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CORNELL UNIVERSITY LIBRARY 
 
 3 1924 084 259 989 
 
The original of tliis book is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924084259989 
 
COMMON FORMS AND RULES 
 
 FOE 
 
 DKAWING AND AjSfSWEEINa 
 
 AN 
 
 ORIGINAL BILL IN CHANCERY, 
 
 AS DIRECTED AND SUGGESTED BY THE NEW ORDERS 
 OP COURT AND REPORTED CASES ; 
 
 MOST CAKEFULLT COLLECTED 
 
 Bt GEORGE FARREN, ESQ., 
 
 CHANCEEY BARRISTER. 
 
 WITH NOTES AND REFERENCES TO AMERICAN AND 
 OTHER AUTHORITIES, 
 
 BY 
 
 RICHARD STONE, 
 
 OP THE BOSTOS BAR; 
 ALSO, 
 
 THE RULES OF PRACTICE FOR THE COURTS OF EQUITY 
 OF THE UNITED STATES, 
 
 AS IIT FORCE AT THE PRESENT TIME; 
 
 WITH ANNOTATIONS ON THE SAME, 
 
 AND AN 
 
 APPENDIX 
 
 ox AMERICAN I/AW OP EVIDENCE IN EQUITY CASES DECIDED IN 
 
 THE COURTS OF THE UNITED STATES AND THE SEVERAL 
 
 STATES FROM THE EARLIEST PERIOD, 
 
 BY 
 
 JOHN J. McKINNON, 
 
 OF THE CHICAGO BAR. 
 
 E. B. MYERS AND CHANDLER, 
 
 LAW BOOKSELLERS AND PUBLISHERS, 
 
 CHICAGO : 
 
 1866. 
 
1&633I7 
 
 Entered according to Act of Congress, in tlie year 1866, by 
 
 E. B. MYERS AND CHANDLER, 
 
 In the Clerk's Office of the District Court of the District of the United States for 
 
 the Northern District of Illinois. 
 
 Stereotypea and Printed by 
 
 ROCKWELL AND K0LHN8, 
 
 122 WaBhiDffton Street, Uoston, 
 
FORMS AND RULES. 
 
 Before the component parts of a Bill in 
 Chancery can be fiilly detailed by me, so as to 
 be easily understood, it appears necessary that 
 the extent to which the Court acts on presump- 
 tion be justly dejBned. To accomplish such an 
 end, the foUowing short rules have been scruti- 
 nized with industry, and most carefully worded. 
 
 To WHAT EXTSINT THE CoURT ACTS ON PeE- 
 SUMPTIOK. 
 
 1. The Coint will not of ifoeZ/^ presume a party 
 to have a better title, or better claims for equity, 
 than the pleadings of the party himself dis- 
 close.^ 
 
 IN". B. Therefore, if relief be sought as Heir, 
 it is necessary to show sufficient facts by state- 
 
 1 Bury V. Bokenham, 1 Dyer, 12 a. Norbury v. Meado, 3 Bligh, 
 
 233. Cuthbert v. Creasy, 6 Maddock, 189. Flint v. Field, 2 An- 
 
 stTuther, 643. Harrison o. Nixon, 9 Peters, 603. 
 1* s 
 
6 rOEMS AMD RULES FOR DRAWING AN 
 
 ment to demonstrate the plaintiff to be Heir, and 
 not merely a descendant or a son; and also to 
 show by statement in the Bill sufficient facts to 
 manifest equity sufficient to warrant such relief 
 being granted to him as he claims as heir by the 
 Bill. 
 
 2. The Court wUl not of itself presume a party 
 to be more guilty than the pleadiags actually 
 show the party to be, untU evidence supplies 
 proof of further guilt.^ 
 
 ]J^. B. Therefore, mere general assertions in a 
 Bill, that a defendant has acted fraudulently or 
 illegally, are not sufficient of themselves to in- 
 duce the Court to presume a defendant to have 
 acted so, as they do not limit the accusation to 
 any character of acts, unless there be also asser- 
 tions made, supplying tlie particular facts pre- 
 cisely by statement, which show his actions to 
 have been fraudulent or Ulegal.^ 
 
 3. The Court of itself will not presume any 
 pleadings to be false or incorrect, unless shown 
 to be so by their own contents, or by proper evi- 
 dence brought before the Court. 
 
 4. The Court of itself yriW. not presume that a 
 fact which has been proved to have occurred or 
 to exist, has ceased to be in existence, or has be- 
 
 ' Crisp V. Pratt, Crote Car. 550. Oxford's Case, 5 Coke, 347. 
 Palmer a. Vaughan, 3 Swanston, 177. Clarke v. Periam, 2 Atk. 333. 
 
 2 For a similar rule as to a plaintiff making general statements 
 as to his own acts, see Cutlibert v. Creasy, 6 Maddock, 189. 
 
ORIGINAL BILL AND ANS"WEE IN CHAJS'CEEY. 7 
 
 come more injurious, unless proved to be so by 
 proper evidence.^ 
 
 5. The Court of itself will not presume any 
 fact to have occurred or to exist, that can possibly 
 ajffect the merits of the case, or rights of the 
 parties, unless mutual consent, sufficient lapse of 
 time, undue forbearance, or evidence, author- 
 izes the Court to do so, unless infants are con- 
 cerned.^ 
 
 ]Sr. B. This rule is observed, even though a 
 particular fact may seem to stand out as being in 
 existence to a certainty, from the very nature of 
 the facts actually already proved, if such appar- 
 ent fact (affecting the merits of the case, or rights 
 of parties) may, by any chance, not really be in 
 existence, through force of any one accident that 
 can be mentioned, or supposed as possible to have 
 happened; except when contraries are proved to 
 exist, and then the Court presumes that fact only 
 to have occurred, or to exist, which seems most 
 likely to be so from the nature of the pleadings, 
 evidence and circumstances of the case, taken 
 alto'gether. 
 
 Therefore it is necessary to state in the BUI 
 each important fact depending on provable cir- 
 
 ' Casus XII. Jenkins's Centurise, 198. Lloyd v. Trimleston, 2 
 Molloy, 81. Banbury Peerage, 1 Simon & Stuart, 156. Hall v. 
 Warren, 9 Ves. 611. Dunn «. Calcraft, 2 Simon & Stuart, 66. 
 
 2 Gordon v. Gordon, 3 Swanst. 472. Cridland, ex parte, 3 Ves. 
 & Bea. 99. Smith u. Clarke, 12 Ves. 477. Clarke d. Turton, 11 
 Ves. 240. Perfect v. Curzon, 5 Maddbck, 442. 
 
8 FORMS AND RULES FOE DRAWING AN 
 
 cumstancesj for, being of importance to the 
 plaintiff's case, and not undeniably certain in its 
 existence, it will not be presumed. 
 
 6. The Court of itself will presume such con- 
 sequences to have happened or to exist as are not 
 provable facts, but are dependent wholly for then* 
 existence on the logical reasoning of the Law, 
 or Equity, from the facts actually established in 
 the case. Any reported case wiU exemplify this 
 rule.^ 
 
 I^. B. For instance, the Court, on sufficient 
 facts being estabhshed in the case, will presume, 
 as a consequence from such facts, That A ought 
 
 to , is entitled to , may , is 
 
 in fault as to , should , miist not 
 
 , because such a writing as is a 
 
 -, and imports , and therefore is an 
 
 absurdity in law, and is also uncertain, illegal, 
 &c.; therefore, B is to have ^ — , and is en- 
 titled to possession of . 
 
 Having mentioned what consequences the 
 Court will presume, it may perhaps help to mani- 
 fest the rule more fully, if that sort of conse- 
 quences which the Court will not presume be 
 mentioned by means of an example. 
 
 7. The Court of itself will never presume that 
 A has possession, however many collateral facts 
 may be estabhshed, which together almost mani- 
 
 ' Hampsou t>. Hampson, 3 Ves. & Bea. 41. 
 
ORIGINAL BILL AND ANSWER IN CHANCERT. 9 
 
 fest to a certainty that A, as a consequence, has 
 possession; because, whether A has possession 
 or not, is a provable fact, directly provable; and 
 to assume, therefore, that he has possession, were 
 arbitrarily to supply facts by giving evidence as 
 if a witness, and perhaps as a false witness. 
 
 8. The Court of itself will presume that each 
 party knows the law, and what is equity, if not 
 shown to be an infant, lunatic, or incapacitated 
 person; but that each party is ignorant of a fact 
 till such fact is shown to be his own act, or part 
 of his proper duty, or that he had afforded him 
 proper opportunity for taking notice of such 
 fact.^ 
 
 The Foem of the Bhll. 
 
 The modern BUI in Chancery differs in form 
 in many particulars from the old Bill, for, by or- 
 ders of Court recently issued, it has had many 
 verbal alterations made in its formal parts, and 
 also distinct formal parts added; therefore that 
 division of the Bill into parts^ which is spoken of 
 in treatises published anterior to the year 1837, 
 cannot now be said to be a correct division, ap- 
 plying to modern Bills in Chancery. 
 
 'Hale's Pleas of the Crown, 42. 4 Blackstone's Commentaries, 
 26. Lowry w. Bourdieu, Douglas's Rep. 468. Bilbie v. Lumley, 
 2 East, 469. Brine's Case, 1 Buck, 109. Queen v. Roberts, Term 
 Kepoits (New Series), 427. 
 
10 FORMS AND RtTLES FOE DEATVING ANT 
 
 I. Address} 
 
 The Bill is addressed to the judge or justices 
 of the Court wherein the suit is brought, and 
 from which it seeks relief. 
 
 In the Circuit Court of the United States for 
 the First Circuit it would be addressed, — 
 
 To the Honorable the Judges of the Circuit 
 Court of the United States of America for the 
 
 First Circuit, within and for the District of , 
 
 sitting in Equity. 
 
 In the State of ^ew York it would be ad- 
 dressed, — 
 
 To the Honorable , Chancellor of the State 
 
 of JSTew York.2 
 
 H. Introduction? 
 
 This part sets out the accurate, critical and 
 full description of each of the plaintiffs (as he is 
 in turn named) in the following order : his name, 
 place of residence, county, avocation in business, 
 and pecuHarity of legal character in which he 
 sues, when such peculiarity of legal character is 
 that he is but one of many of similar character, 
 and acts in his own behalf only, or on his own 
 
 'SeeRuleXX.,i?o««. 
 
 ^ 1 Hoffman's Chancery Practice, 40. Goldsmith on Equity, 96. 
 3 Story's Equity Pleadings, § 26 and note. Bingham ». Cabot, 3 
 Dallas, 382. Rule XX.,pos<. 
 
ORIGINAL BILL AND ANSWER IN CHANCERY. 11 
 
 behalf and of all others of similar character with 
 himself.^ 
 
 "WheB there are more plaintiffs than one, their 
 legal character then is usually here expressed by 
 experienced draftsmen. This accuracy in de- 
 scribing the plaintiff's name and residence is re- 
 quired, in order that a defendant may have every 
 facility in regard to recovery of costs, and of de- 
 manding security on occasion happening.^ 
 
 I^. B. A Bill, if it be filed by more than 
 one plaintiff, must have those persons only for 
 plaintiffs who have an interest identically alike in 
 every respect, so that one relief suits all of them 
 exactly as if they formed but one plaintiff, with 
 one character of interest at stake • all other per- 
 sons interested, though friendly, must be made de- 
 fendants, if their interest is not identical with the 
 plaintiffs', and even if a person, who ought to be 
 a co-plaintiff, will not be so, he must be made a 
 
 ' Or if an infant, lunatic found by commission, officer of corpo- 
 ration, wife, idiot, or deaf and dumb person ; but as these are not 
 ordinary Bills, they are not included in this work. 
 
 - Fort V. Bank of England, 10 Sim. 616. It is material that the 
 description and place of abode of the plaintiff should be set forth 
 in the BiU, that the defendants may know where to apply to him, 
 should they be disposed to accede to his demands, or should it be 
 necessary to resort to him for the payment of costs, in compliance 
 with any order or process of the Court which may issue against 
 him during the progress of the suit. Barton's Suit in Equity, 42. 
 Howe V. Harvey, 8 Paige, 73. Gove v. Pettis, 4 Sand. Ch. 403. 
 1 Dan. Ch. Pr. 362. In all bills in equity in Courts of the 
 United States, citizenship should appear on the face of the bill to 
 entitle the Court to take jurisdiction. Dodge v. Perkins, 4 Mason, 
 435, 
 
12 FORMS AND KUIiES FOB DKAWING AST 
 
 defendant.^ "WTio ought to be defendants is 
 more fully shown hereafter, under that part of 
 the Bill called the "Prayer of Process." ^ 
 
 The commencement of this second part of the 
 BUI is ever thus in ordinary cases : — 
 
 Humbly complaining, shewetJi unto your Hon- 
 ors, your Orator^ A. B., of , in the county of 
 
 , esquire * (a bond and simple contract credi- 
 tor of J. J., on 'behalf of himself and all other 
 creditors of the said J.' J. who may come in and 
 contribute to the expense of this suit).^ 
 
 The three next parts of the BUI, which now 
 follow, are called the Premises, when spoken of 
 ia the profession. 
 
 in. Stating Part.^ 
 "What is now the third part of the BUI is called 
 
 ' Fallowes v. Williamson, 11 Ves. 313. Whitney v. Mayo, 15 
 m. 251. 
 
 ^ Fenn v. Craig, 3 Younge & CoUyer, 218. Lloyd v. Markeam, 
 6 Ves. 145. Cholmondeley v. Clinton, Turn. & Russ. 116. Jones 
 ». Garcio del Ria, Turn. & Russ. 297. Story's Eq. PI. § 72, 271. 
 See Calvert on Parties to Suits in Equity, for a full exposition of 
 this subject. On misjoinder of plaintiffs, see Story Eq. PI. §§ 279, 
 530. Dawson v. Lawrence, 13 Ohio, 543. Yeaton v. Lenox, 8 
 Peters, 123. Bailey i. Burton, 8 Wend. 339. Thurmon «.,Shelton, 
 10 Yerger, 383. Mix v. Hotchkiss, 14 Conn. 32. 
 
 ' Or Orators, or Oratrix, or Oratrixes, as th,e case requires ; for 
 a plaintiff, if a man, is always mentioned as Orator, and if a wo- 
 man, as Oratrix. 
 
 * Or joiner, as avocation in business is. 
 
 ' Or with such other peculiarity of legal character as the case 
 affords. 
 
 6 The complainant must stand or fall upon the case made by his 
 
OEIGINAL BILL AND ANSWER DT CHANCEEY. 13 
 
 the Stating Part, and makes statements, with all 
 proper dates, names, descriptions, sums, and cir- 
 cumstances concerning each important fact in the 
 plaintiff's case; which is so essential to his suc- 
 cess, that he must rely on each of such facts, and 
 must prove each by evidence, if denied by the 
 defendants, or any one of them.^ 
 
 The first statement begius thus : — 
 
 That 
 
 and each statement afterwards thus: — 
 
 And your Orator further sheweth unto your 
 Honors that 
 
 I^. B. The rules which apply to all state- 
 ments seem to be these :^ — 
 
 1. That only so much land, or so much prop- 
 erty, or so much land and property, be included 
 in or treated as the subject-matter of one Bill, as 
 is rendered Uable to the sort of claims made by 
 the plaintiflf, by force of one will, or one deed, or 
 one agreement, or one transaction, or one event; 
 or else by force of one series of wills, or deeds, 
 
 "bill. The answer of the defendant cannot aid him. Thomas o. 
 Warner, 16 Verm. K. 110. Wright v. Dane, 22 Pick. 65. Cole v. . 
 Savage, Clark's Ch. R. 361. Hutchinson ». Brown, lb. 408. Gib- 
 son V. McCormick, 10 Gil. & Johns. 65. Lucas v. McBlair, 12 lb. 
 1. Harrison v. Hart, 2 Bibb, 4. 
 
 'Mitford's Chanc. Pract. 43. 1 Darnell's Chanc. Pract. 40. 2 
 Mad. Pract. 206. Lube's Analysis, 263. 11 Vee. 296, 373. 1 
 Hogan's Kep. 29. 6 Sim. 481. 1 Daniell's Chanc. Pract. 480. 3 
 P. Wms. 276. 22 Pick. 65. 
 
 'Read Stephen's Pleading; the rules there mentioned are 
 eqpially serviceable to an Equity draftsman. 
 
14 FORMS AND RULES FOR DRATVTNG AN 
 
 or agreements, or transactions, or events continu- 
 ously proceeding from one origin.^ 
 
 N. B. If lands or properties be made together 
 the subject-matter of one Bill, which are liable 
 to the claims made by the plaintiff, by force of 
 different and distinct origins, the Bill is called 
 multifarious, as will be shown hereafter, and may 
 be rendered inoperative by the application of a 
 defendant to the Court; as such distinct subject- 
 matters should have distinct Bills, although 
 claimed only from one and the same defendant. 
 
 2. That each statement is to be arranged in 
 the Bill in that priority in regard to other state- 
 ments, as the date of its contents or its relevancy 
 to other statements points out. 
 
 l!^. B. That any part of a Bill in request may 
 very easily be found. 
 
 3. That where a statement is capable of being 
 interpreted two ways, it is at the option of the de- 
 fendant to take which interpretation he pleases.^ 
 
 •Attorney-General v. Moses, 2 Mad. 294. Brookes v. Whit- 
 worth, 1 Mad. 86. 22 Pick. 55. 11 Ves. 240. 3 Bro. C. C. 481. 
 3 Younge & Collyer, 683. 6 Johns. Rep. 565. 2 Sch. & Lef. 280. 
 Story's Eq. PI. § 271, b. 5 Ired. Eq. 313. Nail v. Mobley, 9 Ga. 
 278. Robinson v. Cross, 22 Conn. 171. McCall v. Bellows, 1 Al- 
 len, 269. Larkins v. Bidd, 21 Ala. 252. Bugbee v. Sargent, 23 
 Me. 269. 3 Md. Ch. 46. 
 
 ' Cresset v. Kettleby, 1 Vernon, 219. Case must be alleged as 
 it will be proved. 6 Munford, 416. 6 Johnson, 564. 1 Cowen. 
 734. 4 Johnson's Ch. Rep. 281. 3 Rand, 263. 5 Munf. 314, 5 
 Rand, 543. 5 Johns. Ch. Rep. 82. 3 Paige, 478. 
 
OEIGINAI, BILL AND ANSWEE IN CIL4NCERY. 15 
 
 l^^. B. Consequently a statement should never 
 be framed so as merely to import that the plain- 
 tiff &eZ^■e?;es/ but should import that the plaintiff be- 
 lieves and asserts the statement, as importing one 
 important fact, and such a fact only as the plain- 
 tiff means it to import. For if a fact is not stated 
 so as to show to a certainty its nature, and that 
 it is asserted and relied upon, the defendant is 
 not bound to notice it otherwise than as he 
 pleases ; and can occasion the plaintiff the great- 
 est trouble therefore on such a statement. 
 
 4. That only facts which are relevant and es- 
 sential, clearly relevant and essential, as actual 
 ingredients of the plaintiff's case, are at any 
 time to be stated; and if a statement be clearly 
 useless, through importing an irrelevant fact, or 
 clearly wordy to an excess, such statement, if a 
 defendant chooses to apply to the Court, may be 
 struct out altogether, if useless, or else so much 
 struck out of it as is clearly excessive.^ 
 
 !N^. B. This fault occasions a Bill to be called 
 impertinent; and also, if a statement imports 
 
 ' 1 Vesey, 56. McDowell v. Graham, 3 Dana, 73. 
 
 ' Gilbert's For. Koman. 209. Portsmouth v. Fellows, 5 Mad. 
 450. Nesbit». Brown, Dev.Eq. 30— Rule XXVI.,pos<. Story's Eq. 
 PI. § 863. For impertinence generally, see Teuch v. Cheese, 1 
 Beav. 671. Hawley v. Wolverton, 5 Paige, 522. Hood v. Inman, 
 4 Johns. Oh. 437. The best test to ascertain whether matter be 
 impertinent, is to try whether the subject of the allegation could 
 be put in issue and would be proper matter to be put in evidence 
 between the parties. , Woods v. Morrell, 1 Johns. Ch. 103. On 
 scandal, see 1 Dan. Ch. 397. 
 
16 FORMS AND EtJLKS FOR DRAWING AS 
 
 scandal on a person's character, to an extent not 
 actually necessary to the case of the plaintiff, 
 then a Bill is said to be scandalous and imperti- 
 nent, and the person hurt may, by applying to 
 the Court, have such a statement struck out alto- 
 gether, or such parts of it as are scandalous and 
 impertinent, with payment of costs.^ 
 
 5. Each statement should contain but one chief 
 fact; so that the length of a statement is occa- 
 sioned only by the insertion of those minor facts 
 which are essential through being actually the 
 very component parts of the chief fact itself. 
 
 I^. B, If two chief facts be included ia one 
 statement^ and therefore connected together, it is 
 extremely difficult to make both appear, as relied 
 on as distinct points in the case; for the one will 
 be supposed as only stated to manifest the other 
 clearly, and to be used only for that purpose: 
 whereas, if each be put as a distinct statement, it 
 appears applicable quite as much to one state- 
 ment as to another, and may therefore be used 
 generally to benefit and assist any other state- 
 ment to which it can be made to apply. There- 
 fore to have but one chief fact in each statement 
 is important. 
 
 ' Wagstaff V. Bi^an, 1 Russ. & My. 28. Joseph v. Simpson, 10 
 Price, 35. Mason e. Mason, 4 Hen. &Munf. 414. Wood ». Morrell, 
 1 Johns. Ch. R. 103. Hart v. Small, 4 Paige, 333. Scudder v. 
 Bogert, 1 Edw. Ch. R. 372. Livingston v. Livingston, 4 Paige, 
 111. 
 
OEIGINAL BILL AND ANSWER IN CHANCERY. 17 
 
 It is also necessary that each statement should 
 detail all essential minor facts, for this reason : 
 because it is only by these that it is shown how 
 the chief fact exists; and therefore the minor 
 facts really supply the very grounds which alone 
 make the existence of the chief fact appear cer- 
 tain and credible. For presumption of the Court 
 will not supply essential ingredients ; thus, names, 
 parties, amounts, place, extent, value, form, Tnetliod 
 of execution, or delivery of a chief fact, are minor 
 facts; but a party's purpose, death, marriage, 
 possession, liability, property, claims, relationship, 
 deeds, wrongs, omissions, losses, acts, or a thing's 
 consequences, import, legality, insuffide'hcy, loss, 
 and defects, should be stated as chief facts} 
 
 This Stating Part of the BUI usually contains 
 several statements, each supplying such a chief 
 fact as, together with others, demonstrates a pres- 
 ent, sufficient, perfect title va. the plaintiff; so that 
 the Court is warranted, from the present force 
 and completeness of his title, to take upon itself 
 to enter into his case, to see if he can have the 
 relief he prays for by his Bill? 
 
 This part, therefore, shows how the plaintiff is 
 
 1 Cuthbert v. Creasy, 6 Mad. 189. Story's Eq. PI. § 28. 
 
 5 Norbuiy v. Meade, 3 Bligh, 211. If equity depends on their 
 title, legatees must allege a will. Martin v. M'Bryde, 3 Ired. Eq. 
 531. Van Cortlandt v. Beekman, 6 Paige, 492. Grantees must 
 allege a deed. King ». Trice, 3 Ired. Eq. 568. 1 Dan. Ch. Pr. 365. 
 Allegations in stating part must be positive and not by way of re- 
 cital. Mclntyre v. Trustees Union College, 6 Paige, 239. 
 2* 
 
18 FORMS Airo KULES FOB DEA-WING AN 
 
 in possession of the peculiar legal character men- 
 tioned in the Introduction, namely: — That Tyy a 
 
 hond duly sealed, and executed, and dated , 
 
 wliereof the condition was , your Orator he- 
 came a creditor of the said , &c. Or, if no 
 
 such peculiar character exists, this part carries out 
 the plaintiff's title; thus, if he claim as Jieir: — 
 
 That A. B., on or about the day of ,' in 
 
 the year of our Lord , was seized of and en- 
 titled to certain lands situate in , and Tcnawn 
 
 as . That in the said lands the said A. B. 
 
 had an estate ' . That the said A. B. was 
 
 married to , on the — : — • day of , in the 
 
 year of our Lord . That the children horn 
 
 in such marriage were . That A. B. died 
 
 on the day of , in the year of our Lord 
 
 , seized of and entitled to the said lands as 
 
 aforesaid . That the said A. B. previous to 
 
 his death made a will (or as fact is), hearing 
 date , which was duly attested as hy law re- 
 quired, and has heen duly proved in the proper 
 Court. That such will left the said lands totally 
 
 uncharged and unaffected, heing to the effect . 
 
 Tliat your Orator is heir at law to the said A. B., 
 
 hecause (or in some such words as the case 
 
 requu-es), exemplifying of what lands ancestor 
 was possessed at death, haw possessed, and 7iow 
 plaintiff is heir. 
 
 After sujSacient statements as to title have been 
 made, then follow in this Stating Part several 
 
OEIGINAIi BILL AND ANSWER IN CHAtfCEEY. 19 
 
 statements, each Supplying sucli a chief fact as, 
 together with others, manifests a ease of sufficient 
 equity to warrant the Coiu*t in granting the 
 plaintiff the relief he prays for by his Bill.^ 
 
 ]^. B. This portion of the Stating Part is the 
 most difficult in the Bill to frame, and that in which 
 the most learned and sMlful draftsmen very often 
 err; nay, the very judges do sometimes differ as 
 to the sufficiency of this portion of the Bill; be- 
 cause not only must essential minor facts demon- 
 strate each chief fact, but also such chief facts 
 must be stated as manifest that proper notice was 
 given to and had by the parties complained of, 
 concerning the matters complained of; and also 
 that good consideration and sufficient liahility 
 attached to the parties complained of, touching 
 the matters complained of; and that such parties 
 are liable at least by the acts of other persons 
 named, who by force of the acts stated are the 
 agents of the parties complained of.^ These 
 statements, showing equity, do therefore depend 
 entirely on the patience, skill, and learning of 
 the draftsman for their efficacy; and it would be 
 impossible to give any set of examples that could 
 apply generally, as each case has generally its 
 own peculiar facts of equity; but what equity 
 means is attempted to be shown hereafter. 
 
 After a Bill has been considered and drawn, 
 
 ' Flint V. Field, 2 Anstruther, 643. 
 
 ' LeNeve v. LeNeve, Leading Cases in Eq. 
 
20 FORMS AND EULES FOE DEAWING AN 
 
 even then a reperusal of it is always most prudent, 
 to see that in this portion of the Stating Part 
 every statement is made that renders the Bill 
 consistent with common sense, as a whole. 
 
 When a defendant's name happens for the first 
 time in the Bill, there are added to his name the 
 words " a defendant hereto," or if the only de- 
 fendant, "the defendant hereto; " and he is after- 
 wards spoken of as the said defendant, instead 
 of by his names, except when there are many 
 defendants, and he is alone intended to be spo- 
 ken of. 
 
 After a set of statements is finished which 
 manifest an equity to exist as to plaintiff, it is ad- 
 visable, at the end of each of such sets, to sub- 
 mit to the Court, as a statement, that such an 
 equity does exist, and that the plaintiff is entitled 
 to it, and that he now claims such equity.^ 
 
 ]N". B. Mind that each claim is consistent one 
 with another, and that each claim can be satisfied 
 completely out of the one subject-matter of the 
 suit, or out of some portion thereof. 
 
 In this part is stated : ® — And your Orator 
 submits to your Honor that an injunction to re- 
 strain the said defendants and agents from 
 
 should he awarded to your Orator hy this Honor- 
 
 ' And to add also that he is willing and ready to , making 
 
 an offer to act as equity requiiies on his part. Hall v. Maltby, 6 
 Price, 240. 
 
 ' When an injunction is necessary. 
 
ORIGINAL BILL ANT) ANSWER IN CHANCERY. 21 
 
 able Court, in consideration of the premises, and 
 such injunction is here sought hy your Orator. 
 
 What an equity is, most undeniably depends 
 on very minute circumstances, and can best be 
 arrived at (as appears to me) by mentioning, 
 firstly, what are the chief equities that have been 
 recognized by the Court, which seem each to be- 
 long to no general comprehensive rule, but to 
 form a class of itself. 
 
 If a party threaten A with an act which the 
 party intends to do, then, if A can show facts in 
 statement which manifest that such act, if done 
 as threatened, wUl wrong A, then A has an 
 equity which will induce the Court to restrain 
 the party by injunction from doing such threat- 
 ened act, or continuing to do it; and a Bill for 
 this pui-pose is called a Bill quia timet} 
 
 If parties about to marry join in a deed, and 
 duly execute the same, for the purpose of bene- 
 fiting infants, who are the legitimate children 
 of either party possessing the subject-matter of 
 the deed, or infants that may be bom to the par- 
 ties by such marriage, when consummated, then 
 such children, at any time during their infancy, 
 may (if possessed of a vested interest), by 
 means of a next friend^ ^Pplj to the Court to 
 
 iKanelaugh v. Hayes, 1 Vern. 189, 190. 1 Ves. 283. Flights. 
 Cook, 2 Ves. 619. Green v. Pigot, 1 Bro. C. C. 103. Browne. 
 Dudbridge, 2 Bro. C. C. 321. Story Eq. Jur. § 825. 
 
 ^ Any person may act as a next friend to infants, who will un- 
 
22 FORMS Aim EULES FOE DRAWING AN 
 
 have such deed carried into effect and complied 
 with, if any facts can be shown by a Bill that 
 manifest an intention of the parties to the deed 
 to vacate the deed, or transgress its covenants.^ 
 . A husband is not allowed to sue for his wife's 
 property for himself, though such property be not 
 secured to her separate use, until he has settled 
 a jointure on her, or unless she consents express- 
 ly that he mayj and his Bill must show such 
 jointure or express consent.^ 
 
 If A be surety with another, on the behalf of 
 B, then A can, if an action at law is successful 
 against him alone (as a surety) for the whole 
 amount of his liability, induce the Court to cause 
 the other surety to contribute his due pro- 
 portion of the liability.^ 
 
 If a penalty be incurred, so as to be recovera- 
 ble at law, and an action be brought for the pen- 
 
 dertake the responsibility of paying all costs, if his Bill on behalf 
 of the infants is mismanaged. Story's Eq. PI. § 59. 
 
 'Hopejj. Clifden, 6 Ves. 508. Powis v. Burdett, 9 Ves. 433. 
 Welford on Pleadings in Equity, 18. 1 Grant'g Chanc. Pract. 413. 
 Story's Eq. Jur. § 827. 
 
 'Brown u. Elton, 3 P. Wms. 202. Middlecome v. Marlow, 2 
 Atk. 620. Sleech v. Thorington, 2 Ves. 661. Cockel v. Phipps, 
 Dick. 391. Staokpole v-. Beaumont, 3 Ves. 98. Druce v. Deni- 
 son, 6 Ves. 385. Story's Eq. Jur. §'1403, et seq. Tevis's Rep. v. 
 Richardson's Heirs, 7 Monroe, 660. Van Duzer v. Van Duzer, 6 
 Paige, 366. Kenny v. Udall, 6 Johns. Ch. 464. Andrews v. Jones, 
 10 Ala. 400. 
 
 ^Mayhew v. Crickett, 2 Swan. 192. Bering v. Earl of Winchel- 
 sea, 1 Cox, 318. Claythome v. Swinbm-ne, 14 Ves. 169. Collins 
 V. Griffiths, 2 P. Wms. 314. Cook's Case, 2 Freeman, 97. 1 
 
ORIGINAL BILL AND ANSWER IN CHANCERY. 23 
 
 alty, a Court of Equity will restrain such, action, 
 and decree performance of the covenant instead, 
 where the penalty is not a direct object of the 
 deed, but only a collateral object.^ 
 
 An act done through undeniaMe mistake, or by 
 unavoidable accident, may be relieyed agaiast in 
 Equity.^ 
 
 As to other cases, the rule that seems to 
 supply what equity is, may be said to be the 
 following: 
 
 That a party has an equity, when by any act 
 of another he is wronged (without power of hav- 
 ing legal remedy) in his own property that he 
 claims J and in regard to which act he has made 
 no written agreement in any way approving such 
 act, and in regard to which act, also, no implied 
 
 Chanc. E,ep. 34. 1 Equity Abridg. 114. PI. 9. Kemp v. Fiaden, 
 12 Mees. «& W. 421. Story's Eq. Jur. § 492, et seq. Waters v. Ri- 
 ley, 2 Har. & G. 305. Pinkston v. Taliaferro, 9 Ala. 547. Byers 
 V. M'Clanahan, 6 Gill & J. 250. Taylor v. Savage, 12 Mass. 98. 
 Allen V. Wood, 3 Ired. 386. 
 
 'Sloman v. Walter, 1 Brown's Chanc. Cases, 418. Hele v. Hele, 
 Cases in Chanc. 2d Part, 88. Doneraile v. Chartres, 1 Kodgers, 
 P. C. 134. Skinner v. Dayton, 2 Johns. Ch. 435. Astley u. Wel- 
 don, 2 Bos. & Pull. 346, 350. Hardy v. Martin, 1 Cox, 26. Ben- 
 son V. Gibson, 3 Atk. 395. Story's Eq. Juris. § 1314, et seq. 
 
 ' 2 1 Chanc. Cases,' 72, 83, 126. 1 Vern. 32, Luxford's case cited. 
 2 Vern. 243.' 1 Ves. 126. 1 P. Wms. 355. 1 Cases in Chanc. 11. 
 1 Atk. 287. 1 Ves. 344. 5 Ves. 238. 7 Ves. 19. Tucker t)..Mad- 
 deu, 44 Me. 206. Hileman v. Wright, 9 Ind. 126. Linn v. Bar- 
 key, 7 Ind. 69. Davidson v. Grier, 3 Sneed, 384. Kuffner v. Mc- 
 Connell, 17 111. 212. Stoic's Eq. Jur. § 110, et seq. Cases Col- 
 lected, 1 Madd. Ch. Pr. ch. 2, § 2, p. 41. See Baynard v. Nor- 
 ris, 5 Gill, 477. Story's Eq. Jur. § 75, et seq. 
 
24 FORMS AND EUI^S FOE DKAWING AN 
 
 agreement of his can be made out by any act of 
 previous notice given to him concerning itj nor 
 any act of his own or his agents can be brought 
 in evidence, testifying approval, use, forbearance, 
 or instigation of such act. 
 
 No writing whatever is to be set out verbatim, 
 at any time, in its own words, in a Bill, but only 
 its import and legal effect given, and its dates, 
 parties, indorsement, sums, execution, and attesr- 
 tation described, excepting those parts which 
 form the very foundation itself of the plaintiff's . 
 case, and on which he mainly relies as an actual 
 ingredient of his casej and such essential parts 
 are to be set out in their own words (together 
 with such other parts referred to by them), to as 
 full an extent only as a clear, precise exhibition 
 of the meaning of those essential parts actually 
 requires.-' 
 
 ]Sr. B. Each writing intended to be relied on 
 should be pleaded (that is, set out in short, as 
 above) . 
 
 When a writing is pleaded, and therefore in- 
 tended to be used in evidence, then the usual 
 sentence employed to put it in evidence is this : — 
 
 As in and by the said , wlierb produced, will 
 
 more fulhj and at length appear, and to which 
 
 ' TVelford on Pleadings in Equity, 101. 1 Dick, 362. 3 Bro. C. 
 C. 480. Rule XXVI., post. Only legal effect of deeds ; Hopkins 
 V. Young, 11 Mass. 307. Osborne v. Lawrence, 9 Wend. 135. 1 
 Dan. Cli. Pr. 415. 
 
OEIGmAL BILL AND ANSWER IN CHANCERY. 25 
 
 your Orator, for greater certainty, craves leave 
 to refer. 
 
 An act of parliament (whether pubUe or pri- 
 vate) must be pleaded like any other writing, if 
 its import is intended to be relied on literally; 
 but such pleadiQg of an act of parliament does 
 not require the above sentence to put it in evi- 
 dence, unless a private act of parliament. 
 
 To set out more of any writing verbatim than 
 is actually necessary to the plaintiff's case is 
 impertinence} 
 
 After a writiug has been pleaded, it is usual 
 to state to the effect that the persons, sums, and 
 
 matters in the said last-mentioned , named 
 
 and described, are the same persons, sums, and 
 matters as are in the Bill alhided to, and named 
 and described by similar names and descriptions; 
 and if a deed or bond is the writing, to state also, 
 that it was duly sealed and executed, and still is 
 *in full force. 
 
 To make the case depend mainly on letters or 
 writings stated, is a great advantage, as their ev- 
 idence is ever ready, and a party's handwriting 
 is easily estabhshed as a general rule.^ 
 
 1 Rules XXVI. and XXVI., post. If the Bill contain matter 
 criminal, impertinent, or scandalous, such matter may be expung- 
 ed, and the plaintiff and counsel ordered to pay costs to the party 
 aggrieved ; but no action wiU lie against the counsel. 2 Maddoek's 
 Chancei7, 3d edit. 207. 
 
 i^Birce v. Bletchley, 6 Mad. 17. 1 Daniell's Chanc. Pract. 371, 
 
 3d edit. 
 
 3 
 
26 FORMS AND KULES FOR CRAWETO AN 
 
 The Stating Part ends "with a statement to 
 the effect, — 
 
 That your Orator, previously to this suit heing 
 
 commenced, that is to say, on the day of 
 
 , and at other times, applied and caused also 
 
 applications to he made to each of the said de- 
 fendants and his agents, Tyy letter and otherwise, 
 requesting him and them to act towards your Or- 
 ator in such a way as is eguitaHle and just, and 
 as is hereby prayed, and to desist from the unrea- 
 sonable and unjust practices herein mentioned, 
 and your Orator had well hoped that such his 
 reasonable requests would have been complied 
 with. 
 
 IV. Confederacy. 
 
 The fourth part of the Bill is called the Con- 
 federacy, and is in these words, usually: — 
 
 But now so it is, may it please your Honor, 
 that the said defendants, combining and confed^ 
 crating together, and with divers other persons at 
 present unlcnown to your Orator, but whose names, 
 when discovered, your Orator prays he may be at 
 liberty herein to insert and make parties defend- 
 ant hereto, with proper and apt words to charge 
 them, and contriving how to wrong and injure 
 your Orator in the premises, absolutely refuse to 
 comply with such requests. 
 
 !N. B. This part is of no actual importance, 
 although a fixed, formal part, as any particular 
 
OEIGmAL BILL AOT> ANSWER IN CHANCERY. 27 
 
 confederacy must be particularly pleaded, if in- 
 tended to be relied on.^ 
 
 Y. Charging Part. 
 
 The fifth part of the BUI is called the Charg- 
 ing Part^ and forms the last part of the premises. 
 
 This part is usually in these words : — 
 
 And the said defendants sometimes pretend that 
 
 . Whereas your Orator charges the direct 
 
 contrary thereof to he the truth, and charges that 
 , and charges also that . 
 
 This part consists of statements expressing, as 
 mere pretences of the defendants, each chief fact 
 the plaintiff knows or firmly believes they will 
 use and try to establish against him, and charges, 
 in opposition, such facts as show such pretence 
 to he false or useless, appending as many distinct 
 charges only to each pretence as the pretence 
 
 1 1 Mad. 414. 1 Darnell's Chanc. Pract. 37.5. Story's Equity- 
 Pleadings, § 29. That this part of the BiU may be omitted, see 8 
 Ves. 404. 3 Mad. 11. The practice of inserting this charge arose 
 from the idea that without it parties could not he added to the BUI 
 by amendment. Welford's Eq. PI. 102. Rule 'SSI., post. 
 
 ' Lube's Analysis, 266. That this part of the Bill is unnecessa- 
 ry, see Welford on Pleadings in Equity, 102. 11 Ves. 675. Sto- 
 ry's Eq. PI. § 33. As to the Charging Part, see 3 P. Wms. 269. 
 2 Atk. 337. 3 Swanst. 174, note (o). Van Hey. Eq. Dr. 6. 
 Gresley on Evidence, 14, 15. The equitable ground for relief on 
 the part of the plaintiff must appear in the Siating Part of the 
 Bill ; for if the equity only appears in the Charging Part, the Bill 
 will be demurrable. 2 Anst. 543. 
 
28 FORMS AND RULES FOR DRAWING AN 
 
 seems to require to render it nugatory, or as the 
 case allows of. 
 
 If the plaintiff kuows of no defence that will 
 be set up, still he should state here: — And the 
 said defendants sometimes pretend that your Or- 
 ator is not entitled to the relief sought hy this Bill ■ 
 of complaint, hut only to a portion of such relief 
 Wliereas your Orator charges the direct con- 
 trary thereof to he tlie truth, and charges that 
 
 , and then state in the charge some act, 
 
 deed, or writing of theirs, or of one of them, 
 which manifests of itself some ground for beUef 
 that they have acted clearly as if the j)laintiff 
 was entitled to and ought to have the relief he 
 prays, or some portion of it. Some statement to 
 manifest this charge is nearly always possible 
 to be made, as the defendants, or some of them, 
 never can have acted thoroughly with due dili- 
 gence throughout the transactions stated, but 
 must have committed some act of negligence, for- 
 hearance, or writing, or must have in their pos- 
 session something tending to all appearance to 
 show the plaiutiff entitled to relief, or else that 
 his previous statements are correct, and thereby 
 entitled to relief. If even the last-mentioned 
 sources do not exist, to supply a ground for a 
 charge, still the plaintiff should charge some sup- 
 posititious fact, havuig such relevancy to the case, 
 and so likely to exist, that it cannot be thought 
 on perusal impossible or impertinent, and Avhich, 
 
ORIGINAL BILL AND ANSWER IN CHANCERY. 29 
 
 when answered by the defendants, must afford 
 some valuable information to aid the plaintiff's 
 case. 
 
 After the last charge has been stated, it is 
 usual to add words to the following effect, but 
 suited to the case : — 
 
 And charges further that there are now in the 
 separate possession of each of the defendants, or 
 under his control, some writings, deeds, boohs, 
 papers, memoranda, letters, copies of letters, 
 receipts, ticJcets, vouchers, printed papers,^ and 
 papers with writing thereon, whereof copies have 
 been sent as letters or notes, which have been used 
 as, or one or part of one writing, deed, booh, &c. 
 (the same as before, but in the singular number), 
 having relation to or mahing allusion to the mat- 
 ters in question, or some one or more of them, 
 whereby the truth of the statements and charges 
 aforesaid, or some of them, would clearly and 
 fully appear, and of each of which writings, 
 deeds, booTcs, papers, memoranda, letters, notes, 
 copies of letters, receipts, ticJcets, vouchers, printed 
 papers, and papers with writing thereon, as afore- 
 said, in the possession or under the control of each 
 of the said defendants as aforesaid, your Orator 
 here seeks from each of the said defendants 
 descriptive and full particulars, well arranged 
 and framed, so as to form an intelligible schedule, 
 with all proper dates and descriptions therein 
 distinctly set forth, so that the jJarties and matters 
 
 3* 
 
30 FORMS AND EULES FOR DRATVING AN 
 
 alluded to hy the (intents of the said schedule may 
 he plainly and succinctly manifest. 
 
 Whether a fact is to be stated in the Stating 
 Fart or the Charging Part of the BUI, may be 
 decided by the following criterion. If it is a fact 
 fundamentally material to the plaintiffs case, 
 actually essential to it, beyond all doubt, as a 
 portion of its very consistence, it should bei in 
 the stating part, but not otherwise. 
 
 YT. A.verment of Jurisdiction. 
 
 The sixth part of the Bill is called the Aver- 
 ment of Jurisdiction,^ and is commonly in the 
 particular words following, or to a similar 
 effect: — 
 
 -All which actings, doings, refusals, and pre- 
 tences are contrary to equity and good conscience, 
 and tend to the manifest wrong and injury of 
 your Orator in the premises. In consideration 
 whereof, and forasmuch as your Orator is reme- 
 diless at and hy the strict rules of the common law, 
 and cannot have adequate relief save in a Court 
 of JEqaity, where matters of this and lihe nature 
 are properly cognizable and relievdble . 
 
 > Welfordon Pleadings in Equity, 104. Mitford, 44. 12 Pick. 
 34. Barton's Suit in Equity, 35, note. 1 Sch. & Lef. 204. See 
 Rule XXI. , post. The Averment alone wiU not give jurisdiction to 
 the Court unless a ease be shown in the Bill from which it is ap- 
 parent that the jurisdiction properly belongs to it. Therefore, 
 the omission of this clause will not render the Bill defective. 1 
 Darnell's Chaac. Pract. 573, n. (3d ed.) 
 
OEIGmAL BILL AlfD ANSAVER IN CHANCEEY. 31 
 
 YII. Interrogating Part. 
 
 The seventh part is called the Interrogating 
 Part, and is required by the Orders of Court to 
 be in the following particular words, or to like 
 effect: — 
 
 To the end, therefore, that the said defendants 
 may, if they can, show why your Orator should 
 not have the relief hereby 'prayed, and may upon 
 their several and respective corporal oaths, and 
 according to the hest and utmost of their several 
 and respective Tcnowledge, remembrance, infor- 
 mation, and belief, full and direct and perfect 
 answer maTce to such of the several interrogatories 
 hereinafter mentioned and set forth, as hy the 
 note, hereunder written, they are respectively re- 
 quired to answer; that is to say^ — 
 
 1. Whether . 
 
 2. Whether . 
 
 'N. B. The Interrogatiag Part is composed of 
 nothing more than each statement, and pretence, 
 and charge, in the Stating Part and Charging 
 Part of the BUI, repeated, with such additions 
 only as render each a question instead of an 
 assertion; such question being numbered, and 
 beginning with the word Whether. 
 
 After the word Whether, any words may be 
 added that seem appropriate, but the best regular 
 
 1 See Orders 16, 17, and 19 of 26th August, 1841, and Rules 
 XLI.-XLV.,j 
 
32 FORMS AND RULES FOR DRAAVING AN 
 
 form to adopt is, WhetJier it is not a fact that, 
 or else, WhetJier it is not true that, as such a form 
 does not require the statement, pretence, or 
 charge, to be in any way altered, but merely 
 added verbatim in contiauation. 
 
 To the end of each statement, so changed into 
 a question, are usually added inquiries of the 
 following nature, or such a nature as each state- 
 ment, pretence, or charge suggests. 
 
 And if nay, how with truth is the contrary 
 to he made out, and how otherwise should tliefact 
 he stated (or charged) to have taken place, and 
 he in force, or otherwise, and with what excep- 
 tions, if any exist, and hy what other , and 
 
 where, and hy whom, and for what purpose, and 
 
 what other purpose, and where is such — , 
 
 and hy whose authority, and of what amount. 
 
 Any inquiry or any number of inquiries may 
 be used, as are at all relevant, and tend when 
 answered to supply information concerning the 
 fact stated or charged (in case it should be 
 denied to be as stated or charged), by asking 
 after the circumstances attending it, if not as 
 stated or charged, the only restriction being that 
 special inquiries must have relation only to the 
 fact stated or charged, and should not supply, or 
 suggest, or tend to seek precise information con- 
 cerning any important fact not stated or charged, 
 but should ask generally only as to what any fact 
 in denial, if any there be, is, and what are its 
 
ORIGmAL BILL AND ANSWER m CHANCERY. 33 
 
 attendant circumstances, and what its nature and 
 manifest effect.* 
 
 The object sought by this Interrogating Part 
 is to save the plaintiff from the necessity of hav- 
 ing to supply evidence as much as possible, by 
 questioning a defendant as to each statement, 
 pretence, and charge made against him, to see 
 how far he admits them, as each admission of a 
 defendant is sufficient evidence against Mm of 
 the fact he admits; or if he denies any state- 
 ment, pretence, or . charge, to force him to state 
 what grounds he has for such denial; that the 
 plaintiff may see whether the matters supphed in 
 denial are consistent enough, or in any way harm- 
 ful enough to force the plaintiff to support his 
 case by his own evidence ; therefore it is that the 
 interrogatories first inquire as to each statement, 
 pretence, and charge, and then seek by a cross- 
 examination to obtain such particulars from a 
 defendant denying as are likely to detect falsities 
 or inconsistencies, or else to show other grounds 
 establishing the plaintiffs case beyond those he 
 has stated. 
 
 The general result, however, seems to be, that 
 defendants deny every fact they possibly can with 
 safety from detection, and do only admit such 
 facts as seem to be stated so as to confer a bene- 
 
 ' BuUocki). Richardson, 11 Ves. 373. Faulder v. Stuart, Id. 296 ; 
 Mucklestoni). Brown,6Ves. 62. 3 Paige's R. 606. llCowen,734. 
 1 Johns. Ch. Eep. 65. 6 Johns. Eep. 543. 1 Cowen, 734. Lube's 
 Analysis, 270. 
 
34 FOEMS AND EULES FOE DR.\WING AN 
 
 fit on them; so that a Bill must be vevi/ specious 
 to get many admissions or any important infor- 
 mation from a defendant answering. 
 
 A claim is not interrogated to, but omitted in 
 this part, because the plaintiff's stating his claim 
 is mideniable evidence that he makes such claim, 
 and so cannot be disputed. 
 
 VJJLl. Prayer of Relief} 
 
 The eighth part of the Bill is called the Prayer 
 of Belief , and begins with: — And that the said 
 defendant, A. B., upon heing served with a copy 
 of this Bill, may he hound hy all the proceedings 
 in this cause: And that the other defendants 
 
 hereto may answer the premises: And that ; 
 
 And that the said defendants may he re- 
 strained hy the injunction of this Honor ahle Court 
 frorr? ; and ends with the following con- 
 
 ' As to the extent and efficacy of this part of the Bill, see Gib- 
 son V. Haines, 1 Hare, 318. Wilkinson ». Beal, 4 Mad. 408. 
 Jones V. Montgomery, 3 Swanst. 208. Hern v. Mill, 13 Ves. 114. 
 Story's Equity Pleading, § 42. 2 Paige, 396. 6 Munford, 251. 1 
 Rand, 219. 1 Smith's Chanc. Pract. 84. 1 Eden's Eep. 26. 1 
 Johns. Eep. 647. 2 Atk. 141. 2 Peters, 595. 13 Vesey, 119. 
 1 Johns. Ch. Kep. 116. 12 Vesey, 63. 2 Kuss. & Mylne, 88. 1 
 Wheaton's Rep. 200. 1 Paige, 244. Welford on Pleadings in 
 Equity, 106. 11 Ves. 570. 3 Atk. 110. 14 Ves. 686. 6 Sim. 281. 
 1 Cox, 68. 2 Bro. P. C. 495. Bunb. 192. 2 Sim. & Stu. 219. 2 
 Dick. 707. 2 Sch. & Lef. 729. For form of prayer for relief, see 
 Story's Eq. PI. § 40, n. Colton u. Ross, 2 Paige, 396, and cases 
 cited. 
 
 "^ 1 Ambler, 70. 3 Atk. 262. 1 Jao. 335. Prayer for special re- 
 lief not essential. Wilkinson e. Beal, 4 Mad. 408. Grimes ». 
 
ORIGINAL BILL AND ANSWER IN CHANCERY. 35 
 
 eluding words : — And for sucli further and other 
 relief as to this Honorable Court shall seem meet} 
 
 This prayer is nothing more, in fact,, than all 
 the claims stated in the Bill put orderly together 
 with such other words added as make such claims 
 a consistent, connected whole, and arranged in 
 such order that they seem as consequences, the 
 one of the other. 
 
 When the circmnstances of the case admit, 
 there is in general added to the above prayer 
 (just before its concluding words) what is called 
 an alternative relief, that is to say, a reUef which 
 differs so far from the first rehef sought, as to be 
 the same, but with a modification only; or else a 
 relief which is quite as much warranted and sup- 
 ported by the statements in the BiQ, in all neces- 
 
 Frenoh, 2 Atk. 141. Foster v. Cooke, 1 Hawks, 509. Lloyd v. 
 Brewster, 4 Paige, 537. Thomason v. Smithson, 7 Porter (Ala.), 
 144. Peck V. Peck, 9 Yerger, 301. Allen v. Coffman, 1 Bibb, 
 469. Cookii.Mancius,5Johiis. Ch. 89. Brown ». McDonald, 1 Hill, 
 (S. C), 302. Gibson i>. McCormick, 10 Gill & Johns. 66. Townshend 
 V. Duncan, 2 Bland. 45. Thomas v. Hite, 5 B. Monroe, 593. But 
 see Story's Eq. PI. § 41. 
 
 Relief must be consistent with that specifically prayed. Chal- 
 mers V. Chambers, 6 Har. & John. 29. Hobson v. M'Arthur, 16 
 Peters, 182. Franklin v. Osgood, 14 John. 527. Scudder v. Young, 
 25 Mame, 153. 
 
 ^ Importance of prayer for general relief. English v. Fosall, 2 
 Peters, 595. Hobson v. M'Arthur, 16 Peters, 195. Danforth v. 
 Smith, 23 Vermont, 247. Hilleary v. Hurdle, 6 Gill, 105. If omit- 
 ted, complainant limited to relief specially prayed for. Palk v. 
 Clinton, 12 Ves. 62. Weymouth v. Boyer, 1 Ves. 426. 5 Porter 
 (Ala.), 10. Thomason v. Smith, 7 Porter, 144. Peck v. Peck, 9 
 Yerger, 301. 
 
36 FOEMS AND KTJLES FOR DRAWIUTQ AN^ 
 
 sary points, ks the first relief sought; the prayer 
 for relief is said to be an alternative prayer when 
 such other relief is sought, and this second rehef 
 
 begias with the words, Or that , and ends 
 
 with the words above.^ 
 
 The chief point to be observed as to the prayer 
 is, to see that it is consistent, and in no way mul- 
 tifarious; that is to say, that it does not seek for 
 rehef which can only be granted by force of two 
 totally distinct subject-matters being mixed up 
 together, and treated as if included by the BUI. 
 Such a prayer is fatal, as it renders the Bill to- 
 tally inoperative; for such distinct subject-mat- 
 ters ought to have been, appropriated to separate 
 Bills. 
 
 The prayer alone is to decide whether the Bill 
 be multiferious or not.^ 
 
 > Bennet o. Vade, 2 Atk. 825. Grimes v. French, 2 Atk. 141. 
 
 I Johns. Kep. 559. 2 Leigh, 441. 3 Russ. 178, note. 17 Ves. 
 173. 6 Ves. 52. 2 Euss. & Myhie, 88. Colton v. Boss, 2 Paige, 
 396. Lloyd v. Brewster, 4 Paige, 537. M'ConneU v. JVPConnell, 
 
 II Verm. 290. 
 
 Prayer in alternative is imder restrictions. Thomas v. Hobler, 
 8 Jm-. N. S. 125. KWlings v. Lambert, 1 Johns. & H. 458. 
 Evan J). Avon, 29 Beavan, 144. 
 
 ^ Dick J). Dick, 1 Hog. 290. Upon the subject of multifarious- 
 ness, see Marcos v. Pebrer, 3 Sim. 466. Salvidge «. Hyde, 1 
 Jacob, 151. Bignold u. Audland, 11 Sim. 30. Manners v. Row- 
 ley, 10 Sim. 470. Welford on Pleadings in Equity, 90. Story's 
 Eq. PI. § 292. Multifariousness ; comments on the ease's. Camp- 
 bell V. Mackay, 1 Mylne & Craig, 617. Greneral subject. Saxton 
 V. Davis, 18 Ves. 80. Att.-Gen. b. St. John's Coll. 7 Sun. 241. 
 West V. Randall, 2 Mason, 181. Banks v. Walker, 2 Sandf. 344. 
 
ORIGINAL BILL AND ANSWER IN CHANCERY. 37 
 
 This prayer mil be found to import (as a 
 matter of necessity), when its sentences are con- 
 sidered, a desire for discovery of information, and 
 such relief as is mentioned in the prayer; but 
 when the Bill actually prays in terms for an 
 account or discovery of, or discovery of any kind, 
 and also prays in terms for relief, the prayer is 
 then said to be for discovery and relief; but is 
 said to be for relief ovlj, when there is clearly no 
 particidar discovery necessary, nor sought for; 
 
 Gaines v. Chew, 2 How. 619. Oliver v. Piatt, 8 How. 333. Jack- 
 son V. Forrest, 2 Barb. 576. Newland v,. Rogers, 3 Barb. 432. 
 Fellows V. Fellows, 4 Cowen, 682. .Brinkerhoflf «. Brown, 6 Johns. 
 Ch. 139. Boyd v. Hoyt, 5 Paige, 65. Swift v. Eckford, 6 Paige, 
 22. SiLcox V. Nelson, 1 Geo. Dec. 24. Glamorgan v. Guise, 1 
 Mo. 99. White v. Curtis, 2 Gray, 471. 3 Stoiy, 25. Kobinson 
 V. Guild, 12 Metcalf, 323. 
 
 The Bill must contain not only separate and distinct matters, 
 but such that each entitles the complainant to separate equitable 
 relief, or it is not multifarious. Comwell v. Lee, 14 Conn. 624. 
 Parish v. Sloan, 3 Ired. Eq. 607. Donelson's Adm's v. Posey, 13 
 Ala. 752. Heirs of Holman v. Bank of Norfolk, 12 Ala. 369. As 
 to joining surviving partner; Butts v. Gurney, 6 Paige, 254. 
 Wells V. Strange, 6 Geo. 22. Distinct causes of action, but nearly 
 related. Gardner v. Ogden, 22 N. Y. Kep. 327. Morton v. Weil, 
 33 Barber, 30. Wade». Rusher, 4 Bosw. 637. Cauleyv. Lawson, 
 5 Jones's Eq. 132. Flemings. Gilmer, 36 Ala. 62. Not indispensa- 
 ble that each party should have an interest in all the matters. 4 
 Tounge & Coll. 444. Parr v. Att.-Gen., 8 Clarke & Fin. 435. 
 Worthy v. Johnson, 8 Ga. 238. Or that their interests should be 
 coextensive. Buckeridge v. Glasse, 1 Craig & Phill. 126. Sole 
 plaintiff having distract characters and conflicting rights. Blease 
 V. Burgh, 2 Beav. 221. Not multifarious, if remedy at law is by 
 several actions. Swift v. Larrabee, 31 Conn. 225. Crews v. 
 Burcham, 1 Black, 352. 
 i 
 
38 FOEMS AKTD EULES FOR DEAWDTG AN 
 
 and for discovery only, when a discovery only is 
 sought for: and no other sort of relief/ 
 
 IX. Prayer of Process. 
 
 The ninth part of the Bill is called the Prayer 
 of Process, and is in these words ^ usually (but 
 is left to the solicitor to add to the Bill) : — 
 
 May it please your Honors to grant unto your 
 Orator, not only a writ of injunction, issuing out 
 of and under the seal of this Honorable Court, to 
 
 he directed to the said , to restrain Mm and 
 
 them from , hut also a writ or writs of 
 
 subpcEna, to be directed to the said C D., E. F., 
 [nams each defendant required to appear and 
 answer^, and the confederates, when discovered, 
 thereby commanding them and every of them, 
 at a day certain, and under a certain pain therein 
 to be limited, personally to be and appear before 
 your Honors, ia this Honorable Court, and then 
 and there full, true, direct, and perfect answer 
 make to all and singular the premises, and further 
 to stand to, and perform, and divide such further 
 order, direction, and decree therein, as to your 
 Honors shall seem meet. And that the said de- 
 fendant, A. B., upon being served with a copy 
 of this Bill, may be bound by all the proceedings 
 in this cause. And your Orator shall ever pray.^ 
 
 ' 1 Johns. Ch. Rep. 117. 2 Peters, 595. 14 Johns. Ch. Kep. 
 527. 4 Rand, 95. 
 » Story's Eq. PI. § 44, n. 
 ' 1 Smith's Chancery Practice, 85. 
 
ORIGEfAL BILL ASJ) AJTSWER IN CHANCERY. 39 
 
 N". B. The words in Italics, in the first part, 
 are to be omi^-tad, when no injunction is prayed 
 for; and also the words in Italics at the end, to 
 be omitted, when the BUI is only for discovery, or 
 to perpetuate the testimony of a witness; also as 
 to A. B. being served with a copy of Bill, when 
 no defendant is prayed to be so served.^ 
 
 Those only are defendants to a BUI who have 
 process prayed against them by name, in this 
 part of the BUl.^ 
 
 And here it is necessary to observe who ought 
 to be made parties to a Bill.^ 
 
 ' Ambury v. Jones, 1 Younge, 199. Gibson v. Haines, 1 Hare, 
 318. 
 
 ° Windsor v. Windsor, 2 Dickens, 707. 2 Johns. Ch. Kep. 245. 
 1 Hopk. 555. 1 P. Wms. 693. Mitf. by Jer. 45. Coop. Eq. PI. 
 16. 4 Ired. Eq. 175. 5 Geo. 251. Whitney v. Mayo, 15 HI. 251. 
 
 " Cockbum v. Thompson, 16 Ves. 328. Mitford on Pleading, 
 145. 11 Wheat. 304. 12 Mass. 16. Calvert on Parties. 3 Met. 
 474. 19 Pick. 162. Story's Equity Pleadings, §§ 44, 72-238. 
 Lube's Analysis, 25. 1 Smith's Pi-actice, 98. 2 Mason's C. C. R. 
 181. 4 Wash. C. C. K. 32; Welford on Pleadings in Equity, 32- 
 81, where most of the late English decisions wiU be found. Gen- 
 eral rule, all materially interested ; Bond v. Hendricks, 1 A. K. 
 Marsh. 440. Verplanck ij. M. I. Co., 2 Paige, 438. Lyle «. Brad- 
 ford, 7 Monroe, 113. Whiting v. Bank of U. S., 13 Peters, 6-14. 
 McConneU v. McConnell, 11 Vermont, 290. Evans v. Chism, 18 
 Me. 220. Carey v. Hoxey, 11 Geo. 648. Story's Eq. PI. §§ 72-238. 
 24 Me. 20. R-entice v. Kimball, 19 111. 320. Assignments : Fitch 
 V. Creighton, 24 How. 159. Gaines v. Hennen, Id. 563. Wade v. 
 Rusher, 4 Bosw. 537. Coe v. Beckwith, 31 Barb. 339. Dixon v. 
 Buell, 21 111. 203. 32 Mu. 343. 1 Dan. Ch. Pr. 248, n. 4 Florida, 
 18. 11 Cush. 111. Cases of joint interests : Boughton v. Allen, 11 
 Paige, 321. Brinkerhoff v. Brown, 6 Johns. Ch. 150. 2 Iowa, 66. 
 3 Id. 443. Suits in behalf of the public : People v. N. York, 32 Barb. 
 
40 FOEMS AND RULES FOB DKAWDTG AX 
 
 After a minute analyzation of the eases and 
 works referred to, the following seems to me to 
 be the most safe general rule to be observed by a 
 plaintiff, as warranted by such authorities : — 
 
 All persons themselves (or their actual repre- 
 sentatives^ ought to be parties, who have in 
 themselves, during the period of the suit's exist- 
 ence, such a present, perfect, legal, or equitable 
 interest (or actual possession), actually estab- 
 lished and clearly fixed on some part of the 
 identical subject-matter of the suit, that any 
 claim in the Prayer of Eehef, if granted as 
 prayed, must inevitably alter, harm, or change 
 such interest (or possession), or its value._ 
 
 Whom to make plaintiffs, has been mentioned in 
 page 11 ; and the Orders of Court also direct thus : 
 
 "That where no account, payment, convey- 
 ance, or other direct relief is sought against a 
 party to a suit, it shall not be necessary for the 
 plaintiff to require such party, not being an in- 
 fant, to appear to and answer the BUI. But the 
 plaintiff shall be at liberty to serve such party, not 
 being an infant, with a copy of the Bill, whether 
 
 35. Collins V. Kipley, 8 Clarke, 129. Exceptions to the general rule, 
 see Kules XL VII., XL VIII. Party out of jurisdiction: West v. 
 Randall, 2 Mason, 196. Sims v. Guthrie, 9 Cranch, 19-25. Parties 
 too numerous : 2 Mason, 193-196. Carey v. Hoxey, 11 Geo. 651. 
 19 Barb. 617. Those who are presumed to represent the interest 
 of all : Mann v. Butler, 2 Barb. Ch. 362. Whitney v. Mayo, 15 
 111. 265. Small v. Atwood, 1 Younge, 407. Defendants presumed 
 to represent all: Adair v. New Kiver Co., 11 Ves. 444. Parker 
 V. Nightingale, 6 Allen, 341. 
 
ORIGINAL BILL AND ANSAVER IN CHANCERY. 41 
 
 the same be an original, or amended, or supple- 
 mental Bill, omitting the interrogating part 
 thereof; and snch Bill, as against such party, 
 shall not pray a subpcena to appear and answer, 
 but shall pray that such party, upon being served 
 with a copy of the Bill, may be bound by all the 
 proceedings in the cause. But this Order is not 
 to prevent the plaintiff from requiring a party 
 against whom no account, payment, conveyance, 
 or other direct rehef is sought, to appear to and 
 answer the Bill, or from prosecuting the suit 
 against such party in the ordinary way, if he 
 shall thmk fit.^ 
 
 "That in all suits concerning real estate 
 which is vested in trustees by devise, and such 
 trustees are competent to sell and give dis- 
 charges for the proceeds of the sale, and for the 
 rents and profits of the estate, such trustees shall 
 represent the persons beneficially interested in 
 the estate, or the proceeds, or the rents and 
 profits, in the same manner and to the same ex- 
 tent as the executors or administrators in suits 
 concerning personal estate represent the persons 
 beneficially interested in. such personal estate; 
 and in such cases it shall not be necessary to 
 make the persons beneficially interested in such 
 real estate as rents and profits parties to the suit. 
 But the Court may, tipon consideration of the 
 
 'Order 23, Aug., 1841. 
 i* 
 
42 rOEMS AND RULES FOE DEAWINa AN 
 
 matter on the hearing, if it shall so think fit, or- 
 der such persons to be made parties.^ " 
 
 " That in suits to execute the trusts of a WUl, 
 it shall not be necessary to make the heir at law 
 a party; but the plaintiff shall be at liberty to 
 make the heir at law a party, when he desires to 
 have the will estabhshed agauist him.^ 
 
 " That in all cases in which the plaintiff has a 
 joint and several demand against several per- 
 sons, either as principals or sureties, it shall not 
 be necessary to bring before the Court, as par- 
 ties to a suit concerning such demand, all the 
 persons liable thereto; but the plaintiff may pro- 
 ceed agauist one or more of the persons severally 
 liable." ^ 
 
 X. Signature. 
 
 The tenth part of the Bill is the Signature, 
 that is, signature by counsel.* 
 
 IS". B. The signature is made up of the coun- 
 sel's name, the date of his signing, and his place 
 of business, where the signature is made. 
 
 1 Order 30, 1841. = Order 31, 1841. ^ Order 32, 1841. 
 
 ■* This is required as a security tliat the Bill does not contaia im- 
 proper matter. 1 Dick. 68. Introduced by Sir T. More : 1 Har. 
 Law Tracts, 302. Kirkley v. Barton, 5 Maddock, 378. 5 Vesey, ' 
 547. Order 17, 1635, in Beames's Orders. 1 Sim. & S. 136, note. 
 1 Dick. 16. 2 Younge & CoUyev, 3. 2 Ves. & Bea. 368. 2 Com. 
 Dig. Chancery, E. 1. 2 Supp. Vin. Abr. 276. Rules XXIV. and 
 LXXXVIII.,^o*<. 
 
ORIGINAL BILL AND ANSWER IN CHANCEET. 43 
 
 XI. The Note. 
 
 The eleventh part of the Bill is called The 
 J!fote, and runs thus: — 
 
 Tlie defendant, C JD., is inquired to answer the 
 interrogatories numbered respectively 1, 2, 3, (§c. 
 
 IS". B. By Order of Court it is ordained, that 
 the interrogatories which each defendant is re- 
 quired to answer, shall be specified in a note, at 
 the foot of the Bill, in the form or to the effect 
 above given.^ 
 
 The above form is repeated as to each defend- 
 ant who is required to answer, altered only by 
 having his name inserted, instead of the defend- 
 ant already before mentioned by it. 
 
 ConcijUSion-. 
 
 By way of conclusion, I have here arranged, 
 in proper order, such minutiae of importance as 
 would have rendered the prior part of the work 
 too prohx in its details, if such minutiae had been 
 there inserted. 
 
 Description of Plaintiff. 
 
 If the instructions left for drawing the Bill are 
 so far incomplete (which they often are), that 
 any essential information as regards the plaintifij 
 
 'Order 17,1841. 
 
44 FORMS AND EtILES FOE DKAWING AN 
 
 • • — ' 
 
 or his case, or any other matter, is not supplied, 
 stUl the instructions must be made the most of, 
 and the BUI framed, as far as possible, as if such 
 necessary information had been supplied, by put- 
 ting in the draft all the formal words, and leav- 
 ing blanks for such further information to be in- 
 serted as the case evidently requires, and then 
 putting a cross in the margin of the draft, oppo- 
 site the beginning of each line having such 
 blanks m it.^ 
 
 Description of Defetidants. 
 
 The names of the defendants are never repeat- 
 ed in a BUI after they have been once set out, 
 except when one or two defendants out of many 
 have alone to be mentioned in regard to a par- 
 ticular fact, and then the names of such one or 
 two defendants must be given, to particularize 
 him or them as the defendants alluded to. 
 
 The residences or trades of defendants are not 
 to be set out in the BUl.^ 
 
 On Title of Plaintiff . 
 
 If the title of the plaintiff is not likely to be 
 disputed by the defendants for their own sakes, 
 a critical statement of the title is not then so im- 
 peratively necessary as when the title wUl be dis- 
 
 1 See p. 10. = See p. 10. 6 Ired. Eq. 196. 
 
OEIGESrAL BILL AND ANSWEK IN CHANCERY. 45 
 
 puted, and may be stated succinctly instead of in 
 full.i 
 
 On Interrogatory Part. 
 
 A statement or charge, when put into the form 
 of a question (with such inquiries added as seem 
 expedient), forms one interrogatory. 
 
 ]Sr. B. Each interrogatory is to begin a new 
 Une, and to have for its first word, Wliether; 
 also, when the interrogatory is ended, add to it, 
 for its last word, and, to connect the next inter- 
 rogatory with it in sense, though not in form, as 
 here shown: — 
 
 1. Whether it is not a fact that ^ , and 
 
 on the day of last past, signed an in- 
 denture lyearing date the said day of , 
 
 and heing of the form and to the purport and ef- 
 fect as in the premises is in that hehalf men- 
 tioned^ and if nay, how with truth, &c. y 
 
 and 
 
 2. Wliether it is not true that the said indenture 
 
 was altered on the same day of , hy the 
 
 said , to the effect hereinbefore set forth in 
 
 ' See p. 10. 1 Preston on Abstracts, 5-35. 2 Sugden on Ven- 
 dors and Purchasers, 132-163. 
 
 ^ Follow the language of the statement or charge, which is sup- 
 posed here to be of some such form as given above. See Rule 
 XLin., post. 
 
 ^ Never give long extracts in full, as an interrogatory, but refer 
 thus to the statement or charge containing the extract. 
 
46 FORMS AND EDLES FOE DRAWINQ AN 
 
 that hehalf, hy some such words being added hy 
 
 the said , as , and added in the manner 
 
 following, that is to say y and . 
 
 An interrogatory is not warrantably used, un- 
 less it is founded on some statement or charge 
 set out in the Bill, and also puts exactly the same 
 material matters in issue as are contained in the 
 statement or charge on which it is founded.^ 
 
 On Parties. 
 
 It is sufficient to bring before the Court the 
 first person having a vested estate of inheri- 
 tance.^ 
 
 This Court never goes beyond the tenant in 
 taU in possession, nor requires reversioner after 
 him to be made a party.* 
 
 Intermediate tenants for life should be parties/ 
 
 In most cases, the person having the legal title 
 in the subject-matter must be a party, though he 
 has no beneficial interest, that the legal right 
 may he hound by the decree of the Court.^ 
 
 ' See p. 31. 
 
 2 Cockburn v. Thompson, 16 Ves. 326. Story's Eq. PI. § 144, n. 
 1 Dan. Ch. Pr. 274. Cases in which an alien may sue, see Story's 
 Equity Pleading, §§ 61, 52, 53. 2 Maddock's Chancery, 214, (3d 
 edit.) See Rule XL VII., post. 
 
 3 Fletcher v. ToUett, 5 Ves. 10. Eagle Fire Ins. Co. v. Cam- 
 met, 2 Edw. 127. 
 
 ^Gore V. Stacpoole, 1 Dow P. C. 18. 1 Dan. Ch. Pr. 274. 
 = See p. 43. Mitford, 145. Johnson v. Rankin, 2 Bibb, 184. 
 Nelson v. Churchill, 6 Dana, 341. Fish v. Rowland, 1 Paige, 2t). 
 
ORIGINAL BILL AND ANSWER IN CHANCERY. 47 
 
 "When a person who ought to be a party is out 
 of the jurisdiction of the Court, that fact being 
 stated in the BUI, and admitted by the defend- 
 ants (or proved at the hearing), is inmost cases 
 a sufficient reason for not bringing him before 
 the Court; and the Court will proceed without 
 him against the other parties, as far as circum- 
 stances will permit. It is usual, however, to 
 state in the Bill the name of the pai-ty out of the 
 jurisdiction, to connect his case with the other 
 parties; and also to pray process against him.^ 
 
 Form of a Bill. 
 
 The only parts of the BUI that are kept dis- 
 tinct and unconnected (like paragraphs) from 
 other parts, are the Heading, Address, Note, and 
 Signature; all the other parts are connected to- 
 gether (excepting each interrogatory), so as to 
 form one whole continuous context.^ 
 
 Amendment of Bill? 
 
 When a Bill is once on the file of the Court, 
 it is in the possession of the Court, and cannot 
 
 1 Mitford, 134. See Kule XLVH. ; also Knle XXIII. 
 
 "^ The suit is named after the plaintiff "first named iu the Bill 
 and the defendant first named in the Bill ; if more than one plain- 
 tiff, then the words and another, or and others, are added after the 
 plaintiff's name ; and a similar rule applies to the defendant. 
 
 ' Amendments must be signed by counsel. 1 Russ. & Mylne, 
 157. 2 Moll. 303. 1 Sun. & Stu. 136, note. 5 Mad. 378. 1 Jac. 
 
48 FOEMS AND RULES FOE DEA^V1NG AN 
 
 be altered but by an order obtained from the 
 Master or the Court, for the purpose.^ 
 
 An apphcation to amend must be supported by 
 the joint affidavit of the plaintiff and his solici- 
 tor.2 
 
 & Walk. 254. Beat. 315. 2 L. E. 386. As to what defects may- 
 be amended in the Bill, see Welford on Pleadings in Equity, 165- 
 187. Story's Equity Pleadings, § 882. Plaintiff may make a new 
 case by amendment ; Beat. 318. 2 L. R. 386. 2 Moll. 303, S. C. 
 2 Sch. & Lef. 1. But not after the plea and replication, so as to 
 vary the case. 8 Sim. 72. And the defendant may be obliged to 
 answer all the •interrogatories contained therein, although some 
 of them were answered in the original Bill. 3 Mad. 66, 72. 2 Ir. 
 Eq. Ca. 218. 3 Myhie & Craig, 66. Rule XXVni.,^oi<. Matter in- 
 troduced by amendment must not be matter which has happened 
 since the filing of the Bill : but, for exceptions, see Buck v. Buck, 
 11 Paige, 170. 1 Barb. Pr. 207. And where, from change of in- 
 terest or any other circumstance, parties become interested in the 
 subject-matter of the suit after the Bill is filed, they may be made 
 parties to the Bill by amendment or by- supplemental Bill. Ley- 
 land V. Leyland, 6 Law Times, N. S. 342. Instances of amend- 
 ment of Bill ; Noyes v. Sawyer, 3 "Vei-m. 160. Arendell v. Black- 
 well, 1 Dev. Eq. 364. Stephens v. TeiTel, 3 Monr. 131. Gayle 
 V. Singleton, 1 Stew. 566, (Ala.) Ontario Bk. v. Schermerhorn, 10 
 Paige, 109. Ayres v. Valentine, 2Edw. Ch.461. Buckleys. Corse, 
 Saxton, 504. West v. Hall, 3 H. & J. 221. Walker v. Hallett, 1 
 Ala. N-. S. 379. Jennmgs v. Springs, 1 Bailey's Eq. 181. But an 
 amendment will not be permitted unless it appears that the plain- 
 tiff will be entitled to relief on the case made by the Bill after 
 amendment. Mitchell v. Lenox, 1 Edw. Ch. 428. Nor where 
 the matter of the proposed amendment might with reasonable dil- 
 igence have been inserted in the original Bill. N.Am. Coal Co. 
 V. Dyett, 2 Edw. Ch. 115. For time when amendments may be 
 made, see Green v. Tanner, 8 Metcalf, 411. Stoi-y's Eq. PI. §§ 886, 
 887. For exceptions to the rule. VermUlyea v. Odell, 4 Paige, 121. 
 
 ' 3 & 4 Will. 4, c. 94, § 13. Order 13, 1831. Order 19, 1828." 
 Story's Equity Pleadings, § 332. 
 
 2 3 Sim. 23. 
 
OEIGINAIi BILL AND AKSWER TS CHANCEET. 49 
 
 INT. B. All amendments, before any sufficient 
 answer is filed to a Bill, are allowed upon an 
 order obtained as of course from the Master, for 
 the purpose; and one order allows any number 
 of simultaneous amendments , to be made, and 
 any number of orders may be obtained, as occa- 
 sion may require, one after the other, before any 
 sufficient answer has been filed; but when the 
 latest sufficient answer to a Bill has been filed, 
 viz., the answer of that defendant within the 
 jurisdiction who has the latest time to answer in, 
 then only two applications are usually allowed, 
 and each of such appUcations to amend can only 
 be made, and order obtained, in such a way and 
 within such a time as the orders above dictate ; 
 and these two applications are made to the 
 Master.^ 
 
 All amendments must be made within three 
 weeks from the date of the order obtained.^ 
 
 The amended BUI and original Bill form but 
 one and the same record in the estimation of the 
 Court.^ 
 
 ' 1 Smith, 216. Lube's Analysis, 82. A defendant not within 
 the jurisdiction is not to be considered a defendant as to this point. 
 King of Spain v. HuUett, 3 Sim. 338. 
 
 « Order 14, 1828. But see, 2 Paige, 67. 6 Johns. Ch. Kep. 79. 
 7 GiU & Johns. 369. 
 
 " 1 Paige, 124. 1 Paige, 200. Vere v. Glynn, 2 Dick. 441. 
 Hinde's Chanc. Pract. 22 (as to address of amended Bill being 
 the same as that of original Bill, even though judge b'e changed) . 
 T. & F. Ins. Co. V. Jenkins, 8 Paige, 589. 
 
50 FORMS AND EULES FOE DRAWING AN 
 
 After an order has bepn obtained to amend, 
 still the alterations allowed are to some extent 
 restricted by certain rules, namely, that the al- 
 teration must be by way of amendment, and to 
 correct errors in the BiU, or else to supply in ad- 
 dition such parties and facts, as, like those alrea- 
 dy stated in the Bill, were in existence previously 
 to the Bill bemg filed, and which could then have 
 been inserted, had they then seemed necessary, 
 or if knowledge of them or recollection of them 
 had then happened; but in no case should amend- 
 ments state facts or parties not in existence pre- 
 viously to the filing of the Bill ^ (through the 
 rule given above) . Only such facts and parties 
 should be added as do not tend to show such a 
 totally different ground for rehef than the Bill 
 itself showed, as filed, that they occasion the 
 very intent itself of the original prayer to be al- 
 tered; for such alteration of intent of prayer 
 always harms the plaintiff's case on the hearing, 
 and any benefit at all can only be arrived at 
 through the most troublesome, difficult, and ex- 
 pensive means; as the Bill may become demur- 
 
 ' Knight V. Matthews, 1 Mad. 566. 3 Johns. Ch. Kep. 423. 3 
 Atk. 370. 3 Younge & Collyer, 461. 10 Sim. 238. Should be 
 the subject of a supplemental Bill. Atk. 291. Harr. 60. 3 "Wash. 
 854. But see Kipp v. Hanna, 2 Bland. 26. BeUoat p. Morse, 2 
 Hayw. 157. Bradford ». Felder, 2 M'Cord Ch. 170. Candler v. 
 Pettit, 1 Paige, 168. Buck v. Buols, 11 Paige, 170. 1 Barb. Pr. 
 207. Leyland v. Leyland, 6 Law Times, N. S. 342. 
 
ORIGINAL BILL AND ANSWEE IN CHANCERT. 51 
 
 rable in consequence, and if not demurrable, still 
 impeded by many objections taken; but a plain- 
 tiff, by amendment, may quite alter Jiis case, by 
 improvement, although he should never alter the 
 intent of his prayer; but the form of words in 
 the prayer may be altered.^ 
 
 Amendments are oftenest occasioned by the 
 answer discovering facts that require to be put 
 in issue with a full statement in. opposition; or by 
 the answer denying certain facts to be as stated 
 in the Bill, and so rendering other facts necessa- 
 ry to be stated, to carry out the denied statement 
 most fully; or by the answer showing inaccura- 
 cies to be in the Bill, as to names, dates, sums, 
 or other minuti^, and then the Bill is amended 
 by correcting, adding, or striking out such parts 
 as seem advisable to be corrected, added, or 
 omitted, with proper charges and interrogatories 
 as may be advisable; and this is done by means 
 of the draft being so altered as the case requires, 
 in such places as the case requires, in red inTc, 
 and afterwards signed by counsel, if the counsel 
 making amendments is not the same counsel who 
 signed the original draft.® 
 
 An amendment by striking out a plaintiff and 
 
 > Butterworth v. Bailey, 15 Ves. 358. Mavor v. Dry, 2 Sim. & 
 Stu. 113. Smith v. Smith, G. Cooper, 141. 
 
 ? Burch V. Rich, 1 Russ. & Myl. 156. Webster v. Threlfall, 1 
 Sim. & Stu. 135. Pitt v. Macklew, 1 Sim. & Stu. 136. Stoiy's 
 Equity Pleadings, § 883. 
 
52 FORMS AND EULES FOE DEAWING AN 
 
 making him a defendant cannot be made without 
 consent of defendants (or else of the Court) , if 
 they have answered, as it lessens their security 
 for costs; and if a party have been made plaintiff 
 without his consent, then the solicitor who made 
 him plaintiff will have to pay costs, through him, 
 in his stead, if occasion arise} 
 
 Sort of Sills most in Use. 
 
 Upon reviewing the various boots of reports, 
 I find that the sorts of Bills that have been 
 mostly used are : — 
 
 A Bill for a Special Injunction and Relief, 
 having for its object the restraining parties from 
 continuing to do acts in trade (or other acts) in 
 the manner hitherto done, to the unjust prejudice 
 of the plaintiff; or else to restrain parties from 
 carrying into execution the threats they have 
 made to act in a particular manner, that will be 
 to the unjust prejudice of the plaintiff, and for 
 relief in regard thereto. 
 
 !N". B, Such as acts or threats of erecting, pull- 
 
 1 Titterton v. Osborne, 1 Dick. 360. Motteux v. Mackreth, 2 
 Dick. 736. 1 Ves. 142. Lloyd ». Makeham, 6 Ves. 145. Witts v. 
 Campbell, 12 Ves. 492. 
 
 There is greater strictness with regard to amending Bills for 
 injunction than other BiUs. 1 Johns. Ch. Rep. 434. 6 Johns. Ch. 
 Eep. 81. 1 Paige, 424. Except as to the prayer. 3 Swanst. 489. 
 The petition must state what the proposed amendments are, and 
 show their materiality, and why such matter was not stated be- 
 fore. 2 Johns. Ch. Kep. 426. 3 Anst. 807. 
 
ORIGINAL BELL AND ANSWER IN CHANCERY. 53 
 
 ing down, altering, pirating, wasting, using, imi- 
 tating, or damaging, or transferring stock} 
 
 A Bill for Discovery, and an Injunction to re- 
 strain Proceedings at Law, having for its object 
 the restraining parties from taking oiit execution, 
 if they be successful in an action at law already 
 commenced, or threatened to be commenced, un- 
 til they have discovered to the plaintiff the in- 
 formation necessary to him to defend himself 
 against such action at law, or the result of the 
 same, with due justice to himself. 
 
 I^. B. Such as the discovery of deeds, writings, 
 or facts known with precision only to the plain- 
 tiff at law, and not to witnesses nor plaintiff in 
 equity.^ 
 
 A Bill for Discovery and Relief, having for its 
 object a discovery of books, papers, and writiags, 
 and a just account of how various moneys re- 
 ceived have been applied or disposed of, and 
 
 ' 2 Paige, 209. 3 Peters, 219. 10 Wheaton, 61. 6 Peters, 15. 
 Lube's Analysis, 67. 1 Paige, 98. 1 Johns. Cas. 64. 9 Johns. 
 Rep. 507. 2 Sumner, 400. 11 Conn. 61. 8 Paige, 75. 6 Paige, 
 125. 1 Sumner, 89. Amb. 70. The United States Court cannot 
 enjoin proceedings in a State Court. 4 Cranch, 179. 6 Cranch, 
 61. 1 Ves. & Bea. 314. 8 Ves. 620. L. & R. 38. Nor can a 
 State Court enjoin a judgment in the Circuit Court of the United 
 States. 7 Cranch, 276. Dane's Abr. ch. 26, art. 13. 
 
 A Bill may be brought on behalf of an infant en ventre sa mere, 
 and an injunction to stay waste may be obtained. 2 Vern. 711. 
 
 2 As to cases where a Bill for a discovery has been granted, see 
 
 3 Conn. 135. 3 Anst. 634. 2 Vern. 716. 1 Ch. Cas. 66. 3 Younge 
 
 & Collyer, 255. 
 
 5* 
 
54 FORMS AND RULES FOR DRAWING AN 
 
 relief, in case the accotuit shows the plaintiff enti- 
 tled to receive money. 
 
 iN". B. This BUI is the fitting one to file against 
 trustees, or executors, having the superintend- 
 ence of lands, mines, funds, or any pecuniary 
 transactions. 
 
 Or this Bill is used by one creditor when he 
 sues in his own behalf alone, or on the behalf of 
 himself and all other creditors, against a debtor 
 or his executor, for an account of the debtor's 
 estate and dealings, and that the estate may be 
 administered by the Court equitably among all 
 the creditors who may come in and claim by the 
 suit. 
 
 Or this Bill is used by one partner against his 
 partners, when he demands a dissolution of the 
 partnership and adjustment of accounts. 
 
 Or this Bill is used for the duly carrying out a 
 testator's intention, as shown by his will, as re- 
 ■'gards private charities, children, legatees. 
 
 In truth, if the books are to be the tests of 
 what equity is capable of, it appears to me, that 
 unless the Equity Courts and Equity Bar were 
 ever vigilant to detect where a remedy Hes at 
 law, and to refuse proceedings in equity, in con- 
 sequence, that equity would (if its proceedings 
 were but suited to small estates or properties as 
 well as to large ones) be the fountain of justice 
 primarily and universally resorted to, in every 
 case, for redress; for, over and above other ad- 
 
ORIGINAL BILL AND ANSAVER IN CHANCERY. 55 
 
 vantages, it has this, namely, that it has power 
 to frame its decrees so circumstantially as to give 
 complete redress. 
 
 To show what pecuUar and paramount author- 
 ity equity has, there is created and fostered by it 
 an estate totally repugnant to all principles of 
 law, and wholly discouraged by the law alto- 
 gether (and daUy practice shows how highly this 
 estate is prized), namely, the separate estate of 
 the wife, over which estate she alone (and not 
 her husband or his creditors) has exactly the 
 same dominion, in aU respects, while a wife, as 
 if she were a feme sole, and is restrained only in 
 her disposition of it by the terms of the will or 
 deed of settlement engiftuig her with such es- 
 tate.^ 
 
 Another instance of equity's beneficial effect 
 is the estate of the cestui que use (the person for 
 whom a trustee holds), which is also repugnant 
 to the principles of law. 
 
 Form of the Akswbe. 
 
 An Answer is a formal writing confined in its 
 contents to the setting forth such circumstances 
 of a case in dispute, as a Bill in Chancery, by 
 its apparent validity, renders necessary. 
 
 The object of an answer is to nullify the case 
 
 ' TuUett V. Armstrong, 1 Beav. 1. 4 Mylne & Craig, 377. Rich 
 V. CockeU, 9 Ves. 375. 
 
56 FOEMS AND RULES FOE DRAWING AN 
 
 made hy the Bill, and not to set out circumstan- 
 ces of any case or fact that is independent of the 
 one made by the BUI, or quite inoperative on it.^ 
 
 I. Title. 
 
 The first part of an Answer is its Title, which 
 usually is as follows, where the answer is that of 
 only one of the defendants to the Bill: — 
 
 The ansvder of (christian and surname) , one of 
 the defendants, to the hill of com/plaint of (chris- 
 tian and surname), complainant. 
 
 Or else is as follows, where there is only one 
 defendant: — 
 
 The answer of (christian and surname), de- 
 fendant to the Mil of complaint of (christian and 
 surname) , complainant. 
 
 "Where there are more than one plaintiff, the 
 christian and surnames of each are given, and 
 the word complainants is used in the Title, 
 instead of complainant.^ 
 
 The Title of an Answer is so far a very impor- 
 tant part of it, that it must contain a correct 
 description of the defendant, the sort of Bill, and 
 the sort of. Answer to be used; and, if found 
 
 > Story's Eq. PL §§ 849, 845. If the defendant does not file 
 his Answer at the expiration of the period allowed him, or obtain 
 further time for that purpose, the plaintifif is at liberty to attach 
 him. Goldsmith's Equity, 132. Rule VII., ^os<. 
 
 * In what cases it is proper for several defendants, who ap- 
 pear by the same solicitor to put in separate answers, see Pentz 
 V. Hawley, 2 Barb. Ch. 552. 
 
OEIGINAL BILL AND ANSWER IN CHANCEET. 57 
 
 erroneous in any of these particulars, should be 
 taken off the file, by a motion to be made by the 
 plaintiff for that purpose, as he would be 
 deprived, by such an incorrect Title, of that cer- 
 tainty which it is essential to possess, in order to 
 support a charge of jperjW^/ against a defendant, 
 where such an offence has been committed, the 
 power of indictment for perjury being the only 
 penalty in terrorem a plaintiff has, whereby to 
 coerce the truth from a contumacious defendant.^ 
 If the BUI has been amended, or is a peculiar 
 BUI, then the word amended, or other appropri- 
 ate expression, is to be prefixed to the word Bill, 
 in the Title j or if the Answer has been reported 
 by a Master as "insufficient," the Title of the 
 
 ' Examples to illustrate this observation are the following : — 
 
 An Answer was taken off the file where the words "to the Bill 
 of complaint " were omitted in the Title of the Answer. Cooper, 
 249. 
 
 Also, where the name of the plaintiff was incorrectly given, he 
 being described as Edward GriflBths, instead of Edmond Griffiths. 
 11 Ves. 62. 
 
 A Title purporting that the Answer was to a Bill of complaint 
 of five complainants, when the Bill had six plaintiffs, was taken off 
 the file. 1 Mad. 83. Stoiy'sEq. PL § 869. 
 
 A Title purporting that the Answer was the joint and several 
 Answer of two defendants, and it was sworn to by one defendant 
 only, was taken off the file . 1 Mad . 266 . 
 
 Where an Answer was entitled as to the original Bill of a deceased 
 plaintiff, the Answerwas taken off the file. 12 Sim. 46. 
 
 The place where and the time when an Answer is taken must be 
 mentioned in the caption, or it may be taken off the file. Barry 
 &Keogh's Chanc. Pract. 262. 
 
58 FORMS Amy exiles for urawtng ah 
 
 second Answer is then to have the word further 
 prefixed to the word A.nswer. 
 
 The common forms used are the following: — 
 
 T7ie Answer of J. S. C, Knight, her Majesty's 
 Attorney- General, one of the defendants to the 
 Bill of complaint of E. C and It. his wife, com- 
 plainants. 
 
 The Answer of C D., an infant under the age 
 of twenty-one years, hy L. M., his guardian, one 
 of the defendants to the Bill of complaint of J. 
 K. and M. O., L. S. and 8. V., complainants. 
 
 The Answer of 8. B., widow, one of the de- 
 fendants to the original and amended Bill of com- 
 plaint of M. JX., complainant. 
 
 The joint and several Answers of A. B., C. 
 D., and Tj. F., three of the defendants to the 
 original and amended Bill of complaint of JR. 
 K., deceased, and also their Answer to the Bill of 
 revivor and amended Bill of B. P., complainant. 
 
 The joint and several Answers of J. K., and 
 B. his loife, H. G., J. P., and of L. F. and T. 
 F., infants under the age of twenty-one years, hy 
 G. M., their guardian, six of the defendants to 
 the Bill of complaint of G. 8., complainant. 
 
 The supplemental Answer of J. F., G. H., 
 and JSr. F., three of the defendants to the Bill of t 
 complaint of the Reverend F. L. and B. L., com- 
 plainants. 
 
 Where a defendant is misnamed in a Bill, the 
 Title of his Answer should correct the error, 
 thus : — 
 
ORIGINAL BILL AND ANSAVER IN CHANCEI^Y. 59 
 
 The Answer of A. B. (in the Bill called D. 
 B.), &c., as before, as the case requires. 
 
 The Title is put as a distinct paragraph, at the 
 top of the Answer. 
 
 H. Preliminary Saving. 
 
 The second part of an Answer is the Prelim- 
 inary Saving, which runs on the following' 
 words : — 
 
 This defendant now and at all times hereafter 
 saving and reserving to himself all henefit and 
 advantage of exception which can or may he had 
 or taJcen to the many errors, uncertainties, and 
 other imperfections in the said complainants said 
 BUI of complaint contained, for answer thereunto, 
 or unto so much and such part or parts thereof as 
 this defendant is advised is or are material or 
 necessary for him to make answer unto, this 
 defendant answering, saith . 
 
 Where the Answer is a joint Answer, the 
 coimnencement runs thus : — 
 
 These defendants now and at all times here- 
 after saving and reserving to themselves and each 
 of them (the same as above), 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, 
 that } 
 
 1 Where the Answer is that of an infant, this formal saving is 
 omitted altogether; but these pages apply only to ordinary 
 Answers of ordinary defendants, and give full particulars of no 
 other kind. 
 
60 FORMS ANT) EDLE8 FOK DRAAVTNG AS 
 
 The above formal sentences have in a similar 
 manner inserted in them, in proper places, such 
 appropriate words as show the sort of Ansiver 
 and Bill they are used in regard to; and such 
 words usually are as follows : — 
 
 For further answer to the said Sill of com- 
 plaint, where the Answer is a second answer; 
 — or, 
 
 For further answer to the said original Bill, 
 and for answer to tJie said amended Bill, where 
 not only the Answer is a second answer to the 
 original Bill, but an Answer, also, to the Bill as 
 amended; — or, 
 
 In the said complainant's original and amend- 
 ed Bill of complaint, where the original BUI has 
 been amended before any Answer has been filed. 
 
 In continuation with the above Preliminary 
 Saving, is added the first /ac^ of the case made 
 by the Bill and known to the defendant, and is 
 expressed in that sort of language as the inter- 
 rogatory (mentioned in the note at the foot of 
 the BUI, as being required of a defendant to 
 answer) occasions, much care being taken to 
 avoid all magnUoquent or altisonant words being 
 used, as they are fit only for novel or poetic 
 language, and not for legal phraseology. 
 
 The safest language to be employed in answer- 
 ing is that set forth by the Bill in its interroga- 
 tory; and such language should be employed to 
 as great an extent as is possible, by using no 
 
ORIGINAL BILL AND ANSWER IN CHANCERY. 61 
 
 variation from it, except by simply inserting a 
 word here or there, as the necessity of having to 
 answer requires ; for if the defendant admit, then 
 he should confine his admission to the limit of 
 the statement in the BUI, by using its language; 
 for thus he safely guards himself from commit- 
 ting himself more (to his own cost) and from 
 benefiting a plaintiff more than the case actually 
 requires ; also, if he deny, he must do so, not by 
 using a denial of so comprehensive an import 
 that by force of reasoning it negatives the whole 
 interrogatory, but the statement itself in the 
 interrogatory must be denied, even though a 
 general denial be also employed; for the fact 
 stated is the one which the plaintiff has promi- 
 nently selected as most important to his case, 
 and, as an ingredient in it, dehneates the charac- 
 ter of his case, thereby giving notice to the 
 defendant of his intention; and on that account 
 the plaintiff is entitled to know specifically what 
 portions of his case are denied, that thereby the 
 extent of evidence he must produce may be man- 
 ifest. The language of the Bill should therefore 
 be used in the answer.^ 
 
 m. Examination Part. 
 
 "With this part of the Answer, caEed the Ex- 
 amination Part, the difficulties of drawtag the 
 Answer commence. 
 
 ■ 2 Hare, 189. 
 
62 FORMS AND EDLES POR DEAWmG AS 
 
 The object of the Answer, in this JEJxamina- 
 tion Part, is only to nullify, as much as possible, 
 the case made hy the Bill, and nothing more; 
 therefore, only such circimistances are to be ex- 
 pressed in this Examination Part, as the BUI, by 
 the import of the words in its interrogatories 
 selected for the defendant, rigidly requires, as 
 being relevant to the case made by the BUI 
 against the defendant; and, of course, in no 
 more full nor precise terms than the Bill just re- 
 quires and renders necessary. The object of the 
 plaintiif, by the interrogatories he has selected 
 for the defendant to answer, is to obtain discov- 
 EET of such a nature as wUl establish the case 
 made by the BUI against the defendant, answer- 
 ing to the extent aimed at by the prayer of the 
 BUI, and at the personal cost of the defendant; 
 for this end, the rules of the Court enable a 
 plaintiff to have from a defendant what is caUed 
 a full discovery, that is, an answer so sufficient 
 as to meet the requisitions of each relevant in- 
 quiry contained ia the interrogatories selected 
 for the defendant by the note of the BUl.^ 
 
 By this privUege aUowed to the plaintiff over 
 this 'Examination Tart of an Answer, are the 
 various difficulties occasioned to a draftsman; 
 for the plaintiff ffles ea?cej)fo'ows in writing, setting 
 out either what passages he considers imperti- 
 
 » Order 16, 26th August, 1841. 
 
ORIGINAL BILL AND ANSWER IN CHAXCEP.Y. 63 
 
 nerd (where passages inserted in an Answer are 
 uncalled for by the interrogatories, or irrelevant 
 to the case made by the Bill) , or else what inter- 
 rogatories he considers are not sufficiently an- 
 swered (through no answer being given to them 
 to as full an extent as the inquiries in those in- 
 terrogatories seek for and specify) ; and then he 
 obtains the report of the Master upon those ex- 
 ceptions, if the defendant do not submit to the 
 exceptions, and to answer more fully the inter- 
 rogatories specified in them as being insufficient- 
 ly answered; in either of which cases, if the 
 plaintifi" be successful, much trouble and expense 
 are occasioned to a defendant; and also a severe 
 trial of the patience and reputation of the drafts- 
 man results. 
 
 To guard against the first-mentioned difficulty, 
 it should be remembered, that impertinence is 
 any fact, matter, or circumstance, or any lan- 
 guage, which is not only not called for by the 
 BUl's interrogatories, but is also without any ef- 
 fect on the case made by the Bill as against the 
 defendant, and is therefore totally irrelevant. 
 
 The sort of impertinence most usually inserted 
 by young draftsmen is what may be denominat- 
 ed moral impertinence, that is, statements which 
 give circumstances showing the " moral deprav- 
 ity," or the " moral injustice," of the plaintiffs 
 conduct, or the "moral kindness," or "moral 
 hardships," attendant on the defendant's case or 
 
64 FOEMS AND RULES FOE DEAWDfG AN 
 
 conduct. I^ow this sort of impertinence, even if 
 it assert and prove, beyond all doubt (when 
 taken to be true), the morality, Mndness, for- 
 bearance, or politeness of a defendant, or the 
 profligacy, harshness, or petty spite of a plaintiff, 
 is, if it prove that only and no more, so thor- 
 oughly without force or efficacy with a jtidge, 
 that a plaintiff is allowed to apply to have such 
 impertinence expunged from the Answer, and 
 that the defendant may pay all the costs attend- 
 ant as a consequence on such iniquitous plead- 
 ing, because politeness, morality, or kindness is 
 each a nullity, having nothing at all to do with 
 the scintilla juris of the case ; the only restraint 
 imposed on a plaintiff touching impertinence is, 
 that he must apply to have such impertinence 
 expunged before he makes use of the Answer in 
 any way; and the Master before whom the ex- 
 ceptions are heard is to look into the actual rel- 
 evancy of the passages excepted to.^ But if the 
 impertinence amount to absolute scandal, that is 
 to say, the vilifying the personal character or 
 general reputation of a plaintiff, beyond what the 
 circumstances of the case actually render neces- 
 sary for justice, and so unavoidable, then the 
 plaintiff may apply to have such scandal ex- 
 punged at any time when he first detects it in 
 
 'Orderll, AprU, 1828. 
 
OEIGINAL BILL AND ANSWER IN CHANCERY. 65 
 
 the Answer; but necessary detraction from char- 
 acter or reputation cfeases to be scandal.^ 
 
 Also, if a defendant answer an interrogatory 
 he is not requu-ed to answer, by only stating • he 
 is ignorant of the matters referred to, such a 
 statement is impertiuence.^ 
 
 The other sort of impertinence very frequent- 
 ly committed is setting out deeds or writings in 
 JicBC verba, beyond what is necessary and not 
 called for by the BUI; especially when the Bill 
 gives correctly the deed or writing in hcec verba; 
 for then the Answer should not repeat, but mere- 
 ly admit that the deed or writing is as in the 
 words in the Bill in that behalf mentioned, but 
 to which deed or writing the defehdant, for 
 greater certainty, craves leave to refer. 
 
 The impertinence most difficult to avoid, how- 
 ever, and which requires much discretion to be 
 employed, is that of stating circumstances which, 
 though beneficial to a defendant in one point of 
 view, are yet irrelevant, because not operating 
 on the case made by the BilU 
 
 ' See Russ. & Myl. 28. 6 Ves. 456. 2 Ves. 23, 630. Pract. 
 Reg. 383. Beam. Ord. 25. Story's Eq. PI. §§ 862, 863. 
 
 s Order 16, 26th Aug. 1841. 
 
 3 Scandal, in Bills or other pleadings, is said to consist not only 
 in setting forth matter uncalled for, and imputing crime, but also 
 in the use of language unfit to be offered to the Court, or which 
 is contrary to good manners. Impertinence arises from what is 
 termed stuffing the pleadings with matter totally immaterial to the 
 point. Nothing relevant, even if not material, or if prolixly set 
 forth, is scandalous. And if a pleading be scandalous, it is im- 
 
66 rOEMS ANB RULES FOR DRA'WING AN 
 
 To surmoiiiit the other difficult}'', namely, rsr- 
 STiFMCiEisroT, it should be remembered, that a de- 
 fendant need not answer (unless he prefer) more 
 
 pertinent, of course ; but the converse does not hold. 11 Ves. 
 526. 1 Grant's Chanc. Pract. 307. 
 
 It appears that interrogatories and depositions will not be rer 
 ferred for impertinence alone, without scandal. White v. Fus- 
 seU, 19 Ves. 113. 
 
 An exception for impertinence fails if any part of the passage 
 included in it be not impertinent. 1 Kuss. & Myl. 28. 
 
 An Answer to the usual interrogatories in a Bill against an ex- 
 ecutor, as to the particulars of personal estate, and for what it 
 sold, a schedule annexed to the Answer, in which every particular 
 article of personal estate was set forth, and what it sold for, was, 
 on exceptions, held to be impertinent ; it being only necessary to 
 state the whole amount for which it sold. The Vice-Chancellor 
 stated that the defendant might have satisfied himself by alleging 
 that the household furniture was sold by public auction, at such a 
 time and place, and by such a person, and produced such a sum. 
 Beaumont v. Beaumont, 6 Mad. 51. 
 
 Statements in an Answer are impertinent, if they are neither 
 called for by the Bill, nor material to the defence, with reference 
 to the order or decree which may be made on the Bill ; and state- 
 ments in an Answer to a Bill of revivor, which merely show irreg- 
 ularity and misconduct in the former proceeding in the suit, are 
 impertinent. -Wagstaff v. Bryan, 1 Russ. & Myl. 28. Devaynes 
 V. Morris, 1 Myl. & Craig, 213. See, also, Metcalfe v. Metcalfe, 
 1 Keen, 74. 
 
 Upon the general question of what is and what is not scandal 
 and impertinence, see Alsager v. Johnson, 4 Ves. 217. Lord St. 
 John V. Lady St. John, 11 Ves. 256. Corbett v. Tottenham, 1 
 Ball & B. 69. Norway v. Rowe, 1 Meriv. 347. Parker v. Fairlie, 
 1 Sim. & &tu. 296. 15 Ves. 477. 2 Mad. 176. 5 Mad. 450. 
 
 Bill filed for the common injunction to stay proceedings at law. 
 The defendant referred the Bill for impertinence. The Master 
 reported it not to be impertinent. Held that the plaintiff was en- 
 titled to his injunction, as of course, no Answer having been filed. 
 3 Swanst. 232, note. 
 
 A plaintiff cannot refer an answer for impertinence, after repli- 
 
OEIGIXAL BILL AND AJSTSWER IN CHANCERY. 67 
 
 interrogatories than are specified as required of 
 him by the note at the foot of the Bill.^ Also, 
 that he need answer no interrogatory that by its 
 import, if answered, would become a link in a 
 series of facts that might directly lead to a pen- 
 alty, forfeiture, or indictment.^ 
 
 Also, a defendant is at liberty to state in his 
 Answer, that he declines answering any inter- 
 rogatory or part of an interrogatory which he 
 might have protected himself from answering, if 
 he had demurred to it.^ But the plaintiff gen- 
 cation, or an undertaking to speed the cause ; but it is stated that 
 he may refer for scandal at any time, — 3 Swanst. 232, note, sed 
 gucere, — if not too general; and see, also. Re Burton, 1 Euss. 
 880. A plaintiff cannot refer for impertinence an affidavit filed in 
 any support of a motion, if, after that affidavit was filed, he has 
 filed any affidavit in opposition to the motion. Keeling v. Hos- 
 kins, 2 Russ. 319. Contra as to scandal. See 1 Kuss. 380, in the 
 Matter of Burton. 
 
 After a reference for insufficiency, an Answer cannot, it seems, 
 be referred for impertinence. Per Lord Eldon, 6 Ves. 458. An 
 Answer was referred for scandal, on the motion of another de- 
 fendant. Coffin V. Coffin, 6 Ves. 614. It seems, also, to be com- 
 petent to a person not a party to the record to reply. Ibid. Al- 
 though it was said by the Lord Chancellor, in Jeffery v. M'Cabe, 
 1 Russ. & Myl. 739, that it was too late to except to an Answer 
 for impertinence, when the time has expired, after which, accord- 
 ing to the new orders, the Answer is to be deemed sufficient, 
 the contrary was decided by the Vice-Chancellor, in Bradbury v. 
 Booker, 6 Sim. 325. See ante, page 36, note, and Rules XXVI. 
 and XXVII. post. Van Rensselaer v. Brice, 4 Paige, 174. Wood 
 V. Mann, 1 Sumn. 679. Price v. Tyson, 3 Bland, 392. Woods v. 
 Morrell, 1 Johns. Ch. 103. 
 
 1 Order 16, Aug. 1841. "gee Wig. 123, 132, 347. 
 
 ' Order 38, Aug. 1841. Maury v. Mason, 8 Porter (Ala.), 213. 
 Story's Eq. PI. § 847. 
 
68 FORMS AND EtTLES FOE DEAWTNG AN 
 
 erally excepts to an Answer having such a state- 
 ment, that the Master may decide. 
 
 IsTeither need he answer entirely when the fact 
 inquired into is anterior to seven years ago;* 
 but may then state his knowledge in as general 
 terms as he may deem expedient, provided he 
 does not show that he can give better informa- 
 tion; also, if a fact he of more recent date than 
 seven years, but is manifested by the Bill itself, 
 or by the answer, not to be the defendant's own 
 ad, then he need supply no more details than to 
 him seem advisable, provided they be so ex- 
 pressed as to appear the very utmost of his 
 knowledge; also, he may refuse to answer in 
 detail, when he cannot answer an inquiry in an 
 interrogatory as the BUI requires him to do, by 
 its formal words preceding the interrogatories, 
 which require a defendant (and a defendant is, 
 by the rules of the Court, bound in consequence) 
 to frame his Answer from materials supplied 
 from the following sources : — 
 
 The best and utmost of a defendants Tcnowl- 
 edge, remembrance, information, and belief^ 
 
 But it is only by a defendant stating that he 
 
 ' Dan. Chanc. Pract. 266. 
 
 * Norton v. Warner, 3 Edw. 106. Of facts not within his own 
 knowledge, he must answer as to information and belief. Bolton 
 V. Gardner, 3 Paige, 273. Brooks v. Byam, 1 Story, C. C. 296. 
 Carey v. Jones, 8 Geo. 516. When the defendant has means of 
 acquiring information; Morris v. Parker, 3 John. Ch. 301. 
 Swift V. Swift, 13 Geo. 140. Davis v. Mapes, 2 Paige, l05. 
 
OEIGINAL BILL AND ANSWER IN CHANCEEY. 69 
 
 is a stranger to the matters and things mentioned 
 in an interrogatory, and is totally ignorant and 
 cannot speak from his knowledge, remembrance, 
 information, and belief, that he is at liberty to 
 leave an interrogatory selected for him further 
 unanswered.^ 
 
 Where none of the above exemptions exist in 
 favor of a defendant, and he is himself to answer 
 critically in detail, then he must either admit the 
 statement in the Bill interrogated to and select- 
 ed for him to answer " to be true, and as in the 
 BUI is mentioned in that behalf" (which is the 
 best way to answer, where a fact is clearly and 
 manifestly unimportant to the defendant's de- 
 PEifCE, although the statement in the Bill be not 
 true in all its parts, but yet substantially so, for 
 the plaintiff can never prosecute for an admission 
 made by a defendant of the plaintiff's own state- 
 ment being true) ; or else he must ANSW^n fully 
 each inquiry which is included, in or added to 
 that interrogatory selected for him. 
 
 If he ADMIT a statement to be true, and as in 
 the Bill is mentioned in that behalf, then the 
 mere expressing such an admission is a sufficient 
 answer to the whole interrogatory on that state- 
 
 ' Defendant may also object to answering an immaterial allega- 
 tion. 1 Dan. Ch. Pr. 730, n. 5, (3d. ed.) Utica Ins. Co. v. Lynch, 3 
 Paige, 210. Butler v. Catling, 1 Root, 310. Gilkey v. Paige, Walk. 
 Mich. Ch. 520. As to materiality of an allegation in a Bill, and tests 
 of it, see Story's Eq. PL § 853. Kuypers i>. R. D. Church, 6 Paige, 
 570. Beall v. Blake, 10 Geo. 460. 
 
70 FOEMS AND EULES FOR DRAWING AN 
 
 ment, however minute or numerous tlie inquiries 
 may he wliicJi it is made up of; so that an admis- 
 eion is the easiest and shortest way to answer a 
 Bill, but still requires the utmost caution to be 
 used, to avoid admitting more of the interroga- 
 tory than is really intended to be admitted, and is 
 harmless; for where an admission is even acci- 
 dentally erroneous in its estent, and admits even 
 a greater sum to be due or to have been received 
 than is really so, still* such an admission binds 
 tl^e defendant to the sum admitted; ^ unless in- 
 stantly very critical affidavits be got up, and a 
 motion made before the Answer has been in any 
 way acted on. 
 
 When an admission is made, then some drafts- 
 men insert immediately afterwards the facts in 
 justification and avoidance of the effect of such 
 admission, but it seems preferable, in my opinion, 
 to reserve such facts for that part of the Answer 
 next treated of, called the Defence, as will be 
 seen hereafter; for it is much more easy to an- 
 swer an interrogatory sufficiently when this Ex- 
 amination Part is kept exclusively and solely for 
 the purpose of setting out such full discovery as 
 is inquired after by the interrogatories, than when 
 its sentences wear the twofold character of dis- 
 covery and defend; for it is a most truly hazard- 
 ous undertaking to answer sufficiently a partic- 
 ular interrogatory, and then directly afterwards 
 
 ' E. Ind. Co. V. Keighley, 4 Mad. 16. 
 
ORIGINAIi BILL AND ANSAVEE IN CHANCERY. 71 
 
 as sufficiently to do justice to the defendant's own 
 personal defence, which defence must after all be 
 so adapted and constituted as the gekeeal re- 
 sult dedueible from the discovery given in the 
 whole of the Examination Part requires (to 
 render it both consistent and effectual) ; therefore, 
 I repeat, that it is advisable not to insert in the 
 Examination Part more of a defendant's defence 
 than the direct import of the words of the in- 
 quiries hterally force to be done. 
 
 "Where a defendant does not elect to " admit ' 
 a statement in the Bill, because too prejudicial to 
 his own defence, he must answer in such a way 
 as amounts to a full denial to that statement ; 
 for a defendant must in effect, at least, clearly 
 admit or deny, but is then at liberty to explain 
 such admission or denial in such a way as to him 
 may appear expedient. 
 
 With a defendant's denxai. the paramount dif- 
 ficu^lty in giving a sufficient answer begins j for 
 the plaintiff, by the rules of the Court, is allowed 
 the privilege of filing (as has been before men- 
 tioned) exceptions to an Answer, on the ground 
 of impertinence, if details be too wordily given, 
 or on the ground of insufficiency, if each minute 
 inquiry in the Bill be not as fully and as circum- 
 stantially answered as the inquiry demands. 
 
 The most frequent cause of insufficiency is the 
 anxiety to give no more information than the Bill, 
 by its own force, can formally and justifiably ex- 
 
72 FORMS AND RULES FOE DKAWES'G AN 
 
 act, to prevent the plaintiff getting more by his 
 Bill, at the defendant's personal loss and cost, 
 than its scope really entitles him to, and also not 
 to assist him by any valuable advantage or bene- 
 fit incautiously extended to him by any oversight 
 or over-liberality of expression in a defendant's 
 Answer. 
 
 To make the ^Examination Part capable of 
 being surmounted, in this particular, by ordinary 
 diligence, it must be borne in mind that when a 
 defendant answers at all, he is forced by the rules 
 of the Court, if the plaintiff knows how to use 
 them, to answer I'ullt; because he has selected 
 such a mode of defence, and has apparently 
 either waived using the less irksome mode of a 
 demurrer or plea, or else is forced by the appar- 
 ent validity of the Bill so to defend himself; 
 even if he answer as to an interrogatory not se- 
 lected for him by the Bill, he must answer fully; 
 or even if the fact inquired into be so totally ir- 
 relevant to the case made hy the Bill as to amount 
 to impertinence, yet the defendant must answer 
 as to it, to some extent, for the defendant ought 
 to have had such statement and its interrogatory 
 expunged from the Bill, in the first instance, as 
 impertinence} 
 
 To answer pullt means (as I have always 
 found) the giving the plaintiff either an admis- 
 
 > Story's Eq. PL §§ 606, 606, 847. Exceptions to the rule. Sto- 
 ry's Eq. PI. §§ 607, 846. Barry & Keogh's Ch. Pr. 245. 
 
OEIGIXAIi BILL AND ANSWER IN CHANCEKY. 73 
 
 sion of the fact as he has stated it, and no more, 
 or else giving him such discovery as to the fact, 
 in all those minute circumstances attending it, as 
 not only constitute and exhibit what the legal 
 entirety of the fact is, and show it to vary from 
 the import of the Bill in that behalf given, but 
 as also show such legal entirety to militate in 
 " substance " against that import of the BUI in 
 that behalf given. Such an explanation of what 
 is meant by fully answering is at least practi- 
 cally correct, because it meets with this practical 
 support in the usual routine of business ; namely, 
 that a defendant himself is only necessitated to 
 give details when he denies the circumstances 
 or effect of a statement in the Bill, and the Bill 
 itself only requires him to give details, when he 
 in effect answers nay to any of its interrogato- 
 ries.^ 
 
 This having to answer fully imposes on a de- 
 fendant the following duty, except where he is 
 an infant or an Aitorney-Q-eneral, whose an- 
 swers cannot be excepted to.^ 
 
 If he deny, he must deny not only the particu- 
 
 ' Bank of Utica v. Messereau, 7 Paige, 517. Parkinson v. 
 Trousdale, 3 Scam. 367. Wigram on Discovery, 85-122. Brooks 
 V. Byam, 1 Story, 226. Taylor v. Luther, 2 Sumn. 228. Brad- 
 ford V. Geiss, 4 Wash. C. C. K. 513. Woods v. Morrell, 1 Johns. 
 C. K. 103. Answer must be positive ; Devereaux v. Cooper, 11 
 Verm. 103. Must be direct, not argumentative ; N. E. Bank v. 
 Lewis, 8 Pick. 113, 119. Robertson v. Bingley, 1 M'Cord, 833. 
 
 2 13 Ves. 274. 4 Bro. C. C. 266. Story's Eq. PI. § 871. 
 
74 rOEMS AND KULES FOR DEAWTN-G AN 
 
 lar statement itself, as contained in the Bill, in 
 the words of the BiU,^ but must also extend his 
 denial so that no prdbaMe existence of the stated 
 fact which is clearly and prima facie and osten- 
 sibly ^roSaSZe, is included in that denial; for a 
 plaintiff is not deprived of his equity by the mere 
 mechanical circumstances constituting the exist- 
 ence of the fact being contrary to the statement 
 in the BUI, but is only deprived of his equity 
 when the true circumstances of the fact are such 
 as warrant and dictate that a different conclusion 
 than the one conveyed by the Bill must be drawn 
 regarding that stated fact; so that a plaintiff may 
 except to any Answer as insufficient, which only 
 shows the statement in the Bill to be so far un- 
 tenable, that the Answer in effect denies the 
 whole truth of the statement, but only so defi- 
 ciently sets out circumstances in denial, as to 
 convey an incomplete view as to what the true 
 effect of the denial practically is ; even if a BUI 
 merely clothed a statement itself in the language 
 of an interrogatory, without other inquiries being 
 added or inserted, yet such a full discovery in 
 denial as above mentioned must have been given; 
 but almost every modern Bill anticipates a denial, 
 and adds to, or inserts in, an interrogatory such 
 
 ' 2 Dan. Chano. Pract. 260. General denial not sufficient. 
 Miles V. Miles, 7 Foster, 447. Must not be by negative pregnant. 
 High V. Batte, 10 Yerger, 385. Robinson v. Woodgate, 3 Edw. 
 Ch. 422. Patrick v. Blackwell, 21 Eng. L. & Eq. 248. 
 
ORIGINAL BILL AJSD ANSWER IN CHANCERY. 75 
 
 further inquiries as will meet a denial, and require 
 full particulars as to Jiow (if the Bill be un- 
 true) the contrary thereof is the truth. 
 
 On inquiries being used (which they always 
 are), they have this prejudicial effect on the 
 plaintiff^ s case, however beneficial they may be 
 Lu all other respects; they manifest the extent 
 of discovery a plaintiff demands as necessary for 
 his case, and a defendant, therefore, need not 
 answer beyond the requisitions conveyed by such 
 inqunies, unless by doing so he imports into his 
 Answer matter operative enough on the plaintiff's 
 case to assist in nullifying it. 
 
 To answer these inquiries added to or inserted 
 in an interrogatory is a great or trifling perplex- 
 ity, according to the way in which they are 
 framed; for it is only their verbiage being intri- 
 cately divided or artfully made up of significant 
 little words, such as how, when, where, &c., or 
 being put ia the alternative by an or, or in a two- 
 fold sense by an and, that the chief impediments 
 in answering sufficiently are created; for such 
 little words, on being overlooked, or unintention- 
 ally left unanswered, by the mere forgetfulness 
 of a moment, render the Answer insufficient; for 
 though extremely small, even ridiculously so, yet 
 the effect of the import of these little words on 
 the case is generally of miraculous importance. 
 
 Also, words which seem to an ordinary reader 
 synonymous are often used in an interrogatory, 
 
76 FOEJIS AND EUT.es FOE DEAWING AN 
 
 and are purposely and speciously put together; 
 and if they have the slightest diiOference of im- 
 port from each other in law or equity, they, must 
 be separately answered, if of the least impor- 
 tance to the case made by the Bill, and if the plain- 
 tiff should rigidly require it, by filing exceptions. 
 
 To give a general rule how these inquiries are 
 to be answered appears impracticable; but the 
 surest way, at first, to get a facility of detecting 
 and understanding their demands (for a solicitor 
 with his client, or for a student) is, to take each 
 inquiry as if it were a distinct question of itself, 
 and repeat after it aloud, to complete its sense, 
 the material words it is used in reference to, and 
 thus get a full sentence before him, taMng care 
 to omit, for the present, all the little words inter- 
 vening between the selected inquiry and the 
 material words; and so treat each inquiry tUl the 
 whole interrogatory is answered. 
 
 To illustrate this method of answering, the 
 following example is selected. 
 
 Suppose the interrogatory to be this : — 
 
 Whether an indenture of lease was not made 
 of such date iy such parties and to such effect 
 as hereinhefore particularly mentioned, or some 
 other and what indenture, of some other and what 
 date, or parties to such or the like, or some other 
 and what effect. 
 
 Such an interrogatory, in the estimation of a 
 hostile plaintiff, would be made up of the follow- 
 
ORIGINAL BILL AND ANSWER IN CHANCERY. 77 
 
 ing inquiries, which should be answered by tlie 
 contrivance of separating the inquiries, and com- 
 pleting the sense of each, thus : — 
 
 Whether an indenture of lease was not made of 
 such ''date" as hereinbefore particularly men- 
 tioned? 
 
 By such parties as liereinbefore particularly 
 mentioned? 
 
 To such effect as hereinbefore particularly 
 mentioned? 
 
 Then, if the defendant in effect answer nay to 
 the above, he has to answer, also, — 
 
 Or if some " other " indenture of lease was not 
 made? 
 
 And ^^wJiat" indenture of lease (if yea) of 
 other date? 
 
 And of what " date " ? 
 
 Of some " other" parties? 
 
 And " what " other parties (if yea) ? 
 
 And to " such " effect as hereinbefore particu- 
 larly mentioned? 
 
 Or (if nay) to a " liJce " effect as hereinbefore 
 particularly mentioned? 
 
 Or (if nay) to some ^^ other" effect? 
 
 And ^'what " other effect (if yea) ? 
 
 The answers to the above inquiries should 
 embody in them the language of the inquiries. 
 
 The commencement of each statement in 
 answer to an interrogatory (after the first) 
 begins thus : — 
 
 7* 
 
78 FOEMS AND EtTLES FOE DBAWING AN 
 
 ^'^ And this defendant answering, further saith, 
 that ." 
 
 The commencement of each statement in 
 answer to an interrogatory (after the iSrst) is 
 this in a joint answer: — 
 
 ^^ And these defendants severally answering, 
 further say, that ." 
 
 Or thus, when one only of the joint defendants 
 answers : — 
 
 " And this defendant, A. G., severally answer- 
 ing, further saith, that ." 
 
 Or thus, when they are all ignorant of a 
 fact: — 
 
 ^^ And these defendants severally answering, 
 further say, that they do not nor do any nor either 
 of them, to the knowledge or helief of the others or 
 other of them, Tcnow and have never been in- 
 formed, save hy the said complainanfs Bill, and 
 cannot set forth as to their belief or otherwise." 
 
 When the Bill suggests to the Court the 
 plaintiflf's rights, and insists that a defendant 
 should yield him an answer as to them, in shape 
 of an account, schedule, or list, then the com- 
 mencement of the statement in answer is never- 
 theless the same as above; but instead of the 
 word whether being used in the Bill as in other 
 interrogatories, the words ^^ and that the said 
 defendant may discover and set forth " are gen- 
 erally used in the Bill. 
 
 "When the Bill requires an account or a sched- 
 
ORIGINAL BILL AND ANSWER IN CHANCERY. 79 
 
 ule or list to be set out in the Answer, a com- 
 pliance with such a requisition is effected by 
 means of such a description of account, schedule, 
 or list as the Bill requires being appended itself 
 to the end of the Answer, and by its being pre- 
 viously referred to in the body of the Answer as 
 being so annexed, and as being part of the 
 Answer; the usual words employed for this pur- 
 pose are : — 
 
 ^^ And tills defendant further saitli, he hath in 
 the schedule (or first schedule) to this his Answer 
 annexed, or underwritten, and which he prays 
 may he taken as part thereof, set forth, according 
 to the best and utmost of his knowledge, remem- 
 brance, information, and belief, a full, true, and 
 particular schedule or list of all and every, <j6c." 
 
 If the schedule is of deeds or writings neces- 
 sary to be produced, the above ends thus (but 
 much care is necessary on this point) : — 
 
 " And this defendant is ready and willing to 
 produce and leave the same in the hands of his 
 clerk in Court, for the usual purposes^ 
 
 To express /acfo is the office of each statement 
 in answer, and not to express what conclusion of 
 law or equity facts convey; for a defendant is at 
 liberty, at the hearing of the cause, to use in 
 argument as many defences as are consistent 
 with each other, and yet distinct from each other, 
 but supported by the facts he states; but if he 
 should state his facts, and also the conclusion or 
 
80 FORMS AND EULES FOE DEAWTNG AN 
 
 argument to be founded on them, he binds him- 
 self down thereby to use that conclusion or argu- 
 ment only as his defence from those facts; and 
 if he gives conclusions, opinions, or any dicta 
 (without facts) of what the law is, or any purely 
 argumentative sentences, he thereby renders that 
 part of an Answer insufficient; ^ and clearly im- 
 pertinent, if without effect on the case made by 
 the BUI. 
 
 When a defendant insists in his Answer that 
 it is not a plaintiff's right to have the particular 
 sort of discovery inquired after by the Bill, it is 
 usual to state as much and no more in the 
 Answer, and thereupon the plaintiff files excep- 
 tions for insufficiency as to that point, and the 
 Master generally reports in his favor; so that 
 the Master's report must be excepted to by the 
 defendant before the point meets with a full, 
 deliberate determination. 
 
 An Answer, when reported insufficient, or 
 which has become so by other proceedings, is 
 estimated as no Answer, and is a mere nullity 
 untU a further sufficient Answer is filed in 
 addition.^ 
 
 » 1 Dan. Ch. Pr. 726, (3d ed.) 
 
 2 2 Va. B. 261. Dick. 316. Ordinarily, a defendant who is in 
 custody for want of an Answer is, on putting in an Answer, enti- 
 tled to be discharged, without waiting for the report that it is 
 sufficient. 16 Ves. 418. Farquharson v. Balfour, Turn. & Euss. 
 184. 
 
 The Master's report should be actually filed before any pro- 
 
ORIGINAL BILL ANB ANSWER IN CHANOERT. 81 
 
 The plaintiff excepts to each Answer till it is 
 become sufficient; and if a third Answer be 
 reported insufficient by the Master, then the de- 
 fendant is examined by the Master himself upon 
 interrogatories framed for the purpose, as to the 
 points left unanswered.^ 
 
 The general conclusion to be drawn, there- 
 fore, as regards sufficiency, appears to be this : 
 that each interrogatory mentioned in the note of 
 the Bill as selected for the defendant must be 
 answered by him, yet only fully answered when 
 the following four facts exist; namely, when the 
 interrogatory is relevant to the case made by the 
 BiU, and also denied by the defendant, and also 
 is concerning his own act, and bearing a date not 
 anterior to seven years ago; but each interroga- 
 tory selected must have some answer, or notice 
 taken of it in the Answer. 
 
 The following extrinsic circumstances, how- 
 ever, render any first Answer sufficient; namely, 
 
 ceeding upon it is taken by the plaintiff; as, for instance, obtain- 
 ing an order for an injunction. Wynne v. Jackson, 2 Sim. & Stu. 
 226. 2 Simons, 33. 
 
 The Master allowed exceptions to an Answer for insuifioiency, 
 and fixed a time for putting in a further answer. After that time 
 expired, the defendant moved for further time ; motion refused, 
 the defendant being in contempt under this order, the Court 
 observing that the defendant ought to have applied for further 
 time before the time fixed by the Master had expired. Wheat v. 
 Graham, 6 Sim. 670. 
 
 ' Order 10, April, 1828. 
 
82 POEMS AND EXILES TOE DEA"\VIXG AN 
 
 if exceptions to it be not delivered within eight 
 weeks from the day of the Answer being filed.^ 
 
 Also, if the exceptions be not referred within 
 six days after a period of eight days has elapsed 
 from their delivery.^ Also, if the Master reports 
 the Answer sufficient, or if his report be not ob- 
 tained on the exceptions two weeks from the 
 date of the order to refer, or within the time 
 required by the Master.^ 
 
 Likewise if the Bill be amended after Answer 
 filed, and before exceptions have been delivered, 
 or disposed of. 
 
 If the Answer be used by the plaintiff in any 
 way as conveying to him beneficial information 
 before exceptions are delivered or disposed of. 
 
 A second or third Answer becomes sufficient 
 by similar means, but must be referred within 
 three weeks from its beiag filed upon the old 
 exceptions.* 
 
 rV. The Defence. 
 
 The other part of the Answer is practically 
 called the Defence^ and in it are usually stated all 
 those circumstances which constitute the defend- 
 ants case, in contravention and nullification of 
 the 'plaintiff'' s case made by the Bill; also the 
 circumstances in justification and avoidance of an 
 
 • Order 4, April, 1828. « Order 6, ibid. » Order 12, ibid. 
 •> Order 5, ibid. ' Wig. 10. 
 
ORIGINAL BILL AND ANSWEE IN CHANCERY. 83 
 
 admission or denial are here included; also this 
 part of the Answer may contain any point, fact, 
 or suggestion to the Court, which the defendant 
 wishes to submit to the particular attention of 
 the Court, by formally insisting on its being 
 taken into consideration; thus the want of par- 
 ties to the Bill is here stated to exist, when the 
 facts warrant it; also if a demurrer has not been 
 filed, or has been overruled, yet in this Defence 
 Part a defendant may still insist on and claim 
 the benefit of the demurrable points after he has 
 answered the interrogatories on those points, and 
 such claim is thereby available to him on the 
 hearing of the cause. The same remarks apply 
 as to a plea; but if a defendant, instead of an- 
 swering an interrogatory, demurs or pleads to the 
 whole statement contained in the interrogatory, 
 . and includes these defences together in his 
 Answer, by answering all the rest of the Bill 
 required of him except those parts demurred or 
 pleaded to, then the demurrer or plea is so dis- 
 tinct a defence that it is to be argued firstly, and 
 the Answer excepted to or not by the plaintiff" 
 afterwards, as the argument may justify.^ 
 
 • Story's Eq. PI. § 850. Tte Answer used to support a plea is 
 not an Answer as alluded to in these pages, as it has some isocu- 
 liarities distinguishing it from an ordinary Answer, in this resjDQct : 
 it is an answer only to those inquiries in the Bill which lead at all 
 to influence the validity of the plea. Wig. 44. 
 
 The Title of an Answer in which a demurrer or plea was joined. 
 
84 rOEMS AND EULES FOE DEAWING AN 
 
 Tins part is, in reality, the proper part of the 
 Answer, in which every circumstance ought to 
 be stated that the defendant is personally to be 
 benefited by, and which is not included in the 
 language of the Bill, care being taken to state 
 nothing, however beneficial it may seem in other 
 points of view, that does not in spme way or 
 other directly lead to nullify the case made by 
 the BUI, or else operate on it so as to save the 
 defendant from costs or other liability to the 
 plaintiff. 
 
 The only control a plaintiff has over the De- 
 fence is filing exceptions for impertinence or 
 scandal in it. 
 
 The last point of great importance to be 
 remembered is, that the Answer only is the 
 source for ascertaining on what matters a defend- 
 ant may give evidence; for only on matters on _ 
 the face of his Answer is he allowed to give 
 evidence,^ as he is bound so to give a plaintiff 
 notice by his Answer, that the facts constituting 
 his defence appear.^ 
 
 would express such a fact by inserting appropriate words, 
 thus : — 
 
 The Demurrer of the defendanis G. D., G. £)., and E. Ms wife, to 
 part, and their Answer to the other part, of the Bill of complaint of 
 D. B., complainant. 
 
 ' Russ. & Myl. 527. An Answer responsive to the Bill is evi- 
 dence for the defendant. Bank of U. S. v. Beverly, 1 How. 134. 
 See note, p. 86. 
 
 « 1 Dan. Ch. Pr. 726, (3d ed.) 
 
ORIGINAL BILL AND ANSAVEE IN CHANCERY. 85 
 
 The formal ending of an Answer runs in these 
 words : — 
 
 ^^A.nd this defendant denies all and all manner 
 of unlawful combination and confederacy where- 
 with lie is hy the said Bill charged, without this^ 
 that, there is any other matter, cause, or thing in 
 the said complainant's said Bill of complaint con- 
 tained, material or necessary for this defendant 
 to make answer unto, and not herein and hereby 
 well and sufficiently answered, confessed, traversed, 
 and avoided, or denied, is true, to the Tcnowledge 
 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 humbly prays to be liere 
 dismissed with his reasonable costs and charges 
 in this behalf most wjrongfully sustained^ 
 
 It is not usiial to omit this formal conclusion, 
 but if omitted, the Answer is still sufficiently 
 complete.^ • 
 
 An infant omits in his Answer the formal 
 commencement, the denial of combination, and 
 also the formal conclusion. 
 
 Until an Answer be filed, it is no record.^ 
 
 The plaintiff can prevent an Answer being 
 filed, until the costs of a previous contempt have 
 
 ' A counsel gives no more of the conclusion than down to this 
 word. 
 2 2 P. Wms'. 86. = Bea. 168. 
 
 8 
 
86 FORMS AND RULES FOR DRAWING ANT 
 
 been paid or tendered to him/ by giving instruc- 
 tions to that effect to his Clerk of Records and 
 Writs. 
 
 After an Answer has been filed, if then any 
 errors for the first time be discovered hy the de- 
 fendant, the following rule exists; not to allow 
 the Answer to be amended, but to allow a sup- 
 plemental Answer (as it is called) to be filed, to 
 explain.^ 
 
 A supplemental Answer cannot be excepted to 
 without leave, and the application must be made 
 before two months elapse after the Answer is 
 filed.3 
 
 An Answer thoroughly evasive in every re- 
 spect may, for such a fault, be taken off the file.* 
 
 An Answer is only binding on, and is oifly 
 evidence at law or in equity against, that defend- 
 ant, or each of those defendants, who sign it,* 
 
 ' 1 Dan. Ch. Pr. 768, (3d ed.) 
 
 ■> 1 Ves. & Bea. 186. 11 Ves. 53. 10 Ves. 401. 8 Ves. 79. 2 
 Ves. & Bea. 25, 163. Ambl. 292. 2 Atk. 294. Amendment of 
 Answers. Smith v. Babcock, 3 Sumnei', 583. Jackson v. Out- 
 right, 5 Munf. 308. McWilliams v. Herndon, 3 Dana, 568. 
 Stephens v. Terrel, 3 Monr. 131. West. Reserve Bk. v. Stry- 
 ker, 1 Clarke (N.Y.),380. 
 
 s 10 Sim. 483. 
 
 ^ 15 Ves. 405. Scotts v. Hume, Litt. Sel. Ca. 379. Taylor v. 
 Luther, 2 Sumner, 228. Smith v. Searle, 14 Ves'. 415. Blaisdell 
 V. Stevens, 16 Verm. 179. 
 
 " Answer must be signed by defendant and sworn to. Story's 
 Eq. PI. §§ 874-876. Fulton Bank v. Beach, 2 Paige, 307. Den- 
 ison V. Bassford, 7 Paige, 370. Davis v. Davidson, 4 McLean, 
 
ORIGINAIi BILL AXD ANS'WER m CHANCERY. 87 
 
 and is then only evidence against him or them as 
 to the admissions contained in it. The Bill is 
 also necessary to be produced at law. 
 
 Having now given what I have found to be 
 the practice on ordinary Answers, I add, by way 
 of conclusion, that the theory and peculiarities of 
 equity pleading wUl be found simple and easy 
 to be remembered, not difficult of understanding, 
 and a most beneficial source of practice. 
 
 136. See Rule LIX. But signature and oath may be waived by- 
 complainant, and signature is not required, if the Answer be 
 taken by commissioners; see above cases. If the Answer is 
 under oath and responsive to the allegations in the Bill, it is evi- 
 dence for the defendant, and will prevail, unless overcome by the 
 testimony of two witnesses, or of one witness and clear corrobo- 
 rating circumstances. 2 Story's Eq. Jiir. § 1528, and oases cited. 
 Bank U. S. ». Beverly, 1 How. 134. Clarke's Exec. v. Van Reimsdyk, 
 9 Cranoh, 163. Union Bank v. Geary, 5 Peters, 99. If not under 
 oath, it is to be treated merely in the nature of a plea of denial, by 
 way of special traverse. Smiths. Clark, 4 Paige, 368. IDan. Ch. 
 Pr. 750(3ded.), and cases cited above. See, however, Story's Eq. 
 PI. (7th ed.) § 875 a. K plaintiff waive the oath, he must do it 
 in his Bill before Answer. Bingham v. Yeomans, 10 Gush. 58. 
 
EULES OF PRACTICE 
 
 m 
 
 SUITS m EQUITY IN THE CIRCUIT COURTS OF 
 THE UNITED STATES.' 
 
 PRELZMINAilT REGULATIONS. 
 
 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 and com- 
 missions, and for making and directiag all inter- 
 locutory motions, orders, rules, and other pro- 
 ceedings, preparatory to the hearing of all causes 
 upon their merits.^ 
 
 n. 
 
 The clerk's office shall be 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 mo- 
 tions, rules, orders, and other proceedings, which 
 
 • As in force, October, 1865 ; taken from an official copy. 
 « Act 1842, eh. 188, § 5. 
 
FORMS AND RULES, ETC. 89 
 
 are grantable of course and applied for, or had 
 by the parties or their soUcitors in all causes 
 pending in equity, in pursuance of the rules 
 hereby prescribed. 
 
 ni. 
 
 Any judge of the Circuit Court, as well in va- 
 cation 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.^ 
 
 ly. 
 
 An motions, rules, orders, and other proceed- 
 ings made and directed at chambers, or on rule- 
 days at the clerk's office, whether special or of 
 course, shaU be entered by the clerk in an order- 
 book, to be kept at the clerk's office, on the day 
 when they are made and directed; which book 
 
 1 United States v. Flo-wery, 8 Law Kep. 258. Act 1703, ch. 22, 
 § 1. Act 1802, ch. 31, § 4. 
 
 8* 
 
90 FORMS AND EULES FOR DRAWING AN 
 
 shall be open, at all office-hours, to the free in- 
 spection 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 aU 
 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 solici- 
 tors shall be deemed notice to the parties for 
 whom they appear and whom they represent, in 
 all cases where personal 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 proceedings, not 
 reqixiring personal service on the parties, in their 
 discretion. 
 
 V. 
 
 All motions and applications in the clerk's of- 
 fice for the issuing of mesne process and final 
 process to enforce and execute decrees, for filing 
 Bills, Answers, pleas, demurrers, and other plead- 
 ings; for making amendm'ents to Bills and An- 
 swers; for taking Bills pro confesso; for fifing 
 exceptions, and for other proceedings in the 
 
ORIGINAL BILL AND ANSWER IN CHANCERY. 91 
 
 clerk's office, which do not, by the rules herein- 
 after prescribed, require an allowance or order of 
 the Court, or of any judge thereof, shall be deem- 
 ed motions and applications grantable of course 
 by the clerk of the Coiu-t. But the same may 
 be suspended, altered, or rescinded by any judge 
 of the Court, upon special cause shown. 
 
 YT. 
 
 All motions for rules or orders and other pro- 
 ceedings,' which are not grantable of course, or 
 without notice, shall, unless a different time be 
 assigned by a judge of the Court, be made on a 
 rule-day, and entered in the order-book, and shall 
 be heard at the rule-day next after that on which 
 the motion is made. And if the adverse party, 
 or his solicitor, shall not then appear, or shall not 
 show good cause against the same, the motion 
 may be heard by any judge of the Court ex parte, 
 and granted, as if not objected to or refused, in 
 his discretion. 
 
 Process. 
 
 YIL 
 
 The process of subpoena shall constitute the 
 proper mesne process in all ^uits in equity, in the 
 first instance, to require the defendant to appear 
 and answer the exigency of the Bill; and unless 
 otherwise provided in these rules, or specially 
 
92 FORMS AND EULES FOE DEAWING AN 
 
 ordered by the Circuit Coiirt, a writ of attach- 
 ment, and if the defendant cannot be found, a 
 writ of seqiiestration, or a writ of assistance to 
 enforce a deUvery of possession, as the case may 
 require, shall be the proper process to issue for 
 the purpose of compelling obedience to any in- 
 terlocutory or final order or decree of the Court.^ 
 
 yni. 
 
 Final process to execute any decree may, if 
 the decree be solely for the payment of money, 
 be by a writ of execution, in the form used in the 
 Circuit Court in suits at common law in actions 
 of assumpsit. If the decree be for the perform- 
 ance of any specific act, as, for example, for the 
 execution of a conveyance of land, or the deliver- 
 ing up of deeds or other documents, the decree 
 shall, in all cases, prescribe the time within which 
 the act shall be done, of which the defendant 
 shall be bound without further service to take 
 notice; and upon affidavit of the plaintiff, ffied 
 in the clerk's office, that the same has not been 
 complied with within the prescribed time, the 
 clerk shall issue a writ of attachment against the 
 delinquent party, from which, if attached there- 
 on, he shall not be discharged, unless upon a full 
 compliance with the decree and the payment of 
 
 iHoUingsworth v. Duane, Wallace (C. C), 141. United States v. 
 Wayne, Wallace (C. C). 134. Picquet v. Swan, 5 Mason, 36. 
 
ORIGINAL BILL AND ANSWER IN CHANCERY. 93 
 
 all costs, or. upon a special order of the Court or 
 of a judge thereof, upon motion and ajfidavit, en- 
 larging the time for the performance thereof. If 
 the delinquent party cannot be found, a writ of 
 sequestration shall issue against his estate upon 
 the return of nonest inventus, to compel obedi- 
 ence to the decree.^ 
 
 IX. 
 
 "When any decree or order is for the delivery 
 of possession, upon proof made by affidavit of a 
 demand and refusal to obey the decree or order, 
 the party prosecuting the same shall be entitled 
 to a writ of assistance from the clerk of the 
 Court, 
 
 X. 
 
 Every person, not being a party in any cause, 
 who has obtained an order, or in whose favor an 
 order shall have been made, shall be enabled to 
 enforce obedience to such order by the same 
 process as if he were a party to the cause ; and 
 every person, not being a party in any cause, 
 against whom obedience to any order of the Court 
 may be enforced, shall be liable to the same 
 process for enforcing obedience to such order as 
 if he were a party in the cause. 
 
 1 Act 1797, ch. 20, § 6. Act 1826, ch. 124. Toland v. Sprague, 
 12 Pet. 300. Griffln v. Thompson, 2 How. 244. McFarland v. 
 Gwin, 3 IIow. 717. Gwin v. Breedlove, 2 How. 29. 
 
94 FORMS AND RULES FOE DRAWING AN 
 
 Sekvicb or Peooess. 
 XI. 
 
 l^o process of subpoena shall issue from the 
 clerk's office in any suit in equity, untU the BUI 
 is filed in the office.^ 
 
 XII. 
 
 Whenever a Bill is filed, the clerk shall i^sue 
 the process of subpoena thereon, as of course, 
 upon the application of the plaintifi", which shall 
 be returnable into the clerk's office the next rule- 
 day or the next rule-day but one, at the election 
 of the plaintiff, occurring after twenty days from 
 the time of the issuiag thereof. At the bottom 
 of the subpoena shall be placed a memorandum, 
 that the defendant is to enter his appearance in 
 the suit in the clerk's office, on or before the day 
 at which the writ is returnable; otherwise, the 
 Bill may be taken pro confesso. "Where there are 
 more than one defendant, a writ of subpoena may, 
 at the election of the plaintiff, be sued out sep- 
 arately for each defendant, except in the case of 
 husband and wife, defendants, or a joint subpoe- 
 na against all the defendants. 
 
 ■Ex parte Graham, 3 Wash. 456. Toland v. SpJague, 12 Pet. 
 300. Act 1793, ch. 22, § 6. Act 1826, ch. 124. Act 1797, ch. 20, 
 
OEIGrNAL BILL AND ANS'WEE IN CHANCEEY. 95 
 
 xin. 
 
 The service of all subpoenas shall be by a de- 
 livery of a copy thereof by the officer serving the 
 same to the defendant personally, or, in case of 
 husband and wife, to the husband personally, or 
 by leaving a copy thereof at the dwelling-house 
 or usual place of abode of each defendant, with 
 some free white person, who is a member or res- 
 ident in the family.^ 
 
 XIY. 
 
 "Whenever any subpoena shall be returned not 
 executed as to any defendant, the plaintiff shall 
 be entitled to another subpoena, toties quoties, 
 against such defendant, if he shall require it, 
 until due service is made. 
 
 XY. 
 
 The service of all process, mesne and final, 
 shall be by the marshal of the district, or his dep- 
 uty, or by some other person specially appointed 
 by the Court for that purpose, and not otherwise; 
 
 ■ A subpoena or any other process made returnable on Sunday 
 is irregular. Gould v. Spencer, 5 Paige, 641. 
 
 The service of a subpoena on the husband is good, unless relief 
 is sought against the estate of the wife ; in which case the service 
 must be upon both. Ferguson v. Smith, 2 Johns. Ch. Eep. 139. 
 Leavitt v. Cruger, 1 Paige, 421. 
 
 A subpcena served upon a defendant's clerk or agent is good. 
 2 Paige, 298. Or upon the solicitor of a party. 3 Paige, 360. 
 
 Service of subpoena on some partners, defendants, ordered to 
 be deemed good service upon other partners, defendants, who 
 could not be found. Miller's Orders in Chancery, 108, note. 
 
96 FOEMS AND EULES FOE BEAWING AN 
 
 in the latter case, the person serving the process 
 shall make affidavit thereof.^ 
 
 XVI. 
 
 Upon the return of the subpoena, as served and 
 executed upon any defendant, the clerk shall 
 enter the suit upon his docket as pending in the 
 Court, and shall state the time of the entry .^ 
 
 Appeaeaitce. 
 
 xvn. 
 
 The appearance-day of the defendant shall be 
 the rule-day to vrhich the subpoena is made re- 
 turnable j provided he has been served with the 
 process twenty days before that day; otherwise, 
 his appearance shall be the next rule-day suc- 
 ceeding the rule-day when the process is return- 
 able. 
 
 The appearance of the defendant, either per- 
 sonally or by his solicitor, shall be entered in the 
 order-book on the day thereof by the clerk. 
 
 'Act 1789, ch. 20, § 27 (1 Stats, at Large, 87). Life and Fire 
 Ins. Co. of K. Y. V. Adams, 9 Pet. 573. United States v. Mont- 
 gomery, 2 DaU. 385. Kennedy v. Brent, 6 Cra. 187 ; 2 Cond. 345. 
 United States v. Moore's Adm'rs, 2 Mar. Dec. 317. Ex parte Hoyt, 
 13 Pet. 279. Oswald v. State of N. Y. 2 DaU. 415 ; 1 Cond. 6. 
 Wortman v. Conyngham, 1 Pet. C. C. 241. Anon. 2 Gall. 101. 
 Blight's Ex'r «. Fisher, 1 Pet. C. C. 41. 
 
 ^Boudinot v. Symmes, Wallace, 139. Knox v. Summers, 3 Cra. 
 496 ; 1 Cond. 607. Gracie v. Palmer, 8 Whea. 699 ; 5 Cond. 
 561. Carrington's Heirs v. Brent et al., 1 McLean, 174. Kit- 
 ti-edge V. Emerson, 8 Leg. Obs. 166. S. C. 7 Law Kep. 312. 
 
OEIGIXAL BILL AND ANSWER IN CHANCEEY. 97 
 
 Bills taken pko CoinFEsso. 
 XVIII. 
 
 It shall be the dvity of the defendant, unless 
 the time shall be otherwise enlarged, for cause 
 shown, by a jndge of the Court upon motion for 
 that purpose, to file his plea, demurrer, or An- 
 swer to the Bill, in the clerk's office, on the rule- 
 day next succeeding that of entering his appear- 
 ance : in default thereof, the plaintiff may, at his 
 election, enter an order (as of course) in the 
 order-book, that the Bill be taken pro confesso; 
 and thereupon the caiise shall be proceeded in ex 
 parte, and the matter of the Bill may be decreed 
 by the Court at the next ensuing term thereof 
 accordingly, if the same can be done without an 
 Answer, and is proper to be decreed; or the 
 plaintiff, if he requires any discovery or Answer 
 to enable him to obtain a proper decree, shall be 
 entitled to process of attachment against the de- 
 fendant, to compel an Answer; and the defend- 
 ant shall not, when arrested upon such process, 
 be discharged therefrom, iniless upon filing his 
 Answer, or otherwise complying with such order 
 as the Court or a judge thereof may direct, as to 
 pleading to, or fully answering the Bill, within a 
 period to be fixed by the Court or judge, and 
 undertaking to speed the cause.^ 
 
 'In Bilton v. Bennett, 4 Sim. 17, husband and wife were defend- 
 
 9 
 
98 FORMS AND RULES FOB DRAWING AN 
 
 XIX. 
 
 "When the Bill is taken pro confesso, the Court 
 may proceed to a decree at the next ensuing terai 
 thereof, and such a decree rendered shall be ab- 
 solute, unless the Court shall, at the same term, 
 set aside the same, or enlarge the time for filing 
 the Answer, upon ciause shown upon motion and 
 aflSdavit of the defendant. And no such motion 
 shall be granted, unless upon the payment of the 
 costs of the plaintiff in the suit up to that time, or 
 such part thereof as the Court shall deem reason- 
 able, and unless the defendant shall imdcrtake to,, 
 file his Answer within such time as the Court 
 shall direct, and submit to such other terms as 
 the Court shall direct, for the purpose of speed- 
 ing the cause.^ 
 
 Frame of Bills. 
 
 Every Bill, in the Introductory Part thereof, 
 shall contain the names, places of abode, and cit- 
 izenship of all the parties, plaintiffs and defend- 
 ants, by and against whom the Bill is brought. 
 The form, in siibstance, shall be as follows : " To 
 the Judges of the Cu-cuit Court of the United 
 
 ants. The husband put in a separate Answer, which was treated 
 as a nullitj^ and the Bill was taken pro confesso against them. 
 Leavitt v. Cruger, 1 Paige, 422. Ante, Rule XII. 
 
 ' Kemball «. Stewart, 1 McLean, 332. Fellows v. Hall, 3 Mo- 
 Lean, 281'. 
 
OEIGESTAL BILL AND ANSWER Df CHANCERY. 99 
 
 States for the District of . 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 Or- 
 ator complains and says that ," &c. 
 
 i 
 
 XXI. 
 
 The plaintiff, in his Bill, shall be at liberty to 
 omit, at his option, the part which is usually 
 called the common confederacy clause of the 
 BlU, averring a confederacy between the defend- 
 ants to injure or defraud the plaintiff; also what 
 is commonly called the Charging Part of the 
 BUI, setting forth the matters or excuses which 
 the defendant is supposed to intend to set up by 
 way of defence to the Bill; also, what is com- 
 monly called the jurisdiction clause of the Bill, 
 that the acts complained of are contrary to 
 equity, and that the defendant is without any 
 remedy at law; and the BUI shall not be demur- 
 rable therefor. And the plaintiff may, in the 
 narrative or Stating Part of his Bill, state and 
 avoid, by counter averments, at his option, any 
 matter or thing which he supposes will be 
 insisted upon by the defendant, by way of de- 
 fence or excuse to the case made by the plaintiff 
 for relief. The prayer of the Bill shall ask the 
 special relief to which the plaintiff supposes him- 
 
100 POEMS AND EUIES POK DRAWING AN 
 
 self entitled, and also shall contain a prayer for 
 general relief; and if an injunction, or a writ of 
 ne eoaeat regno, or any other special order pending 
 the suit, is required, it shall also be specially 
 asked for.^ 
 
 xxn. 
 
 If any persons, other than those named as 
 defendants in the Bill, shall appear to be neces- 
 sary or proper parties there, the Bill shall aver 
 the reason why they are not made parties, by 
 showing them to be without the jurisdiction of 
 the Court, or that they cannot be joined without 
 ousting the jurisdiction of the Court as to the 
 other parties. And as to persons who are with- 
 out the jurisdiction, and may properly be made 
 parties, the BUI may pray that process may issue 
 to make them parties to the Bill, if they should 
 come within the jurisdiction. 
 
 The prayer for process of subpcena in the Bill 
 shall contain the names of all the defendants 
 
 ' Harrison v. Nixon, 9 Pet. 483. Wilson v. Graham, 4 Wash. 
 63. English v. Foxall, 2 Pet. 695. Waldenu. Bodley, 14 Pet. 166. 
 Hobson V. McArthur, 16 Pet. 180. Boone ». Chiles, 10 Pet. 177. 
 Young V. Grundy, 6 Cranch, 51 ; 2 Cond. 300. State of Georgia 
 V. Bralisford, 2 Dall. 40 ; 5 Cond. 3. 
 
OEIGESrAI, BILL AND ANSWER EST CHANCERY. 101 
 
 named in the Introductory Part of the Bill, and 
 if any of them are known to be infants under 
 age, or otherwise under guardianship, shall state 
 the fact, so that the Court may take order there- 
 on as justice may require, upon the return of the 
 process. If an injunction, or a writ of exeat 
 regno, or any other special order pending the 
 suit, is asked for ia the Prayer for Relief, that 
 shall be sufficient without repeating the same in 
 the Prayer for Process.^ 
 
 XXIV. 
 
 Every Bill shaU contain the signature of coun- 
 sel annexed to it, which shall be considered as an 
 affirmation on his part, that, upon the instruc- 
 tions given to him and the case laid before him, 
 there is good ground for the suit, in the manner 
 in which it is framed.^ 
 
 ' Hitner v. Suckley, 2 Wash. 465. Read v. Consequa, 4 Wash. 
 174. Eckert v. Bauert, 4 Wash. 370. Ward v. Seabring, 4 Wash. 
 472. Doe v. Johnston, 2 McLean, 323. Mason i). Gardiner, 4 Br. 
 C. C. 378. Anderson v. Heirs, 3 ibid. 429. Bond v. Duke of New- 
 castle,-3 ibid. 386, and notes. 1 Barb. Ch. Pr. 53. 1 Dan. Ch. Pr. 
 268, 568, citing Hyde v. Foster, 1 Dick. 102. 1 Dan. Ch. Pr. 566. 
 IlDid. 261 to 270. Parker v. Blackburn, 2 Vem. 369. Pulteney v. 
 Shelton, 2 Ves. 147. Hunt v. Lever, 5 Ves. 147. 1 Dan. Ch. Pr. 
 263. 
 
 ^ Ante, pp. 42, 47. And if the name of a counsel is subscribed 
 to a pleading, it is presumptive evidence that the pleading was 
 perused and signed by such counsel. Doe v. Green, 2 Paige, 
 348. An amended Bill must be re-signed by counsel. 2 Mad. 
 Ch. 207. Ante, page 47, note. Dwight v. Humphreys et al., 3 
 McLean, 104. 
 
102 FORMS AND RULES TOR DRAWING AN 
 
 XXY. 
 
 In order to prevent unnecessary costs and 
 expenses, and to promote brevity, succinctness, 
 and directness in the allegations of BUls and 
 Answers, the regular taxable costs for every BUI 
 and Answer shall in no case exceed the sum 
 which is allowed m the State Court of Chancery 
 in the district, if any there be ; but if there be 
 none, then it shall not exceed the sum of three 
 dollars for every Bill or Answer. 
 
 ScAlsTDAIi AJ^fD iMPEKTESrEN'CE EST BlLLS. 
 
 XXVI. 
 
 Every Bill shall be expressed in as brief and 
 succint terms as it can reasonably be, and shall 
 contain no unnecessary recitals of deeds, docu- 
 ments, contracts, or other instruments, in Jicec 
 verba, or any other unpertinent matter, or any 
 scandalous matter not relevant to the suit. If it 
 does, it may on exceptions be referred to a Mas- 
 ter by any judge of the Court for impertinence 
 or scandal; and if so found by hun, the matter 
 shall be expunged at the expense of the plaintiff, 
 and he shall pay to the defendant all his costs in 
 the suit up to that time, unless the Court or a 
 judge thereof shall otherwise order. If the Mas- 
 ter shall report, that the BOl is not scandalous or 
 impertinent, the plaintiff shall be entitled to all 
 costs occasioned by the reference.^ 
 
 1 Gaines v. Chew, 2 How. 619. Oliver V. Piatt, 3 How. 333. 
 
ORIGINAL BILL AND ANS^^VEE IN CHANCERY. 103 
 
 xxyn. 
 
 Ifo order shall be made by any judge for refer- 
 ring any Bill, Answer, or pleading, or other mat- 
 ter or proceeding dependiag before the Court for 
 scandal or impertiuence, unless exceptions are 
 taken in writing and signed by counsel, describ- 
 ing the particular passages which are considered 
 to be scandalous or impertinent; nor unless the 
 exceptions shall be jGOied on or before the next 
 rule-day after the process on the Bill shall be 
 returnable, or after the Answer or pleading is 
 filed. And such order, when obtained, shall be 
 considered as abandoned, unless the party ob- 
 taining the order shall, without any unnecessary 
 delay, procure the Master to examine and report 
 for the same on or before the next succeeding 
 rule-day, or the Master shall certify that further 
 time is necessary for him to complete the exami- 
 nation.^ 
 
 M'Lean v. Bank of Lafayette, 3 McLean, 415. Nelson v. Hill, 5 
 How. 127, 132. Att'y-Gen. ■;;. Cradocks, 3 Mylne & Craig, 85. 
 Whaley ■;;. Dawson, 2 Schs. & Lef. 367. Ward v. Cooke, 5 Madd. 122. 
 See ante, pp. 65, 66, and notes. Exceptions for scandal or imper- 
 tinence must point out the exceptional matter with certainty. 
 Whitmarsh v. Campbell, 1 Paige, 645. They must be supported 
 in toto, and not contain any of the pleadings which are relevant 
 and proper. 4 Paige, 174, 382. Desplaces v. Goris, 1 Edw. Ch. 
 Eep. 350. If a BUI, or other pleading, contains scandalous or 
 impertinent matter, the counsel whoso name is to the pleading 
 is liable to the adverse party for the costs on the exceptions 
 for impertinence. 2 Paige, 347. 
 ' Griswoldw. HUl, 1 Paine, 390. 
 
104 FOEMS AND EULES FOR DEAWING AN 
 
 A31ENDMEKTS OP Bills. 
 
 xxYni. 
 
 The plaintiff shall be at liberty, as a matter of 
 course, and without payment of costs, to amend 
 his Bill in any matters whatsoever, before any 
 copy has been taken out of the clerk's office, and 
 in any small matters afterwards, such as filling 
 blanks, correcting errors of dates, misnomer of 
 parties, mis-description of premises, clerical 
 errors, and generally in matters of form. But if 
 he amend in a material point (as he may do of 
 course), after a copy has been so taken, before 
 any Answer or plea, or demurrer to the Bill, he 
 shall pay to the defendant the costs occasioned 
 thereby, and shall without delay furnish him a 
 fair copy thereof, free of expense, with suitable 
 references to the places where the same are to be 
 inserted. And if the amendments are numerous, 
 he shall furnish in like manner to the defendant 
 a copy of the whole Bill as amended, and if there 
 be more than one defendant, a copy shall be fur- 
 nished to each defendant affected thereby.^ 
 
 XXIX. 
 
 After an Answer, or plea, or demurrer is put 
 
 ' Kead v. Consequa, 4 Wash. 176. Peirce v. West's Ex'r, 3 
 Wash. 354. Holmes v. Trout's Heirs, 1 McLean, 1. Longworth v. 
 Taylor, 1 McLean, 614. Walden v. Bodley, 14 Pet. 156. 
 
OEIGIXAL BILL AND ANSWER IN CHANCERY. 105 
 
 in, and before replication, the plaintiff may, upon 
 motion or petition, without notice, obtain an 
 order from any judge of the Court, to amend his 
 Bill on or before the next succeeding rule-day, 
 upon payment of costs or without payment of 
 costs, as the Court or a judge thereof may in his 
 discretion direct. But after replication filed, the 
 plaintiff shall not be permitted to withdraw it 
 and to amend his BUI, except upon a special 
 order of a judge of the Court, upon motion or 
 petition, after due notice to the other party, and 
 upon proof by aj33.davit that the same is not made 
 for the purpose of vexation or delay, or that the 
 matter of the proposed amendment is material, 
 and could not with reasonable diligence have been 
 sooner introduced into the Bill, and upon the 
 plaintiff's submitting to such other terms as may 
 be imposed by the judge for speeding the cause. 
 
 XXX. 
 
 If the plaintiff, so obtaining any order to amend 
 his BUI after answer, or plea, or demurrer, or 
 after repUcation, shall not file his amendments or 
 amended BUI, as the case may require, in the 
 clerk's office, on or before the next succeeding 
 rule-day, he shall be considered to have aban- 
 doned the same, and the cause shall proceed, as 
 if no application for any amendment had been 
 made. 
 
106 FORMS AND EUIJ.S FOR DRAAVmG AN 
 
 DeMTIEREES A2ST) PlEAS. 
 
 XXXI. 
 
 'No demurrer or plea shall be allowed to be 
 filed to any Bill, unless upon a certificate of coun- 
 sel, that in his opinion it is well founded in point 
 of law, and supported by the affidavit of the de- 
 fendant j that it is not interposed for delay; and 
 if a plea, that it is true in point of fact.^ 
 
 XXXIL 
 
 The defendant may, at any time before the BUI 
 is taken for confessed, or afterwards, with the 
 leave of the Court, demur or plead to the whole 
 Bill, or to part of it; and he may demur to part, 
 plead to part, and answer as to the residue; but 
 in every case in which the Bill specially charges 
 fraud or combination, a plea to such part must 
 be accompanied with an Answer fortifying the 
 plea, and explicitly denying the fraud and com- 
 bination, and the facts on which the charge is 
 founded.^ 
 
 The plaintiff may set dowd the demurrer or 
 plea to be argued, or he may take issue on the 
 
 1 Syms V. Lyle, 4 Wash. 801. Milligan v. Milledge, 3 Cra. 220 ; 
 1 Cond. 503. 
 
 2 Livingstone. Stoi-y, 9 Pet. 632. " State of R. 1. v. State of Mass., 
 14 Pet. 210. Ferguson v. O'Han-a, 1 Pet. C. C. 493. 
 
ORIGINAIi BILL AND ANS^VER IX CHAKCERY. 107 
 
 plea. If, upon an issue, the facts stated in the 
 plea be determined for the defendant, they sliall 
 avail him, as far as in law and equity «hey ought 
 to avail him.^ 
 
 xxxiy. 
 
 If, upon the hearing, any demurrer or plea is 
 overruled, the plaintiff shall be entitled to his 
 costs in the cause up to that period, unless the 
 Court shall be satisfied that the defendant had 
 good ground in point of law or fact to interpose 
 'the same, and it was not interposed vexatiously 
 or for delay. And upon the overruling of any 
 plea or demurrer, the defendant shall be assigned 
 to answer the BUI, or so much thereof as is cov- 
 ered by the plea or demurrer, the next succeeding 
 rule-day, or at such other period as, consistently 
 with justice and the rights of the defendant, the 
 same can, in the judgment of the Court, be rea- 
 sonably donej in default whereof, the Bill shall 
 be taken against him, pro confesso, and the mat- 
 ter thereof proceeded in and decreed accordingly.^ 
 
 ' Gallagher's Ex'rs v. Roberts, 1 Wash. 320. United States v. 
 Arthur, 5 Cra. 257. Sprigg v. Bank of Mt. Pleasant, 10 Pet. 257. 
 Gormon v. Lenox's Ex'rs, 15 Pet. 115. Jackson v. Kundlet, 1 
 "Wood & Min. 381. Kirkpatriek v. White et al., 4 Wash. 593. 
 
 2 Shelton v. TiflSn, 6 How. 163. Livingston v. Story, 9 Pet. 632. 
 Sims V. Lyle, 4 Wash. 303. Bank of United States v. White, 8 
 Pet. 262. 
 
108 FORMS AND KTILES FOR DEAWTNG AN 
 
 XXXV. 
 
 If, upom the hearing, any demurrer or plea 
 shall be al* wed, the defendant shall be entitled 
 to his costs. But the Court may, in its discre- 
 tion, upon motion of the plaintiff, allow him to 
 amend his Bill upon such terms as it shall deem 
 reasonable/ 
 
 XXXVI. 
 
 l^o 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. 
 
 XXXYII. 
 
 'No demurrer or plea shall be held bad and 
 overruled upon argument, only because the An- 
 
 ' Courts of Chancery in England require the plaintiff to give se- 
 cui'ity for costs, 1. When he is out of the jurisdiction of the Court. 
 2 P. Wms. 462. 6 Mad. 46. 2 Myl. & K. 41. 2. When he can- 
 not be found at his place of residence. 3. Where the plaintiff has 
 by his Bill misstated his place of residence. 2 Myl. & K. 404. 
 Excepting, 1. Where the plaintiff is a resident abroad, in the 
 king's civil or military service. Dick. 154. 2 Myl. & K. 404. 2. 
 If a co-plaintiff resides within the jurisdiction. Dick. 282. 6 Ves. 
 612. 3. His imprisonment or insolvency. 6 Mad. 214. 1 Keen, 
 119. 4. The defendant's proceeding in the cause after he is aware 
 of the fact entitling him to call for security. 2 Ves. sen. 24. 
 Dick. 147. 
 
 Nor will the Court order the prochem amy of an infant plaintiff 
 to find security for costs on the ground of the poverty of the pro- 
 chein amy. Fellows v. Barrett, 1 Keen, 119. Hunt v. Rousma- 
 niere's Adm'rs, 2 Mason, 342. 
 
ORIGINAL BILL AND ANSWER IN CHANCERY. 109 
 
 swer of the defendant may extend to some part 
 of the same matter as may be covered by such 
 demurrer or plea.^ 
 
 If the plaintiff shall not reply to any plea, or 
 set down any plea or demurrer for argument on 
 the rule-day, when the same is filed, or on the 
 next succeeding rule-day, he shall be deemed to 
 admit the truth and sufficiency thereof, and his 
 Bill shall be dismissed as of course, unless a 
 judge of the Court shall allow him further time 
 for the purpose.^ 
 
 Akswees. 
 
 The rule, that if a defendant submits to an- 
 swer he shall answer fully to all the matters of 
 the BiU, shall no longer apply in cases where he 
 might by plea protect himself from such Answer 
 and discovery. And the defendant shall be en- 
 titled in aU cases by Answer to insist upon all 
 matters of defence (not being matters of abate- 
 ment, or to the character of the parties, or mat- 
 ters of form) in bar of or to the merits of the 
 BUI, of which he may be entitled to avail himself 
 by a plea in bar; and in such Answer he shall 
 
 1 Ferguson v. O'Harra, 1 Pet. C. C. 493. 
 
 a Hughes v. Blake, 6 Whea. 463; 5 Cond. 136. Poultney v. 
 City of Lafayette, 3 How. 81. 
 
110 FORMS AND EULES FOR DEAA\TXG AN 
 
 not be compellable to answer any other matters 
 than he would be compellable to answer and dis- 
 cover upon filing a plea in bar, and an Answer 
 in support of such plea, touching the matters set 
 forth in the Bill to avoid or repel the bar or de- 
 fence. Thus, for example, a bona fide purchaser 
 for a valuable consideration, without notice, may 
 set up that defence by way of answer instead of 
 plea, and shall be entitled to the same protection, 
 and shall not be compellable to make any further 
 Answer or discovery of his title than he would 
 be in any Answer in support of such plea.^ 
 
 A defendant shall not be bound to answer any 
 
 ' Clarke v. White, 12 Pet. 178. Young v. Grundy, 6 Cra. 61 ; 2 
 Cond. 300. Russell ». Clark's Ex'rs, 7 Cra. 69 ; 2 Cond. 417. 
 Clark's Ex'rs, v. Van Eeimsdyk, 9 Cra. 153 ; 3 Cond. 319. See 
 also Bank United States v. Beverly, 1 How. 134. Boone v. Chiles, 
 
 10 Pet. 177. Wood v. Mann, 1 Sum. 679. Livingston ». Story, 
 
 11 Pet. 351. Higbie v. Hopkins, 1 Wash. 230. Hughes v. Blake, 
 6 Whea. 463 ; 5 Cond. 136. Union Bank of Georgetown v. Geary, 
 6 Pet. 99. Carpenter v. Prov. Wash. Ins. Co. 4 How. 186, 217. 
 Lenox v. Prout, 3 Whea. 620 ; 4 Cond. 310. Leary «. Parmell, 1 
 Cooke, 110, in 2 Cond. 294. Read v. Consequa, 4 Wash. 174. Ibid. 
 336, Herman v. Herman, 4 Wash. 555. Ferguson v. O'Harra, 1 
 Pet. C. C. 493. Ocean Ins. Co. u. Fields, 2 Story, 59, 73. Camac 
 «. Francis, 3 Wash. 108. Leeds v. Mar. Ins. Co. of Alexandria, 
 2 Whea. 880 ; 4 Cond. 170. Osborn u. Bank of the United States,' 
 9 Whea. 738 ; 5 Cond. 741. Van Reimsdyk d. Kane, 1 Gal. 630. 
 Field v. Holland, 6 Cra. 8, 24 ,• 
 
 2 Repealed by Rule XCIH. 
 
OEIGIXAL BILL AND AXS'\\'EE IN CHANCEKT. Ill 
 
 statement or charge in the Bill, unless specially 
 and particularly interrogated thereto; and a de- 
 fendant shall not be bound to answer any inter- 
 rogatory in the Bill, except those interrogatories 
 which such defendant is required to answer; and 
 where a defendant shall answer any statement or 
 charge in the Bill to which he is not interrogated, 
 only by stating his ignorance of the matter so 
 stated or charged, such answer shall be deemed 
 impertinent. 
 
 XLI. ' 
 
 The interrogatories contained in the Interro- 
 gating Part of the Bill shall be divided as con- 
 veniently as may be from each other, and num- 
 bered consecutively 1, 2, 3, &c. ; and the interro- 
 gatories which each defendant is required to 
 answer shall be specified in a note at the foot of 
 the Bill, in the form or to the effect following; 
 that is to say, — "The defendant (A. B.) is re- 
 quired to answer the interrogatories numbered 
 respectively 1, 2, 3, &c. ; " and the office copy of 
 the Bill taken by each defendant shall not con- 
 tain any interrogatories .except those which such 
 defendant is so required to answer, unless such 
 defendant shall require to be furnished with a 
 copy of the whole Bill. 
 
 XLH. 
 
 The note at the foot of the Bill, specifying the 
 interrogatories which each defendant is required 
 
112 rOEMS AND RULES FOE DRAWING AN 
 
 to answer, shall be considered and treated as part 
 of the Bill; and the addition of any such note 
 to the BUI, or any alteration in or addition to 
 such note after the Bill is filed, shall be consid- 
 ered and treated as an amendment of the Bill. 
 
 XLin. 
 
 Instead of the words of the BUI now in use, 
 preceding the Interrogating Part thereof, and 
 beginning with the words " To the end, there- 
 fore," there shall hereafter be used words in the 
 form or to the effect following: "To the end, 
 therefore, that the said defendants may, if they 
 can, show why your Orator should not have the 
 relief hereby prayed, and may, upon their several 
 and respective corporal oaths, and according to 
 the best and utmost of their several and respec- 
 tive knowledge, remembrance, information, and 
 belief, full, true, direct, and perfect answer make 
 to such of the several interrogatories herein-after 
 numbered and set forth, as by the note here under- 
 written they are respectively required to answer; 
 that is to say: — 
 
 " 1. Whether," &c. 
 
 «2. Whether," &c. 
 
 XLIV. 
 
 A defendant shall be at liberty, by answer, to 
 decline answering any interrogatory, or part of 
 an interrogatory, from answering which he might 
 
OEIGnSTAL BILL AND ANSWER EST CHANCERY. 113 
 
 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. 
 
 XLY. 
 
 1^0 special repUcation to any Answer shall be 
 filed. But if any matter alleged in the Answer 
 shall make it necessary for the plaintiff to amend 
 his BUI, he may have leave to amend the same 
 with or without the payment of costs, as the 
 Court, or a judge thereof, may in his discretion 
 direct.^ 
 
 XLYI. 
 
 In every case where an amendment shall be 
 made after Answer filed, the defendant shall put 
 in a new or supplemental Answer on or before 
 the next succeeding rule-day after that on which 
 the amendment or amended Bill is filed, unless 
 the time therefor is enlarged or otherwise ordered 
 by a judge of the Court; and upon his default 
 the like proceedings may be had as in cases of 
 an omission to put in an Answer. 
 
 Parties to Bills. 
 XLYII. 
 In all cases where it shall appear to the Court 
 
 > Duponti V. Mussy, 4 Wash. 128. Peirce v. West's Ex'rs, 1 Pet. 
 C. C. 351. Vattier v. Hinde, 7 Pet. 252. 
 
 10* 
 
114 FORMS AND RULES FOB DRAWING AN 
 
 that persons who might othermse be deemed ne- 
 cessary or proper parties to the suit cannot be 
 made parties by reason of their being out of the 
 jurisdiction of the Court, or incapable otherwise 
 of being made parties, or because their joinder 
 would oust the jurisdiction of the Court as to 
 the parties before the Court, the Court may in 
 their discretion proceed in the cause without 
 making such persons parties; and in such cases 
 the decree shall be without prejudice to the 
 rights of the absent parties.^ 
 
 ' Mech. Bank of Alexandria v. Seton, 1 Pet. 299. West v. 
 Randall, 2 Mason, 181. Hoxie v. Carr, 1 Sum. 173. Osbom v. 
 Bank United States, 9 Whea. 738. Van Reimsdyk v. Kane, 1 
 Gall. 371. Elmendorf v. Taylor, 10 Whea. 162; 6 Cond. 47. 
 Milligan «. Milledge, 3 Cra. 220 ; 1 Cond. 503. Carneal v. Banks, 
 10 Whea. 181 ; 6 Cond. 64. Wormley v. Wormley, 8 Whea. 429 ; 
 • 6 Cond. 473. Harrison v. Urann, 1 Story, 64. West v. RanSall, 2 
 Mason, 181. RusseU v. Clark's Ex'rs, 7 Cra. 69 ; 2 Cond. 417. 
 Vatteer v. Hinde, 7 Pet. 252. Boon's Heirs v. Chiles, 8 Pet. 
 632. Harding v. Handy, 11 Whea. 103; 6 Cond. 286. Harri- 
 son v. Rowan, 4 Wash. 202. DeWolf v. Johnson, 10 Whea. 
 367; 6 Cond. 140. ConoUy v. Taylor, 2 Pet. 656. Joy v. 
 Wirtz, 1 Wash, 617. Morgan's Heirs v. Morgan, 2 Whea. 290 ; 
 4 Cond. 120. Finley v. Bank United States, 11 Whea. 304; 
 6 Cond. 319. Gemon *>. Boccaline, 2 Wash. 198. Dandridge 
 V. Washington's Ex'rs, 2 Pet. 370. Mandeville v. Riggs, 2 Pet. 
 482. Caldwell v. Taggart, 4 Pet. 190. Conn. v. Penn. 6 
 Whea. 424; 4 Cond. 719. Marshall v. Beverly, 5 Whea. 313; 4 
 Cond. 660. Riddle v. Mandeville, 5 Cra. 322; 2 Cond. 268. 
 United States v. Howland, 4 Whea. 108, 117 ; 4 Cond. 404. Hunt 
 V. Wicliffc, 2 Pet. 201. 
 
OEIGnSTAL BELL AND ANS'WER IN CHANCEET. 115 
 
 XLVin. 
 
 Wbere the parties on either side are very nii- 
 merous, and cannot, without manifest inconven- 
 ience and oppressive delays in the suit, be all 
 brought before it, the Court in its discretion may 
 dispense with maldng aU of them parties, and 
 may proceed in the suit, having suflS.cient parties 
 before it to represent all the adverse interests of 
 the plaintiffs and the defendants in the suit prop- 
 erly before it. But in such cases the decree shall 
 be without prejudice to the rights and claims of 
 all the absent parties.^ 
 
 In all suits concerning real estate which is 
 vested in trustees by devise, and such trustees 
 are competent to sell and give discharges for Aie 
 proceeds of the sale, and for the rents and prof- 
 its of the estate, such trustees shall represent the 
 persons beneficially interested iu the estate or the 
 proceeds, or the rents and profits, in the same 
 manner, and to the same extent, as do the execu- 
 tors or administrators in suits concerning person- 
 al estate represent the persons beneficially inter- 
 ested in such personal estate j and in such cases 
 it shall not be necessary to make the persons 
 beneficially interested in such real estate, or rents 
 
 ' West V. Eandall, 2 Mason. MandevUle v. Riggs, 2 Pet. 
 i82. 
 
116 FORMS AND RULES FOR DRAWING AN 
 
 and profits, parties to the suit; but the Court 
 may, upon consideration of the matter on the 
 hearing, if it shall so think fit, order such per- 
 sons to be made parties.'^ 
 
 In suits to execute the trusts of a -wiQ, it shall 
 not be necessary to mate the heir at law a party; 
 but the plaintiff shall be at liberty to make the 
 heir at law a party, where he desires to have the 
 wUl estabhshed against him. 
 
 LI. 
 
 In all cases in which the plaintiff has a joint 
 and several demand against persons, either as 
 priucipals or sureties, it shall not be necessary to 
 bring before the Court, as parties to a suit con- 
 cerning such demand, all the persons liable there- 
 to; but the plaintiff may proceed against one or 
 more of the persons severally liable. 
 
 Ln. 
 
 Where the defendant shall, by his Answer, 
 suggest that the Bill is defective for want of 
 parties, the plaintiff shall be at liberty, within 
 fourteen days after Answer filed, to set down the 
 
 ' Milligan v. Milledge, 3 Cra. 220 ; 1 Cond. 603. Potter v. 
 Gardiner, 12 Whea. 498; 6 Cond. 606. S. C. 3 Mason, 178. 
 Simma v. Guthrie, 9 Cra. 19 ; 3 Cond. 281. Greenlief v. Queen, 
 1 Pet. 138. 
 
OEIGINAL BILL AOT) ANSWER IN CHANCERY. 117 
 
 cause for argument upon that objection only; and 
 the purpose for which the same is so set down shall 
 be notified by an entry to be made in the clerk's 
 order-book, in the form or to the effect following, 
 that is to say; — " Set down upon the defendant's 
 objection for want of parties." And where the 
 plaintiff shaU not so set down his cause, but shall 
 proceed therewith to a hearing, notwithstanding 
 an objection for want of parties taken by the 
 Answer, he shall not, at the hearing of the cause, 
 if the defendant's objections shall then be allow- 
 ed, be entitled as of course to an order for liberty 
 to amend his BUI by adding parties. But the 
 Court, if it thinks fit, shall be at Uberty to dismiss 
 the Bill.^ 
 
 Lm. 
 
 If a defendant shall, at the hearing of a cause, 
 object that a suit is defective for want of parties, 
 not having by plea or Answer taken the objec- 
 tion, and therein specified by name or description 
 the parties to whom the objection applies, the 
 Court, if it shall think fit, shall be at hberty to 
 make a decree saving the rights of the absent 
 parties.^ 
 
 ' Story V. Livingston, 13 Pet. 360. Harrison v. Rowan, 4 Wash. 
 202. Dwight V. Humphreys, 3 McLean, 104. Greenleaf v. 
 Queen, 1 Pet. 138. 
 
 2 Story 0. Livingston, 13 Pet. 358. Mech. Bank of Alexandria 
 V. Seton, 1 Pet. 299. 
 
118 FORMS AND EULES FOE DEAWIXG AN 
 
 ]S"oMiNAii Parties to Bills. 
 
 Liy. 
 
 "WTiere no account, payment, conveyance, or 
 other direct relief is sought against a party to a 
 suit, not being an infant, the party, upon service 
 of the subpoena upon him, need not appear and 
 answer the BUI, unless the plaintiff specially re- 
 quires him so to do by the prayer of his BUI; but 
 he may appear and answer at his option; and if 
 he does not appear and answer, he shall be bound 
 by aU the proceedings in the cause. If the plain- 
 tiff shaU require him to appear and answer, he 
 shall be entitled to the costs of all the proceed- 
 ings against him, unless the Court shaU other- 
 wise direct.^ 
 
 LY. 
 
 Whenever an injunction is asked for by the 
 Bill to stay proceedings at law, if the defendant 
 do not enter his appearance and plead, demur, or 
 answer to the same within the time prescribed 
 therefor by these rules, the plaintiff shall be en- 
 titled as of course, upon motion without notice, 
 to such injunction. But special injunctions shall 
 be grantable only upon due notice to the other 
 party by the Court in term, or by a judge there- 
 of in vacation, after a hearing which may be ex 
 
 ' Wormley v. Wormley, 8 Whea. 429 ; 5 Cond. 474. Kerr v. 
 Watts, 6 Whea. 550 ; 6 Cond. 173. Mech. Bank of Alexandria v. 
 Seton, 1 Pet. 299. Joy v. Wirtz, 1 Wash. 617. 
 
OEIGINAL BILL AND ANSWER IN CHANCERY. 119 
 
 'parte, if the adverse party does not appear at the 
 time and place ordered. In every ease where an 
 injunction, either the common injunction, or a 
 special injunction, is awarded in vacation, it shall, 
 unless previously dissolved by the judge granting 
 the same, continue imtU the next term of the 
 Court, or untU it is dissolved by some order of 
 the Court.^ 
 
 Bills of Ebvivob j^sd Supplemeisttal Bills. 
 
 LYI. 
 
 Whenever a suit in equity shall become abated 
 by the death of either party, or by any other 
 event, the same may be revived by a Bill of reviv- 
 or, or a Bill in the nature of a Bill of revivor, 
 as the circumstances of the case may require, 
 filed by the proper parties entitled to revive the 
 same; which BUI may be filed in the clerk's of- 
 fice at any time; and upon suggestion of the 
 facts, the proper process of subpoena shall, as of 
 course, be issued by the clerk, requiring the prop- 
 er representatives of the other party to appear 
 and show cause, if any they have, why the cause 
 should not be revived. And if no cause shall be 
 shown at the next rule-day which shall occur 
 after fourteen days from the time of the service 
 
 • Simms v. Guthrie, 9 Cra. 19 ; 3 Cond. 281. Dunn v. Clarks, 
 8 Pet. 1. Read v. Consequa, 4 Wash. 180. Worcester v. Truman, 
 1 McLean, 483. 
 
120 FORMS AND RULES FOE DRAWING AN 
 
 of the same process, the suit shall stand revived, 
 a& of course.^ 
 
 LYH. 
 
 "Whenever any suit in equity shall become 
 defective, from any event happening after the, 
 filing of the Bill (as, for example, by a change 
 of interest in the parties) , or for any other rea- 
 son a supplemental Bill, or a Bill in the natm'e 
 of a supplemental Bill, may be necessary to be 
 filed in the cause, leave to file the same may be 
 granted by any judge of the Court on any rule- 
 day, upon proper cause shown, and due notice to 
 the other party. And if leave is granted to file 
 such supplemental Bill, the defendant shall 
 demur, plead, or answer thereto on the next suc- 
 ceeding rule-day after the supplemental Bill is 
 filed in the clerk's office, unless some other time 
 shall be assigned by a judge of the Court.^ 
 
 JjYIII. 
 
 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. 
 
 ' Jenkins v. Elbridge, 3 Story, 299. Clarke v. Matthewson, 2 
 Sum. 262. Bank United States v. Wliite, 8 Pet. 262. Vattcei- v. 
 Hinde, 7 Pet. 252. Thomas v. liarvie's Heirs, 10 Wliea. 146 ; 6 
 Cond. 44. Kennedy v. State Bank of Georgia, 8 How. 609. Dex- 
 ter V. Arnold, 6 Mason, 303. 
 
 2 Kennedy v. Georgia State Bank, 8 How. 610. Jenkins v. 
 Elbridge, 3 Story, 299. 
 
ORIGINAL BILL AND ANSWER IN CHANCERY. 121 
 
 Answees. 
 LIX. 
 
 Every defendant may swear to Ms Answer be- 
 fore any justice or judge of any Court of the 
 United States, or before any commissioner 
 appointed by any Circuit Court to take testimo- 
 ny or depositions, or before any Master in Chan- 
 cery appointed by any Circuit Court, or before 
 any judge of any Court of a State or Territory.^ 
 
 Amendment op Answees. 
 
 LX. 
 
 After an Answer is put in, it may be amended 
 as of course, in any matter of form, or by filling 
 up a blank, or correcting a date, or reference to 
 a document, or other small matter, and be re- 
 sworn, at any time before a replication is put in, 
 or the caijse is set down for a hearing upon Bill 
 and Answer. But after replication, or such set- 
 ting down for a hearing, it shall not be amended 
 in any material matters, as by adding new facts 
 or defences, or qualifying or altering the original 
 statements, except by special leave of the Court 
 or of a judge thereof, upon motion and cause 
 shown after due notice to the adverse party, sup- 
 
 ' Read v. Consequa, 4 Wash. 335. Herman v. Herman, 4 
 Wash. 655. 
 
 11 
 
122 FOEMS AOT5 EXILES TOE DEAWESTG AS 
 
 ported, if required, by aflSdavit. And in every 
 case where leave is so granted, the Court, or the 
 judge granting the same, may in his discretion 
 require that the same be separately engrossed 
 and added as a distinct amendment to the origi- 
 nal Answer, so as to be distinguishable there- 
 from.^ 
 
 Exception's to Ajstswees. 
 
 LXI. 
 
 After an Answer is filed on any rule-day, the 
 plaintiff shall be allowed untU the next succeed- 
 ing rule-day to file in the clerk's office exceptions 
 thereto for insufficiency, and no longer, unless a 
 longer time shall be allowed for the purpose, upon 
 cause shown to the Court or a judge thereof; 
 and if no exception shall be filed thereto within 
 that period, the Answer shall be deemed and 
 taken to be sufficient.® 
 
 Lxn. 
 
 When the same solicitor is employed for two 
 or more defendants, and separate Answers shall 
 be filed, or other proceedings had by two or more 
 of the defendants separately, costs shaU not be 
 
 1 Rhode Island v. Mass. 13 Pet. 23. Caster v. Wood, 1 Bald. 
 289. Walden v. Bodley, 14 Pet. 156. 
 
 « Read v. Consequa, 4 Wash. .335. Brooks v. Byam, 1 Stoiy, 
 296, 300, referring to Hodgson v. Butterfield, 2 Sim. & Stu. 236. 
 
ORIGINAL BILL AND ANSWEE IN CHANCEET. 123 
 
 allowed for such separate Answers or other pro- 
 ceedings, unless a Master, upon reference to him, 
 shall certify that such separate Answers and 
 other proceedings were necessary or proper, and 
 ought not to have been joined together. 
 
 Lxin. 
 
 "Where exceptions shall he filed to the Answer 
 for insufficiency, within the period prescribed by 
 these rules, if the defendant shall not submit to 
 the same, and file an amended Answer on the 
 next succeeding rule-day, the plaintiff shall forth- 
 with set them down for a hearing on the next 
 succeeding rule-day thereafter, before a judge of 
 the Court; and shall enter, as of course, in the 
 order-book an order for that purpose. And if he 
 shall not so set down the same for a hearing, the 
 exceptions shall be deemed abandoned, and the 
 Answer shall be deemed sufficient: provided, 
 however, that the Court, or any judge thereof, 
 may, for good cause shown, enlarge the time for 
 filing exceptions, or for answering the same, in 
 his discretion, upon such tenus as he may deem 
 reasonable. 
 
 Lxry. 
 
 If, at the hearing, the exceptions shall be 
 allowed, the defendant shall be bound to put in a 
 full and complete Answer thereto on the next 
 succeeding rule-day J otherwise the plaintiff shall, 
 
124 FORMS AND RULES FOR DRAWING AN 
 
 as of course, be entitled to take the Bill, so far 
 as the matter of such exceptions is concerned, as 
 confessed, or, at his election, he may have a writ 
 of attachment to compel the defendant to make a 
 better Answer to the matter of the exceptions; 
 and the defendant, when he is in custody upon 
 such writ, shall not be discharged therefrom but 
 by an order of the Court, or of a judge thereof, 
 upon his putting in such Answer and complying 
 with such other terms as the Court or judge may 
 direct. 
 
 Lxy. 
 
 If, upon argument, the plaintiffs exceptions to 
 the Answer shall be overruled, or the Answer 
 shall be adjudged insufficient, the prevailing 
 party shall be entitled to all the costs occasioned 
 thereby, unless otherwise directed by the Court, 
 or the judge thereof, at the hearing upon the 
 exceptions. 
 
 EEPLICATIOlir AND IsSUE. 
 
 LXYT. 
 
 Whenever the Answer of the defendant shall 
 not be excepted to, or shall be adjudged or 
 deemed sufficient, the plaintiff shall ffie the gen- 
 eral replication thereto on or before the next 
 succeeding rule-day thereafter j and in all cases 
 where the general replication is ffled, the cause 
 
ORIGINAL BILL AND ANSWER IN CHANCERY. 125 
 
 shall be deemed to all intents and purposes at 
 issue, without any rejoinder or other pleading on 
 either side. If the plaintiff shall omit or refuse 
 to file such replication within the prescribed 
 period, the defendant shall be entitled to an 
 order, as of course, for a dismissal of the suit; 
 and the suit shall thereupon stand dismissed, 
 unless the Court or a judge thereof shall, upon 
 motion for cause shown, allow a replication to be 
 filed nunc 'pro tunc, the plaintiff submitting to 
 speed the cause, and to such other terms as may 
 be directed.* 
 
 TESTIMOirr, HOW TAKEN". 
 
 Lxvn.2 
 
 After the cause' is at issue, commissions to take 
 testimony may be taken out in vacation as well 
 as in term, jointly by both parties, or severally 
 by either party, upon interrogatories filed by the 
 party taldng out the same, in the clerk's office, 
 ten days' notice thereof being given to the ad- 
 verse party to file cross interrogatories before the 
 issuing of the commission; and if no cross inter- 
 rogatories are filed at the expiration of the time, 
 
 ■ 1 Peirce v. West's Ex'rs, 1 Pet. C. C. 351. Vatteer v. Hinde, 7 
 
 Pet. 252. Duponti v. Mussy, 4 Wash. 128. 
 
 ^ Amended Dec. Term, 1854, so as to authorize the clerk to 
 
 name commissioners. Amended March 17, 1862, in respect to 
 
 taking testimony by oral interrogatories. For amendments, see 
 
 ■post, p. 141. 
 
 11* 
 
126 FOEMS AND RULES FOE DEAWTSTG AN 
 
 the commission may issue ex 'parte. In all cases 
 the commissioner or commissioners shall be 
 named by the Court, or by a judge thereof. If ' 
 the parties shallso agree, the testimony may be 
 taken upon oral interrogatories by the parties or 
 their agents, without filing any written inter- 
 rogatories.^ 
 
 Lxvin. 
 
 Testimony may also be taken in the cause, 
 after it is at issue, by deposition, according to 
 the acts of Congress. But in such case, if no 
 notice is given to the adverse party of the time 
 and place of taking the deposition, he shaU, upon 
 motion and affidavit of the fact, be entitled to a 
 cross-examination of the witness, either under a 
 commission or by a new deposition taken under 
 the acts of Congress, if a Court or a judge there- 
 of shall, under all the circumstances, deem it rea- 
 sonable.^ 
 
 • Cocker v. Franklin Hemp and Bagging Company, 1 Story, 
 169. Ketland v. Bissett, 1 Wash. 144. Gilpins «. Consequa, 3 
 Wash. 184. Bell v. Davidson, 3 Wash. 328. Dodge v. Israel, 4 
 Wash. 823. Gass v. Stinson, 3 Sum. 98. GUpins ». Consequa, 
 1 Pet. C. C. 86. Armstrong «. Brown, 1 Wash. 43. Munns v. 
 Dupont, 3 Wash. 31. Lonsdale v. Brown, 3 Wash. 404. Boude- 
 reau v. Montgomery, 4 Wash. 186. Khoades' Lessee v. Selin, 4 
 Wash. 715. Willings v. Consequa, 1 Pet. C. C. 301. 
 
 ^ Pettibone v. Derringer, 4 Wash. 215. Banerti). Day, 3 Wash. 
 423. Read ■&. Bertrand, 4 Wash. 558. Thomas & Henry v. United 
 States, 1 Mar. Dec. 367. United States v. Hair-pencils, 1 Paine, 
 
ORIGINAL BILL AJVT3 ANSWER IN CHANCERY. 127 
 
 LXIX. 
 
 Three months, and no more, shall be allowed 
 for the taking of testimony after the cause is at 
 issue, unless the Court or a judge thereof shall, 
 upon special cause shown by either party, en- 
 large the time ; and no testimony taken after such 
 period shall be allowed to be read in evidence at 
 the hearing. Immediately upon the return of 
 the commissions and depositions containing the 
 testimony into the clerk's office, publication 
 thereof may be ordered in the clerk's office by 
 any judge of the Court, upon due notice to the 
 parties, or it may be enlarged as he may deem 
 reasonable under all the circumstances. But by 
 consent of the parties, publication of the testi- 
 mony may at any time pass into the clerk's office, 
 such consent being in writing, and n copy thete- 
 of entered in the order-book, or indorsed upon 
 the deposition or testimony.^ 
 
 Testimony De Bene Esse. 
 LXX. 
 After any BUI ffled, and before the defendant 
 
 400. Buckingham v. Burgess, 3 McLean, 368. The Argo, 2 Gall. 
 314. Conk. Trea. (ed. 1842), pp. 571-674. 
 
 ' The Schr. Kuby, 5 Mason, 461. Wood v. Mann, 2 Sum. 316. 
 Gass V. Stimson, 2 Sum. 606-8. Where a party has not received 
 due notice of the examination of a witness, the irregularity is 
 cured by a neglect to complain of it in season. Skinner v. Day- 
 ton, 6 Johns. Ch.Kep. 191. 
 
128 FORMS AND RULES FOB DRAWING AS 
 
 hath answered the same, upon affidavit made that 
 any of the plaintiff's witnesses are aged or infirm, 
 or going out of the country, or that any of them is 
 a single witness to a material fact, the clerk of the 
 Court shall, as of course, upon the application of 
 the plaintiff, issue a commission to such commis- 
 sioner or commissioners as a judge of the Court 
 may direct, to take the examination of such wit- 
 ness or witnesses de bene esse, upon giving due 
 notice to the adverse party of the time and place 
 of taking his testimony. 
 
 Poem ov the Last Intekkogatobt. 
 LXXI. 
 
 The last interrogatory in the written interroga- 
 tories to take testimony now commonly in use, 
 shall in the futxu"e be altered and stated in sub- 
 stance thus: "Do you know, or can you set 
 forth, any other matter or thing, which may be 
 a benefit or advantage to the parties at issue in 
 this cause, or either of them, or that may be 
 material to the subject of this your examination, 
 or the matters in question in this cause? if yea, 
 set forth the same fully and at large in your 
 answer." '■ 
 
 ' Richardson v. Golden, 3 Wash. 109. Dodge v. Israel, 4 Wash. 
 323. Rhoades' Lessee v. Selin, 4 Wash. 715. 
 
OEIGINAL BILL ANB ANSWER m CHANCERY. 129 
 
 Ceoss Bill. 
 
 Lxxn. 
 
 "Where a defendant in equity files a cross Bill 
 for discovery only against the plaintiff in the 
 original BUI, the defendant to the original BUI 
 shall first answer thereto, before the original 
 plaintiff shaU be compeUable to answer the cross 
 BiU. The Answer of the original plaintiff to 
 such cross BUI may be read and iTsed by the 
 party filing the cross BUI, at the hearing, in the 
 same manner and under the same restrictions as 
 the Answer, praying rehef, may now be read and 
 used. 
 
 KeFEEENCE to and PKOCEEDEirGS BEEOEB 
 
 Masters. 
 
 Lxxm. 
 
 Every decree for an account of the personal 
 estate of a testator or intestate shall contain a 
 direction to the Master, to whom it is referred to 
 take the same, to inquire and state to the Court ■ 
 what parts, if any, of such personal estate are 
 outstanding or undisposed of, unless the Court 
 shaU otherwise direct.^ 
 
 ' Field V. Holland, 6 Cra. 8 ; 2 Cond. 285, 291. Heirs of Du- 
 bouTg V. United States, 7 Pet. 625. Pendleton v. Evans's Ex'rs, 4 
 Wash. 391. Story v. Livingston, 13 Pet. 367. 
 
130 FOEMS AND EtTLES TOE DEAWING AS 
 
 LXXIY. 
 
 Whenever any reference of any matter is made 
 to a Master to examine and report thereon, the 
 party at whose instance or for whose benefit the 
 reference is made shall cause the same to be 
 presented to the Master for a hearing on or be- 
 fore the next rule-day succeeding' the time when 
 the reference was made; if he shall omit to do so, 
 the adverse party shall be at liberty forthwith to 
 cause proceedings to be had before the Master, 
 at the costs of the party procuring the reference. 
 
 LXXV. 
 
 Upon every such reference, it shaU be the duty 
 of the Master, as soon as he reasonably can after 
 the same is brought before him, to assign a time 
 and place for proceedings in the same, and to 
 give due notice thereof to each of the parties or 
 their solicitors; and if either party shall fail to 
 appear at the time and place appointed, the Mas- 
 ter shall be at liberty to proceed ex parte, or, in 
 his discretion, to adjourn the examination and 
 proceedings to a future day, giving notice to the 
 absent f)arty or his solicitor of such adjournment; 
 and it shall be the duty of the Master to proceed 
 with all reasonable diligence in every such refer- 
 ence, and with the least practicable delay; and 
 either party shall be at liberty to apply to the 
 Court, or a judge thereof, for an order to the 
 
OEIGINAL BILL AND ANSWER IPT CHANCERY. 131 
 
 Master to speed the proceedings and to make 
 his report, and to certify to the Court or judge 
 the reasons for any delay. 
 
 LXXVI. 
 
 In the reports made by the Master to the 
 Court, no part of any state of facts, charge, 
 afl3.davit, deposition, examination, or Answer, 
 brought in or used before them, shall be stated 
 or recited. But such state of facts, charge, 
 affidavit, deposition, examination, or Answer, 
 shall be identified, specified, and referred to, so 
 as to inform the Court what state of facts, charge, 
 affidavit, deposition, examination, or Answer, 
 were so brought in or used.^ 
 
 Lxxyn. 
 
 The Master shall regulate all the proceedings 
 in every hearing before him, upon every such 
 reference; and he shall have fuU authority to 
 examine the parties in the cause upon oath, 
 touching all matters contained in the reference; 
 and also to require the production of all books, 
 papers, writings, vouchers, and other documents 
 applicable thereto; and also to examine on oath, 
 viva voce, all witnesses produced- by the parties 
 before him, and to order the examination of other 
 
 ' Harding v. Handy, 11 Whea. 103 ; 6 Cond. 236, 243. Kelsey 
 V. Hobby, 16 Pet. 269. 
 
132 FORMS AND RULES FOR DRAWING AN 
 
 witnesses to be taken, under a commission to be 
 issued upon his certificate from the clerk's office, 
 or by deposition according to the acts of Con- 
 gress, or otherwise, as hereinafter provided; and 
 also to direct themode in which the matters re- 
 quiring evidence shall be proved before him; 
 and generally to do all other acts, and direct all 
 other inquiries and proceedings in the matter 
 before him, which he may deem necessary and 
 proper to the justice and merits thereof, and the 
 rights of che parties.^ 
 
 Lxxvin. 
 
 Witnesses who live withia the district may, 
 
 ' Harding v. Handy, 11 Whea. 103. The Master is to determine 
 what books or papers shall be produced. 1 Ir. Eq. Rep. 432. 1 
 Russ. & Myl. 25. But cannot dispense with or relax the general 
 rules and orders of the Court. 3 Myl. & Craig, 244. A defendant 
 bound to produce papers is bound to deposit them for the benefit of 
 the parties interested, unless there are purposes which require that 
 he should retain them. 1 Myl. & Craig, 304. 2 Sim. & Stu. 309. 
 2 Myl. & K. 732. For cases in which the Court has ordered the 
 production of papers, «(^e 4 Sim. 238. 4 Sim. 27. IMyl. &K. 61, 
 79, 680. 5 Sim. 552. 1 Myl. & Craig, 243. 6 Sim. 6, 192, 608. 2 
 Myl. & K. 732. 1 Swanst. 7. 3 Myl. & K. 672. 
 
 Cases in which the Court has refused to oi'der the production of 
 documents. 2 Myl. & K. 380. 2 Sim. «fe Stu. 309. 2 Sim. 489. 3 
 Sim. 396. 4 Sim. 461. 4 Russ. 190, 193. 1 Myl. & K. 98. 6 
 Mad. 48. 4 Mad. 391. 4 Ves. 66. 7 Ves. 411. 6 Sim. 180. 1 
 Myl. & Craig, 243. 
 
 A party producing books, under an order of the Com-t, for the 
 adverse party, may seal up those parts which do not relate to the 
 subject of the litigation, and it is a contempt of the Court for the 
 adverse party to open the parts thus sealed. 2 Paige, 494. 
 
OEIGINAIi BUJi AND ANSWER IN CHANCERY. 133 
 
 upon due notice to the opposite party, be sum- 
 moned to appear before the commissioner ap- 
 pointed to take testimony, or before a Master or 
 examiner appointed in any cause, by subpoena in 
 the usual form, which may be issued by the clerk 
 in blank, and filled up by the party praying the 
 same, or by the commissioner, Master, or exam- 
 iner requiring the attendance of the witnesses at 
 the time and place specified, who shall be allowed 
 for attendance the same compensation as for 
 attendance in Court: and if any witness shall 
 refuse to appear, or to give evidence, it shall be 
 deemed a contempt of Court, which being certi- 
 fied to the clerk's office by the commissioner, 
 Master, or examiner, an attachment may issue 
 thereupon by order of the Court, or of any judge 
 thereof, in the same manner as if the contempt 
 were for not attending, or for refusing to give 
 testimony in the Court. But nothing herein 
 contained shall prevent the examination of wit- 
 nesses viva voce, when produced in open Court, 
 if the Court shall in its discretion deem it advis- 
 able.^ 
 
 LXXIX. 
 
 An parties accounting before a Master shall 
 bring in their respective accounts in the form of 
 debtor and creditor; and any of the other parties, 
 
 ' Story V. Livingston, 13 Pet. 359. Gass v. Stimson, 2 Sum. 
 605. Jenkins v. Elbridge, 3 Story, 300. 
 12 
 
134 FORMS AND ETXLES I'OE DRAWING AS 
 
 who shall not be satisfied with the accounts so 
 brought in, shall be' at liberty to examine the 
 accounting party viva voce, or upon interroga- 
 tories in the Master's oflBce, or by deposition, as 
 the Master shall direct. 
 
 LXXX. 
 
 All affidavits, depositions, and documents, 
 which hare been- previously made, read, or used 
 in the Court, upon any proceeding in any cause 
 or matter, may be used before the Master. 
 
 LXXXI. 
 
 The Master shall be at liberty to examiue any 
 creditor or other person coming in to claim 
 before him, either upon written interrogatories, 
 or viva voce, or in both modes, as the nature of 
 the case may appear to him to require. The 
 evidence upon such examination shall be taken 
 down by the Master, or by some other person by 
 his order and in his presence, if either party re- 
 quires it, in order that the same may be use'd by 
 the Court, if necessary. 
 
 Lxxxri. 
 
 The Circuit Courts may appoint standing 
 Masters in Chancery in their respective districts, 
 both the judges concurring in the appointment; 
 and they may also appoint a Master pro hac vice 
 
OEIGrNAL BILL AJSTD ANSWER IN CHANCEKY. 135 
 
 in any particular case. The compensation to be 
 allowed to every Master in Chancery for his ser- 
 vices in any particular case shall be fixed by the 
 Circuit Court in its discretion, having regard to 
 all the circumstances thereof; and the compensa- 
 tion shall be charged upon and borne by such of 
 the parties in the cause as the Court shall direct. 
 The Master shaU not retain his report as security 
 for his compensation; but when the compensation 
 is allowed by the Court, he shall be entitled to an 
 attachment for the amount against the party who 
 is ordered to pay the same, if upon notice thereof 
 he does not pay it within the time prescribed by 
 the Court.^ 
 
 ExOEPTIOJiTS TO RePOET OF MASTER. 
 
 LXXXin. 
 
 The Master, a& soon as his report is ready, shall 
 return the same into the clerk's office, and the 
 day of the return shall be entered by the clerk in 
 the order-book. The parties shall have one 
 month from the time of fihng the report to file 
 exceptions thereto; and if no exceptions are 
 within that period filed by either party, the re- 
 port shall stand confirmed on the next rule-day 
 after the month is expired. If exceptions are 
 filed, they shall stand for hearing before the " 
 Court, if the Court is then in session, or if not, 
 
 > Field V. Holland, 6 Cra. 8; 2 Cond. 285. 
 
136 FORMS AND EtJlES FOB DEAWINQ AN 
 
 then at the next sitting of the Court, which shall 
 be held thereafter by adjournment or otherwise.* 
 
 And in order to prevent exceptions to reports 
 from being filed for frivolous causes, or for 
 mere delay, the party whose exceptions are over- 
 ruled shall, for every exception overruled, pay 
 costs to the other party, and for every exception 
 allowed shall be entitled to costs, — the costs to 
 be fixed in each case by the Court, by a standing 
 rule of the Circuit Court. 
 
 ' Dexter v. Arnold, 2 Sum. 108. Chappedelaine v. Decheuaux, 
 4 Cra. 306; 2 Cond. 116. Harding v. Handy, 11 Whea. 103; 
 6 Cond. 236. Story v. Livingston, 13 Pet. 359. Broekett v. 
 Brockett, 3 How. 691. Oliver v. Piatt, 3 How. 333. Kelsey v. 
 Hobby, 16 Pet. 269. Coates's Ex'rx v. Muse's Adm'rs, 1 Mar. Deo. 
 529. 
 
 Time. — It has been decided that a lunar month is meant 
 when the word "month" is used in reference to the new Orders 
 of Chancery in England. 2 Sim. & Stu. 476. Hob. 139. 3 T. E. 
 623. Doug. 446. Seton on Dec. 140. 
 
 With respect to the word "days," when any act is required to 
 be performed within a specified time, one day is to be included 
 and the other excluded. Angel v. Westcombe, 1 Myl. & Craig, 
 60. Ansdell v. Whitfield, 6 Sim. 356. 
 
 If the last of any specified number of days happens on a Sun- 
 day, the Sunday is not to be reckoned in the computation of the 
 time. 5 Sim. 565. 1 Myl. & Craig, 48. The extension of this 
 rule if the last day falls upon a holiday, is undecided. 5 Sim. 
 147. 
 
 Exceptions may be taken to a Master's report, for scandal and 
 impertinence, at any time before the impertinent matter is actu- 
 ally expunged. Evans v. Owens, 2 Myl. & K. 382. 
 
ORIGINAL BILL AND ANSWER IN OHANOBRT. 137 
 
 Dboeees. 
 
 Lxxxy. 
 
 Clerical mistakes in decrees, or decretal orders, 
 or errors arising from any accidental slip or omis- 
 sion, may, at any time before an actual enrolment 
 thereof, be corrected by order of the Court or a 
 judge thereof, upon petition, without the form or 
 expense of a rehearing. 
 
 Lxxxyi. 
 
 In drawing up decrees and orders, neither the 
 BUI, nor Answer, nor other pleadings, nor any 
 part thereof, nor the report of any Master, nor 
 any other prior proceeding, shall be recited or 
 stated ia the decree or order j but the decree and 
 order shall begin ia 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; and thereupon, upon consid- 
 eration thereof, it was ordered, adjudged, and 
 decreed as follows; namely." [Here insert the 
 decree or order.] ^ 
 
 GuAHDiAJsrs AND Peochein' Ajmis. 
 
 Lxxxyn. 
 
 Guardians ad litem to defend a suit may be 
 appointed by the Court, or by any judge thereof, 
 
 1 Whiting V. Bank of United States, 13 Pet. 6. Dexter v. Ar- 
 nold, 5 Mason, 303. 
 
 18* 
 
138 FOEMS AND EXILES FOR DEAWIKG AS 
 
 for infants or other persons who are tinder guard- 
 ianship, or otherwise incapable to sue for them- 
 selves j all infants and other persons so incapable 
 may sue by their guardians, if any, or by their 
 procJiein ami, subject, however, to such orders 
 as the Coiu"t may direct, for the protection of 
 infants and other persons.^ 
 
 Every petition for a rehearing shall contain 
 the special matter or cause on which such re- 
 hearing is applied for; shall be signed by coun- 
 sel; and the facts therein stated, if not apparent 
 on the record, shall be verified by the oath of 
 the party, or by some other person. ISTo rehear- 
 ing shall be granted after the term at which 
 the final decree of the Court shall have been 
 entered and recorded, if an appeal lies to the 
 Supreme Court. But if no appeal lies, the peti- 
 tion may be admitted at any time before the end 
 of the next term of the Court, in the discretion 
 of the Court.** 
 
 ^' A married woman being plaintiff, and her prochein ami having 
 died, it was ordered that she should name a new proehein ami 
 within two months, or that in default the Bill should be dismissed. 
 Barlee v. Barlee, 1 Sim. & Stu. 100. 
 
 After a decree the procJiein ami of an infant plaintiff died. On 
 motion of a defendant, a reference to the Master was directed, to 
 appoint another proehein- ami. Bracey v. Sandiford, S Mad. 468. 
 
 '' Daniel v. Mitchell, 1 Story, 198. Baker v. Whiting, 1 Story, 
 218. Jenkins v. Elbridge, 3 Story, 299. Emerson v. Davies, 1 
 Wood & Min. 21. Hunter v. Town of Marlboro', 2 Wood & Min. 
 168. Blagg V. Phoenix Ins. Co. 3 Wash. 58. United States v. 
 
OEIGINAI, BELL AND ANSWER IN CHANCERY. 139 
 
 LXXXIX. 
 
 The Circuit Courts (both judges concurring 
 therein) may make any other and fiu-ther rules 
 and regulations for the practice, proceedings, and 
 process, mesne and final, in their respective dis- 
 tricts, not inconsistent with the rules hereby 
 prescribed, in their discretion, and from time to 
 time alter and amend the same.-^ 
 
 XC. 
 
 In all cases where the rules prescribed by this 
 Court, or by the Circuit Court, do not apply, the 
 practice of the Circuit Court shall be regulated 
 by the present practice of the High Court of 
 Chancery in England, so far as the same may 
 reasonably be applied consistently with the local 
 circumstances and local convenience of the dis- 
 trict where the Court is held, not as positive 
 rules, but as furnishing just analogies to regulate 
 the practice.^ 
 
 Halberstadt, Gilpin, 262, 268. Walker v. Smith, 1 Wash. 202. 
 Gerbier v. Emery, 2 Wash. 413. Marshall v. Union Ins. Co. 2 
 Wash. 411. United States v. Keen, 1 McLean, 429. Scott v. 
 Blaine, 1 Bald. 287. 
 
 ' This Rule coincides with the powers of the Court of Chancery 
 in England, where it is held that the general orders of the Court 
 are to be considered as laying down general rules, but not as being 
 so imperative that they can, under no circumstances, be departed 
 from. 6 Sim. 212. 2 Sim. 427. 1 Mad. R. 526. 
 
 « Story V. Livingston, 13 Pet. 369, 368. R. I. v. Mass. 12 Pet. 
 657, 735, 739. S. C. 14 Pet. 210, 266. Emerson v. Davies, 1 
 Wood & Min. 21. Smith /y. Burnham, 2 Sum. 612. 
 
140 FORMS AND EULES FOE DEAWING AST 
 
 XCI. 
 
 Whenever under these rules an oath is or may- 
 be requn-ed to be taken, the party may, if con- 
 scientiously scrupulous of taking' an oath, in lieu 
 thereof make solemn aflBrmation to the truth of 
 the facts stated by him.^ 
 
 xon. 
 
 These Rules shall take effect, and be of force, 
 in all the Circuit Courts of the United States, 
 from and after the jBrst day of August next; but 
 they may be previously adopted by any Circuit 
 Court in its discretion; and when and as soon as 
 these Bules shall so take effect, and be of force, 
 the Rules of Practice for the Circuit Courts in 
 Equity Suits, promulgated and prescribed by 
 this Court in March, 1822, shall henceforth cease, 
 and be of no further force or effect. And the 
 clerk of this Court is directed to have these 
 Rules printed, and to transmit a printed copy 
 thereof, duly certified, to the clerks of the sev- 
 eral Courts of the United States, and to each of 
 the judges thereof. 
 
 March, 1842. 
 
 xcm. 
 
 Repeal oe Rtile XL. Deo. Term, 1850. 
 Ordered, That the fortieth Rule, heretofore 
 
 1 Haight V. Proprietors Morris Aqueduct, 4 WasS;. 601. 
 
OEIGINiUi BILL AND ANSWER IN CHANCEET. 141 
 
 adopted and promulgated by this Court, as one 
 of the Eules of Practice in suits in Equity in 
 the Circuit Courts, be, and the same is hereby, 
 repealed and annulled. And it shall not here- 
 after be necessary to interrogate a defendant 
 specially and particularly upon any statement in 
 the Bill, unless the complainant desires to do so, 
 to obtain a discovery. 
 
 [Dec. Teem, 1854 
 
 Amendmekt of the 67th Chatstcery Rule. 
 ( Vacated hy the rule of March 17, 1862.) 
 
 Ordered, That the 67th Rule, governing equity 
 practice, be so amended as to allow the presiding 
 judge of any Court exercising jurisdiction, either 
 in term time or vacation, to vest in the clerk of 
 said Court general power to name commissioners 
 to take testimony, in like manner that the Court 
 or judge thereof can now do by the said 67th 
 Rule. 
 
 AMEimOMENT OE THE 67tH RuLE EST EqUITT. 
 
 Maech 17, 1862. 
 
 Ordered, That the last paragraph in the 67th 
 Rule in Equity be repealed, and the Rule be 
 amended as follows : — 
 
 Either party may give notice to the other, that 
 he desires the evidence to be adduced in the 
 
142 rOEMS AND RULES FOR DRAWING AN 
 
 cause to be taken orally, and thereupon all the 
 witnesses to be examined shall be examined be- 
 fore one of the examiners of the Court, or before 
 an examiner to be specially appointed by the 
 Court, the examiner to be furnished with a copy 
 of the Bill and Answer if any, and such exami- 
 nation shall take place in the presence of the 
 parties or their agents, by their counsel or solici- 
 tors, and the witnesses shall be subject to cross- 
 examination and re-examination, and which shall 
 be conducted as near as may be in the mode now 
 used in common-law Courts. The depositions 
 taken upon such oral examination shall be taken 
 down in writing by the examiner, in the form of 
 narrative, unless he determines the examination 
 shall be by question and answer in special in- 
 stances, and when completed shall be read over to 
 the witness and signed by him in the presence of 
 the parties or counsel, or such of them as may 
 attend; provided, if the witness shall refuse to 
 sign the said deposition, then the examiner shall 
 sign the same ; and the examiner may, upon aU 
 examinations, state any special matters to the 
 Court as he shall think fit, and any question or 
 questions which may be objected to shall be noted 
 by the examiner upon the deposition, but he 
 shall not have power to decide on the compe- 
 tency, materiality, or relevancy of the questions, 
 and the Court shall have power to deal with the 
 
ORIGINAL BILL AXD AXSWEE IN CHANCERY. 143 
 
 costs of incompetent, immaterial, or irrelevant 
 depositions, or parts of them, as may be just. 
 
 The compulsory attendance of witnesses, in 
 case of refusal to attend, to be sworn, or to an- 
 swer any question put by the examiner, or by 
 counsel or solicitor, the same practice shall be 
 adopted as is now practised with respect to wit- 
 nesses to be produced on examination before an 
 examiner of said Court on written interrogato- 
 ries. 
 
 iN^otice shall be given by the respective counsel 
 or solicitors to the opposite counsel or solicitors, 
 or parties, of the time and place of the examina- 
 tion, for such reasonable time as the examiner 
 may fix by order in each cause. 
 
 "When the examination of -witnesses before the 
 examiner is concluded, the original depositions, 
 authenticated by the signature of the examiner, 
 shall be transmitted by him to the clerk of the 
 Court, to be there filed of record, in the same 
 mode as prescribed in the 30th section of the Act 
 of Congress, September 24, 1789. 
 
 Testimony may be taken on commission in the 
 usual way by written interrogatories and cross- 
 interrogatories, on motion to the Court in term 
 time, or to a judge iu vacation, for special rea- 
 sons, satisfactory to the Court or judge.] 
 
144 FOEMS AND EUIiES, ETC. 
 
 XCIY. 
 Deo. Teem, 1863. 
 
 In suits in equity for the foreclosures of mort- 
 gages in the Circuit Courts of the United States, 
 or in any of the Courts of the Territories, having 
 jurisdiction of the same, a decree may be render- 
 ed 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 Rule of this Court, regulating the equity 
 practice, where the decree is solely for the pay- 
 ment of money. 
 
APPENDIX. 
 
APPEOT)IX. 
 
 RULES or EVIDENCE IN CHANCERT. 
 I. OeneraUy what is sufficient or proper. 
 
 Under what circumstances the field notes of a surveyor are 
 proper evidence that a particular piece of land is not included in 
 a patent. Richardson v. Carey, 2 Rand, 87. 
 
 Evidence of a subscribing witness that though he does not 
 remember attesting the paper, it is done in his handwriting ; that 
 the name of the party is not in his (the party's) handwriting, taut 
 that it had been the invariable practice of the witness never to 
 attest a paper unless he saw the party sign or heard him acknowl- 
 edge it, and he is confident the case in question is not an excep- , 
 tion, is sufficient to admit the paper on a trial at law or hearing in 
 chancery. Brown v. Anderson, 1 Monroe, 199. 
 
 Jurors cannot be admitted to give evidence to impeach a verdict 
 which they have rendered. They may be examined to prove there 
 was no verdict, or that the verdict rendered was not so intended. 
 Doran v. Shaw, 3 Id. 415. 
 
 Nor can the jurors, for the pm'pose of setting aside their verdict, 
 be examined to prove the improper interference of tlie attending 
 sheriffs by stating to them facts and giving them instructions. 
 But in a prosecution of the sheriffs for their improper conduct in 
 the jury rooms, the jurors are competent witnesses. Ibid. 
 
 Inadmissible testimony will not be received because none other 
 can be procured, and a claim so supported is not to be received 
 against an estate, though the executor believes it just. Coit v. Owen, 
 3 Desau. 175. 
 
 The positive testimony of several witnesses of unimpeached 
 character wiU outweigh very strong and concatenated circum- 
 stances in opposition to them. Littlefield v. Clark, Id. 165. 
 
 Trustees wiU not be allowed to be sworn as witnesses to defeat 
 a trust deed. Wilson v. Wilson, 1 Desau. 230. 
 
 117 
 
148 APPENDIX. 
 
 On a bill by the heirs, against the agent of an administratrix, for 
 an account, the evidence of the administratrix, who had been 
 released by the plaintiff, is not sufficient against the answer of the 
 defendant. Meson v. JBoosevelt, 6 John. Ch. 534. 
 
 The certificate of a notary public that a release was acknowl- 
 edged by a party to be his act and deed, ought not to be received 
 in evidence ; but the deposition of the notary, or some equivalent 
 testimony, ought to be produced. Kidd^s Adrri'r v. Alexander, 
 1 Rand, 456. 
 
 Strict legal proof is not required against absent defendants; 
 and therefore a will may be proved, in such a case, by evidence 
 inferior to that which would be required when a defendant appears 
 and defends the suit. Morrison v. CampbeU, 2 Band, 206. 
 
 A receipt is not in all cases conclusive, but that usually given 
 for the purchase-money and indorsed on a deed for land, is evi- 
 dence of the lowest order. Lingan v. Henderson, 1 Bland, 249. 
 
 n. Bides of Evidence ; Onus prdbandi. 
 
 The rules of evidence and rules of decision are the same in courts 
 of law and in courts of equity. Morrison's Ex'rs v. Hart, 2 Bibb, 
 6 ; Dvnglit v. Pomeroy, 17 Mass. 303 ; Lemaster v. Burchhart, 2 
 Bibb, 28. 
 
 The rules of evidence as to the explanation or contradiction of 
 writings by parol testimony, are the same in law and equity. Seed 
 V. Glarh, 4 Munroe, 20. 
 
 One who sells a slave as the agent of the owner, when afterwards 
 sued by the vendee for deceit in falsely affirming his authority, has 
 the onus prdbandi of his agency on himself and must show it. 
 JadksoTCs Ex'rs v. Halliday's AditCrs, 3 Monroe, 366. 
 
 No evidence can be required to prove the existence of a fact 
 which must have happened according to the invariable and con- 
 stant course of nature, or to prove any general law or other public 
 matter which the courts are bound to notice. Gancd Company v. 
 Bailroad Company, 4 Gill & John. 7. 
 
 It is the duty of the courts to take judicial notice of a public 
 statute. The various modes in which public statutes are carried 
 into effect by the executive officers of government are mere facts, 
 and must be proved as facts. If relied upon to avoid an equity, 
 upon which an injunction was rightfully granted, upon the motion 
 to dissolve, the court cannot notice them. Ibid. 
 
EULES OF EVIDENCE IN CHANCERY. 149 
 
 If the answer of a defendant admits a fact, but insists on matter 
 by way of avoidance, the complainant need not prove the fact ad- 
 mitted, but the defendant must prove the matter alleged in avoid- 
 ance. Napier v. Elam, 6 Yerg. 108. 
 
 No witness is bound to answer a question which would either 
 criminate himself, render him infamous, or subject him to a pen- 
 alty or forfeitm-e. Matter of Kip, 1 Paige, 601. 
 
 A witness who is neither a nominal nor real party to the suit 
 is not excused from giving evidence, although his evidence might 
 be used against him in a civil suit, unless it will subject him to 
 some loss or disadvantage in the nature of a penalty or forfeiture. 
 lUd. 
 
 Where usury is pleaded in an answer in chancery, and facts and 
 circumstances constituting it specially set forth, evidence proving 
 an usurious contract different from that alleged in the answer, is 
 inadmissible. Bea^h v. Fulton Bank, 3 Wend. 573. 
 
 When a slave is sold and delivered, although without a bUl of 
 sale, it is to be presumed primafacie that the seller has parted with 
 his title. K therefore he contend that he reserved the title in him- 
 self until the purchase-money shall be paid, the orms prohandi lies 
 on him. BaridolpTi v. BandolpJi, 3 Munf. 99. 
 
 Testimony on a point not in issue by the pleadings, is irrelevant 
 and to be disregarded. Cowan v. Price, 1 Bibb, 173. 
 
 Every fact material to the complainant's right to recover, and 
 neither presumed to be within the defendant's knowledge, nor ad- 
 mitted, must be proved. Thus, that the complainants are the heirs 
 of the deceased under whom they claim. Owings v. Patterson, 1 
 A. K. Marsh, 325. 
 
 The rules of evidence, as to parol evidence against the written 
 agreement of the parties, are the same in chancery as at law. 
 Baugh v. Bamsey, 4 Monroe, 157. 
 
 III. Admissions and Declarations. 
 
 Confessions of a party are competent, but should be received 
 with great caution. Lagan-v. M''C'hord''s Heirs, ^A.'K.M.SiXsh.,22b. 
 
 The declarations or admissions of an assignor, after assignment, 
 are not competent testimony against the assignee. Turpin!sAdn!r3 
 V. Marhshury, 3 J. J. Marsh, 627. 
 
 The admissions of one defendant are not evidence against 
 another. Harrison v. Edwards, 3 Litt. 340. 
 13» 
 
150 APPENDIX. 
 
 The answer of one defendant in chancery cannot be used as 
 evidence against his co-defendant ; and the answer of an agent is 
 not evidence against his principal; nor are his admissions in pais, 
 unless where they are a part of the res gestce. Leeds v. Marine Ins. 
 Co. 2 Wheat. 380. 
 
 The admission of a grantee in his answer to a cross bill, that the 
 grantor, complainant in the original bill, had conveyed the prop- 
 erty to defraud his creditors, will not operate to the prejudice of 
 the grantor. Hardin v. Baird, 1 Litt. Sel. Ca. 340. 
 
 Where a fraudulent combination is established, the acts and 
 declarations of any one of the parties thereto may be proved 
 against the others. But only such acts as constitute a part of the 
 res gestce ought to be received. Apthorp v. Gomstoch, 2 Paige, 482. 
 
 Admissions made in the course of a negotiation for a compro- 
 mise which fails, are good evidence against the party making 
 them. Church v. Steele, 1 A. K. Marsh, 329. 
 
 Declarations of a person not a party in interest, nor a party to the 
 suit, and who is a witness in the cause, are not competent evidence. 
 Phillips V. Thompson, 1 John. Ch. 140. 
 
 Where a bill for a divorce on the ground of adultery, is taken 
 pro confesso, or the defendant, in his answer, admits the adultery 
 charged, and reference is made to the master, under the third sec- 
 tion of the act of the State of New York concerning divorces, to 
 take proof of the adultery, and to report thereon, &c., by the 
 proof to be taken by the master is meant legal proof generally ; and 
 he may therefore receive proof of the confessions of the defendant, 
 which must, however, be connected with and supported by other 
 proof before the court wiU decree a divorce a vinculo matrimonii. 
 Belts V. BeUs, 1 John. Ch. 197. 
 
 But by the 61st rule of the Court of Chancery of New York, evi- 
 dence of the confessions of the defendant is not admissible at all 
 on a feigned issue awarded to try the fact of adultery. Whethei- 
 this rule has not gone too far in rejecting this species of proof 
 altogther, qucere. Ibid. 
 
 Admission of an adversary's right, when it depends on matters 
 of law as well as of fact, will not prejudice the party making it. 
 Leforce v. Bohinson, Litt. Sel. Ca. 22. 
 
 Foreign laws may be proved by witnesses as matters of fact. 
 Bursh V. Wilkins, 4 John. Ch. 620. 
 
 Admissions of an agent made without authority are not evidence 
 against the principal. Bohinson v. Morgan, Litt. Sel. Ca. 66. 
 
RULES OF EVIDENCE IN CHANCERY. 151 
 
 The declarations of a party to a sale or transfer, going to destroy, 
 or take away the vested rights of another, cannot, ex post facto, 
 work that consequence, nor be regarded as evidence against the 
 vendee or assignee. Phcenix v. Ingrdharri's Assignees, 5 John. 426. 
 
 A husband's declarations that a child, born in wedlock, is not his, 
 are not sufficient evidence to prove it illegitimate, notwithstand- 
 ing it was born only three months after marriage, and a separation 
 between his wife and him soon after took place by mutual consent. 
 Bowles V. Bingham, 2 Munf. 442. 
 
 A crime, such as bigamy or orim. con., is not to be fixed on a 
 person but by the highest evidence : but the fact of matrimony for 
 the purpose of obtaining alimony, may be proved by cohabita- 
 tion, name, reputation, and other circumstances. Pureelly. Purcell, 
 4 Hen. & Munf. 511. 
 
 The declaration of an agent should form a part of the res gestx 
 in order to be competent evidence against either party. JM' Glvre v. 
 Pufcdl, 3 A. K. Marsh, 63. 
 
 Proof of subsequent declarations and acts of the donor (though 
 not admissible taken singly) may be received under total absence 
 of testimony, applying to'the time of the contract, and in connec- 
 tion with corroborating circumstances, to show that a writing was 
 misunderstood or misrepresented ' at the time of the signature. 
 Jones V. Robertson, 2 Munf. 187. 
 
 The admissions of a person in possession of land, made under a 
 mistake of law, and which are wholly inconsistent with his writ- 
 ten evidence of title, cannot be received for the purpose of destroy- 
 ing his title to the land. Hawley v. Bennett, 5 Paige, 104. 
 
 rV. Secondary Evidence ; Therein of copies. 
 
 Evidence that a subscribing witness to a deed had been dili- 
 gently inquii-ed after, having gone to sea, and been absent for 
 four years without having heen heard from, is sufficient to let in 
 secondary proof of his handwriting. Bping v. South Carolina Ins. 
 Go. 8 Wheat. 269 ; Ellis v. Huff, 29 HI. 461 ; Matteson v. Noyes, 25 
 lU. 592 ; Miller v. Metzger, 16 111. 393. 
 
 Copy of a will certified by the clerk of the county court admit- 
 ted in evidence, upon proof that the original, at the dissolution of 
 those coui-ts was deposited in the office of the clerk of the district 
 court, which was afterwards burnt. Franklin v. Creyon, Harp. 
 Eq. 243. 
 
152 APPENDIX. 
 
 Certified copies from the land oflBoe are deemed legal evidence. 
 Cunningham v. Brovming, 1 Bland, 308. 
 
 A certificate of the printer that an order of publication was pub- 
 lished as directed, was deemed sufficient. Lengan v. Henderson, 
 Id. 240. 
 
 Proof of the publication of an order for creditors to come in, of 
 an order of notification, nisi, &c., may be made by the printer's 
 certificate, or by the production of the newspapers. Spurrier v. 
 Spurrier, Id. 475. 
 
 Before secondary evidence of the contents of a lost paper is ad- 
 missible, it must appear by ancillary proof that all reasonable and 
 practicable search has been made to find the origLual. Eolbrooh 
 V. Trustees, &c. 28 lU. 187 ; Whitehall v. Smith, 24 111. 167 ; Ran- 
 kin Y. Crow, 19 lU. 630 ; Cooh v. Hunt, 24 HI. 550 ; Dickinson v. 
 Breeden, 25 111. 187 ; MaUeson v. Noyes, 25 lU. 591. 
 
 V. Presumptive Evidence. 
 
 (a) Generally. (c) Of grant or conveyance. 
 
 (b) Of payment and satisfaction. (d) Of marriaffe, or death. 
 
 (a) Generally. 
 
 The court will presume the legitimacy of a child on slight proof, 
 after the lapse of thu1;y years, and the death of the father of the 
 chUd. JEx'rs of Johnson v. Ex'rs of Johnson, 1 Desau. 596. 
 
 After a lapse of forty years, and the death of all the original 
 parties, a trust proved by strong circumstances once to have existed, 
 was presumed to be extinguished. Preeost v. Grats 6 Wheaton 
 481. 
 
 (b) Of payment and satisfaction. i 
 
 After a lapse of twenty years without any acknowledgment of 
 the debt the payment of a writing obligatory may be presumed. 
 O'Brien v. Coulter, 2 Blackf. 421. 
 
 Under some circumstances, the payment of the damages assessed 
 in amill case ought to be presumed; especiallyif a great length of 
 time has elapsed during which the owner of the land to whom such 
 damages were assessed acquiesced in the building of the mill, 
 without claim or objection on his part. Toung v. Price 2 Munf 
 534. 
 
RULES OF EVIDENCE EST CHAKCEET. 153 
 
 Payment of a legacy, by an executor, cannot be presumed from 
 mere lapse of time, during which there is no representative of the 
 legatee entitled to demand and receive it; especially where, 
 though there have been dealings between the executor and the 
 distributee of the legatee, yet the executor, in settling his accounts, 
 has not claimed credit for payment of the legacy. BurweWs Exh-s. 
 V. Anderson's Adm'rs, 3 Leigh, 348. 
 
 A payment to the holder of an obligation may be presumed, 
 when it does not appear at what time or on what consideration it 
 was made, to have been made on account of the obligation. But- 
 ler V. Tuplett, 1 Dana, 154. 
 
 In case of a bond and mortgage, the presumption of payment 
 from lapse of time cannot be rebutted by showing the insolvency 
 of the debtor ; for as to the mortgagee and his debt, the mort- 
 gagor is not insolvent ; because the creditor could, at any time, 
 resort to the mortgaged premises for payment. Hunt v. Forman, 
 2 Id. 471. 
 
 A bond dated more than twenty years before it was exhibited 
 for payment, shall be taken prima facie as paid. Tinsley v. An- 
 derson, 3 Call, 429. 
 
 Giving a bond and mortgage furnishes a presumption of the 
 liquidation of all accounts before their dates between the parties. 
 Gheroning v. Proctor, 2 M'Cord's Ch. 15. 
 
 Less than twenty years, where there have been great neglect 
 and mutations of property, will raise the presumption of payment. 
 Winstanley v. Savage, 2 Id. 439. 
 
 Although lapse of time is no bar to an express trust, yet payment 
 or other satisfaction may be presumed from it. Ivy v. Rogers, 
 Dev. Eq. 68. 
 
 Satisfaction of an open trust is not presumed from lapse of time, 
 but a settlement between the trustee and cestui que trust changes 
 the character of the trust, and subjects it to the presumption of sat- 
 isfaction. Therefore, where a settlement was made between an 
 administrator and an infant distributee nearly of age, and not after- 
 wards disaffirmed by the infant, it was held, that the lapse of 
 twenty-two years raised the presumption of satisfaction. Petty v. 
 Harman, Id. 191. 
 
 After twenty years without suit, satisfaction or extinguishment 
 shall be presumed. Bamett v. Emerson, 6 Munroe, 608. 
 
 Where the purchaser of mortgaged premises had admitted the 
 existence of the lien within twenty years, and promised to dis- 
 
154 APPENDIX. 
 
 charge the mortgage, it was held sufficient to rebut the presump- 
 tion of payment, arising from the lapse of time. Park v. Peck, 1 
 Paige, 477. 
 
 Such admissions of the purchaser are also legal evidence against 
 all his judgment creditors, whose judgments have been recovered 
 subsequent to such admissions. Ibid. 
 
 When a father, being indebted to his children, afterwards con- 
 veys property to them which is more than equal to the amount of 
 the debt, this conveyance shall be presumed to be in satisfaction 
 of the debt, if there are no circumstances to prove a contrary 
 intention. Eeely v. Kedy's Ex'r, 6 Rand, 176. 
 
 Although the property conveyed and the debt are not ejusdem gerv- 
 eris, the one may be a satisfaction of the other, if the intention of 
 the testator be apparent, that such should be the effect. Ibid. 
 
 A lapse of thirty years affords a presumption that a legacy has 
 been paid ; but that presumption may be i-epelled by circumstances. 
 Arden v. Arden, 1 John. Ch. 313. But see Kane v. Bloodgood, 7 
 Id. 90. 
 
 Where a deed in fee reserved the right of " cutting and hewing 
 timber, and grazing in the woods not appropriated or fenced in," 
 and it appeared that the premises had been inclosed for upwards 
 of thirty years, and the right during that period had not been 
 claimed or exercised, it seems it will be presumed to have been 
 released or discharged. Such right may be lost by long negli- 
 gence and disuse, and presumptionsof their release or discharge 
 are favored for the sake of quieting possession, and whether a quit 
 rent not demanded or paid for above sixty years will not be pre- 
 sumed extinguished by lapse of time, gucere. Ten Brceek v. Liv- 
 ingston, 1 John. Ch. 867. 
 
 (c) Of a grant or conveyance. 
 
 A grant may be presumed when an entry, survey, and thirty 
 years' possession are shown. Simpson v. Hawkins, 1 Dana, 326. 
 
 After twenty years' possession, an executory contract impairing 
 a conveyance may be presumed ; and after thirty-seven years the 
 presumption may be acted upon with confidence, and will not be 
 rebutted by the continued non-residence of the vendor. Woodson's 
 Adm\s. V. ScoU, Id. 472. 
 
 A conveyance from the trustees to the cestui que trust may be 
 presumed fromlengthof possession. But if the cestui que trust had 
 
ETJLES OF EVIDENCE IN CHANCERY. 155 
 
 but a life-estate, unless she had issue, and she died childless, no 
 such presumption can aid her alienee of the fee. WaggenerY. Wag- 
 gener, 3 Monroe, 547. 
 
 It cannot be presumed that the trustee released to the cestui que 
 trust a greater interest than he was entitled to. Id. 548. 
 
 The courts of a county having caused a court-house and jail to 
 be erected in or about the year 1754, and courts having been con- 
 tinuously held in such court-house until the year 1801, it ought, in 
 a court of equity, to be presumed that the title to two acres of the 
 land built upon and adjacent, were duly vested in the court and their 
 successors ; although no deed from the original proprietor can be 
 produced. Boykiti's Devisees v. Smith, 3 Munf. 102. 
 
 When negroes are sent with husband and wife upon marriage, 
 by the wife's father, the law will presume they were given by the 
 wife's father to the son-in-law, and fix the property in the son- 
 in-law, unless the presumption is rebutted by proof showing that a 
 loan only was intended. Stewart v. Cheatham, 3 Yerg. 60. 
 
 After a long possession in severalty, a deed of partition may be 
 presumed. Eepbarn v. Auld, 5 Cranch, 262. 
 
 Where a farm had been occupied and cultivated under a steady 
 and uniform rent for upwards of eighty years, and permanent im- 
 provements made on the premises : Held, that it might be presumed 
 that a lease in fee, under the acknowledged rent, was originally 
 given, or that there was an original agreement for such a lease. 
 Sans V. Schuyler, 4 John. Ch. 1. 
 
 And equity may make such presumption as well as a court of 
 law and jury. Ibid. 
 
 (d) Of marriage, or death. 
 
 In a bill aUeging parties to be husband and wife, proof of a 
 formal solemnization or contract of marriage is not necessary. 
 Cohabitation, acknowledgment by the parties, reception as man 
 and wife, and common repute, are sufficient to raise a presump- 
 tion of marriage. Jenldns v. Bishee, 1 Edw. 377. 
 
 Cohabitation and having children is evidence of marriage. Telts 
 V. Foster, Taylor, 121. 
 
 To justify the presumption of death from seven years' absence, 
 the absence must be from the country of the absentee's residence. 
 Spurr v. Trimble, 1 A. K. Marsh, 279. 
 
 Ignorance in a family of the existence of one of the children, 
 
156 APPENDIX. 
 
 who had gone abroad at the age of twenty-two unmarried, and 
 had not been heard of for upwards of forty years, is sufficient, 
 with other circumstances to warrant a presumption of his death. 
 MComb V. Wright, 5 John. Ch. 263. 
 
 VI. Further Evidence, — 1Bh&^ admitted. 
 
 After granting the prayer of a petition in chancery, further ervi- 
 dence may be admitted on a hearing upon the bill in form. South- 
 worth V. Lathrop, 5 Day, 237. 
 
 As a general rule, where a re-hearing is granted in equity, the 
 court will not permit an examination of testimony at large. No 
 proof will be admitted, but what was heard or ought to have been 
 heard upon the original hearing. Scales v. Nichols, 2 Yerg. 140 ; 
 Bale V. Soosevdt, 6 John. Ch. 255. 
 
 Where there is newly-discovered testimony, such as would author- 
 ize a bill of review ; or where there has been surprise by the court 
 unexpectedly relying on evidence at the hearing, which could be 
 satisfactorily explained by the other testimony ; the court will 
 permit the testimony in these cases, and perhaps others of a like 
 nature, to be taken, if it is satisfied, by affidavit, of its materiality. 
 Ibid. 
 
 After a decree in the cause, it requires a very special case to 
 justify the court in opening the proofs, even to establish a new 
 fact, which a party has neglected, through inadvertence, to prove. 
 Denham v. Winans, 2 Paige, 24. 
 
 A new trial, or re-hearing, is never granted to enable a party 
 to obtain cumulative testimony, or for the purpose of contradict- 
 ing witnesses examined by the adverse party. Ibid. 
 
 Evidence cannot be produced in court which has not been 
 offered to the master. After his report on affidavits, directions 
 may be given to exhibit other evidence before him. Nashv. Tay- 
 lor, 2 Hayw. 174. 
 
 Upon a re-hearing, evidence duly taken in chief, but omitted by 
 negligence or other cause, to be read, is admissible ; so also evi- 
 dence of new matter relating only to papers since found, and 
 which may be proved viva voce at the hearing ; so testimony to 
 show the incompetency of a witness in a former deposition. But 
 new testimony to the merits is inadmissible. Dale v. Roosevelt, 
 6 John. Ch. 266. 
 
EXILES OF EVIDENCE IN CHANCEET. 157 
 
 VII. Judgments and Decrees. 
 
 A judgment obtained against an executor or administrator of a 
 deceased person is not evidence on a bill filed in the Court of 
 Chancery against the heirs or devisees of the deceased for the sale 
 of the real estate of such deceased. Duvall v. Green, 4 Har. & 
 John. 270. 
 
 When a creditor who claims under a judgment at law comes 
 into equity to enforce his judgment, that judgment is prima facie 
 evidence against the debtor, or mere strangers, unless they can 
 impeach it on the ground of fraud, by showing that a full defence 
 was not made, and can produce new proof showing that the debt 
 is not due. Garland v. Sives, 4 Rand, 282. 
 
 The decision of a court of competent jurisdiction against the 
 validity of a particular claim to real estate, is evidence against a 
 subsequent purchaser of that claim. Beardon v. Searctfs Heirs, 1 
 LiU. 66, 
 
 A judgment obtained by one administrator against the other, 
 touching the estate of the intestate, is no evidence against the heirs, 
 although the admistrator who was plaintiff never acted. Quinn v. 
 Stockton, 2 Id. 343. 
 
 A judgment against the administrator is not proof of the demand 
 in a suit against the donee of slaves in the lifetime of the intestate, 
 but the defendants in such bill may show the covenant before 
 recovered, or had before been satisfied by the intestate. Eichard''s 
 Adnir v. Porter^s Heirs, 6 Monroe, 4. 
 
 How far a judgment or decree against executors may be used 
 in evidence against the devisees of the testator, qucere. Carnon 
 V. Twrner, 6 Har. & John. 65. 
 
 A decree taken by publication against an absent defendant is 
 not evidence of the truth of the statements of the bill in any col- 
 lateral contest. Colb v. Thompson, 1 A. K. Marsh, 511. 
 
 A judgment against the executor is no evidence against the 
 heirs or devisees of the real estate. Mason's Devisees v. Peters''s 
 Adm\, 1 Munf. 437. 
 
 A judgment against an oflacer for seizing and selling the prop- 
 erty of a third person to satisfy an execution, is no evidence as 
 between the plaintiff and defendant in the execution that it was 
 not the property of the defendant. Jones v. Henry, 3 Litt. 428. 
 
 The final decree of a court of equity may be given in evidence, 
 in another suit, although such decree has not been formerly en- 
 rolled. Bates V. Ddevan, 5 Paige, 299. 
 1* 
 
158 APPENDIX. 
 
 Vin. Affidavits. 
 
 (a) Their form and incidents generally. 
 
 (b) Filing and Jurat. 
 
 (c) In support of bill or answer. 
 
 (d) On motion. 
 
 (a) Their form and incidents generally. 
 
 On a rule to show cause against a purchaser, why he should not 
 comply with his bid, his answer by way of affidavit is admissible 
 evidence. Gordon v. Sims, 2 M'Cord's Ch. 152. 
 
 An affidavit taken by a party may be read in the cause, although 
 the party taking it may wish to suppress it because it operates 
 agfiinst him. MWahon v. Spangler, i Band, 51. 
 
 An affidavit taken before a master of this court at a place out 
 of this State, cannot be read in this court. The master has no 
 authority to take an affidavit out of the State. Lambert v. Maris, 
 Halst. Dig. 173. 
 
 It should appear upon the face of an affidavit whei-e it was taken, 
 but an objection to an affidavit on this ground should be taken 
 before hearing. Provost v. Bank of North America, Id. 174. 
 
 (b) Filing and Jurat. 
 
 An affidavit may be sworn to before any proper officer, al- 
 though he is counsel for one of the parties, or is a partner of the 
 solicitor in the cause. TJie People v. Spalding, 2 Paige, 326. 
 
 The rule prohibiting the solicitor or attorney of a party from 
 taking the affidavit,, is confined to the solicitor or attorney on 
 record. Ibid. 
 
 The provisions of the Kevised Statutes of New York prohibiting 
 a master acting as such in a cause where he is counsel, do not 
 extend to the mere taking of an affidavit. Ibid. 
 
 An affidavit in chancery, not sworn to before a judge of this 
 court, or a commissioner appointed to administer an oath, cannot 
 be read in evidence. HaigM v. The Morris Aquedv^,i:'Was\i. C. C. 
 601. 
 
 An affidavit may be sworn to before a state senator ; he being 
 ex officio a judge of the court for the correction of errors, which 
 is a court of record. Oraig v. Briggs, 4 Paige, 648. 
 
EXILES OF EVIDENCE IK CHANCERr. 159 
 
 An affidavit taken before a master of this court at a place out 
 out of this State, cannot be read in this court ; the master has no 
 authority to take an affidavit out of the State. Lambert v. Maris, 
 Halst. Dig. 173. 
 
 Where a petition or affidavit is sworn to by a person "who has 
 been found by the inquisition of a jury to be a lunatic, the officer 
 before vsrhom the same is sworn should state, in the Jurat, that he 
 has examined the deponent for the purpose of ascertaining the 
 state of his mind, and that he was apparently of sound mind, and 
 capable of understanding the nature and contents of the petition 
 or affidavit. Matter of Ghistie, 6 Paige, 242. 
 
 Where a deposition or affidavit is on affirmation, and the per- 
 son taking it does not certify that the af&rmant is a Quaker, &c., 
 the deposition or affidavit can be of no avail. JRinggold v. Jones, 
 1 Bland, 90. 
 
 (c) In support of hill or answer. 
 
 Affidavits filed in support of a bill, there being no proof of 
 notice, ought not to be considered as testimony in the cause, 
 unless it appear in the record that they were read either by con- 
 sent of parties or without opposition, when such opposition might 
 have been made. Braxton v. Lee^s Heirs, 4 Hen. & Munf. 376. 
 
 Where the complainant waives an answer on oath and relies 
 upon the affidavits of third persons annexed to his bill to sustain 
 an injunction in opposition to the defendant's answer on oath, 
 denying the equity of the bill, the defendant on an application to 
 dissolve the injunction may also read the affidavits of third per- 
 sons in support of his answer. Haight v. Gase, 4 Paige, 625. 
 
 If an answer on oath has not been waived as to one of the 
 defendants, the complainant, upon an application to dissolve the 
 injunction, cannot be permitted to read the affidavits annexed to 
 the bill for the purpose of contradicting the positive answer of 
 that defendant on oath. Ibid. 
 
 Upon a motion to dissolve an injunction, if the complainant 
 relies upon affidavits annexed to the biU under the thirty-seventh 
 rule of the court of chancery to contradict the answer, the defend- 
 ant has a right to read affidavits or other evidence in support of 
 Ms answer. Brovm v. Haff, 5 Paige, 235. 
 
 If an injunction is sustained upon hearing bill and answer, 
 and the plaintiff takes depositions, they may be read on another 
 
160 APPENDIX. 
 
 motion to dissolve, made by defendant in consequence of the 
 introduction of an amended answer ; but ex paaie affidavits are not 
 admissible. Leroy v. Dickerson, 1 Car. Law Repos. 497. 
 
 Affidavits were allowed to be read in support of a bill for an 
 injunction, against the answer, and the injunction continued. 
 Benton v. Gibson, 2 Hayw. 136. 
 
 It is not usual or'proper to introduce affidavits to aid the answer 
 on a motion to dissolve the injunction. Moffman v. Livingston, X 
 John. Ch. 211 ; Roberts v. Anderson, 2 Id.- 204. 
 
 Nor is the plaintiff allowed to traverse and contradict the answer 
 by affidavits. Ibid. 
 
 Affidavits ex parte cannot be read in opposition to a motion made 
 on the coming in of the answer, to dissolve an injunction restrain- 
 ing one copartner from using the copartnership name, or doing 
 any act relative to the partnership concern, or in support of the 
 allegations in the bill. Eastbum v. Kirk, 1 John. Ch. 444. 
 
 The admission oi ex parte affidavits is an exception to the gen- 
 eral rule, and is only allowable in waste, or in cases where irrep- 
 arable mischief might ensue. Ibid. 
 
 The same interlocutory notice as to dissolve an injunction, 
 having once been decided, ought not to be repeated without the 
 existence of some new ground. It is not usual or proper to 
 introduce affidavits to aid the answer on such a motion, nor can 
 the plaintiff traverse and contradict the answer by affidavits. 
 Hoffman v. Livingston, Id. 211. 
 
 It is enough that an affidavit to an answer is so positive, that if 
 false, the party may be prosecuted for perjury. Coale v. Chase, X 
 Bland, 187. 
 
 (d) On motion. 
 
 An affidavit to set aside proceedings for irregularity, should be 
 made either by the party or his solicitor. The affidavit of the 
 counsel is not sufficient, unless an excuse is shown for dispensing 
 with the affidavit of the party or the solicitor. The People v. 
 Spalding, 2 Paige, 326. 
 
 It is competent for the court, upon the mere examination of an 
 affidavit or other paper read before it, on a motion, to order scan- 
 dalous or impertinent matter contained in such affidavit or paper 
 to be expunged without a reference to a master, and to chai-ge 
 the proper party with the costs. Powell v. Kane, 6 Paige, 266. 
 
EULES OF EVIDENCE IN CHANCEEY. 161 
 
 A party who makes an a£S.davit to oppose a motion is only 
 authorized to state the facts ; and it is scandalous and impertinent 
 to dra-w inferences or state arguments in the affidavit, reflecting 
 on the character or impeaching the motives of the adverse party 
 or his solicitor. Powell v. Kane, 5 Paige, 265. 
 
 Copies of affidavits to support a special motion or petition must 
 be served on the solicitor of the opposite party, with notice of the 
 motion. Brown v. BicJcetts, 2 John. Ch. 426. 
 
 On application for a writ of ne exeat republica, by a wife against 
 her husband, pending a suit for alimony, &c., her affidavit is ad- . 
 missible, the proceedings being ex parte, and the wife in that respect 
 considered as independent of her husband. Denton v. Benton, 
 1 Id. 441. 
 
 rX. Answer. 
 
 (a) Where evidence, et e contra. 
 
 (b) What good against. 
 
 (c) Effects of reading. 
 
 (a) Where evidence, et e contra. 
 
 Where a general replication is put in and the parties proceed 
 to a hearing, all the allegations of the answer which are respon- 
 sive to the bUl shaU be taken for true, unless they are disproved 
 by two witnesses, or by one witness with pregnant circumstances. 
 Hagthorp v. HooWs Adnirs, 1 Gill & Johnson, 270 ; Boberts v. Sal- 
 isbury, 3 Id. 426 ; Moffatt v. M'Dowell, 1 M'Cord's Ch. 434 ; Hop- 
 kins V. Stump, 2 Har. & John. 801 ; Maupin v. Whiting, 1 Call. 
 224; Blanton v. Brackett, 5 Id. 232; M'Caw v. Blmit, 2 M'Cord's 
 Ch. 102 ; Leeds v. Marine Ins. Co. 2 Wheat. 380 ; Stafford v. Bvyan, 
 1 Paige, 239 : S. C. 3 Wend. 632 ; Searcy v. Pannell, Cook, 110 ; 
 Martin v. Brovming, 2 Hawk. 644 ; Oreen v. Vaughan, 2 Blackf. 
 324 ; EaH v. Ten Eyck, 2 John. Ch. 92 ; Estep v. Wathins, 1 Bland, 
 488. 
 
 Where the complainant omits to reply, and sets down the cause 
 for hearing on bill and answer, the latter will be taken as conclu- 
 sive proof of the facts which it sets up by way of defence. Dale 
 V. M'Evers, 2 Cowan, 118 ; Scott v. Clarkson, 1 Bibb, 277 ; Jones 
 V. Mason, 5 Rand, 577 ; Pierce v. West's Ex'rs, 1 Peters'sC. C. 361 ; 
 11* 
 
162 APPENDIX. 
 
 Kennedy v. Baylor, 1 Wash. 162 ; DeWolf v. Long, 2 Gilm. 679 ; 
 Mason v. WOin, 28 111. 324 ; Front v. Emmons, 29 111. 436. 
 
 When a discovery is asked of defendant as to a particular fact, 
 his answer is conclusive. Lemon v. Clierry, 1 Bibb, 263 ; Pollard 
 V. Lyman, 1 Day, 156 ; Ragsdale v. Buford, 3 Hayw. 192 ; Stouffer 
 V. Machm, 16 lU. 554. 
 
 An answer to a bill charging fraud, responsive to the bill deny- 
 ing the charge, and uncontradicted by evidence, rebuts the idea of 
 fraud. Murray v. Blatchford, 1 Wend. 683 ; Cunningham v. Free- 
 born, 3 Paige, 657. 
 
 The answer of a wife cannot be read as evidence against her 
 husband ; nor can she be examined as a witness against him. City 
 Bank v. Bangs, 3 Paige, 36. 
 
 Neither the answer nor the evidence of the wife can be used for 
 the purpose of influencing a decision for or against her husband. 
 Ibid. 
 
 ■ The answer in chancery of a corporate body, under its common 
 seal, denying the equity of the bill, is sufficient to waiTant a denial 
 of an injunction, or to dissolve it if granted. EaigJd v. Morris 
 Aqueduct, 4 Wash. C. C. 601. 
 
 Where an answer to a bill filed is responsive to the bill and 
 within the discovery sought, it is legal evidence in all cases. And 
 this whether it is a denial of some fact alleged by the complain- 
 ant, or sets up a fact by way of avoidance. Woodcoch v. Bennet, 
 1 Cowan, 711. 
 
 Where a replication is filed, no statement in the answer not 
 responsive to the biU can avail the defendant unless it is estab- 
 lished by proof. WaJceman v. Orover, 4 Paige, 23. 
 
 The defendant is bound to answer the charging part as well as 
 the stating part of the bill ; and his answer to the charging part, 
 if responsive thereto, is evidence in his own favor, if an answer on 
 oath has not been waived by the complainant. Smith v. Clark, 
 Id. 368. 
 
 Where an answer on oath is waived, the answer is not evidence 
 in favor of the defendant for any purpose ; but as a pleading the 
 complainant may avail himself of admissions and allegations con- 
 tained therein which establish the case made by his bill. Bartlett 
 V. Gale, Id. 604. 
 
 When an answer is positive, no decree can be made against it 
 upon the testimony of a single witness. K however there are 
 circumstances which strengthen the witness, and entitle him to 
 
EULES OF EVIDENCE IN CHANCERY. 163 
 
 greater credit, this forms an exception. In weighing circum- 
 stances, equal credit is to be given to each ; and it is to be forgotten 
 that one is a disinterested witness. Sturteoant v. Waterbury, 
 
 1 Edw. 442. 
 
 Affirmative allegations in an answer, not responsive to the bill, 
 must be proved at the trial. But where the answer is not trav- 
 ersed it is to be taken as true, it seems. Lucas v. Bank of Darien, 
 
 2 Stewart, 280. 
 
 To a biQ of foreclosure, the answer of the defendant setting 
 forth usury in the mortgage as a defence, is not to be taken as 
 evidence for Mm, unless the plaintiff asks for a disclosure on that 
 subject, but is only equivalent to a plea of the statute of usury. 
 M'Baniels v. Bamum, 6 Verm. 279. 
 
 The answer of a defendant in equity, stating facts which are not 
 inquired of in the bill, is not evidence of such facts. New England 
 Bank v. Lewis, 8 Pick. 113. 
 
 Relief was denied on the testimony of one witness in support of 
 the bill, in opposition to a positive denial in the answer. Patter- 
 son V. Eohhs, 1 Litt. 275. 
 
 An answer to new facts, as to which the defendant was not in- 
 terrogated, must be sustained by evidence aliunde. The answer 
 alone is no evidence. Gordon v. Sims, 2 M'Cord's Ch. 156. 
 
 Every allegation of the answer, which is not directly responsive 
 to the bm, but sets forth in avoidance or in bar of the plaintiffs 
 claim, is denied by the general replication, and must be fully 
 proved, or it will have no effect. Hagthorpe v. HooKs AdnCrs, 1 GiU 
 & John. 272. 
 
 The answer of an executor or administrator, in his representa- 
 tive capacity, which asserts a fact that is not, and cannot be within 
 his own knowledge, does not properly come within the general 
 rule that an answer asserting a fact responsive to the bill can only 
 be disproved or outweighed by the testimony of two witnesses, or 
 one with pregnant circumstances. Pennington v. Oittings, 2 Id. 208. 
 
 Where an executor or administrator, answering in his represent- 
 ative character, alleges facts of which he can have no personal 
 knowledge, it can but amount to an assertion of his impressions, 
 and cannot alter the character of his testimony merely because it 
 comes in the shape of an answer, but must be allowed its due 
 weight only ; and is not entitled to the full influence of the answer 
 of a man speaking of facts which may be within his own knowl- 
 edge. Ibid. 
 
164 APPENDIX. 
 
 QucBre. How far a' court of equity will decree upon the proof 
 of a single witness when the answer puts the matter in issue 
 although only by a declaration of ignorance, &c., by administra- 
 tors. Hunt V. Eousmanier's AdirrCr, 3 Mason, 294. 
 
 The testimony of one witness prevails against the denial of an 
 answer sworn to by a defendant who has no personal knowledge 
 of the facts. Gombs v. Boswell, 1 Dana, 474. 
 
 An injunction bUl was filed upon the oath of the complainant 
 against a corporation, and the answer was put in under their com- 
 mon seal unaccompanied by an oath. The weight of such an 
 answer is very much lessened, if not entirely destroyed, as it is not 
 sworn to. Union Bank v. Oeary, 6 Peters, 99. 
 
 Upon a bill brought by a junior mortgagee against a prior mort- 
 gagor and mortgagee to have an account of what is due upon the 
 prior mortgage, &c., the answer of the mortgagor as to the sum 
 due and of further advances made by a prior mortgagee is not 
 evidence against the second mortgagee. Hughes y. Worley, IBibb, 
 200. 
 
 An answer responsive to a bill is evidence, but only entitled to 
 the same weight that parol evidence is entitled to. Jones v. Stvbey, 
 6 Har. & John. 372. 
 
 Where a bUl of review has been dismissed on the ground that 
 it ought not to have been allowed, the decree not being final, the 
 complainant in that bill is not authorized in his subsequent defence 
 to make use of the answer to the bill of i*eview as evidence in his 
 favor. Ellzey v. Lane, 4 Munf. 66. 
 
 Where a defendant in his answer only denies a fact charged in 
 the bill, according to the best of his knowledge and belief, a sin- 
 gle witness on the part of the complainant is sufficient to establish 
 the fact. Knicherbacker v. Harris, 1 Paige, 209. 
 
 In chancery the testimony of one witness against the direct and 
 positive averment of the answer, is not a sufficient ground for a 
 decree. Pierson v. Catlin, 3 Verm. 272. 
 
 But when the testimony of witnesses is corroborated by circum- 
 stances, it will be sufficient; and the answer containing the denial 
 may also in itself contain the circumstances required. Ibid. 
 
 Where a replication is taken to an answer, the answer is not 
 evidence unless responsive to the bill. Johnson v. Person, Dev. 
 Eq. 364. 
 
 A defendant executor must prove the payment of a legacy by 
 other evidence than his own answer, especially as he is swearing 
 
EULES OF EVIDENCE IN CHANCEEY. 165 
 
 to the act of another person. Boone v. Ex'r o/Durand, 1 Desau. 
 588. 
 
 A plaintiff cannot read his own answer to a bill of discovery in 
 a cross suit, in evidence, unless the defendant chooses first to pro- 
 duce it. Phillips V. Thompson,! John. Ch. 131. 
 
 An answer replied to is in no case evidence against the plaintiff 
 though the bill be sworn to ; but an answer that cannot be replied 
 to is evidence for the defendant, as in case of bills of discovery. 
 Bagsdale v. BufordCs Ex'rs, 3 Hayw. 192. 
 
 On a hearing before a master upon a bOl and answer, general 
 allegations in the answer containing matters of belief and infer- 
 ence from facts not particularly stated, are not conclusive, but 
 may be controverted by testimony. Copeland v. Thomas, 9 Pick. 
 73. ^ 
 
 The answer of a defendant to a bUl in chancery, in a former 
 cause, is not legal evidence in a cause against his legal represent- 
 atives, relative to the same transactions. Drury v. Connor, 6 Har. 
 & John. 288. 
 
 The answer of a defendant in chancery, uncontradicted by 
 any witness, is conclusive evidence, although the defendant 
 has a direct interest in the event of the suit, and to the ex- 
 tent of the whole sum in controversy. Lenox v. Prowt, 3 Wheat. 
 527. 
 
 An answer in chancery (though in form responsive to a question 
 put in the biU) is not evidence, when it asserts a right, affirma- 
 tively, in opposition to the plaintiff's demand, but the defendant 
 is as much bound to establish such assertion by independent tes- 
 timony, as the plaintiff is to sustain his bill. Paynes v. Coles, 1 
 Munf. 373. 
 
 Where the fact alleged cannot be supposed to be within the 
 defendant's knowledge, proof, by one witness, in opposition to 
 the answer, wiU be sufficient. Lavyrence v. Lawrence, 4 Bibb, 
 358. 
 
 The answer of an agent is not evidence against his principal, 
 nor are his admissions in pais, unless where they are a part of the 
 res gestcB. Leeds v. Marine Ins. Co, 2 Wheat. 380. 
 
 The answer of a defendant, professing a want of knowledge of 
 the facts stated in the bill, is not evidence against those facts ; its 
 only effect is to put the complainant to the necessity of proving 
 them. Drury v. Connor, 6 Har. & John. 288. 
 
166 APPENDIX. 
 
 So an evasive answer (though not excepted to as such) is out- 
 weighed by the testimony of a single witness and circumstances. 
 WilUns V. Woodfin, 5 Munf. 183. 
 
 The weight of an answer must, from the nature of evidence, 
 depend in some degree on the fact stated. If a defendant asserts a 
 fact which is not, and cannot be, within his own knowledge, the 
 nature of his testimony cannot be changed by the positiveness of 
 his assertion. Clark's Adrri'rs Vi Van Beimsdyk, 9 Cranch, 153. 
 
 The answer of infants by their guardian is a pleading merely, 
 and not an examination for the purpose of discovery. It is not 
 evidence, therefore, in their favor, although it is responsive to the 
 biU and sworn to by their guardian ad litem. BucJdey v. Van Wyck, 
 .6 Paige, 536. 
 
 A complainant cannot, by any form of pleading, compel an 
 infant to become a witness against himself. Ibid. 
 
 A wife cannot be a witness for or against her husband ; there- 
 fore her answer can, in no case, affect him. Lingan v. Henderson, 
 1 Bland, 269. 
 
 The answer of defendant being corroborated in part by one wit- 
 ness and contradicted by one witness only must prevail. Ver- 
 monet v. Delaire, 2 Desau. 323. 
 
 Where the answer of two defendants expressly denied the 
 charges of inserting provisions in a marriage settlement different 
 from those agreed on, and of sui-prise on complainant in the exe- 
 cution of the deed, it was hdd, they must prevail. There was no 
 proof of fraud, but some parol testimony was offered to show that 
 complainant did not read the agreement, and objected td it. This 
 was not permitted to prevail against the positive denial of the 
 defendants. The court said it was complainant's own folly 
 not to have read the deed, or to have signed what he did not un- 
 derstand, and dismissed the bill. Pecton's AdrtCr v. Oraham, Id. 
 593. 
 
 An answer to a bill of discovery is evidence for the defendant 
 unless disproved ; and, unless contradicted by more than one wit- 
 ness, it must prevail against the allegations in the complainant's 
 bill. Qlayson v. Morris, 10 John. 525. 
 On a bill to set aside a judgment, the allegations therein contained, 
 being denied by the answer, and only supported by one witness, 
 the court would not set aside the judgment. 8wift v. Dean, 6 
 John. 522. 
 
EXILES OF EVIDENCE IN CHANCERY. 167 
 
 (b) What good against. 
 
 An answer must be contradicted by two witnesses, or one 
 witness and strong circumstances. Love v. Braxton, 5 Call. 
 537 ; Martin v. Brovming, 2 Hawk. 644 ; Pierson v. Catlin, 3 Verm. 
 272 ; Patterson v. Hohhs, 1 Litt. 275 ; Eeffner v. killer, 2 Munf. 
 43 ; Salter v. Spdr, Taylor, 318 ; Clark v. Hunt, 3 J. J. Marsh, 
 560 ; Eardwick v. Forbes, 1 Bibb, 212 ; Vance v. Van^e, 5 Mom-oe, 
 523. 
 
 In cases where the bill is sworn to, one witness is sufB.cient. 
 Searcy v. Pannell, 1 Cook, 110. 
 
 One credible witness who swears positively is sufficient to estab- 
 lish a fact which the answer denies equivocally. Phillips v. Rich- 
 ardson, 4 J. J. Marsh, 213. 
 
 One witness, without any con-oborating circumstances, is suffi- 
 cient to sustain a bill of injunction against an answerin which the 
 defendants profess that " they know nothing about the subject," 
 but put the complainants on proof. Harlan v. Wingat^s AdnCr, 
 2 J. J. Marsh, 138. 
 
 Where a bill relates to transactions with the ancestor of the 
 defendants, of which they do not pretend to have any personal 
 knowledge, and there is no ground to presume they have, the 
 testimony of one witness is sufficient, notwithstandiag the answer 
 is in terms a positive denial of the facts. GameaVs Heirs v. Day, 
 Litt. Sel. Ca. 492. 
 
 K the answer to a bill contain a denial of the allegations, the 
 plaintiff must support the statements in the bill by testimony and 
 corroborating circumstances. Highie v. Hopkins, 1 Wash. C. C. 
 230. 
 
 Where a defendant in his answer denies a fact charged in the 
 bill, according to the best of his knowledge and belief, a single 
 witness on the part of the complainant is sufficient to establish the 
 fack Knickerbocker v. Harris, 1 Paige, 209. 
 
 Where a bill was brought by a creditor to set aside sales of the 
 property of defendant, charging that they were fraudulent ; Held, 
 that it was not merely a bill for discovery, and that proof might 
 be received to contradict the answer of defendant, denying the 
 fraud. Miller v. Tolleson, Harp. Eq. 145. 
 
 The general rule is that the answer of one co-defendant in 
 chancery shall not be evidence against another, but to this rule 
 
168 APPENDIX. 
 
 there are exceptions. When such defendants are partners, or where 
 one has acted as the agent of the oiiherin any transaction to which 
 the answer may relate, and the agency or partnership, at the time 
 of filing such answer, still exists, the answer of the partner will be 
 evidence against the copartner, and that of the agent against his 
 principal, when such copartner or principal claims through or 
 under such partner or agent. . Rector v. Rector et al. 3 Gihru 
 105. 
 
 X. Bills generally, and when taken pro eonfesso. 
 
 To a bill for discovery of facts within defendant's own knowl- 
 edge, if he fails to answer, they are taken as admitted. Sprigg 
 V. Jarrit, 1 A. K. Marsh, 336. 
 
 If a decree be taken by publication against an absent defendant, 
 the statements in the bill are not evidence in any collateral con- 
 test. Cohb V. Thompson, Id. 611. 
 
 The allegations of a bill not under oath, are not-«vidence against 
 a complainant. Rankin v. Maxwell, 2 Id. 491. 
 
 Where an injunction is granted and a material fact is alleged 
 in the bill and not denied in the answer, such fact must be taken 
 as true on a motion to dissolve ; and no other proof will be re- 
 quired on such motion. Randolph v. Randolph, 6 Eand, 194. 
 
 Where a bill against several defendants makes an admission 
 favorable to some against whom the bill is taken pro eonfesso, but 
 the bill is unfavorable as to others who appear and take issue and 
 disprove, it must yet be taken as true in respect to those who did 
 not answer. Pattison v. Hull, 9 Cowan, 747. 
 
 Where a bill of foreclosure of a mortgage stated that the first 
 instalment which fell due on the mortgage had been paid, to which 
 biU the mortgagors and divers incumbrancers were made parties 
 and one set of incumbrancers appeared and claimed that the 
 instalment had not been paid, but was due and belonged to them, 
 and claimed that the foreclosure should proceed as well for that 
 as for the residue of the mortgage debt, and established this claim 
 in proof, but the bill was taken pro eonfesso against all the other 
 defendants ; Edd, that as to the latter the instalment must still 
 be taken as paid, though otherwise as between the parties 
 litigant. It seems that to warrant a foreclosure for the whole 
 debt against all the defendants, a cross-bill should have been 
 filed. Ihid. 
 
RULES OF EVIDENCE IN CHANCERY. 169 
 
 The answer of a party in chancery is proper evidence against 
 him ; and so much of the bill as is necessary to explain the an- 
 swer. M'Oowan v. Young, 2 Stew. 276. 
 
 XI. Taken on hill to perpetuate. 
 
 The interest which the next of kin has in the estate of an idiot 
 during his lifetime is not sufficient to support a bill to perpetuate 
 testimony. But such next of kin may make a contract in regard 
 to such expectancy on which such bill may be supported. Butler 
 V. Haskell, 4 Desau. 651. 
 
 Depositions taken in a suit to perpetuate testimony are not to 
 be read as evidence in a subsequent suit, unless it appear that the 
 witnesses are dead, or otherwise out of the power of the court. 
 Lawrence v. Swarm, 5 Munf. 332. 
 
 XII. Taken in another cause or matter. 
 
 Depositions taken between the same parties and in relation to 
 the same matter, but in a former suit, ought to be used in a new 
 suit. Brook v. Cannon, 2 A. K. Marsh, 625 ; Wade r. King, 19 111. 
 308 ; McConnell v. Smith's AdnCr et al. 27 111. 308. 
 
 Where a biU had been filed in the Court of Chancery, under 
 which testimony was taken and returned and the bill afterwards 
 dismissed by the complainant who filed a new bill against the same 
 defendants, to obtain the same relief for which the former bUl had 
 been filed on the petition of the defendants ; Held, that the testi- 
 mony so taken in the former suit be received and read in evidence 
 in the new suit. Hopkins v. Strump, 2 Har. & John. 801. 
 
 On the hearing of an original bill in the nature of a supplemental 
 bUl and biU of revivor, depositions taken in the original suit may 
 be read. Benzein v. Eobenett, Dev. Eq. 444. 
 
 In a suit in chancery the defendants are in default ; yet the 
 record or proceeding in another suit, inter alias, is not competent 
 evidence against them. Frazier v. Frazier, 2 Leigh, 642. 
 
 It seems that a deposition taken under a commission awarded 
 before the bill was filed and executed by two persons, of whom 
 one was not a magistrate, may be read in a subsequent suit. 
 Thornton v. CorUn, 3 Call. 384. 
 
 In a suit in chancery, the bill having referred to the proceedings 
 in another suit, " as now remaining of record in the same court," 
 
 15 
 
170 APPENDIX. 
 
 and the answer having admitted that such a suit was brought, and 
 such a decree as stated in the bill existed, the court of appeals 
 will award a writ of certiorari for a transcript of the record referred 
 to, and receive it as evidence, so far as admitted by the answer. 
 Hooper v. Royster, 1 Munf. 119. 
 
 A record of one suit cannot be read as evidence in another, 
 unless both the parties, or those under whom they claim, were par- 
 ties to both suits ; it being a rule that a document cannot be used 
 against a party who could not avail himself of it in case it was 
 made in his favor. Paine v. Coles, Id. 373 ; Dale v. Roseeelt, 1 
 Paige, 35. 
 
 In a suit in equity in the Supreme Court of the United States, a 
 copy of a deed from the clerk of a state court cannot be received 
 as evidence, unless there is also a certificate of the presiding judge 
 that the attestation of the clerk is in due form. Drummond^s AdrrCrs 
 V. Magruder's Trustees, 9 Cranch, 122. 
 
 A deposition taken in an ejectment suit at law, brought by the 
 defendants in tlie present suit against a third person, as tenant, 
 to recover certain land, the subject of the present suit is not 
 admissible evidence against the present plaintiff, it being res inter 
 alias aota. Roberts v. Anderson, 3 John. Ch. 376. 
 
 A record of one suit cannot be read in evidence in another on 
 the ground that the defendant and one of the plaintiffs in the latter 
 suit were parties to the former, and that tlie same point was in 
 controversy in both ; another plaintiff, and the person under whom 
 both the said plaintiff's jointly claim, not having been parties to the 
 former suit. Ghapmans v. Chapmans, 1 Munf. 298 ; Darsey v. Qas- 
 saway, 2 Har. & John. 409. 
 
 In such case the circumstances that the writings and evidence in 
 the former suit were read at the hearing of the latter without any 
 exception taken at that time, appearing on the record is no proof 
 that it was done by consent of parties ; and does not preclude the 
 objection from being taken in the appellate court ; the defendant 
 in his answer having objected to the admission of the verdict and 
 other proceedings in the former suit, but offered to agree that the 
 depositions only might be read, to which offer no assent appeared 
 on the part of the plaintiff. Ibid. 
 
 If on a bill for partition, a decree be made that if either party is 
 evicted the others should contribute, and one of the parties being 
 sued submits to arbitration, an award against him is only evidence 
 
RULES OF EVIDENCE IN CHANCEET. 171 
 
 of eviction, not of the validity of the title of the adverse claimant. 
 Devour v. Jlohnson, 3 Bibb, 409. 
 
 Xni. Private writings. 
 
 V When deeds from other persons to one of the parties are intro- 
 duced by him, they only prove that such deeds were executed. 
 Mitchell V. Maupin, 3 Monroe, 187. 
 
 Deeds of conveyance prove the facts which they recite between 
 the parties, not others. Ihid. 
 
 A deed of above thirty years' standing requires no further proof 
 of its execution than the bare production, where the possession has 
 gone according to its provisions, and there is no apparent erasure 
 or alteration. Boberts v. Stanton, 2 Munf. 129. 
 
 Where a statutory foreclosure of a mortgage took place previ- 
 ous to the passage of the act authorizing the making of affidavits 
 to perpetuate the proof of the regularity of the proceedings, and 
 where the attorney who made such foreclosure was dead, the entry 
 of the attorney in his register of a sale pursuant to the notice and 
 a recital of the facts in the deed were held sufficient evidenceprima 
 fade to establish the fact of such sale. Mawley v. Bennett, 5 Paige, 
 104. 
 
 A letter by a party to a third person, stating the terms of the 
 contract, is good evidence against the writer to supply the loss of 
 the original contract. , Pearfs Heirs v. Taylor, 2 Bibb, 656. 
 
 The books of account of a party ought to be taken altogether ; 
 therefore, credits ought not to be collected from them to charge 
 him without admitting the debts charged therein. Waggoner v. 
 aray's AdnCr, 2 Hen. & Munf. 603. 
 
 The books of a partnership, kept subject to the inspection of 
 each partner, are evidence against each other. Simms v. Kirtley, 
 1 Monroe, 80. 
 
 The will of a testator, recognizing certain persons as his chil- 
 dren, is evidence that they are his heirs. Cowan v. Hite, 2 A. K. 
 Marsh, 239. 
 
 The oath and books of the plaintiff are in no case admissible to 
 charge the defendant with goods delivered by his order to a third 
 person, unless such order be otherwise proved. Kerr v. Love, 1 
 Wash. 172. 
 
 An entry in the books of the plaintiff, made by his clerk who is 
 
172 APPENDIX. 
 
 not now to be found, together witli the plaintiff's oath to ascertaia 
 the quantity, is not sufficient evidence to charge the _ defendant 
 with goods delivered for safe-keeping to the master of the defend- 
 ant's vessel, there being no evidence that such goods came to the 
 hands of the defendant. Kerr v. Love, 1 Wash. 172. 
 
 ^n entry in the books of an administrator, by his clerk or agent, 
 of money paid over to the guardian of his distributees was admit- 
 ted, under all the circumstances of the case, as evidence to charge 
 the guardian ; the administrator and his clerk being both dead, 
 and the clerk's handwriting proved. Brown v. Brovm's Adm'r, 
 2 Wash. 151. 
 
 A deed reciting another deed is evidence of the recited deed 
 against the grantor and those claiming under him, but is not evi- 
 dence against a stranger. Site v. SJirader, 3 Litt. 444. 
 
 The recital in a post-nuptial settlement of an agreement as con- 
 sideration of the deed, is evidence against persons claiming under 
 the settlor, but not against a creditor of the settlor contesting the 
 fairness and validity of the deed. Blow v. Maynard, 2 Leigh, 29. 
 
 Where, upon a bill filed to compel the defendant to discover 
 and deliver over to the complainants a pass book alleged to belong 
 to them, and which was wanted by them as evidence against him 
 in a suit at law, and the defendant by his answer admitted the 
 pass book to be in his possession, and referred to it in such man- 
 ner as to entitle them to an inspection of the same as a part of the 
 answer ; Held, that the complainants were not entitled to use the 
 pass book as evidence in their suit at law separate from the de- 
 fendant's answer, previous to a final decree declaring their right 
 to the same. Watts v. Lawrence, 3 Paige, 159. 
 
 On a bill against an agent for an account, his books are not 
 admissible to prove the sale and delivery of provisions and neces- 
 saries to the principal. Poag v Poag, 1 Hill's Ch. 287. 
 
 XrV. Evidence or answer of one defendant wlien read against 
 or in favor of another. 
 
 The answer of one defendant cannot be read in evidence against 
 a co-defendant. Eayward v. Carroll, 4 Har. & John. 518 ; Euntx. 
 Stephenson, 1 A. K. Marsh, 671 ; Thomasson v. Tucker, 2 Blackf. 
 172 ; Mosdey v. Armstrong, 3 Monroe, 389 ; Webh v. Pell, 3 Paige, 
 3C8 ; irCrackin v. Samuels, Litt. Sel. Ca. 12 ; Leeds v. Marine Ins. 
 
EULES OF EVIDENCE IN CHANCERY. 173 
 
 Co. 2 Wheat. 880 ; Collier y. Chapman, 2 Stew. 163 ; Mitchell v. 
 Nash, 1 Cook, 240 ; Harrison v. Johnson, 3 Litt. 286 ; Timberlake v. 
 Coffs, 2 J. J. Marsh, 136 ; Davis x. Harrison, Id. 191 ; Ward v. 
 Davidson, Id. 445 ; WKinn v. Thompson, 1 Bland, 160 ; Contra, 
 Fidd V. Holland, 6 Cranch, 8. 
 
 But this rule does not apply to the case where the defendants 
 are all partners in the same transactions ; for in such case the 
 answer or confession of either is evidence against the others. 
 Van Reimsdyk v. Kane, 1 Gall. 630 ; Winchester v. Jackson, 3 Hayw. 
 310. 
 
 In general the answer of one defendant in equity cannot be read 
 in evidence against another. But where one defendant succeeds 
 to another so that the right of one devolves on the other, and they 
 become privies in estate, the rule does not apply. Osbom v. U. 
 S. Bank, 9 Wheat. 738. 
 
 Upon a biU in equity by one partner against his copartners for an 
 account, the answer of one of the defendants will not be evidence 
 to charge another. But if it appears that the defendants, as con- 
 stituting a partnership among themselves of the one part were in 
 partnership with the plaintiff of the other part, the answer of one 
 of the defendants would be evidence to charge the others. Chapin 
 V. Coleman, 11 Pick. 331. 
 
 If an injunction is sustained upon hearing bill and answer, and 
 the complainant regularly takes depositions, they may be read on 
 another motion to dissolve, made by the defendant in consequence 
 of the introduction of an amended answer which he had leave to 
 file. Leroy v. Dickinson, 1 Car. Law Repos. 497. 
 
 The deposition of one defendant is not admissible in evidence 
 against the others, although he had received his certificate of dis- 
 charge Tinder a state insolvent law, from all debts and conti-acts 
 prior to the date of the discharge, and although the debt in suit 
 was contracted prior to such discharge, the debt having been 
 contracted in a foreign country with a foreigner. Clark''s Adm'rs 
 V. Van Beimsdyk, 9 Cranch, 153. 
 
 If a defendant, in argument, relies upon the answer of his co- 
 defendant, he thereby makes it evidence against himself. Chase 
 V. Manhardt, 1 Bland, 336. 
 
174 APPENDIX. 
 
 XV. Depositions. 
 
 (a) Generally. 
 
 (b) Amendment and suppressal of. 
 
 (a) Generally. 
 
 If irregularities occur in awarding a commission to take a depo- 
 sition in chancery, and in taking the deposition, and the deposition 
 be read at the hearing in the court of chancery without any excep- 
 tion taken there, upon appeal to this court objections taken here 
 to the deposition for such irregularities, cannot avail to exclude 
 the evidence. Dickenson v. Davis, 2 Leigh, 401. 
 
 A's deposition was taken by C, the second mortgagee, and those 
 claiming under him, under a special commission awarded by the 
 chancellor to take the deposition, subject to aU just exceptions, 
 and B, the first mortgagee, prayed and obtained a like special 
 commission to take A's deposition, but did not act under his com- 
 mission ; Held, that B, by obtaining this special commission him- 
 self, was not precluded from objecting to the competency of the 
 deposition taken under C's commission. Beverly v. Brooks, Id. 
 426. 
 
 Where the deposition of a. party in a suit in chancery is taken 
 under a special commission, subject to all just exceptions, whether 
 the deposition be excepted against on the ground of incompetency 
 or not, it behooves the court to examine and decide the question of 
 competency ; and though the deposition be read at the hearing in 
 the court of chancery without exception, yet if on an appeal from 
 the decree, the appellate court finds the deposition incompetent 
 evidence by reason of the deponent's interest in the event, it will 
 pay no regard to the deposition. Ihid. 
 
 A deposition having been taken after the cause was set for hear- 
 ing in the superior court of chancery, and no objection appearing 
 to have been made in that court, the court of appeals will pre- 
 sume that good cause was shown for admitting it. Stubbs v. Bur- 
 well, 2 Hen. & Munf. 636. 
 
 A deposition cannot be read to affect the interest of any party 
 to whom HO notice of the time and place of taking it had been 
 given. Ibid. 
 
 Exceptions to the reading of depositions taken by virtue of com- 
 missions issued after the cause in which they may be required is 
 
EUIES OF EVIDENCE IN CHANCERY. 175 
 
 set for hearing, may be made at any time, before the cause is 
 gone into, when called ; after which such exceptions would come 
 too late. Foster v. Sutton, 4 Hen. & Munf. 401. 
 
 A deposition taken after an appeal from an interlocutory decree 
 in chancery, may be read upon the hearing of the appeal. Alex- 
 ander V. Morris, 3 Call 89. 
 
 A deposition taken before the decree was pronounced in the 
 court of chancery, but not filed until after an appeal was taken 
 from the decree, was received by the court of appeals. Auditor 
 of Public Accounts v. Pauly, 5 Id. 331. 
 
 If a deposition is contradictory of any other previous deposition 
 of the same witness, it destroys his credibility ; but if the former 
 deposition is not inconsistent with the latter, and the witness is 
 supported by the testimony of others, his deposition will have its 
 influence. Cardwell v. Strother, 2 Dana, 444. 
 
 If a deposition be read upon the hearing of the cause below, 
 and it does not appear to have been excepted to, no exception 
 can be taken in the supreme court ; and defects in the certificates 
 or the deposition itself will be presumed to have been waived. 
 PUlowi's Heirs v. STmnnmCs Heirs, 3 Yerg. 508. 
 
 Depositions in a chancery cause, regularly taken and returned 
 to the clerk's office in due time, ought not to be rejected, because, 
 by the inadvertency of the clerk, they had not been filed with the 
 other papers, and their existence was unknown to the court until 
 after considerable progress had been made in the argument of the 
 cause. Cravens v. Harrison, 3 Litt. 92. 
 
 The court of appeals will not reverse a decree in chancery on 
 the ground of depositions having been improperly excluded, if 
 they see that the final decree ought to have been made against the 
 party in whose favor they were taken, if they had been admitted. 
 Ibid. 
 
 No second deposition of a witness ought to be taken and used 
 in the same suit without leave of the court. Newman v. Kendal, 
 2 A. K. Marsh, 236. 
 
 If, after answer filed and depositions taken, the plaintiff makes 
 new parties and files a new bUl, the depositions previously taken 
 cannot be read against the new defendant. Jones v. Williams, 1 
 Wash. 230. 
 
 Qucere, if such depositions can be read where the new defendant 
 has purchased from the original defendant, pendente lite ? Ibid. 
 
176 APPENDIX. 
 
 Testimony taken in the cause cannot be read upon a motion 
 to dissolve an injunction. Brush y. Vandenburgh, 1 Edw. 21. 
 
 The deposition of a witness taken whilst she is incompetent, 
 may be retaken when her competency is restored ; and for an 
 error committed by the court in excluding the last deposition 
 the cause will not be reversed when the deposition is incorporated 
 in the record, and the cause decided as though it had not been 
 excluded. Haddix's Heirs v. Saddix's Adm'rs, 5 Litt. 201. 
 
 A deposition which had been taken while the replication was 
 standing, cannot be read after it is withdrawn. Glarlce v. Tinsley'^s 
 Mnir, 4 Rand, 260. 
 
 Proofs taken in a cross-suit will not be allowed to be read on 
 the hearing in the original cause, unless the parties by themselves 
 or by their privies by representation are the same in both causes, 
 especially where the depositions are sought to be used against 
 a person not a party to the original suit. Ferine v. Swain, 2 John. 
 Ch. 475. 
 
 If a cross-bill contained a charge of fraudulent misconduct in 
 the arbitrators, but no such allegation is made in the answer' to 
 the original bill, though, by an order of the court, the depositions 
 taken in the original suit are allowed to be read in the cross-suit, 
 yet such parts of the depositions as related to the fraudulent mis- 
 conduct, not charged in the original suit, in which they were taken, 
 wiU be suppressed. Underhill v. Van Gortlandt, Id. 845. 
 
 Depositions refused because the witness refused to answer a 
 proper question, and because they were written by the plaintiffs 
 attorney. Mosely v. Mosely, Cam. & Nor. 622. 
 
 A deposition cannot be read to affect the interests of any party 
 to whom no notice of the time and place of taking it had been 
 given. Stubbs v. Burwdl, 2 Hen. & Munf. 636. 
 
 Where a deposition or affidavit is on affirmation, and the per- 
 son taking it does not certify that the affirmant is a Quaker, &c., 
 the deposition or affidavit can be of no avail. Binggold v. Jones, 
 1 Bland, 90. 
 
 (b) Amendmemt and suppressdl of. 
 
 A deposition was rejected because the witness refused to answer 
 a proper question ; also because it was in the handwriting of the 
 complainant's attorney. Mosely v. Mosdy, Cam. & Nor. 622. 
 
EXJUES OF EVIDENCE IN CHANCERY. 177 
 
 Depositions taken without notice ai-e to be rejected. Sonore v. 
 Colmesnil, I J. J. Marsh, 625. 
 
 Evidence of a fact not in issue in the cause cannot be read, and 
 such evidence may, upon motion before hearing be suppressed, 
 or it may be rejected at the hearing. .Trwmbvll v. Oihhons, Halst. 
 Dig. 174. 
 
 Depositions taken after the argument of the cause, without 
 special order, were suppressed. DangerfidA v. Claiborne, 4 Hen. 
 & Munf. 397. 
 
 Where, on examination, a witness has misbehaved, the dep- 
 osition may be suppressed. Phillips v. TTiompson, 1 John. Ch. 
 140. 
 
 After publication passed and the cause set down for hearing, 
 the deposition of a witness was allowed to be amended on exam- 
 ination of the witness by the court, he being aged and very deaf, 
 and a mistake made in taking down liis testimony by the exam- 
 iner. Derdon v. Jackson, Id. 526. 
 
 XVT. Publications generally, and eidarging publication. 
 
 FDing and opening in the clerk's office, a deposition taken in a 
 suit in chancery, is equivalent to a publication in the English prac- 
 tice. Charles River Bridge v. Warren Bridge, 7 Pick. 344. 
 
 Where the facts charged in a bill are fully denied by the an- 
 swer, there can be no decree against the answer on the evidence 
 of a single vyitness only, without corroborating circumstances to 
 supply the place of a single witness. And in such case the court 
 refused, after the lapse of two years, from passing publication to 
 open the rule to pass publication on an affidavit of plaintiff that he 
 had discovered a witness who could prove a material fact denied 
 by the answer, as this would not be sufficient to rebut the answer. 
 Smith V. Brush, 1 John. Ch. 469. 
 
 Notice of the rule to pass publication must be served on 'the 
 defendant's solicitor or his agent ; and if on the agent, the time 
 of service must be double, as in other cases, or for sis weeks. 
 Billings v. Battoon, 6 Id. 189. 
 
 It is not of course to enlarge the rule to pass publication, and 
 it wiU be refused where there has been great delay. Vhderhill v. 
 Van Cortlandt, 1 John. Ch. 500. 
 
 Where the rule to show cause why publication should not pass 
 
178 APPENDIX. 
 
 has been enlarged by an order for that purpose, at the instance 
 of the defendants, and that order has expired, publication may 
 pass without entering a further rule with the register, as is the 
 practice in ordinary cases, on the expiration of the rule to show 
 cause. Moody v. Payne, 3 Id. 294. 
 
 After publication passed, but the deposition taken not read, a 
 motion to enlarge the time for passing publication will not be 
 granted, but on special cause shown, and due notice to the oppo- 
 site party. Mammersley v. Brown, 2 John. Ch. 428. 
 
 The deposition of a witness whose examination was not closed 
 until after publication passed, was allowed to be read, he having 
 been cross-examined by the opposite party, and no actual abuse 
 appearing. Underhill v. Van Gortlandt, Id. 345. 
 
 Either party who has examined witnesses may give rules for 
 passing publication, but the rule for passing publication can be 
 entered only by the party who had given the previous rules ; the 
 defendant cannot pass publication on the plaintiff's rules, nor vice 
 versa. Brown v. BicJceits, 8 John. Ch. 63. 
 
 In Maryland there is no publication of depositions, but all ob- 
 jections are open and may be taken at the hearing. Strike's Case, 
 1 Bland, 96. 
 
 XVn. Parol Evidence. 
 
 (a) OmeraMy. 
 
 (b) To explain, vary, or contmdict loritteninstruments. 
 
 (a) Generally. 
 
 Parol evidence is admissible to establish a trust. Ldcher v. 
 Ldclier, 4 J. J. Marsh, 593. 
 
 Parol evidence is admissible to prove a trust in opposition to an 
 absolute deed or written instrument ; but it must be evidence of 
 so positive a character as to leave no doubt of the fact, and at the 
 same time so clearly define the trust that the court may see what 
 is requisite for its due execution. Harrison v. M''Mennomy, 2 Edw. 
 251. 
 
 The testator by his will directed the remainder of his estate to 
 be sold and the proceeds to be equally distributed among his 
 granddaughters, and adds, " I allow my under-named executors 
 to retain the aforesaid children's paits in their hands until the chil- 
 
RULES OF EVIDENCE IN CHANCERY. 179 
 
 dren arrive at maturity," on a bill filed against the executors to 
 account, it was hdd, that pai'ol evidence was admissible to show 
 that the executors retained the legacies in tlieir hands without 
 making interest on them, in consequence of an agreement with 
 the testator that they should not be bound to invest the fund or 
 make interest, nor be chargeable with interest on their failure to 
 do so ; and that they accepted the executorship on that condition. 
 CJiesnutY. Strong, 1 Hill's Ch. 125. 
 
 A mistake in drawing and fraud in either procuring the writing 
 to be executed or in framing it differently from whatwas intended 
 and concealing that difference by address, may be shown by parol 
 evidence. Baugh v. Ramsey, 4 Monroe, 158. 
 
 It seems that the allegation that the vmtten agreement was 
 drawn for dollars merely, instead of commonwealth's paper "by 
 either fraud or mistake," without saying which, is not sufficient to 
 admit the parol proof. Ibid. 
 
 The bare ground that the contract was for commonwealth's 
 paper and the note otherwise, without showing the note was 
 fraudulently drawn, is not sufficient to admit the parol evidence. 
 Id. 169. 
 
 It is the settled law that a mistake in reducing agreements to 
 writing is a head of equity jurisdiction, and parol evidence is com- 
 petent to prove the mistake. Inskoe v. Proctor, 6 Monroe, 316. 
 
 Parol evidence is competent to prove a transaction in the form 
 of an absolute sale was a mortgage to secure a usurious loan. 
 lAndley v. STmrp, 7 Id. 262. 
 
 Parol evidence was received to prove the existence and loss of 
 a deed of marriage settlement corroborated by other deeds re- 
 ferring to and speaking of the deed of settlement. Potts v. Cogdell, 
 1 Desau. 464. 
 
 To a bill praying for the specific performance of a parol agree- 
 ment for the sale of land, the defendant answered and denied the 
 agreement as charged by the biU ; but set up another agreement 
 which he insisted upon he had complied with. The complainant 
 is not at liberty to support the alleged parol agreement by parol 
 evidence. Askew v. Poyas, 2 Id. 145 
 
 Parol evidence of the sum brought into the copartnership funds 
 by one of the partners was not allowed, after a great lapse of time 
 (twenty-four years), to prevail against the entry in the books of a 
 much smaller sum credited him on that account. Ex'rs of Richardr 
 son r. Wyatt, Id. 471. 
 
180 APPENDIX. 
 
 Parol proofs of loose declarations of a party shall not, after a 
 great lapse of time, establish an alleged renunciation of clear 
 rights. Irhy V. M'Grae, 4: Besan. 4:22. 
 
 Parol evidence of the execution of some deeds for the conrey- 
 ance of lands, and of the payment of the purchase-money equal to 
 the value of the fee-simple, and of the house and papers of the 
 purchaser, being afterwards burnt, wiU establish the existence 
 and loss of the title deeds in fee-simple to the land in question. 
 Belton V. Briggs, Id. 465. 
 
 Parol, evidence of the declarations of a testator cannot be re- 
 ceived to explain the intention of the bequest. Putter's JEx'rs^v. 
 Puller, 3 Eand, 83. 
 
 Parol evidence is admissible to prove a fraud or mistake in re- 
 ducing a contract to writing ; in such case the fraud or mistake 
 must be alleged. Morris v. Morris, 2 Bibb, 311. 
 
 Parol evidence is inadmissible to show a mistake in larw as a 
 ground for reforming a written instrument founded on such mis- 
 take. Wheaton v. Wheaton, 9 Conn. 96. 
 
 The court will not admit parol evidence to show that a renunci- 
 ation of dower before a magistrate was intended as a release of 
 inheritance. Westbrook v. Earheson, 2 M'Cord's Ch. 117. 
 
 Parol evidence is inadmissible to set up a parol agreement 
 between husband and wife, to compensate the wife for consenting 
 to renounce her dower. Hall v. Hall, Id. 274. 
 
 The fact that the wife has renounced her dower, raises no pre- 
 sumption that she is not to be compensated, in order to let in parol 
 evidence of an agreement to compensate. Id. 277. 
 
 The court is particularly reluctant to let in parol evidence after 
 the death of one of the parties, where a specific performance is 
 asked. Ihid. 
 
 The testimony of the person who executed the deed, was re- 
 ceived as fixing the time when it was executed, notwithstanding 
 the testimony of two witnesses to his acknowledgment to the con- 
 trary, when not on oath ; he being entirely disinterested between 
 the parties, and the falsehood of his evidence being not probable 
 under the circumstances of the case. Oolquhoun v. Atkinson, 6 
 Munf. 560. 
 
 It seems that to determine whether a specific legacy shall abate 
 or not, evidence of the state of the assets dehors the will may be 
 received. White v. Beattie, Dev. Eq. 320. 
 
EXILES OF EVIDENCE IN CHANCERT. 181 
 
 A agrees with B, at a sheriffs sale, to bid ofif the property sold, 
 for B. He bids it off and takes a conveyance to* himself, and then 
 refuses to convey to B. ^.s B is not privy to the conveyance, he 
 is not bound by it ; and he may produce parol evidence to prove 
 the agreement between A and himself. Strong v. Glasgow, 2 
 Mur. 289. 
 
 In chancery, a mistake in a deed may be shown by parol evi- 
 dence. Abbe V. Goodwin, 7 Conn. 377. 
 
 Parol evidence of the republication of a will cannot prevaU as 
 to real estate. It cannot be received on the question whether the 
 testator meant to revoke or republish a will of lands. CogdelVs 
 Ex\s V. His Widow, 3 Desau. 365. 
 
 Where there is an agreement in writing for the conveyance of 
 land, according to the valuation of certain appraisers named, and 
 the parties subsequently by parol agree to substitute other ap- 
 praisers, this is not within the statute, and may be shown byparol 
 evidence. Stark v. Wilson, 3 Bibb, 478. 
 
 Parol evidence of a parol agreement respecting the sale of land 
 vriU not be received. Askew v. Poyas, 2 Desau. 146 ; Oivens v. 
 Colder, Id. 190. 
 
 Complainant had brought a suit at law on a promissory-note, on 
 which a considerable amount of interest was due. The jury gave 
 a verdict for the principal of the note, omitting the interest ; Held, 
 that parol evidence of a juror was admissible to show that the 
 jury had omitted the interest by mistake. Cohen v. Dubose, Harp. 
 Eq. 102. 
 
 (h) To explain, vary, or contradict written instruments. 
 
 The general rule is that parol evidence cannot be admitted to 
 contradict, explain, or alter a written agreement; but may be 
 received to prove fraud, mistake, usury, or surprise in the execu- 
 tion of it. M'Mdhon v. Spongier, 4 Kand, 51 ; Pooser v. Tyler, 1 
 M'Cord's Ch. 18 ; Gibson v. Watts, Id. 490 ; Holmes v. Simons, 3 
 Desau. 149 ; Loyd v. Ux'rs of Inglis, 1 Id. 333 ; Anderson^s Ex'rs v. 
 Bacon, 1 A. K. Marsh, 60 ; FisKback v. Woodford, 1 J. J. Marsh, 
 86 ; Love v. Cofer, Id. 827 ; Williams v. Beazley, 4 Id. 580 ; Thomp- 
 son V. Patton, 6 Litt. 74 ; Dwight v. Pomeroy, 17 Mass. 303 ; Bradr 
 bury V. White, 4 Greenl. 391 ; Meads v. Lansingh, Hopk. 124 ; Wes- 
 ley v. Thomas, 6 Har. & John. 24 ; Watkins v. Stocketfs Adm'r, Id. 
 435 ; Randall v. Phillips, 3 Mason, 378 ; Dickenson v. Dickenson, 2 
 16 
 
182 APPENDIX. 
 
 Mur. 2 ; Lemasfer v. Burdlchart, 2 Bibb, 28 ; BaugJi v. Bamsey, 4 
 Monroe, 168 ; Enstoris Ex'r v. Noble, 4 J. J. Marsh, 134 ; Fenvrick 
 V. Bailiff, 6 Monroe, 154. 
 
 Parol evidence is admissible to show that a deed or conveyance 
 absolute on its face was intended by the parties only as a mort- 
 gage, or security for the payment of money. Slee v. Manhattan 
 Co. 1 Paige, 48; Whitlick v. Kane, Id. 202; Boss v. Norvdl, 1 
 Wash. 14 ; Streator v. Jones, 3 Hawk. 423 ; Thompson v. Potion, 5 
 Litt. 74 ; Lewis v. Bobards, 3 Monroe, 409 ; Washburn v. Merrills, 
 1 Day, 139 ; ilfari; v. Pell, 1 John. Ch. 594 ; Blanchard v. Kealon, 4 
 Bibb, 451. 
 
 Where there is no latent ambiguity, but plain contradictory 
 bequests, parol evidence of the testator's intention is inadmissible. 
 Field V. Eaton, Dev. Eq. 283 ; Broadwell v. Broadwell, 1 GU. 600 ; 
 McEvoy v. Long, 13 111. 150. 
 
 Parol evidence is inadmissible to prove that the intention of 
 the testator was not properly expressed in the will ; or that he 
 used words the meaning of which he did not understand. Beeves 
 v. Beeves, Id. 386. 
 
 Parol evidence is sometimes admitted on the part of the defend- 
 ant to show a mistake in a deed, to prevent the specific execution 
 of it, but never on the part of the complainant to set up a dififer- 
 ent deed from that which has been executed. Westbrook v. Ear- 
 beson, 2 M'Cord's Ch. 115. 
 
 The existence of a resulting trust may be proved by parol evi- 
 dence in opposition to tlie face of the deed, and to the answer of 
 the trustee ; but to establish tlie trust under those circumstances 
 the earliest, and the strongest testimony must be produced. Jmi- 
 son V. Graves, 2 Blackf. 440 ; Elliott v. Armstrong, Id. 198. 
 
 When the complainant alleges his contract to have been for the 
 commonwealth's paper, thotigh the written instrument calls for 
 specie, and the defendant in his answer denies it, but sets up a 
 contract variant from the writing and from that alleged by the 
 complainant, parol testimony is inadmissible to establish the real 
 contract. WilsorCs AdwHr v. Bowen, 4 J. J. Marsh, 122. 
 
 Parol evidence, though inadmissible to vary the terms of a 
 written contract, is admissible to prove a vice in it ; ergo, it is 
 admissible to prove that a biU of sale, absolute on its face, was 
 intended as a mortgage to secure an usurious loan. Murphy v. 
 Trigg, 1 Monroe, 72. 
 
EULES OF EVIDENCE IN CHANCEET. 183 
 
 Parol evidence is not competent to vary a written agreement to 
 support a demand, but may be sometimes used to resist a recov- 
 ery. Wood V. Lee, 5 Monroe, 67. 
 
 The fraud or mistake must be in the execution of the instrument 
 for parol proof to contradict the terms of it or vary its stipulations. 
 Fishhack v. Woodford, 1 J. J. Marsh, 87. 
 
 For parol evidence to alter or modify the terms of a ■written 
 instrument, it is necessai'y to establish some fact independent of 
 the consideration establishing fraud or mistake. Ibid. 
 
 Parol proof of the conduct and condition of parties is admissible 
 to aid in the construction of writings of doubtful import on their 
 face. Parol evidence is always admissible to prove fraud, usury, 
 or illegality of contract or consideration. Edrington v. Harper, 3 
 Id. 355. 
 
 Where the words of a will are equally applicable to two 
 persons or two things, parol evidence is admissible to show 
 which person was the object of the testator's bounty, or which 
 article he intended for the legatee. Pritchard v. Hicks, 1 Paige, 
 270. 
 
 Where a testator made a bequest to a person by a wrong Chris- 
 tian name, parol evidence was admitted to show what person 
 was intended. Connolly v. Pardon, Id. 291. 
 
 Notwithstanding a clause of general warranty in a deed for 
 land, a court of equity will receive parol testimony to prove that 
 such clause was contrary to the actual agreement by which the 
 land was to have been conveyed with special warranty only ; the 
 written agreement of the vendor to make the conveyance not 
 being produced on the part of the vendee to whom^it was deliv- 
 ered. Bumgardner v. Allen, 6 Munf. 439. 
 
 The rule that parol evidence is inadmissible to alter, add to, or 
 explain a written agreement, is founded in the general rules of 
 evidence in which writing evidence stands higher in the scale than 
 mere parol testimony. Ratcliffe v. Allison, 3 Kand, 637. 
 
 But collateral circumstances attending an agreement may be 
 proved by parol evidence. And these circumstances may be gone 
 into in every case by a defendant who resists the specific execu- 
 tion of an agreement. Ibid. 
 
 Parol declarations of a grantor previous to the execution of a 
 deed and at the very moment of executing it, are admissible to 
 explain the intention with which it was made. Land v. Jeffries, 
 5 Kand, 211. 
 
184 APPENDIX. 
 
 Parol evidence is not admissible to supply a clause in a will 
 devising real estate, omitted by mistake. WebVs Heirs v. Wehh, 7 
 Monroe, 629. 
 
 Bonds apparently absolute may be shown by evidence to be 
 merely counter securities. Todd v. Ex'rs of Rivers, 1 Desau. 
 155. 
 
 The word " increase " without the word " future " prefixed, in 
 the bequest of a female slave is ambiguous ; and if the intention 
 of the testator in using it cannot be ascertained from the whole 
 will taken together, parol evidence is admissible to explain it. 
 Bend's Ex'r v. Davis, 4 Hen. & Munf. 283. 
 
 On a bill to compel the specific execution of a written agree- 
 ment, if the defendant in his answer denies that interpi'etation 
 thereof which appears obvious according to its words, parol evi- 
 dence on the part of the complainant is admissible to explain it. 
 CutPs Trustees v. Craig, 2 Id. 618. 
 
 Parol evidence is admitted to explain the meaning of the parties 
 in marriage articles, when a conveyance is called for. Flemings 
 V. Willis, 2 Call, 6. 
 
 Parol evidence is not to be admitted nor extraneous circumstan- 
 ces introduced in the exposition of deeds, except in the single 
 instance of a latent ambiguity. Howardy. Sogers, 4 Har. & John. 
 278. 
 
 Parol evidence of declarations and intentions is inadmissible to 
 raise a trust inconsistent or at variance with the expressed inten- 
 tion of a deed where the facts and circumstances would not of 
 themselves, by implication or construction of law, do so. Nor can 
 such a trust be created for the benefit of a third person and to 
 di'.feat a complainant's eqtiity by alleging declarations or inten- 
 tions at variance with the" express intention of a deed. Jones v. 
 Slubey, 5 Har. & John. 372. / 
 
 Where a mistake has been made by a scrivener, or error in cal- 
 culation, or other obvious mistake in matter of fact in a written 
 contract, parol evidence may be let in. Gibson v. Watts, 1 M'Cord's 
 Ch. 605. 
 
 Where a deed is made in consideration of "natural love and 
 affection," and the further consideration of " one dollar," parol 
 proof may be admitted of other valuable considerations. Harvey 
 V. Alexander, 1 Kand, 219. 
 
 A being seized of a tract of land containing two hundred and 
 
RULES OF EVIDENCE IN CHANCEET. 185 
 
 seventy-five acres, called P. D., gave his bond for the conveyance 
 of all his right, &c., " of, in, and to one hundred and twenty acres 
 of land called P. D.," &c. Parol evidence is inadmissible to show 
 from what part of the tract the one hundred and twenty acres 
 were to be taken. Hunt v. Qist, 2 Har. & John. 498. 
 
 The answer of a defendant, who had no interest, was received 
 as evidence, to explain the terms of a sale, notwithstanding the 
 objection that it was parol evidence, and contradicted the adver- 
 tisement of the deed. Waimoright v. Bead, 1 Desau. 573. 
 
 Where a deed has been executed pursuant to a written agree- 
 ment, parol evidence is inadmissible to show a resulting trust. 
 St. John V. Benedict, 6 John. Ch. HI. 
 
 The rule of evidence is that where a deed is proved to have 
 been lost, or casually destroyed, or to be in the hands of the oppo- 
 site party, parol evidence may be allowed to prove the existence 
 and contents. None of the cases go beyond this. Adm'r of Bunch 
 V. Adnir of Hurst, 3 Desau. 291. 
 
 Parol evidence cannot be admitted to supply or contradict, 
 enlarge or vary the words of a will, nor to explain the intention 
 of the testator, except in two specified cases : first, where there is 
 a latent ambiguity, arising dehors the will as to the person or sub- 
 ject meant to be described ; and second, to rebut a resulting trust. 
 Mann v. Ex'rs of Mann, 1 John. Ch. 231 ; Scott v. Bennett, 3 Gilm. 
 254. 
 
 Parol evidence admitted to explain a mistake in a will, being 
 the omission of the name of one of the testator's children. Oreer 
 Y. Wind^s Ex'r, 4 Desau. 85. 
 
 On a bill to compel the specific execution of a written agree- 
 ment, if the defendant in his answer deny that interpretation 
 thereof which appears obvious, according to its words, parol evi- 
 dence on the part of the plaintiff is admissible to explain it. Coufs 
 Trustees v. Craig, 2 Hen. & Munf. 618. 
 
 Where an assignment is absolute on the face of it, but is ad- 
 mitted in the answer to have been intended as a security, parol 
 proof is admissible to show the nature and extent of the security, 
 or the real intent of the parties. Moses v. Murgatroyd, 1 John. 
 Ch. 119. 
 
 Parol evidence is inadmissible that a note absolute on its face 
 was not to be paid on the happening of a certain contingency. 
 Dale V. Pope, 4 Litt. 167. 
 
 16* 
 
186 APPENDIX. 
 
 Parol evidence was admitted to prove the existence and loss of 
 a deed of marriage settlement, which was corroborated by other 
 deeds referring to and speaking of the deed of settlement j and 
 the contents of the lost deed were ascertained by reference toother 
 deeds. Potts v. Cogdell, 1 Desau. 454. 
 
 Parol evidence is admissible as to the declarations of testator 
 at the time he made his will, and as to facts on which he was in- 
 duced to make it, the declarations being consistent with the will. 
 Webley v. Langstaff, 3 Id. 509. 
 
 A receipt in full of all claims given on the settlement of partner- 
 ship accounts thirteen years back, may be rebutted by evidence, 
 that the party giving it refused to pay interest for which he was 
 then liable, so as to subject him to the payment of it. Snowden v. 
 Thomas, 4 Har. & John. 335. 
 
 A latent ambiguity appearing on the face of a will, can only be 
 explained by examination of the will itself; a latent ambiguity 
 arising from matter dehors the will, may be explained by parol 
 evidence. Brechenridge v. Duncan, 2 A. K. Marsh, 51. 
 
 Parol evidence will not be admitted to show that a bill of sale 
 absolute on its face, was a mere security for a sum of money, 
 unless there is a charge of fraud in obtaining it. Fitzpatrick v. 
 Smith, 1 Desau. 340. 
 
 Where the bill alleges a deed from the plaintiff to the defend- 
 ant, absolute on its face, to have been given in trust, and the 
 answer denies such trust, parol evidence is inadmissible, under 
 the statute of frauds, to establish it. Moran v. Hays, 1 John. Ch. 
 343. 
 
 "Where the deeds were absolute, parol evidence of an intended 
 trust was rejected, as being contrary to the statute of frauds. 
 Lloyd V. Bx^rs of Inglis, 1 Desau. 333. 
 
 Parol testimony, even by the person who drew the will, rejected, 
 when offered to support the allegation of a mistake in the will, 
 and to prove that the testator intended to dispose of the property 
 in a manner not apparent on the face of the will. Hothmales's 
 Adni'r v. Meyers, 4 Id. 215. 
 
 A in writing agreed to convey to B on the payment of a certain 
 agreed sum, " a lot of land situated in the town of Windham ; " B 
 alleging that there was a mistake in the contract — that the whole 
 of a particular lot was intended to be embraced by it, though a 
 part of the lot lay in the town of Westbrook, brought his bill m 
 
EXILES OF EVIDENCE IN CHANCEET. 187 
 
 equity to have the mistake corrected and specific performance 
 decreed of the contract as amended ; Held, that parol evidence 
 was inadmissible to vary the terms of the written contract accord- 
 ing to the prayer of the bill. Elder y. Elder, 1 Fairfield, 80. 
 
 Parol proof which goes to sustain and supply deficiencies in a 
 written instrument may be received. LinganY. BcracZej-sora, 1 Bland, 
 249. 
 
 XVm. Examination of Witnesses. 
 
 (a) Oenerally, and of demurrer to interrogatories hy witness. 
 
 (b) When and how taken. 
 
 (c) Viva voce. 
 
 (d) Before master or examiner. 
 
 (e) Be bene esse. 
 
 (f) Cross-examination. 
 
 (g) Further, or re-examination. 
 
 (h) Order to produce witnesses and notice thereof. 
 (i) Examination of parties to cause, effect thereof. 
 (k) Of defendant on interrogatories. 
 (1) Commission to examine. 
 
 (1) When and how granted, effect thereof. 
 
 (2) Execution and return of. 
 
 (a) Oenerotly, and of demurrer to interrogatories by witness. 
 
 Under the act of the 17th of April, 1823, parties and their coun- 
 sel have a right to be present at the examination of witnesses, and 
 to cross-examine in all oases ; and this as well upon commission 
 issued to examine witnesses out of the State, as in other cases. 
 Steer v. Steer, 1 Hopk. 362. 
 
 Counsel have no right to advise a witness who is before an 
 examiner, that he is not bound to answer a particular question. 
 Taylor v. Wood, 2 Edw. 94. 
 
 If the witness objects, he should demur. Ibid. 
 
 It is the duty of an examiner to inform a witness of his legal 
 rights. Ibid. 
 
 Notice that a deposition will be taken at a particular tavern in 
 a city, named in the notice, is good without mentioning the Chris- 
 tian name of the tavern keeper, unless it is shown there were, in 
 the same city, two tavern keepers of the same surname. Over- 
 street V. Thompson,' 1 Litt. 120. 
 
188 APPENDIX. 
 
 Where there are several defendants having different rights and 
 claims among one another, they cannot examine witnesses against 
 each other ; nor can one defendant examine witnesses produced 
 by another defendant; but a co-defendant may read anything 
 proved on the part of the complainant, and there may be a decree 
 for one defendant against a co-defendant, grounded on the plead- 
 ings and proofs between the complainant and defendant. Trum- 
 bull V. Oibhons, Halst. Dig. 174. 
 
 (b) When and how taken. 
 
 Where there are several defendants having different rights and 
 claims among one another, they cannot examine witnesses against 
 each other ; nor can one defendant cross-examine a witness pro- 
 duced by another defendant ; but a co-defendant may read any- 
 thing produced on the part of complainant ; and there may be a 
 decree for one defendant against a co-defendant grounded on the 
 pleadings and proofs between the complainant and defendant. 
 Trwmhidl v. Oibhons, Halst. Dig. 174. 
 
 Proofs cannot regularly be taken as to one of the defendants in 
 a cause, to whose answer a replication has been filed, until the 
 answers of the other defendants have been put in, or the bill has 
 been taken as confessed against them. Vermillyea v. Odell, 4 
 Paige, 121. 
 
 After publication passed, witnesses cannot be examined except 
 under very special circumstances, namersley v. Lambert, 2 John. 
 Ch.432. 
 
 The testimony of the witness is complete, so far as the party call- 
 ing him is concerned, when the direct examination is finished and 
 signed by the witness ; but the party calling him is bound to keep 
 the witness before the examiner a sufiBcient length of time after- 
 wards to enable the adverse party to complete the cross-examina- 
 tion, or the deposition may be suppressed. Trustees of Watertown 
 V, Cowen, 5 Paige, 510. 
 
 (c) Viva voce. 
 
 A court of chancery has no authority to hear witnesses ci«a voce, 
 their examination must be in writing ; to hear it otherwise is erro- 
 neous when objected to by the parties. Hdrs of Hardin v. Eeirsof 
 Stanley, 3 Yerg. 381. 
 
KULES OF EVIDENCE IN CHANOERT. 189 
 
 A party intending to produce viva voce testimony should apply 
 for an order, on affidavit, and give notice. This is only done to 
 prove the execution of deeds, signatures, &c., and without a cross- 
 examination. Emerson v. Berkley, 4 Hen. & Munf. 441. 
 
 A witness may be examined viva voce, at the hearing, for a par- 
 ticular purpose, as to prove exhibits, which had not been proved 
 before the examiner ; and the regular mode is to serve a previous 
 order for that purpose, or notice on the opposite party four days 
 before the hearing. But where the circumstances are special, the 
 court may dispense with the previous notice. Barrow v. Rhine- 
 lander, 1 John. Ch. 559. 
 
 It is the proper course, in the trial of an issue out of chancery, 
 to examine witnesses viva voce, and it cannot properly be inferred 
 that the answer and depositions were the only evidence exhibited 
 on such trial ; on the contrary, it ought rather to appear that such 
 written evidence was actually made use of, since the court of 
 chancery ought to give directions respecting the reading of th e 
 papers filed in the cause. Paul v. Paul, 2 Hen. & Munf. 625. 
 
 Exhibits may be proved viva voce at the hearing. Hughes v. 
 Phelps, 3 Bibb, 199. 
 
 (d) Before master or examiner. 
 
 A witness, who demurs to a question put to him in the exami- 
 ner's office, cannot bring the matter before the court. It is for the 
 party who puts the question to do so ; and if he does not do so, no 
 one else ought or can. Mowatt v. Qraham, 1 Edw. 13. 
 
 Counsel have no right to advise a witness who is before an 
 examiner, that he is not bound to answer a particular question. 
 Taylor v. Wood, 2 Id. 94. 
 
 It is the duty of the examiner to inform a witness of his legal 
 rights. Ibid. 
 
 Where, by a mistake of the solicitor for the defendant, which 
 the counsel for the opposite party Was aware of, but did not at- 
 tempt to correct, the names of the defendant's witnesses were not 
 furnished at the commencement of the examination of the com- 
 plainant's witnesses before the examiner ; the court, upon an affi- 
 davit of the solicitor, explaining the mistake, and upon a general 
 affidavit of the defendant, under the advice of counsel, as to the 
 materiality of the witnesses, permitted the witnesses to be 
 
190 APPENDIX. 
 
 examined, saving to the complainant the right to examine other 
 witnesses on his part. Gaul v. Miller, 3 Paige, 192. 
 
 Where the attention of the party is called to the provisions of 
 the eighty-third rule at the commencement of the examination, or 
 he neglects to furnish the list of his witnesses with a full knowl- 
 edge of the existence of that rule, he will not be allowed to exam- 
 ine his witnesses without stating on oath the substance of what he 
 expects to prove by their testimony, in addition to the excuse for 
 not having complied with the rule. Ibid. 
 
 The right which is given to a party by the eighty-fifth rule of 
 the court to proceed with the examination, notwithstanding the 
 decision of the examiner, that the witness is incompetent, or that 
 the interrogatory is irrelevant and improper, cannot properly be 
 exercised, except in cases where the solicitor or counsel of such 
 party has reason to doubt the correctness of the decision ; and if 
 the solicitor or counsel who is conducting the examination insists 
 upon proceeding in a case, where there is no reasonable ground 
 for doubt as to the correctness of the decision, he will be person- 
 ally charged with the costs of the application to the court to sup- 
 press the deposition or to expunge the objectionable testimony. 
 Scott V. Young, 4 Paige, 542. 
 
 The examiner has no right to reserve the question upon objec- 
 tion to the competency of a witness, or the propriety of an inter- 
 rogatory, where he has no rational doubt as to the validity of the 
 objection. It is his duty in such cases to decide the question, and 
 leave the solicitor or counsel conducting the examination to pro- 
 ceed with the illegal testimony at the peril of being personally 
 charged with costs. Ibid. 
 
 On reference to a master, aged witnesses, residing in a distant 
 part of the State, may be examined on interrogatories, before a 
 master in the county where they reside, under the directions of 
 the master before' whom the reference is pending ; and examina- 
 tion so taken may be used on the reference, saving all just excep- 
 tions. Mason v. Boosevelt, 3 John. Ch. 627. 
 
 Each party has a right to elect his own examiner; and the court 
 will not, on motion of the opposite party, interfere vnth that right ; 
 but a direct examination may be before one examiner, and a 
 cross-examination before another. Troup v. SaigM, 6 Id. 335. 
 
 A party is not entitled to copies of deeds or other exhibits re- 
 ferred to in the interrogatories of the opposite party, until publica- 
 
RULES OF EVIDENCE IN CHANCERY. 191 
 
 tion. Exhibits ought, however, to be sufficiently described in the 
 interrogatories, so as to enable the adverse party to know what is 
 intended to be proved, and to put him on all due inquiry. Troup 
 V. HaigM, 6 Johns. Ch. S35. 
 
 (e) De bene esse. 
 
 The court will order a witness to be examined, de bene esse, in 
 a cause before an answer has been put in, provided the necessity 
 for taking his deposition is satisfactorily shown by affidavit. Fort 
 V. Bagusin, 2 John. Ch. 146. 
 
 Where a witness is about to depart the State to reside abroad, 
 the court, on petition verified by affidavit and motion for that pur- 
 pose, win order him to be examined de bene esse without previous 
 notice of the motion. RocTaoell v. Folsom, 4 John. Ch. 165. 
 
 On a bill or petition on oath, in the same case, a commission 
 may be granted to take the testimony of an aged or infirm witness 
 de bene esse. Lingan v. Henderson, 1 Bland, 238. 
 
 (f) Cross-examination. 
 
 Under the act of the 17th of April, 1823, parties' and their coun- 
 sel have a right to be present at the examination of witnesses, and 
 to cross-examine in all cases ; and this as well when commission 
 issued to examine witnesses out of the State as in other cases. 
 Steer v. Steer, Hopk. 362. 
 
 Where one party is examined as a witness against another 
 party in the same cause, he may be cross-examined like any other 
 witness by the party against whom he is called, and his evidence 
 cannot be used in his own favor. Benson v. Le Boy, 1 Paige, 
 122. 
 
 But where a party is examined before a master in relation to 
 his own rights, the examination is in the nature of a bill of dis- 
 coverv. He cannot be cross-examined by his own counsel, nor 
 can he give evidence in his own favor, any further than his an- 
 swers are responsive to the questions put to him. Ibid. 
 
 He may, however, accompany his answer by explanations 
 responsive to the interrogatory which may be necessary to rebut 
 any improper inference arising from such answer. Ibid. 
 
 (g) Further, or re-examination. 
 A witness examined while incompetent by reason of interest, 
 
192 APPENDIX. 
 
 may be re-examined after his competency is restored. Haddix v. 
 EaMix, 5 Litt. 202. 
 
 After a witness has been examined, the court may, if they deem 
 it necessary, order his further examination, either before the 
 examiner or in open court. Phillips v. Thomson, 1 John. Ch. 
 140. 
 
 The re-examination of a witness in chancery, rests in discretion 
 and though granted under peculiar circumstances, is against the 
 ordinary practice of that court. Beach v. Fulton Bank, 3 Wend. 
 673. 
 
 Where an application was made to open the proofs in a cause 
 in chancery, for the purpose of re-examining a witness, and to 
 amend an answer so as to embrace an usurious contract to which 
 it was expected the witness would testify on his re-examination, 
 which contract was not set forth in the answer originally put in ; 
 it was Jield, that the defendant was not entitled to succeed in his 
 applications, unless he paid or oflfered to pay the money actually 
 lent with the legal interest thereof. Ibid. 
 
 After a hearing and final decree in a cause, a witness cannot be 
 re-examined to explain or correct his testimony, taken on his 
 examination in chief, and read at the hearing, unless under very 
 special circumstances. Cfray v. Murray, 4 John. Ch. 412. 
 
 A witness who has been examined before a conunissioner, by 
 consent of parties, on affidavit that his testimony was not truly 
 taken down by the commissioner, who had mistaken it materially, 
 was ordered to be re-examined before the examiner, there being 
 no suggestion of any tampering with the witness. Trustees of 
 Kingston v. Tappan, 1 Id. 368. 
 
 After a witness is examined, in the regular course, there must 
 be something special to justify his re-examination. Sterry v. 
 Arden, Id. 62. 
 
 Where, after publication passed, a party files articles and gives 
 notice of the examination of witnesses to impeach the credit of 
 former witnesses, the adverse party may examine witnesses to 
 support the credit of his witnesses who have already deposed, and 
 is entitled to a rule to produce witnesses, and pass publications as 
 in other cases. Troup v. Sherwood, 3 John. Ch. 658. 
 
 A re-examination of witnesses is not of qourse, but only on 
 special application to the court, and on sufficient cause shown by 
 affidavit or otherwise, according to circumstances. Hallock v. 
 Smith, 4 Id. 649. 
 
EULES OF EVIDENCE IN CHANCEET. 193 
 
 A witness cannot be re-examined without the express order of 
 the coui-t. Newman v. Kendal, 2 A. K. Marsh, 236. 
 
 (h) Order to produce witnesses, and notice thereof. 
 
 Notice that depositions will be taken at a particular tavern in a 
 city named in the notice, is good ivithout mentioning the Christian 
 name of the tavern keeper, unless it be shown that there were in 
 the same city two tavern keepers of the same surname. Overstreet 
 V. Phaiips, 1 Litt. 120. 
 
 Where notice of the order to produce witnesses had been served 
 upon the agent of the solicitor for the opposite party, each party 
 has double the usual time to produce his witnesses. James v. 
 Berry, 1 Paige, 647. 
 
 If the adverse party wishes to shorten the time, he must obtain 
 an order on his part and serve notice thereof on the opposite 
 solicitor either personally or by leaving the same at his office. 
 Ibid. 
 
 Where an order to produce witnesses had been extended by the 
 agreement of the parties ; it was held, that an order to extend the 
 time to produce witnesses, obtained upon an application ex parte 
 to the chancellor after the time limited in the first order had ex- 
 pired, but before the expiration of the time as enlarged by the 
 agreement, was regular. Fitch v. Hazeliine, 2 Paige, 416. 
 
 But where the agreement to enlarge the time to produce wit- 
 nesses contained a stipulation that the defendant should have fif- 
 teen days to produce testimony on his part after the examination 
 of a witness named on the part of the complainant had closed ; 
 Meld, that this fact should have been stated in the affidavit pre- 
 sented to the chancellor upon the ex parte application, so that a 
 similar provision might have been inserted in a similar order 
 granted by him ; It was also held, that the affidavit should have 
 stated that the time to produce witnesses had been once extended 
 by stipulation, so that the chancellor might have taken this cir- 
 cumstance into consideration in deciding upon the propriety of 
 granting further time. Ibid. 
 
 Where one of the parties has obtained a special order enlarging 
 the time to produce beyond the forty days limited by the original 
 order, the eighty-sixth rule does not preclude the adverse party 
 from applying ex parte, for a similar order, at any time before the 
 
 17 
 
194 APPENDIX. 
 
 time limited by the extended order has actually expired. Osgood 
 V. Joslin, 8 Paige, 195. 
 
 If one party obtains an order to extend the time to produce wit- 
 nesses, it operates as an enlargement of the forty day rule ; and . 
 both parties have a right to take testimony during the extended 
 time. Ihid. 
 
 (i) Examination of parties to cause, effect thereof. 
 
 A certificated bankrupt or insolvent, against whom no relief can 
 be had, is not a necessary party to a suit in equity ; but if he be 
 made a defendant he cannot be examined as a witness in the 
 cause until an order has been obtained upon motion for that pur- 
 pose. DeWolfv. Johnson, 10 Wheat. 367. 
 
 A complainant cannot examine a sole defendant as a witness 
 against himself; because no decree can be had against a party 
 defendant upon facts to which he is examined as a witness. 
 Palmer v. Van Dorm, 2 Edw. 192 ; Goold v. OfKeeffe, 1 Beat. 356 ; 
 Fulton Bank v. Sharon Canal Go. 4 Paige, 127. 
 
 If there be more defendants than one, an examination of a 
 defendant may be had, and a decree obtained against another de- 
 fendant upon such facts ; but a decree cannot be had against the 
 party examined embracing such facts. Id. 192. 
 
 Where a defendam has been examined under the usual order, 
 as a witness, a complainant may have a decree against him upon 
 other matters, to which he was not examined. Ihid. 
 
 A defendant who is charged by the plaintiff as fraudulently col- 
 luding with his co-defendant in regard to the transactions sought to 
 be impeached, cannot be a witness for his co-defendant, especially 
 when he has an interest in the cause arising from his liability for 
 costs, and his ultimate responsibility if the charge is proved. 
 Whipple V. Lansing, 3 John. Ch. 612. 
 
 A court of chancery may direct the reference of a case to a 
 master with authority to examine the defendants on oath, and 
 such examination will have the effect of an answer. Templeman 
 V. Fauntleroy, 3 Rand, 434:. 
 
 Where, on the hearing of a bill for an account between part- 
 ners, there is great obscurity in the proofs, the chancellor ought 
 not to pronounce a final decree, but should appoint commissioners 
 with power to take explanatory evidence and to put interrogato- 
 ries to the parties on oath. Simms v. Kirtley, 1 Monroe, 81. 
 
EXILES OF EVIDENCE IN CHANCERY. 195 
 
 Where one party is examined as a witness against another party 
 in the same cause, he may be cross-examined like any other wit- 
 ness by the party against whom he is called, and his evidence 
 cannot be used in his own favor. Benson v. LeJRoy, 1 Paige, 
 122. 
 
 But where a party is examined before a master in relation to his 
 own rights, and the examination is in the nature of a bill of dis- 
 covery, he cannot be cross-examined by his own counsel, nor can 
 he give evidence in his own favor any further than his answers 
 are responsive to the questions put to him. Ibid. 
 
 He may, however, accompany his answer by explanations re- 
 sponsive to the interrogatories which may be necessary to rebut 
 any improper inference arising from such answer. Ihid. 
 
 A mere naked trustee who is a party, is a competent witness in 
 a controversy in which a creditor seeks to set aside a deed on the 
 ground of fraud. Harvey v. Alexander, 1 Rand, 219. 
 
 Where a defendant has been examined as a witness by a co-de- 
 fendant without an order of the court for that purpose, and the 
 complainant also examines him, without objection, it is too late to 
 object to the witness at the time of hearing ; the complainant should 
 have moved to suppress the depositions before hearing, and then 
 a further opportunity may be given to examine the witness if 
 necessary. Sharp v. Bunk, Halst. Dig. 173. 
 
 Before a party can be examined as a witness an order ought to 
 be obtained for that purpose, and that order is to be produced 
 when the party attends to be examined. Ibid. 
 
 This order is of course before a decree, but after a decree a 
 special ground must be made. Ibid. 
 
 An order to examine one of the defendants as a witness cannot 
 be taken until the cause is at issue, for the answers may make it 
 unnecessary. Decker v. Caakey, Halst. Dig. 174. 
 
 Where a deed of trust is impeached as fraudulent, the trustee 
 may be a witness, if he has no interest in the support of the deed, 
 and no participation in the alleged fraud. Taylor v. Moore, 2 B^nd, 
 663. 
 
 Where a bill filed by a corporation aggregate to foreclose a 
 mortgage, is taken as confessed against an absentee, and a refer- 
 ence is made to a master, to take proof of the facts and circum- 
 stances stated in the bill, it is proper, under the Revised Statutes 
 of New York (2 R. S. 187, S, 228) to examine the officers of the 
 
196 APPENDIX. 
 
 corporation as to the payments which ought to be credited on the 
 mortgage. Ontario Bank v. Strong, 2 Paige, 301. 
 
 If a nominal plaintiff in an action at law, but who has no real 
 interest in the suit, is the only witness by whom the defendant can 
 establish his defence to such action, the defendant may file a biU 
 in chancery against the real plaintiff to restrain the proceeding at 
 law, and to hare the controversy settled in this court, where such 
 nominal plaintiff may be examined as a witness. Norton v. Woods, 
 5 Paige, 249. 
 
 On references to take and state an account, the court may direct 
 the parties to be examined on oath by the master. Sort v. Ten 
 Eyck, 2 John. Ch. 515. 
 
 If a complainant examines a defendant, who is primarily liable 
 for the payment of the demand for which the suit is brought, as a 
 witness against a co-defendant, who is only secondarily liable, he 
 cannot have a decree against either of those defendants, upon that 
 part of the case to which he examined one of them as a witness. 
 Bradley v. Boot, 5 Paige, 633. 
 
 The rule that a complainant cannot have a decree against a de- 
 fendant whom he has examined as witness in the cause, does not 
 apply to the case of a mere female defendant, as an executor or 
 trustee, against whom no personal decree is sought, and who has 
 no personal interest in the question as to which she is exaillined as 
 a witness against her co-defendant ; nor to the case of a defendant 
 who, by his answer, admits his own liability, or who suffers the 
 bill to be taken as confessed against him. Ibid. 
 
 Where a defendant admits that he is pirimarily liable to the com- 
 plainant for the payment of the demand for which the suit is 
 brought, he may be examined either by the complainant or by his 
 co-defendant as a witness in the cause. Ibid. 
 
 Where the complainant examined a witness against the original 
 defendants in the cause, and it appeared upon such examination 
 that the witness was primarily liable for the payment of part of 
 the claim for which the suit was brought, and he was thereupon 
 made a defendant by a supplemental bill, and suffered such bill 
 to be taken as confessed against him; Held, that the complainant 
 was not precluded from having a decree against the defendant 
 who had thus been examined as a witness before he was a party 
 to the suit. Ibid. 
 
 A co-plaintiff or a co-defendant may be examined as a witness 
 
EULES OP EVIDENCE IN CHANOEET. 197 
 
 if he has no interest in the matter, or none in that part of it as to 
 •which separate relief may be given. Lingan v. Henderson, 1 Bland, 
 268. 
 
 If a co-defendant has been received by the plaintiff as a witness 
 to the whole, the bill as to him must be dismissed. Ibid. 
 
 A party examined before a master by order of the court on 
 matters in reference, has a right to give every explanation in 
 relation to the matters inquired about, but is not thereby made a 
 witness for himself as to other distinct matters ; and his testimony 
 having been thus taken at large, and being important, a new 
 reference was ordered. Armsby v. Wood, Hopk. 229. 
 
 (k) Of defendant on interrogatories. 
 
 The master's certificate to the insuflciency of an examination 
 of a party on interrogatories does not require an order of confor- 
 mation. Case V. Abeel, 1 Paige, 630. 
 
 If the master's certificate is not excepted to within eight days 
 after notice of the filing thereof, it becomes absolute of course. 
 Ibid. 
 
 The practice in relation to answers for insufficiency must be 
 adopted and pursued as far as the same is applicable to exceptions 
 to the examination of a party. Ibid. , 
 
 If the examination is reported insufficient, the master may allow 
 new interrogatories to be added by the adverse party, and the 
 exceptions and new interrogatories must be answered together. 
 Ibid. 
 
 If the examination is certified by the master to be sufficient, the 
 adverse party cannot re-examine the defendant to the same point 
 without the permission of the court. Ibid. 
 
 (1) Commission to examine. 
 
 (1) When and koto granted, effect of. 
 
 (2) Execution and return of. 
 
 (1) When and how granted, effect of. 
 
 A deposition was taken by C, the second mortgagee, and those 
 claiming under him, under a special commission awarded by the 
 chancellor to take the deposition, subject to all just exceptions ; 
 and B, the first mortgagee, prayed and obtained a like special 
 
 17* 
 
198 APPENDIX. 
 
 commission to take A's deposition, but did not act under his coni- 
 mission ; HelA, that B, by obtaining this special commission him- 
 self, was not precluded from objecting to the competency of the 
 deposition taken under C's commission. Beoerly v. Brooke, 3 
 Leigh, 425. 
 
 In all cases where a general commission issues for taking depo- 
 sitions upon an answer and replication in any suit in the court of 
 chancery, the cause must remain at rules six months from the time 
 of filing the replication before it is set down for hearing, unless 
 this be dispensed with by consent of parties entered on the record. 
 Dolby V. Price, 2 Wash. 191. 
 
 After a cause has been argued, a commission to take depositions 
 cannot be obtained but upon an affidavit of the party and by spe- 
 cial order of the com-t for that purpose. Anonymous, 4 Hen. & 
 Munf. 409. 
 
 A commission to examine one of the defendants as a witness, 
 should be awarded on the motion of the plaintiff as a matter of 
 course, saving all just exceptions. Plainville v. Brovm, Id. 482. 
 
 A commission cannot issue at the instance of a defendant to 
 examine the plaintiff as a witness in the cause. Boss v. Carter, 
 Id. 488. 
 
 In issuing a commission to take proof of a wUl in a foreign 
 country for the purpose of establishing the same and having it 
 recorded as a wiU of real estate within this State, the same notice 
 of the application for a commission must be given to the heirs at 
 law of the testator and the persons interested in contesting the 
 wUl as is required upon proving a will before a surrogate. Matter 
 of Atkinson, 2 Paige, 214. 
 
 Persons authorized to contest the validity of the will may join 
 in the commission and may bc permitted to name a commissioner 
 on their part, and they will also be entitled to reasonable notice 
 of the time and place of executing the commission. Ibid. 
 
 On a bill or petition on oath in the same case, a commission 
 may be granted to take the testimony of an aged or infirm wit- 
 ness, die bene esse. Lingan v. Henderson, 1 Bland, 238. 
 
 An objection before the commissioners, that the evidence is not 
 such as is required by the statute of frauds, if that statute be not 
 relied on as a defence, cannot be allowed. Id. 248. 
 
RULES OF EVIDENCE IN CHANCERY. 199 
 
 (2) Execution and return of. 
 
 When the deposition of a party is taken under a special commis- 
 sion subject to all just exceptions, whether the deposition be 
 excepted against on the ground of incompetency or not, it behooves 
 the court to examine and decide the question of competency ; and 
 though the deposition be read at the hearing in the court of chan- 
 cery without exception, yet if on an appeal from the decree, the 
 appellate court finds the depositions incompetent evidence by 
 reason of the deponent's interest in the event, it will pay no regard 
 to the deposition. Beverly v. Brooke, 2 Leigh, 245. 
 
 Under the act of the 17th April, 1823, parties and their counsel 
 have a right to be present at the examination of witnesses and to 
 cross-examine in all cases, and this as well upon commissions 
 issued to examine vritnesses out of the State as in other cases. 
 Steer v. Steer, Hopk. 362. 
 
 When a commission from the court of chancery to take testi- 
 mony is returned, it is opened by the chancellor or his register, 
 and objections of every kind to the evidence are taken and con- 
 sidered at the hearing of the cause. Strike v. MWoncdd, 2 liar. 
 & Gill. 192. 
 
 XIX. Evidence in Appeals. 
 
 In appeals to the Supreme Court of the United States from the 
 circuit courts in chancery cases the parol testimony which is heard 
 at the trial in the court below ought to appear in the record. 
 Conn V. Perm, 5 Wheat. 424. 
 
 Appellate courts which proceed according to the course of the 
 civil law may allow the parties to introduce new allegations or 
 further proofs. Scribner v. Williams, 1 Paige, 650. 
 
 But it is nqt a matter of course to receive further proofs upon an 
 appeal. Ibid. 
 
 If the appellant wishes to offer new evidence, he should, in 
 his petition of appeal, ask leave to produce further proofs, and 
 state his excuse for not producing such evidence in the court 
 below. Ibid. 
 
 Upon an appeal from a decree or order of a vice-chancellor, the 
 appeal must be decided upon the papers which were read or used 
 before the court below, and where a question arises upon the hear- 
 ing of the appeal as to what papers were before the court below, 
 if such papers are not referred to in the order or decree appealed 
 
200 APPENDIX. 
 
 from, resort must be had to the minutes of the clerk, and to the 
 papers marked by him as read, to ascertain what papers were 
 read or used before the vice-chancellor. Bloodgood v. Clark, 4 
 Paige, 574. 
 
 Where a party opposing a motion on petition has papers to read 
 in opposition thereto, and the application is decided in his favor 
 upon the opening of the case on the papers of the adverse party, 
 if he desires to have the benefit of his papers in opposition to the 
 application upon an appeal from the decision or wishes to be al- 
 lowed therefor upon the taxation of his costs, he should have such 
 papers entered in the minutes of the court below, and marked as 
 read. Ibid. 
 
 Depositions read on the trial in the court below, without objec- 
 tion, cannot be rejected in the appellate court. Johnson v. Banhin, 
 3 Bibb, 87. 
 
 If an objection to the interest of a witness be not made at the 
 hearing in the court below, it cannot be made in this court. Bes- 
 pass V. Morton, Hard. 226. 
 
 Where interrogatories are excepted to as leading, the chancellor 
 ought to expunge them and the answers to them, so that they 
 may not be certified here. If this be not done, this court will con- 
 sider the cause without such questions or answers. Doran v. Shaw, 
 3 Monroe, 415. 
 
 If a deposition be read upon the hearing of a cause below, and 
 it does not appear to have been excepted to, no exception can be 
 taken in the Supreme Court, and' defects in the certificates or the 
 deposition itself, will be presumed to have been waived. Pillow 
 V. Shannon, 3 Yerg. 508. 
 
 Upon the hearing of a cause before the vice-chancellor, it is the 
 duty of the clerk to enter in the minutes of the court all the papers 
 read, or which are agreed to be considered as read, or which are 
 offered in evidence and overruled by the court, and a certified 
 copy of the clerk's minutes is the proper evidence of those facts 
 upon the hearing of an appeal to the chancellor. Studwdl v. 
 Palmer, 5 Paige, 166. 
 
 The party whose duty it is to furnish the papers on the hearing 
 of an appeal, should be prepared with the proper evidence to show 
 what papers were read before the vice-chancelloi% and, if required, 
 to show that the papers furnished by him are correct copies. Ihid. 
 
 If the clerk by mistake neglects to enter in his minutes any 
 paper which was read, or considered as marked and read before 
 
EULES OF EVIDENCE EST CHANCERY. 201 
 
 the vice-chancellor, the proper course is to apply to the court be- 
 low to correct the minutes. But no paper which was not before 
 the vice-chancellor or offered and rejected, can be used on hearing 
 of an appeal from his decision. Ibid. 
 
 On an appeal from an interlocutory order of the court of chan- 
 cery, this court will not permit evidence to be read, which was 
 not read in the court below, nor will they hear and decide on the 
 merits, unless the merits have also been heard in the court below. 
 Deas V. Thome, 3 John. 543. 
 
 I. General Principles and Bules. 
 
 The rule in chancery is, if the answer admits a fact, but insists 
 onmatterby way of avoidance, that the complainant need not prove 
 the fact admitted, but the defendant must prove the matter in 
 avoidance. Clarke v. White, 12 Peters' Rep. 178. 
 
 The rule at law that the evidence must substantially support 
 the plaintiffs declaration, is applicable to bills in chancery. Mof- 
 Jats V. Clements, 1 Scam. 384. 
 
 An averment in a bill that a payment of a note was made on the 
 day it became due, is not supported by proof that the money was 
 paid or tendered at a subsequent and remote day. Ibid. 
 
 Upon a bill by complainants as infants, claiming the equitable 
 interposition of chancery in their behalf, the fact of infancy is a 
 material allegation, and should be sustained by proof, if not ad- 
 mitted by the answers. Boyd v. Boyd. 6 Gill & Johns. 25. 
 
 An executor must expressly aver an insufficiency of assets ; 
 otherwise he cannot prove it and avail himself of the fact. Gontee 
 V. Dawson, 2JBland, 264. 
 
 When there is a presumption that a fact exists, he who makes 
 an allegation to the contrary must prove it. Higdon v. Higdon, 6 
 J.J. Marsh. 51. 
 
 He who alleges that a deed was delivered on a different day 
 from that of its date, must prove it. Ibid. 
 
 On a plea of no consideration, the onus probandi lies on the party 
 pleading it. Ibid. 
 
 When a rescission of an executory contract for land is sought by 
 a vendee, alleging that the vendor has no title, and demanding 
 exhibition of it, vendor must prove his title to the land. Ibid. 
 
 On the trial of the validity of a will, on bill filed, the defendant 
 is bound to prove every part necessary to authorize the probate 
 
202 APPENDIX. 
 
 of a will in the county court, not admitted by the pleadings. The 
 defendant holds the affirmative on the tri^l before the jury. Rog- 
 ers V. Thomas, B. Monroe, 394. 
 
 An allegation in an answer which is not responsive to the biU, 
 is not evidence ; and it lies upon the defendant to establish it by 
 proof. Flagg v. Mann, 2 Sum. 489. 
 
 Where, about the time of execution and delivery of a deed, the 
 grantor was generally sane and capable of comprehending busi- 
 ness of that character, the burden of proof lies upon those who 
 seek to avoid the deed on the ground of insanity or imbecility of 
 mind. Morse v. Slason, 13 Verm. 296. 
 
 The onus prohandi lies upon the party seeking to avoid the oper- 
 ation of the statute of limitations, where it is prima facie a good 
 defence, by showing that it never in fact commenced running. 
 Shropshire v. Shropshire, 7 Yerg. 165. 
 
 A person charging usury, where part of the loan was advanced 
 in goods and stock, must prove that they were put off at a price 
 beyond their value. Grosvenor v. Flax and Hemp Man. Co. 1 B. 
 Monroe, 394. 
 
 The deposition of a disinterested person who afterwards becomes 
 interested may be read. Hitchcoeh v. Skinner, 1 Hoffm. 21. 
 
 Transactions, which show the general habits of a person, his 
 intemperance, extravagance, and thoughtlessness, are competent 
 evidence in a case of fraud and imposition. Haufman v. Swar, 
 5 Barr's Pa. St. Rep. 230. (1847.) 
 
 The rule in equity is that an answer responding to the allega- 
 tions and charges made in the bill, and containing clear and posi- 
 tive denials thereof, must prevail until it is overcome by the testi- 
 mony of two witnesses, or by one witness and other attending 
 circumstanees supplying the want of another. Daniel v. Mitchell, 
 1 Story's Rep. 172, 198. (1842.) 
 
 Where a party is charged with fraud in a particular transaction, 
 evidence may be given of previous fraudulent transactions between 
 him and third persons. And, when the intention or guilty knowl- 
 edge of a particular matter is material to the issue of the case, 
 collateral facts tending to establish such intention and knowledge 
 are proper evidence. Bottomley v. The United States, 1 Story's 
 Rep. 135. (1842.) 
 
 It is against equity to permit a party to take advantage of a course 
 of conduct, pursued by anotherin consequence of the declared inten- 
 
EXILES OF EVIDENCE IN CHANCERY. 203 
 
 tion of the claimant made with full knowledge of his rights. Dar- 
 nal V. Bill, 12 Gill & Johns. Rep. 388. (1845.) 
 
 It is in many instances perfectly consistent to pm-suc two differ- 
 ent remedies, when either may avail, taking care only to obtain 
 the fruits of one. Lee v. AdirCrs of Botalar & Bell, 12 Gill & 
 Johns. Rep. 323. (1845.) 
 
 The courts of the United States, in exercise of their maritime 
 and admiralty jm'isdiction, are exclusively governed by the legis- 
 lation of Congress, or, in the absence thereof, by the general mari- 
 time law ; and no State can, by its local legislation, narrow or 
 enlarge such jurisdiction. The Barque Ohusan, 2 Story's Rep. 455. 
 (1845.) 
 
 Facts, which are a part of the experience and common knowl- 
 edge of the day, are legitimate grounds for the judgment of a court. 
 The principle is applicable to the usual duration of voyages aci'oss 
 the Atlantic Ocean by steam and other packet ships. Openheim v. 
 Leo Wolf, 3 Sanford's Ch. Rep. 571. (1846.) 
 
 The deposition of a witness taken down after he was sworn, 
 but which he refused to sign, was allowed to be read in evidence. 
 Clarke v. Sawyer, 3 Sanford's Ch. Rep. 352. (1846.) 
 
 The court of chancery is as much restricted as any other court 
 to the issue made by the pleadings, and while it endeavors to avoid 
 technical and narrow grounds of objection, it cannot, without 
 losing sight of technical principle, admit evidence of a different 
 charge from that pleaded. Green v. Storm, 3 Sandford's Ch. Rep. 
 305. 
 
 In ascertaining the early and continuing usage and doctrines of 
 a sect of Christians, resort may be had to history, and to standard 
 works of theology of an era prior to the existence of the dispute 
 or controversy. When it is shown what such particular usages 
 and doctrines were, it is incumbent on those who allege a depai-t- 
 ure therefrom in the founders of the particular congregation, or 
 the donors of its temporalities, to prove such departure. Kniskem 
 v. The Lutheran Churches, Wieting, el al. 1 Sandf. Ch. Rep. 439. 
 
 n. Presumptions. 
 
 The lapse of years cannot fail to raise an unanswerable pre- 
 sumption against the validity of an antiquated claim of any kind. 
 Eephurri's Case, 3 Bland, 95. 
 
204 APPENDIX. 
 
 The lapse of twenty years will raise the presumption of the pay- 
 ment of a legacy. Barnwell v. Barnwell, 2 Hill's Ch. 233. 
 
 After the lapse of nineteen years from the legatee coming of 
 age, and where the legacy had been paid thirty years before to 
 his father, and the executor was dead and his estate administered 
 and disposed, such presumption will arise against the legatee. 
 lUd. 
 
 A party who alleges fraud in a mortgage or other deed, is not 
 entitled to an unlimited time for the prosecution of his rights, after 
 his knowledge of the existence of those rights, and of the fraud, 
 but in such case often an unreasonable delay, the law will pre- 
 sume a payment or discharge of the equity. Hatfield v. Montgom- 
 ery, 2 Port. 56. 
 
 Where an owner of land and those claiming under him have 
 diverted a part of the water of a spring from its natural course, 
 by an artificial conduit, for the use of the land, and have continued 
 in the uninterrupted enjoyment of the water in that way for twenty 
 years, a grant of the right to direct the water to that extent for 
 the use of the premises will be presumed. Smith v. Adam^, 6 
 Paige, 435. 
 
 Where real estate has been conveyed to trustees for the use of 
 a church, which was afterwards incorporated, the court, after a 
 great lapse of time, will presume a conveyance from the original 
 trustees, or their heirs, to the corporation. Dutch Church, &c. v. 
 Matt, 7 Paige, 77. 
 
 The death of a person who had gone beyond seas, and was never 
 heard of afterwards, was dated from his departure, in order to 
 quiet a title under twenty years' possession. Oodfrey v. Schmidt, 
 1 Cheever's Eq. Kep. 57. 
 
 A person who had been absent, and not heard from for seven 
 years, was presumed to be dead. Tilhy v. TUby. 2 Bland, 436. 
 
 One, who is absent, will be presumed to have lived for seven 
 years, and to have died at the end of that period. Craig v. Craig, 
 1 Bail. Eq. 102. 
 
 From a matrimonial cohabitation, and the acknowledgment of 
 the parties that they were husband and wife, though commenced 
 under a void contract of marriage, a subsequent marriage, after 
 the removal of the disability, may be presumed, such cohabitation, 
 recognition, and general reputation being continued. Bose v. 
 Clark, 8 Paige, 574. 
 
 There is no legal presumption, nor ought there to be an inference 
 
ETJLES OF EVIDENCE IN CHANCERY. 205 
 
 in fact, from the mere circumstance of a person attesting a paper 
 writing as a witness, that such a witness was aware of the con- 
 tents of the paper, and is therefore bound by it when it affects his 
 interest. Plummer v. Barkerville, 1 Ired. Eq. 252. 
 
 If a deed is found in the possession of the grantee, there is a 
 presumption of the due delivery thereof, because then, and not 
 otherwise, it would be in the proper custody. Flagg v. Mann, 2 
 Sum. 489. 
 
 In no case will an ouster of a joint-tenant be presumed from 
 lapse of time, under a period of twenty years, unless aided by 
 other circumstances. Oray v. Oioms, 2 Hill's Ch. 513. 
 
 Where a deed of assignment is absolute upon its face, without 
 any condition whatever attached to it, and is for the benefit of the 
 grantees, the presumption of law is, that the grantees accepted the 
 deed. Tompkins v. Wheeler, 16 Peters, 106. 
 
 Evidence of reasons for delay in enforcing a trust, may be 
 admitted to rebut presumption from laches. 6 Barr's Pa. St. Kep. 
 425. 
 
 The possession of a bond or note by an indorsee is presumptive 
 evidence that it was transferred to him on good consideration be- 
 fore its maturity. The giving of a new note without objection by 
 the drawer on an usurious note held by the indorsee, is of itself an 
 admission that the indorsee is a bona fide holder of the old note, 
 without notice of the usury. In a suit upon a note so given, the 
 holder may rely upon such admission in connection with his pos- 
 session of the old note, to overcome the defence of usury in the 
 latter, and the burden will be cast upon the defendant to prove 
 that the plaintiff had notice of the usury, or received the usurious 
 note without a sufficient; consideration. 3 Sandford's Ch. Rep. 321. 
 
 m. Bill — Answer. 
 
 The principle, that an answer to a bill can only be overthrown 
 by two witnesses, or by one witness and corroborating circum- 
 stances, does not apply to the case of the proof by one witness of 
 of the execution of a written instrument, which contradicts the 
 answer. Where M assigned to P a judgment he held against S, 
 and afterwards in answering a bill in chancery denied that he 
 made such assignment, the proof of assignment by the subscrib- 
 ing witness, is sufficient to countervail the denial of the answer. 
 Thomason v. Smitlison, 7 Port. 144 ; Smith v. Rogers, 1 Stew. & 
 Port. 317. 
 
 18 
 
206 APPENDIX. 
 
 An answer in chancery can only be taken as true, so far as 
 responsive to the bill, where the complainant replies, and puts the 
 answer in issue. But when a complainant neither replies nor puts 
 the answer in issue, by any course indicating an intention to con- 
 test the facts alleged, then the answer must be taken as true. 
 McOowen v. Young, 2 Stew. & Port. 161. 
 
 Where a case is heard on the bill and answer alone, the answer 
 must be taken as true, whether responsive to the bill or not, 
 Lowry v. Armstrong, 3 Stew. & Port. 297 ; Gheney v. Belcher, 5 
 Stew. & Port. 134. 
 
 The answer of a defendant to a bill, filed for the discoveiry of 
 testimony in aid of a trial at law, may be used by the plaintiff on 
 the trial, or not, and if used, any other evidence, consistent with 
 the issue, is not thereby precluded. Cox v. Cox, 2 Port. 533. 
 
 The answer of an assignor is no evidence against the assignee. 
 Taylor v. Morton, 5 J. J. Marsh, 66. 
 
 An answer in chancery acknowledged the receipt from the com- 
 plainant of an assignment of property in part payment of the, de- 
 fendant's demands against him ; but the answer also stated that 
 the defendant had afterwards cancelled the assignment. Held, 
 that the defendant's statement in the answer, that the assignment 
 had been cancelled, was no evidence for him of that fact. Was- 
 sony. Gold, 3 Blackf. 18. 
 
 An answer being inconsistent with the bill is so discredited that 
 one witness may be sufficient. Carter v. Leper, 5 Dana, 263. 
 
 The answer of a corporation, under its corporate seal, which the 
 complainant does not require to be verified by the officers of the 
 company, for the purpose of discovery, is not evidence in favor 
 of the corporation, although it is responsive to the bill. Lovett v. 
 t Steam Saw Mill Association, 6 Paige, 54. 
 
 An allegation in an answer to a bill in equity, set up in evi- 
 dence, not responsive to the bill, and unsupported by proof, must 
 be considered as untrue and out of the case. O'Brien v. Elliott, 15 
 Maine, 125. 
 
 Although an answer on oath is waived by the complainant, the 
 defendant, as in other cases, is entitled to the dissolution of an in- 
 junction, upon a sworn answer denying the whole equity of the 
 bill ; unless the allegations in the bill are supported by the affida^ 
 Tit of a credible and disinterested witness in conformity to the 
 37th rule of the court. Manchester v. Day, 6 Paige, 296. 
 
 Upon an application to dissolve an injunction upon bill and an- 
 
ETJLES OF EVIDEKCE IX CHANCERY. 207 
 
 swer, the defendant's answer is entitled to tlie same credit as the 
 complainant's bill. It, therefore, makes no difference, on such an 
 application, that the bill is supported by the oaths of several com- 
 plainants. Ibid. 
 
 The answer of a defendant, when responsive to the bill, is evi- 
 dence in his favor, though the equity of the complainant's bill is 
 grounded upon the allegation of fraud. Billy v. Barnard, 8 Gill 
 & Johns. 171 ; McDonald v. McLeod, 1 Ired. Eq. 226 ; Lewis v. 
 Owen, 1 Ired. Eq. 290. 
 
 If a cause in chancery be set down for a hearing, on bill and 
 answer, the answer will be taken as true, and if the complainant 
 is entitled to a decree, notwithstanding all the statements in the 
 answer, he must, nevertheless, take his decree, subject to the ex- 
 ceptions claimed by the answer. BooUttleY. OooJcin, 10 Verm. 265. 
 
 Where the bill specially interrogates the defendant as to partic- 
 ular facts which are denied by the bill, and the bill seeks to dis- 
 cover from them, an answer responsive to those interrogatories, 
 and stating affirmatively that the facts do exist, is evidence for the 
 defendants. Jones v. Perry, 10 Yerg. 59. 
 
 When the statement of the biU is defective, in not showing the 
 plaintiff's right, but calls upon the defendant to state his title, 
 &c., and the answer states with precision all the facts, &c., from 
 which it appears that the complainant was entitled to relief, the 
 court wiU decree for complainant, upon the case made in the 
 answer. Maury v. Lewis, 10 Yerg. 115. 
 
 If a matter stated in answer be a direct and proper reply to an 
 interrogatory contained in the complainant's bill, it is evidence for 
 the defendant, though it be in his favor. Alexander v. Wallace, 
 10 Yerg. 105. 
 
 If an answer is not responsive to some charge or interrogatory 
 in the bill, and the answer is replied to, facts alleged in it by way 
 of avoidance, must be proved. Locke v. Trotter, 10 Yerg. 213. 
 
 Where in an answer by two defendants unitedly, the one, an 
 assignor, meets the allegations of the bUl on his own knowledge, 
 and the other, an assignee, on his information and belief; the an- 
 swer of the latter does not fall within the rule requiring two wit- 
 nesses to prevail against it ; nor can it be aided by the answer of 
 the other. Dunbar v. Gates, 1 Hoffman, 185. 
 
 Where there is no allegation or interrogatory in the bill to which 
 the defendant's answer is directly responsive, his answer is not 
 evidence for him. Jones v. Jones, 1 Ired. Eq. 332. 
 
208 APPENDIX. 
 
 The plaintiff alleges in his bill a contract which he cannot 
 prove ; but the defendant in his answer, sets forth a contract in 
 relation to the same transaction, upon which the plaintiff might 
 have had relief, if he had alleged it in his bill. Held, that the 
 plaintiff cannot recover upon these admissions of the defendant, 
 as they show a contract different from that for which he sought the 
 aid of the court of equity ; especially where the defendant does not 
 submit to any decree. Herron v. Cunningham, 1 Ired. Eq. 876. 
 
 A bill against an infant, while he remains a minor, is a bill for 
 relief merely, as the answer of the guardian ad! litem cannot be 
 used either for or against the infant. And if the infant, after he 
 becomes of age, applies and obtains leave to put in a new answer 
 in person, it is proper to allow the complainant to amend his an- 
 swer, so as to waive an answer on oath as to him. Stephenson v. 
 Stephenson, 6 Paige, 363. 
 
 Regularly an infant's answer by his guardian is not evidence 
 against him, because he is not sworn ; and it is only for the pur- 
 pose of making proper parties. It is in reality not the answer- of 
 the infant, but of the guardian only who is sworn. . Boyle v. Tarir 
 nehill, 6 Gill & J. 1. 
 
 The chancellor is not authorized to decree a sale of an infant's 
 interest in land, on the ground that it would be for his beneiit, 
 unless upon proof of that fact, of which neither the infant's an- 
 swer, nor the answer of adult defendants confessing the fact, is 
 evidence to charge the infant. Harris v. Harris, 6 Gill & 
 Johns. 111. 
 
 A positive denial, in an answer in chancery, of a fact within the 
 respondent's knowledge, can be overthrown only by the opposing 
 testimony of two witnesses, or one vrith corroborating circum- 
 stances. Betty V. Taylor, 5 Dana, 598 ; Gray v. Farris, 7 Yerg. 
 155 ; Johnson v. Slawson, 1 Bail. Eq. 463. 
 
 A defendant charged with notice of a lien upon land, at the time 
 he took a mortgage upon it, answers that "he most expressly de- 
 nies, according to his best recollection and belief, that at the tim.e 
 of the execution of the mortgage, or of his being in treaty for it, 
 he had any notice of the claim secured by the lien, and that if it 
 was ever mentioned in his hearing, it must have happened in 
 some other conversation, and in relatjon to other pi'oposals to. sell, 
 long anterior to the contra'ct that did take place ; " Held, that the 
 testimony of one witness who proved the notice, the time when, 
 
EULES OF EVIDENCE IN CHANCERY. 209 
 
 and place where it was given, circumstantially, must prevail 
 against an answer thus qualified. Eun v. Glark, 6 Dana, 57. 
 
 The evidence of a single witness will sustain the allegations of 
 a bill, against the denial of an answer, when the answer taken in 
 a strict literal sense, may be true, though the evidence establishes 
 the allegation in substance, though not in form, and is, therefore, 
 not in direct conflict with the strict literal import of the answer. 
 Amos Y. Eeatherly, 7 Dana, 47. 
 
 It seems, the rule requiring two witnesses to disprove a responsive 
 denial in an answer, does not apply where the defendant refers to 
 facts not within his own knowledge, and where he gives no satis- 
 factory reason for having such knowledge of the facts denied, as 
 would justify a response in the negative. Thus, it seems, two wit- 
 nesses would not be necessary to disprove the answer of an exec- 
 utor, denying an allegation in the bill, referring to facts within 
 the knowledge of the deceased co-executor, where the respondent 
 is a stranger to such facts, and gives no explanation of the man- 
 ner in which he acquired such information. Waters v. Crecgh, 4 
 Stew. & Port. 410. 
 
 An answer by a purchaser denying notice of an unrecorded 
 mortgage, is sufficiently disproved by the positive oath of a single 
 witness, aided by corroborating circumstances. Martin v. Sale, 
 1 Ban. Eq. 1. 
 
 And the testimony of a witness is also sufficient to prove fraud, 
 although it is denied by the answer, if it is corroborated by the 
 circumstances of the case. Rowe v. Cochrd, 1 Bail. Eq. 126. 
 
 The testimony of one witness is insufficient to authorize a decree 
 against the positive denial of the answer. Hudson v. CheatTiem, 5 
 J. J. Marsh, 59 ; Patrick v. Langston, Id. 654 ; MasonY. Peck, 7 Id. 
 391. 
 
 Where there is no positive witness, circumstances alone maybe 
 sufficient to overrule the denial in the answer, even of a person 
 who answers on his own personal knowledge. Long v. White, J. 
 J. Marsh, 228. 
 
 A decree cannot be had upon the testimony of one witness un- 
 supported by circumstances against the plain and direct denial of 
 the defendant in his answer, although the plaintiff swears to his 
 bUl upon obtaining an injunction. Orither v. Caldwell, 1 Dev. & 
 Batt. Eq. 699. 
 
 If an answer be directly responsive to the material facts charged 
 in the bUl, and be clear, precise, and positive in its denial of them 
 
 18* 
 
210 APPENDIX. 
 
 and be not disproved or discredited in this part by what is found in 
 any other part of it, the testimony of a single witness, where there 
 is no circumstance to corroborate it, will not be sufficient to entitle 
 the plaintiff to a decree ; especially if the testimony of such witness 
 be equivocal or evasive. Spright v. Spright, 2 Dev. & Batt. 289. 
 
 The admissions in the answer of one of the defendants in the suit 
 are not evidence against his co-defendant. Judd v. Seaver, 8 Paige, 
 548 ; Singleton v. Gale, 8 Port. 271 ; Qrdham v. Souhlett, 6 J. J. 
 Marsh, 46 ; Calwell v. Boyer, 8 Gill & Johns. 136 ; Dexter v. Arnold, 
 3 Sum. 152. 
 
 But where one copartner, in a joint and several answer put in 
 on oath, makes admissions as to his own acts relative to the busi- 
 ness of the firm, and the other copartner states his belief that 
 what is thus admitted by his copartner is true, a decree may be 
 made against both upon such admissions. Ihid. 
 
 The answer of a defendant in a bill in equity, which is respon- 
 sive to the bill, is admissible in evidence in favor of a co-defend- 
 ant, more especially wheTe such co-defendant being the depositary 
 of a chattel claimed by the plaintiff, defends under the title of 
 the other defendant. Mills v. Oore, 20 Pick. 28. 
 
 In an inquh-y in a master's office the parties proceeded by affi- 
 davit ; Beld, that the plaintiff could not use the answer of one 
 defendant, by way of an affidavit against a co-defendant. Hoare 
 V. Johnstone, 2 Keene, 553 ; Rector v. Rector, 3 Gilm. 105. 
 
 The answer of a defendant is not evidence against the other de- 
 fendants, though prior to the filing of the answer the former may 
 have transferred to the latter all his interest in the subject-matter 
 of the controversy. Jones v. Hardesty, 10 Gill & Johns. 404. 
 
 Evidence to prove facts amounting to fraud is inadmissible under 
 the pleadings averring it was through mistake, and on the sug- 
 gestion by the defendant that he could not deny his agreement. 
 Clarlc V. Partridge, 2 Barr's Pa. St. Eep. 3. 
 
 A paper purporting to be an answer to a bill of discovery, and 
 to have been sworn to before a magistrate in another State, is not 
 admissible in evidence as such, without proof of its having been 
 fQed as such, of the signature of the party, and of the attestation 
 of the officer. DougTity v. Tillay, 4 Blackf. 433. 
 
 To admit such a paper as a voluntary affidavit, proof of the 
 party's signature, and of its having been legally sworn to, is 
 necessary. To admit it as a written acknowledgment, the signa- 
 ture of the party must be proved. Ibid. 
 
RULES OF EVIDENCE IN CHANCERY. 211 
 
 In cases of appeal in admiralty pi-oceedings where damages 
 are discretionary, the burden of proof is on the appellant to show 
 some clear mistake or error in the com't below, either in award- 
 ing excessive damages, or in promulgating an incorrect rule of 
 law, or to offer new and important testimony, which must go to 
 the proof of the new allegations without contradicting the former 
 evidence. Cushman v. Byan, 1 Story's Rep. 91. 
 
 The answer of the respondent on oath in reply to interrogatories 
 does not, in admiralty, constitute positive evidence in his own favor. 
 Its true effect is either to furnish evidence for the other party, or, 
 in a case doubtful in point of proof, to turn the scale in favor of 
 the respondents. Ibid. 
 
 Where an answer in equity is used as evidence, the whole an- 
 swer must, in general, be read. Gtococ^v. Says, 4 Dana, 69. (1836.) 
 
 But an answer may include impertinent matter, which ought 
 not to be received ; and where the court below excluded part of 
 an answer, and there was nothing in the court above to show what 
 that part contained, the latter refused to decide that it was erro- 
 neously excluded. Ibid. 
 
 A bill in equity is not evidence of the facts stated in it against 
 the complainant, unless sworn to by him. Burden, v. Cleveland, 4 
 Ala. 225. 
 
 Under the Alabama Statute (Clay's Dig. 341, § 160), authoriz- 
 ing discoveries in suits at law, it is no objection to the discovery 
 sought, that it does not rest in the exclusive knowledge of the 
 party requii-ed to answer, or it is not shown that the matter cannot 
 be proved by other witnesses. Alston v. Graves, 6 Ala. 174. 
 
 If the party refuses to answer, the court is not authorized to 
 consider the inten'ogatories as confessed, or to submit an account 
 exhibited with them to the jury, without further than what arises 
 from the judgment by default entered under the statute. Ibid. 
 
 The answer of a nominal plaintiff to interrogatories, proposed 
 under the Alabama Statute of 1837, " more effectually to provide 
 for discoveries in suits at law," are not admissible evidence against 
 the party for whose use the suit is brought. Vickers v. Mooney, 6 
 Ala. 97. 
 
 A party cannot read, as evidence for himself, his own answer 
 to a bill of discovery ; but where he proposed reading bill and 
 answer, and the defendant said, "You may read the bill," and he 
 then read both bill and answer, it was held, that the verdict would 
 not, for this reason, be set aside, especially where the reading of 
 
212 APPENDIX. 
 
 the bill and answer would not have varied the result. Thompson 
 V. French, 10 Yerg. 452. 
 
 Where a bill in equity and answer are introduced as evidence 
 merely in a suit at law, the court cannot, on motion, order the 
 respondent to answer further, in order that such answer may be 
 used as evidence in the cause. Lbvmey v. Perham, 2 Appleton's 
 Eep. 235. (Maine). 
 
 Where a defendant, in an action of assumpsit against him in Vir- 
 ginia, filed a bill of discovery against the plaintiff, who answered, 
 and the defendant read the bill and answer to the jury, it was Tidd, 
 that the contents of the answer might be considered by the jury, 
 so far as they credited them, as evidence of the plaintiff's right to 
 recover. Sowenvein v. Jones, 7 Gill & Johns, 335. 
 
 A bill in chancery is not evidence in another suit, to prove any 
 fact contained in it, or evidence for any purpose, except to prove 
 that such a bill was filed. Adams v. McMillan, 7 Port. 73. (Ala- 
 bama.) 
 
 An answer in chancery is competent evidence against a party 
 in an action at law, and when introduced, all its statements are 
 made evidence. Boherfs v. Tennell, 3 Monroe, 247. (Kentucky.) 
 
 But a subsequent answer to an amended bill cannot, in such 
 case, be so admitted for the respondent. Ihid. 
 
 The answer of a party in one suit is evidence against such party in 
 any other suit ; but the bill, to which it is an answer is not evidence 
 for the party filing it, and cannot be used or read further than is 
 necessary to explain the answer. Clarker. Rohinson, 5 B. Monroe, 56. 
 
 A trustee holding the legal title to property is not to be pre- 
 sumed to make admissions adverse to the interests of those for 
 whom he acts, and such admissions are therefore competent, 
 though not conclusive, evidence. Helm v. Steele, 3 Humph. 472. 
 
 An answer to a bill in equity is not admissible as evidence in an 
 action at law, except against the party making it as an admission. 
 Bien v. WeitJiarspoon 1 How. (Miss.) 28. 
 
 The answer of a trustee, in the trustee process, is not admissi- 
 ble as evidence for him in another action in favor of one not a 
 party to the\'rustee process. Edmondv. Caldwell, 3 Shep. 340. 
 
 A court of admiralty, being judge both of the law and the fact, 
 is not confined to the strict rules of the common law, in respect 
 to the admission of evidence. Elwell v. Martin, Ware's Rep. 53. 
 
 In the admiralty, the libellant is required to verify the debt or 
 cause of action, on which the libel is founded, by his oath. In 
 
ETTLES OF EVIDENCE IN CHANCERY. 213 
 
 like manner the respondent is required to verify liis answer by 
 oath. Satson v. Jordan, Ware's Rep. 385. 
 
 There is no rule in the admiralty, like that in equity, which pre- 
 cludes the court from making a decree against a denial by the 
 answer of any matter alleged in the libel unless it is disproved by 
 two witnesses. Ibid. 
 
 Each party in admiralty has a right to require the personal an- 
 swer of the other party, under oath, to any interrogatories touch- 
 ing the matter in issue. The David Pratt, Ware's Rep. 495. 
 
 If the defendant refuses to answer any such interrogatories pro- 
 pounded by order of the court, the charge in the libel to which the 
 interrogatory relates will be taken pro confesso. Ibid. 
 
 The answers to such special interrogatories are evidence in the 
 the cause as well in favor as against the party answering. Ibid. 
 
 Courts of admiralty do not recognize the rule in equity requir- 
 ing two witnesses and strong corroborative circumstances in order 
 to overcome the denial in the answer. Sherwood v. Sail, 3 Sum- 
 ner's Rep. 127. 
 
 A charg3 in general terms in a bill, when it is the point on which 
 the merits af the case turn, and does not come in collaterally and 
 incidentally, will warrant the production of evidence to particular 
 facts. Aiken v. Ballard, Rice's Eq. 13. (South Carolina, 1838.) 
 
 In general, the statements of a bill in equity are not evidence 
 against the plaintiff; when, however, he has sworn to the bill, they 
 are evidence against him. Cooper v. Bay, 1 Richardson's Eq. 24. 
 
 The testimony of one witness, although in some degree sup- 
 ported by corroborating circumstances was held insuflScient to dis- 
 prove defendant's answer. Maddox v. Sullivan, 2 Richardson's 
 Eq. 4. 
 
 Where the testimony of a witness and corroborating circumstan- 
 ces are relied on to disprove defendant's answer, the circumstan- 
 ces must themselves be such, that, standing alone, a reasonable con- 
 clusion, as to the truth of the fact, can be drawn from them. Ibid. 
 
 A bill in equity by a bank, sworn to by the cashier, is competent 
 evidence against the bank in a subsequent suit between the same 
 parties. North Western Bank v. Nelson, 1 Grattan's Rep. 105. 
 (Virginia, 1844.) 
 
 The answer not denying the charge in the bill, and a copy of a 
 decree in a previous case being filed as proof of the charge, and 
 not objected to, the decree is prima facie evidence. Roberts v. Cal- 
 vin, 3 Grattan's Rep. 358. (1846.) 
 
214 APPENDIX. 
 
 In an answer in equity, as well as in a plea in a suit at law 
 founded on a specialty, where the defence is usury, the terms of 
 the agreement and quahtum or rate of the usurious premium or 
 interest must be specifically stated, and the proof must come up 
 to the statements in the pleadings. Howe v. Phillips, 2 Sandf. 
 Ch. 14. 
 
 Proof of the plaintiff's admissions that he had taken usury, will 
 not support a plea setting out a particular sum or rate per cent. ; 
 nor will proof that he received a certain rate per cent, sustain a 
 plea which alleges the taking a sum in gross which does not cor- 
 respond with the rate per cent. Ihid. 
 
 Where the answer charged that the mortgagee exacted $ 112.60 
 for usury, and the proof consisted of his admission that he had 
 taken usury on the mortgage, also that the mortgagors had paid 
 him more than seven per cent., and that they had paid him ten or 
 twelve per cent. ; neither of which rates would produce the sum 
 liamed ; Held, that the proof did not support the answer. Ibid. 
 
 Where the answer stated a contract as a sale and purchase of 
 a foreign exchange, without any averment that it was a cover for 
 a loan, or that there was an application for a loan which assumed 
 the form of a sale, the defendant cannot prove those facts, or insist 
 upon them, although he has inserted a general allegation that the 
 contract was usurious. Holford v. Blatchford, 2 Sandf. Ch. 149. 
 
 An answer stated execution and delivery of an assignment in 
 trust for creditors, and referring to the instrument, averred that a 
 copy of it was set forth in a schedule annexed, to which the de- 
 fendant referred as proof of his answer. The answer then stated 
 the recording of the instrument on the day' of its date, and men- 
 tioned the book in which it was recorded. The schedule contained 
 the assignment at length, acknowledged before a commissioner of 
 of deeds ; Held, that the deed might be read at the hearing under 
 these allegations. New v. Bane, 3 Sandf. Ch. 190. 
 
 Where a bill stated the indorsing of a note by the defendant, 
 payable at a particular place, and the answer admitted the indorse- 
 ment of the note, without any qualification, the defendant cannot 
 prove the place of payment was inserted after the indorsement of 
 it. Smedbwg v. Wliittlesey, 3 Sandf. Ch. 321. 
 
 Testimony taken by the complainant on a supplemental bill can- 
 not be read against those defendants in a prior suit, who were not 
 made parties in such bill. Borst v. Boyd, 3 Sandf. Ch. 501. 
 In the defence of usury the proof must strictly sustain the alle- 
 
EULES OP EVIDENCE IX CHANCERY. 215 
 
 gation. So when in an answer tlie usurious agreement was 
 stated to be that H was to advance the borrowers $ 2,000, and D 
 was to give them his notes, one for $ 150, and one for $ 450, mak- 
 ing the $ 2,600 for which the security was given ; and the proof 
 showed an agreement by which H was to advance $ 2,052 in cash, 
 and $ 648 in the notes of D, one for $ 414, and the other for $ 140, 
 it was held a fatal variance. Helfield v. Newton, 3 Sandf. Ch. 
 664. 
 
 Where a party setting up the defence of usury alleges that cer- 
 tain bonds or evidences of debt were advanced by the lender, and 
 the proof showed that he advanced cash, the variance was held 
 fatal. The Farmers' Loan and Trust Company v. Ferry, 3 Sandf. 
 Ch. 339. 
 
 In an interpleading suit, where it appears by the answer of each 
 defendant, that he claimed the fund in dispute from the complain- 
 ant, no further evidence of that fact need be proved to entitle the 
 complainant to a decree. Balcher v. Crawford,'3 Sandf. Ch. 380. 
 
 IV. Affidavits. 
 
 An affidavit taken before a commissioner of deeds de facto, who 
 is exercising such office under color of an appointment by the 
 governor and senate, may be read in a suit between other per- 
 sons ; and the court will not inquire collaterally into the legality 
 of such appointment. Parker v. Baker, 8 Paige, 428. 
 
 An affidavit sworn to before a master in chancery in another 
 State, who was not a commissioner appointed by the State of 
 North Carolina, is regular in the latter State. Allen v. State Bank, 
 1 Dev. & Batt. 7. 
 
 On 'an application for an injunction, the plaintiff may read affi- 
 davits filed before making the answer, in order to support tlie 
 bill, or to contradict the answer ; but no affidavits filed subse- 
 quently to the making of the answer can be admitted in evidence. 
 Kinsler v. Clarke, 2 Hill's Ch. 620. 
 
 The general rule is that when an injunction has been obtained 
 upon the affidavit of the complainant alone, and the defendant 
 moves, upon filing his answer, to dissolve the injunction, affidavits 
 cannot be read upon the argument gf the motion, either in sup- 
 port of the bill or answer. Merwin v. Smith, 1 Green's Ch. 182. 
 
 There may be exceptions to the rule. In cases of waste, affi- 
 davits are admissible to prove acts of waste. But affidavits wiU 
 
21& APPENDIX. 
 
 not be heard to prove allegations made in the bill, which are not 
 denied by the answer. Mervrin v. Smith 1 Green's Ch. 182. 
 
 Where the answer states new matter, not responsive to the bill, 
 which is relied on as a ground for dissolving the injunction, the 
 complainant may read affidavits in contradiction of such new mat- 
 ter. Ibid. 
 
 Ordinarily it is of course to dissolve an injunction, if the answer 
 denies the whole merits ; and the plaintiff cannot, upon a motion 
 to dissolve the injunction, read affidavits in contradiction to the 
 answer. It is not so in cases of special injunctions. Poor v. Carle 
 ton, 3 Sum. 70. 
 
 After answer, affidavits may be read by the plaintiff to support 
 the injunction, as well as by the defendant ag.ainst it ; and this may 
 be done, although the answer denies the substantial facts of the 
 bill, and the affidavits of the plaintiff are in contradiction of the 
 answer. It seems, the practice iu this respect is more liberal in 
 America than in England. Ibid. 
 
 V. Decrees and Judicial Proceedings. 
 
 In a proceeding in chancery to subject the lands of the testator 
 in the possession of the heirs and legatees, to the payment of debts, 
 a judgment against the executor is no evidence to charge the heirs 
 and devisees. Darington v. Borland, 3 Port. 10. 
 
 But such judgment would be sufficient evidence of a present- 
 ment of the demand, within the time prescribed by the statute of 
 non-claims, if the demand were not otherwise liable to that objec- 
 tion, in Alabama. Ibid. 
 
 The recital in a decree, that an order to take a bill pro confesso 
 unless, &c., had been duly served, is sufficient evidence of the 
 fact of service in the appellate court. Fitzhugh v. WPlierson, 9 Gill 
 & Johns. 51. 
 
 A decree against executors of an executor is prima facie evidence 
 against the legatee of the first testator, on a bill to charge him 
 with the legacy. MMvUen v. Brown, 2 Hill's Ch. 460. 
 
 There being no privity between real and personal representa- 
 tives of a deceased person, a judgment against the administrator 
 is not evidence against the heir, unless the heir has been a privy 
 to such suit. WGoy v. NicTwls, 4 How. 31. 
 
 A suit against the representatives of an estate for the purpose 
 of subjecting the assets of a deceased partner to the payment of a 
 
EULES OF EVIDENCE IN CHANCERr. 217 
 
 judgment against the fii-m, is a new and distinct proceeding 
 against a new party ; and all the facts must be established by tes- 
 timony in the ordinary manner. Marr v. Soutkwarh, 2 Port. 
 351. 
 
 The judicial decisions of sister states are entitled to full effect 
 where the courts had jurisdiction over the person, subject, or thing. 
 Oldham v. Bobinson, 1 B. Monroe, 334. 
 
 VI. Deeds, Writings, Boohs, &c. 
 
 Objection to a deed as evidence comes too late in an appellate 
 court, when it was read without objection on the trial below. 
 Thurston v. Mastroson, 9 Dana, 233. 
 
 A deed under which possession has been held for thirty years, 
 may be read without proof of its execution. Plummer v. Basher- 
 ville, 1 Ired. Eq. 252. 
 
 Documentary evidence, set out or distinctly referred to in the 
 pleadings, and which is of itself evidence without further proof, 
 such as exemplifications of records, deeds duly acknowledged, &c., 
 may be read at the hearing, without notice to the adverse party, 
 or any order previously obtained for that purpose, although made 
 an exhibit before the examiner. Pardee v. DeGala, 7 Paige, 132. 
 
 A trustee accounting may read letters to show the information 
 on which he acted for the estate. In re IfFarland, 4 Bai'r's Pa. 
 St. Kep. 149. (1846.) 
 
 W being indebted to E, and desiring forbearance, procured N 
 to advance his securities for the amount, and W gave to N his 
 bond for the same sum, and transferred divers effects to N. The 
 bond recited the transfer of the latter, and stated it to be to secure 
 the bond. With the bond, the transfer, and the effects, W de- 
 livered to N a letter, giving a history of the transaction, and stat- 
 ing that the effects were transferred to be held in trust for the 
 payment of N's securities to E. The letter was accepted without 
 objection, and it conformed to the verbal agreement ; Held, 1. 
 That the transfer by W to N, the bond, and W's letter were to 
 be construed together, as if their terms had been brought into one 
 instrument, executed by the parties. 2. That the letter does not 
 conflict with, or detract from the bond, or diminish its force ; 
 although both derogate from the absolute terms of the transfer 
 executed to N. 3. That the letter is admissible to prove a con- 
 sideration for W's transfer, other than that mentioned in the bond. 
 19 
 
218 APPENDIX. 
 
 4. That it was competent for W to file a bill against N and E, to 
 secure from loss the property assigned to N, and for an account. 
 Shaw V. Leavitt, 3 Sandf. Ch. 163. 
 
 When the witness sworn by a commissioner of deeds to identify 
 the grantor in a conveyance, on the latter appearing to acknowl- 
 edge the execution of such conveyance, is the grantee therein, or 
 otherwise interested in sustaining the execution, the certificate of 
 the oflcer furnishes no proof of its execution. Ooodhuey. Berian, 
 2 Sandf. Ch. 630. 
 
 A subscribing witness testified to his own signature to a mort- 
 gage and that it was subscribed and acknowledged by a person 
 ■who was introduced to him as the mortgagor ; and another witness 
 identified the signature thus made as that of the mortgagor ; Hdd, 
 that the mortgage was sufficiently proved. Ibid. 
 
 An assignment purporting to be executed by a corporation, 
 through its president and under its corporate seal, was presented, 
 and the president's signature proved, and there appeared to be a 
 seal attached, but there was no proof that the seal was that of the 
 corporation, or of the president ; Held, that the court would 
 not decide the point upon inspection, and that the execution of the 
 assignment was not proved. Man, Beceiver, &c. v. Pentz, 2 Sandf. 
 Ch. 269. - 
 
 When the intention of the donor is proved, under his own hand, 
 a delivery will be presumed from slight circumstances. Brinher- 
 hoffY. Lawrence, 2 Sandf. Ch. 400. 
 
 , The retention of the deed or instrument by the donor does not 
 impeach its validity, unless there be clear and decisive proof that ■ 
 he never parted, or intended to part, with its possession. Ihid. 
 
 VII. Admissions, Declarations, and Beceipts. 
 
 The confessions, conversations, and admissions of the defendant 
 need not be expressly charged in a bill in equity, in order to entitle 
 the plaintiff to use them in proof of facts charged, and in issue 
 therein. Smith v. Bumham, 2 Sum. 612. 
 
 The declarations of a party to an instrument impeached for 
 fraud are not admissible, when made subsequently to its execu- 
 tion, unless the fraudulent nature of the instrument is otherwise 
 established. Where the impeachment is on the ground of a con- 
 tinued possession, under the statute, the fact of such possession 
 cannot be proved by the assignor, nor by his declarations. Lee v. 
 
RULES OF EVIDENCE IN CHANCERY. 219 
 
 Euntoon, 1 Hofifman, 448; Schoonover v. Myers, 28 111. 312 ; Mi/ers 
 V. Kirni.'., 26 111. 37. 
 
 Declarations of the person under whom one of the parties in the 
 suit claims title by a conveyance made subsequent to the declara- 
 tions, may be given in evidence by the adverse party to show that 
 a conveyance, under which such adverse party claimed title to the 
 same premises, had been duly executed, and had been fraudu- 
 lently surrendered to the grantor and destroyed. Varick v. Briggs, 
 6 Paige, 323. 
 
 Where there are several co-defendants in equity, who have a 
 common interest, the declaration of one of them is evidence against 
 the others. Oriffin v. Pleasants, 1 Hofif. 152. 
 
 The declarations of one of several devisees in evidence against 
 a will, is admissible evidence, not as a declaration or admission 
 by all, but as a circumstance entitled to some influence, and to 
 which the tribunal trying the question of will or no will should 
 give such effect, under all the circumstances of the case, as such a 
 fact intrinsically merits. Rogers v. Rogers, 1 Hoffman, 325. 
 
 The declaration of a judgment creditor that this judgment was 
 confessed to keep another creditor, who is seeking to obtain judg- 
 ment, out of his money, and that if such creditor had not sued, the 
 judgment would not have been confessed, coupled with prodf that 
 the judgment creditor is a man of no property, is insufficient to 
 overcome direct proof of the consideration of the judgment. Edgar 
 V. Clevinger, 4 Green's Ch. 258. 
 
 An ex parte affidavit of the payment of money, made by the per- 
 son who received it and who died before the filing of the bill, if 
 not admissible as testimony, is admissible as his receipt. Williams 
 V. Maitland, 1 Hoff. 103. 
 
 On a bm filed against C & B as partners, the declarations of 
 C are not admissible against B to prove the partnership. The 
 declaration of one partner is only admissible against the other 
 after the fact of the partnership is established. Flannagan v. 
 Champion, 1 Green's Ch. 51. 
 
 The declarations of one partner, made after the dissolution of 
 the partnership, are not admissible to charge his copartner. Ihid. 
 
 Where a combination between several persons for an illegal 
 object is clearly established, the acts and declarations of one of 
 the parties in reference to the subject-matter of the combination, 
 whilst engaged in the prosecution of the joint design, are admissi- 
 
220 APPENDIX. 
 
 ble in evidence against his associates. Waierhury v. Sturtevant, 
 18 Wend. 354. 
 
 Generally, the declarations of a grantor, made after the sale, 
 cannot be admitted to impeach the sale ; but where there is a com- 
 munity of interest and design in several, or circumstances show- 
 ing a conspiracy between the grantor and the defendants, to 
 defraud the plaintiff, such declarations would be admissible. Bell 
 V. Coid, 2 Hill's Ch. 109. 
 
 The admissions of a party on a charge of adultery are not, as a 
 general rule, to be received with much faith. They are compe- 
 tent proof of the charge only when connected with other evidence. 
 Miller v. Miller, i Green's Ch. 139. 
 
 Where the items of an account book were read over to the per- 
 son charged, who objected to a few of the items only, the book 
 may be received in evidence as his admission. Lever v. Lever, 2 
 Hill's Ch. 159. 
 
 The declarations of a trustee, that an investment made by him 
 was of the trust fund, after his death, may be given in evidence 
 as proof of the fact, it being the confession of one whose sacrifice, 
 by the narration, is equivalent to his oath. Harrisburg Bank v. 
 Tyler, 3 Watts & Serg. 373. 
 
 A trustee holding the legal title to property is not to be pre- 
 sumed to make admissions adverse to the interests of those for 
 whom he acts, and such admissions are therefore competent^ 
 though not conclusive evidence. Helm v. Steele, 3 Humph. 472. 
 
 On a bill to establish a written will, testimony of the admission 
 of a part of the heirs is not su£B.cient, as, if established at all, it 
 must be established against all the heirs. Grant v. Qrant, 1 Sandf. 
 Ch. 235. 
 
 The declarations of the decedent are not competent to prove the 
 execution or existence of a will. Ibid. 
 
 An assignment of a mortgage as security for a debt, by a mort- 
 gagee in possession, is evidence that the mortgage is redeemable. 
 Borst V. Boyd, 3 Sandf. 601. 
 
 A mortgagor, on a bill to redeem, may rebut the objection of 
 the lapse of time, by proof of such an assignment, or of similar 
 acts by the mortgagee, though the mortgagor was not a party to 
 the same. Ibid. 
 
 Vni. Parol Evidence. 
 
 It is a well-established rule, in equity as well as in law, that 
 
RULES or EVIDENCE IN CHANCERY. 221 
 
 parol evidence is not to be received to contradict, add to, or alter 
 a written contract. Ghetwood v. Brittain, X Green's Ch. 439 ; Eve- 
 letli V. Wilson, 16 Maine, 109. 
 
 But parol evidence to prove matters extrinsic to the terms of a 
 written contract, for the purpose of applying it to the subject to 
 which it relates, does not come within this rule. Ibid. 
 
 An ambiguity asising from too great generality of description 
 may be removed by parol evidence, which applies it to a single 
 point. Ibid. 
 
 Although parol evidence is inadmissible to add to, or explain, a 
 deed, yet if a conveyance purporting to be voluntary, is impeached 
 for fraud, it is competent for the party claiming under it to show 
 that in fact it was made for a valuable consideration. Its being 
 voluntary does not make it void, but it is merely evidence of a 
 fraudulent intent ; and any evidence is admissible which shows 
 that no such intent existed. Henderson v. Dodd, 1 Bail. Eq. 138. 
 
 Parol evidence to show that a deed, in terms an absolute con- 
 veyance, was not intended as such, but was designed as a mort- 
 gage, or other conditional conveyance, is not admissible at law ; 
 nor can it be admitted in chancery, unless there is an allegation 
 with some pi'oof that there was fraud or mistake in the execution 
 of the deed, or some vice in the consideration. Butwhere an answer 
 admits that a deed apparently absolute was, to any extent, or for 
 any purpose, conditional, or in trust, the complainant may show 
 the true condition or trust by parol testimony. Thomas v. McOor- 
 mick, 9 Dana, 109. 
 
 A mere admission in an answer which denied any such condi- 
 tion or trust, that the consideration was in fact different from that 
 recited in the deed, will not justify the admission of parol testi- 
 mony to show that the deed was conditional, when it purports to be 
 absolute. Ibid. 
 
 Parol testimony is admissible to locate the boundaries and mon- 
 uments in a deed; and those being proved, an ambiguity latent 
 may become apparent, the description being inconsistent with 
 itself; and the court will proceed to adduce the intention of the 
 parties. Brown v. Haven, 3 Fair. 164. 
 
 Testimony will not be received to show a parol agreement con- 
 tradictory to, or varying from, a written agreement made at the 
 same time, when no reason is assigned why the former is not in- 
 corporated into the latter. Parker v. Vick, 2 Dev. & Batt. Eq. 
 195. 
 
 19* 
 
222 APPENDIX. 
 
 The consideretion clause in a deed, that is, the clause acknowl- 
 edging the receipt of a certain sum of money as the considei-ation 
 of the conveyance or transfer, is open to explanation by parol proof. 
 Thus, where the consideration in a deed conveying lands was ex- 
 pressed to be money paid, it was hdd, that parol evidence was 
 admissible to show that the consideration, instead of money, was 
 iron of a specified quantity, valued at a stipulated price. MeCrea 
 V. Purmot, 16 Wend. 460; Kinsie v. Penrose, 2 Scam. 516. 
 
 It seems, according to the American cases, that the only effect of 
 a consideration clause in a deed is to estop the grantor from alleg- 
 ing that the deed was executed without consideration ; and that 
 for every other purpose it is open for explanation, and may be 
 varied by parol proof. Ibid. 
 
 The doctrine that a deed absolute on its face may be converted 
 into a mortgage by parol testimony is unquestioned, where the 
 acts or declarations proved are contemporaneous with the instru- 
 ment. Subsequent declarations should be more scrupulously 
 admitted. Mclntyre r. Humphreys, 1 Hoff. 81. 
 
 A reversion after the determination of a life estate cannot be 
 created by parol in a case of a conveyance of slaves purporting 
 to be absolute. Richardson v. Thompson, 1 Humph. 151. 
 
 Where there is a parol condition to a written conti-act, which is 
 understood by the parties, but by fraud or mistake not inserted in 
 the contract, the court will reform the contract according to the 
 intent and understanding of the parties ; but such parol condition 
 must be sustained by full, clear, and unequivocal proof, and in the 
 absence of such proof the written contract will be adjudged to 
 contain the true intent of the parties. Perry v. Pemrson, Id. 
 
 Parol evidence, although it may be inadmissible to reform a 
 written contract, yet is received to repel a specific execution of it ; 
 but in the latter case it cannot be received to show that the written 
 contract was not the one made ; but to prove fraud, accident, or 
 surprise, raising an equity to rebut the claim to specific execution. 
 Ward V. LedbeUer, Dev. & Batt. Eq. 496. 
 
 Parol evidence is not admissible to enlai'ge the iame within which 
 the terms of a written contract for the sale of land were to be 
 complied with. Doar v. Oibbs, 1 Bail. Eq. 371. 
 
 Where there is an ambiguity in a writing, partaking of the nature 
 of both patent and latent ambiguities, i e. where the words used 
 have a settled meaning but admit of two interpretations, accord- 
 
RULES OF EVIDENCE IN CHANCEET. 223 
 
 ing to the subject-matter in the contemplation of the parties; 
 extrinsic facts, not contradictory of the writing, but which will 
 aid in upholding it, may be proved by parol, in order to explain 
 the actual intention of the parties. Railroad Go. v. Ormsby, 7 Dana, 
 277. 
 
 Parol evidence cannot be received to explain a will except 
 in case of a latent ambiguity. Patterson v. Leith, 2 Hill's Ch. 
 16. 
 
 A latent ambiguity, arising out of intrinsic facts, in the con- 
 struction of a will, may be explained by facts in and out of the 
 wiU, and by parol evidence of intention. Hayden v. Ewing, 1 B. 
 Monroe, 113. 
 
 There are sevei'al exceptions to the general rule of evidence, 
 that a party cannot contradict his deed, or prove any other con- 
 sideration than that expressed in it ; as in cases of fraud, mistake, 
 imposition, or oppression, and in cases where deeds have been 
 made upon secret trusts between the parties. 
 
 Parol evidence cannot be admitted to prove that a payment of a 
 bond, payable immediately by its terms, was not to be demanded 
 until after the obligor's death, in absence of fraud, mistake, or sur- 
 prise. Geddy v. Stamback, 1 Dev. & Batt. Eq. 475. 
 
 The obligor of a bond cannot be allowed to adduce parol evi- 
 dence that, at the time of giving the bond, it was agreed that the 
 obligee should look to another source for payment, and that the 
 obligor should not be personally liable. Ghetwood v. Brittan, 1 
 Green's Ch. 438. 
 
 If by fraud or mistake or accident, a written instrument does 
 not contain the true agreement, or the whole agreement between 
 the contracting parties, it may be supplied by parol proof. 
 Ibid. 
 
 Sales made by sheriffs are embraced by the statute of frauds 
 and perjuries ; but such sales may be taken out of its operation by 
 parol evidence, unless such evidence is excepted to in the court 
 of chancery, in Maryland. Spencer v. Pierce, 10 Gill & Johns. 
 294. 
 
 The rule, that parol testimony is not to be admitted to vary an 
 instrument in writing, prevails as well in equity as in law. But 
 courts of equity admit an exception to it, where a mistake is alleged, 
 and if clearly proved or admitted, they will give relief. If a mis- 
 take be made in a deed of land according to the rules of equity. 
 
224 APPENDIX. 
 
 it should be reformed, and the mistake corrected, so as to make 
 the deed read as it should have done. 
 
 It is also a rule that he who seeks equity must do equity. But 
 this rule does not extend to make one who had committed a mis- 
 take responsible for all the remote consequences which may arise 
 from its leading others to commit errors by placing confidence in 
 its accuracy, instead of examining for themselves. Peterson v. 
 Groover, 20 Maine R. 363. 
 
 Parol evidence of the understanding of the parties to a written 
 agreement may be given in evidence to explain their construction 
 of terms otherwise ambiguous. Sdden v. Williams, 9 Watts, 9. 
 
 Where an omission in a contract is not corrected by reason of 
 an agreement to consider it as inserted, and advantage be taken 
 thereof, it is fraud; and as such it must be distinctly averred 
 in the pleadings ; it is not sufficient to aver facts from which the 
 jury may infer fraud. Clarh v. Partridge, 2 Barr's Pa. St. Kep. 3. 
 
 Evidence to prove facts amounting to fraud is inadmissible 
 under the pleadings averring it was through mistake, and on the 
 suggestion by defendant that he could not deny his agreement. 
 Ibid. 
 
 Evidence of the understanding of one who drew a written agree- 
 ment, as to what the agreement was, arising from expressions of 
 the parties, is not admissible. Fox v. Foster, 4 Barr's Pa. St. Rep. 
 119. 
 
 Evidence that plaintiffs lease had been deposited with one who 
 at the time of trial resided out of the State, will not authorize parol 
 evidence of its contents by the plaintiff, the defendant having noti- 
 fied him to produce the document. McGregor v. Montgomery, 4 
 Barr's Pa. St. Rep. 539. 
 
 Misrepresentation, whether wilful or accidental, is a ground for 
 reforming a deed or contract ; but it must be of some material fact 
 which the party might have placed confidence in, and not an opin- 
 ion ; unless there be peculiar circumstances of contrivance or abuse 
 of confidence reposed ; and it must be shown that the complain- 
 ing party relied on the misrepresentation or mistake induced by 
 the party seeking to bind him by the written evidence. Zoentmeyer 
 V. Miitower, 5 Barr's Pa. St. Rep. 403. 
 
 It seems, that to make such a misrepresentation available against 
 (lie express terms of the contract, it must, in ordinary cases, as- 
 sume the character of a contract. Ibid. 
 
 Transactions which show the general habits of a person, his 
 
EXILES OF EVIDENCE IN CHANCEEY. 225 
 
 intemperance, extravagance, and thoughtlessness, are competent 
 evidence in case of fraud and imposition. Kaufman v. Sviar, 5 
 Barr's Pa. St. Rep. 230. 
 
 A devise made under a parol promise or agreement that the 
 devisee will hold the land in trust for herself and another, creates 
 a valid trust. Subsequent parol admissions by the husband, and 
 by the wife in the presence of the husband, of such a trust exist- 
 ing on the devise of the wife, are evidence. 6 Barr's Pa. St. Rep. 
 425. 
 
 Oral representations made by a party to a contract, before the 
 execution of the instrument, may be given in evidence for the 
 purpose of proving fraud on the part of such party. 22 Pick. 
 546. 
 
 Where a person uses technical language in a deed or instru- 
 ment, the law presumes he intended it in a technical sense to be 
 understood and used ; and parol evidence is inadmissible to ex- 
 plain, control, or vary the legal effect of such deed or instrument. 
 Ryan v. Ooodwyn, McMuUin's Eq. Rep. 451. 
 
 Where specific things are described in a deed or will, the exist- 
 ence and qualifications of -the things which, it is alleged, pass 
 under the instrument, may be ascertained by parol evidence, and 
 where in this process two things are proved to exist, each satisfy- 
 ing the description, an ambiguity latent is created by parol, wiiioh 
 may be removed by parol evidence. Wallace v. McQollougJi, 1 
 Richardson's Eq. 427. 
 
 But when of things presented, neither tallies with the descrip- 
 tion, it is against principle, whatever annonymous cases may be 
 found in the books, to receive evidence as to which of them was 
 intended, or whether both were intended. Ibid, 
 
 Where an agent purchased land in his own name at the request 
 and for the benefit of his principal, and gave his own bond and 
 mortgage for the purchase-money, in which the principal joined 
 ostensibly as surety, it is competent to prove by parol evidence 
 that the latter is the principal in the bond, and the agent the surety. 
 Tlie Mohawk and Sudson Railroad Company v. Costigan, 2 Sandf. 
 Ch. 30&. 
 
 Where in a bequest for charitable purposes the name of the leg- 
 atee is defectively described, extrinsic evidence is admissible as to 
 what society or coi-poration was intended by the testator. Hom- 
 lecK's Ex'r v. The American Bible Society, 2 Sandf. Ch. 133. 
 
 Various facts admitted in aid of construing a will, and designat- 
 
226 APPENDIX. 
 
 ing the object intended by the testatrix in her bequest for charita- 
 ble purposes, viz., that the testatrix was a member of a society 
 claiming the fund ; that she was attached to a specific society or 
 denomination. She had made donations to such society ; she was 
 a correspondent of its ofiicers ; she had taken a warm interest in 
 its particular objects ; her deceased husband had exhibited such 
 interest, and had made similar gifts personal and by his will ; as 
 his executrix she had transmitted the latter ; and that there is no 
 like society or institution. HonhecWs Ex'r v. The American Bible 
 Society, 2 Sandf. Ch. 133. 
 
 Parol evidence is not admissible to show that a bond and mort- 
 gage for the payment of money were not to be paid, unless the 
 mortgagee and two other persons to whom he furnished materials, 
 fulfilled a contract of the latter for executing the stone-work of 
 certain houses, which the mortgagor was erecting ; there being no 
 fraud or mistake, surprise or accident, in the case. Bussell v. Kin- 
 ney, 1 Sandf. Ch. 34. 
 
 Parol evidence in contradiction of the words of a will or to add an 
 omitted clause, which would alter the effect of what is written, is 
 inadmissible. Sturges v. Oargill, 1 Sandf. Ch. 319. 
 
 Where the language of a will was plain, and not ambiguous, 
 using no doubtful terms or designation of objects requiring expla- 
 nation to make them intelligible, extraneous evidence, although it 
 was offered in the testator's own handwriting, was held inadmissi- 
 ble to show that he intended to give a devise or bequest in differ- 
 ent shares or proportions from those indicated by the words of the 
 wiU. Bunner v. Storm, 3 Sandf. Ch. 867. 
 
 IX. Testimony of fhe Parties in a Case. 
 
 A defendant may examine a mere nominal complainant, with 
 his consent, as a witness against the real complainant. But a 
 defendant who has a common interest with the complainant 
 in the suit, cannot examine such complainant as a witness againsfr 
 a co-defendant, for the purpose of sustaining the claim made by 
 the bill. Echford v. Dekay, 6 Paige, 665. 
 
 Where one of the Complainants, who is a necessary party, but 
 who has no personal interest in the subject-matter of the litigation, 
 is a material witness to prove the facts necessary to sustain the 
 suit, the proper course, where the nature of the case will admit of 
 such a change of parties, is to make him a party defendant, so that 
 he may be examined as a witness. Ibid. 
 
RULES OF EVIDENCE IN CHANCERY. 227 
 
 After a decree, it is not a motion of course for one defendant to 
 examine another ; and a special ground for such motion must be 
 laid. And, after a decree against two executors to account, it 
 seems to be a good special ground for such a motion that the one 
 sought to be examined had alone received the money of the estate. 
 Williams v. MaMland, 1 Ired. Eq. 93. 
 
 A party may be a witness for himself, by consent of the adverse 
 party ; and his deposition read without objection may operate for 
 him as well as for his co-defendant, especially when, being insol- 
 vent, he has no real interest. Fletcher v. Wier, 7 Dana, 856. 
 
 A party examined as a witness becomes released, in equity, in- 
 regard to the matter upon which he was examined. And if of 
 two defendants the one examined be the one primarily liable to 
 the plaintiff, and the other defendant only Secondarily, the plaintiff 
 by the examination of the former necessarily gives up his claim 
 against both. Lewis v. Owen, 1 Ired. Eq. 290. 
 
 A defendant in a chancery cause cannot be examined as a wit- 
 ness without an order of the chancellor for that purpose. Nill v. 
 Hall, 9 Gill & Johns. 81. 
 
 The order for the appointment of a receiver, upon a creditor's 
 bill, the defendant not consenting that his examination before the 
 master shall be a substitute for his answer, as provided by the 
 ninety-first rule of court, authorizes the complainant to examine 
 the defendant on oath only in regard to the property which he is 
 ordered to assign and deliver over to the receiver, in New York. 
 Browning v. Bettis, 8 Paige, 568. 
 
 An order allowing a defendant to examine his co-defendant as 
 a witness wiU always be granted upon a suggestion that the party 
 to be examined has no interest in the cause, leaving the question 
 of interest to be determined at the hearing upon the proofs. Nevill 
 V. Deonerriit, 1 Green's Ch. 321. 
 
 The examinations of parties to a cause as witnesses are always 
 made by the very terms of the order subject to all legal excep- 
 tions at the hearing. Ibid. 
 
 In a suit for an account, if the plaintiff reads on the hearing the 
 examination of the defendant, taken before the master on a refer- 
 ence to him on behalf of the plaintiff, the answers to the interroga- 
 tories, so far as they are responsive thereto, will be evidence for 
 the defendant, though subject to contradiction, upon the same 
 principle that his answer to the bill is evidence for him. CJioffln 
 V. Chqffin, 2 Dev. & Batt. Eq. 255. 
 
228 APPENDIX. 
 
 Upon the usual order, on a creditor's bill to appoint a receiver, 
 and that the defendant deliver over to such receiver his property 
 and effects on oath, the defendant is only bound to answer such 
 interrogatories as relate to the subject of the proceeding before 
 the master. Fitzhugh v. Everington, 6 Paige, 29. 
 
 The examination of the defendant on oath before the master, 
 upon a reference to appoint a receiver, on a creditor's bill, may 
 be read by the adverse party upon the hearing of the cause, to 
 contradict the defendant's answer ; although the master required 
 him to answer questions which he was not legally bound to answer. 
 Qihon V. Shaw, 7 Paige, 278. 
 
 If illegal or improper questions are put to a defendant upon his 
 examination before the master, he is not bound to answer them, 
 but may appeal from the decision of the master to the court. If 
 he refuse to answer questions which are relevant and proper, he 
 will be compelled to pay the costs of an application to the court to 
 compel him to answer ; and he may be otherwise punished forthe 
 contempt. Ibid. 
 
 As a general rule, the court will not allow ex parte affidavits to 
 be used on a reference to a master to examine the defendant on 
 interrogatories relative to an alleged contempt, and to take such 
 other proof as shall be produced before him by either party ; but 
 will compel the parties to produce and examine the witnesses 
 before the master, so that they be cross-examined by the adverse 
 party. Gumming v. Waggoner, 7 Paige, 603. 
 
 The mere fact that a witness in chancery is a party to the suit, 
 does not disqualify him ; but, if he is interested in the matter as to 
 which he testifies, or may be liable for costs, his deposition must 
 be rejected. Allison v. Allison, 7 Dana, 92. 
 
 A party to the suit, whose admissions would be evidence to 
 affect another party, may be examined as a witness by the oppo- 
 site party, if he himself consent. Bow v. Oockrell, 1 Bail. Eq. 311.* 
 
 The examination of a defendant trustee by the complainant does 
 not compel the court to receive his statements of matters of dis- 
 charge as conclusive in his favor. Baker v. Williamson, 4 Barr's 
 Pa. St. Kep. 456. 
 
 The answer of one co-defendant is not evidence against another. 
 Fefcli. V. Eooper, 20 Maine Rep. 159. 
 
EULES OF EVIDENCE IN CHANCERY. 229 
 
 X. Witnesses. — Examination. 
 
 Competency. — A witness interested in one part of a case, and 
 therefore incompetent, may, nevertheless, be examined as to other 
 points, in which he is not interested. Bow v. Cochrdl, 1 Bail. Eq. 
 127. 
 
 A debtor, who has assigned his estate for the benefit of his cred- 
 itors, is a competent witness in a suit between his assignee and 
 one of the creditors who claims a special lien on a part of the 
 estate ; his interest being equal either way. Qilchrist v. Martin, 
 
 1 BaU. Eq. 492. 
 
 Where the husband would be a competent witness, the wife may 
 be sworn ; and where the husband, if living, would have been 
 competent to prove fraud in a deed from himself to his sisters, his 
 wife is competent to prove his acts and declarations. Bell v. Coiel, 
 
 2 HiU's Ch. 110. 
 
 One partner, when called by another, may testify as to the cor- 
 rectness of an account set up against the firm by the partner call- 
 ing him as a witness. But the testimony of a partner so called as 
 a witness, is incompetent to dimi nish the accounts which may be 
 set up against the firm, or to augment his own account against the 
 firm by the other partners who did not call for his testimony. Oar- 
 ney v. Beatty, 7 J. J. Marsh, 225. 
 
 A distributee is not a competent witness for the executor or 
 administrator. Brown's Ex\ v. Durbin's AArtCr, 5 J. J. Marsh, 174. 
 
 The wife cannot be examined as a witness either for or against 
 her husband in a civil suit. But she may be compelled to testify 
 as a witness, in a suit between other persons, where the husband 
 would himself be compelled to testify as a witness. Capous v. 
 Kaufman, 8 Paige, 47. 
 
 Upon a reference to a master, upon a creditor's biU, to appoint • 
 a receiver of the property of the judgment debtor, and to ex- 
 amine witnesses, &c., the complainant cannot compel the wife 
 of the defendant to submit to an examination before the mas- 
 ter as to such property, or as to any other matter charged in 
 the bill ; although the husband is a lunatic, and cannot himself 
 be examined, or compelled to make a discovery of his property. 
 lUd. 
 
 A defendant who suffers the bill to be taken as confessed, and 
 thereby enables the complainant to obtain a decree against him 
 
 20 
 
230 APPENDIX. 
 
 individually, notwithstanding his testimony in favor of a co-de- 
 fendant, is a competent witness for such co-defendant ; although 
 he would have been directly interested in the matter to which he 
 is examined, if he had put in an answer denying the allegations 
 in the complainant's bUl. Holgate v. Pdbmer, 8 Paige, 461. 
 
 But in a matter of contract, where it is impossible to obtain a 
 decree against the defendant, who suffers the bill to be taken as 
 confessed, if the complainant fail in his suit againsE the other 
 defendants who were joint-contractors with him, the defendant 
 against whofn the bill is taken as confessed, cannot be examined 
 as a "witness for his co-defendants, to sustain their defence. Ibid. 
 
 Upon the return of a habeas corpus, dii-eeted to the father-in-law 
 of the relator, requiring him to bring before the court the wife and 
 child of the relator, alleged to be detained from him by the defend- 
 ant, the wife is a competent witness for the defendant to prove 
 acts of cruelty of her husband on her, which justified her separa- 
 tion from him, and her refusal to return to her house ; but she can- 
 not testify as to his general character, or as to any misconduct of 
 his in other respects. The People v. Mercien, 8 Paige, 47. 
 
 Where a witness's interest is of such a nature that he cannot be 
 benefited, by swearing to the matters which he is called to prove, 
 unless they are really as he states them to be, it is no legal objec- 
 tion to his competency as a witness, tliat he may be benefited 
 by the proof of those matters, if his testimony is in fact true. 
 Pratt V. Adams, 7 Paige, 617. 
 
 A complainant who may be liable for costs, if he does not suc- 
 ceed in establishing the claim in his bill, is not a competent wit- 
 ness to prove the facts necessary to sustain the suit, although he 
 has no personal interest in the subject-matter of the litigation. 
 Echford v. Bekay, 6 Paige, 76. 
 
 If the liability of the witness wiU remain the same, which ever 
 way the suit is determined, he is not incompetent ; but if a deci- 
 sion in_ favor of one of the p&rties would have the effect to dis- 
 charge the witness from further liability, while a contrary decision 
 would leave him exposed to a suit, he is not a competent witness 
 for the party who seeks a decision which will discharge the wit- 
 ness from further liability. Woods v. Skinner, 6 Paige, 76. 
 
 A husband cannot be a witness in favor of his wife, or of his 
 trustee, in a suit respecting her separate estate ; although he has 
 no interest in the subject-matter. Burrel v. Btdl, 3 Sandf. Ch. 15. 
 
EXILES OP EVIDESrCE IK CHANCERT. 231 
 
 Where there is a dispute, and one of the parties consults an at- 
 torney, solicitor, or counsellor, on the subject, the communications 
 between such party and his legal adviser are sacred. And the 
 courts will not permit them to be divulged without the client's con- 
 sent. March v. Ludlum, 3 Sandf. Ch. 85. 
 
 There is a dispute, when there are conflicting rights in existence, 
 or claims made, to the same property, wliich, unless abandoned 
 by one party or the other, or arranged amicably, will terminate in 
 litigation. Ihid. 
 
 The privilege is not affected by the circumstance that the client 
 oflfered no compensation, and the legal adviser did not make or 
 expect to make any charge for his opinion. Ihid. 
 
 A solicitor for a non-resident complainant, in whose behalf se- 
 curity for costs has been filed, by a surety who justified ex parte, 
 is a competent witness pi-esumptively, although he testifies before 
 the time for excepting to tlie surety is expired. Van Weasel v. 
 Wychoff, 3 Sandf. Ch. 428, 528. 
 
 Examination, &g. Where there is a plurality of defendants, and 
 a commission with consent of some of them only has been issued, 
 the testimony so taken cannot be read against those who had not 
 consented to the issuing of the commission. Kipp v. Hanna, 2 
 Bland. 26. 
 
 The court will compel a witness to attend before commissioners, 
 summoned by them to do so ; but a commission should be so is- 
 sued that the examination may be had at a reasonable distance 
 from the witness's residence, MacCubbin v. Mathews, 2 Bland. 
 250, 
 
 A witness may, on assigning cause, demur to the questions pro- 
 pounded to him ; and the examination must be suspended until the 
 court decides. Winder v. Diffenderfer, 2 Bland. 166. 
 
 Courts of chancery possess the power to examine witness viva 
 voce, for the purpose of proving written instruments. Levert v. 
 Redwood, 9 Port. 80. 
 
 Fresh interrogatories and a re-examination have been permitted 
 after publication, where depositions have been suppressed on ac- 
 count of the interrogatories being leading, or for irregularity, or 
 where it has been discovered that a release has not been given to 
 make a witness competent. Wood v. Main, 2 Sum. 316. 
 
 A witness may be examined to the mere credit of the other wit- 
 nesses.'^irhose depositions have been taken and published in the 
 
232 APPENDIX. 
 
 cause ; but he cannot be examined to prove or disprove any fact 
 material to the merits of the cause. Wood v. Main, 2 Sum. 316. 
 
 The general rule of equity proceedings is, that after publication 
 of the testimony, no new witness can be examined, and no new 
 evidence can be taken, unless the judge himself, upon or after 
 hearing, entertains a doubt, or when some additional fact or inqui- 
 ry is indispensable to enable him to make a decree. Ibid. 
 
 Exhibits in the cause may be proven after publication, and 
 even iiiva voce at the hearing, where there has been an omission 
 of the proof in due season, and they are applicable to the merits. 
 Ibid. 
 
 It seems, that, after publication, new evidence may be received 
 of facts and conversations which occurred after the original cause 
 is at issue, and publication has passed. Ibid. 
 
 The court may, in the exercise of a sound discretion, allow the 
 introduction of newly-discovered evidence of witnesses to facts at 
 issue in the cause, after publication and knowledge of the former 
 testimony ; and even after the hearing. But it will not exercise 
 this discretion, to let in merely cumulative testimony. Ibid. 
 
 The time for taking testimony will be enlarged, after publica- 
 tion has passed, on good cause therefor shown on affidavit, as sur- 
 prise, accident, or other circumstance, which repel any imputation 
 of laches. Such affidavit is indispensable, except in case of fraud 
 practised by the other party. Ibid. 
 
 A witness whose examination is apparently closed, and an ad- 
 journment taken place, and another witness examined, cannot be 
 recalled by him for whom he testified, and examined anew on the 
 subject of the former examination. Od/nmdvx v. Eelie, 3 Sandf. 
 Ch. 512. 
 
 Nor can a party reserve the right to recall a witness whose ex- 
 amination has been proceeded in, without the consent of the 
 adverse party ; unless the officer taking the testimony should so 
 direct for cause shown. Ibid. 
 
 XI. Evidence on Me-hearing. 
 
 A re-hearing will not be granted on the ground of newly-pro- 
 cured evidence, which would have materially varied the case on 
 the trial ; it must have appeared that the evidence was discovered 
 since the decree, and of which the party could not have had the 
 benefit in the first instance. Hinson v. Picket, 2 Hill's Ch. 357. 
 
RULES OP EVIDENCE IN CHANCEET. 233 
 
 Where a re-hearing is sought on the ground of newly-discovered 
 evidence after an interlocutory decree, the court will grant a re- 
 hearing upon filing a supplemental bill, if the evidence is of such 
 a nature as to entitle the party to relief upon a bill of review, or a 
 supplemental bill in the nature of a bill of review, after a final 
 decree, but not otherwise. Baker v. Whiting, X Story, 218. 
 
 Where the party had knowledge of the evidence before the 
 decree, or might by reasonable diligence and inquiry have obtain- 
 ed it, he is not entitled to relief. Ihid. 
 
 The general rule is, not to allow a re-hearing and a supplemen- 
 tal bill, where the newly-discovered evidence is merely cumulative 
 upon the litigated facts already in issue. Ibid. 
 
 20* 
 
INDEX. 
 
IKDEX. 
 
 [_The references are to the pages,"] 
 
 A. 
 
 ACCIDEHT. 
 
 relief against 23 
 
 ACCOUNT. 
 
 how set out, 79 
 
 (.See also 133.) 
 ADDEESS. 
 
 ofbill, 10 
 
 of amended bill 49, n. 3 
 
 ADMISSIONS. 
 
 as evidence 149, 218 
 
 bind defendant, 69, 70 
 
 AFFIDAVIT, 
 must be made on application for 
 
 leave to amend 48 
 
 impertinence and scandal in, . . 67, n. 
 
 as evidence, 158, 215 
 
 ALLEGATIONS, 
 must be made as tbe case will be 
 
 proved, 14, u. 2 
 
 certain, 15 
 
 positive, 17, n. 2 
 
 materiality of, 69, n. 1 
 
 AMENDMENT OF BILL. 
 must be signed by counsel, when, 
 
 47, n. 3; 51, 101, n. 2 
 application for, must be supported 
 
 by affidavit 48 
 
 what defects may be cured 
 
 by, 48, n., 50 
 
 new case made by, 48, u, 
 
 what may be introduced by, . . 48, n. 
 
 when parties added by, 48, 
 
 instances of, 48, 
 
 not allowed, when, 48, n. 
 
 time when made, 48, n., 49 
 
 allowed as of course, when, . . 49, 104 
 applications for, how many al- 
 lowed, 49 
 
 AMENDMENT, &c. — continued. 
 may alter form, but not intent, of 
 
 prayer, 50 
 
 by making a plaintilT defendant, 
 
 when, 51, 52 
 
 materiality of, 52, n. 
 
 of bills for injunction, . . . : . 52, u. 
 application for leave to make, 
 must state proposed amend- 
 ment, &c 52, ii. 
 
 (See also 104, 106, 113.) 
 ANSWER. 
 
 form of, 55 e^ seg. 
 
 title of, 56-59 
 
 if demurrer or plea joined, . 84, n. 1 
 
 preliminary saving of, 59-01 
 
 examination part of, 61-82 
 
 defence of, 82-87 
 
 formal ending of, 85 
 
 may be omitted, 85 
 
 howtobemade 75-78 
 
 must be direct 73, n. 1 
 
 fun, 69, 71-3, 81, but see 109. 
 
 positive, 73, ii. 1 
 
 to best of knowledge, infor- 
 mation and belief, ... 68 
 signed and sworn to, 86, n. 5 
 must not be argumentative, . 73, ja. 1 
 state conclusions, .... 79 
 need not be made to immaterial 
 
 allegation, 69, u. 1 
 
 of infant, may omit what, .... 85 
 
 if evasive, taken off file, 86 
 
 if not under oath, how treated, 87, n. 
 by several defendants, when sep- 
 arate, 56, u. 2 
 
 until filed, no record, 85 
 
 if not filed 66, u 
 
 237 
 
238 
 
 INDEX. 
 
 ANSWER — continued. 
 
 ifnot filed in time, 56, n. 1 
 
 plaintiff can prevent filing of, 
 until costs tendered to bim, 
 
 when, 85 
 
 admission in, 61, 69, 70 
 
 denial in « 61, 74 
 
 impertinence in 66, n., 80 
 
 insufficiency in, 63, 66-69,80 
 
 exceptions to (see exceptions) 
 made sufficient by extrinsic 
 circumstances 81 
 
 ANSWER — continued. 
 
 in support of plea 83, n. 1 
 
 only on matters on face of, can 
 
 defendant give evidence, ... 84 
 responsive to bill, evidence for 
 
 defendant, 84, n. 1, 87 
 
 as evidence, 161, 205 
 
 amendment of, 86, n. 2 
 
 (.See also 123.) 
 APPEALS, 
 evidence in 199 
 
 B. 
 
 BILL. 
 
 form of, 9, 47 
 
 (See also 98, 112, 128.) 
 
 address of, 10 
 
 introduction of, 10 
 
 stating part of, 12 
 
 confederacy of, 26 
 
 charging part of, 27 
 
 averment of jurisdiction of, ... 30 
 interrogating part of, . . 31-34, 45, 46 
 
 prayer of relief of, 34-38 
 
 prayer of process of, 38-42 
 
 , signature of, 42 
 
 presumptive evidence of 
 
 what 101, n. 2 
 
 note of, 43 
 
 BILL — continued. 
 plaintiff must stand on case made 
 
 by, . . w 12, n. 
 
 must show jointure, when, ... 22 
 demurrable, if equity appears only 
 
 in charging part, 27, n. 2 
 
 amendment of, (See amendment.) 
 after amendment, must be re- 
 signed, 101, n. 2 
 
 exceptions to, (see exceptions.) 
 
 as evidence, 168, 205 
 
 when taken pro confesso, . . 168, 205 
 supplemental, to add parties, . 48, n. 
 
 (50, u. 1; 5ecatoo 120.) 
 of discovery and injunction, ... 53 
 
 quia timet, 21 
 
 of special iogunction and relief, . 52 
 
 c. 
 
 CHARGING PAET. 
 
 form of, 27 
 
 contents of, 27, 30 
 
 conclusion of, 29 
 
 if equity appears only in, bill de- 
 murrable 27, n. 2 
 
 unnecessary, 27, n. 2 
 
 CITIZENSHIP, 
 must appear on face of bill, 
 when, 11, n. 2 
 
 CONFEDERACY. 
 
 form of, 26 
 
 must be pleaded, if relied on, . . 27 
 may be omitted, 27, n. 1, 2 
 
 CONTRIBUTION. 
 
 by surety, 22 
 
 COSTS, 
 must be paid before filing answer, 
 
 when, 85 
 
 counsel liable for^ if exceptions 
 
 sustained, 103, n. 
 
 plaintiff required to give security 
 
 for, when, 108, n. 1 
 
 (See also 102, 107, 108, 122, 124, 130, 
 136.) 
 COD?lfSEL. 
 
 must sign bill, 42 and n. 4 
 
 (Seealso 101.) 
 
INDEX. 
 
 239 
 
 COtRfSEL — continued. 
 must sign amendment of bill, 
 when, 47, n. 3; 51, 101, and n. 2 
 
 COUNSEL — continued. 
 liable for costs, if exceptions sus- 
 tained 103, and n. 
 
 D. 
 
 DEFENCE. 
 
 contents of, 70, 82-87 
 
 plalntiflPs control over, 84 
 
 DEFENDANT. 
 
 who ought to be, 11, 12 
 
 who is, 39 
 
 description of, in bill, 20, 44 
 
 misnamed in answer, 57, n. 1 
 
 in bill, 58 
 
 bound by his admissions, 70 
 
 separate answers, if m.ore than 
 
 one, when, 56, n. 2 
 
 DEilURRER. 
 if equity appears only in charg- 
 ing part, 27, n. 2 
 
 if intent of prayer altered by 
 amendment, 61 
 
 DEMTJKEER — continued. 
 is a distinct defence, although 
 
 joined with answer, 83 
 
 ( See also 97, 106, 108, 109.) 
 DENIAL, 
 general, not sufQcient, .... 74, n. 1 
 must not be by negative-preg- 
 nant, 74, u. 1 
 
 (See also 61.) 
 DEPOSITIONS. 
 
 as evidence, ■. 174 
 
 scandal and impertinence in, . . 66, n. 
 (Seealso 133.) 
 DISCOVERY. 
 
 bill for, granted when, 53} 54 
 
 prayer for, see Pkayeb. 
 
 E. 
 
 EVIDENCE, 
 signature of bill, presump- 
 tive, 101, u. 21 
 
 can be given by defendant, only 
 
 on matters on face of answer, 84 
 answer responsive to bill is, for 
 
 defendant, 84, n. 1, 87 
 
 what is sufficient, 147 
 
 onus proband! 148 
 
 admissions declarations, and re- 
 ceipts 149, 218 
 
 secondary, 151 
 
 presumptive, 152, 203 
 
 further, when admitted, 156 
 
 judgments, decrees, and judicial 
 
 proceedings, 157, 216 
 
 affidavits 158, 215 
 
 answer, 161, 205 
 
 bills generally, and when taken 
 pro confesso, 168, 205 ; 
 
 also, 04, 97, 107 
 
 taken on a bill to perpetuate, .#. 169 
 
 in another cause or matter, 109 
 
 private writings, 171, 217 
 
 EVIDENCE — continued. 
 evidence or answer of one defend- 
 ant when read against or in 
 
 favor of another, 172 
 
 depositions, 174 
 
 publications generally, and en- 
 larging publication, 177 
 
 parol, 181, 222 
 
 in appeals, 109 
 
 general principles and rules, ... 201 
 testimony of the parties in a case', 226 
 witnesses, examination, . . . 187, 229 
 
 on re-hearing 232 
 
 EXAMINATION PAET. 
 
 general subject 61-82 
 
 EXCEPTIONS, 
 to affidj/vlt, when taken, for Im- 
 pertinence, .... 67. n 
 when taken, for scan- 
 dal 67, n. 
 
 to answer, 81 
 
 for impertinence, 62, 63, 71 
 when taken, 64, 66, n., 07, n. 
 
240 
 
 INDEX. 
 
 EXCEPTIONS — continued. 
 to answer for scandal, when tak- 
 en, M, 66, n. 
 
 point out what, . . 103, n. 
 of Attorney-General, . . 73 
 
 of infant 73 
 
 to bill, for impertinence, . . . 103, n, 
 for scandal 103, n. 
 
 IMPERTINENCE, 
 what, . , 15, and n. 2; 63, 65, and n. 3 
 
 test of, 15, n. 2 
 
 moral, 63, 61 
 
 in affidavit, - 67, n. 
 
 in answer, 66, u., 71, SO 
 
 writing set out verba- 
 tim 65 
 
 answering when not 
 
 required to 65 
 
 In bill, 25 
 
 in deposition 66, n. 
 
 in master's report, 136, n. 1 
 
 if bill contain, 25, u. 1 
 
 exceptions for, see Exceptions. 
 interrogatories not referredfor, 66, n. 
 (See aiso 102, 103.) 
 
 JUDICIAL PEOCEEDINGS. 
 
 as evidence 157, 216 
 
 JUEISDICTION. 
 
 averment of, form of, 30 
 
 M 
 
 MASTER'S REPORT, . 63, 80, and n. 2 
 MASTER, 
 power of, as to production of pa- 
 pers 132, n. 1 
 
 (See also 129-134.) 
 
 exceptions to 136, u. 1 
 
 MATERIALITY, 
 of allegation 69, n. 1 
 
 EXCEPTIONS — continued. 
 to master's report, when tak- 
 en 136, 11. 1 
 
 to supplemental answer, S6 
 
 master's report on 63 
 
 contain what 103, n. 
 
 how supported 103,n. 
 
 sustained, counsel liable for 
 costs, 103, n. 
 
 INJUNCTION. 
 
 form of prayer for 20 
 
 when granted 21 
 
 bill for, when used, 52, 53 
 
 (See also 100, 118.) 
 
 INSUFFICIENCY. 
 general subject, . 63, 66-fi9, 71, 72, 80 
 exceptions for, see Exceptions. 
 
 INTERROGATING PART. 
 
 general subject, 31-34, 45, 48 
 
 form of, 31 
 
 purpose of, 33 
 
 INTERROGATORIES, 
 those only to be answered, speci- 
 
 fiied in the note, 67 
 
 not answered, when, 07, 08 
 
 impertinence in, 66, u. 
 
 (See also 111, 112.) 
 
 INTRODUCTION, 10-12 
 
 JURISDICTION — continued. 
 averment of, maybe omitted, 30, n. 1 
 must appear by case shown in the 
 bill, 30, n. 1 
 
 MATERIALITY — continued. 
 
 of amendment, must be shown in 
 
 petition, 52, n. 
 
 MISJOINDER. 
 
 of plaintiff, 12, u. 2 
 
 MISTAKE. 
 
 relief against 23 
 
 MULiTIFA RIOUSNESS . 
 
 general subject, 14, 36, n. 2 
 
 determined by prayer alone .36 
 
INDEX. 
 
 241 
 
 N. 
 
 NEGAXrVE-PEEGNANT, . . 74, n. 1 
 NOTE, 
 general subject 43 
 
 NOTE — continued. 
 only those interrogatories to be 
 answered, epecifled in, ... . 
 
 67 
 
 0. 
 
 OATH TO ANSWEE, 86, n. 6 
 
 waived, 87, n. 
 
 (See 121, 140.) 
 
 ONUS PEOBANDI, 148 
 
 P. 
 
 PAPEES. 
 production of, 132, n. 1 
 
 PAEOL. 
 evidence, 181, 220 
 
 PAETIES. 
 who ought to be, . . 39, n. 3, 40, 46, 47 
 
 aliens may l)e, when 46, n. 2 
 
 want of, 83 
 
 added, by amendment 48, n. 
 
 by suppleniental bill, 
 
 48, n., SO, n. 1 
 testimony of, 226 
 
 PENALTY, 
 suit for, restrained 23 
 
 PLAINTIFF. 
 
 who ought to be 40-42 
 
 Interest of each, must be identical 
 with that of every other, ... 11 
 
 description of, 10, 43, 44 
 
 why material, .... 11 
 
 title of, 44 
 
 party refuses to be 11 
 
 misjoinder of, 12, n. 2 
 
 must stand on case made by bill, 12,n. 
 
 PEAYEE. 
 
 for discovery, 38 
 
 for discovery and relief, 37 
 
 PEAYEE — continued. 
 
 for iiOunction, 20 
 
 of process, 38-42 
 
 form of, 38, 39 
 
 of relief, 34-38 
 
 form of, .... 34, and n. 1 
 
 efficacy of, 34, n. 1 
 
 alone determines wheth- 
 er bill be multifarious, . 36 
 form, but not intent of, may be al- 
 tered by amendment, .... 50, 51 
 (See Eelief ; also lOO.) 
 PEELIMINAEY SAVING. 
 
 form of, 59, 60 
 
 contents of, 60 
 
 PEEMISES, 12 
 
 PEESUMPTION. 
 to what extent the court will act 
 
 on, . 6-9,17 
 
 PEOCHEIN AMI. 
 
 of infant who may be, 21, n.2 
 
 (See also 137.) 
 PEOCESS. 
 
 prayer of, 38-42 
 
 (Seeateo91, 92, 97.) 
 PUBLICATIONS GENERALLY, 177 
 
 E. 
 
 EECETPTS. 
 
 as evidence, 149, 218 
 
 EELIEF. 
 
 against accident, 23 
 
 against mistake 23 
 
 prayer of, .'34-38 
 
 prayer for special, not essen- 
 tial 3 4, u. 2 
 
 21 
 
 EELIEF — continued. 
 . must be consistent with that spe-- 
 
 cially prayed for 34, n. 2 
 
 importance of prayer for gener- 
 al 35, II. 1 
 
 if prayer for general, omitted, 35, n. 1 
 prayer for alternative, . 35, 36, andn. 
 
242 
 
 INDEX. 
 
 s. 
 
 SCANDAL. 
 
 what, 16, 65, u. 
 
 In affidavit, 67, n. 
 
 in depositions 66, n. 
 
 in interrogatories, 66, n. 
 
 in master's report 136, n. 1 
 
 if bill contain, 25, n. 1 
 
 ■ exceptions for, see ExCefiiohs. 
 SCHEDULE. 
 
 how set out 79 
 
 SIGNATURE. 
 
 of amendment. . 47, u. 3, 61, 101, n. 2 
 
 of answer 86, n. 5 
 
 of bill, 42 
 
 why required, .... 42, n. 4 
 
 presumptive evidence of what, 101, n. 2 
 SPECIFIC PEKFOKMANCE, ... 22 
 STATING PART. 
 
 contents of, 12, 13, 19, 30 
 
 order of statement in, 14 
 
 STATING r ART— cmtinued. 
 must contain equitable ground of 
 
 relief, 27, n. 2 
 
 certainty in, 15 
 
 (^nclusioE of, 26 
 
 SUBPCBNA. 
 returnable on Sunday, irreg- 
 ular, 95, n. 1 
 
 service of, on husband good un- 
 less 95, n. 1 
 
 on agent or clerk, .... 95, n. 1 
 on some of the partners, 95, u. 1 
 (,See also 94, 95, 96, 119.) 
 SUPPLEMENTAL ANSWER. 
 
 how excepted to, 86 
 
 SUPPLEMENTAL BILL. 
 
 to add parties 48, u. 1, 50, n. 1 
 
 (See also 120.) 
 SURETY, 
 contribution by 22 
 
 TITLE, 
 must be alleged, by legatees, 17, n. 2 
 by grantees, 17, n. 2 
 
 of answer, 56-.59 
 
 contents of, 56, 57 
 
 should correct the error, 
 if defendant is mis- 
 named in the bill, , , . S3 
 
 TITLE — continued. 
 
 of answer, if insufficient, 57, and n. 1 
 to amended bill, 57 
 
 of plaintiff, see Plaintiff. 
 TIME. 
 
 how reckoned, , , ,\ , , , , 136, n. 1 
 
 w. 
 
 WIFE. 
 
 separate estate of, 65 
 
 WITNESS. 
 
 generally 187, 229 
 
 examination of, 187,229 
 
 notice of examination of, not re- 
 ceived, 127, n. 1 
 
 (.See also 137, lil.) 
 
 WRITINGS. 
 
 private, as evidence, 171, 217 
 
 how put in evidence, 24 
 
 if set out verbatim, when imper- 
 tinence, 25, 65 
 
 how pleaded, 24 
 
 discovery of, how obtained, 53 and n. 
 
INDEX TO EQUITY RULES. 
 
 IThe references are to tkepages.^ 
 
 A. 
 
 ACCOUNTS. 
 
 in what manner presented before 
 
 master, 133 
 
 ACCOUNTING. 
 party may be examined before 
 master, or by deposition, , . . 133 
 AFFIRMATION. 
 
 taken instead of an oath, 140 
 
 AMENDMENTS. 
 
 when made as of course, 104 
 
 in material points, how made, . . 104 
 
 if numerous, 104 
 
 when granted affer answer, plea, 
 
 or demurrer, , . . . 104 
 
 how obtained after replication, . 104 
 granted, when considered aban- 
 doned, 105 
 
 made necessary by answer, when 
 and how granted, 113 
 
 AMENDMENTS — continued. 
 after answer, new answer filed, . 113 
 
 AMENDED ANSWER, 
 when filed, 123 
 
 ANSWER. 
 
 when filed, 9?, 123 
 
 when and how made, demurrer 
 
 or plea overruled, 107 
 
 not obliged to be full, 109 
 
 what matters of defence may be 
 
 insisted upon therein, 109 
 
 when amended as of course, ... 121 
 
 only by special leave, 121 
 
 to be separately engrossed, .... 121 
 
 when deemed sufficient, 122 
 
 (See Amexdment, 113: Cross 
 Bill, 129.) 
 
 APPEARANCE DAY. 
 
 when, 96 
 
 of defendant, how entered, .... 96 
 
 B. 
 
 BILLS. 
 
 form of, 98 
 
 contents of, how expressed, . 98, 102 
 
 what part plaint iif may omit, . . 99 
 
 necessary part of, 98 
 
 plaintiff' may state and avoid mat- 
 ters of defence in, 99 
 
 prayer of, shall state special re- 
 lief asked for, 99 
 
 BILLS — continued. 
 should state why all are not made 
 
 parties thereto, 100 
 
 taken pro con/esso when, . 94, 97, 107 
 
 of revivor, when issued, 110 
 
 filed, 119 
 
 need not set fortli statement in 
 
 the original suit, 120 
 
 0. 
 
 CLEEK. 
 shall have power to name com- 
 missioners, 141 
 
 CIECUIT COURTS, 
 as courts of equity, for what pur- 
 poses always considered open, 8S 
 
 CIRCUIT COURTS — con<m«eti. 
 may make additional rules, not 
 inconsistent with those now 
 
 adopted, 139 
 
 COMMISSIONER. 
 
 how appointed 125 
 
 213 
 
244 
 
 INDEX TO EQUITY EULES. 
 
 COMMISSIONS. 
 
 (See Testimony, 125.) 
 COSTS. 
 
 on bills and answers, 102 
 
 for scandal and impertinence in 
 
 bills, 102 
 
 upon demurrer and plea, . . , 107, 108 
 not allowed for separate answers, 
 
 when, 122 
 
 on exceptions taken 124, 136 
 
 on reference before master, .... 130 
 
 T> 
 
 DECREE. 
 
 form of, 137 
 
 clerical mistakes in, how rectified, 137 
 on " bills taken pro confesso," . . 98 
 made without prejudice to parties 
 
 absent, . 113, 115 
 
 made through want of parties 
 
 suggested 117 
 
 for an account of persona] estate, 
 
 shall direct, &c 129 
 
 DEFENDANT, 
 before whom he may make oath 
 
 to his answers 121 
 
 COUNSEL. 
 
 must sign biU, 101 
 
 exception taken -. . 101, 103 
 
 COURTS, 
 will proceed without making aU 
 
 persons parties, ^ 113-llS 
 
 CROSS BILL. 
 answer thereto, when and how 
 made 129 
 
 DEMURRER. 
 
 when filed, 97 
 
 not allowed, unless 106 
 
 allowed to whole or part of bill, . 108 
 set down by plaintilf for argu- ' 
 
 ment, 106 
 
 wUen not overruled, though de- 
 fective, 108 
 
 plaintiff shall be deemed to ad- 
 mit tiie truth thereof, 109 
 
 E. 
 
 EVIDENCE. 
 
 before master, how taken down,. 134 
 EXCEPTIONS. 
 
 taken for scandal and imperti- 
 nence 103 
 
 duly filed, 103 
 
 EXCEPTIONS — continued. 
 when considered abandoned, . . 123 
 allowed, must be answered in 
 
 full 123 
 
 as of course, 123 
 
 set down for answer, . 123 
 
 P. 
 
 FORM. 
 
 of bill, 98 
 
 last interrogatory, 128 
 
 FORM — continued. 
 the part preceding the interroga- 
 tories, 112 
 
 G. 
 
 GUARDIAN. 
 ad litem to defend a suit, how ap- 
 pointed 137 
 
 GUARDIAN — continued. 
 may institute suit, . . . . 
 
 137 
 
INDEX TO EQXJITT EULES. 
 
 245 
 
 H. 
 
 HEIE-AT-LAW. 
 
 (See Parties, Hfl.) 
 
 CfPANTS. 
 when parties to bill must be so 
 
 stated 
 
 IXTEKKOGATOKIES. 
 how divided, numbered, and spe- 
 
 ciiied, 
 
 form of such specification, .... 
 specification of, how considered,, 
 additional, specifications of, how 
 
 considered, 
 
 not obliged to answer 
 
 100 
 
 HI 
 111 
 111 
 
 111 
 112 
 
 INTERROGATORIES — continued. 
 special, not necessary to obtain 
 
 discovery 141 
 
 INJUNCTIONS, 
 to stay proceedings at law, .... 118 
 
 special, granted, &c., . . 118 
 
 granted in vacation, how dispos- 
 ed of, 118 
 
 ^sked for, in prayer for relief, 
 
 sufficient, 100 
 
 ISSUE. 
 when joined 124 
 
 M. 
 
 MASTERS. 
 
 proceedings before, 12D-137 
 
 matters of reference before, when 
 
 made, 130 
 
 duties of, in matters of refer- 
 ence, . : 130, 131 
 
 may proceed ex parte, 130 
 
 may adjourn proceedings, 130 
 
 must report without delay, .... 130 
 
 report, how made up, 131 
 
 rights of, in all matters, 131 
 
 may compel attendance of wit- 
 nesses, 132 
 
 may use documents before used 
 
 in court, 134 
 
 may examine creditor or others 
 
 presenting claims, 134 
 
 how appointed, 134 
 
 in particular cases, 134 
 
 fees, , 134 
 
 shall not retain report as security 
 
 MASTERS — continued. 
 
 therefor, 134 
 
 is allowed attachment for fees, . 134 
 
 report, where filed, 135 
 
 exceptions thereto, when ta- 
 ken, 135 
 
 how disposed of, 135 
 
 other\^ise stands confirmed, 135 
 MORTGAGES. 
 
 decree may be rendered, 143 
 
 execution may issue, 143 
 
 MOTIONS. 
 which are granted of course, . 88, 00 
 made at chambers, where enter- 
 ed, 89 
 
 so entered, sufficient notice to 
 
 parties, unless, 89 
 
 granted in vacation time may be 
 
 rescinded 90 
 
 not grantable as of course, how 
 obtained, 91 
 
 N. 
 
 NOTICE. 
 
 what is sufficient, 89 
 
 to solicitor, notice to parties, un- 
 less, &c 89 
 
 NOTICE — continued. 
 time of, may be abridged, . 
 
 0. 
 
 ORDERS, 
 made as of course, when obtain- 
 
 ORDEES — continued, 
 interlocutory, made in vacation, . 89 
 made at chambers, how entered,. 89 
 
246 
 
 INDEX TO EQUITT RULES. 
 
 P. 
 
 PAETIES. 
 
 to euits concerning real estate 
 may be represented by trus- 
 tees, &c 115 
 
 heir at law not necessary to exe- 
 cute trusts in a will, 161 
 
 when not obliged to appear and 
 answer, 118 
 
 when entitled to all costs for ap- 
 pearing 118 
 
 want of, suggested, set down for^ 
 answer 116 
 
 must be so noted, 116 
 
 not amended as of course 116 
 
 court will proceed to decree, not- 
 withstanding, 117 
 
 (5ee Decree, 113, 115.) 
 PEESOJTS. 
 
 liable on joint and several de- 
 mand, not necessarily made 
 parties, 116. 
 
 not parties to a suit, can enforce 
 orders obtained, 93 
 
 orders how enforced against 
 
 persons not parties, 93 
 
 PLEAS. / 
 
 whenfiled, J 97 
 
 PLEAS — continued. 
 to whole or to part allowed, ... 100 
 
 not allowed, unless 100 
 
 may be set down for argument, . 100 
 how far facts stated therein shall 
 
 avail the defendant, 100 
 
 not overruled though defective, . 108 
 when plaintiff shall be deemed to 
 
 admit truth thereof, 109 
 
 PETITION, 
 for rehearing, when granted and 
 
 when not, 138 
 
 necessary contents thereof, .... 138 
 
 signed by counsel, 138 
 
 verified by oath of party, 138 
 
 PEOCESS. 
 to require defendant's appearance, 91 
 compel obedience to decrees, . 91 
 
 execute final decrees 92 
 
 * enable plaintiff to obtain a 
 
 proper decree, 97 
 
 PEATEE. 
 for subpoena contain names of all 
 
 defendants, , . 100 
 
 PEOCHEIN AMI. (See GUAKDIAN.) 
 may institute suits, subject to or- 
 der of court 137 
 
 E. 
 
 EE-HEAEDfG. 
 
 (See Petition, 138.) 
 
 EEPLICATION. 
 
 special, not allowed, 113 
 
 when iiled, 124 
 
 ifnot filed in time, 121 
 
 KULES. 
 which are granted s& of course, . . 88 
 
 EULES— confe'jiMed. , 
 
 made in vacation, 89 
 
 when entered, &c., 89 
 
 prescribed, when they do not ap- 
 ply, • •' •. 139 
 
 present, when to take efi'ect in Cir- 
 cuit Courts 140 
 
 may be previously adopted, .... 140 
 
 s. 
 
 SCANDAL. 
 
 and impertinence in bill, 102 
 
 order of reference for, not made 
 
 unless, 103 
 
 reference on, when abandoned, . 103 
 
 SEEVICE. 
 of processes, by -whom, ........ 95 
 
 SUBPCENA. 
 
 when issued, 94, 119 
 
 returnable, 94 
 
INDEX TO EQUrrr EXJLES. 
 
 247 
 
 SUBPCEy A — cimtirmed. 
 may be sued out for each defend- 
 ant, 94 
 
 service of, how made, 95 
 
 returned not executed 95 
 
 how entered, . 96 
 
 SUITS, 
 when stand revived as of course, 119 
 
 SUPPLEMENTAL BILL. 
 
 when necessary, 120 
 
 leave to file, when granted 120 
 
 filed, defendant shall, &c., . . . . 120 
 need not set forth statements In 
 original suits, 120 
 
 T. 
 
 TESTIMONT. 
 
 commissions to take, issued in va- 
 cation or term time 12S 
 
 may issue ex parte 125 
 
 when taken by oral interrogato- 
 ries, 125 
 
 may be taken by deposition after 
 issue joined 126 
 
 time allowed to take, after cause 
 at issue, 127 
 
 TESTIMONT — continued. 
 taken, publication thereof how or- 
 dered, 69 
 
 de bene esse, 127 
 
 taken, witness aged 
 
 or infirm 127 
 
 witness leaving coun- 
 try, &c 127 
 
 TRUSTEES. 
 
 (Sec Parties, 115.) 
 
 w. 
 
 wmrEss. 
 
 See TESTmomr de bene esse, . 127 
 
 oral examination of, 141 
 
 compulsory attendance of, 141 
 
 WEIT OF ASSISTANCE. 
 
 when granted, 93 
 
 attachment shall issue 92 
 
 sequestration, 03