank of 111., 1 Gilm 695 Williams v. LaValle, 64 111 638 Wilder v. House, 40 Dl 663, 664 Wilton v. Tazewell, 86 111 425 Winchester v. Grosvenor, 48 111 696 Wingv. Carr, 86 Dl 611 Wing v. Sherrer. 77 111 535 Winkleman v. The People. 50 Dl. 637, 639 705 White v. Russell. 79 Dl 422 Whitman v. Fisher, 74 Dl 76 Whitney v. Stephens. 77 111 539 Wolbrechtv. Banmgarten, 26 Dl 696 Woodside v. Woodsidc, 21 111 638 639 Work v. Hall. 79 111 611 Wright v. Smith. 76 111 638 Wright v. Troutman, 81 DL 199 T Tarzel v. Palmer, 88 Dl 683 Toe v. McCord, 74 Dl 550, 553 INDEX. ABATEMENT— Fleas of, to jurisdiction of the conrt 115-120 Form of. 120 To the person 115 Form of Plea of Coverture 120 Infancy without a prochein ami 121 Complainant an alien enemy 121 ABSTRACTS — (See Practice in Supreme and Appellate Courts.) ACCOUNT— Form of plea of, stated 124 Form of bill for, between partner! 345 Form of decree for, between partner* 848 ADDRESS— Of a bill in chancery 41 Form of. 68 ADMINISTRATOR — Form of plea, never was, etc 121 May file bill to enforce mechanic's lien. 577 ADULTERY— A bar to dower 464 Ground for divorce 491-493 Circumstantial evidence of 492 Form of bill for, by husband 493 Form of bin for, etc., by wife, for alimony, ete. 494 Form of a decree for 514 Form of decree for, and custody of children, ete. 515 AFFIDAVITS— Forms of. For publication, non-residence of defendant, stating his place of residence 78 Same, stating that place of residence is unknown 78 Same, stating that defendant cannot be found. 78 Same, stating that defendant is concealed, etc 79 Of service of copy of bill and notice 80 To obtain attachment for not answering. 84 In support of motion to set aside default 91 To an answer 149 To a bill of revivor on newly discovered matter 262 To a bill of interpleader 285 To a petition to perpetuate testimony 801 For an injunction on bill for account between partners 345 To a petition for partition 435 Of commissioners to make partition 444 To a petition for dower 469 Of commissioners to assign dower 474 Of defendant to a demurrer in U. S. court 110 AGREED CASES — (See Practice in Supreme and Appellate Courts.) INDEX. 763 Agreement — Answers to a Bill. AGREEMENT —(See Consent.) Form of, to submit a cause on written argument* 630 Bills for specific performance of 817-337 ALIENS — Entitled to dower 459 Form of plea, alien enemy 121 ALIMONY— When allowed, pendente Ute. 516-518 How applied for. 518 Form of petition for ^ 518 Amount of allowance 519 Form of order of reference as to 510 Form of report of master upon 520 Form of order confirming 521 Form of interlocutory decree for 521 Permanent allowance of. 521-523 Sale of real estate to satisfy 522 Form of decree for. 523 (See Maintenance.) AMENDMENTS TO BILLS — Nature of 165-166 When to be made 165-167 When not allowed 167 Form of petition for leave to, after replication 167 Form of order granting leave to, after demurrer. 168 Form of. 169 Form of order granting leave to, after a plea to a part is allowed. 624 Afterplea. 127 Answer to amended bill 151 In mechanic's lien suits 599 Rules in courts of equity of IT. S. relating to 715 AMENDMENT OF ANSWER— When proper. 152 Rule of Supreme Court of the IT. S. relating to 722 ANCIENT BILLS— Formof. 66 Account of. 67 ANSWERS TO A BILL — Nature of. 132-136 Exceptions to 136 (See Exceptions to an Answer.) Fraud, how alleged 136-137 Mode of answering 137-138 Affirmative relief not granted on 138 May be joint 138-140 Frame of 138-140 Swearing to 140-141 Rule of Supreme Court U. S. relating to. 722 Waiver of oath to 141-142 Effect of sworn answer as evidence 142 Against co-defendant 142 Of deceased ancestor. 142 Admissions in 142-143 Of a corporation 143-144 Of infants.and insane persons 144-145 Coupled with demurrer 106 When a plea should be supported by ... 107 764 INDEX. Appearance — Bills in Chancery. ANSWERS TO A BILL— Continued. Allowing plea to stand foi 130 Rules of Supreme Court U. S. relating to 717 Demurrer to not proper 107 When to be filed 151 To an amended bill 151 Amendment of 153-153 To a supplemental bill.. 213 To a bill of revivor 234 To a bill of discovery 276 To a bill of interpleader 287 To a bill to perpetuate testimony 299 To a cross-bill 315 To mechanic's lien suits 591 Forms of. Miscellaneous, of commencements, conclusions, etc 145-148 General frame of 148 Short. 149 Infants by guardian ad litem 149 Statement in, claiming statute of frauds 149 Conclusion, insisting on remedy at law 149 And disclaimer. 154 Of owner to bill for mechanic's lien 600 Setting up discharge of mechanic's lien 602 Setting up another mechanic's lien 602 To interrogatories, etc 627 Further, after exceptions, etc 628 And demurrer 112 And plea 125 Affidavit to 149 APPEALS — (See Practice in Supreme and Appellate Courts.) APPELLATE COURT— (See Practice in Supreme and Appellate Courts.) ATTACHMENT — To compel an answer 81 How obtained 83 Form of affidavit to 84 Form of order for 84 ATTACHMENT WITH PROCLAMATION — Nature of, etc 84 ATTORNEYS — (See Practice in Supreme and Appellate Courts.)' BILLS IN CHANCERY— Division of 39-40 Constituent parts of 40-50 The address 41 Form of 69 The introduction 41-42 Form of » 69 The premises, or stating part 42-52 Formsof 70-71 Certainty required 43-47 Must state the whole subject 48 And not too many subjects 48 Matters in litigation not divisible 48 Multifariousness 48-51 Scandal and impertinence 51-52 Scandal 51 Impertinence 52 INDEX. 765 Bills. BILLS IN CHANCERY— Continued. The confederating part 53-53 Form of. 71 The charging part 53-54 Form of. 71 The jurisdictional clause 54 Form of 73 The interrogating part 56-56 Form of 72 The prayer for relief. 56-58 Form of 73 The prayer for process 58-59 Forms of. 73 Frame of bill 59 Signing of bills 59-60 Swearing to bills 60-61 Parties to * 61-65 Who should be made 62-63 How described 63 Persons under disability 63-64 Interest of 64 Joinder of 64-65 Want of 65 Misjoinder of 65 Ancient bills 66-68 (See Forms op the Constituent Pabts of an Origi- nal Bill.) Frame of, in courts of equity of the U. S 713 BILLS — Farms of. An ancient bill .... 66 Constituent parts of 69 Supplemental, for specific performance 208 Supplemental, against assignee of bankrupt 209 Original in the nature of a supplemental bill 219 To carry decree into execution — ■ ■• 223 Of revivor, before decree 230 Of revivor, after decree 231 In the nature of a bill of revivor 243 Of revivor and supplement 247 Of review, upon error of law 260 Of review, upon newly discovered matter 261 Of discovery 270 Of interpleader 284 To perpetuate testimony 297 Cross-bill to a foreclosure suit 308 Cross-bill, in nature of a plea, puis darrein continuance 310 For specific performance, vendee v. vendor 327 For specific perf ormance^ vendor v. vendee 328 For specific performance, of a bond for a deed 330 For specific performance, of contract for lease 331 For a dissolution of copartnership, etc 342 For an account of partnership dealings, etc 345 To redeem, by heirs of mortgagor 360 To redeem from deed, intended as a mortgage 362 To redeem goods pledged as a security 364 To set aside decree of foreclosure, to redeem, etc. 365 Of foreclosure, mortgagee v. mortgagor \ 376 Of foreclosure, assignee v. mortgagor 878 766 • INDEX. Bills — Bills and Petitions to Perpetuate Testimony. BILLS— Continued. Of foreclosure, mortgagee v. executor, etc 380 Of foreclosure, mortgagee v. administrator, etc 383 Of foreclosure, of deed of trust 383 For strict foreclosure of mortgage 386 Of creditors, general 406 Of creditor, in aid of execution, etc 413 By creditor executrix, etc 416 For partition between heirs, subject to dower 429 For partition, etc 431 For partition and dower 433 For divorce, on the ground of impotency 489 For divorce, ground former marriage, etc. 490 For divorce, charging adultery, by husband 493 For divorce, etc., charging adultery, by wife 494 For divorce, charging desertion 497 For divorce, charging habitual drunkenness 499 For divorce, attempting life of the other 501 Divorce, charging cruelty, by husband 503 Divorce, etc., charging cruelty, etc., by wife 504 Divorce, etc., charging conviction of crime, etc 507 For separate maintenance 527 To quiet title, and cancel deed 540 To quiet title, and set aside tax deed, etc. 541 To quiet title, and cancel contract, etc. 544 To set aside a will, etc 551 For ne exeat republica. 558 To restrain wastes, etc .. 566 To remove trustees, etc. 571 ' For appointment of new trustees, etc 573 For mechanic's lien 592 Cross-bill, for mechanic's lien ." 604 BILLS IN THE NATURE OF SUPPLEMENTAL BILLS — {tee Sup- plemental Bills.) BILLS IN THE NATURE OF BILLS OF REVIVOR — {see Revivor, Bills of.) BILLS OF REVIVOR AND SUPPLEMENT— («se Revivor, Bills of.) BILLS OF DISCOVERT — (*e« Discovery, Bills of.) BILLS OF REVIVOR — (see Revivor, Bills of.) BILLS OF INTERPLEADER — (^Interpleader, Bills of.) BILLS OF REVIEW — {see Review, Bills of.) BILLS TO FORECLOSE— {see Foreclosure of Mortgaoes.) BDLLS RELATING TO PARTNERSHIP MATTERS— {see Partner- ship, Bills of.) BILLS AND PETITIONS TO PERPETUATE TESTIMONY - Nature of the proceedings 294 Frame of bill 294-297 Form of bill 297 Defenses, and proceedings 298-300 Demurrer to. . . .- .\ 299 Answer 299 Petition to 300 In what cases proper 300 The petition 300-301 Form of Petition 301 "' " ritto 301 INDEX. 767 Bills to Redeem — Commencement of a Suit in Chancery. * BILLS AND PETITIONS TO PERPETUATE TESTIMONY— Cont'd. Commission to take depositions 308 Docketing 302 Notice to parties interested 302 Manner of taking testimony 303 Deposition may be used as evidence 303 BILLS TO REDEEM— Nature of 350 Deeds absolute on face of, when deemed a mortgage 351-352 Who may redeem 352-353 Within what time to be filed 353-354 Parties to 354-357 Complainants 354-356 Defendants 356-357 Terms of 357-359 Frame of bill 359-360 Forms of. By heirs of mortgagor against mortgagee 360 From a deed, intended as a mortgage 362 Goods deposited as a pledge 364 To set aside decree of foreclosure, and to redeem ?65 Decrees 367-368 Form of 368 BOLLS TO QUIET TITLE— Nature of, and when proper 535-539 Forms of bills. To quiet title, and cancel a deed 540 To quiet title, and set aside tax deed, etc 541 To quiet title, and set aside contract of sale 544 Form of decree to, and setting aside deed 546 BONDS— Forms of. For costs, by a non-resident 38 By next friend of infant : 38 For a deed, form of bill for specific performance of. 330 BOOKS AND WRITINGS — Production of 174 Form of petition for 175 Form of order directing 176 BRIEF AND ARGUMENT— (See Practice in Supreme and Appellate Courts.) CHANGING WIFE'S NAME — Allowed in divorce suits S14 (See Divorce.) CHARGING PART — Of a bill in chancery 58 Form of. 71 COLLUSION — A bar to divorce - • • 614 COMMENCEMENT OF A SUIT IN CHANCERY— By bill 35 By information 35 Where commenced 36 Security for costs 37 Form of bonds for 38 By a non-resident 38 By an infant's next friend 38 768 INDEX. Commission of Rebellion — Crime. COMMISSION OP REBELLION — When granted, etc. i 85 COMMISSIONERS — To make partition 443 Proceedings by 443 Required to take an oath 443 Form of. 444 Duty of .444 Report of 445 Form of, making partition 445 Form of, that petition cannot be made 446 To assign dower 474 Form of oath of 474 Duty of 474-476 Report of 475 CONDONATION— Effect of in divorce suits 508 CONFEDERATING PART OP BILL — Nature of, and uses 52 Form of 71 CONFESSIONS — Not to be taken in -divorce suits 613 CONTRACT— (Bee Specific Pkbpobmancii.) Form of bill to set aside 544 COSTS — When security for required, etc. 37 Form of bonds for 38 Motion for security for 96 In interpleader bills 290 COVERTURE — Form of plea of 120 Not proper in Illinois 120 CREDITOR'S BILL — Nature of, and when proper 396-398 On justice's judgment 398 In United States court 389 What may be reached by 398-400 Parties to 400-402 Complainants 400-401 Defendants 40H02 Priority and lien of 403-404 Frame of bill 404 Prayer of 405 Swearing to 405 Form of, general 406 Form of, in aid of execution 413 Form of, against executrix, etc 416 Form of order appointing recevoer 419 Form of order of reference 420 Form of decree for payment of 420 Form of decree setting aside fraudulent conveyance in aid of exe- cution 422 CRIME — Conviction of, ground for divorce 506 Form ofbiUfor divorce, on that ground 507 INDEX. 769 Cross-Bills — Decrees and Orders. CROSS-BILLS — Nature of. 305-807 Frame of 307-308 Form of, to foreclose prior mortgage 308 Form of, in nature of plea puis darrein continuance 310 When to be filed 312-313 Leave to 313 Process upon...' 313 Defenses to 314-315 Demurrer 314 Pleas 315 Answer 315 Proceedings upon 316 Form of, in suit to enforce mechanic's lien 604 To be beard with original bill 193 CROSS-ERRORS — (See Practice in Supreme ahd Appellate Courts.) CRUELTY— Extreme and repeated, a ground for divorce 503 Form of bill by husband charging 503 Form of bill by wife charging, etc. 504 Form of decree for divorce on that ground 516 DE BENE ESSE — Taking of testimony in U. S. courts 727 DECREES AND ORDERS— Nature, uses and kinds of 195-197 Interlocutory 195 Final 196-197 Setting aside, where parties are not personally notified 91- 93 In dower suits. 472 Frame of 198-201 Constituent parts 198 Caption and title 198 The recitalB 198-199 Ordering part 199 Declaratory part 200 By consent 200 Nunc pro tunc clause 200-201 Drawing of. 201 Entitling in supplemental bills, etc 215 In revivor suits 236 In bills of interpleader 290-293 For specific performance 333-337 On bills to redeem 367-369 In foreclosure suits 389-391 In creditor's suits 419-422 In partition suits, making partition 437-439 Directing sales in 448-452 In proceedings for dower. 472-473 In suits for divorce 513-514 Alimony 516-523 In suits for separate maintenance 529-533 In mechanic's lien suits 606-607 Rules of Supreme Court of U. S. relating to 731 Form* of orders. For an attachment for not answering 84 To expunge scandal and impertinence 163 For leave to amend bill, after demurrer, etc. ■ 168 For production of books and papers 176 49 770 INDEX. Decrees and Orders. DECREES AND ORDERS— Forms of— Continued. Of reference to master to take proofs 183 Directing issues of fact to be tried by a jury 190 Caption of 198 Recital of 199 General 202 And of decree 202 For revivor 236 For leave to file bill of revivor 259 For injunction on bill of interpleader 289 Of reference as to title of vendor, etc l 335 For an account between vendor and vendee 33C Appointing receiver in partnership suits 347 For an account between partners 348 Appointing receiver in creditor's suits 419 Of reference in creditor's suits 420 Directing issue for jury, in divorce suits 512 Of reference as to alimony, etc 519 Of reference as to separate maintenance, etc 530 Directing issue for jury, to try validity of will 553 Of judge granting ne exeat, etc 560 Of master granting ne exeat '. 561 Where defendant admits contempt, etc 618 Committing defendant for contempt, etc 618 Directing interrogatories for defendant to answer 619 Convicting defendant of contempt, after examination 620 Of reference of second or third' answer, etc 621 For sheriff acting as sergeant-at-arms 621 For sequestration 622 Of reference as to exceptions, etc 622 For further answer, etc 623 For attachment on third answer, etc 628 For examination of defendant on interrogatories, etc 623 For leave to amend bill after plea, etc 624 Of reference to master 624 Of reference of a plea of former suit pending 625 Directing plea to stand for an answer 625 Allowing complainant to dismiss bill 625 To pay money into court 625 For cause to stand over to add new parties 626 For cause to stand over to supply proofs 626 Forms of decrees. Caption, and title of 198 Recital of , 199 General ' 202 General of, or order 202 On bill of interpleader. 292 For specific performance 336 For an account between partners 348 Of dissolution of partnership, etc 348 For redemption 368 Of foreclosure, pro eonfesso and sale 391 Of foreclosure, on hearing, and for sale. 394 Of strict foreclosure 394 On a general creditor's bill 420 Setting aBide fraudulent conveyance, in aid of execution 422 For partition 439 For partition, etc 440 For partition and dower 441 INDEX. 771 Deeds — Demurrer. DECREES AND ORDERS — Continued. Confirming partition by commissioners 447 For sale in partition suits 450 Confirming sale in partition 452 For dower, etc. 473 For divorce on ground of adultery 514 For divorce for adultery, custody of children, etc 515 For divorce for cruelty, etc 516 For alimony pendente lite, etc 501 For permanent alimony 523 For separate maintenance 53H To quiet title and cancel deed 546 Setting aside a will 553 Allowing mechanic's lien, and for sale 607 Allowing mechanic's lien, reserving adjustment 608 Allowing mechanics lien, adjusting claims, etc 608 Dismissing bill at hearing 262 DEEDS — (See Bills to Quiet Title.) DEEDS OF TRUST— When necessary to foreclose 382 Form of bill to 383- DEFAULTS— When may be taken 87 Effect of 88-89 Right of defendant after 90 Setting aside 90- 91 Motion to 90 form of affidavit in support of. 91 In divorce suits 518 In courts of equity of the U. S DEFENSES TO A SUIT— Proceedings by defendant, previous to putting in answer 94 Exceptions to bill for scandal and impertinence 95-96 Form of exceptions 95-96 Motion for the production of papers, etc 96 Motion for security for costs 96-97 Different sorts of defenses 97 (see Titles, Demubbek, Plea, Answer, and Disclaimer.) To a supplemental bill 211-214 To a bill of revivor 233-234 To a bill in the nature of a bill of revivor 246 To a bill of review 262-266 To bills of discovery 272-278 To bills of interpleader 286-289 To bills and petitions to perpetuate testimony 298-300 To cross-bills 314-315 To bill to foreclose mortgages 388-389 To bills for divorce 508-510 To bills for separate maintenance 529 T«» mechanic's lien suits 599-606 DEMURRER — Nature and uses of •' 98-101 Where it lies .-. 102_1 S1 General . . . ■ 1"4 Special IW Several causes of 10* Separate 104 "J^ Speaking "** 772 INDEX. Depositions — Discovery, Bills of. DEMURRER — Continued. Ore tenus 105-106 Coupled with answer 106 To plea or answer not tolerated 107-127 When to be filed 107 Hearing of 107 Effect of sustaining 107-108 Of overruling 108 To a supplemental bill 211 To a bill of revivor •. 233 To a bill of review 264 To a bill of discovery ^72 To a bill of interpleader 286 To a bill to perpetuate testimony 299 To a cross-bill 314 To bill in U. S. court 109-110 Rules of Supreme Court of U. S. relating to 641 Forms of. General frame of 108 Short 109 For want of equity 110 For multifariousness Ill For want of parties Ill For want 6f privity '. Ill To bill of discovery, etc Ill That complainant shows no interest 112 To part of a bill 112 To part of bill, coupled with answer 112 To supplemental bill 212 To a bill of review 266 To a bill of discovery, no interest shown 274 To a bill of discovery, want of privity 274 To a bill of interpleader, want of affidavit 287 To a bill of interpleader, showing no right in defendant To a bill of interpleader, showing no right in complainant . . . 287 In the United States Court -. 109 Certificate to counsel to 110 Affidavit of defendant to 110 DEPOSITIONS — Of resident witnesses 176-177 Of non-resident witnesses 177-178 • Notice of taking when opposite party is non-resident 178 Of non-resident witnesses on oral interrogatories 179-180 Manner of taking, certifying, etc 180-182 Instructions for taking 182 Interpleader may be sworn 182 In proceedings to perpetuate testimony 803 May be read on motion to dissolve injunction 615 DESERTION — A ground for divorce 496 Form of biH on that ground 497 DISCLAIMER — Nature of .' 153-154 Form of 154 Form of answer, and . ; 155 DISCOVERT, BILLS OF — Nature of, and when proper 267-269 Frame of 269-270 INDEX. 773 Divorce, Bills for. DISCOVERT, BILLS OF— Continued. Form of. 270 Defenses to 873 Demurrer to t .' 272-374 Form of, where defendant has no interest 274 Formof, for want of privity 274 Plea to 274-275 / Form of action at law pending, etc 275 Form of, that discovery would compel betrayal of confidence as solicitor 276 Answer 276-277 Practice upon, generally 277 Form of demurrer to, defendant could be a witness Ill DIVORCE, BILLS FOR — Nature of 483-484 Causes for under 111. stat 485 Jurisdiction" of, and where commenced 485 Complainant must be resident, etc .* 486 Effect of 486 On dower .463 Natural impotency at time of marriage 486-488 Formof bill, on tliat ground 489 Having a husband or wife living at time of marriage 490-491 Formof biU, on that ground 490 Adultery 491-496 Circumstantial evidence of . . .". 492 Frame of bill charging 493 Form of bill for, by husband 493 Form of bill for, by wife, for alimony, etc 494 Willful desertion 496-498 Form of biU, on that ground 497 Habitual drunkenness 498-501 Form of bill, on that ground, etc 499 Attempting the life of the other 501-502 Form of bill, for that cause 501 Extreme and repeated cruelty 502-506 Form of bill, on that ground, by husband 503 Form of biR, on that ground, by wife, injunction, etc 504 Conviction of crime, etc 506 Form of bill, on that ground 507 Defenses to 508 Condonation 508-510 Recrimination 510 Injunctions in • • 510 When proper 511-512 Custody of children, pendente lite 511 Hearing and decree 513 Trial by jury .' 513 Forming an issue for 512 Form of order directing, etc 512 In cases of default 513 Confessions of defendant 513 Collusion 514 Proof of foreign marriage 514 Changing wife's name 514 Forms of decrees for. On the ground of adultery, changing wife's name 514 On the ground of adultery, for custody of children, etc 515 On the ground of cruelty, upon verdict, etc 516 774 INDEX. Dower, Proceedings for. DIVORCE, BILLS FOR— Continued. Alimony and expenses 516 Pendente lite 516-517 Form of. Petition for 518 Amount of allowance 519 Form of order of reference as to 519 Form of report of master as to 520 Form of order confirming 521 Form of order allowing, etc 521 Questions of guilt not investigated 521 Permanent allowance of 521 Sale of real estate to satisfy 522 Form of decree for ." 528 Title of property held by one, equitably belonging to the other, etc 523 Wife may prosecute without costs, when '. 518 DOWER, PROCEEDINGS FOR— Nature of '. 453-457 In what property it attaches 457-459 Aliens entitled to 459 In lands mortgaged to secure purchase money 459 In surplus after sale on mortgage 459 Not in estate created by mortgage 460 How barred. , 460 By jointure, etc 460-461 By will, etc 461 Where husband and wife die without issue 463 Renunciation of will 463 Form of 463 By divorce, when, etc 463 By abandonment and adultery 464 Not by judgment, etc 464 Where there is an exchange, etc 464-465 Persons selling by order of court, not 465 Elements and incidents of 465 Transfer of, etc 465-466 Suits for 466 Duty of heirs to assign, etc 466 Who may file petition 467 Where petition to be filed 467 Infants as petitioners or defendants 467 Guardian ad litem for 467 Frame of petition 467 Parties to 467-468 Unknown defendants , 468- Forms of petitions 468 By widow, for 468 Affidavit to 469 By a husband, for 469 By hews, to have assigned 470 Form of bill for, in partition suits 433 Interest in partition suits , 449 Process of appearance 47 J, Summons 471 Unknown parties ." 471 Non-resident defendants 471 Service by copy of petition 472 INDEX. 775 Drunkenness, Habitual — Executors. DOWER, PROCEEDINGS FOR— Continued. Setting aside decree, where defendants are not personally notified 472 Interpleader 472 Hearing and decree 472 Form of decree for 473 Commissioners to assign 474 Form of oath of. 4T4 Duty of. 474 Dower may be assigned in a body, etc 475 Homestead, etc 475 Report of commissioners 475 Commissioners subject to directions of court 476 Allowance in lieu of 476-477 Damages for refusal to assign 477-478 Mode of ascertaining value of 478 Dr. Wigglesworth's table ; 479 Table showing present value, computed at 5 per cent 479 Portsmouth or Northampton tables at 6 per cent 480 Rule for computing 481 Examples . . . : 481 Miscellaneous provisions of the statute 481 Dower assigned in application to county court for leave to sell lands to pay debts 481 Waste by persons to whom dower is assigned 482 DRUNKENNESS, HABITUAL— A ground for divorce 498 Form of bill, on that charge 499 EQUITY— General principles of pleading of 82-34 Form of demurrer, for want of. 110 EXCEPTIONS— To report of master in chancery 184-186 Form of 185 To report of commissioners to make partition 448 To report of sale in partition suits 451 EXCEPTIONS TO ANSWER — Nature of 157,136 For insufficiency .' 158 In what cases they lie 158 How taken 158-160 For scandal and impertinence 160 What is 160-161 Form of, for insufficiency 162 For scandal and impertinence 162 Form of order to expunge scandal, etc 163 When to be filed ". 136 Rules of Supreme Court of U. S. relating to 648 EXCEPTIONS TO A BILL — When they may be taken, etc 95 Form of 95 EXECUTION — Form of bill in aid of 413 Form of decree vpon 422 EXECUTORS — {sec Administrators.) EXECUTRIX — Form of creditor's bia against 416 776 INDEX. Executrix — Forms. FEIGNED ISSUES — TRIALS BY JURIES — Nature of 188-190 Form of order directing an issue of fact to be tried by a jury 190 Drawing up and settling 191 FELONY— Conviction of, a ground for divorce . . . .' 506 Form of bill for dimorce, on that ground 507 FORECLOSURE OF MORTGAGES — General nature of 370-371 When proper 371-372 Parties 372 Complainants 372-373 Defendants 373-375 Frame of bill 375-376 Forms of bills. Mortgagee against mortgagor 376 Assignee of mortgagee against mortgagor 378 Mortgagee against executor, etc 380 Mortgagee against administrator, etc 382 Trust deeds and sale mortgages 382 Form of bill to foreclose 383 Strict foreclosure 384-386 Parties to 385 Frame of bill s 386 Form of bill 386 Defenses to 388-389 Decree of 389-391 Form of, pro conf esso 391 Form of on hearing 394 Form of, on strict foreclosure 394 Form of cross-bill by first mortgagee 308 Form ofbiU to set aside decree of, and to redeem 365 FORMER MARRIAGE— A ground for divorce, etc. 490 Form of bill for divorce, on that ground, etc 490 FORMER SUIT PENDING — Form of plea of 123 FORMS — Bond for costs. No. 1. By a non-resident complainant 38 No. 2. By next friend of infant complainant 38 Of ancient bill. No. 3. Ancient bill 66 Bill in chancery. No. 4. Constituent parts of 69 Affidavits for publication. No. 5. Non-residence of defendants, stating place of residence . . 78 No. 6. Non-residence of defendant ; place of residence not known, 78 No. 7. Defendant cannot be found 78 No. 8. Defendant concealed within this state 79 Notice. No. 9. To be served with copy of bill on defendant 80 Jo. 10. Of service of copy of bill and notice 80 No. 11. To obtain attachments, for not answering 84 Order. No. 12. For an attachment for not answering 84 INDEX. 777 Forms. FORMS — Continued. Affidavit. No. 13. In support of motion to set aside default 91 Petition. No. 14. To set aside decree, when defendant was not personally Notified - 91 Exceptions. No. 15. To a bill for impertinence and scandal 95 Demurrers. No. 16. Frame of, general 108 No. 17. Short form of 109 No. 18. Certificate of counsel to, in U. S. court 110 No. 19. Affidavit of defendant to, in TJ. S. court 110 No. 20. For want of equity 110 No. 21. For multifariousness Ill No. 22. For want of parties Ill No. 23. For want of privity Ill No. 24. To bill of discovery, when defendant may be examined as a witness Ill Demurrers. No. 25. To a bill, complainant has no interest 112 No. 26. To part of a bill 112 No. 27. To part of a bill, with answer as to residue 112 Pleas. No. 28. Commencement and conclusion of, etc. 119 No. 29. Commencement and conclusion of part of bill 119 No. 30. In abatement to jurisdiction of the court 120 No. 30a. Of coverture of complainant 120 No. 31. Of infancy without a procJiein ami 121 No. 32. That defendant never was administrator, etc 121 No. 33. That complainant is an alien enemy 121 No. 34. Want of proper parties 122 No. 35. Former suit pending ; 122 No. 36. Statute of limitations 123 No. 37. Release, supported by answer 123 No. 38. Stated account 124 No. 39. To a part of bill, answer to residue 125 Answers. No. 40. Title of, by one defendant 145 No. 41. Title of, joint and several 145 No. 42. Title of, by one of several 145 No. 43. Title of, to amended bill 146 No. 44. Title of, where exceptions were taken and bill amended. 146 No. 45. Title of, to supplemental bill j 146 No. 46. Title of, amended 146 No. 47. Title of, by guardian ad litem 146 No. 48. Introduction of, by one defendant 146 No. 49. Introduction to, of several defendants 146 No. 50. Where defendant admits a statement 147 No. 51. Where defendant admits statement of written instru- ment 147 No. 52. Qualified admission in 147 No. 53. Where defendant is ignorant of statements, etc 147 No. 54. Statements in joint answer, etc 148 No. 55. Where one of two deny allegations 148 No. 56. Where several are ignorant of allegations 148 No. 57. General frame of. 148 No. 58. Affidavit to 149 No. 59. Short form of 149 778 [NDEX. Forms. FORMS — Answers — Continued. No. 60. Of infants by guardian ad litem 149 No. 61. Statement claiming statute of frauds 149 No. 62; Conclusion of, insisting that there is a remedy at law. . . 149 Disclaimer. No. 63. General , 154 No. 64. Answer and 1SS Exceptions to answer. No. 65. For insufficiency 162 No. 66. For scandal and impertinence. 162 Order. No. 67. To expunge scandal and impertinence from an answer. . 163 No. 68. For leave to amend bill after replication 167 Order. No. 69. For leave to amend bill after demurrer, etc 168 Amendment. No. 70. To bill 169 Replication. No. 71. General 172 Petition. No. 72. For production of papers, etc 175 Orders. No. 73. For production of books and papers 176 No. 74. Of reference to master to take proofs 183 Report. No. 75. Masters, of testimony 184 No. 76. To master's report of testimony 185 No. 77. To master's report of testimony 185 Order. No. 78. Directing an issue of fact to be tried by a jury 190 Decrees and orders. No. 79. Caption, and title of 198 No. 80. Recital of, on order 199 No. 81. General form of order 202 No. 82. General, of a decree .' 202 No. 83. General, of order or decree 202 Bills. No. 84. Supplemental for specific performance, etc 208 No. 85. Supplemental against assignee of bankrupt 209 Petition. No. 86. For leave to file supplemental bill 210 Demurrer. No. 87. To supplemental bill 212 Plea. No. 88. To a supplemental bill 218 BUI. No. 89. Original, in the nature of a, supplemental bill 219 No. 90. To carry decree into execution 223 No. 91. Of revivor before decree 230 No. 92. Of revivor after decree 231 Order. No. 93. For revivor 236 Bill. No. 94. In the nature of a bill of revivor 243 No. 95. Of revivor and supplement 847 INDEX. 779 Forms. FORMS — Continued. Petition. No. 96. For leave to file a bill of review for errors of law 257 No. 97. For leave to file bill of review upon newly discovered evidence 258 Order. No. 98. For leave to file bill of review 259 Bill. No. 99. Of review upon error of law 260 No. 100. Of review on newly discovered matter 261 No. 101. Affidavit to, on newly discovered matter 262 Plea. No. 102. To a bill of review 265 Demurrer. No. 103. To a bill of review 266 BUI. No. 104. Of discovery, etc 270 Demurrer. _ No. 105. To bill of discovery, where no interest is Bhown 274 No. 106. To bill of discovery, for want of privity 274 Plea. No. 107. To bill of discovery, that action at law is pending 275 No. 108. To bill of discovery, that it would compel betrayal of confidence as solicitor 276 BiU. No. 109. Of interpleader .- 284 No. 110. Affidavit to, of interpleader 285 Demurrer. No. 111. To bill of interpleader, for want of affidavit 287 No. 112. To bill of interpleader, not showing right in defendant. 287 No. 113. To bill of interpleader, not showing right in com- plainant 287 Order. No. 114. For injunction on bill of interpleader 289 Decree. No. 115. Interlocutory on a bill of interpleader, etc 292 BiU. No. 116. To perpetuate testimony 297 Petition. No. 117. To perpetuate testimony 301 No. 118. Affidavit to 301 Gross-bill. No. 119. To a foreclosure suit 308 No. 120. In nature of a plea puis darrein continuance 310 BiU. No. 121. For specific performance, vendee v. vendor 327 • No. 122. For specific performance, vendor v. vendee 328 No. 123. For specific performance, of bond for a deed 330 No. 124. For specific performance, of contract for lease 331 Decrees and orders. No. 125. Of reference as to title of vendor, etc 335 No. 126. For an account between vendor and vendee 336 No. 127. Final, for specific performance 386 BiUi. No. 128. For a dissolution of a partnership, etc 342 No. 129. Affidavit to, for an injunction 345 No. 130. For an account of partnership dealings, etc 345 Decrees and orders. No. 131. Appointing a receiver in suit but\v<_i.n partners 347 780/ INDEX. Forms. FORMS — Decrees and orders — Continued. No. 132. For an account of partnership dealings • 348 No. 133. Final, for dissolution of partnership, etc 348 Bills. No. 134. By heirs of mortgagor to redeem '. 360 No. 135. To redeem from deed, intended as a mortgage 362 No. 136. To redeem goods pledged as security 364 No. 137. To set aside decree of foreclosure, and to redeem 365 Decree. No. 138. For redemption 368 Bills. No. 139. For foreclosure of mortgage, mortgagee v. mortgagor. . 376' No. 140. For foreclosure, by assignee v. mortgagor 378 No. 141. For foreclosure, mortgagee v. executor, etc. 380 No. 142. For foreclosure, mortgagee v. administrator, etc 382 No. 143. For foreclosure of deed, of trust, etc 383 No. 144. For strict foreclosure 386 Decrees. No. 145. Of foreclosure and sale, pro confesso 391 No. 146. Of foreclosure and sale, on a hearing 394 No. 147. Of strict foreclosure 394 Bills. No. 148. Of creditor, general 406 No. 149. In aid of execution, to remove fraudulent conveyance. . 413 No. 150. By creditor against executrix, etc 416 Orders and decrees. No. 151. Appointing receiver in creditor's suit 419 No. 152. Referring creditor's bill to master, etc 420 No. 153. That complainant's debt in creditor's suit be paid, etc. 420 No. 154. Setting aside fraudulent conveyance, in aid of execution 422 Bills. No. 155. For partition between heirs, subject to dower. 429 No. 156. For partition 431 No. 157. For partition and dower 433 Petition. No. 158. For partition 435 Decrees. No. 159. For partition 439 No. 160. For partition, etc 440 No. 161. For partition and dower 441 Affidavit. No. 162. Of commissions to make partition 444 Report. No. 163. Of commissioners, making partition, etc 445 No. 164. Of commissioners, that partition cannot be made, etc. . 446 Decree. No. 165. Confirming report of commissioner making partition.. . 447 No. 166. For sale, in partition suit 450 No. 167. ( Confirming sale, in partition suit 452 Petitions. No. 168. For dower, by widow 468 No. 169. Affidavit to partition for dower 469 No. 170. For dower, by husband 469 No. 171. To have dower assigned, by heirs, etc 470 Decree. . No. 172. For dower, appointing commissioners, etc 473 Affidavit. Hft 173. Of commissioners to assign dower 474 INDEX. 781 Forms. FORMS — Continued. Bills. No. 174. For divorce, on the ground of impotency 489 No. 175. For divorce, on the ground of former marriage, etc 490 No. 176. For divorce, charging adultery, by husband 493 No. 177. For divorce, etc., charging adultery, by wife 494 No. 178. For divorce, charging desertion 497 No. 179. For divorce, etc., charging drunkenness .' 499 No. 180. For divorce, for attempting life of the other 501 No. 181. For divorce, charging cruelty, etc., by husband 503 No. 182. For divorce, etc, charging cruelty, by wife 504 No. 183. For divorce, etc, charging conviction of crime, etc 507 Order. No. 184. Directing issues for jury, in divorce suit 512 Decree. i No. 185. For divorce, etc., on the ground of adultery, etc 514 No. 186. For divorce, etc., on the ground of adultery, custody of children, etc 515 No. 187. For divorce, on the ground of cruelty, etc. upon verdict of jury 516 Petition. No. 188. For alimony pendente lite, etc 518 Order. No. 189. Of reference as to alimony, etc 519 Report. No. 190. Of master as to allowance of alimony 530 Order and decree. No. 191. Confirming master's report as to alimony 521 No. 192. Interlocutory, for alimony, etc, pendente lite 521 No. 193. For permanent alimony 523 BiU. No. 194. For separate maintenance 527 Order. No. 195. Of reference to master, as to separate maintenance, allowance, etc 530 Report. No. 196. Of master, as to separate maintenance, etc 530 Decree. No. 197. For separate maintenance, etc 533 Bills. No. 198. To quiet title, and to cancel deed 540 No. 199. To quiet title, and to set aside tax deed 541 No. 200. To quiet title, and to set aside contract, etc 544 Decree. No. 201. To quiet title, and to cancel deed 546 BiU. No. 202. By heirs at law to set aside a will 551 Orders and decrees. No. 203. Directing issue of fact for a' jury to try validity of a will 553 No. 204. Setting aside a will 553 Bill. No. 205. For ne exeat republica 558 No. 206. Affidavit to 559 Order. No. 207. Of judge granting a ne exeat, etc 560 No. 208. Of master granting ne exeat, etc 561 Bills. No. 209. By landlord against tenant to restrain waste. 566 782 INDEX. Forms. FORMS — Bills — Continued. No. 210. To remove trustee, etc 571 No. 211. For appointment of new trustee, etc 573 No. 212. For a mechanic's lien on written contract 592 Petitions. No. 213. For mechanic's lien on verbal contract 594 No. 214. For mechanic's lien on implied contract 596 Answers. • No. 215. Of owner defendant to a bill or petition for mechanic's lien 600 No. 216. Setting up a discharge of mechanic's lien 602 No. 217. Setting up another lien in mechanic's lien suit 602 Cross-bill. No. 218. By a defendant to mechanic's lien suit 604 Decrees. No. 219. Allowing mechanic's lien, and for sale 607 No. 220. Allowing mechanic's lien, reserving adjustment, etc. . . 608 No. 221. Allowing mechanic's lien, and adjusting conflicting claims 608 Suggestion. No. 222. Of damages on dissolution of injunction 617 Orders. No. 223. Where defendant appears, or is brought into court by attachment and admits his contempt, that he put in answer, etc. 618 No. 224. For commitment of defendant for disobeying order to put in answer 618 . No. 225. In case of contempt for not answering, where defend- ant denies his contempt, directing interrogatories 619 No. 226. Convicting defendant of contempt after his examina- tion on interrogatories 620 No. 227. To refer second or third answer on old exceptions 621 No. 228. For sheriff acting as sergeant-at-arms 621 No. 229. For sequestration 622 No. 230. Of reference where defendant does not submit to an- swer exceptions 622 No. 231. For further answer after report of master 623 No. 232. For attachment on third answer being held insufficient 623 No. 233. For examination of defendant on interrogatories on third answer being held insufficient 623 No. 234. For leave to amend bill after a plea to part is allowed. . 624 No. 235. Of reference to master 624 No. 236. Of reference of a plea of former suit pending 625 No. 237. Directing plea to stand for an answer 625 No. 238. Allowing complainant to dismiss his bill 625 No. 239. To pay money into court 625 Decree. No. 240. Final, dismissing bill at hearing 626 Order. No. 241. For cause to stand over, to add new parties 626 No. 242. For cause to stand over, to supply proof 626 Interrogatories. No. 243. For examination of a party in contempt, etc 627 Answer. No. 244. To interrogatories for examination of a party in con- tempt, etc 627 Report No. 245. Of master upon exceptions to answer, etc 628 INDEX. 783 Forms of Constituent Parts of an Original Bill — Injunctions. FORMS — Continued. No. 246. Answer, further, after exceptions, etc 628 No. 247. Report of master as to defendant's examination 629 No. 248. Exceptions to report on exceptions to answer 629 No. 249. Agreement to submit on written arguments 630 No. 250. Abstract of pleadings and evidence 630 No. 251 . Brief and Points to be used on the hearing . . . .■ 631 No. 252. Praecipe for a writ of error 649 No. 253. Praecipe for scire-facias to hear errors 650 No. 254. Prcecipe for record in common law case 662 No. 255. Prcecipe for record in chancery case 662 No. 256. Assignment of errors 672 No. 257. Joinder in error 674 No. 258. Plea of release of errors 676 No. 259. Suggestion of diminution of -record 680 GENERAL PRINCIPLES*OF EQUITY PLEADING. Nature of, etc 32-34 GUARDIAN AD LITEM— Answer by ■ 144 Formof V 150 Rules of Supreme Court of U. S. relating to HABITUAL DRUNKENNESS— (see DBxrNKBKNBsa— Divobck.) HEARING — Course of proceeding 191-193 Of a case out of its order 193 Original and cross-bill heard together 193 Effect of former orders on 194 Of demurrer 107 Of supplemental bill 215 Of bill of revivor 237 Of bills of interpleader 290 Of divorce suits 472-512 IDIOTS, LUNATICS — Commencement of suits by 38 JMPERTINENCE — Nature of 52, 160 Form of exceptions to answer for 162 Form of order expunging from answer for 163 IMPOTENCY— At time of marriage a ground for divorce 486, 488 Form of biU for dimorce on that ground 489 INFANTS — Bond for cost on commencement of suit by 38 Answer of by guardian ad litem 144 Form of answer by guardian ad litem 150 INFANCY— Form of plea of, without a prochein ami 121 INFORMATION — Commencement of suit by 85 INJUNCTIONS — Statute of Illinois relating to 613-617 J udges authorized to grant 612 Master in chancery may grant in absence of judge 612 Notice of application for 613 To stay j udgmeuts where had 612 784 ' INDEX. Insufficiency — Interrogatory. INJUNCTIONS — Continued. Shall operate as a release of errors 612 Judgments before J. P — 613 As to part of a judgment. 613 Complainant to give bond. 613 Approval of 613 To be filed before writ issues 614 Assessment of damages on dissolution 614 Form of suggestion of. 617 Violation of, contempt. _ 614 Motion to dissolve 614-615 In vacation 614 For want of equity 615 Affidavits upon 615 Continuance of •. 615 Depositions on hearing of . . , 615 Same may be read on final hearing. 616 Effect of an appeal on 616 Further bond on continuance 616 When granted on Sunday 616 Form of prayer for in a/biO, 73 Where bill of interpleader is filed 288 Form of order for on interpleader bill 289 In divorce suits 510-511 In suits for separate maintenance 527 INSUFFICIENCY— Exceptions to answer for. 158 Form of 162 INTERLOCUTORY— (see Deckees, etc.) INTERPLEADER— • In partition suits 437 In suits for dower 472 INTERPLEADER, BILL OF— Nature of, and when proper 279-282 Form of bill 283 Affidavit of non-collusion 283 Form of bill 284 Form of affidavit to be annexed. 285 Defenses to 286 Demurrer 286 Form of ', for want of affidavit of non-collusion. 287 Form of, not showing any, claim in defendant. 287 Form of, not showing any right in complainant. 287 Answef 287 Form of order for injunction upon 289 Taking bill as confessed 289 , Hearing and decree , . 290-291 Costs upon *. 291 Form of interlocutory decree directing a reference 292 INTERPRETER — May be sworn in taking depositions.. . ". ' 182 INTERROGATING PART OF A BILL— Nature of, etc 55 Form of. 72 Rules of Supreme Court of U. S. relating to 718-719 INTERROG ATORY— Form of last, in taking testimony for U. 8. court 727 INDEX. 785 Introduction — Mechanic's Lien, Proceedings to Enforce. INTRODUCTION — Of a bill in chancery. 41 Formof. 69 ISSUES TO BE TRIED BY JURIES — formof order directing 190 In divorce cases 512 Form of order directing 512 To try validity of will 553 Form of order directing 553 JOINDER OF PARTIES — 1 Nature of , etc 64-65 Misjoinder of 65 JURISDICTION — Plea to 115 Formof 120 In divorce suits 485 JURISDICTIONAL CLAUSE— In a bill in chancery 54 Formof 72 JURY— Trial of issues of fact by 188-191 {See Feigned Issues — TbiaIi bt Jtjby, Bra) Trial by, in divorce suits 512 In suits testing validity of a will 553 LANDLORD AND TENANT — Form of bill by landlord to restrain waste, ete. 566 LIENS — (see Mechanic's Lien.) Priority of, in creditors' bills 403 LIMITATIONS — Form of plea of statute of. 123 Of mechanic's lien 581 Of sub-contractor's lien 590 LOST INSTRUMENT — Specific performance of contract, lost '. 323 MAINTENANCE, SEPARATE— When granted 625-527 Grounds for 525-526 Proceedings to obtain 527 Where commenced 527 The bill • 627 Injunction, when allowed 527 Form of bill for 627 Defenses to 629 Practice in, and decrees 529 Reference to master 529 Form of order of. 530 Form ofreportof. • 530 Amount of allowance 631-538 (See Aximont.) Modification of 633 Form ofdecreefor. 533 MECHANICS LIEN. PROCEEDINGS TO ENFORCE — Nature of : ••• 676 Where a lien is given o7o-o79 Suits by administrators, etc 577 Estate to which it attaches 677 50 786 INDEX. Mechanic's Lien, Proceedings to Enforce. MECHANIC'S LIEN, PROCEEDINGS TO ENFORCE— Continued. Extent oflien 577-579 Contract on which it is founded 579-580 Implied contracts 579-580 Where owner fails to comply with contract 580 Materials furnished contractor 580 Discharge of 580-581 Limitations of 581 As against the owner 581 As against creditors, etc. 581-582 Incumbrances, and other liens 582 Rule for adjusting 582-583 - Conflicting claims 583 Where claims are not due 584 Parties may contest each other's rights 584 Fraudulent incumbrances^ etc 584 Delay in one case not to delay others 584 Sub-contractor's lien 585 Ndtice to be given owner 586 Form of 586 Copy of contract to be served 586 Notice, etc., to be filed with circuit clerk, etc 586 Owner may retain money to pay, etc 587 Statement of persons employed, sub-contractors, etc., to be furnished owner 587 When it may be enforced 587 Judgments before justice of the peace 588 Owner may file bill, etc . ( 588 Proving claims under r. 588 Contractor may give bond, etc. ; 589 Where contractor fails to complete contract 589 Limitations of 590 Bills and petitions 590-592 Parties to 591 Forms of . BiUfor, on written contract 592 Petition for, on verbal contract 594 Petition for, on implied contract 596 Proceedings upon , 598 Summons 598 Notice by publication 598 Docketing case on chancery side 598 Amendments 599 Answers 599 Forms of. By owner 600 Setting up discharge of lien 602 Setting up another lien 602 Cross-bill 604 Form of „ 604 Decrees, etc., and sales 606 WEere apart of the premises can be sold ; 606 Sales, how made 606 Execution allowed for balance , 606-607 Forms of decrees. Allowing lien, and for sale of premises 607 Allowing lien, where other proceedings are pending, etc 608 Allowing Men, wJtere tfiere are several liens, and a mortgage to be adjusted 608 Costs 611 INDEX. 787 Misjoinder — Parties. MISJOINDER — Of parties to a bill 65 MORTGAGES — (see Foreclosure of Mortgages, Redemption, etc.) MULTIFARIOUSNESS — Nature of, and what is 48-51 Form of demurrer, on that ground Ill NE EXEAT — Nature of, and when proper 555-557 Form of bill for 558 Affidavit to .' ... 559 How obtained, etc 559 By whom granted 559 Bonds to be given, etc 559 Order directing clerk to issue writ 560 Form of, by a judge 560 Form of, by master in chancery 501 Proceedings upon , 561 The writ 561 Defendant's bond 561 Surety may surrender principal 561 Proceedings in court ' 562 Quashing writ, etc . . » 562 NOTICE — (see Depositions, Publication, etc.) NORTHAMPTON, ETC., TABLES— (see Portsmouth or Northamp- ton Tables.) NUNC PRO TUNC — Decrees, clause in '■ 200 OATH — Waiver of, to an answer 141 Of commissioners to make partitions 443 Form of. 444 Of commissioners to assign dowei 474 Form of 474 (See Affidavits.) OBJECTIONS — To master's report 183-186 Form of 185 ORAL TESTIMONY — To be heard on a hearing 186 ORDERS — (see Decrees and Orders.) PAROL CONTRACTS — May be specifically performed 334 PARTIES — To bills generally 61-65 Who should be made 62-63 How described 63 Persons under disability 63-64 Form of demurrer for want of. Ill Form of plea of want of. 123 To a supplemental bill 205 To bills in nature of bills of revivor 242 To bills of review 254-255 To bills for specific performance 325-326 To bills to redeem 254-257 Complainants 254-256 ' , Defendants 256-267 788 INDEX. Partition Suits. PARTIES — Continued. To biUs to foreclose mortgages 372-375 Complainants 372-373 Defendants , 373-375 To bill of strict foreclosure 385 To a creditor's bill 400-402 Complainants 400-401 Defendants 401-402 To partition suits 426-428 Complainants or petitioners 426-427 Defendants 427^*28 Unknown parties in partition suits 428-436 Process against 436 To suits for dower 467-468 Unknown defendants in dower suits 468, 471 In proceedings to enforce mechanic's lien 591-592 Unknown defendants 81 How made parties •. 81 Publication as to 81 Rules of Supreme Court of U. S. relating to nominal parties 721 PARTITION SUITS — Nature of, and bow instituted 423-426 Illinois statute 425-426 Parties to 426-428 Complainants or petitioners ' 426-427 Defendants 427-428 Unknown 428 Bill or petition 428 Frame of 428 Forms of. Between heirs, subject to dower 428 Bill for 431 Bill for partition and dower 433 Petition for partition 435 Affidavit to 435 P ocess of appearance in 436 Summons 436 Unknown defendants, notice to 436 Absent defendants, notice to 436 Service by copy 436 Interpleader 437 Liens on shares of part owner 437 Decrees for partition '. 437-439 Appointment of commissioners 438 Allotment of dower and homestead 438 Costs apportioned 439 Forms of. Decrees for partition 439-440 Decree for partition and dower 441 Proceedings by commissioners 443 Required to take an oath 443 Form of oath 444 Duty of commissioners 444 Report of. 445 Form of, making partition 445 Form of, that premises not devisable 446 Form of decree confirming 447 Exceptions to report of commissioners 448 Decree of sale 448-449 INDEX. 789 Partnership Matters, Bills Relating to — Pleas. PARTITION SUITS— Continued. Dower interest provided for. .*. 449 Interest of unknown owners 449-450 Form of 450 Exceptions to report of sale 451 Confirmation of sale 451 Form of decree confirming sale 452 PARTNERSHIP MATTERS, BILLS RELATING TO— Where a dissolution will be decreed 338-340 Account between partners 340-341 Appointment of a receiver •. 341-342 When appointed 342 Forms of bills. For a dissolution, and for injunction 342 Affidavit to, to obtain injunction 345 For an account, and for injunction 345 Forms of orders and decrees. Order appointing a receiver 347 Decree for an account 348 Final decree for dissolution and account 348 PETITIONS — Setting aside decree when defendant is not personally notified. 91-93 Form of, for leave to amend bill after replication 167 Form of , for production and inspection of papers, etc 175 For leave to file supplemental bill 210 Form of 210 For leave to file bill of review 256-257 Form of, for errors of law 257 Form of, upon discovery of new matter 258 To perpetuate testimony 300-304 Formof 301 Form of, for partition 435 For dower . . : 466 et seq. Form of, by widow 468 By husband 469 By heirs 470 Form of, for alimony, pendente lite 518. For mechanic's lien — (see Mechanic's Lien.) Form of, on verbal contract '. 594 On implied contract 596 PLEADING IN EQUITY— General principles of 32-34 PLEAS — (see Pleas to a Bill.) To a supplemental bill 212 To a bill. of revivor 233 To a bill of review 262 To bills of discovery 274 To a cross-bill 315 Forms of. Commencement and conclusion of 119 To part of bill 119 In abatement to jurisdiction of court 120 Of coverture of complainant : ■ • 120 Of infancy without a prochein ami ... 120 That defendant never was administrator 121 Alien enemy 121 Want of proper parties 122 Former suit pending 122 790 INDEX. Fleas to a Bill — Premises, or Stating Part of a Bill. PLEAS — Forms of— Continued. Statute of limitations 123 Release, supported by answer 123 Stated account 124 To a part, with answer to residue 12i To a supplemental bill 213 To a bill of review 203 To a bill of discovery, action pending, etc 275 To a bill of discovery, would betray professional confidence. . . 278 Rules of Supreme Court of U. S. relating to 716-717 PLEAS TO A BILL — Nature of 113-114 When proper 114 To the jurisdiction 113 To the person 115-1 16 To the bill : 116 In bar 116 Frame of : . . 116-119 Forms of lla Commencement and conclusion of 119 To a part of a bill 119 In abatement to jurisdiction of the court 120 Coverture of complainant 120 Infancy, without prochein ami 121 That defendant never was administrator 121 That defendant is an alien enemy 121 Want of proper parties 123 Former suit pending 122 Statute of limitations 123 Of release, with answer in support of. 123 Of stated account 124 Plea to part and answer to residue 125 Signing of 126 When to be sworn to 126 When to be filed ■ 126 Demurrer to, not allowed 107-127 Replication to , 127 Amendment of bill after 127 Demurrer to, not proper 127 Argument of ■ 127 Effect of allowing 128-129 Saving benefits of, to the hearing 129 Allowing to stand for an answer 130 Overruling of 130 When to be supported by answer 130-132 PORTSMOUTH OR NORTHAMPTON TABLES — For determining value of annuity, etc. 480 PRACTICE IN SUPREME AND APPELLATE COURTS— Jurisdiction of supreme couht 633-637 Original jurisdiction .- 634 In revenue cases 634 In mandamus 636 In habeas corpus 637 Appellate jurisdiction : 637-641 From appellate court 639 From circuit courts, etc 641 Jurisdiction op appellate courts — Constitutional provision 641 Appellate only 642 Power of court 642 INDEX. 791 Practice in Supreme and Appellate Courts. PRACTICE IN SUPREME AND APPELLATE COURTS— Continued. Practice and pleading 642 Enter judgment in vacation 643 Opinions 643 Appeals to 643 Agrked cases — On questions of fact 645 On questions of law 646 WRIT OP ERROR — SUPERSEDEAS — Writ of error 647 Limitation of. 647 To whom directed 648 Process on 648 Prcecipe for 649 Prcecipe for scire-facias, etc 650 • Return day * 650 Notice to non-residents, etc 651 To purchasers — terre-tetiants 652 Supersedeas 652 Whengranted 653 Application for 653 Effect of 655 Security for costs 655 Appeals — When record to be filed 656 Dismissal of 657 Damages on 657 Not for want of sufficient bond 658 Effect of 658 Records op inferior courts — How prepared 659 Placita of, or convening order 660 What is not a part of - 660 Prcasipe for 661 Forms of 662 Amending transcript 663 Additional 663 Amendment of 664 Removing from office of clerk 664 Docket — Docketing and hearing 665 Advancing causes 665 Redocketing causes not decided 666 Call of 666 Time for filing abstracts and briefs 666 Effect of failure 669 Rehearing docket 670 Assignment of errors and proceedings thereon — When errors must be assigned 670 Additional errors 672 Form of assignment of errors 672 Cross-errors 673 Joinder in error 673 Form of 674 Special pleas . . ,, 674 Release of errors 674 Time of filing 6T6 Form ofpha of release of errors 676 Trial of issues 677 792 INDEX. Practice in Supreme and Appellate Courts — Praecipe. PRACTICE IN SUPREME AND APPELLATE COURTS— Continued. Motions — When to be made 677 In what order 678 Special 678 Affidavits in support of 678 To vacate orders 679 Suggestion op diminution of record — When to be suggested 679 Form of 680 costs on 680 Original papers — When to be produced 681 Abstracts of the record — To be f urnished 681 Time of filing 684 Costs of 684 Brief and argument — Briefs 684 Number of copies 685 Oral arguments C86 Time allowed for 688 Advance fees of clerk — How much required 689 Cases taken from appellate to supreme court — Manner of taking 690 Making up record for 691 Application for appeal in vacation 694 Judgments — May be final 694 Remittitur 695 Reversal 696 Effectof 696 Remanding 696 Special directions 696 Executions — May be had from appellate court 696 Rehearing — Application for : 697 When and hovr made 697 Answer to 701 Stay of proceedings 699 Licensing attorneys — striking names from roll — Examination in supreme court 701 In appellate court 702 From other states 703 By whom issued 704 Oath of attorney 704 Roll of attorneys 704 Striking names from roll 704 Cause of 705 Notice of complaint 706 Information , 706 Library — Duties of librarian 707 PRAECIPE— For writ of error 649 Form of 649 INDEX. 793 Praecipe — Receiver. PRECIPE — Continued. For scire-facias 650 Form of 650 PRAYER— For relief in a bill 56-58 Form of 73 For process in a bill 58-59 Forms of 73 For summons 73 For subpoena. . . 73 For injunction '. 73 Of a supplemental bill 207 PREMISES, OR STATING PART OF A BILL— Requirements of, generally 42-52 Form of -. 70 PRIVITY— Form of demurrer for want of Ill PROCESS FOR APPEARANCE— Summons 74 Service and return of 75-77 How served 75 Theretum 75-77 Notice by publication '. 77 Time of ., ■■-• 77 Form of affidavit for 7S-7S\ Non-residence of defendant — residence not known 78 Defendant cannot be found 7s Defendant is concealed - 79 Service by copy of bill 79-80, 43C Form of notice to be served with 8» Form of affidavit of service 80 Unknown persons as defendants 81 Attachment to compel answer 81 How obtained 83 Form of affidavit to obtain : - 84 Form of order for 84 Attachment with proclamation 84 Commission of rebellion 85 Sergeant-at-arms 85 Sequestration • 80 In partition suits 46 In mechanic's lien suits 598 To a supplemental bill 211 Upon cross-bill. . 313 In the U. S. courts of equity "12 Serviceof 711-712 PROCHEIN AMI— Rule of Supreme Court of U. S. relating to 731 Required to give bond for costs 38 PUIS DARREIN CONTINUANCE— FOKM OF CROSS-BELL IK NATOKK OF PULA. OF. . . oW RECEIVER— Appointment of, in suits between partners «SM-d4/5 When appointed 342 Form of order appointing .^ «47 Form of order appointing in creditor s suit 419 794 INDEX. Records of Inferior Courts — Revivor, Bill of. RECORDS OP INFERIOR COURTS — (See Practice in Supreme and Appellate Courts.) RECRIMINATION— In divorce suits 510 REDEMPTION— (See Bills to Redeem.) RELEASE— Form of plea of, supported by answer 133 RELIEF— " Prayer for in a bill 56-58 Form of 73 REPLICATION— Nature of. 170 Within what time to be filed 170-171 Issue made by 171 Effect of filing 173 Withdrawing 172 Form of .• 172 To answer to bill of revivor 235 Toaplea 127 Rules of Supreme Court of U. S. relating to •. 724 REPORT— Of commissioners to make partition 445 Form of, where partition was made ' 445 Form of, where premises not susceptible of division 446 Form of, of master in chancery, of evidence 184 Form of, of master as to alimony, etc 520 Form, of, of master as to separate maintenance. 530 Form of, of master as to exceptions to answer 628 Form of, of master as to sufficiency of defendant' s examination . . 629 REVIEW, BILLS OF— Nature of, and when proper 249-254 Where they lie 249 For error of law 251-253 For newly discovered evidence 253-254 Parties to 254-255 Leave to file 255-258 Performance of decree 256 Petition for 256-257 Form of , for errors of law 257 Form of, for newly discovered evidence 258 Within what time to be brought 258-259 Form of order of leave to file 259 Formofbill 259-260 Form of, upon errors of law 260 Form of, on discovery of new matter 261 Form of affidavit to 262 Defenses to 262-266 Demurrer 264-265 Form of 266 Answer 265 Form of plea to 265 REVIVOR, BILL OF- Natureof 225 When proper 226-228 Before decree 226-227 After decree 227-228 INDEX. 7&5 Revivor, Bill of — Specific Performance, Bills for. REVIVOR, BILL OF— Continued. Against whom to be filed 228 Before decree 228-229 After decree 229 Frameofbill 230 Must pursue the original bill 230 Form of, before decree 230 Form of, after decree 231 Defenses to 233 Demurrer 233 Plea 233-234 Answer 234-235 Replication 235 Order to revive.. 236 Form of 236 Hearing «. 237 Effectof 238-238 Bills in the nature of. Nature and uses 240-242 Parties to 242 Frame of 242 Form of : 243 Defenses to and proceedings upon 245 Revivor and supplement. Nature of, and when proper 246 Practice upon 'J 247 Form of 247 Rules of Supreme Court of U. S. relating to 721-723 SCANDAL AND IMPERTINENCE— ' Of what it consists, in a bill 51-52 Exceptions to a bill for 95 Form of 95 Exceptions to an answer for 160-162 Form of 163 Form of. order expunging 163 Rules of Supreme Court of U. S. relating to 714-715 SEPARATE MAINTENANCE^ (See Matntenancf etc.) SEQUESTRATION— When directed, etc °6 SERGE ANT- AT- ARMS— When appointed, etc °5 SPEAKING DEMURRERS— What are, and nature of 1° 5 SUMMONS— (See Process of Appearance.) SWEARING TO A BILL— When required • bl -°« To a bill of review— newly discovered matter #>4 To a bill of interpleader 285 SPECIFIC PERFORMANCE, BILLS FOR— Nature of, and when proper » ~iH Of a lost instrument »* 6 Parol contracts - ■ • f\ Parties to 325 'f OR Frameofbill «6 Tender sil 796 INDEX. Specific Performance, Bills for — Supplemental Bills. SPECIFIC PERFORMANCE, BILLS FOR— Continued. Forms of. Of a written agreement, vendee vs. vendor 327 Of a written agreement, vendor vs. vendee 328 Of a bond for a deed ; . 330 Of an agreement for a lease 331 Decree ' 333-335 Declaration of right to 333 Reference of title 334 Payment of purchase money, etc.. 335 Delivery of deeds, etc 335 Forms of orders and decrees. Order of reference as to title, etc 335 Interlocutory, for an account 336 Final decree for 337 Form of supplemental bill for 208 STATUTE OF FRAUDS— Form of answer, setting it up ... . 150 STRICT FORECLOSURE — (See Foreclosure of Mortgages.) SUB-CONTRACTOR— (See Mechanic's Lien.) SUBPOENA— Form of prayer for, in a bill 73 SUPPLEMENTAL BILLS— Nature of, and when proper 203-305 When to be filed 205 Parties to 205-206 Form of 207 Prayer of 207 Form of, for specific performance, etc 208 Form of, against assignee of bankrupt, etc 209 Petition for leave to file 210 Form of 210 Process, etc 211 Defenses to 211 Demurrer. 211 Form of 212 Plea 212 Form of 213 Practice as to demurrers and pleas 213 Answer 213 Replication and evidence 214 Replication 214 Evidence ' 214-215 Hearing of 215 Entitling orders in 215 Dismissing 216 Bills in the nature of — When proper 217-219 Form of 219 Form of bill in nature of 219 Bills to carrt decrees into execution — Nature of 222 Form of 223 Bills of revivor and supplement — Nature of, and when proper , 246 Practice upon 247 Form of 247 INDEX. 797 Supreme Court — Waste, Bills to Restrain. SUPREME COURT — (See Practice in Supreme and Appellate Courts.) TAKING BILLS AS CONFESSED — Default 87 When it may be-taken ". 87 Effect of 88-89 Rights of defendant after 90 Setting aside 90-91 Form of affidavit in support of motion to 91 Setting aside decree when defendant is not personally notified . 91-93 Form of petition to set aside decree, etc 93 To accept, what the term means 87 Rule to answer 87-88 In case of bills of interpleader 289 TAX DEED — Form of bill to set aside, etc 541 TESTIMONY — Production of books and writings 174 When in the hands of third persons 175 Forms of petition for production of , etc 175 Form of order for 176 Depositions 176 Of resident witnesses 176-177 Of non-resident witnesses, etc 177-178 Notice of taking, when opposite party is a non-resident, etc. . . 178 Of non-resident witnesses, upon oral interrogatories 179 Manner of taking, etc 180-181 Instructions for taking 182 Interpreters in taking 182 Evidence taken by master in chancery 182 Form of order of reference 183 Form of master's report of 184 Form of objections to 185 Form of exceptions to 185 Oral testimony at the hearing 186-187 TRUST DEED — Form of bill to foreclose, etc 383 TRUSTEES — Form of bill to remove 571 Form of bill for appointment of, etc 573 TRUSTS, BILLS RELATING TO — Nature of 569-570 Forms of bills 571-574 To remove trustee, for injunction, and receiver 771 For appointment of new trustee, etc 573 UNKNOWN OWNERS — In partition suits 428 Process against, in 436 Interest of, in partition sales 449-450 In dower suits 471 UNKNOWN PARTIES — (See Parties.) WASTE — By persons to whom dower is assigned 482 WASTE, BILLS TO RESTRAIN— Nature of. and when proper 563-566 Form of bill, landlord against tenant 566 798 INDEX. Wigglesworth's Table — Writ of Error. WIGGLESWORTH'S TABLE— For ascertaining present value of annuity, dower, etc 479 WILLS, BILLS TO SET ASIDE— Nature of, and when proper 547-548 Wha£ necessary to constitute a valid will 548 Fraud in procuring execution of 549-550 Want of capacity to make. 550 Form of bill 551 Issue of fact to be tried by a jury 553 Form of order directing 553 Form of decree setting aside, etc 553 WITNESSES— Compulsory attendance of in U. S. court 726 WRIT OF ERROR — (See Practice ih Supreme and Appellate Courts.) '-..'