SCHOOL OF LAW UNIVERSITY OF CALIFORNIA Los Angeles GIFT OF Roscoe Pound A MANUAL — OF- EQUITY PLEADING AND PKACTICE STATE AND FEDERAL WITH ILLUSTRATIVE FORMS, AND INCLUDING THE FEDERAL EQUITY RULES OF COURT. SPECIAL ATTENTION GIVEN TO MODERN PRACTICE IN RELATION TO THE MASTER'S OFFICE. — BY— GEOE(iE FEEDERICK EUSH, A. M. OF THE CHICAGO BAR CHICAGO Printed by the Chicago Legal News Co. 1909 T \9o9 s PREFACE. These few pages grew out of a course of lectures de- livered for several years at The John Marshall Law School at Chicago. A limited time spent studying one hundred pages of essentials, yields better results than the same time spent on one thousand pages, through which are scattered the same essentials, with nine hundred pages of minor details. For mental grasp, students and lawyers prefer the small elemen- tary treatise ; for later study and reference, the larger one. No small work has been published during the last twenty years, and the practice has modernized in many respects. It therefore seems a fit time to produce this modest book, which it is hoped, may lighten the labors of students and lawyers. Its plan is different from prior small treatises. Its aim is to treat the main features briefly but not less com- pletely than in other works large or small, and to dis- cuss only such matters of procedure as most frequently arise, and need to be better understood. The book is designed for the studious lawyer as well as for the student. It is intended to set forth the general chan- cery procedure. State and Federal. Illinois cases have been cited, where possible, merely to make the book more useful for some particular State. Modern prac- tice in relation to the master's office has received special attention. The practice in the federal courts is largely con- trolled by the United States Supreme Court's equity rules, and they are included for ready reference. State statutes, governing chancery practice, usually provide that matters of practice not therein provided for, shall be *' according to the general usage and prac- tice of courts of equity." The equity rules of the Fed- eral Supreme Court, in whole or in part, have been adopted by many of the states, and thus, in substance, have found their way into many decisions. State and Federal, largely influencing the usage and practice of equity courts in this country. Equity rule 90 of the Supreme Court provides, that in cases not covered the then (1842) practice of the High Court of Chancery in England, may furnish a guide so far as may be consist- ent with local circumstances and conveniences. There- fore, when a question of practice is not settled by the usage and practice of the state, or of the United States it becomes important to consult the English edition, 1837, of Daniels' or Smith's Chancery Practice, which, together with the general orders made by Lords Cot- tenham and Langdale (many of which were closely copied in the IT. S. Equity Rules), are the best author- ities on English practice at the time the United States rules were adopted. (Thomson v. Wooster, 114 U. S. 104, 112; Evory v. Candee, 17 Blatchf. 200). Barber's Work, "Chancery Practice," seems to be based on the old New York Chancery Rules and Daniel's Work, and thus sets forth more especially the New York State practice. The writer desires to express his thanks to his friends Walter S. Holden and Edward T. Lee for their valuable suggestions and help. George Frederick Rush. Chicago, April 1, 1909. CONTENTS. PAGE Introduction 7 Bills In Equity 13 Tabular analysis of bills in equity 15 Original bills 16 Formal parts of bill 16 Stating part of bill, continued 20 Bill of interpleader 24 Multifarious bill 25 Impertinence and scandal in bill 25 Bills Not Original 26 Supplemental bills 26 Bills of revivor 27 Bills of review 27 Cross-bills 29 Tabular Chart of Bills Not Original 33 Appearance and Time to Pile Pleading 34 Defenses to Bill 35 Demurrer 35 Plea 39 Answer 43 Disclaimer 51 Chart of defenses in equity 50 Replication 51 Amendments 52 Masters in Chancery, Duties and Powers 58 Production of books and writings before the master 61 Reference to state account 62 The master's report 63 Objections and exceptions to master's report 64 Special commissioners 67 Examiners 70 Evidence in Chancery, in General 70 Taking testimony 72 Preserving evidence in the record 73 Objections and rulings upon evidence 75 Different forms in which testimony appears of record in a cause 77 1. A judge's certificate of evidence 77 2. A master's report of evidence 78 3. Depositions 79 4. Affidavits 79 Evidence in the master's office in Cook County 82 11 CONTENTS. PAGE Evidence in Chancery, in General — Continued. Objections to evidence in Cook County 85 Nature of liearing before a master in Illinois 86 Production of books and writings in evidence 87 Proof of Statutes, of Court Records, etc 87 Witnesses 89 Hearing in Court 91 Decrees and Orders 92 Final and interlocutory decrees 93 Pro confesso decrees 95 Enforcement of decrees 98 Motions 99 Dismissal of Bill 100 Costs 101 Chancery Record in Illinois 102 Injunctions 103 Receivers 105 Ne Exeat 110 Parties 112 Tabular Chart of Parties in Equity 115 Forms 120 Rules of the Chancery Courts of Cook County. Illinois.... 159 Equity Rules of Practice of the Supreme Court of the United States 173 TABLE OF CASES CITED. PAGE Acme Copying Co. v. McLiire 29, 96 Adams v. Gill 57 Adams v. Porter 45 Adams v. Valentine 29 Aholtz V. Goltra 38, 278 Alexander v. Tolleston Club 105 Allison V. Drake 13 American Bible Society v. Price 55, 57 Angelo V. Angelo 20, 216 Ashmore v. Hawkins 45, 299 Atkinson v. Linden Steel Co 75, 308 Badeau v. Rogers 29 Bailey v. People 9 Baker v. Adm. of Backus 106 Ballance v. Underbill 29 Bank v. Seton 46 Bank v. Sheffey 94 Banks v. Manchester 47 Barker v. Belknap 31 Barton v. Barbour 109, 355 Bassett v. Bratton 110 Bate Refrig. Co. v. Gillette 60 Bates V. Garrison 93 Bates V. Skidmore 101, 347 Bauer Grocer Company v. Zelle 57 Baumgartner v. Bradt 37 Beale v. Beale 59 Bean v. Clark 41 Beecber v. Bininger 106 Beese v. Becker 97 Belleville v. Citizens' Ry. Co 59, 73 Beneppe v. Meier 56 Benneson v. Savage 24 Bentley v. People 62 Bickerdike v. Allen 19 Bird V. Bird 25 Blair v. Reading 100, 331 Blease v. Garlington 73, 74, 77 Board, etc., v. Smith 97 Bolter V. Kozolwski 62 Booth V. Clark 108 Booth et al. v. Wiley et al 55 (iii) IV TABLE OF CASES CITED. PAGE Botsf ord V. Beers 17 Bowie V. Minter 26 Boyce's Executors v. Grundy 11 Brauer v. Laughlin 12 Brewing Company v. Wolford 23 Brown v. Lake Superior Iron Co 11 Brueggestradt v. Ludwig 66, 84, 86 Bruner v. Battell 97 Bruschke v. Verein 27, 36 Buford V. Rucker 116 Bunnel v. Stoddard 77 Burke v. Smith 26 Bush V. Mattox 106 Caller v. Shields 27 Campbell v. Benjamin 30, 46 Campbell v. Powers 20, 58, 93, 209 C. & B. I. R. R. Co. V. Lawrence 77 Carroll v. Tomlinson 59 Casstevens v. Casstevens 18 Caswell V. Caswell 98 Central Trust Co. v. Grant Locomotive Works 94 Chaffin V. Kimball Heirs 96 Chambers v. Lecompte 38 Chambers v. Kowe 47 Chapin v. Coleman 40 Chapman v. Barney 116 Chicago, etc., Ry. Co. v. Chicago Nat. Bank 53 Cline V. Cline 37 Coel V. Glos 85 Coffin V. Cooper 25 Coleman v. Lynde 48 Collins V. Manville 13 Commissioners v. Dehor 53 Contee v. Dawson 48 Cooper V. Gum 55 Cosequa v. Panning 85 Cost V. Rose , 95 Cox V. Pierce 60, 79, 83, 84, 85, 328 Craig V. The People 48 Crane v. Deming 38 Crawford v. Bell 105, 352 Crockett v. Lee 23 Crombie v. Order of Solon 107 Crozier v. Acre 101 Crutcher v. Trabue 31 Cusack V. Budasz 59 Cummins v. Cummins 46, 301 Cushman v. Bonfield 44 TABLE OF CASES CITED. V PAGE Davis V. Collier 45 Davis V. Davis 69 Davis V. Gray 106 Davis V. Schwartz 61 Dean v. Ford 49 De Groot v. Jay 109 Deimal v. Brown 47 Derby v. Gage 47, 318 Devereaux v. Fleming 108 De Wolf V. Pratt 23 Dickinson v. Torrey 86 Dillon V. Barnard 35 Dodge V. Perkins 37 Dorn V. Ross 82 Dowden v. Wilson 45, 56, 295 DHver v. Fortner 18 Dunn v. Keegin 41 East India Co. v. Hinchman 35 Egbert v. Gerding 27 Eisenmeyer v. Sauter 78 Elder v. Jones 112 Ellsworth V. Curtis 51 Ellwood V. Walters 76, 77 Elzas V. Elzas 28, 255 Emerson v. Atwater 66 Ennesser v. Hudek 58, 66 Erissman v. Erissman 51 Farley v. Kittson 41 Farmers Loan & Trust Co., In re 94 Fayerweather v. Ritch 77 Fellers v. Rainey 27 Field V. Golconda 58 First Nat. Bank v. Baker 75, 100, 345 First Nat. Bank v. Mansfield 87 Fitchburg Steam Eng. Co. v. Potter 63 Fitzpatrick v. Beatty 20, 45 Foster v. Foster 40 Fowler v. Hamill 94 Freeney v. Freeney 77 Gage V. Bailey 35 Gage V. Brown 57 Gage V. Parker 24 Gardner v. Cohn 30, 45 Gardner v. Watson 39 Gibson v. Rees 58 Glos V. Dietrich 48 VI TABLE OF CASES CITED. PAGE Glos V. Hoban 75, 76, 86 Goelz V. Goelz 77 Goodwin v. Bishop 23, 236 Gorman v. Mullins 74 Gordon et al. v. Reynolds 55,77 Gormley v. Bunyan 53 Gould V. Banking Co 60, 84 Gouwens v. Gouwens 30,41 Graffam v. Burgess 53 Grant v. Phoenix Life Ins. Co 39 Green v. Bishop 66 Green v. Bogue 41 Griswold v. Hazard 110 Grob V. Cushman 74 Grubb V. Crane 96 Gruenberg v. Smith 47 Hahn v. Huber 57 Haines v. Carpenter 106 Hair v. Dailey 19, 44, 48 Hale V. Hale 114 Halligan v. R. R. Company 24 Hamilton v. Downer 24 Hamilton v. S. N. Gold Min. Co 76 Hardin v. Boyd 53 Harding v. Durand 21, 53 Harding v. Handy 66 Harding v. Harding 59 Hards v. Burton 58 Harms v. Jacobs 57 Hathaway v. Foy 28 Haupt V. Henninger 79 Hayes v. Hammond 65, 66, 79 Hayes v. Mays 93 Henderson v. Harness 84 Hewitt et al. v. Dement et al 55 Higgins, Estate of 109 Hill V. Babin 10 Hill V. Chicago R. R. Co 94 Hills V. Parker 109 Hoagland v. G. W. Tel. Co 87 Hoborst V. Hamburg Am. Packet Co 94 Holbrook v. Ford 109 Holdridge v. Bailey 85 Hollingsworth v. Koon 102 Hook V. Richeson 30 Hooper v. Winston 106 Hopkins v. Medley 18, 43, 44 Horn V. Dry Dock Co 41 TABLE OP CASES CITED. Vll PAGE Howe V. South Park Commissioners 29 Hughes V. Blake 41 Hughes V. Bloomer 47 Hughes V. Carne 26 Hughes V. Hatchett 106 Hurd V. Goodrich 66 Hutchinson v. American Palace Car Co 106 111. Cent. V. Panebiango 75 Ins. Co. V. Bailey 11 Intyre v. The People 69 Jackson v. Jackson 27, 247 Jackson v. Lahee 108 Jackson v. Sackett 49, 75, 79 Jefferson County v. Ferguson 55 Jeffery v. Robbins 94 Jewell V. Paper Co 64 Jewett V. Sweet 45, 282 Johnson v. Johnson 98, 99 Johnson v. Railway Co 100, 339 Jones V. Neeley 51 Judson V. Stephens 27 Karnes v. Harper 98,99 Kaufman v. Wiener 11 Keeley Co. v. Hargreaves 63 Keller v. Ashford 46 Kilbourn v. Sunderland 11 Kimberly v. Arms 61 King V. Cooper 45 Kingman v. Mowry 51 Knapp V. Marshall 93 Koch et al. v. Roth 55, 56 Land Co. v. Peck 59 Langlois v. Matthiessen 100 Langiois v. McCulIom 36 Larvis v. Wis. Cent 22 Latta V. Kilbourn 94 Leeds v. Insurance Co 47 Leggett V. Postley 45 Lester v. People 62, 88 Lester v. Stevens 40, 42, 280 Lewis et al. v. Lanphere 55 Lill V. Clark 60 Lincoln v. Purcell 35 Lloyd V. Kirlvwood 29, 264 Loaiza v. Superior C. T 106 VIU TABLE OF CASES CITED. PAGE Long V. Fox 37 Loughridge v. Insurance Co 47, 313 Lyman v. Bonney 38 Lyman v. Central Vermont R. Co 109 Lyndon v. Lyndon 58 Lyon V. Robbins 98 Maher v. Bull 47, 316 Mahr v. O'Hara 45, 288 Marble v. Bonhotel 55 Marble v. Thomas 64 Marple v. Scott 52, 71 Martin v. Gilmore 98 Martin v. McBryde 24 Mason v. Blair 55, 79 Mason v. Rollins 104 Massenberg v. Dennlson 74 Maxwell v. Kennedy 38 McArtee v. Egart 53, 57 McCagg V. Heacock 31 McClay v. Norris 67, 71, 78, 85 McClintock v. Helberg 28, 259 McCloskey v. McCormick 36 McConnel v. Holobush 25 McDonald v. Asay 26, 253 McDougald v. Dougherty 31 McDowell V. Cochran 36 McFall V. Kirkpatrick 114 McGeorge v. Big Stone Co 109 McGillis V. Hogan 30 McGourkey v. North River Bridge Co 94 McGowan v. Young 71 McMahon v. Rowley 85 McMannomy v. Walker 66 Meagher v. Thresher Co 94 Mechanics' Bank v. Landauer 109 Metcalf V. Cady 24 Metropolis Nat. Bank v. Sprague 29 Mey V. Gullman 47 Midland Co. v. Anderson 109 Middleton v. Doddswell 107 Millard v. Millard 75, 76, 77 Miller v. Cook 26 Miller v. Jones 107 Miller v. Pecks 41 Mills V. Larrancc 29 Miltimore & Ferry 66 Moffett V. Hanner 62 Mohler v. Wiltberger 100 TABLE OF CASES CITED. IX PAGE Monarch Brew. Co. v. Wolford 239 Monroe Cattle Co. v. Becker 116 Moore v. Bracken 28 Morgan v. Smith 21 Morton v. Smith 20 Moshier v. Pvnox College 55, 57 Mosier v. Norton 45, 62 Mosler v. Norton 59 Moss V. McCall 59 Mulcahey v. Strauss 109 Munger v. Crowe 37 Nat. Bank v. Carpenter 38 Neale v. Neale 53 Neal V. Foster 31 Newell V. Bureau County 23, 227 No. Am. Ins. Co. v. Yates 24 Oakley v. Bend 38 Ogden B. & L. Ass. v. Mensch 76 Ohio R. Co. V. Russell 109 Ohman v. Ohman 75 O'Neill V. K. C. R. Co 101 Onondaga Trust Co. v. Spartansburg Water Wks. Co 106 O'Toole Estate, In re 61 Owen V. Ranstead 72, 78, 83 Page V. Greeley 20 Parker v. Moore 107 Paxton V. Stackhouse 30 Pennell v. Insurance Co 64 Pitman v. Thornton 27 Potter V. Potter 71 Prendergast v. McNally 64 President v. Wilson 40 Preston v. Hodgen 59 Primmer v. Patten 20, 214 Primrose v. Fenno 101 Prince v. Cutler 79, 84 Purf ry v. Purf ry 24 Pynchon v. Day 87 Quick V. Lamont 32 Ranger v. Champ. Cot. Press Co 108 Reichl V. McGrath 25 Remsen v. Remsen 62, 78 Rhoads v. Rhoads 96 X TABLE OF CASES CITED. PAGE Rhode Island v. Mass 41 Richards v. Barrett 107 Richmond v. Ii'ons 53 Rigdon V. Conley 88 Roach V. Glos 47 Robinson v. Smitli 42 Rollins V. Henry 107 Russell V. Wait 93 Ryan v. Lamsoii 28 liyan v. Sanford 79 Ryder v. Bateman 106 Sale V. Fike 98 Schneider v. Seibert 96 Schlesinger v. Allen 92 Schnadt v. Davis 63, 79, 85, 321 Scott et al. V. Harris et al 55 Scott V. Millikin 31 Seller v. Schaefer 96 Sexton V. Brock 79 Shadewald v. White 108 Sheldon v. Robbins 23 Shields v. Barrow 30 Shields v. Bush 29, 271 Singer v. Steele 66 Smith V. Billings 84 Smith V. Brittenham 23, 96, 229 Smith V. Potter 71 Smith V. Trimble 75 So. Chicago Brew. Co. v. Taylor 50, 58 Spangler v. Spangler 39 Spencer v. Goodlett 16 State V. Baker 104 Stafford v. Brown 48 St. L. A. R. R. Co. V. Hamilton 109, 377 Stirrat v. Excelsior Mfg. Company 25 Story V. Livingston 46, 66 Stow V. Russell 20 Sullivan v. Railroad 23 Supervisors, etc., v. Miss. R. R. Co 17 Swift V. Castle 75 Swift V. School Trustees 46, 302 Tausey v. McDonnell 27 Tesla V. Scott 101 The Protector 116 The Tremolo Patent 53 Thompson v. Wooter 95 TABLE OF CASES CITED. XI PAGE Titus V. Mabie 354 Toledo R. Co. v. St. Louis R. Co 11 Teles V. Johnson 24, 243 Tourville v. Piorson 43 Troy Iron v. Corning • 79 Trust Co. V. R. R. Co 35 Twiner v. Bank 21 U. M. Life Ins. Co. v. Slee 86, 87 Varick v. Smith 23 Walker v. Powers 24 Wall V. Stapleton 84, 85 Walwork v. Derby 47, 303 Wangelin v. Goe 367 Wanneker v. Hitchcock 107 Waska v. Klaisner 66 Watts V. Rice 28, 248 Waugh V. Robbins 20, 74, 9G, 207 Weaver & Alter 31 Wheeling & B. Bridge Co. v. Wheeling Bridge Co 94 White V. Morrison 21, 51, 77, 78, 219 Whiting V. Bank 27 Whitney v. Mayo 112 Wight V. Downing 30 Wilcox V. Allen 30 Wilder v. Keeler 26 Wilkin V. Wilkin 18 Williamson v. Monroe 12, 274 Winslow V. Noble 23, 222 Wisner v. Barnet 38 Wolfe V. Bradberry 67 Wolverton v. Taylor & Co 56 Woodlan Bank v. Heron 108 Woods V. Morrell 25 Wooster v. Gumbirner 61 Worthington v. Lee 51 Wright V. Frank 30 Wynn v. Taylor 62 Yarnell v. Brown 93 Yates V. Monroe 28 A MANUAL -OF— EQUITY PLEADING AND PEACTIOE INTRODUCTION, The principles, forms and precedents of the ancient common-law courts became so fixed and narrow and were so strictly adhered to by the common law judges, that frauds and wrongs, disguised and protected under the forms and precedents of the common law, could not be adequately remedied. The common law judges had fallen into the error of following the strict letter in- stead of scrutinizing the reasoning of prior decisions. The King therefore, established himself as a court of extraordinary powers. It became known as a court of *'the King's Conscience," a "Court of Equity," which concerned itself more about substance or reason than form, more about the true intent and effect of acts than about the form of acts, however disguised as lawful. This court, while respecting the forms and precedents of the common law, did not feel bound by them to the extent of withholding the justice demanded by the peculiar facts of a case. In time this new court, by its body of decisions, de- veloped its own principles or maxims, its own preced- ents, and its own rules, and we have "reports" of Equity cases, as we have "reports" of law cases. These precedents, in a measure, have also become more or less fixed; but the historical purpose of this court will prevent it from falling into the ancient rigidity of the common law. Certainty, stability and consist- ency in decisions, are necessary to any good system of law. It is the essence of English and American law that a decision whether at common law or in equity, based upon just and sufficient reasons or grounds, 8 stand as law, except as it must be enlarged or be modi- fied to suit controlling and more just reasons (Black- stone 70). That is what is meant by the doctrine of ''stare decisis;" that is what is meant by "case law;" that is what is meant by "the common law," and "equity law." If a former decision is manifestly un- just, it is not law (Blackstone 70). Common and Equity law are ' ' Judge-made laws, ' ' a phrase much mis- understood. The phrase "common law" is often used to denote non-statute law and thus includes equity law (1 Kent 492). Broadening and changing with reason, is the virtue and excellence of the common law and equity law, as contrasted with domestic statute law or with foreign statutory codes. Statutes can be changed only by legislative re-enact- ment, and suitors are not permitted to appear there for relief. Administrative statutes, setting up and regulating, not rights themselves, but the various governmental agencies and procedures for the protection of rights, are necessary to conserve rights, and are proper subjects for the legislature. But statutes cannot, so well as courts, go beyond this field and attempt to define the infinite principles of human justice. Rights depend upon the unforseeable combination of facts in each case. Pro- nouncing what is right or wrong under the peculiar facts of a case, is best done by courts, the governmental agency established for the purpose. (Blackstone 61). If the legislature could foresee every combination of facts that may occur, have them elucidated by opposing parties, and have them pronounced upon by impartial experts, then these pronouncements, embodied in stat- utes, would be something like the law formulated by equity and common law judges; and they would be about as voluminous. The forum for administrative law is properly the legislature ; the forum for the law of rights, justice, is properly the court, the only place where, in the course of time, every conceivable right is earnestly asserted, fully defended, strongly attacked, fully discussed and impartially decided. The inherent rights of man arise out of his nature, and tlms are not artificial, verbal ideas, but facts de- termined by nature itself. These ''inalienable" nature- given rights exist independently of any expression or pronouncement by ruler, man, judge or legislature, (Blackstone 54), and it is "to secure" them and "the blessings of hberty" that governments and statutes are established (Declaration of Independence; Constitu- tions of the United States and of the various States). Such rights are broadly recognized and confessed in the preambles, or bills of rights (Bailey v. People, 190 111. 28), or other clauses, of state and national constitu- tions. For man's intellectual use and guidance, however, it is necessary that some authoritative agency, like the courts, through their decisions, formulate rights in lan- guage as accurately as possible from time to time, ac- cording to the light of reason, which means according to just and true grounds, so far as the race is able to perceive them. These decisions are law if the reason- ing is sound. Tims, in American and English law, un- like the foreign Napoleonic statutory code law, the basic rights of man, "among which are life, liberty, and the pursuit of happiness," phrases which include numberless rights, are not intended to be created or limited by statutory words, but are discoverable by sound reason alone; and justice is "established" not upon the words of this or that legislature, or king, or mob, not even upon unreasonable or degraded custom, but upon sound reason alone. "Reason Is the highest law," said Cicero. "What is not reason is not law," says Blackstone. "He knows not the law who knows not the reason thereof," says Coke. "Her seat is the bosom of God," says Hooker. It is because our system of law rests upon such foundations that the American or English lawyer becomes a zealous stud- ent, an enthusiastic devotee of the law. The ancient common law judges exaggerated the importance and sufficiency of their own pronounce- ments, and narrowed the meaning of stare decisis. Had they been expounders rather than dogmatizers, there would have been no need for the invention of Equity. 10 Equity courts rescued English law from the slavery to the letter of precedents, into which the common law had fallen; and now together they constitute one sys- tem, each court merely handling a distinct class of cases, (1 Story, sec. 25), and both conservedly but steadily reforming and enriching the expression or letter of the law, thus guiding its stately progress to- wards the ''perfection of reason." The ancient office from which chancery writs were issued and to which they were returned was known as the ^^officina justitiae/' or "the office of justice." It was also sometimes called "the court of chancery." The officer authorized to issue the writs finally became the presiding officer of the court, and was called the Chancellor, and later he was known as the Lord Chan- cellor, and the court grew to be the highest court next to Parliament. The Chancellor was also called "the Keeper of the Great Seal" and "the Keeper of the King's Conscience." From the earliest times the Court of Equity exer- cised extraordinary powers, and conflicts arose between its jurisdiction and that of the common-law courts as early as the fourteenth century. In 1616 Sir Edward Coke, Chief Justice of the King's Bench raised a great contention against the power of Courts of Equity to grant relief after a judgment at law or against a judg- ment at law. The King, James I, sustained his Chan- cellor, Lord Elsmere, in this controversy. In later centuries it came to be settled and accepted that Equity Courts could have no jurisdiction where there was an adequate remedy at law. It was established that it did have jurisdiction where courts of law could not give a definite, adequate and complete remedy. If such a case is not shown by the bill of complaint, even if no objection is made by demurrer, plea, answer or by suggestion of counsel, it is the duty of the court to recognize the objection (Hill v, Babin, 19 How. 278.) Parties may not even by consent confer jurisdiction upon a court of equity which properly belongs to the 11 common law court. (Toledo R. Co. v. St. Louis R. Co., 208 111.623). If the court of equity has jurisdiction over the sub- ject-matter and can grant the relief sought, the objec- tion to the jurisdiction on the ground that there is an adequate remedy at law should be taken ]n-om]itly and before entering upon a defense to the merits (Kilbourn V. Sunderland, 130 U. S. 505 ; Brown v. Lake Superior Iron Co., lo-t U. S. 530). In Illinois such objection must be raised by demurrer, plea or answer or it will be waived (Kaufman v. Wiener, 169 111. 596). If the case contains some one or more of the recog- nized grounds of jurisdiction in equity, the remedy at law, if one exists, to exclude jurisdiction in equity, must be as practical, as complete, as prompt, and as efficient, not only with respect to the immediate action, but in obviating the need of further litigation concern- ing the subject-matter of the controversy, and in pre- venting irreparable or continued injury and damage. (Boyce's Executors v. Grundy, 3 Peters, 210; Ins. Co. V. Bailev, 3 Peters, 210; Kilbourn v. Sunderland, 130 U. S. 505). In Illinois, if a party commencing any civil suit or proceeding has misconceived his remedy, he may be permitted, in the discretion of the court, and on pay- ment of all accrued costs and such clerk's advance fees as are required for the commencement of the suit in the proper form, by proper amendments, in the same proceeding, to transfer the suit, if at law, to chancery, and if in chancery, to the law docket of the court ; and when so transferred, the suit shall proceed as though originally commenced on such side of the court (Sec. 40 111. Stat. Practice). Equity jurisdiction may be auxiliary to, concurrent with, or exclusive of the jurisdiction of courts of law: auxiliary, as, for instance, a bill of discovery to aid a proceeding at law; concurrent, as, for instance, a suit at law for damages for a breach of contract, or a suit in Equity for specific performance of the contract ; ex- clusive, as, for instance, a bill seeking the reformation 12 of a written instrument, a proceeding not permitted at common law. If a court of equity has once properly obtained jurisdiction upon some Equity principle, it will retain such jurisdiction even to the extent of granting relief which a court of law also could adequately bestow (Williamson v. Monroe, 101 Fed. 322). If every averment which would authorize a court of equity to take jurisdiction is found by the court to be not proved, the fact that the proof shows complain- ant has a legal demand against defendant for money loaned does not justify the court in retaining jurisdic- tion and entering a money decree, no reason appear- ing why the remedy at law is not complete and ade- quate (Brauer v. Laughlin, 235 111. 265). However, the Illinois Statute on Mechanic's Liens provides that if a lien claim fails, complainant may, in a proper case, obtain a judgment for money as at law. Mechanic's lien claims are adjudicated in Equity C'Ourts not be- cause such claims present issues recognized by courts of Equity, but only because the statute imposes such special remedy upon these courts, instead of common law courts. In most of the courts of the United States the ad- ministration of equity jurisdiction is distinct and sep- arate from the administration of common-law juris- diction; and therefore Equity pleading is a distinct system of pleading. It is necessary for the student to understand the nature of a court of equity, also its principal maxims, and also the chief subjects of equity jurisprudence, in order to have an intelligent idea of the Equity system of pleading. It may be said, further, that the courts of equity differ from those of common law as follows : At com- mon law the defendant can be brought into court by an original writ before declaration filed; in equity he is brought in by a subpoena or summons after the bill is filed. At common law, oral evidence is offered be- fore a jury in open court ; in Equity, the evidence is re- duced to writing, usually in the form of depositions, taken outside of court, and is afterwards delivered 13 in court and read to the court at the hearing of the cause. At law, the decision of the case is in the form of a judgment for the plaintiff or defendant in dam- ages ; in Equity, the decision is in the form of a decree, not merely in damages, but so framed as to suit all the varied necessities of each case. The chief pleadings in an Equity case are: (1) the bill of complaint; (2) the demurrer, plea or answer of the defendant; and (3) the replication of the com- plainant. BILLS IN EQUITY. A suit in Equity, if brought by a private person, is begun by a Bill or Petition. If brought by the Attor- ney-General or State's Attorney on behalf of the Gov- ernment or people, the complaint is called an Informa- tion. As against limitation statutes, a suit in Illinois is not considered as begun until process or summons has been issued and bona fide delivered to the sheritf for proper service (Collins v. Manville, 170 111. 614). And a suit in Illinois is not considered as begun, so as to be notice to the world by lis pendens, until bill is filed and summons served, or appearance entered (Allison v. Drake, 145 111.500). Bills are: (1) Original, which begin a suit; and (2) Not Original, which are filed in a suit already begun. Original Bills are (1) Bills of Complaint, wherein complainant seeks a decree determining his claims against the defendant, such as Bills for Specific Per- formance, for Foreclosure of Mortgages, for Breach of Trust, etc.; (2) Bills of Interpleader, wherein com- plainant seeks a decree determining not his own claims but those of rival claimants to property in his hands, that he may safely turn over the property to the rightful owner; and (3) Bills of Certiorari (now obso- lete as a method of appeal), formerly chiefly used to transfer a case from an inferior to a higher court, in modern practice accomplished by statutory appeals and writs of error; (4) Bills of Discovery (now almost 14 obsolete, because parties to a suit can be compelled to testify), asking defendant to disclose facts in his knowledge, or for writings in defendant's control; (5) Bills to Perpetuate Testimony, or Bills to Examine Witnesses de bene esse, for the purpose of preserving evidence against loss through old age of witnesses, illness, or intended absence. The first three bills are known as bills praying for relief; the last two are known as bills not praying for relief. Bills not Original are: (1) Supplemental Bills, set- ting forth facts occurring after bill filed and correcting bill to agree with such facts, or to introduce new party made necessary since bill filed; (2) Cross-bills, filed by defendant against complainant or co-defendant to avoid mere dismissal of bill and to get affirmative re- lief in same suit against complainant or co-defendant; (3) Bill to Impeach a Decree for Fraud; (4) Bill to Suspend a Decree under special circumstances or because of facts discovered after hearing of cause and after decree; (5) Bill to Carry a Decree into Effect, when, from neglect or other cause, it is im- possible without a further order of court; (6) Bill of Eevivor, to revive suit which would abate by death of party or other cause; (7) Bill of Eeview, to review, alter or reverse the decree for (a) error of law, or (b) for new matter discovered after decree. H H-l H 13 Sja M o ^""^-^ a« ® t^ =« =3 3 M o.>, a^ g ^ I— iZh WHO) as "-^ •5 a o o S o S ^ 2 o D a o 'Si QQ C hJ t-5 fl HH pq _^ fe J3 O & . C8"" 00 0.2 50 u u 16 ORIGINAL BILLS. An Original Bill usually lias nine parts : (1) The Address to the Court by correct title of court ; example, ' ' To the Judges of the Court of , in Chancery sitting:" (U. S. Eq. inile 20.) (2) The Introductory part, introducing the names, citizenship and abode of the parties, as: "A. B., a citizen of and residing in the County of , in the State of , brings this Bill of Complaint against C. D., a citizen of and residing in the County of .in the State of , and complains and avers as follows:" (U. S. Eq. Rule 20; 1 Smith 82; 1 Barb. 35.) The names of parties do not occur in the caption or title to an Original Bill. (Spencer v. Goodlett, 104 Tenn. 648.) (3) The Stating Part: Statements, allegations, averments of all principal facts showing a right recog- nized by equity courts in a clearly described subject- matter, and showing such right to be possessed by com- plainant and without being barred by laches, statutes of limitations, or statutes of frauds; also statements of all principal facts showing a violation or threatened violation of that right and naming the defendants con- cerned in such violation; also statements of facts show- ing the names of all other persons as defendants having or claiming an interest in the subject-matter of the suit, and statements showing the citizenship and residence by state and county of all parties; also statements of facts showing that substantial injury to complainant, his family, or property, and growing out of the sub- ject-matter of the suit, has resulted or will result be- cause of such violation; also statements of such other facts as may be necessary to justify and explain each particular relief prayed for, as for instance, complain- ant's statement of what he has done, or offers to do, in the way of equity on his part. (4) The Confederating part, an averment that 17 defendants named confederated with other persons, unknown, and asking leave to join the latter when dis- covered. This part is obsolete, because now new par- ties can be added by amendment (Supervisors, etc., V. Miss. E. E. Co., 21 111. 367; also, U. S. Eq. rule 21). (5) The Charging- part, statements anticipating the defenses expected and meeting them with counter charges. It is in effect a special replication in antici- pation of the answer expected (Supervisors v. Miss. E.E., 21 111.368). Example: Defendant will pretend to have a written release of all claims; but plaintiff avers such pretended release was obtained by the fraud- ulent acts of said defendant, as follows, etc. The charg- ing part is not necessary to a bill, except for the pur- pose of avoiding later amending the original bill, when the ]3leader knows matter confessing and avoiding the bill may be expected in the answer. If the stating part of the bill has not covered the anticipated defense, it may be well to do so in the charging part of the bill (Supervisors, etc., v. Miss. E. E. Co., ante. U. S. Eq. rule 21 authorizes omission of charging paragraph and permits statement of anticipated defenses in stat- ing part.) (6) The Jurisdiction clause, averring that com- plainant's case is within the jurisdiction of the court, and that except in a court of equity he has no remedy. This clause should not be used, and never was neces- sary. If the stating part of the bill does not show a proper case for Equity, this clause will not help, and its omission does no harm (Botsford v. Beers, 11 Conn. 369, 373; also, U. S. Eq. rule 21). (7) Interrogatory or Discovery Part : A general in- terrogation or prayer that defendants answer each matter stated in the bill as fully as if specially interro- gated thereon, not only according to positive knowl- edge, but upon their best recollection, information and belief ; to which general prayer may be added a special prayer to answer a particular list of interrogatories seriatim set forth in this part of the bill (1 Dan. 486- 8; 2 Dan. 238). The general prayer for answer is usually called the 18 *' general interrogatory;" and tlie list of questions, if added, is called the "special interrogatories." Whether this part of the bill consists of the general in- terrogatory alone or of both the general and special, it is the part of the bill tvhich seeks and obtains discov- ery from the defendants to disclose the full truth in their answers as to all matters stated in the bill (16 Cyc. 223). And this is true whether the bill be one for discovery only or a bill for both relief and discovery, as is more usual (Hopkins v. Medley, 97 111. 414). The general interrogatory should never be omitted, though the special interrogatories are usually omitted, be- cause the general interrogatory, unaided by statutes, requires the defendants to admit or deny each material allegation of fact set forth in the bill, with attending circumstances, or to deny knowledge or information or recollection thereof, and declare themselves unable to form any belief concerning them (1 Dan. 487; 1 Barb. 131). The peculiar nature of an answer in chancery, with its full responsive disclosures as well as matters of defense, so diiTerent from an answer at law, which need answer nothing so long as it sets up a defense, is due to the peculiar prayer for discovery in the chan- cery bill (Hopkins v. Medley, 97 111. 414; 1 Barb. 130). U. S. Equity rules 39 and 40 excuse full answers where special interrogatories are omitted, if the an- swer sets forth a defense in bar or to the merits such as might be set forth in a plea. In Illinois, by statute, this full answer must be made, whether answer under oath be waived or not (Sec. 23, 111. Stat. Chan.; Hair v. Dailey, 161 111. 379). The ef- fect of waiving answer under oath merely destroys the character of the answer as evidence, making it mere pleading (Bickerdike v. Allen, 157 111. 95) ; but the waiver of oath does not lessen the duty of the defend- ant to answer fully if he elects to answer instead of filing a plea or demurrer. But in the Federal courts, under Equity rule 39, defendant is permitted to file and set up in his an- swer all matters of defense in bar or to the merits, 19 which he might also have set up by plea, without an- swering other matters except such as he must have answered, if a plea filed would have required an an- swer in its support. Under this rule it would seem that a plea may be filed under the name of an answer. (8) The Prayer for Relief, wherein the complain- ant prays the court to decree and order the defendant to do or refrain from doing certain things mentioned in the prayer, and wherein complainant also prays in general "for such other and further relief as may be just and equitable." If the specific prayer is errone- ous, the court will, under the general prayer, grant such relief as may be proper (Casstevens v. Casstev- ens, 227 111. 547). In the absence of a general prayer, this could not be done (Driver v. Fortner, 5 Port. Ala. 9; Wilkin v. Wilkin, 1 Johns. Ch. 111). If an injunction is sought, complainant should spe- cifically pray for a decree enjoining the particular acts complained of as threatened in the stating part of the bill, because the writ of injunction, if obtained, should follow the prayer, and will be limited by it. The gen- eral prayer for relief is not a sufficient basis for the writ of injunction ordinarily (Story Eq. PL, Sec. 41) ; and if any other special writ or order, is sought, com- plainant should pray for same in this part of the bill. A writ of ne exeat being an emergency writ can be obtained by petition. No prayer is necessary (1 Smith, 86). Statutes usually permit the writ of ne exeat to issue upon special petition, whether or not prayed for in the prayer of the original bill. (9) Prayer for Process, asking the court to grant issuance of process or writ of summons, commanding defendants to appear and answer the bill, and to grant other writs desired. When injunction is prayed for, the prayer for pro- cess should also ask the court to grant the issuance of a writ of injunction against the defendant. But see U. S. Eq. rule 23). The prayer for process must name the defendants to whom the writ is to issue (1 Smith 85; 1 Barb. 38), and the Prayer for the Injunction 20 Writ sliould name the persons against wliom the writ of injunction is to issue. If any defendants are infants or otherwise under guardianship, the fact should here be stated or recited, so the court may make order thereon as justice may re- quire upon the return of the process (U. S. Eq. rule 23). The above is a brief summary of the nine parts of a bill. The Confederacy Clause should be omitted. The Charging Part may be used or not, as advisable. The Jurisdiction Clause should be omitted. The gen- eral interrogatory part is used, but the special inter- rogatories are used only when desired. The bill should always be signed by the solicitor for the complainant. When injunction is prayed, the bill should be sworn to by the complainant. Otherwise, unless the statute requires it, no oath to the bill is necessary if answer under oath is waived (1 Barb. 44). STATING PART OF THE BILL, CONTINUED. A party seeking aid of a court of equity must show all the facts necessary to entitle him to that aid Campbell v. Powers, 139 111. 128; Waugh v. Bobbins, 33 111. 182). The right, title and interest of the com- plainant should be stated with accuracy and clearness, and the proof in the case must correspond with the allegations (Fitzpatrick v. Beatty, 6 111. 454). The material allegations of the bill must be clearly and positively averred (Primmer v. Patten, 32 111. 528), and in a traversable form (Stow v. Bussell, 36 111. 18), and not by way of recital; and a party cannot have relief upon a case not stated in his bill (Page v. Greeley, 75 111. 400; Morton v. Smith, 86 111. 117; Angelo V. Angelo, 146 111. 629). But the claims of the defendant may be stated in general terms (Story's Eq. PL, Sec. 255). Where the extent and character of defendant's rights are more within the knowledge of defendant, it is sufficient to allege generally that the defendant has or claims to have some rights in the 21 subject-matter of the suit, leaving him to disclose in his answer the nature and extent of such rights (Mor- gan v. Smith, 11 111. 194). The citizenship and residence by state and county of complainants and defendants should be distinctlj^ averred because it is usually one of the grounds of the court's jurisdiction. For example: section 3 of the Illinois Chancery Act requires a suit to be begun in the county in which one or more of the defendants reside and in this state a complainant in a suit for divorce must have resided one year in the state. The jurisdic- tion of the federal courts often depends upon the di- verse citizenship of the parties (Turner v. Bank, 4 Dall. 8). Here in the stating part (IT. S. Eq. rule 21) as well as in the charging part, the complainant may antici- pate a defense and allege any matter necessary to ex- plain or avoid it; or, omitting to do so, on the coming in of the answer with new matter, complainant may meet this new matter by an amendment to the bill (White V. Morrison, 11 111. 361; Harding v. Durand, 138 111. 515). In narrating the facts, only the main or ultimate facts need be alleged, without stating the circum- stances or evidence of such main facts (Story's Eq. PL, Sec. 28). Every case at law or in equity involves: (1) deter- mining and declaring the main facts, findings of fact; (2) determining and declaring the legal meanings, ef- fects or consequences of the facts (that is, determin- ing the rights and duties consequent upon the facts, also spoken of as "applying the law to the facts"), findings or conclusions of law upon the facts; (3) com- manding the enforcement of the legal consequences of the facts, the mandate of the court enforcing the law upon the facts. A careful lawyer will first possess himself of and keep in hand the clear evidence of all necessary facts ; he will then clearly plead the main facts which make his case; he will then clearly prove the pleaded main facts by his evidence ; he will then present to the judge 2^ a prepared decree clearly finding those main facts as pleaded, clearly finding the law (or rights and duties involved in those facts), and clearly ordering the par- ticular acts or conduct necessary to enforce such rights and duties. The careful lawyer will be sure he has the facts ; he will be sure to plead them ; he will be sure to prove them; he will be sure his decree finds them and enforces their legal consequences. His bill or defense must check with each necessary fact; the proof must check with each allegation of fact in his pleading; the decree must check with the allegations and proofs. These requirements are fundamental. In the opinion of the writer, a lawyer should write his decree before he draws his bill. A properly drafted decree contains the whole case from beginning to end. After writing a decree finding the facts, finding the rights and duties involved in those facts, and ordering the acts to be done which enforce those rights, a lawyer will thoroughly understand his case ; otherwise, he will not see his whole case, and mistakes may occur. The decree may as well be written first as last, and noth- ing, in the experience of the writer, prevents more mis- takes or better clears the way than writing a decree before the bill. The decree certainly should be drafted before entering upon the proofs, because its comple- tion usually brings to light the need of additional or amended allegations with which proofs must corre- spond, and thus mistakes or omissions in the proof are avoided. In pleading, one should state the main or ultimate facts constituting the complaint or defense, instead of evidentiary facts. (Larvis v. Wis. Cent. 54 111. App. 636). He should leave legal conclusions or findings of law for the court to draw, and never plead them except to add to the clearness of facts stated and war- ranting the conclusion, especially if a court might otherwise miss the legal etfects of facts stated. Exam- ple: "Said defendant obtained said deed by fraudulent representations as follows :" (here state facts of fraud). In spite of the current of decisions against pleading conclusions of law, the writer thinks they are frequently 23 used and are often necessary for clear pleading ; and if they are accompanied by the facts which warrant them, they entail no harm and at the worst must be treated as surplusage. Courts even encourage pleading the legal effect of instruments rather than pleading them in h(Ec verba. All matters of inference or argument are imper- tinent and will be expunged, usually with costs (Sheldon v. Eobbins, 2 Root 190). "Whatever is intended to be proved should be alleged, otherwise evidence cannot be received of the facts (Crockett v. Lee, 7 Wheat. 522; Story's Eq. PI., Sec. 28). Complainant must allege in his bill that he has done or offered to do or is ready to perform everything necessary to entitle him to the relief he seeks, or a sufficient excuse for its non-performance (DeWolf v. Pratt, 42 111. 198). It is a maxim of equity that he who seeks equity must do equity (Winslow v. Noble, 101 111. 194). "When a bill is filed long after the cause of action ac- crued the facts relied upon as excusing the delay must be set fortli in the bill; otherwise the bill will impute laches; and may be attacked by demurrer or plea, or the court of its own motion mav refuse to consider the case. (Sullivan v. Railroad, 94 U. S. 806). A bill may be framed with a double aspect, so that if one ground fail the complainant may rely upon the other, which mav be inconsistent with the former (Varick v. Smith, 5 Paige Ch. Rep. 137). Where relief is sought on the ground of fraud or usury, general charges should be followed by allega- tions in which the circumstances and facts upon which the charge is founded are fully and specifically stated (Newell V. Bureau County, 37 111. 253 ; Smith v. Britten- ham, 98 111. 188; Goodwin v. Bishop, 145 111. 421; Brew- ing Company v. Wolford, 179 111. 252). Fraud cannot be alleged by mere statement of conclusions, as, for instance, a statement that the defendant obtained cer- tain property by "fraud and misrepresentation." There must be a distinct averment of the facts and 24 circumstances constituting the fraud, so tliat the court, if there was no appearance, could from the allegations and the proof supporting them find that a fraud had been committed, and so that the defendant may be able to answer and explain such facts and defend the charge (Toles V. Johnson, 72 111. App. 182). If an allegation be capable of two meanings, the one most unfavorable to the pleader will be adopted (Hal- ligan V. E. R. Company, 15 111. 558). If a bill makes an instrument a part thereof, without annexing a copy or setting forth the contents, it is bad on demurrer (Martin v. McBryde, 3 Ired. Ch. 531). Exhibits forming a part of the bill, will aid de- fective statements in the bill (Benneson v. Savage, 130 111. 352). The practice of allowing oyer is unknown in chan- cery (Hamilton v. Downer, 152 111. 651). Oyer means the right to see, or hear read, some document in court as a part of the pleadings. The bill must cover the whole subject in dispute, so as not to expose the defendant to be harassed by another suit when one suit may suffice (Purfry v. Purfry, 1 Vern. 29; 1 Barbour's Ch. Pr., 40). Bills of Interpleader : Where two or more persons claim the same property in different titles, whether legal or equitable, from another, who is in the position of an innocent stakeholder, the latter, if molested by a suit actually brought or threatened, may file his Bill of Interpleader, for the purpose of compelling the claim- ants to litigate their rights at their own expense, and thus protect himself from all vexation and responsi- bility (McClintock v. Helberg, 168 111. 384). Such bill will lie only where the same thing, debt or duty, is claimed by both or all of the defendants by different or separate interests (Ryan v. Lamson, 153 111. 520) ; where all their adverse titles or claims are derived from a common source, and where the complainant has no claim or interest in the subject- matter or controversy. It will not lie after a judgment at law on the claim in favor of either or both of the claimants (Hathaway v. Foy, 40 Mo. 450). 25 It is not necessary for the holder of the fund to file a Bill of Interpleader when he is already a party to a suit in chancery brought by one claimant against the other to settle the right to the fund. In such case the holder of the fund should apply, by petition in that suit, for leave to pay the money into court, to abide the event of the litigation between the other parties (Badeau v. Rogers, 2 Paige Ch. 209). MULTIFARIOUSNESS. The bill must not be multifarious. A bill is multi- farious (1) when it unites several distinct and incon- gruous matters between the same parties; or (2) when it unites several matters in all of which the complain- ants on the one side or all the defendants on the other do not have a joint and common interest (Metcalf v. Cady, 8 Allan, 587; Walker v. Powers, 104 U. S. 245; Story's Eq. PL, Sec. 271, Gage v. Parker, 103 111. 528). A bill to avoid a multiplicity of suits is an exception to this general rule. The rule itself is no hard and fast rule. It rests somewhat upon the discretion of the court, depending upon considerations of convenience to the court, avoidance of a multiplicity of suits, and avoidance of hardship to the parties (No. Am. Ins. Co. V.Yates, 214 111. 272). The objection for multifariousness is waived by answering and submitting to trial on the merits (Bird V. Bird, 218 111. 158). IMPERTINENCE AND SCANDAL. A bill must not contain impertinent or scandalous matter. Impertinent matter is that which is wholly ir- relevant and unnecessary, and thus tends to make the record improperly voluminous and expensive (Woods V. Morrell, 1 Johns. Ch., 103). A bill is scandalous when it introduces irrelevant matter which is also libelous or defamatory in character. It must be ir- relevant to be scandalous. It may often be necessary, in cases of fraud, to make allegations very injurious 26 to the character of the parties concerned: "Nothing which is positively relevant to the merits of the cause, however harsh or gross the charge may be, can be correctly treated as scandalous" (Story's Eq. PL, Sec. 269). The objection that a bill is impertinent or scandalous is made by exceptions, not by demurrer. These exceptions are filed to the bill, and state what parts are objected to on these grounds (Stirrat v. Excelsior Mfg. Company, 44 Fed. Rep. 142). When such objection is made, the court refers the matter to a master for examination, and if the charge is sustained the matter is ordered to be stricken out, and the plaintiff will be required to pay costs. If the scandal is gross and wanton, the counsel who is guilty of it may also be subject to the discipline of the court for a violation of his duty as an officer of the court (Reichl v. McGrath, L. R. 14 App. Cas. 665). Any unnecessary allegation bearing cruelly upon the moral character of an individual is scandalous (Coffin V. Cooper, 6 Ves. 514). Neither suitors nor solicitors should be allowed to manifest their personal feelings upon the records of the court (McConnel v. Holobush, 11 111. 61). BILLS NOT ORIGINAL. Supplemental Bills: A Supplemental Bill is one brought by the plaintiff in the original suit to intro- duce some material fact affecting the case which has occurred since the beginning of the suit; or to intro- duce some new party who has become necessary since the beginning of the suit (Wilder v. Keeler, 3 Paige, 164). If the Original Bill shows no ground for relief, the defect cannot be cured by a Supplemental Bill set- ting up matters that have arisen since the commence- ment of the suit (Hughes v. Carne, 135 111. 519). Matters which occurred prior to the filing of the bill, and not stated therein, should be brought into the suit by amendment; but matters arising subsequent to the filing of the Original Bill must be introduced by a Sup- plemental Bill (Burke v. Smith, 15 111. 158; McDonald 27 V. Asay, 139 HI. 123). The Supplemental Bill must be germane to the Original Bill (Miller v. Cook, 135 HI. 190). Bills of Revivor: A Bill of Revivor is the proper mode of reviving a suit which otherwise would abate by the death of the plaintiff or the defendant (Bowie v. Minter, 2 Ala. 406). In Illinois, a bill to revive on account of death is not necessary, for it is provided by statute that representatives of deceased parties may be made parties by suggesting the death upon the rec- ords of the court, when the case will proceed as in other cases (Illinois Statute on Abatement). In Illi- nois, therefore, a bill to revive before a final decree is unnecessary. Bills of Review: A Bill of Review is in the nature of a writ of error, and its object is to procure an examina- tion or modification or reversal of a decree rendered upon a former bill. It lies only after the term of court at which the final decree was entered has ex- pired. Until a final decree has been passed, a court of chancery has full power over all the proceedings in the case, and can alter or annul any decree, and can, on mere motion, rehear the case, if it thinks proper so to do (Pitman v. Thornton, 65 Me. 95). The bill must be brought in the same court in which the final decree in the original suit was passed (Tansey V. McDonnell, 142 Mass. 220). Leave of court must be obtained before a Bill of Review can be filed. It lies for error apparent on the record, or for mate- rial evidence not known in time for its use at the former trial, and not discoverable by reasonable dili- gence at that time (Egbert v. Gerding, 116 111. 216). It is proper after a decree is enrolled. A Bill of Review for error apparent on the face of the record must be for an error in law arising out of the facts admitted by the pleadings or recited in the decree itself, as settled, declared or allowed by the court. It cannot be sustained upon the ground that the court has decided wrongfully upon a question of fact (Fellers v. Rainey, 82 111. 114) ; but if there has been an erroneous application of the facts found by a 28 decree, the court may review or reverse the decree by a Bill of Review (Jackson v. Jackson, 144 111. 274). Errors of law against which relief can be had by a Bill of Review must be such as arise rather from obvious mistake or inadvertence appearing on the face of the decree, or at least of record, than from alleged error in the deliberate judgment of the chancellor on a de- batable question of law or equitable right (Caller v. Shields, 2 Stewart & Port. 417). It cannot be brought upon the ground that the former decree was not sup- ported by the evidence (Whiting v. Bank, 13 Pet. 6), and no evidence is admissible as to the facts established ]iy the original decree (Judson v. Stephens, 75 111. 255 ) . The error must appear on the face of the plead- ings and decree, for the evidence in the case at large cannot be looked into to ascertain whether the court misunderstood the facts (Bruschke v. Verein, 145 111. 433) ; that is the proper province of the court of appeal. But, taking the facts to be as they are stated to be on the face of the decree, it must be shown that the court has erred in point of law. Upon a Bill of Review, a court will revise, correct or reverse its own decree for an erroneous applica- tion of law to the facts found, whenever a court of appeals would do so for the same cause (Moore v. Bracken, 27 111. 23). A Bill of Review lies for newly discovered evidence material to the issue, if such evidence was not known until after the trial of the cause (Yates v. Monroe, 13 111. 212). Mere cumulative evidence is not sufficient. Unless discovered after the decree is pronounced, it is not ground for a Bill of Review (Watts v. Rice, 192 111. 123). The only distinction between a petition for a rehear- ing in chancery and a Bill of Review for the same cause is that the former is to be invoked before the en- rollment of the decree and the adjournment of the term, while the latter is available after the decree and adjournment (Elzas v. Elzas, 183 111. 132). Cross-bills: A Cross-bill is one brought by a de- fendant against the complainant in the same suit, or 29 against other defendants, or against both, touching the matters in question in the Original Bill, for the purpose of obtaining affirmative relief (Lloyd v. Kirk- wood, 112 111. 329). Under an Original Bill, the court must simply grant or deny the relief asked for by the plaintiff. It can- not proceed, after denying relief to the plaintiff, to give any specific relief to the defendant, although the justice of the case might manifestly require it (Howe V. South Park Commissioners, 119 111. 101). The main purpose of a Cross-bill by defendant is to ask for such relief as the case may show him to be entitled to ; and upon such a bill the court can proceed to give the proper relief (Shields v. Bush, 189 111. 534). There are some exceptions : It is unnecessary to file a Cross-bill where (on the faihire of a bill for specific perform- ance) it appears that earnest-money has been paid by the defendant; and a decree for the repayment of the earnest-money will be given without the filing of a Cross-bill (Adams v. Valentine, 33 Fed. Rep. 1) ; also,. upon a bill for an accounting, the party against whom the balance is found will be decreed to pay it without a Cross-bill (Acme Co. v. McLure, 41 111. App. 397). A Cross-bill must contain matter germane to the Original Bill and must not contradict allegations in the answer filed (Ballance v. Underhill, 3 Scammon, 453). A defendant, to take advantage of a defense arising pendente lite, must assert it in the form of a cross-bill praying a dismissal of the original; this procedure taking the place of a plea puis darrein continuance at common law (Mills v. Larrance, 186 111. 635). By strict practice, this course must also be taken where the defense affects only a co-defendant (Metropolis Nat. Bank v. Sprague, 21 N. J. Eq. 530). Where the matter of a cross-bill is equally available in the answer, by way of defense to the original bill, a cross-bill is unnecessary (Wight v. Downing, 90 111. App. 1). The rule is that where all the objects sought can be attained by answer, a cross-bill will not be per- mitted (Hook v. Richeson, 115 111. 431). 30 In Illinois lien defendants in a foreclosure snit need not file a cross-bill in order to have their rights de- termined. Such rights may be determined upon their answers (Gouwens v. Gouwens, 222 111. 223, 78 N. E. 597). In Illinois in foreclosure suits, defendants claiming liens against the premises in their answers, whether such liens are junior mortgage liens, judgment liens, or otherwise, are entitled without filing a cross-bill to have the court determine the existence and priority of such liens and to order the premises sold for complain- ant and the proceeds of sale to be distributed according to the priority of the liens (Gardner v. Colin, 191 111. p. 553). But if a junior lienor desires relief beyond sharing in the surplus proceeds of sale, such as a de- cree ordering a sale if his debt is not also paid as well as the debt of complainant, a cross-bill is necessary (Campbell v. Benjamin, 69 111. 244). A¥here the matter of the cross-bill constitutes a defense and at the same time entitles defendant to re- lief beyond the dismissal of the bill, and such relief cannot be had by answer, a cross-bill is proper (Pax- ton v. Stackhouse, 4 Kulp. (Pa.) 403). A cross-bill may be permitted to insure relief to defendant, where he would be deprived thereof if plaintiff should fail in his proof (Wilcox v. Allen, 36 Mich. 160). Defendants to cross-hill: A cross-bill requires the same parties defendant as would an original bill for the same purpose (McGillis v. Hogan, 85 111. App. 194). Whether the cross-bill must fail if all necessary parties to it are not already parties to the original suit, or whether new and necessary parties may be brought in on the cross-bill, is a question upon which the practice is not uniform. In some jurisdictions it is held that new parties cannot be introduced by a cross-bill (Wright v. Frank, 61 Miss. 32; Shields v. Barrow, 17 Howard 130) ; in others the practice of bringing in new parties is provided for by statute (Scott V. Millikin, 60 111. 108). Plaintiff in 'the orig- inal should be a necessary defendant in a cross-bill, al- though it be directed mainly against a co-defendant; 31 because a controversy between defendants cannot be made the ground of a cross-bill unless its settlement is necessary to a complete decree on the case made by the bill (Weaver v. Alter, 3 Woods 152). Foryn of Cross-bills: A cross-bill must have all the essential parts of an original bill (McCagg v, Heacock, 42 111. 153). It must be so framed that both original and cross causes may be heard together, and a single decree entered (McDougald v. Dougherty, 14 Ga. 674). Formerly a cross-bill, in addition to having all the parts of an original bill for the same purpose, used to state the original bill so far as to show its parties, scope and object, and what proceedings had been had thereon (Mitford Eq. PL 75). But this requirement was due to the fact that a cross-bill in England might be filed in a court other than the one in which the orig- inal suit was pending. In the federal courts, a cross- bill must be filed in the same court as the original ; and it is necessary only to set forth so much, with regard to the original and the proceedings thereon, as may be necessary to disclose the right sought to be brought before the court (Neal v. Foster, 34 Fed. 496). Defenses to Cross-bills. A defendant to both orig- inal and cross-bill must interpose his defense sepa- rately to each (Crutcher v. Trabue, 5 Dana (Ky.) 80). The modes and grounds of defense are substantially the same as to an original bill (Barker v. Belknap, 39 Vt. 168). The Illinois statutes contain the following provis- ions respecting cross-bills: Any defendant may, after filing his answer, exhibit and file his cross-bill and call upon the complainant to file his answer thereto, in such time as may be pre- scribed by the court. It shall not be necessary to re- cite in the cross-bill any of the pleadings or proceed- ings in the case in which it is filed ; and it shall not be necessary to pray process, except against new parties. The complainant shall be required to except, plead, demur or answer to such cross-bill in the same manner that a defendant is required to except, plead, demur or answer to an original bill, and his answer shall have 32 the same effect as a defendant's answer to a bill. If the complainant shall fail to answer such cross-bill, his bill shall be dismissed with costs, or the new matter set ont in the defendant's cross-bill shall be taken as confessed, and a decree entered accordingly. Where it is necessary for the defendant to bring a new party before the court, he shall state it in his cross-bill, and the summons shall be issued, and other proceeedings had, as in the case of other defendants. The com- plainant shall not be compelled to file his answer to any cross-bill until the defendants shall have filed a sufficient answer to the complainant's bill. No com- plainant shall be allowed to dismiss his bill after a cross-bill has been filed, without the consent of the defendant (111. Stat. Chan. sec. 30-36). In Illinois, under the statute, filing a cross-bill does not require leave of court (Quick v. Lament, 105 111. 578). "Sai i? t-*^ a u M Oc8 -o-E n a «> u O 9 t- ® o b a . ■M «S->J '='3 MET (C ca ■73 m tiDa o O m ^"1 o s-a^ ■4i3 ££;-«« |S-9 t ^" O CO O .ii tele's 0^'6C^ lainant may, by leave of court, exhibit and file further interrog- atories, to be answered by the defendant within such time as shall be fixed by the court." In answering, one is not bound to answer allega- tions which are purely scandalous, impertinent, imma- 45 terial or irrelevant (Davis v. Collier, 13 Geo. R. 485), nor anything which may subject him to a penalty, for- feiture, or criminal prosecution (Adams v. Porter, 1 Gushing R. 171) ; but if an answering defendant relies on this objection, he should specifically so state as a ground for refusing the discovery; nor is defendant bound to answer what would involve a breach of pro- fessional confidence (Leggett v. Postley, 2 Paige Ch. 599). An answering defendant must set forth the nature of his defense, and cannot take advantage of matters of defense shown by the evidence, if they are not set up in the answer (1 Barb. 137; Jewett v. Sweet, 178 111. 96). If he wishes to introduce proof of fraud on the part of the complainant, he should set forth the cir- cumstances in bis answer (Fitzpatrick v. Beatty, 1 Gilm. 454), as no presumption exists in favor of an an- swer any more than in favor of other pleadings (Mahr V. O'Hara, 9 111. -124). If his defense is usury, he must allege the facts particularly instead of in general terms (Hosier v. Norton, 83 111. 519). Allegations in an answer and proof introduced by the defendant must agree to render the defense available (Dowden v. Wil- son, 108 111. 257). No affirmative relief will be granted to a defend- ant upon an answer. To get relief, he must file his cross-bill (Ashmore v. Hawkins, 145 111. 447). How- ever, in cases where the maxim that he who seeks equity must do equity can be applied, the court may, require the complainant to do equity as a condition to relief without a cross-bill (King v. Cooper, 134 111. 183; and see '^Cross-bills," ante). In Illinois, in foreclosure suits, defendants claiming liens against the premises in their answers, whether such liens are junior mortgage liens, or judgment liens, or otherwise, are entitled without filing a cross-bill to have the court determine the existence and priority of such liens and to order the premises sold upon com- plainant's bill, and the proceeds of sale to be distrib- uted according to the priority of the liens (Gardner v. Cohn, 191 111. p. 553). But if a junior lienor desires 46 relief beyond sliaring in the surplus proceeds of sale, such as a decree ordering a sale also for the junior lienor's debt, unless it is paid by a short day named, a cross-bill is necessary to support such a decree (Camp- bell V. Benjamin, 69 111. 244). The defendant may in the answer suggest that the bill is defective for want of parties, and by proper averment state the names of such parties and their relation to the case (U. S. Eq. Rule 52). If the defendant does not, by plea or answer, object to the bill as defective for want of parties, the objec- tion will not be allowed to prevail at the hearing of the cause, if the court can grant a decree saving the rights of the absent parties (U. S. Eq. Eule 53; Bank v. Seton, 1 Pet. 299; Story v. Livingston, 13 Pet. 359; Keller v. Ashford, 133 U. S. 610). If the bill does not waive an answer under oath, the answer must be sworn to (U. S. Eq. Rule 59). Section 20 of the Illinois Chancery Act is as follows: "When a bill, supplemental bill, bill of review, bill of revivor, or cross-bill shall be filed in any court of chancery other than for discovery only, the complain- ant may waive the necessity of answer being made on the oath of the defendant, defendants, or either of them; in such case, the answer may be made without oath, and shall have no other or greater force as evi- dence than the bill." Section 21 of the Chancery Act provides: "Every answer shall be verified by an oath or affirmation, ex- cept as provided in the foregoing section." Where the oath is not waived, the answer is evidence only so far as it is responsive to the bill, and not as to new matters alleged in avoidance (Cummins v. Cum- mins, 15 111. 33). AVhere the answer under oath is required, its allega- tions can be overcome only by the evidence of two wit- nesses, or by the testimony of one witness and cir- cumstances equal to that of another witness (Swift v. School Trustees, 14 111. 493) ; or the complainant may prove it false by evidence equal to that of one witness, and in addition thereto by a preponderance of evidence 47 sufficient to sustain the bill if the oath had been waived (Mey V. Gullman, 105 111. 272). When an oath is waived, a sworn answer will have no force as evidence, and will be considered merely as a pleading (Walwork v. Derby, 40 111. 527). Admissions in an answer are conclusive, and evi- dence to establish the facts admitted is unnecessary (Gruenberg v. Smith, 58 111. App. 281), and evidence to disprove them will not be considered (Deimal v. Brown, 136 111. 586) ; and this whether the answer be sworn to or not (Loughridge v. Insurance Co., 180 111. 267). If an admission has been made in an answer by mistake, the court will relieve the party making it from its effect (Maher v. Bull, 39 111. 531) ; or he may file a supplemental answer correcting the mistake (Hughes V. Bloomer, 9 Paige Ch. E. 269). Testing the legal sufficiency of an answer: Excep- tions to the answer do not perform the office of a de- murrer in presenting the question whether the facts averred in the answer constitute a defense to the case made in the bill; and as it is not permissible to file a demurrer to an answer, if it is desired to submit the case on the questions of law arising on the answer, the only method of testing the legal sufficiency of an an- siver is by setting down the case for hearing on hill and anstver (Banks v. Manchester, 128 U. S. 244). In such case, the matters well pleaded in the answer are deemed to be true as matters of fact, whether answer under oath is waived or not (Fletcher Eq. Pr. 697; Chambers v. Rowe, 36 111. 171, ignored by later Illinois decisions) and the case is heard upon the allegations of fact in the bill contained, and not denied in the answer, taken in connection with the facts averred in the answer (U. S. Eq. Rule 41; Leeds V. Insurance Co., 2 Wheaton, 380; Banks v. Man- chester, 128 U. S. 244; Derby v. Gage, 38 111. 27; Roach V. Glos, 181 111. 440; 16 Cyc. 382). In such case no allegation made in the bill, although put in under oath, will be considered as evidence if de- nied; and all the material averments contained in the answer, although not put in under oath, are held to be 48 true. In short, the complainant must rely wholly upon those allegations in the bill which the defendant by his answer has admitted; and those admissions are to be taken with all the reservations and explanations con- tained in the answer. The allegations in the bill ad- mitted by the answer must be sufficient, after being emasculated by the explanatory matter contained in the answer, to entitle the complainant to the relief prayed for, or he will fail in his suit. The case must be clear and strong, therefore, which will justify the complainant in going to a hearing on the bill and answer (Thomp. 141; Contee v. Dawson, 2 Bland 264). Exceptions to answer: An answer may be excepted to for insufficiency or for scandal or impertinence. Ex- ceptions for insufficiency will be allowed where mate- rial allegations or interrogatories in the bill are not fully answered (Stafford v. Brown, 4 Paige 88; Glos v. Dietrich, 227 111. 581), or where the answer sets up questions of law instead of facts (Craig v. The People, 47 111. 487). Exceptions for impertinence or scandal must point out the passage objected to. Exceptions must be filed before filing replication (Coleman v. Lynde, 4 Rand, 454). Even if answer under oath be waived, answers must be full and direct, or exceptions will lie. (Hair v. Dailey, 161 111. 379). Exceptions for insufficiency or failure to answer certain allega- tions of the bill should not be confused with testing the legal sufficiency of the answer as a defense. In Illinois the denial of execution or assignment of instruments should he sworn to in the answer: (Sec. 33, 111. Stat, on Practice). ''No person shall be permitted to deny, on trial, the execution or assignment of any instrument in writing, whether sealed or not, upon which any action may have been brought, or which shall be pleaded or set up by way of defense or set-off, or which is admissible under the pleadings when a copy is filed, unless the person so denying the same shall, if defendant, verify his plea by affidavit ; and if plaint- iff shall file his affidavit denying the execution or as- signment of such instrument: Provided, if the party making such denial be not the party alleged to have 49 executed or assigned such instrument, the denial may be made on the information and belief of such party" (Dean v. Ford, 180 111. 309). Waiving answer: Going to a trial or hearing with- out defaulting defendant for want of answer, or with- out getting a rule on him to answer, waives the answer (Jackson v. Sackett, 146 111. 646). 13 O O CO O >,» a w S >- ^— ^ o bo o 5 C5 5- '-<2 -T ai ^ m j 1 o -■ M .23.2 p.- t^s-( r1 a cti a a z es © ".S >. cl! © tc a a a 0JJ3 til tl£ © C —1 © -3 p P4 Cm a ■a 3 ft a a 5 "3 ti a © s 0) 73 © a .2 ^ C3 "^ _g (E a ca ■a a S, ■a a 3 © a © © a a _0' m 3 a © a a >» © © 2. rt CS © CS ctf cB CC MM:,^" c -^ cS © J2 «jqj3 CS "^-w OS"" (Dcw^ ;S ^ .o S ® a aS^ to a <« * 2'- -fl^tS flag o 0.2 ■°^ .2 a S Q ©.-3 a-S' a ^ >^ ^■S H c >>h t^ *a O* W cflja _ © ©— ! CO -i^ n 0300 rSo '$© hi rsy caun them, b me kind not affe © tn §-3 ©^ 0-2 to controv withou 3t that s hicii wii (--w a-" °.9 ©~i "ST? £ ^ ro tlj w 1"^ such th etermiin inct inte entered g a c -5 .2£:^ T! t> ^•-13 interest pletely ch a dis •e can b © 21I en Q.-t^ to o-o ,6 = 2: 3 rt 3 M3 3 to S? ^ 01 © over avit the ! the © -E-^«- 3 .3 con but er ledi © to .tJ 4J .w a e « rt 3 w a br^ S 3 •5S 10 ^•'^—< ng no intere immediate in the sub y convenient a'5 5I _ 3 cd to gs •- J1 to g 1;° M 116 When the complainant desires to obtain from a cor- poration the answer of some officer of the corporation under oath, such officer must be named and made one of the defendants in the bill (Buford v. Rucker, 4 J. J. March 551). OBJECTIONS AS TO PARTIES. The objection that a party has been mis joined as a defendant, when he should have been joined as a plaintiff, or vice versa, is often disregarded, because, in equity, it is not always important. But the objec- tion that there has been non- joinder of a necessary and indispensable party may be raised, in any manner, at any time, as on the hearing or on appeal, and it goes to the jurisdiction. The court may of its own motion raise and act upon the objection. Not so the objection that necessary, but dispensable, parties were not joined. Such objection must be raised by demurrer, plea or answer, in which the proper omitted parties must be pointed out, not by name, if that is impos- sible, but in such manner as to indicate the precise objection and enable plaintiff to amend (16 Cyc. 207). CURING DEFECTS AS TO PARTIES. If doubt exists whether the court will grant a final decree by reason of the absence of parties, the ques- tion should, if possible, be presented and settled be- fore incurring the delay and expense of taking testi- mony. Where a co-partnership or association other than a corporation is a party, the names of the individuals must be set forth, because it is not permissible to use the firm name (The Protector, 11 Wall. 82; Chapman V. Barney, 129 U. S. 677). And the given names of the parties in all cases should be used instead of the iu- itials (Monroe Cattle Co. v. Becker, 147 U. S. 47). (Sec. 13, 111. Practice Act:) "A co-partnership, the members of which are all non-residents, but having a place or places of business in any county of this state in which suit may be instituted, may be sued by 117 the usual and ordinary name which it has assumed and under which it is doing business; and service of process may be had in such county upon such co-part- nership by serving the same upon any agent of said co-partnership within this state." Sec. 17, 111. Practice Act:) Joining name of co-plaint- iff ivho refuses to joi7i — Title: "If any person neces- sary to be joined as plaintiff in any suit or proceeding shall, upon request, not consent to join therein, his name may, nevertheless, be used by the other party plaintiff, upon filing with the clerk of the court an ob- ligation, with good and sufficient sureties, to be ap- proved by a judge or the clerk of the court in which the suit or proceeding is to be commenced, shown by his indorsement of approval thereon, to protect, save harmless and indemnify the person whose name is so used from the pajment of any costs, judgment or ex- penses in said suit. If, however, the plaintiff shall recover a judgment in such suit or proceeding, the person so refusing to allow the use of his name shall not be entitled to receive any part thereof until he pays the expense incurred in giving the obligation and his equitable share of the costs and expenses of the litigation, including plaintiff's attorney's fees, and discharges the obligation. ' ' Plaintiff may sometimes avoid the necessity of bringing in a party by waiving his claim against him. So, one who should be defendant may authorize the court to proceed without making him a formal party, by stipulating to that effect, or by appearing volun- tarily and answering the bill. While the court may dismiss a bill without prejudice for want of neces- sary parties, this course will not be adopted except in the case of omission of indispensable parties who can- not be brought in, or in case parties have been omitted wilfully and in bad faith, or, perhaps, where a weak case is presented on the merits. The proper course in case of misjoinder is to amend by dismissing as to the one improperly joined. Where the defect is a non- joinder of necessary parties, the suit is merely sus- pended. The court should not proceed until the absent 118 parties are before it, but the proper order is for the cause to stand over, with hberty to amend by adding new parties, and if that be not done within the time fixed, that the bill be then dismissed. An appellate court will not reverse a decree for want of parties who ought to have been joined, provided sufficient par- ties were before the court to sustain the decree as rendered; and where the decree cannot be sustained, the court will, generally, instead of dismissing the bill, remand it to the court below, that the omitted parties may be brought in (16 Cyc. 207). Section 6 of the Illionis Chancery Act provides that a guardian ad litem shall be appointed to act for in- fants or insane defendants, who shall receive such rea- sonable sum for his charges as shall be fixed by the court. Practice in U. S. courts in obtaining jurisdiction over parties not found ivithin the district. When in any suit in equity, commenced in any court in the United States, to enforce any legal or equitable lien or claim against real or personal property within the district where such suit is brought, one or more of the defendants is not an inhabitant of or found within the district, or does not voluntarily appear, the court may enter an order directing such absent defendant to appear, plead, answer or demur to the complain- ant's bill on a day therein designated. This order must be served on such absent defendant, if practi- cable, wherever found ; or, where such personal service is not practicable, the order must be published in such manner as the court directs. In case such absent de- fendant does not appear, plead, answer or demur within the time limited, or within some further time to be allowed by the court in its discretion, and upon proof of the service or publication of said order, and of the performance of the directions contained in the same, it is lawful for the court to entertain jurisdic- tion, and proceed to the hearing and adjudication of such suit in the same manner as if such absent de- fendant had been served with process within the said district ; but such adjudication, as regards such absent 119 defendant without appearance, affects only his prop- erty within such district (Sec. 13 U. S. Statute, in force June 1, 1872). FOUMS. FORMS OP BILL. I. The Address. (In the Circuit Court of the United States.) To the Judges of the Circuit Court of the United States for the District of (In Illinois.) To the Honorable Judges of the Circuit Court of the County of in the State of Illinois, in Chan- cery sitting. II. The Introduction. (By a complainant under no disabilities.) Introduction. A. B., a citizen of the state of , residing in County in said state brings this bill against C. D., a citizen of the state of , residing in County in said state, and E. F., a citizen of the state of , residing in County, in said state; and complains and avers as follows: leriod as, consistently with justice and the rights of the defendant, the same can, in the judg- ment of the court, be reasonably done; in default whereof, the bill shall be taken against him pro con- fesso, and the matter thereof proceeded in and decreed accordingly. RULE XXXV. If sustained — Amendment of hill. — If, upon the hear- ing, any demurrer or plea shall be allowed, the de- fendant shall be entitled to his costs. But the court may, in its discretion, upon motion of the plaintiff, allow him to amend his bill, upon such terms as it shall deem reasonable. RULE XXXVI. Extent of demurrer or plea. — No demurrer or plea shall be held bad and overruled upon argument only because such demurrer or plea shall not cover so much of the bill as it might by law have extended to. 185 KULE XXXVII, Answer as affecting demurrer or plea. — No demur- rer or plea shall be held bad and overruled upon argu- ment only because the answer of the defendant may- extend to some part of the same matter as may be covered by such demurrer or plea. RULE XXXVIII. Failure to reply or to set doivn for argument. — 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 suf- ficiency thereof, and his bill shall be dismissed as of course unless a judge of the court shall allow him further time for the purpose. RULE XXXIX. Answer. — The rule that if a defendant submits to answer he shall answer fully to all the matters of the bill shall no longer apply in cases where he might by plea protect himself from such answer and discovery. And the defendant shall be entitled in all cases, by an- swer, to insist upon all matters of defense (not being matters of abatement, or to the character of the par- ties, or matters of form) in bar of or to the merits of the bill, of which he may be entitled to avail himself by a plea in bar; and in such answer he shall not be compellable to answer any other matters than he would be compellable to answer and discover 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 defense. Thus, for example, a bona fide purchaser for a valuable consideration, without no- tice, may set up that defense by way of answer in- stead of plea, and shall be entitled to the same protec- tion 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. 186 RULE XL. Interrogatories. — It shall not hereafter be necessary to interrogate a defendant specially and particularly upon any statement in the bill, unless the complain- ant desires to do so to obtain a discovery. RULE XLI. Interrogatories continued. — (1) The interrogatories contained in the interrogating part of the bill shall be divided as conveniently as may be from each other, and numbered consecutively 1, 2, 3, etc.; and the in- terrogatories which each defendant is required to an- swer 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 required to answer the in- terrogatories numbered respectively 1, 2, 3," etc.; and the office copy of the bill taken by each defendant shall not contain 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. (2) If the complainant, in his bill, shall waive an answer under oath, or shall only require an answer under oath with regard to certain specified interroga- tories, the answer of the defendant, though under oath, except such part thereof as shall be directly respon- sive to such interrogatories, shall not be evidence in his favor, unless the cause be set down for hearing on bill and answer only; but m^ay, nevertheless, be used as an affidavit, with the same effect as heretofore, on a motion to grant or dissolve an injunction, or on any other incidental motion in the cause ; but this shall not prevent a defendant from becoming a witness in his own behalf under section 3 of the act of congress of July 2, 1864. RULE XLII. Note specifying interrogatories to he answered part of hill. — The note at the foot of the l)i]l specifying the interrogatories which each defendant is required to answer shall be considered and treated as part of the bill; and the addition of any such note to the bill, or 187 any alteration in or addition to such note, after the bill is filed, shall be considered and treated as an amend- ment of the bill. RULE XLIII. Form when interrogatories are used. — Instead of the words of the bill now in use, preceding the inter- rogating part thereof, and beginning with the words : ''To the end, therefore," 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 re- spective corporal oaths, and according to the best and utmost of their several and respective knowledge, re- membrance, information and belief, full, true, direct and perfect answer make to such of the several interroga- tories hereinafter numbered and set forth as by the note hereunder written they are respectively required to answer ; that is to say — *'!. Whether, etc. "2. Whether," etc. RULE XLIV. When interrogatories need not he answered. — A de- fendant shall be at liberty, by answer, to decline an- swering any interrogatory, or part of an interroga- tory, from answering which he might have protected himself by demurrer; and he shall be at liberty so to decline notwithstanding he shall answer other parts of the bill from which he might have protected himself by demurrer. RULE XLV. Special replication not alloived. — No special replica- tion to any answer shall be filed. But if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may have leave to amend the same with or without payment of costs, as the court, or a judge thereof, may in its discretion direct. 188 KULE XLVI. Answer to amended hill. — In every case where an amendment shall be made after answer filed, the de- fendant shall put in a new or supplemental answer on or before the next succeeding rule day after that on which the amendment or bill is filed, unless the time 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 an- swer. KULE XLVII. Omission of parties. — In all cases where it shall ap- pear to the court that persons, who might otherwise be deemed necessary 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 be- fore the court, the court may in its discretion pro- ceed in the cause without making such persons par- ties; and in such cases the decree shall be without prejudice to the rights of the absent parties. RULE XLVIII. Parties, ivlien numerous. — Where the parties on either side are very numerous, and cannot, without manifest inconvenience and oppressive delays in the suit, be all brought before it, the court, in its discre- tion, may dispense with making all of them parties, and may proceed in the suit, having sufficient parties before it to represent all the adverse interests of the plaintiffs and the defendants in the suit properly be- fore it. But, in such cases, the decree shall be without prejudice to the rights and claims of all the absent parties. RULE XLIX. Suits hy trustees. — In all suits concerning real es- tate which is vested in trustees by devise, and such trustees are competent to sell and give discharges for the proceeds of the sale, and for the rents and profits of the estate, such trustees shall represent the persons 189 beneficially interested in the estate, or the proceeds, or the rents and profits, in the same manner and to the same extent as the executors or administrators in suits concerning personal estate represent the per- sons 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, or rents 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 persons to be made parties. EULE L. Heir, when party, and when not. — In suits to exe- cute the trusts of a will, 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 where he desires to have the will established against him. RULE L.I. Joint and several demands. — In all cases in which the plaintiff has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary to bring iDcfore the court as parties to a suit concerning such demand all the per- sons liable thereto; but the plaintiff may proceed against one or more of the persons severally liable. RULE LII. Defect of parties. — 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 cause for argument upon that objection only; and the pur- pose for which the same is so set down shall be noti- fied 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 shall not so set down his cause, but shall proceed therewith to a hear- ing, notwithstanding an objection for want of parties taken by the answer, he shall not, at the hearing of 190 the cause, if the defendant's objection shall then be allowed, be entitled as of course to an order for liberty to amend his bill by adding parties. But the court, if it thinks fit, shall be at liberty to dismiss the bill. RULE LIII. Objection of defect of parties. — If a defendant shall, at the hearing of a cause, object that a suit is defect- ive for want of parties, not having by plea or answer taken the objection, and therein specified by name or description the parties to whom the objection applies, the court, if it shall think fit, shall be at liberty to make a decree saving the rights of the absent parties. RULE LIV. Nominal parties. — Where no account, payment, con- veyance 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 bill, unless the plaintiff specially requires him so to do by the prayer of his bill ; but he may appear and answer at his option; and if he does not appear and answer, he shall be bound by all the proceedings in the cause. If the plaintiff shall require him to appear and answer, he shall be entitled to the costs of all the pro- ceedings against him, unless the court shall otherwise direct. RULE LV. Injunctions. — Whenever an injunction is asked for by the bill to stay proceedings at law, if the defendant does not enter his appearance, and plead, demur or an- swer to the same within the time prescribed therefor by these rules, the plaintiff shall be entitled, as of course, upon motion, without notice, to such injunc- tion. But special injunctions shall be grantable only upon due notice to the other party by the court in term, or by a judge thereof in vacation, after a hearing, which may be ex parte, if the adverse party does not appear at the' time and place ordered. In every case where an injunction — either the common injunction or a special injunction — is awarded in vacation, it shall, 191 unless previously dissolved by the judge granting the same, continue until the next term of the court, or un- til it is dissolved by some other order of the court. EULE LVI. Revivor of suit. — Whenever a suit in equity shall be- come abated hy the death of either party, or by any other event, the same may be revived by a bill of re- vivor, or a bill in the nature of a bill of revivor, as the circumstances of the case may require, filed by the proper ]iarties entitled to revive the same; which bill may be filed in the clerk's office 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 proper 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 of the same process, the suit shall stand revived, as of course. EULE LVII. Supplemental hill. — "Whenever a suit in equity shall become defective from any event happening after the filing of the bill, as, for example, by change of interest in the parties, or for any other reason, and a supple- mental bill, or a bill in the nature 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 succeeding 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. EULE LVIII. Bill of revivor or supplemetit. — It shall not be neces- sary 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. 192 LIX. Answer verified before whom. — Every defendant may swear to his answer before any justice or jndge of any court of the United States, or before any commis- sioner appointed by any Circuit Court to take testi- mony 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, or notary public. EULE LX. Amendment of ansiver. — 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 refer- ence to a document, or other small matter, and be re- sworn, at any time before a replication is put in, or the cause is set down for a hearing upon bill and an- swer. But after replication or such setting down for a hearing, it shall not be amended in any material mat- ters, as by adding new facts or defenses, or qualify- ing 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 ad- verse party, supported, if required, by affidavit; and in every case where leave is so granted, the court or the judge granting the same may, in his discretion, re- quire that the same be separately engrossed and added as a distinct amendment to the original answer, so as to be distinguishable therefrom. BULE LXI. Exceptions for insufficiency. — After an answer is filed on any rule day, the plaintiff shall ])e allowed un- til the next succeeding 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. 193 RULE LXII. Costs of separate answers. — 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 shall not be allowed for such separate answers, or other proceedings, unless a master, upon reference to him, shall certify that such separate answers and other pro- ceedings were necessary or proper, and ought not to have been joined together. RULE LXIII. Setting down exceptions for argument. — Where ex- ceptions shall be filed to the answer for insufficiency, within the period prescribed by these rules, if the de- fendant shall not submit to the same and file an amended answer on the next succeeding rule day, the plaintiff shall forthwith 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 ex- ceptions 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 terms as he may deem reasonable. RULE LXIV. If exceptions sustained, further answer. — 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; otherwise, the plaintiff shall, as of course, be entitled to take the bill, so far as the matter of such exceptions is con- cerned, 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 194 court, or of a judge thereof, upon liis putting in sucli answer, and complying with such other terms as the court or judge may direct. RULE LXV. Costs on exceptions. — If, upon argument, the plaint- iff's exceptions to the answer shall be overruled, or the answer shall be adjudged insufficient, the prevail- ing 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. RULE LXVI. Replication. — Whenever the answer of the defend- ant shall not be excepted to, or shall be adjudged or deemed sufficient, the plaintiff shall file the general replication thereto on or before the next succeeding rule day thereafter ; and in all cases where the general replication is filed, the cause 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 pre- scribed 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. RULE LXVII. Testimony — How taken. — (1) 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 taking out the same in the clerk's office, ten days' notice thereof being given to the adverse party to file cross-interrogatories before the issuing of the commission ; and if no cross-interrogatories are filed at the expiration of the time, the commission may issue ex parte. In all cases the commissioner or com- 195 missioners shall be named by the court or by a judge thereof. Ordered, that the sixty-seventh rule govern- ing equity practice be so amended as to allow the pre- siding judge of any court exercising jurisdiction, either in term time or in vacation, to vest in the clerk of said court general power to name commissioners to take testimonj^ in like manner that the court or judge thereof can now do by the said sixty-seventh rule. (2) Either party may give notice to the other that he desires the evidence to be adduced in the cause to be taken orally ; and thereupon all the witnesses to be examined shall be examined before one of the examin- ers of the court or before an examiner to be specially appointed by the court. The examiner, if he so re- quests, shall be furnished with a copy of the pleadings; and such examination shall take place in the presence of the parties or their agents, by their counsel or solicit- ors, and the witnesses shall be subject to cross-ex- amination and re-examination, and such examinations shall be conducted as near as may be in the mode now used in common-law courts. The depositions taken upon such oral examinations shall be reduced to writ- ing by the examiner, in the form of question put and answer given; provided, that, by consent of parties, the examiner may take down the testimony of any witness in the form of narrative. At the request of either party, with reasonable no- tice, the deposition of any witness shall, under the di- rection of the examiner, be taken down either by a skilful stenographer or by a skilful typewriter, as the examiner may elect, and when taken stenographically shall be put into typewriting or other writing; pro- vided, that such stenographer or typewriter has been appointed by the court, or is approved by both par- ties. The testimony of each witness, after such reduction to writing, shall be read over to him and signed by him in the presence of the examiner and of such of the parties or counsel as may attend ; provided, that if the witness shall refuse to sign his deposition so taken, 196 then the examiner shall sign the same, stating upon the record the reasons, if any, assigned by the witness for such refusal. The examiner may, upon all 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 costs of incompetent, immaterial or irrelevant depositions, or parts of them, as may be just. In case of refusal of witnesses to attend, to be sworn, or to answer any question put by the examiner, or by counsel or solicitor, the same practice shall be adopted as is now practiced with respect to witnesses to be produced on examination before an examiner of said court on written interrogatories. Notice shall be given by the respective counsel or solicitors to the opposite counsel or solicitors, or par- ties, of the time and place of the examination, for such reasonable time as the examiner may fix by order in each cause. When the examination of witnesses before the ex- aminer is concluded, the original depositions, authen- ticated 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 section 865 of the Revised Statutes. Testimony may be taken on commission in the usual way, by written interrogatories and cross-interroga- tories, on motion to the court in term time, or to a judge in vacation, for special reasons, satisfactory to the court or judge. Where the evidence to be adduced in a cause is to be taken orally, as before provided, the court may, on motion of either party, assign a time within which the complainant shall take his evidence in support of the bill, and a time thereafter within which the defendant shall take his evidence in defense, and a time there- after within which the complainant shall take his evi- 197 dence in reply; and no further evidence shall be taken in the cause, unless by agreement of the parties or by leave of court first obtained, on motion for cause shown. The expense of the taking down of depositions by a stenographer and of putting them into typewriting or other writing shall be paid in the first instance by the party calling the witness, and shall be imposed by the court, as part of the costs, upon such party as the court shall adjudge should ultimately bear them. Upon due notice given as prescribed by previous or- der, the court may, at its discretion, permit the whole, or any specific part, of the evidence to be adduced orally in open court on final hearing. KULE LXVIII. Under acts of congress. — 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 shall, upon motion and affidavit of the fact, be entitled to a cross-examina- tion of the witness, either under a commission or by a new deposition taken under the acts of congress, if a court or judge thereof shall, under all the circum- stances, deem it reasonable. KULE LXIX. Time for testimony. — 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 com- missions 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 testimony 198 may at any time pass into the clerk's office, such con- sent being in writing, and a copy thereof entered in the order books, or indorsed upon the deposition or testimony. ETJLB LXX. Infirm, single, or about to depart. — After any bill filed, and before the defendant has answered the same, upon affidavit made that any of plaintiff's wit- nesses are aged and infirm, or going out of the country, or that any one of them is a single witness to a ma- terial fact, the clerk of the court shall, as of course, upon the application of the plaintiff, issue a commis- sion to such commissioner or commissioners as a judge of the court may direct to take the examination of such witness or witnesses de bene esse, upon giving due notice to the adverse party of the time and place of taking his testimony. KULE LXXI. Last interrogatory. — The last interrogatory in the written interrogatories to take testimony now com- monly in use shall in the future be altered, and stated in substance thus: "Do you know, or can you set forth, any other matter or thing which may be a bene- fit or advantage to the parties at issue in this cause, or either of them, or that may be material to the sub- ject of this your examination, or the matters in ques- tion in this cause! If yea, set forth the same fully and at large in your answer." KULE LXXII. Cross-bill — Answer to. — Where a defendant in equity files a cross-bill for discovery only against the plaintiff in the original bill, the defendant to the origi- nal bill shall first answer thereto before the original plaintiff shall be compellable to answer the cross-bill. The answer o'f the original plaintiff to such cross-bill may be read and used by the party filing the cross-bill at the hearing, in the same manner and under the same restrictions as the answer praying relief may now be read and used. 199 RULE LXXIII. Account of estate. — 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 shall otherwise di- rect. RULE LXXIV. Proceedings on reference. — Whenever any reference of any matter is made to a master to examine and re- port thereon, the party at whose instance or for whose benefit the reference was made shall cause the same to be presented to the master for hearing on or be- fore the next rule day succeeding the time when the reference is made; if he shall omit to do so, the ad- verse party shall be at liberty forthwith to cause pro- ceedings to be had before the master, at the costs of the party procuring the reference. RULE LXXV. Master, proceedings before. — Upon every such ref- erence, it shall 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 master shall be at liberty to proceed ex parte, or, in his dis- cretion, to adjourn the examination and proceedings to a future day, giving notice to the absent party or his solicitor of such adjournment; and it shall be the duty of the master to proceed with all reasonable dili- gence in every such reference, and with the least prac- ticable delay, and either party shall be at liberty to apply to the court, or a judge thereof, for an order to the master to speed the proceedings and to make his report, and to certify to the court or judge the rea- sons for any delay. 200 EULE LXXVI. Master's report. — In the reports made by the master to the court, no part of any state of facts, charge, affidavit, deposition, examination or answer brought in or used before him shall be stated or recited. But such state of facts, charge, affidavit, deposition, ex- amination or answer shall be identified, specified and referred to, so as to inform the court what state of facts, charge, affidavit, deposition or answer was so brought in or used. KULE LXXVII. Duty and power of master. — The master shall regu- late all the proceedings in every hearing before him upon every such reference ; and he shall have full au- thority 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 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 congress, or otherwise, as hereinafter pro- vided; and also to direct the mode in which the mat- ters requiring evidence shall be proved before him; and generally to do all other acts, and direct all other inquiries and proceedings in the matters before him, which he may deem necessary and proper to the justice and merits thereof and the rights of the parties. BULE LXXVIII. Attendance of witnesses. — Witnesses who live within the district may, upon due notice to the opposite party, be sununoned to appear before the commissioner ap- pointed to take testimony, or before a master or ex- aminer 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 examiner, requiring the at- 201 tendance of the witnesses at the time and place speci- fied, who shall be allowed for attendance the same compensation as for attendance in court; and if any witness shall refuse to appear or give evidence, it shall be deemed a contempt of the 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 noth- ing herein contained shall prevent the examination of witnesses viva voce when produced in open court, if the court shall, in its discretion, deem it advisable. RULE LXXIX. Form of accounts. — All parties accounting before a master shall bring in their respective accounts in the form of debtor and creditor; and any of the other parties who shall not be satisfied with the accounts so brought in shall be at liberty to examine the account- ing party viva voce, or upon interrogatories, in the master's office, or by deposition, as the master shall direct. RULE LXXX. What used before master. — All affidavits, deposi- tions and documents which have been previously made, read or used in the court upon any proceeding in any cause or matter may be used before the master. RULE LXXXI. Who may be examined. — The master shall be at lib- erty to examine any creditor or other person coming in to claim before him, either upon written interroga- tories or viva voce, or in both modes, as the nature of the case may appear to require. The evidence upon such examinations shall be taken down by the master, or by some other person by his order and in his pres- ence, if either party requires it, in order that the same may be used by the court, if necessary. 202 KULE LXXXII. Appointment — Fees. — The Circuit Courts may ap- point standing masters in chancery in their respective districts (a majority of all the judges thereof, includ- ing the justice of the Supreme Court, the circuit judges, and the district judge for the district concur- ring in the appointment) ; and they may also appoint a master pro hac vice in any particular case. The compensation to be allowed to every master in chan- cery for his services in any particular case shall be fixed by the Circuit Court, in its discretion, having re- gard to all the circumstances thereof; and the com- pensation shall be charged upon and borne by such of the parties in the cause as the court shall direct. The master shall 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. EULE LXXXIII. Return and entry of master^s report. — The master, as 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 filing the report to file exceptions thereto, and, if no exceptions are within that period filed by either party, the report 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 s^ession, or, if not, then at the next sitting of the court which shall be held thereafter, by adjournment or otherwise. RULE LXXXIV. Costs on frivolous causes. — In order to prevent exceptions to reports from being filed for frivolous causes, or for mere delay, the party whose exceptions are overruled shall, for every exception overruled, pay 203 costs to the other party, and for every exception al- lowed shall be entitled to costs; the costs to be fixed in each case by the court, by a standing rule of the Circuit Court. RULE LXXXV, Correction of decree. — Clerical mistakes in decrees or decretal orders, or errors arising from any acci- dental slip or omission, may, at any time before an actual enrollment thereof, be corrected by order of the court or a judge thereof, upon petition, without the form or expense of a rehearing. EULE LXXXVI. Decree, form of. — In drawing up decrees and orders, neither the bill, nor answer, nor other pleadings, nor any part thereof, nor the report of any master, nor any other prior proceeding, shall be recited or stated in the decree or order ; but the decree and order shall begin, in substance, as follows : ' ' This cause came on to be heard (or to be further heard, as the case may be) at this term, and was argued by counsel; and thereupon, upon consideration thereof, it was ordered, adjudged and decreed as follows, viz.:" [Here insert the decree or order.] EULE LXXXVII. Suits by or against incompetents. — Guardians ad litem to defend a suit may be appointed by the court, or by any judge thereof, for infants or other persons who are under guardianship, or otherwise incapable to sue for themselves. All infants and other persons so incapable may sue by their guardians, if any, or by their prochein ami; subject, however, to such orders as the court may direct for them. RULE LXXXVIII. Rehearing. — Every petition for a rehearing shall contain the special matter or cause on which such re- hearing is applied for, shall be signed by counsel, and the facts therein stated, if not apparent on the record, 204 shall be verified by the oath of the party or by some other person. No rehearing 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 petition may be admitted at any time before the end of the next term of the court in the discretion of the court. RULE LXXXIX. Rules by Circuit Court. — The Circuit Courts (a ma- jority of all the judges thereof, including the justice of the Supreme Court, the circuit judges and the district judge for the district concurring therein) may make any other and further rules and regulations for the practice, proceedings, and process, mesne and final, in their respective districts, not inconsistent with the rules hereby prescribed, in their discretion, and from time to time alter and amend the same. RULE xc. Rules of practice. — In all cases where the rules pre- scribed by this court or by the Circuit Court do not apply, the practice of the Circuit Court shall be regu- lated by the present practice of the high court of chan- cery in England, so far as the same may reasonably be applied consistently with the local circumstances and local conveniences of the district where the court is held, not as positive rules, but as furnishing just analogies to regulate the practice. RULE xci. Affir^nation. — Whenever, under these rules, an oath is or may be required to be taken, the party may, if conscientiously scrupulous of taking an oath, in lieu thereof make solemn affirmation to the truth of the facts stated by him. RULE XCII. Decree in foreclosure cases. — In suits in equity for the foreclosure of mortgages in the Circuit Court of the United States, or in any court of the Territories 205 having jurisdiction of the same, a decree may be ren- dered 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 eighth rule of this court regulating the equity practice, where the decree is solely for the payment of money. RULE XCIII. Injunction — On appeal. — When an appeal from a final decree, in an equity suit, granting or dissolving an injunction, is allowed by a justice or judge who took part in the decision of the cause, he may, in his discretion, at the time of such allowance, make an or- der suspending or modifying the injunction during the pendency of the appeal, upon such terms as to bond or otherwise as he may consider proper for the se- curity of the rights of the opposite party. RULE xciv. Bill by stockholder. — Every bill brought by one or more stockholders in a corporation against the cor- poration and other parties, founded on rights which may properly be asserted by the corporation, must be verified by oath, and must contain an allegation that the plaintiff was a shareholder at the time of the trans- action of which he complains, or that his share had devolved on him since, by operation of law, and that the suit is not a collusive one, to confer on a court of the United States jurisdiction of a case of which it would not otherwise have cognizance. It must also set forth with particularity the efforts of the plaintiff to secure such action as he desires on the part of the managing directors or trustees, and, if necessary, of the shareholders, and the causes of his failure to ob- tain such action. CASES ON EQUITY PLEADING AND PRACTICE. WAUGH V. ROBBINS, 33 111. 182. (1864.) Walker, C. J. In this case complainant exhibited [*183] in the court below this bill to foreclose a mort- gage, executed by James A. Waugh and Sarah A. Waugh to him. It alleges that the mortgage was exe- cuted to secure the payment of money advanced by complainant for the purpose of improving the mort- gaged premises. *That at the time [184*] the mort- gage was executed the mortgagor had no title to the premises, but it was expected the deed would be made to Sarah A. Waugh alone; but on the contrary, the property was conveyed to Sarah A. Waugh and her four children, upon the terms that the children owned jointly one-half of the property, and Sarah A. the other half. That complainant paid the entire con- sideration for the premises, which was, that it should be improved by the erection of a house thereon, which was built with complainant's money, and the convey- ance was made after the building was erected. That the grantees paid nothing. He claims that the prop- erty should be sold for the satisfaction of the mort- gage. The adult defendants answer, and insist by way of plea, that they only have a life estate in the prem- ises, and had no other or greater interest. They after- wards filed a cross-bill in which they allege that they are very poor, and their children in need of the neces- saries and comforts of life, and their interests in the lot ought to be sold for their support, to say nothing of their education; and that they have no personal (207) 208 property ; and pray a sale of their interest in the prem- ises for their support. Complainant answered, ad- mitting the allegations of the cross-bill. The guardian ad litem for the minor defendants answered, that he was uninformed of the truth of the allegations of the bill, and required strict proof. On the hearing, the court decreed a foreclosure and sale of the proi:)erty, also that the conveyance to Sarah A. Waugh and her children was in fraud of complainant's rights, and that the minor defendants take nothing by the con- veyance, as against complainant. That the money arising from the sale should be applied to the pay- ment of the mortgage debt, and if any surplus, that it be paid to Sarah A. Waugh for her benefit and that of her children. There is no evidence in this record to establish the finding of the court that this deed was in fraud of the rights of the mortgagee. Nor does the bill allege that it was in fraud of his rights. It does allege that when he advanced the money and took the mortgage, it was with the expectation that the property would be con- veyed to the mortgagors; and that it [*185] was *done in the mode described, contrary to his expecta- tions. He does not allege such was the agreement, or that it was so understood. It has been so frequently held by this court that the evidence upon which a de- cree is based must be in some manner preserved in the record, that it is unnecessary to refer to cases. This is especially true in reference to decrees against minors. Where minors are defendants to a bill, a decree can only be rendered against them on full proof. Nor can their natural or legal guardians by consent waive this requirement. This decree operates to de- prive them of their property, and yet no evidence is found in the record, even if the allegations of the bill were sufficient, to authorize such a decree. For these reasons the decree of the court below is reversed and the cause remanded, with leave to amend the bill. Decree reversed. 209 CAMPBELL V. POWERS, 139 111. 128. (1891.) Shope^ J. The first point made by the counsel is that the demurrer was improperly sustained. Every bill must contain sufficient matters of fact per se to maintain the case, so that the same may be put in issue by the answer, and established by proofs. Har- rison V. Nixon, 9 Pet. 502 ; Boone v. Chiles, 10 Pet. 177. Appellant, by his bill, asks that appellee be re- quired to unconditionally convey to him a half inter- est in the leasehold alleged to have been purchased of Cooper. Every claim to equitable relief necessarily rests on an existing right, not only in respect of the matter demanded to be done, but also to immediately demand it of the defendant. If for any reason founded on the substance of the case, as stated in the bill, ad- mitted it to be true, the complainant is not entitled to the relief sought, the defendant may properly demur. Story, Eq. PI. § 526. A very brief analysis of the bill, keeping in view that the intendments are against the pleader, will show that the bill wholly fails to state a case entitling him to the relief prayed or to any other relief. By reference to the resume of the bill hereto- fore given it will be seen that only a single date is given to any of these transactions, that being March 1, 1889, when, it is alleged, the original contract be- tween these parties was made. It is alleged they pro- cured an option from Cooper to purchase his lease; but when it was procured, for how long a time the option continued, or when it expired, are left wholly to conjecture. It is alleged also that appellee pur- chased of Cooper in his own name; but as to when, whether during the life-time of the option or after its termination, when all rights thereunder had ceased, there is no information afforded by any allegation of the bill. Eleven months had elapsed, substantially, between the making of the alleged contract by the ap- pellant with appellee and the filing of this bill, and. 210 for aught that is stated in the bill, all right under the option given by Cooper had ceased many months be- fore the purchase by appellee. Again it would seem from the allegations of the bill that the original agree- ment between these parties contemplated a loan, se- cured by mortgage of the estate, to pay the purchase price of the leasehold estate, as well as to erect build- ings thereon. The allegations of the bill show that the parties were negotiating "for a loan of money suf- ficient to erect a building" simply. How the large sum of money required to pay for the leasehold es- tate was to be raised, or how it was in fact raised, if at all, is not shown. Moreover, if it be conceded that the lease was to be paid for out of a loan raised on the leasehold i)roperty, and that it was the dut}^ of the ap- pellee, under the alleged trust, to make the same for the joint benefit of himself and appellant during the continuance of the option, there is not the slightest intimation that he did, or could, by the exercise of due diligence and skill, make such a loan, and thereby perform the alleged trust. Nothing was paid Coojier for the alleged option, nor was there an assumption by the parties of the liability of Cooper under the covenants of said lease. Appellant did nothing be- yond emplo3"ing an architect to prepare plans of a building, and neither by his bill nor otherwise otfers to do anything. No tender is made in the bill or other- wise of any part of the purchase price of the lease- hold estate, and there is no statement that he ever offered to contribute anything towards the purchase. If appellee was compelled to advance the entire cost of the purchase from Cooper before appellant would be equitably entitled to the relief prayed for, he must reimburse appellee a pro rata share of the money ex- pended, even though the purchase was under the op- tion ; and this, being a condition to his right to equita- ble relief, must be offered in his bill. On the other hand, if it be assumed, as may be done consistently with the material allegations of the bill, that the "specified time" for which the option had been given had elapsed, and the joint enterprise been abandoned; 1 211 tliat appellee purchased the lease in good faith for himself — there is nothing alleged that would charge him with a trust in favor of appellant, or render him a trustee ex maleficio in respect of said estate. We are of the opinion that the demurrer was properly sustained. It is next insisted that the court erred in overuling appellant's motion for leave to amend. It may be conceded that the showing was sufficient to excuse ap- pellant for not having made his amendment under the leave given, and for not applying for additional leave at an earlier date. The application was then ad- dressed to the sound discretion of the chancellor, to be exercised for the furtherance of justice. It ap- pears, however, from the certificate of the judge that he denied the leave upon the ground that the order sustaining the demurrer and granting leave to amend was a final order, which the court at a subsequent term could not modify, and held that, complainant having failed to amend his bill according to said order, the court was without jurisdiction or power to then grant said leave. We concur with the Appellate Court that the chancellor was in error in so holding. The case was still pending in the Superior Court. Knapp v. Marshall, 26 111. 63. The order entered was in inter- locutory, and the court had power and jurisdiction to make such further order in the cause as justice might require. Hayes v. Caldwell, 5 Gilman, 33; Gage v. Rohrbach, 56 111. 262; March v. Mayers, 85 111. 177; Lodge v. Klein, 115 111. 177, 3 N. E. Rep. 272. It is insisted with great earnestness that, the Su- perior Court having placed its refusal to grant leave to amend upon erroneous grounds, and not having considered whether its discretion should be exercised to permit the amendment, the case must be reversed and remanded, to the end that the chancellor may exer- cise such discretion in passing upon the granting of leave to amend, and that, therefore, the Appellate Court erred in exercising a discretion committed to the chancellor alone, and in refusing to reverse and remand. This is manifestlv erroneous. The entire 212 showing made to the chancellor is in the recorcj, and if for any reason the discretion should not have been exercised, or the leave should have been denied, the action of the Superior Court in refusing the leave was properly affirmed. It is of the judgment of the court appellant is permitted to complain, and not of the grounds or reasons upon which the court founded its decision. In chancery, amendments are allowed generally with great liberality in furtherance of jus- tice, and at any stage of the proceeding. However, in respect of sworn bills greater caution is exercised. 1 Daniell, Ch. Pr. 402, note 1. It was said by this court in Gregg v. Brower, 67 111. 529, that when the object of the amendment was to let in new facts there is greater reluctance to allow the amendment when it de- pends upon extrinsic proof than when it rests upon documentary evidence, "and if the fact was known to the complainant at the time of filing his bill, such amendment will not be allowed unless some excuse is given for the omission." Citing Calloway v. Dobson, 1 Brock 119; Whitemarsh v. Campbell, 2 Paige, 67; Prescott V. Hubbell, 1 Hill. Eq. 217; Coal Co. v. Dyett, 2 Edw. Ch. 115. In the subsequent case of Jones v. Kennicott, 83 111. 484, which was a bill for ne exeat, and required to be verified by the oath of the party, this court, in passing upon the right of complainant to amend his bill after demurrer sustained, said: "The party asking leave to amend should present and submit in writing the amendment proposed to be made, supported by an affidavit of its truth, and some expla- nation of the reason why the matter proposed to be added was not originally inserted." The bill in this case prayed for the issuance of a writ of injunction restraining appellee from mortgaging, incumbering, or otherwise disposing of the leasehold estate men- tioned, and was properly verified by the affidavit of complainant. It was sworn to that it might be used in procuring an injunction, as well as evidence, upon subsequent motion to dissolve the same. It would have been entirely competent for complainant at any time to have moved for a preliminary injunction. 213 That he did not do so does not affect the nature or character of his bill. The motion for leave to amend was not accompanied by any amendment. No sugges- tion in writing or otherwise was made of the nature or character of the amendment proposed, or affidavit showing that any additional material matter existed or could be alleged, or accounting for its omission. Under the rule relating to amendment of sworn bills, the motion was properly denied. But if it be conceded, as contended, that the bill is to be treated as an unsworn bill, the appellant is in no better position. The rule undoubtedly is that if the bill is not required by law to be sworn to, (and the fact of it being a sworn bill performs no office or effects no change from what it would be as an unsworn bill,) the verification of it by oath of the party will be disregarded, (Gordon v. Reynolds, 114 111. 132; Dow- ney V. O'Donnell, 92 111. 561,) and amendments al- lowed, as if it was not sworn to. The usual practice upon sustaining a demurrer to a bill of this character is to allow amendments as a matter of course, upon such terms, as the court may deem proper, (chapter 22, § 37, Rev. St.,) and within such reasonable time as may be fixed by the court, as was done in this case. Here the appellant failed to make his amendment within the time prescribed, and the dismissal of the bill would follow as a matter of course. The applica- tion was for the affirmative exercise of the discretion of the chancellor in appellant's behalf. He sufficiently accounted, as he must, for his own want of diligence, and so far met with the demands upon him. But more was required. The discretion could be exercised only in furtherance of justice. Its exercise was warranted only when necessary, or apparently necessary, to pre- vent the consummation of wrong, and promote and further justice. Parties litigant have a right to in- sist that litigation shall not be unnecessarily pro- longed, and, unless there was some meritorious rea- son for further delay, the defendant might rightfully demand the dismissal of the bill, and thus end vex- atious litigation. As before indicated, appellant 214 wholly failed to show, not only what amendment he desired to make, but that any amendment could in fact be made to the bill which would obviate the objection to it in matter of substance. It would seem too plain for argument that, before a chancellor could say an amendment should be allowed as in furtherance of justice, he must be apprised of the nature of the amendment to be made. For aught that appeared, the amendments proposed may have been of the most frivolous character, calculated to harass and annoy the defendant by prolonging the litigation and increasing the expense. In such a case no one would contend that the amendment should be allowed. There is no hardship in requiring a party who is in default, and invoking the discretion of the court, to present with his application for leave the amendments proposed to be made, or otherwise apprising the court of what they are, so that the court may intelligently determine the propriety of allowing or disallowing them. There was nothing here shown upon which the court could properly exercise a discretion to allow amendments to the bill, and the order of the court was therefore proper. Upon the disallowance of the motion for leave to amend, the order of the dismissal properly fol- lowed, and its affirmance by the Appellate Court was right. Other errors are assigned, but all of the points made requiring consideration are met by the fore- going. The judgment of the Appellate Court will be affirmed. PRIMMER V. PATTEN, 32 111. 528. (1863.) [530*] Walker, J. The first question which we pro- pose to consider is, whether the bill of discovery contained such allegations as required the court be- low to grant an injunction staying the proceedings at law until the discovery was had. The bill alleges the pendency of the suit; [531*] that pleas had been filed, 215 setting up a failure of *consideration, with notice by the plaintiffs at the tmie they purchased the note; that they purchased the note after its maturity; also a plea that the payee of the note received the con- veyance of a town lot in satisfaction and discharge of the note by a written release, and that plaintiffs had notice at the time they purchased; that replications were filed and issues joined. The bill further alleges that complainant was informed and believed that the note was indorsed after it became due and payable, and that plaintiffs knew of all the facts set up in the pleas when they purchased the note upon which the suit had been instituted. That Lasater, the payee of the note informed plaintiffs that the consideration had failed. It will be observed that the bill fails to allege that the averments in the pleas, or that the information given by the payee of the note to the assignees, was true. Nor does the bill, outside the averments in the pleas, allege facts showing a failure of the considera- tion for which the note was executed. Neither does it allege that complainant expected or believed that he could prove by defendants, that Lasater informed them at the time he indorsed the note, that the con- sideration had failed. The bill should have alleged that the facts averred in the pleas, or such of them as showed a defense, or other sufficient facts, were true. It is likewise defective in failing to allege that he expected to establish their truth by the discovery sought by the bill. It is true that he says in his bill, that he has no witness by whom he can prove the facts set up in the pleas, except by Lasater or the plaint- iffs in the suit at law, but he fails to allege that he can prove them by these parties. It may possibly be inferred that he expects to prove them by the defend- ants to the bill, but there is no such positive allega- tion. This fails to conform to the rules of pleading. In chancery, as at law, all facts must be clearly and positively averred in pleading. Again, the bill is defective in its frame, as it con- tains no prayer for an injunction. It has a prayer for 216 discovery and for a summons to the next term of the court, but it does not ask that the suit at law may be stayed until the coming in of the answer. On this bill, as it was framed, the court below would *have erred in granting an injunction. No er- [532*] ror is perceived in this record, and the judg- ment of the court below must be affirmed. Judgment affirmed. ANGELO ET AL. v. ANGELO ET AL. 146 111. 629. (1893.) Wilkin, J. This is an appeal from a decree of the court below on the bill of appellees against appellants, setting aside a tax deed, and ordering certain lands sold for the payment of rent found to be due from William II. Angelo to Charlotte Aldridge. It appears from the pleadings in the ease that certain real estate was conveyed in September, 1871, to the complainant, Oscar N. Angelo, in fee, subject to a life estate in his parents, William H. Angelo and Charlotte Angelo, now Charlotte Aldridge, as tenants in common. These life tenants entered into possession of the land, and William H. continued to occupy the same to the bring- ing of this suit. Charlotte separated from her hus- band, obtained a divorce, and intermarried with one Aldridge, and has not occupied any part of the prem- ises for several years. Taxes assessed against the land remained unpaid, for which it was sold in May, 1889, and purchased by the defendant Mary Stewart, who, in due course of time, took a tax deed for the same. The bill seeks to set aside that deed, alleging for cause that it was obtained through collusion and fraud of Mary Stewart and William H. Angelo. It appears that in June, 1890, Charlotte Aldridge, on a bill by her against William H., obtained a decree for $846.48, for the use of her part of the common prop- erty. The present bill was filed August 5, 1891, and seeks to recover not only rents due since that time, 217 but also the amount of the former decree, and prays that the interest of WilUam H. be sold for the pur- pose of paying the same. The defendants answered separately, each denymg that there was any collusion or fraud on their part in regard to the sale of the lands for taxes, or in obtaining the tax deed by Mary Stew- art. William H. further denied that the complainant Charlotte was entitled to recover from him any rents or profits of the land. He also set up against the prayer for a sale of the premises a homestead right in his interest. On the twelfth of October, 1892, a decree was rendered, reciting that said tax deed "was and is void because of defects in the notice of the sale for taxes, and the same is therefore annulled and set aside as a cloud upon the title to said land, but * * * that in equity the said Mary Stew^art is entitled to have her money so advanced repaid to her out of the proceeds of the sale of said land," etc. It also con- firmed the decree of June, 1890, and decreed that the defendant William H. should pay the complainant Charlotte an additional amount of $175, as rent, making in all the sum of $1,021.48, and ordered the ]n'emises sold for the payment thereof, the sale to be free from any claim of homestead by William H. It is insisted that the decree is erroneous on both branches of the case. Clearly, the order setting aside the tax deed cannot be upheld, for the reason that it is based upon a ground entirely foreign to the issues in the case. There is no allegation in the bill that the notice of the tax sale was defective. The sole and only ground upon which it seeks to avoid the sale and deed is the misconduct, fraud and collusion of William H. Angelo and Mary Stewart, in whose name the deed was taken. The de- cree, in effect, finds that issue for the defendants, but then goes entirely outside the bill, and sets the deed aside because of defects in the notice. This was clearly error without reference to the proofs. The rule that proofs without corresponding allegations are in equity as unavailing as allegations without proofs, is familiar to every lawyer. 218 On the other branch of the case the bill is fatally defective, and the demurrer filed to it should have been sustained. It is a bill by one tenant in common against another to recover rents and profits, or to recover for use and occupation. It does not attempt to show that the defendant received rents and profits from a third person; that he rented the land, or any part of it; or even what the rental value of it was during the time charged for. No attempt whatever is made by it to show that the defendant refused to allow the complainant to occupy the premises, or to control her interest in the same, or that she made any effort or attempt to do so. It does no more than to aver that the defendant occupied the common prop- erty, and the complainant did not. No facts are alleged upon which to base the prayer for a sale of the interest of the defendant, even if the bill were otherwise suffi- cient; neither is it in any way shown that this bill is necessary to enforce the collection of the former de- cree. In short, the bill shows on its face that it was filed without any regard to well-established rules of law governing the rights of co-tenants. At the com- mon law one tenant in common could not be compelled to account to another for rents and profits, to remedy which hardship the Statute of 4 Anne, chap. 16, was enacted. Freem. Co-tenancy, § 270. To the same effect is our statute (§1, chap. 2, p. 187, 1 Starr & C. St.) The remedy is by action to compel an account- ing, now almost, if not universally, pursued by bill in equity, and expressly authorized by the eighteenth section of the chapter or our statute above referred to. The liability of one co-tenant to account to an- other may arise either from receiving from a third party more than his share of the rents and profits, or from his appropriating to his own use more than his proportion of the common estate. See Freem. Co- tenancy, § 272. It is impossible to tell upon which of these grounds the liability is based, but it is clear the bill is insufficient in any view. Clearly, it makes no case on the first ground, for the reason, as already stated, it wholly fails to show the receipt of any rents 219 by William H. It is equally defective on the second, because it does no more than show occupancy by the defendant, and forbearance to occupy by complainant. Chapin v. Foss, 75 111. 280; Boley v. Barutio, 120 111. 192, 11 N. E. Rep. 393, and cases cited. Moreover, no attempt is made to state the rental value of the land. Again, there is no such thing known to the law as a lien, in the first instance, in favor of the complaining tenant, against the interest of the other, for rents and profits. Stenger v. Edwards, 70 111. 631. But it is useless to pursue this inquiry. No one can seriously contend that an account could be stated between these parties on this bill if every fact stated in it were ad- mitted to be true. The case is very meagerly pre- sented by the abstract, and the argument on behalf of appellant on this branch of the record is confined to a discussion of the homestead rights of William H. An- gelo, as against the decree of sale. In our opinion, that question it not reached, for the reason that no right of action is shown by the bill, and, if there had been, a peremptory decree for the sale of the land would have been erroneous. The decree of the Circuit Court is reversed, and the cause remanded. WHITE V. MORRISON, 11 in. 361. (1849.) Treat, C. J. This decree can not be affirmed. The case shows a clear right in the complainant to a fore- closure of his mortgage, unless the defendant Butler, made full proof of his defense. He alleges in his an- swer, that he had acquired the legal title to the mort- gage premises, by virtue of a sale and sheriff's deed, founded on a judgment recovered against the mort- gagor l)efore the execution of the mortgage. The sheriff's deed, although referred to as an exhibit in the answer, does not appear to have been produced and proved. If introduced and proved as an exhibit, 220 on the hearing, it would have been filed with the pa- pers of the case and copied into the transcript sent to this court. Holdridge v. Bailey, 4 Scammon, 124. But it is contended that the existence of the judgment and the proceedings under it, is admitted by the bill. Such is not the fact. The bill states that the defend- ant, Butler, pretends that he has purchased the prem- ises, under a judgment older than the mortgage, [*365] and then charges *that it would be inequitable in him to set up the purchase to defeat the mortgage, inasmuch as he had agreed to pay off the mortgage. This statement does not dispense with proof of the allegations of the answer. It is not an admission that there was such a judgment, or that such proceedings were had under it. The bill antici- pates a particular defense, without conceding it to be true. We are asked, however, to presume that proof of the defense was made orally at the hearing, under the provisions of the act of the 12th of February, 1849, which declares "that thereafter, on the trial of any suit in chancery, the evidence on the part of either plaintiff or defendant may be given orally, un- der the same rules and regulations as evidence in cases at common law; provided, however, that deposi- tions taken in pursuance of law may still be read in evidence, as if this act had not been passed." Acts of 1849, page 133. Previous to the passage of this act, the testimony in contested chancery cases, was taken down in writing in the form of depositions, ex- cept where the witnesses were examined orally before a master, and the facts proved by them reported to the court, and when the proof of exhibits was made viva voce at the hearing. And the depositions, the mas- ter's report, and the exhibits were filed, and made part of the record of the case. M'Clay v. Norris, 4 Gil- man, 370. We are of the opinion that this act was only designed to change the mode of taking testimony, and not to dispense with the necessity of the testi- mony appearing in the record. The parties are per- mitted to produce their witnesses in open court, and have them examined orally. The object was to avoid 221 the inconvenience, expense and delay attending the preparation of a case for hearing, where the evidence must be taken by depositions. When this statute is acted on, tlie testimony of the witnesses, or the facts proved by them, ought still to appear in the record. It may be stated in the decree ; in a bill of exceptions ; in a certificate of the judge, or in a master's report. We conceive it to be the duty of the Circuit Court to see that the testimony is incorporated in the record, in some one of these ways. This court will not pre- sume that any other proof was made than what is thus stated in the record. In this case, the decree recites that the cause was heard on the bill, answer, replication, exhibits and depositions. The rec- ord fails to show that *any proof was made of [*366] the sheriff's deed. The exhibits referred to in the decree must be understood as including only those appearing in the record. For this defect in the proof of the defendant, the decree must be reversed. In- stead of a decree being entered in this court, the cause will be remanded, that the parties may have an opportunity to present the whole case on the merits. It may not be improper to make some further sug- gestions respecting the case. It was insisted on the argument that the complainant was entitled to a de- cree of foreclosure, even if the allegations of the an- swer were true, inasmuch as he proved that the pur- chase under the judgment was made with the money of the mortgagor. If such was the fact, Butler can not assert title under the sheriff's deed, to the prej- udice of the mortgage, because, in equity, it was the purchase of the mortgagor, and inured to the benefit of the mortgagee. But the complainant has not made a case by his bill, that will authorize him to defeat the purchase on this ground. He seeks to avoid the purchase on the ground that Butler was personally liable for the payment of the mortgage. He can not allege one cause for relief against the purchaser, and make out his case by proof of a different one. His proof must correspond with the allegations he has made, and not be inconsistent therewith. He must 222 - stand or fall with the case made in his bill. M'Kay V. Bissett, 5 Gilman, 499. Special replications in chancery are now disused. A general replication only puts in issue the truth and sufficiency of the matters stated in the bill and answer. If it is necessary for a complainant to put in issue any facts on his part, in avoidance of matters set up by the defendant, he must do it by proper charges in his bill. He may, in the original bill, anticipate the defense that will be made, and allege any matter necessary to explain or avoid it; or, omitting all reference to the defense, he may, on the coming in of the answer, introduce the new matter into the case, by an amendment to the bill. Story's Eq. PI., sec. 878; Tarlton v. Vietes, 1 Gilman, 470. The decree of the Circuit Court will be reversed, with costs, and the cause remanded, with leave to the complainant to amend his bill. Decree reversed. WINSLOW V. NOBLE, 101 111. 194. (1882.) Mr. Chief Justice Craig delivered the opinion of court. This was a bill in equity, brought by Thomas J. Noble, and Sarah J. Noble, his wife, against Nath- aniel N. Winslow, and Sarah L. Winslow, his wife, to enjoin them from prosecuting an action of forcible detainer, which was then pending before a justice of the peace, to recover possession of a certain tract of land in McLean county, consisting of 45 90/100 acres which was then occupied by the complainants. There is no substantial dispute between the j^arties in regard to the facts. Noble, as appears, a few years ago owned 160 acres of land in Piatt county, upon which he had given a certain trust deed to secure a certain amount of money which he owed to one Wing. This land he traded to John E. Stewart for 45 acres 223 of land in McLean connty^ — the land in dispute. In the trade Noble agreed to remove the mortgage on the Piatt eonnty land, and Stewart reserved a ven- dor's lien on the 45 acres, to secure the, performance of Noble's agreement. Noble moved on the land in McLean county, and thereafter he occupied it as a homestead. Noble failing to pay off the mortgage on the Piatt county land, Stewart, at the request of Noble, found a man (Daniel Grow) who was willing to loan the money to be used for that purpose, and take a mortgage on the 45 acres of land. Noble and his wife agreed to give a mortgage releasing the home- stead, to secure the money loaned by Daniel Grow, and a mortgage was prepared, executed and acknowl- edged; but the acknowledgment was defective in this, it failed to show that T. J. Noble acknowledged the release of the homestead. This defect was not, how- ever, known by Grow or the Nobles. The money loaned not having been paid when due. Grow, in February, 1878, filed a bill in the McLean Circuit Court to foreclose the mortgage. The Nobles did not appear. A decree by default was rendered, and in May, 1878, the premises were sold, and bid off by Grow for the amount of his debt, and costs. In July, 1879, Noble, finding that he could not redeem the premises from the sale, went to appellant N. N Win- slow, and induced him to buy the place at $50 per acre, which amounted to the sum of $2,250. There was then due Grow $2,000, but he agreed to throw off $150. Winslow then paid him $1,850, and took an assignment of the certificate of purchase, and ac- counted to Noble for the balance of the purchase price of the land— $400. Winslow had a deed made to his wife on the certificate of purchase, and as a part of the trade leased the premises to Noble from the 1st day of July, 1879, to the 1st day of March, 1880, for eight per cent, on the amount he had paid for the property, and a written lease was executed by the par- ties. Before the expiration of the lease Noble dis- covered the defect in the acknowledgment of the mortgage, and refused to surrender possession of the 224 premises, and upon being sued for possession filed this bill. There is no controversy over the proposition that a homestead is not exempt as against a debt incurred for the purchase thereof. But the money Grow loaned Noble, for which a mortgage was taken, was not used in the purchase of the premises — it was in no sense purchase money. The fact that Noble may have used the money borrowed of Grow to pay ot¥ a mortgage on the Piatt county farm, which he agreed with Stew- art to pay, as a part of the trade under which he obtained the land in question, does not make the money obtained of Grow purchase money. Stewart sold the premises to Noble, but he received no part of the money Grow loaned Noble. The premises were purchased long before the Grow debt was made, and hence the Grow debt could not be incurred for the purchase of the premises. Appellant Winslow filed a cross-bill, in which it was, in substance, alleged, that T. J. Noble acknowledged (before the notary who took the acknowledgment of the mortgage) the release and waiver of his home- stead rights in and to the premises described in the mortgage, and that by a mere clerical error of the notary who drew the mortgage, the certificate of ac- knowledgment failed to state the truth in regard to the acknowledgment. The cross-bill prayed that the certificate of acknowledgment be performed accord- ing to the truth. The complainants interposed a de- murrer to the cross-bill, which the court sustained, and this is relied upon as error. We shall not stop to determine whether the court erred in sustaining the demurrer to the cross-bill, or not, as a correct decision of the case must rest upon other grounds, which will dispose of the case upon its merits, without passing upon that question. Winslow, it will be remembered, became the pur- chaser of the certificate of purchase from Grow at the instance and request of Noble, — not for the pur- pose of speculating out of the land, but for the pur- pose of aiding Noble to save something out of the 225 land, which had been sold, and the redemption was about to expire, and all would then be lost to him, as he then supposed. By inducmg Winslow to purchase the certificate of purchase, and thus obtain the title to the land. Noble realized $400 by the transaction. Now, after Noble has induced Winslow to make this purchase and pay all the land is worth, and has ob- tained from Winslow $400 and put it in his own pocket will equity allow him to repudiate what he has done, retain the money Winslow paid for the land, and re- cover, by a decree in chancery, almost one-half in value of the land which he induced Winslow to pur- chase? We do not believe any precedent can be found which would sanction such gross inequity and injus- tice. It is an old and well established rule in equity, that he who seeks equity must do equity. Let us apply this rule to the present case and see whether the de- cree can be sustained. Before Noble could call upon a court of equity for relief, justice and right would require him to refund Winslow the amount of money he had paid at the request of Noble, and surely equity would not allow Noble to retain the money Winslow had paid him, and at the same time give him the land. This would 1)6 no less than sanctioning a palpable fraud. There is another well established rale in equity which ought not to be overlooked in a case of this character, which is, that a party must come into a court of equity with clean hands, otherwise his bill will be dismissed. (Thorp v. McCullum, 1 Gilm. 614.) Can it be said that Noble's hands are clean so long as he holds Winslow 's money? We think not. There is yet another feature in this case which pre- cludes a decree in favor of the complainant in the bill. He not only induced Winslow to purchase the land, but as a part of the purchase contract he surrendered the possession of the property to him, and became a tenant of Winslow from July 8, 1879, to March 1, 1880, at a stipulated rent. Such is the effect of the 226 contract which was executed by the parties. It reads as follows: " Bloomington, III., July 8th, 1879. "I have this day bought of T. J. Noble his farm, it being the land that Daniel Grow now holds a certi- ficate of sale of, and occupied by said Noble, for which I agree to pay $50 per acre, as follows, to settle with and pay Mr. Grow the money due him, and pay the balance to said Noble. I further agree to let said Noble hold possession of said farm until March 1st, 1880, for which he is to pay me, as rent, 8 per cent, interest on purchase money, from time I pay the money until March 1st, 1880. I further agree to give said Noble the first refusal to rent the said farm for one year or more, from March 1st, 1880, as may be agreed upon hereafter. (Signed.) N. N. AVinslow, T. J. Noble." In Brown v. Coon, 36 111. 243, where the homestead had been sold by the owner thereof, by deed which did not release the homestead as required by statute, it was held, as possession was delivered under the deed, the title passed, — that the homestead right was lost by the abandonment of possession to plaintiff's gran- tee, as completely as if there had been a relinquish- ment in the form required by the statute. Here, Noble made no deed because a deed was not necessary, as the title had passed on the foreclosure sale. He did not move off the premises and surrender up actual possession to Winslow, but when he became Winslow's tenant under a written lease, the legal effect was the same as if he had moved off and Winslow had moved on the premises. We are, therefore, of opinion that Noble abandoned his homestead rights. Indeed, under the language of sec. 4 of the Homestead act. Rev. Stat. 1874, p. 497, we do not see how Noble can claim homestead rights in the premises. It declares: "No release, waiver or conveyance of the estate so exempted shall be valid unless the same is in writing, subscribed by said householder, and his or her wife or husband, * * * 227 and acknowledged in the same manner as convey- ances of real estate are required to be acknowledged, or possession is abandoned, or given pursuant to the conveyance." Here, when Noble leased the property and became the tenant of Winslow, possession, within the meaning of the statute, was given pursuant to the conveyance. Eldridge v. Pierce, 90 111. 474. What was said in Booker v. Anderson, 35 111. 66, can have no bearing here, as the statute under which that decision was rendered did not contain the clause, "or possession is abandoned, or given pursuant to the conveyance," as the statute now does. In any view we have been able to take of the case, we perceive no ground upon which the decree can be sustained. The decree will be reversed, and the cause re- manded, with directions to the Circuit Court to dis- miss the bill. Mr. Justice Scott dissenting. Decree reversed. NEWELL V. BUREAU COUNTY, 37 111. 253. (1865.) Me. Justice Beeese delivered the opinion of the court. The only question presented by thip record, is, as to the propriety of sustaining a general demurrer to the bill of complaint of appellants. It is insisted by appellants that inasmuch as the demurrer was general to the whole bill, it admitted all the facts stated in the bill to be true, and as fraud and usury were charged, those facts were admitted, and therefore the demurrer should have been over- ruled. The rule is, as we understand it, and have re- peatedly stated, that the effect of a demurrer is to admit all facts properly pleaded, but not inferences of law from those facts. Stow v. Kussel, decided at 228 April term, 1864; I Daniels' Ch. Pr., 601 Mills et al. V, Brown et al., 2 Scam. 549. The charges of fraud and usury are general, and do not show the facts on which the charges are predi- cated, consequently, it would be impossible to answer them. That such and such facts constitute fraud, or usury, as the case may be, may be but an inference drawn by the pleader from the facts, and as such in- ferences are not admitted by the demurrer, the facts must be distinctly charged. We fail to perceive in any of the allegations of the bill, any specific charge of fraud or usury such as would be admitted by a general demurrer to a bill, or of such a nature as to call for an answer. The whole case rests upon the policy adopted by the state in regard to the disposition of the swamp lands granted to the state by the United States, and by the state to the several counties in which those lands are situated. [*257] We had occasion, in the case of Supervisors of Whiteside Co. v. Burchell et al., 31 111. 68, to examine this whole subject, and we came to the conclusion, to which we adhere, where a party pur- chased swamp lands from a county in 1856, the year in which appellants purchased, and executed his notes for the absolute payment of the purchase money, he had no remedy to compel the county to appropriate the proceeds of the sales of such lands to their re- clamation, as was contemplated by the legislation on the subject, in force at the time of his purchase; but his rights in that regard are to be determined by the policy subsequently adopted by the Legislature, which placed the whole subject of the control and disposal of these lands, and the appropriation of their proceeds in the hands of the several county authorities, and released them from all the liabilities and obligations theretofore imposed upon them, respecting them. From this, it follows, no plea of want of considera- tion can be sustained to a note given for the land, the reclamation of these lands being understood to be a 229 part of the consideration of the note at the time the same was executed. Perceiving no sufficient charge of fraud, usury, or want of consideration in the bill of complaint, or any other fact to weaken the claim of the county to pay- ment of the note and mortgage, the bill appears with- out equity, and the court probably sustained the de- murrer to it, and its judgment must be affirmed. Decree affirmed. SMITH V. BRITTENHAM, 98 111. 1888. (1881.) Me. Justice Sheldon delivered the opinion of the court. This was a bill in chancery, filed in the Circuit Court of DeWitt county, on the 14th day of August, 1874, by Sarah J. Brittenham against Columbus C. Smith, to have set aside a conveyance of 237 acres of land, made by her to him on the 12th day of January, 1869, in exchange for a stock of goods, on the ground of alleged fraud on the part of Smith in the making of the contract for such exchange. Personal service of summons was had on Smith, and he failing to appear and answer, the bill was taken for confessed against him at the August term, 1874. At the following December term an order was made dismissing the cause for want of prosecution, which order, two days afterward, at the same term, was set aside, and the cause reinstated without notice to Smith. He did not appear in the court until after the final de- cree. At the December term, 1876, the cause was referred to the master, to take testimony, etc., who reported that the value of the goods received by the complainant was $4,500, and the rental value of the land during the time the defendant had held the same under the deed, to be $5,300, and at the same December term the court rendered a decree cancelling the deed and setting off the value of the goods against the rent 230 of the land. At the next March term Smith entered a motion to vacate the decree and for leave to answer the bill. The court overruled the motion, from which decision Smith prosecuted an appeal to this court, and the ruling of the Circuit Court in refusing to set aside the decree and admit an answer, was affirmed. See Smith V. Brittenham, 88 111. 291. This court holding that this appeal did not bring before it anything but the decision of the Circuit Court overruling said motion, and the Appellate Court hav- ing in the meantime been organized, aftei-ward, Smith sued out a writ of error from the Appellate Court for the Third District, to the Circuit Court, and filed in the Appellate Court a complete copy of the record, and on a final hearing in that court at the November term, 1878, the decree of the Circuit Court, in the re- spect of ordering a writ of assistance to issue, was re- versed, and in all other respects said decree was affirmed. The cause was remanded to the Circuit Court, where such proceedings were had, at the March term, 1879, that another writ of assistance was ordered by the Circuit Court. From this order Smith again appealed to the Appellate Court, and that court at the May term, 1879, affirmed the order of the Circuit Court, awarding the writ of assistance. From this judgment of affirmance Smith again ap- pealed to this court, and the judgment was affirmed. See Smith v. Brittenham, 94 111. 627. Subsequently this present writ of error was sued out to the Appel- late Court, by which the entire record in the case is brought up, and plaintiff in error. Smith, challenges the correctness of the decision of the Appellate Court at its November term, 1878, affirming the decree of the Circuit Court except in the respect of the writ of assistance. Preliminarily, defendant in error insists that this writ of error will not lie, in view of the previous pro- ceedings above recited, which have been had in the case, — that in consequence of them the decree of the Circuit Court has become res adjudicata, and plaintiff 231 in error therefore precluded from bringing in question its correctness. It is very clear that there has never been, in fact, any adjudication of this court in respect to the cor- rectness of that decree. On the first appeal to this court we distinctly declared that there was nothing before us for consideration but the decision of the Circuit Court overruling the motion to vacate the de- cree and for leave to answer, and said we forbore to remark upon the merits of the case. On the second appeal to this court, we said the appeal was not from the judgment of affirmance of the Appellate Court at its November term, 1878, of the decree of the Circuit Court except as to the writ of assistance, but that it was from the Appellate Court's judgment of its May term, 1879, affirming the order of the Circuit Court award- ing another writ of assistance, and that the entire record in the cause was not before us. Only the two rulings of the Circuit Court then have to be reviewed by this court- — the denial of the motion to vacate the decree, and the order awarding a writ of assistance — and it appears that this court declined to consider anything further. Plaintiff in error is en- titled to have reviewed the in this court the |>ropriety of the main decree of the Circuit Court, and we do not think that he should be barred from his present writ of error for that purpose, by anything which has transpired in the case heretofore. The plaintiff in error. Smith, makes the point, that after the dismissal of the cause in the Circuit Court at the December term, 1874, the subsequent vacating of the order and reinstating of the case at that term was erroneous without notice to him of the motion for that purpose. We do not so think. Smith having be- fore been brought into court by service of process, was bound to take notice of all the orders which were made in the cause at that same term of court, and as well after as before the making of the order of dis- missal. We come then to the question of the correctness of the decree of the Circuit Court. The default of Smith 232 admitted such facts as are properly alleged in the bill, and no more, and the inquiry is whether the bill states sufficient facts to wararnt the decree. We give the bill in its material part. After describ- ing the land and being seized of it, the bill proceeds : ''Oratrix would further represent that while so seized of the ]and aforesaid, Columbus C Smith, on or about the 1st day of January, A. D. 1869, made a proposition to the husband of oratrix to trade and ex- change a stock of goods then owned by said Smith, for said land, the said Smith then and there proposing to said husband to buy said land at the sum of $14,000, and pay for the same in said stock of goods, at their original cost, and that the same were to be invoiced and the difference either way to be paid by the said parties; that after such negotiation the said propo- sition was communicated to oratrix ; that upon the faith of such representations, and imdertakings on the part of said Smith, as to the hivoice and price of said goods, oratrix consented to make such trade, and in consum-, mation thereof, oratrix did, on the 12th day of January, 1869, in connection with her husband, make, execute and doliver to said Smith, a deed of general warranty for said land, a copy of which is hereto annexed and asked to be considered a part of this bill, and that in pursuance of the rights and powers of said deed, the said Smith entered into and took possession of said lands, and has continued in such possession ever since, receiving the rents and profits of the same. "Oratrix would further state that after oratrix con- sented to make said exchange upon the faith of said representations, the said Smith, to injure and defraud oratrix, made a false and fraudulent inventory of said goods, and then and there in such inventory did take advantage of said John A. Brittenham, he being at the time, to some extent, unsound in his mind, and being incapable because of such unsoundness to protect the interests and rights of oratrix, and oratrix charges that a false and fraudulent inventory of such goods was made for the purpose of cheating oratrix, and that in such inventory, the same being false, oratrix 233 was cheated out of a large amount ; and oratrix further states and charges that a large amount of goods m- cluded in the inventory was not delivered to her, or her said husband, or to any person for their use; but on the contrary, the value of the goods delivered was $5000 less than the amount of inventory, Oratrix further states that said goods were not worth to exceed $4000; that the amount not delivered of the goods as aforesaid, and the falsity of said inventory, reduced the actual value of the goods received by oratrix to the said amount of $4000; that oratrix was ignorant of said fraudulent act of said Smith until a short time — to-wit: five days — before the meeting of the last term of this court; that oratrix was not skilled in business of mer- chandise or the value of dry goods, and that owing to said condition of her said husband, he was wholly unfit to detect said fraud or protect the rights of ora- trix in the consummation of said trade; said Smith still has the title and possession of said land; that the rents and profits of said land since the said Smith got the same, have been and are sufficient to pay said Smith whatever said goods were worth as delivered to oratrix under said trade. Forasmuch as your oratrix is without an adequate remedy, except in a court of equity, oratrix asks that said Smith be made defendant herein, that he may be required to answer this bill, but not on oath, answer on oath being waived, that an account be stated between the parties as to the value of said goods and the use of said lands, that if anything be due defendant on such accounting, ora- trix is ready and waiting to pay said defendant, that in consequence of the deception and bad faith as afore- said the defendant be required to reconvey said land to oratrix, and that said sale be rendered null and void ; and your oratrix asks such further relief," etc. It will be seen that the bill does not show that the goods traded by Smith for the land have been returned or offered to be returned to him, or any excuse for not doing so. In Buchenau v. Horney, 12 111. 338, this court said: "A party can not rescind a contract of 234 sale, and at the same time retain the consideration he has received. He can not affirm the contract as to part, and avoid the residue, but must rescind in toto. He must put the other party in as good condition as before the sale, by a return of the property jjurchased. There may be an exception when the subject matter of the sale is entirely worthless. But if it is of any benefit to the seller, the purchaser must restore it be- fore he can put an end to the contract. ' ' And see Wolf V. Dietzsch, 75 111. 205, among many other cases in this court, to the same effect. Mr. Benjamin, in his work on Sales, sec. 452, says upon this subject: "And if he (the buyer of goods) has paid the price, he may recover it back on offering to return the goods in the same state in which he re- ceived them. And this ability to restore the thing pur- chased unchanged in condition is indispensable to the exercise of the right to rescind, so that if the pur- chaser has innocently changed that condition while ignorant of the fraud, he can not rescind," If there be any excuse in the case which could be accepted for not making, or offering to make return of the goods, none whatever is shown by the bill, so that the general rule as above stated must apply here ; and under that rule the bill makes no case of a right to rescind the contract. Aside from the above we are of opinion the facts alleged in the bill are not sufficient to authorize the decree. There is an attempt to set up two matters as ground for the rescission of the contract — the making of a false and fraudulent inventory of the goods, and the not delivering of a large amount of goods included in the inventory. In respect to the last the charge is, "that a large amount of goods included in the inventory was not delivered to her, — but, on the contrary, the value of the goods delivered was $5000 less than the amount of the inventory." Now, taking this whole charge together, it really does not charge that any goods included in the inven- tory were kept back. The attempted statement that there was, in the first clause, is rendered valueless as 235 an allegation of such a fact by the last clause stating what was done in that regard, namely, "but, on the contrary, the value of the goods delivered was $5000 less than the amount of the inventory." So that, taken altogether, the whole charge in that respect, as we read it, is, that the value of the goods delivered was $5,000 less than the amount of the original cost price as appearing by the inventory. The amount of the inventory, we take to be the amount of the inventory prices, and the inventory prices to be the original cost prices of the goods. If it be susceptible of any other meaning, such meaning is not obvious, and the above is the meaning we conceive, which, as against the pleader, is entitled to be put upon that expression. Now, what does it matter in the way of entitling complainant to relief, that the value of the goods re- ceived was $5,000 less than the amount of the inven- tory — the amount of the original cost prices of the goods! The contract price for the goods was the original cost of the goods, not the value of the goods, and the discrepancy between the value of the goods received and the original cost price of the goods, would furnish no ground for any relief under the contract. The other charge is in the general terms that de- fendant made a false and fraudulent inventory of the goods, in which complainant was cheated of a large amount, without at all naming in what respect the in- ventory was false and fraudulent. Charges of fraud should not be general, but the facts should be stated on which the charges are based. Newell v. Bureau Co., 37 111. 253. After alleging that the goods were not worth to ex- ceed $4,000, then the whole amount of damage, as re- sulting from both the said causes of complaint, is stated to be, "that the amount not delivered, of the goods, and the falsity of said inventory, reduced the actual value of the goods received by oratrix to the said amount of $-1:000." What damage or ground of complaint does this show under the contract? Reduced the value of the goods from what sum, or from what? The actual value of the goods may not have been 236 more than $4,000, and yet the original cost price, at which they were to be taken, have been as much as $14,000, the full agreed price for the land. As already observed, the value of the goods is unimportant. It is their original cost price which is the essential thing. It is noteworthy that the bill fails to state anything as to the original cost of the goods, or as to the inven- tory price, or as to any discrepancy between the in- ventory price and the original cost. It but states the value of the goods received, proceeding, seemingly, upon the theory that the discrepancy between their value and that of the land, was ground sufficient for having the contract rescinded, or at least that that was enough of damage to show. There must be damage, as well as fraud. They must concur, for the annul- ment of a contract. The facts alleged do not show damage. The bill does not make a case for the re- scinding of the contract of sale of the land. It is said that proofs taken by the master show a case. Without looking into them to see whether they do or not, it is not enough that they may do so, — they cannot supply the want of allegations in the bill. The decree must be according to the allegations as well as proofs, and, unless the bill states sufficient facts to warrant the decree, it cannot stand. The judgment of the Appellate Court will be re- versed, and the cause remanded, with directions to re- verse the d"cree of ♦' e Circuit Court, and remand the case, with leave to amend the bill if complainant shall be so advised, and with liberty to answer. Judgment reversed. GOODWIN ET AL. v. BISHOP ET AL. 145 111. 421. (1893.) Craig, J. This was a bill in equity, brought by H. E. Lowe, trustee, and E. F. Bayley, successor, to fore- close a certain trust deed executed by Caleb Goodwin and Elizabeth Goodwin to secure seven promissory 237 notes, made payable to themselves, and indorsed to Alexander Bishop, — one note for $5,000, due in three years after date, and six interest notes for $175 each. The note of $5,000 was given for a loan of that amount of money loaned by Bishop to Goodwin, and the de- fense attempted to be set up in the answer was that the transaction was usurious. The answer, setting up usury, is as follows : ' ' And these respondents say that they did not, nor did either of them, receive the full sum of $5,000 from said complainants at the time of making said loan, nor at any time, nor did they re- ceive any money at the date of said notes and trust deed, and so these respondents say that the amount claimed by said complainants is largely tainted with usury." If a party to a bill in equity desires to set up and rely upon the defense of usury, he must allege the facts showing wherein the usury consists. A gen- eral charge of usury in an answer is not sufficient. Hosier v. Norton, 83 111. 519. The allegation of the answer may be true, and it by no means follows that the contract between the parties was usurious. The gist of the answer is that the defendants did not secure the full sum of $5,000, nor did they secure any money at the date of the notes. Suppose, however, the next day after the notes were executed, they secured $4,999, and allowed the mortgagee to retain $1 to pay for recording the mortgage, this would be in harmony with the facts disclosed in the answer, and yet usury could not be established in such a state of facts. Where the defense of usury is relied upon, the facts consti- tuting the usury should, as a general rule, be clearly set up in the answer, and proved as alleged. But it is said, if the answer was insufficient, the com- plainant ought to have filed exceptions. It is a rule of chancery practice, where an answer is defective, it must be excepted to ; a demurrer is not allowable. Stone V. Moore, 26 111. 165. But where the answer is not under oath, exceptions will not lie, because such answer is not evidence for the party making it. Su- pervisors of Fulton Co. V. Mississippi & W. R. Co., 21 111. 366; Brown v. Mortgage Co., 110 111. 238. 238 But, even if the answer was sufficient, we do not think that the evidence established usury. Bishop loaned Goodwin $5,000, for three years, at 7 per cent, interest. Lowe testified that the money was disposed of as follows: "Out of this loan Mr. Goodwin re- ceived $110.65 in cash. I paid Mr. Ward $4,640.41 on May 8, 1889, to take up his mortgage on this property. I paid the taxes,— $73.94. I paid Bayley & Waldo $50, for examination of title, etc., by the direction of Mr. Goodwin, and Mr. Goodwin paid me a commission of $125." These items make up the $5,000 loaned by Bishop, and it will be borne in mind that, at the time the loan was made, 8 per cent was a legal rate of interest. In order, therefore to make out that a greater rate was exacted than 8 per cent., it was neces- sary to prove that Bishop or his agent received the $50 and the $125 mentioned by Lowe in his evidence. As to the $50, it was paid by the direction of Goodwin to attorneys, for an examination of title to the prop- erty mortgaged; and under Ammondson v. Ryan, 111 111. 506, that was a legitimate transaction, and not usurious. As respects the other item, Goodwin paid that sum to Lowe for his services in procuring the loan. Lowe did not secure the money for Bishop, nor did Bishop, so far as appears, have any knowl- edge that Lowe secured the money. If Goodwin has seen proper to pay money to Lowe for his services, that did not render the loan made by Bishop usurious. Ballinger v. Bouland, 87 111. 513; Cox v. Insurance Co., 113 111. 385. The court allowed a solicitor's fee of $250, and this is claimed to be erroneous. The deed of trust con- tains a provision that, in case of suit or proceeding for foreclosure, the proceeds of sale shall, among other things, be applied to pay an attorney's fee of 5 per cent, upon the amount secured. Under this clause of the deed of trust, the court allowed the amount complained of, and we think the action of the court was fully authorized. In computing the amount due on the notes, the mas- ter in chancery computed interest from the date of the 239 notes, while it appeared from the evidence that the money was not paid over until a few days after the notes were executed. Objection being made, the court, on March 8, 1892, modified the report, and deducted $11.72 for excess of interest computed. At the same time, as the amount found due by the master was com- puted only to the time the report was filed, November 30, 1891, the court added $95, to make up the interest from November 30, 1891, to the date of decree, March 8, 1892. As interest had accrued after the report was filed, the court had the undeniable right to refer the cause to the master to determine the amount then actually due, or the court could, if it saw proper, com- pute the interest without a reference. Either course might be pursued, and, as the court chose to pursue the latter, we perceive no objection to the action of the court. The judgment of the Appellate Court will be affirmed. MONARCH BREWING CO. v. WOLFORD ET AL. 179 111. 252. (1899.) Phillips, J. On August 5, 1892, Frank Rezabek, through Theodore H. Schintz, borrowed the sum of $5,500, for which he made his principal note for that sum payable to his own order five years after date. The interest was to be at the rate of 6 per cent, per annum, payable semi-annually, which was evidenced by ten coupon notes, of $165 each, all payable to the order of the maker ; and these, with the principal note, were by the maker indorsed. To secure the payment of these notes, the maker thereof and his wife made and executed to Theodore H. Schintz their deed of trust of the same date as the notes, conveying certain lands. On April 17, 1895, a bill was filed in the name of Fred- erick T. Zentner and Theodore H. Schintz, in the Su- perior Court of Cook county, to foreclose this trust deed, in which it was alleged that Zentner was the owner and holder of the principal note and the last six 240 of the coupon notes; that the first four coupon notes had been paid, but default had been made on that due February 5, 1895, because of which Zentner had de- clared a forfeiture, and the principal note, with the accrued interest, had become due under the provisions of the trust deed. A decree was rendered on that bill for the sum of $6,356.20, and sale ordered. After due notice, sale was made of the mortgaged premises to one Thomas Blaha for $7,500, which was approved by the court, and a certificate of sale made and recorded. The plaintiff in error had on August 17, 1893, recov- ered a judgment against the mortgagors for $1,055, with costs, in the Circuit Court of Cook county. De- siring to redeem from the sale, the plaintiff in error had issued a pluries execution upon its judgment, and placed the same in the hands of the sheriff of Cook county, with the requisite amount for redemption, viz., $7,951.25. On August 19, 1896, redemption was made, and on sale the amount of redemption was bid by plaintiff in error, and deed was made to it, which was filed for record November 16, 1896. On August 9, 1897, the defendant in error Anna M. Wolford filed in the Superior Court of Cook county her bill to fore- close the same trust deed to secure the same notes, alleging that she was the owner and holder of the principal note, and the last coupon, due August 5, 1897, and had always been such owner ; that default had been made in the payment of said two last-mentioned notes. It was further alleged that the bill of Zentner against Eezabek was unauthorized by her ; that she had never derived any benefit therefrom; that Zentner was not the owner of said notes, and never was ; that he did not procure the filing of the bill, nor engage the attorney, Ives, who appeared in that case; that Ives was not solicitor for the owner of said notes ; and that Zentner and Schintz had no controversy with Rezabek. In this last-mentioned bill the judgment, sale under first de- cree, the redemption, and the execution of the deed are set up, and the decree under which the first sale was made is alleged to be fraudulent and void for being wholly fictitious ; and it asks to have the decree in 241 the first foreclosure suit, the master's certificate of sale, the redemption and sale thereunder on the pluries execution, and the deed thereon, held fictitious, fraud- ulent, and void, and to be declared a cloud on her title and subject to her claim, and prays a foreclosure. The plaintiff in error was made a party defendant, with other necessary parties, to said bill, and the sheriff made return on the summons of service on the plaintiff in error, a corporation, by delivering a copy thereof to its president. On October 26, 1897, a de- fault of the x)laintiff in error to the bill of defendant in error Wolford was taken, and a decree pro confesso entered, which decree found the facts, and granted the relief prayed for in the bill filed by said Wolford. A sale under this last-mentioned decree was ordered, and made on November 23, 1897, at which John B. (Robertson, who is one of the defendants in error, be- came the purchaser, which sale was duly approved. On the face of the record, the proceedings under both bills, and for redemption from sale, were regular. The plaintiff in error sues out this writ of error, and asks this court to review the last decree, because, it is claimed, the averments of the bill are insufficient to support the decree. Plamtiff in error insists that there is no sufficient averment of facts constituting fraud in the bill of defendants in error, but merely the averment that the first decree was fictitious and fraudulent. It also insisted the bill contains no suffi- cient averment that the notes were never out of the possession of complainant. It is a well-settled rule that a defendant to a bill in chancery, where a default and decree pro confesso have been entered, may, on error, contest the sufficiency of the bill itself, or that its averments do not justify the decree. Gault v. Hoagland, 25 111. 241 ; Wing v. Crop- per, 35 111. 256; Martin v. Hargardine, 46 111. 322; DeLeuw v. Neely, 71 111. 473; Hannas v. Hannas, 110 111. 53; Railroad Co. v. Ackley, 171 111. 100, 19 N. E. 222. The decree must not be broader than the aver- ments of the bills, and those averments must be such as to justify the relief prayed. Under a decree pro 242 confesso, however, a defendaiit cannot, on error, allege the want or insufficiency of the testimony, or the in- sufficiency or amount of the evidence, that may have been heard by the court entering the decree. Gault v. Hoagland, supra. Where the defendants are persons not under disability, and a default is entered, a decree pro confesso follows as a matter of course. Such de- cree, if warranted by the averments of the bill, is un- assailable. The bill in this case alleges, in substance, that no such person as Frederick Zentner exists, and that the name is fictitious ; that he was not, and never had been, the owner of the notes described in the bill filed in his name; that he did not engage Ives, the attorney who filed the suit, to do so; and that Zentner and Schintz had no controversy with Rezabek. The bill also alleges that complainant Anna M. Wolford has been the owner and holder of said $5,500 note and said trust deed from the time of said loan to Rezabek, August 5, 1892, con- tinuously until the present time, and is now the legal holder and owner thereof. It also alleges the filing of a bill April 17, 1895, in the name of Zentner and Schintz, against Rezabek, the Monarch Brewing Com- pany and others, wherein it was alleged that Zentner was the owner of said $5,500 note. It also alleges that complainant had no knowledge or information of said suit, and the proceedings under the same, until July 21, 1897, that she never employed Schintz or Ives to file any bill against Rezabek, and that she never adopted said proceeding, or derived any benefit therefrom. These are sufficient averments of fraud, and charge specific acts constituting the fraud. The ownership of the notes by this defendant in error is thereby suffi- ciently alleged. In Roth v. Roth, 104 111. 35, it was held: "It is not sufficient, as it has often been held by this court, for the purpose of successfully assailing a transaction on the ground of fraud, to charge fraud generally; but the complaining party must state in his pleading, and prove on the trial, the specific acts or facts relied on as establishing fraud." To the same effect are Newell v. Board, 37 111. 253, and Smith v. 243 Brittenham, 98 111. 188. Allegations that a bill to foreclose a mortgage was brought in the name of one not the owner, and without the knowledge or consent of the owner, and by which that owner is deprived of all benefit, are distinct averments of fraud. The aver- ment that complainant was the owner and holder of the notes, and that she had always been such, is suffi- cient. The averments of the bill were sufficient to authorize the decree, which is not broader than the bill. We find no error in the record, and the decree of the Superior Court of Cook county is affirmed. Decree affirmed. TOLBS V. JOHNSON, 72 111. App. 182. (1897.) Me. Justice Seaes delivered the opinion of the court. This appeal is from a decree, which, upon sustaining a general demurrer to the bill of complaint, dismissed the same for want of equity. The averments of the bill are substantially as fol- lows : That a judgment was entered by confession in the name of Jesse G. Wells, May 13, 1895, in the Circuit Court, against appellee John Alquist, upon three prom- issory notes, each of said notes made payable to the order of the State Bank of Chicago, and signed by ap- pellees John Alquist and John Johnson. Each of said notes was indorsed as follows: "Without recourse, the State Bank of Chicago." A warrant of attorney was attached to each note authorizing any attorney of any court of record to enter judgment by confession on the note in favor of the holder against the makers thereof. On the daj^ the judgment was entered, John Alquist was the owner in fee simple of lot 19, described in the bill. It is averred in the bill that said judgment was caused to be entered by said Jesse G. Wells, by the 244 procurement of said Johnson, against Alquist alone, with the intention of defrauding the said Alquist thereby, and for the purpose of enforcing the pay- ment of said judgment out of the real estate afore- said, and that Alquist had no knowledge of the exist- ence of the judgment against him, and that Johnson, with the intention of defrauding Alquist and obtain- ing an undue advantage over him, obtained from the defendant, Wells, for the consideration of one dollar, an assignment of said judgment in the month of May, 1895. That on June 23, 1895, John Alquist, by warranty deed, conveyed said real estate to Ludwig S. Bekken, and on July 31, 1895, Ludwig S. Bekken, by warranty deed, conveyed said real estate to appellant; that neither Alquist nor his grantees knew of the existence of the judgment, nor of the execution theeron, nor of the levy and sale of the real estate until after the expiration of twelve months from the sale. That on October 31, 1895, Johnson procured an execution to be issued on said judgment, and levied upon said real estate, and at the sale thereof bid in the real estate for the amount of the judgment, and gave the sheriff a receipt in full satisfaction of the execution and costs ; that the sheriff retained only $13.78 for his costs and commissions, which sum was the total amount actually paid by the said Johnson for said certificate of pur- chase. It is further averred in the bill, that Johnson fraud- ulently kept said proceedings, sale and purchase a secret from Alquist and complainant (appellant), and that the said proceedings and sale were a fraud upon the rights and equities of complainant. It is further charged in the bill, that Johnson knew on October 31, 1895, and before that date, that the complainant had purchased and become the owner of said premises. The bill further avers that on January 11, 1897, J. J. Toles obtained a judgment against John Alquist, and as a judgment creditor redeemed from said sale and paid to the sheriff the amount due ; that the sheriff, upon receipt of said redemption money, proceeded in J 245 due form of law and sold the said real estate to J. J. Toles at public auction for the amount of the redemp- tion money and the costs of sale, and in pursuance of the same, immediately after the sale, made a deed of the premises to said J* J. Toles. The bill further averred that Ludwig S. Bekken and John Alquist, the grantors of appellant of the premises aforesaid, were each wholly insolvent, and that whatever judgment might be obtained against them, or either of them, could not be collected. The bill was filed by appellant against the sheriff of Cook county, John Johnson, Jesse G. Wells and John Alquist, and the relief prayed was that the redemption money then in the hands of said sheriff might be treated as proceeds of the sale of said real estate, and declared a trust fund in the hands of said sheritf and subjected to the payment of the claim of appellant. A temporary injunction was issued upon the filing of the bill, restraining the sheriff from paying over said money to John Johnson, and restraining said Johnson from assigning or otherwise disposing of the certificate of purchase issued to him by said sheriff, upon the making of the sale aforesaid. On May 3, 1897, upon argument of the general demurrers filed to the bill, the Circuit Court dissolved the temporary in- junction and dismissed the bill. It is contended that it appears from the averments of the bill and the necessary inferences therefrom, that the notes were obtained from the bank by John John- son for the purpose of procuring a judgment, to be entered upon them in the name of Wells, against John Alquist alone, with fraudulent intent, and that this amounted to a payment of the notes by Johnson, one of the payors, and therefore an extinguishment of the notes resulted. To this we cannot assent. It was the purpose of the bill to show that Johnson, one of the makers of the notes, had paid them, and that the liability of Alquist upon the notes had thereby been extinguished, it was a simple matter to have alleged such fact of pajTnent. After demurrer had been argued and susr 246 tained, appellant might still have taken leave to amend, and could then have alleged the fact which counsel now seek to have supplied by inference and argument. Argument and inference cannot thus take the place of necessary positive allegation. But is is argued that the transactions through which Johnson acquired the right to the redemption money, being fraudulent, therefore equity will impress upon the fund, i. e,, the redemption money, a trust in favor of appellant as cestui que trust. We are unable to see the force of this contention. The premise upon which the argument rests is wholly wanting. The bill contains no allegation of fact which constitutes fraud. It is true that there is much statement of fraud as a conclusion of the pleader, but there is absence of any allegation of acts or facts to support such conclusion. Such state- ments of conclusion are of no avail. Roth v. Roth, 104 111. 46; East St. Louis Conn. Ry. Co. v. People, 119 111. 182. The case of Darst v. Thomas, 87 111. 225, which is cited in support of the contention of appellant, is clearly distinguishable from the case here. If in this case the bill alleged that the debt secured by the notes in question was equitably the debt of Johnson and not equitably the debt of x\lquist, then the contention of appellant might find support in the case cited. But the bill wholly fails in any such allegation. So far as the bill shows, the debt secured by the notes may have been, in equity, the debt of Alquist only. One seeking relief in equity must allege in distinct terms the facts necessary thereto. The demurrer to the bill was properly sustained. Decree affirmed. 247 JACKSON V. JACKSON, 114 111. 274. (1893.) Mr. Justice Craig delivered the opinion of the court . It is first contended by appellee that there is no such error appearing on the face of the decree as will authorize a court of equity to interfere by bill of re- view. If there has been an erroneous application of the facts found by the decree, a court of equity may revise or reverse the decree by bill of review. Evans V. Clement, 14 111. 208. The facts upon which the court found that John Jackson was entitled to hold the prem- ises as tenant by curtesy, all appear on the face of the decree. The date of the purchase of the lands by Paulina A. Jackson, with their description, date of her marriage, date of the birth of her children, and date of her death,, all appear on the face of the decree. If, therefore, the decree under the facts as found, was erroneous, it could be corrected. The next question presented is, whether the complainants or either of them have lost their right to bring this bill, by lapse of time. As has been seen, the decree was rendered on the sixth day of April, 1883, and this bill was brought on the twentieth day of August, 1890. No time has been pre- scribed by statute within which a bill of review must be brought, but writs of error are required to be sued out within five years from the time a judgment or decree has been rendered; and in analogy to the time prescribed for prosecuting writs of error, it has been held that a bill of this character should be brought within the time allowed for suing out a writ of error. Lyon V. Robbins, 46 111. 278. In case of writ of error, sec. 86, chap. 110, of our Practice Act, prescribes, that a writ of error shall not be brought after the expiration of five years from the rendition of the de- cree or judgment, but if the party entitled to the writ was an infant when the judgment was entered, the time of minority shall be excluded from the five years. 248 Applying this rule to the present case, which we think should be done, John M. Jackson, one of the com- plainants, as found by the court in this decree, was born August 25, 1866; he would not, therefore, be of age until August 25, 1887, and, excluding his minority, he would have until August 25, 1892, to bring his bill, and the bill was filed two years before the time ex- pired. So far, therefore, as John M. Jackson is con- cerned, his bill was brought in apt time. As respects the other complainant, he occupies a different posi- tion; he, as appears, became of age in October, 1883, and hence would be barred in October, 1888. It is, however, said that the time did not begin to run until the suit was finally disposed of in March, 1889. We do not concur in that view. The rights of all the par- ties as to their title and interest in the premises were fully and definitely determined and settled by the de- cree of April 6, 1883. That was a final decree and as to all persons who were parties to the proceeding, and under no disability, the decree could not be re- viewed by writ of error or bill of review after five years, and the fact that the cause remained on the docket until 1889, and was then stricken from the docket, does not materially affect the question. The decree of April 6, 1883, vs^as the only one ever entered in the case and there was nothing to prevent a writ of error from being prosecuted to review the decree at any time after it was rendered, for the period of five years. WATTS V. RICE, 192 111. 123. (1901.) Mr. Justice Carter delivered the opinion of the court. This is an appeal from a decree of the Circuit Court of Washington county upon a bill of review, filed to review and change a decree in a suit in partition. The decree in partition had determined the interests of 249 respective parties to the lands in question, and there had been a sale of the lands and a payment of the purchase money to the master, but no distribution of the proceeds had been made. The bill of review does not attack the sale, but seeks to change the decree fixing* the interests of the parties, and also the basis of distribution. The facts necessary to an understanding of the case are, that Jeremiah Rice died testate, as found by the decree in partition, in June, 1876, but as found by the decree upon the bill of review, in December, 1878. The bill and decree in partition alleged and found that he died, seized of the north half of the northeast quarter and the northeast quarter of the northwest quarter of section 10, and the south half of the southeast quar- ter (except ten acres described), and the southeast quarter of the southwest quarter of section 3 — all in township 3, south, range 3, west of the third principal meridian; also that he left surviving him Mary H. Eice, his widow, and nine children and four grand- children, one of which grandchildren was the child of a deceased daughter, and three the children of a de- ceased son. Before the proceedings in partition there had been sales and conveyances of the interests of many of the heirs, and the decree found and fixed the interest of (among others) James A. Watts, appellant herein, to be the undivided two-elevenths, and of Al- exander Z. Rice, appellee herein, the undivided 136/308 of said lands. The original bill for partition was filed by said Alexander Z. Rice and James A. Watts. The bill of review was filed by said Alexander Z. Rice and other of the heirs, and alleged that Mas- sey Rice was the first wife of Jeremiah Rice, and that she died in 1845, seized of the title to eighty acres of said land, viz., the northeast quarter of the northwest quarter of section 10 and the southeast quarter of the southwest quarter of section 3 and that, subject to his estate by the curtesy, it descended to her children, who were eight of the said eleven children of Jere- miah Rice, and that the other three were children of Mary H. Rice, his second wife, and were not entitled 250 to any part of said eighty acres, and that, there- fore, the former decree was erroneous and should be corrected. It was alleged, also, that the complainants did not know of said facts at the time of the former proceedings and could not have ascertained the same by reasonable diligence. Certain of the parties also filed a bill of interpleader and a cross-bill setting up a mortgage given by certain heirs on their interest in the property to secure certain notes they had given. Issues were made, and on the hearing the court found that said notes and mortgage were barred by limita- tion, but granted the prayer of the bill of review and corrected the former decree, and ordered a distribu- tion of the proceeds of the sale of said eighty acres among the heirs, or their grantees, of said Massey Rice, and not among all the heirs, and their grantees, of said Jeremiah Rice, as the former decree had ad- judged. It appeared from the evidence that the eighty acres constituted a part of the Jeremiah Rice farm and that he had had possession until his death and claimed to own it, and his title to it seems never to have been questioned till about the time the bill of review was filed; but it was proved by certified copies of United States patents that it was entered by Massey Rice and that the patents were issued to her of lands subject to sale at Kaskaskia, and said patents showed entries on their face as follows: One, "Recorded Illinois, vol. 133, page 316," and the other, "Recorded 111. vol. 141, page 112." Complainants also gave in evidence a certificate of the Auditor of Public Accounts of this state that he was custodian of the records of the United States land office formerly located at Kaskaskia, and that such records show that one of said forty-acre tracts was entered by Massey Rice on September 15, 1836, and the other February 22, 1839. Alexander Z. Rice, complainant in the bill of review and also com- plainant in the bill for partition, testified that he first learned that the title to the eighty acres was in Mas- sey Rice, a few months, only, before the bill of review was filed; that he learned it from the abstracter, who 251 asked him who Massey Rice was, and who told him ''there was no connection with the title." Before that, and when he bought out the interests of some of the heirs, it had been considered that the interest of each of the eleven children of Jeremiah Rice in all the lands was one-eleventh. It is clear from the evidence that it was so understood by all the parties in inter- est until it was disclosed by the abstracter, in mak- ing an abstract, that the patent title to the eighty acres was never in Jeremiah Rice, but was in Massey Rice, his first wife ; but there was no evidence whatever that the complainants in the bill of review, who were also parties to the partition suit, — one of them, Alex- ander Z. Rice, the principal owner, being complainant in that suit, — used any diligence whatever to ascer- tain the true state of the title to that land. Ques- tions of estoppel and other defenses set up by the appellants have been urged in addition to complain- ants' lack of diligence, but as the latter is a sufficient defense we do not find it necessary to consider any other. It must be presumed that parties interested in land and seeking its partition among them, will make, or cause to be made, an examination of the title^^ in order that the court may render a proper decree, and it is not sufficient to show, in support of their bill for a re- view of the proceedings and the correction of the de- cree because of newly discovered matter, that they were ignorant of the title. The bill properly alleged that they could not have discovered the new matter by reasonable diligence. This necessary allegation should have been supported by proof. If the facts were such that the allegation could not be proved be- cause the title to the land was a matter of public rec- ord open to the inspection of every one, the rule would not be changed or rendered inapplicable, but only the fact made apparent that there was a failure to exer- cise reasonable diligence in the examination of the title. Such an examination prior to the partition pro- ceedings would have disclosed the same title in Massey Rice now asserted in the bill of review. A bill of re- 252 view based on newly discovered evidence is designed to accomplish the same purpose as a petition for a rehearing in chancery or a motion for a new trial at law. Such a petition or motion must, however, be filed or made during the term, while a bill of review is filed only after the term at which the decree was entered. {Elzas v. Elzas, 183 111. 160.) But diligence must be shown in either case. Not only must the matter be new and sufficient to have produced a dif- ferent decree from the one rendered, but it must be such that the party, by the use of reasonable diligence, could not have known of it before the hearing, so as to have produced it at that time. Boyden v. Reed, 55 111. 458; Washurn S Moen Manf. Co. v. Wire Fence Co., 119 id. 30; 3 Ency. of PI. & Pr. 582. It is also contended by appellants that the decree of partition was essentially a consent decree, and that a bill of review will not lie to correct or change a con- sent decree. {Cox v. Lynn, 138 111. 195; Flagler v. Crow, 40 id. 414.) The rule contended for is undoubt- edly correct, but we need not consider whether the former decree can be said to have been entered by consent. True, the principal party in interest and one of the complainants in the bill of review was one of the two complainants in the partition suit, and asked the court in that case to make the decree which was made and which he now asks the court to change and correct. But it is sufficient to dispose of the bill, that the complainants failed to exercise such reason- able diligence as would have disclosed the true state of the title. The court below properly decided that the notes and mortgage set up by the interpleader and cross- bill were barred. They had been due and nothing paid on them, nor any promise to pay, for upwards of eighteen years. But for the error pointed out the decree must be reversed and the cause remanded to the Circuit Court, with directions to dismiss the 1)111 of review as well as the interpleader and cross-bill. Reversed and remanded with directions. 253 Mcdonald v. asay, 139 111. 123. (1891.) Me. Justice Scholfield delivered tlie opinion of the court. Decree was rendered in the Circuit Court of Cook county, on the twenty-first of December, 1886, in favor of Paris, Allen & Co., against Edward G. Asay, as assignee of Gage & Kice, for $2,850. Asay appealed from that decree to the Appellate Court for the First District, and M. C. McDonald became his surety upon his appeal bond. The decree of the Circuit Court was affirmed by the Appellate Court, and thereafter Mc- Donald paid the amount of the decree to Paris, Allen & Co. After making such pajTuent, McDonald caused an execution to be issued on the decree, and levied it upon lands situated in Ogle county, the title of record whereof was in Emma 0. Asay and Margaret I. Asay, and he afterwards obtained leave to file what he termed a supplemental bill in the Circuit Court of Cook county, wherein he alleges that since the rendition of the de- cree in favor of Paris, Allen & Co., on the twenty-first of December, 1886, against Edward G. Asay^ and after he (McDonald) had paid the amount thereof to the complainants in that suit he had learned that Edward G. Asay, on or about the sixteenth of May, 1885, pur- chased the lands in Ogle county upon which the exe- cution was levied, but caused the same to be deeded to Emma 0. Asay and Margaret I. Asay, instead of to himself, for the fraudulent purpose of hindering his creditors, and preventing Paris, Allen & Co. from ob- taining satisfaction of any decree which might be ren- dered in their favor against him. McDonald further alleges in his bill that the title to the lands levied upon still stands in the names of Emma 0. and Mar- garet I. Asay, and that Edward Asay resides thereon and assumes the management and control thereof; that a large portion of the money held by said Asay, as assignee of Gage & Rice, and due to the complainants 254 in the original bill, as found by decree therein, was used by Edward G. Asay in the purchase of said prem- ises; and the levy of execution on said premises and filing certificate of same in Ogle county, and that Ed- ward G. Asay has no personal property subject to le\y and sale. Edward G. Asay, Emma 0. Asay and Mar- garet I. Asay are made parties defendant. The pray er is that Edward G. Asay may set forth and state the circumstances attending the conveyance of said prem- ises to said Emma 0. Asay and Margaret I. Asay, how the payments were made and from whence the money was derived, and that he, McDonald, may have the same relief that original complainants could have. To this bill the defendants interposed the plea that they were all, at the time of filing the supplemental bill, residents of Ogle county, and that the bill does not affect the title to real estate in Cook county, where the bill was filed. McDonald refused to reply to the plea, and, upon hearing, the court dismissed the bill. The decree of the Circuit Court was affirmed on appeal to the Appellate Court for the First District. The contention of appellant is, that this being a purely supplemental bill, it is sufficient that the Cook County Circuit Court had jurisdiction of the original bill. But the courts below held (and in that ruling we concur) that this is not a purely supplemental bill, but that it is an original bill in the nature of a sup- plemental bill. A supplemental bill is said to be pro])- erly applicable only to cases where the same parties in the same interests remain before the court. (Story's Eq. PL, sec. 345.) But where relief of a different kind, or upon a diiferent principle, is required from that in the original decree, an original bill in the nature of a supplemental bill may be filed. Story's Eq. PI, sec. 351b. No relief was sought in the original bill against Emma 0. Asay and Margaret I. Asay, and they were not parties to that bill, and it is palpable that whether those individuals are entitled to hold the lands in con- troversy as against the creditors of Edward G. Asay, must depend upon entirely different evidence, and the 255 application of different leg-al principles from what is required under the original hill. Under the facts presented by the plea, only an orig- inal bill in the nature of a supplemental bill could be filed, and that should have been in Ogle county, where the lands sought to be affected lie and all the defend- ants reside. The judgment is affirmed. Judgment affirmed. ELZAS V. ELZAS, 183 III. 132. (1899.) Mr. Chief Justice Cartwright delivered the opin- ion of the court. A decree was entered January 22, 1897, in the Cir- cuit Court of Cook county, in favor of appellee, di- vorcing her from appellant on the ground of deser- tion. Appellant j^ rayed an appeal from that decree, and also filed his petition for leave to file a bill of re- view on the ground of newly discovered evidence. He did nothing further with his petition but removed the record to the Appellate Court, where the decree was affirmed. He then took a further appeal to this court, and the judgment of the Appellate Court was affirmed by this court February 14, 1898, {Elzas v. Elzas, 111 111. 632.) After such final affirmation of the decree he filed in the Circuit Court, February 21, 1898, a sup- plement to his petition and asked the court to set aside the decree. The Circuit Court denied his peti- tion, and he prosecuted an appeal from that order to the Appellate Court, where it was affirmed, and he now brings the case made by the petition to this court by a further appeal from the Appellate Court. Leave to file a bill of review for newly discovered evidence is not granted as a matter of right, but granting or refusing such leave rests in the sound discretion of the court to which the application is made. The newly discovered evidence upon which the court 256 is asked to review, and reverse the former decree must not be cumulative, and must be of important and de- cisive character, if not, conclusive. It must be such as would apparently have produced a different result had it been known and brought before the court. {Griggs v. Gear, 3 Gihn. 2; Walker v. Douglas, 89 111. 425.) The petition will not be granted except upon affidavit satisfying the court that the alleged new mat- ter was not known to the petitioner, and could not have been discovered and produced or used by him by the exercise of reasonable diligence, before the en- try of the decree sought to be reviewed. The newly discovered evidence must be distinctly stated and the affidavits of witnesses must be filed in support of the averment. (Schaefer v. W under ele, 154 111. 577.) If the petitioner has been negligent in discovering and producing the evidence at the former hearing his neg- ligence will bar any relief. He must show that the evidence was such that with the use of reasonable dili- gence he could not have known of it before the hearing, and the general rule is, that evidence which tends sim- ply to impeach testimony given on the hearing will not be sufficient to sustain a bill of review. {Boy den V. Reed, 55 111. 458.) When the petition is presented the court considers its statements and the affidavits in support of it, and the record in the original case. The court then, upon looking at the whole case, ex- ercises a sound judicial discretion, and unless such dis- cretion has been abused the decision will not be disturbed. "The true rule would seem to be, that unless there has been an abuse of the fair discre- tionary power with which the Circuit Court has been invested in the matter of such applications its de- cision should not be disturbed." Schaefer v. Wun- derle, supra; Stockley v. StocMey, 93 Mich. 307. Petitioner met the charge of desertion contained in the original bill with a denial of his marriage to the complainant, and that was the controverted fact in the case. There is no new evidence offered on that subject. There is an affidavit of William T. Hall, a justice of the peace of Cook county, that complainant testified 257 in a suit before him that she was the wife of petitioner and was married by a marriage ceremony. She was examined on that subject at the hearing and did not deny that she had so testified, and her counsel ad- mitted it. The justice of the peace lived in Chicago, where the hearing took place, and had agreed to come on a telephone message, but the fact that complainant had testified as claimed having been admitted, petition- er 's solicitor did not think it worth while to telephone. The birth of a child of the parties at Toronto was alleged in the bill and there was testimony of the fact. One of the grounds of the petition is the alleged newly discovered evidence that the child was born in June instead of July, 1886, and was registered under the name of Taylor. The supposed evidence does not comply with the above rule requiring an affidavit, but consists merely of a telegram signed W. Stark and di- rected to W. A. Pinkerton, and, aside from its not being an affidavit, it is totally insufficient as a state- ment of any fact. If there was a registry of births in Toronto, petitioner does not show the slightest cause for not ascertaining what it was and bringing it be- fore the court in a proper form. On the hearing, com- plainant testified that petitioner gave her his photo- graph, and the petition alleges that the photograph was made at a later date and that it was taken from petitioner's trunk at a hotel in Chicago. He testified in the same way at the hearing, and the evidence was merely cumulative and neither important or decisive in character. Again, there is an affidavit of Joseph F. Ullman that complainant was not introduced to him and his wife as petitioner's wife, as complainant testified on the hearing. That evidence is cumulative, and it is not denied that Ullman wrote a letter to complainant, which was in evidence on the hearing, ad- dressing her as petitioner's wife and enclosing money at the request of petitioner. The evidence, if produced, would be of little consequence in view of such fact. The remaining ground upon which petitioner asked the court to review and reverse the decree was that 258 complainant had been guilty of adultery during the marriage. That defense to the bill was not set up by the petitioner nor made an issue in the case in any manner, and the rule is that the newly discovered evi- dence must be such as relates to a matter in issue on the hearing — not evidence to make a new case, but to establish the old one. {Boy den v. Reed, supra.) Aside from that rule, the petition fails to comply with the requirement of showing that petitioner could not have discovered the testimony, by the use of reason- able diligence, in time for the hearing. The bill was filed September 11, 1896, — more than four months be- fore the hearing. He was served with process and appeared and filed his answer. He had ample time to hunt up any defense that he might have had. He was not hindered in any manner from making any in- vestigation of the life or associations of his wife that he saw fit. The source of the alleged new evidence is two abandoned women with whom the petitioner was well acquainted. One of them was the woman whose house he had frequented, where the complain- ant lived before the marriage. The other one had en- trusted her two children to the complainant about two years before the hearing, and she had boarded and cared for them one year and the witness had fre- quently visited them. These women lived in Chicago and were known to the petitioner, and were persons of whom he would naturally make inquiries touching his alleged defense. The avenues of information were open to him as fully during the four months before the trial as afterward. He says in his petition that he was surprised at the testimony of a common law mar- riage at the hearing, but, if so, no application for a continuance was made. No excuse whatever is of- fered for having hunted up this alleged defense after the hearing instead of before, nor any explanation given that would excuse him. The petition does not show any sufficient reason for granting leave to file a bill of review or for opening the decree. This is the necessary conclusion from the petition and the affidavits filed in support of it, in 259 connection with the record in the original case, with- out considering the affidavits contradicting the newly- discovered evidence. Whether the filing of such affi- davits was proper we need not consider. The judgment of the Appellate Court is affirmed. Judgment affinned. McCLINTOCK v. HELBERG, 168 111. 324. (1897.) Me. Justice Magruder delivered the opinion of the court. This court has decided that appellee was entitled to the relief prayed for in the original bill, that is to say, that he was entitled to have paid to him by appellant the $750.00 of purchase money, and to have trans- ferred to him said note for $3,690.00 and the trust deed securing the same. The question then arises, whether the facts set up in the supplemental answer constitute a defense against the granting of the relief prayed for in the bill. Appellant contends, that ap- pellee released his right to the $750.00 and to the note for $3,690.00 by accepting the bond for $4,500.00 Appellee claims that the bond never was accepted as a release or discharge of appellant from his liability to pay the $750.00 and the note of $3,690.00 to appellee. Upon this question of fact there is a sharp conflict in the testimony. The testi- mony of appellee tends to show, that the consideration, for which the bond was given, was merely that ap- pellee should take no steps to apply to the Appellate Court for a continuance of the injunction; and that neither appellee, nor his solicitor, ever intended to release appellant from his obligation to pay the note and money to appellee, or ever intended that the note should be paid to the defendant, Hartman. Upon this question of fact the lower courts have decided in favor of appellee. After a careful examination of the evi- dence we are unable to say that finding of the lower 260 courts is against the weight of evidence, and therefore decline to disturb it. The bond was never delivered to the appellee. It was executed and handed to appellee's solicitor before appellee knew anything about it. It was some time after the delivery of the bond to his solicitor before appelle knew that any such bond had been executed or delivered to his solicitor. None of the transactions in reference to the bond took place between any of the defendants and appellee, but only between the de- fendant, Hartman, or his solicitor, and appellee's solicitor. Appellee's solicitor told him a few days after the execution of the bond, that such a bond had been executed, but, in connection with this statement, he told appellee that it was not necessary to continue the injunction in the Appellate Court, as the note was overdue, and the pendency of the suit was a sufficient protection. He told appellee, that the solicitor on the other side had left the bond with him, and that he did not know whether it was of any account or not, but that he considered it an additional security; and that appellee had lost nothing by its delivery, but had gained a point. Appellee's solicitor swears, that he did not tell Helberg that appellant was released by the taking of the bond, or that anybody was released or discharged thereby. It is furthermore established by the testimony, that, before Mrs. Hartman began suit against appellant upon the note, appellant caused application to be made to appellee to release some of the property covered by the trust deed and appellee declined to do so. There is no evidence whatever in the record, that appellee ever authorized his solicitor to accept this bond as a substitute for the liability of appellant to pay the $750.00 to appellee, and to pay to appellee the amount due on the note for $3,690.00. Further- more, there is no evidence in the record, which at all establishes the fact, that appellee ratified, or in any way approved, of the taking of said bond as a substi- tute for such liability, and as a release of appellant, 261 even if his solicitor had agreed to take it as such sub- stitute or as such release. An attorney has no authority, by reason of his gen- eral retainer in a suit, to discharge a debtor to his client, or to accept anything other than money in payment of his client's debt. He must have special authority from his client to settle a debt due to the cli- ent otherwise than by the payment of money. (Trum- bull V. Nicholson, 27 111. 149; Nolan v. Jackson, 16 id. 272 ; Wetherbee v. Fitch, 117 id. 67.) An attorney has no power, without express authority, to bind his cli- ent by a compromise of a pending suit, or other mat- ter, intrusted to his care. An executory agreement to compromise a suit, made by an attorney, does not bind the client, unless the latter ratifies such agreement after full knowledge of all the facts. The attorney has no implied authority to compromise his client's claim or to release his client's cause of action. He cannot bind his client by any act, which amounts to a surrender, in whole or in part, of any substantial right. He cannot commute a debt, or materially change the security, which his client may have, with- out his consent; nor has he the power to assign or sell a claim or judgment of his client without special authority. (3 Am. & Eng. Ency. of Law, 2nd ed. pp. 358-360, 363; Mechem on Agency, sec. 813; 2 Green- leaf on Evidence, sec. 141 ; Penniman v. Pat chin, 5 Vt. 346; Benedict v. Smith, 10 Paige, 126; Smock v. Dale, 5 Rand. 639; Wilso{ti v. Wadleigh, 36 Me. 496; Chap- man v. Cowles, 41 Ala. 103; Wadhams v. Gay, 73 111. 415). Where an attorney, in making an agreement with the opposite party, compromises a claim for less than the amount due, or takes security of less value than that which already secures the claim, or accepts anything other than money in payment of the claim, such party is put upon inquiry as to the attorney's authority to make such compromise or settlement; and if he omits to make inquiry, or to demand the produc- tion of the authority, he deals with the attorney at his peril. (Brooks v. Kearns, 86 111. 547; Miller v. Lane, 13 111. App. 648; Weeks on Attorneys, sec. 240; 262 Wharton on Agency, sees. 580-583; Campbell's Ap- peal, 29 Pa. St. 401.) In the case at bar, appellant charges, that appel- lee's solicitor surrendered a claim for $750.00 against appellant who was a responsible party, and a note for $3,690.00 secured by a trust deed upon land which was worth much more than the amount of the note in ex- change for a bond which was, to say the least, of very doubtful value. The transactions in regard to the bond were made out of court and were not a part of the record in the pending suit. Appellant was bound to know, that appellee's solicitor had no right to make any such surrender without special authority from appellee. Appellant should, therefore, have inquired as to the authority of the solicitor to make the ar- rangement; and, after it was made, it was his duty to inquire whether or not it had been ratified and ac- cepted by appellee. When he applied to appellee for a release of the property covered by the trust deed and was met with a refusal, he was put upon his guard and was virtually informed that appellee had not accepted the bond as a release of his liability. In addition to this, it is in proof, that, when appellant was sued upon the note by Mrs. Hartman, appellee's solicitor advised him to defend against the suit, upon the ground that, if he paid the note to Mrs. Hartman, he might be obliged to pay it again to appellee. Moreover, if appellee's solicitor surrendered this note and trust deed in exchange for this bond, the for- mer was a security so much more valuable than the latter, as to render such solicitor liable to the charge of bad faith. It is a well-settled rule, that agree- ments by an attorney which are so unreasonable as to imply bad faith, will operate as notice of such bad faith to the opposite side, and will have no binding effect upon the client. {Ball v. Leonard, 24 111. 146; Weeks on Attorneys, sec. 220). It is not altogether clear that the note sued upon by Mrs. Hartman was actually paid by appellant. The suit brought upon the note could have been defended by appellant. The note was never in the possession 263 of Mrs. Hartman, and the suit, though brought in the name of Mrs. Hartman, was really a suit by Hartman himself. Appellant was advised by his own attorney, that he had a good defense to the suit. It appears that appellant had some claims against Hartman growing out of old transactions. Hartman had sold some property for him, and failed to pay over some of the money due on account of such sale. The larger part of the payments made upon the note consisted of an application upon the note of these old claims against Hartman. There was thus an inducement on the part of appellant to regard Hartman as the owner of the note, in order that, by such apiDlication, he could secure payment of these other claims. Certainly he well knew that the note and trust deed were claimed, on the one side by appellee, and on the other by Hart- man. He owed the debt due upon the note, and has never been disposed, so far as we can discover, to deny his obligation to pay the note to somebody. When, therefore, appellee was seeking to recover the note by the chancery suit, and Mrs. Hartman was seeking to recover the amount due upon the note by a suit at law, he should have filed a bill of interpleader instead of paying the note to Mrs. Hartman. He would thereby have protected himself. He had a right to file a bill of interpleader under the circumstances stated. {Ryan v. Lamson, 153 111. 520; National Live Stock Bank v. Platte Valley State Bank, 54 111. App. 483; Curtis v. Williams, 35 id. 518; Livingstone v. Bank of Montreal, 50 id. 562.) When appellant paid the note to Mrs. Hartman, if he paid it, the present suit was pending, and he and Hartman and Kuhns and Kintz and all the agents were parties to that suit. He thus had full notice of the claim of appellee, and was aware of the fact that appellee was prosecuting the suit in the Appellate Court and in this court. It is undoul)tedly a hardship upon a]ipellant to pay the $750.00 and the note to appellee, if he has already paid them to Hartman or his wife, but, in view of the circumstances already stated, and for the reasons 264 already given, he has no equity in the matter which is superior to the equity of appellee. Accordingly the judgment of the Appellate Court is affirmed. Judgment affirmed. LLOYD V. KIRKWOOD, 112 111. 329. (1884.) Mk. Justice Mulkey delivered the opinion of the court. The United States on the first day of May, 1849, is- sued a patent to Thomas A. Speers for the southeast quarter of the northwest quarter of section 17^ town 37, north, range 15, east, in Cook county, this state. Speers died intestate, in 1855, leaving Josephine Speers, an only child and heir, who afterwards inter- married with Sidney P. Walker. Josephine Speers Walker died in November, 1864, leaving Sidney P. Walker, her husband, and Mary Louise Walker, her only child and heir at law, the latter being then an in- fant, about ten months old. On the thirty-first of January, 1874, Samuel Ray filed in the Cirucit Court of Cook county a bill in chancery, against the said Mary Louise Walker, to esta1)lish an alleged resulting trust to an undivided two-thirds of the land, and to compel a conveyance of the legal title thereto, she be- ing then about ten years of age. The bill set forth, in substance, that although the purchase of the land from the United States was in the name of Speers, alone, yet, as a matter of fact, it was made by the said Samuel Ray, Martin G. Taylor and the said Thomas A. Speers, who, respectively, advanced one-third of the money paid to the government therefor, and that as to the two-thirds of the land thus purchased by Ray and Taylor, Speers was a mere trustee. The bill fur- ther showed that Ray, about the first of May, 1850, purchased of Taylor his third interest in the property paying him for it at the time, and that in pursuance 265 of such purchase Taylor conveyed the same to him, by quitclaim deed, on the twenty-third of June, 1873, The bill prayed that Ray might be decreed to be the equitable owner of said two-thirds of the land, and that a commissioner be appointed, with directions to convey to him the legal title thereto. A decree in con- formity with the prayer of the bill was entered on the twenty-first of July 1877, in pursuance of which Wal- ter Butler, as special commissioner, by deed dated March 5, 1878, conveyed to said Ray an undivided two- thirds of said land. Ray died January 23, 1880, leav- ing a will, by which he gave to his widow, Esther Ray one-third, and the residue to Sarah J. Mann, Harriet E. Smith and Josephine Kleinman. Alice R. Kirk- wood, subsequently, through mesne conveyances, ac- quired the interest of Esther Ray by purchase, pay- ing a valuable consideration therefor. Such being the condition of the property with re- spect to its ownership, Alice R. Kirkwood and Sarah J. Mann, with their respective husbands, Edwin C. Kirkwood and Bill Mann, on the thirtieth of March, 1882, filed in the Circuit Court of Cook county a bill for the partition of said land, making Mary Louise and Sidney P. Walker, and Harriet E. Smith and Jo- sephine Kleinman, and their respective husbands, de- fendants to the bill. There were other defendants to bill, whose interests are collateral to the main ques- tions involved in the case, and therefore require no special notice. The bill thus filed set up the former decree and proceedings thereunder, and charged, in detail, the facts above stated. Mary Louise Walker appeared and answered the bill, and also filed a cross- bill, in which she charges, in substance, that the land in controversy was purchased and paid for exclusively by her grandfather, Thomas A. Speers, and that neither Tayor nor Ray now has, or ever had, any in- terest in the land or any connection with its purchase, and that she is now the sole and exclusive owner there- of, as the heir of her deceased mother. In short, by her said cross-bill she negatives all the material alle- gations in the bill filed by Ray against her, as above 266 set forth, and in addition thereto charges, in sub- stance, that at the time of the alleged proceeding she was but a little child, only ten years of age, and unable to comprehend the nature of it, but that the file;-; of the suit show that one Joseph L. Wilson, a deputy clerk of the court, appointed on the suggestion of com- plainant's solicitor, appeared for her as guardian ad litem, and as such filed an answer on her behalf, pre- pared by complainant's said solicitor; that Sidney P. Walker also filed an answer in his own right, and as guardian of his daughter, the said Mary Louise, set- ting up their respective interests in the land, and dis- claiming all knowledge of the alleged equities of the complainant in that bill. To this answer there was a replication, but none to the answer of Wilson, as guardian ad litem. After setting out the decree in that suit to the ef- fect heretofore stated, and certain irregularities in taking and certifying certain depositions, the cross- bill then proceeds to charge as follows: "It appears by said record that said Samuel Ray was of sufficient capacity to maintain his suit in 1849 and 1850; that he then knew of all claims and causes of action or suit set out or claimed in said bill by him exhibited in 1874; that no reason existed why he should not have brought such suit at any time after the said pretended claims arose, if any such claims or rights ever exisr.ed, and the failure to bring such suit, or to demand the declaration of such trust and confidence, as is alleged in said bill for the period of twenty-five years, is con- clusive evidence that no such claims, trusts or con- fidences ever existed, and the laches and delay in bringing suit on said pretended claim barred all suit thereon, and wotild have barred the best and most per- fect claim, rendering it the duty of the court to dis- miss the bill." The cross-bill then charges, in sub- stance, that complainant's interests were not pro- tected in said former suit; "that said Wilson (the guardian ad litem) took no part in taking any evi- dence, or in any proceeding or in the hearing of said cause, nor did any person in any manner act for him ; 267 * * * that no evidence was given or received in said cause that was admissible against jouv oratrix." It further appears, from the cross-bill, that Ray himself was examined orally in court against her, and that certain depositions were read against her on the hear- ing, which are claimed to be obnoxious to various ob"- jections, particularly specified, requiring their sup- pression, about which, in the view we take of the case, it is not necessary to express any opinion. To the cross-bill thus framed the court sustained a demurrer, and entered an order dismissing the same. On the day previous to the entry of this order, to wit, the twenty-fourth of January, 1884, the death of Sid- ney P. Walker was suggested, he having died pending the suit. The cause proceeded to a hearing on the orig- inal bill, and a final decree was entered therein on March 1 following, directing a partition of the prem- ises in conformity with the prayer of the bill, from which decree complainant in the cross-bill prayed an appeal to this court. On the fourteenth of the month her intermarriage with L. H. Lloyd, was suggested of record, who joins her in this appeal. Assuming appellant is entitled to relief against the decree of 1874, by a bill of review, or by an original bill in the nature of a bill of review, we perceive no force in the claim that the cross-bill in this case is not germane to the original bill, and that for that reason it was properly dismissed. If, as a matter of law, she was entitled to have the decree upon which appellees base their right to petition to set aside and annulled, on a bill filed by her for that purpose, most assuredly such right in her is appropriate matter for a cross-bill to an original bill filed by them for the express pur- pose of enforcing such partition. The question is then presented, whether the decree of 1874 can be successfully assailed by a bill of either character indicated. The authorities are univers- ally agreed that a decree against an infant may be so attacked for fraud, and this is conceded by appellees; but they are not so agreed where the decree or judg- ment is assailed for error merely. Upon this proposi- 268 tion there is considerable diversity of opinion. By the law as it is judicially declared in England and in many of the states here, a decree against an infant is not ab- solute in the first instance. It is binding sub modo only. On becoming of age he is entitled to his day in court to show cause against the decree, and his right to do so must be expressly reserved by the decree it- self, otherwise it will be erroneous, and subject to be reversed and set aside. In many of the states, however, including our own, a decree against an infant, like that against an adult, is absolute in the first instance, sub- ject to the right to attack it by original bill, for either fraud or error, merely; but until so attacked, and set aside or reversed, on error or appeal, it is binding to the same extent as any other decree or judgment. This right to attack a decree by original bill may be exercised at any time before the infant attains his majority, or at any time afterwards within the period in which he may, under the statute, prosecute a writ of error for the reversal of such decree. {Kuchen- beiser et al. v. Beckert, 41 111. 172.) In this case, which was a bill to impeach and set aside a decree against an infant, the rule as above stated is expressly laid down, and has been followed in subsequent cases. The rule thus established is, of course, subject to the quali- fication that the decree of a court having jurisdiction of the subject-matter of the suit and the person of the infant against whom it is rendered, will not be thus set aside as against third parties who have in good faith acquired rights under it ; but as against original parties to the suit, and their legal representatives, the rule as above stated will be enforced. Freeman on Judgments, sec. 513. In Lloyd et al. v. Malone et al., 23 111. 43, this court, after citing Richmond et iix. v. Tayleur, 1 P. Wms. 734, and other English cases, together with the rules as laid down in Mitford's Chancery Pleadings, sec. 113, in support of the position that an original bill will lie to impeach a decree against an infant for mere error, and after citing certain cases in New York, Kentucky and Ohio, where the right to file such bill is limited 269 to cases of fraud, proceeds to say: ''We are inclined to go to the extent of the rulings of the English courts, and not confine the right to cases where fraud has in- tervened to obtain a decree against infants, * * * The interests of infants are the peculiar care of courts, and if their ights have been outraged and disregarded by an unfaithful guardian, the courts should not be slow to apply a remedy." The rule here adopted upon a deliberate considera- tion of the authorities on both sides of the question, has been frequently recognized by this court, and whatever the rule may be elsewhere, it must be re- garded as settled in this state. (Kuchenbeiser et al. v. Beckert, supra.) Whenever the property rights of an infant are drawn into litigation, and the infant himself, whether as plaintiff or defendant, has been brought into court, he at once becomes the ward of the court, and as such it is the duty of the court to see that his rights, as such are properly pro- tected. If, having a legally appointed guardian, such guardian does not appear to the action for the purpose of managing his suit, it is the duty of the court to appoint a guardian ad litem to perform that duty. If the guardian who undertakes the per- formance of this trust, whether he be the general guardian, or merely a guardian ad litem fails to prop- erly protect the interests of the ward, it is the duty of the court, sua sponte, to compel him to do so when- ever the fact in any manner is brought to the notice of the court. If, for instance, the infant is defending and his guardian has failed to file some pleading es- sential to the admission of his defense, or has filed one so imperfect as not to be sufficient for that purpose, it is the duty of the court, whenever the fact is dis- closed, to see that the proper pleading is filed on be- half of the infant before proceeding. These general propositions are so well settled and understood that they will hardly be controverted. Looking at the rec- ord before us in the light of these well recognized prin- ciples, and the authorities heretofore cited, we think there can be but little, if any, doubt that the cross-bill 270 showed such a state of facts as entitled the complain- ant to relief. Passing over all other matters set up in the cross- bill, without expressing any opinion upon them the one way or the other, and coming at once to the ques- tion of delay in filing the bill of 1874 to establish and enforce the alleged trust, we have no hesitancy in hold- ing that under the circumstances, as shown by the record, a delay of some twenty-five years, as was the case there before attempting to enforce the trust, af- forded a complete defense to the bill, and this fact be- ing apparent upon the face of the bill, the court should not have permitted the decree to have passed as against an infant. The land in question, during these twenty-five years, was in the actual possession of no one. The legal title, and, so far as the record showed, the equitable title also, was, during this entire period, in the appellant's grandfather or his lineal descend- ants, and he and they, for the same period, were in the constructive possession of the premises. No rea- son is assigned why this suit was not brought in Speers' lifetime, nor do we, from the record, perceive any. The parties in interest not only waited until his mouth was forever closed by death, so that it was im- possible for him to give his version of the transaction, but waited until the mother of appellant had also died who may possibly have known of the purchase, and might have testified with respect to it had the suit been brought even in her lifetime and while the title was in her; but the suit was deferred until she died, also, thus making two descents cast, and a lapse of twenty-five years from the time it might have been brought till the day it was actually commenced. To the suggestion that there was no adverse holding on the part of appellant or her ancestors, we do not think, under the circumstances of the case, there is much force in it. If one having a claim of this kind to vacant and unoccupied land, resting solely upon the mere memory of witnesses, unaided by any docu- mentary proof, as was the case here, may lie by for some twenty-five years, and until all the parties on 271 one side of the alleged transaction are dead, and then maintain a bill of this kind against an infant repre- sentative of such deceased parties, it may be safely said that no owner of land so long vacant as this was, is safe. To the further suggestion that this defense should have been set up by answer, it is sufficient to repeat what has already been said, that the delay in suing was a fact apparent upon the face of the bill; and con- ceding it should have been set up by waj^ of answer, it was the duty of the court to have required such an answer to be put in, and the failure to do so would have been error. But we hold the rule suggested can have no aj)plication to an infant who is the ward of the court, as appellant was. In connection with this case we refer to Walker v. Ray, 111 111. 315, decided upon substantially the same state of facts. The decree of the court below, for the error indi- cated, will have to be reversed, and the cause remanded for further proceedings in conformity with this opinion. Decree reversed. SHIELDS V. BUSH, 189 in. 534. (1901.) Mr. Justice Magruder delivered the opinion of the court. Third — It is claimed that the decree in this case is erroneous upon the alleged ground, that it grants af- firmative relief to the defendants upon their answers, and without the filing of a cross-bill. The contention of the appellant is, that the Circuit Court should have rendered a decree, dismissing the appellant's bill so far as the eighty acres of land were concerned, and that the court, by failing so to dismiss the bill and by rendering a decree holding the title to the eighty acres to be vested in appellant and appellees as heirs of Catherine Shields, deceased, subject to a 272 life estate tlierein of the appellant, granted affirmative relief upon a simple answer. We do not think that the decree is erroneous in this regard. The doctrine is fully recognized, that the defendants in a bill should not be granted affirmative relief upon their answer. (White V. White, 103 111. 438; Mason v. McGirr, 28 id. 322). It is also true that, in a bill to remove a cloud from the title, a re-conveyance from the defend- ant to the complainant should not be decreed. (Pratt V. Kendig, 128 111. 293; Eucker v. Dooley, 49 id. 377). But it is well settled that, where a bill in chancery contains a general prayer for relief, it must be re- garded as sufficient to support any decree warranted by the facts alleged in the bill. (Gunnell v. Cockerill, supra; Stanley v. Valentine, 79 111. 544; Davidson v. Burke, 143 id. 139; Walker v. Converse, 148 id. 622; Gibbs V. Davis, 168 id. 205). In the case of Gibbs V. Davis, supra, we said: "The rule is, where a bill contains a prayer for special relief and also a prayer for general relief, the complainant may be denied a decree for the relief specially prayed for, and, under the general prayer, be granted such relief as he may be found entitled to have under the allegations of fact made in the bill, and the proof in support thereof." In the case at bar, the prayer of the bill is that the deed in question "may be declared null and void as against your complainant, and all persons who may hereafter claim by or through him, as a cloud upon your complainant's title, and that the said deed may be delivered up and canceled ; and that your com- plainant may have such other and further relief, as equity may require, and to your honor may seem meet." The amended bill alleges, that Catherine Shields left surviving her her husband, James Shields, and her father and brothers and sisters, "being the only heirs-at-law of Catherine Shields." It also al- leges, that appellant and his wife occupied the lot, and the strip connected therewith, as their homestead at the time of the execution of the deed, and "that he and his wife continued to live thereon, and that his 273 wife did not join in tlie execution of the said deed, and that it was void and convej-ed no title." It is also alleged in the bill, ''that no complete legal title was conveyed to the said Catherine Shields;" and "that the said deed is without any legal effect what- ever, though the same may not appear on the face of said deed." The bill also prays "that the said deed be set aside as a cloud upon your complainant's title, and your complainant prays the court that the said deed be revoked and declared null and void, and that the same be delivered up and canceled. ' ' The bill was also amended by inserting the allegation "that, if the court refuses the relief above asked, this complainant prays that the court construe the said deed, and de- termine whether any title of estate passed by said deed. Complainant further prays that, if the court refuse the relief above asked, the court set aside the said deed 'as to the homestead,' " etc. Under the prayer of the bill and the allegations made therein as above referred to, the decree was not too broad. It merely construed the deed, and deter- mined what title passed thereby in accordance with the prayer of the bill. Having found that the deed was void as a conveyance of the homestead, it pro- ceeded to determine the title as to the farm of eighty acres. As the court could not, under the facts, grant the special prayer for the cancellation of the deed as a conveyance of the whole of the property, it could only grant the general relief of finding and decreeing the deed void as to the homestead, and of finding and decreeing the deed valid as to the eighty acres. The relief decreed was not upon the answer, but was un- der the prayer of the bill. The title to the eighty acres was not vested in the appellant and the heirs of his deceased wife by the decree, but it had already been so vested by the deed, and by the law, as applied to the construction of the deed. A court of equity could not, in the performance of its legitimate functions, decree otherwise than it did on the facts of this case. Accordingly the decree of the Circuit Court is af- firmed. Decree affirmed. 274 WILLIAMSON V. MONROE, 101 Fed. 322. (1900.) On the above facts the question arises as to whether Monroe and Lee must be held to an accounting to the firm of Monroe, Strang, Lee & Co. for the profits on the 70-mile contract, taken in their own names. A pre- liminary question is whether Strang and Williamson are barred by laches from maintaining their suit as to the 70-mile contract. In stating the principles of law applicable on these points, it is not considered necessary, even if time and other pressing duties ad- mitted, to go into an analysis of the cases cited in the elaborate briefs of counsel. Indeed, it is well-nigh impracticable, and, if done, altogether unprofitable. It was insisted that the court was without jurisdic- tion as to the 70-mile contract because the law afforded an adequate remedy. If this were true (which is not the case), the necessity for a bill in equity to settle the partnership as to the 50-mile contract, and the other expenses of the firm, was made necessary by rea- son of the action of Creech, acting in concert, and in the interest of Monroe and Lee, in refusing to deposit the money of the firm in the Merchant's Bank, accord- ing to the contract; and the court, having jurisdiction of the case and the parties for the purpose of settling the partnership for the 50-mile contract, will retain it for the purpose of administering complete relief be- tween all the parties. Hopkins v. Grimshaw, 165 U. S. 358, 17 Sup. Ct. 401, 41 L. Ed. 739. Moreover, it is the settled law, in the federal courts, that where it is competent for a court to grant the relief sought, and it has jurisdiction of the subject-matter, the objection that there is an adequate remedy at law should be taken at the earliest opportuntiy, and before defend- ants enter upon a full defense. Reynes v. Dumont, 130 U. S. 354, 9 Sup. Ct. 486, 32 L. Ed. 934; Kilbourn V. Sunderland, 130 U. S. 514, 9 Sup. Ct. 594, 32 L. Ed. 275 1005. The jurisdiction of the court in this case is be- lieved to be beyond dispute. The rule governing laches in the institution of bills in equity for fraud is admirably stated and abundantly supported by authority in Kelley v. Boettcher (de- cided by the Eighth Circuit Court of Appeals) 29 C. C. A. 14, 85 Fed. 55. Judge Sanborn, delivering the opin- ion of the court, said: "In the application of the doctrine of laches, the settled rule is that courts of equity are not bound by, but that they usually act or refuse to act in analogy to, the statute of limitations relating to actions at law of like character. Rugan v. Sabin, 10 U. S. App. 519, 53-4, 3 C. C. A. 578, 582, 53 Fed. 415, 420; Billings v. Smelting Co., 10 U. S. App. 1, 62, 2 C. C. A. 252,' 262, 263, 51 Fed. 338, 349; Bogan v. Mortgage Co., 27 U. S. App. 346, 357, 11 C. C. A. 128, 135, 63 Fed. 192, 199; Kinne v. Webb, 12 U. S. App. 137, 148, 4 C. C. A. 170, 177, 54 Fed. 34, 40; Scheftel v. Hays, 19 U. S. App. 220, 226, 7 C. C. A. 308, 312, 58 Fed. 457, 460; Wagner V. Baird, 7 How. 234, 258, 12 L. Ed. 681 ; Godden v. Kimmell, 99 U. S. 301, 310, 25 L. Ed. 431 ; Wood v. Carpenter, 101 U. S. 135, 139, 25 L. Ed. 807. The meaning of this rule is that, under ordinary circum- stances, a suit in equity will not be stayed for laches before, and will be stayed after, the time fixed by the analogous statute of limitations at law; but if unusual conditions or extraordinary circumstances make it in- equitable to allow the prosecution of a suit after a briefer, or to forbid its maintenance after a longer, period than that fixed by the statute, the chancellor will not be bound by the statute, but will determine the extraordinary case in accordance with the equities which condition it. The practical result is that a suit in equity for relief on the ground of fraud would not be barred by laches in the state of Colorado in less than three years after the discovery of the fraud, un- less unusual circumstances made it inequitable to allow its prosecution. Some of the circumstances which will induce a court of equity to apply the doc- trine of laches in a shorter time than that fixed by the statute are the destruction of the muniments of title, the death or removal of parties, the number of inno- cent purchasers who may be affected, radical changes 276 in the conditions and value of the property, and its speculative character. Lemoine v. Dunklin Co., 10 U. S. App. 227, 239, 2 C. C. A. 343, 348, 51 Fed. 487, 492. When a suit is brought within the time fixed by the analogous statute, the burden is on the defendant to show, either from the face of the bill or by his an- swer, that extraordinary circumstances exist which require the application of the doctrine of laches; and, when such a suit is brought after the statutory time has elapsed, the burden is on the complainant to show, by suitable averments in his bill, that it would be in- equitable to apply it to his case. The cases of Wag- ner V. Baird, 7 How. 234, 12 L. Ed. 681; Godden v. Kimmell, 99 U. S. 201, 25 L. Ed. 431 ; Wood v. Car- penter, 101 U. S. 135, 139, 25 L. Ed. 807; and Rugan V. Sabin, 10 U. S. App. 519, 534, 3 C. C. A. 578, 582, 53 Fed. 415, 420, — belong to the class of cases in which the doctrine of laches was applied after the statute of limitations had run. The cases of Billings v. Smelt- ing Co., 10 U. S. App. 1, 62, 2 C. C. A. 252, 262, 363, 51 Fed. 338, 349, and Bogan v. Mortgage Co., 27 U. S. App. 347, 357, 11 C. C. A. 128, 135, 63 Fed. 192, belong to the class of cases in which the court refused to apply the doctrine of laches within the time fixed by the statute. In the latter case this court declared that this doctrine was applied by analogy to the statute of limitations, to promote, not to defeat, justice, and re- fused to invoke it after a delay of 30 months. It is a familiar maxim of the courts of chancery, long since embodied in our statutes, that no time runs against the victim of a fraud while its perpetrator fraudu- lently and successfully conceals it. Scheftel v. Hays, 19 U. S. App. 220, 226, 7 C. C. A. 308, 312, 58 Fed. 457, 460; Alden v. Gregory, 2 Eden, 285; Prevost v. Gratz, 6 Wheat. 481, 5 L. Ed. 311 ; Michoud v. Girod, 4 How. 503, 11 L. Ed. 1076; Badger v. Badger, 2 Wall. 87, 92, 17 L. Ed. 836." This suit is not barred by any statute of limitations applicable to such cases in Arkansas. Wilson v. An- thony, 19 Ark. 16 ; Taylor v. Adams, 14 Ark. 62 ; Sul- livan V. Railroad Co., 94 U. S. 811, 812, 24 L. Ed. 324. Nor is there anything shown to take the case out of the rule laid down in the case of Kelley v. Boettcher, supra, to the effect ''that under ordinary circum- 277 stances a suit in equity will not be stayed for laches before tlie statute of limitations runs," and imposing upon the defendants, where the statute has not run, the burden of showing such unusual conditions or ex- traordinary circumstances as make it inequitable to allow the suit to be prosecuted, or to justify the appli- cation of the doctrine of laches. A number of cases — chiefly mining cases (a class of property subject to great fluctuations of value) — have been cited by defendants to support the doctrine for which they contend, and in some of them the doctrine of laches has been applied after a briefer time has elapsed than in this case, but it is not believed they are applicable to the case at bar. In fact, Kelley v. Boettcher, supra, is itself a mining case. In this case there has been no destruction of evidence, except de- fendant Lee's letter book, which was destroyed by himself, if at all; no death or removal of parties; no innocent parties to suffer ; no death or removal of wit- nesses; and no such lapse of time as that witnesses would be likely to forget important facts; no prop- erty to fluctuate in value; no loss; nothing, except the fact that Monroe and Lee assumed the risk and bur- den of the work over the protest of Williamson and Strang. Moreover, laches should never be applied to defeat justice, nor should it be applied when it ap- pears, as in this case, that, while plaintiffs felt they had been wronged, yet were without evidence to show it, and when the evidence now shows that no amount of inquiry made of persons likely to know the facts, at the time the plaintiffs first learned that they were ex- cluded from the 70-mile contract, would, with any rea- sonable degree of certainty, or even probability, have unlocked the salient facts and writings by which the positive denials of both defendants are now over- turned; for, even on the witness stand, those who knew the facts denied them, and the truth was dis- closed over their most persistent and earnest efforts to conceal it. The doctrine of laches ought not to be applied under the circumstances of this case, and es- pecially since the institution of a suit at the time the 278 70-mile contract was executed would most likely, un- der all the circumstances then surrounding the firm, the construction company, and the railroad company, have resulted disastrously to the firm, not only as to that contract, but as to the 50-mile contract also, while delay could harm no one, and conduce to the benefit of all the firm. It cannot, therefore, be fairly said tliat the plaintiffs delayed suit that they might specu- late on the chances which the future would give them of avoiding the risk if the venture proved unprofit- able, and asserting their claim if the contract resulted in gain, since the defendants had the full opportunity to defeat such contingency by recognizing plaintiffs' rights when the claim was made for an interest in the contract, accompanied by an offer to share its bur- dens; indeed, they elected to take all the risk when they determined to fraudulently exclude their part- ners, and should not now be allowed, in a court of equity, to profit by their wrong. AHOLTZ V. GOLTRA. 114 111. 241. (1885.) ScoTT, J. The bill in this case was brought by Frederick Aholtz and George Stare against Isaac V. Goltra, Edward 0. Smith, and William W. Foster in the Circuit Court of Macon county, and is for an in- junction and relief. It is alleged in the bill that de- fendants Goltra and Smith recovered a judgment at law in the Circuit Court against complainants on an appeal-bond in the sum of $300, with interest and costs; that they had caused an execution to be issued on such judgment; and that defendant Foster, who is sheriff of Macon county, is about to levy the same on the property of one or both of complainants. No com- plaint is made against the regularity or justness of the judgment. It was recovered in an action of debt on an appeal-bond, wherein vcomplainant Aholtz was principal and his co-complainant Stare was surety for 279 him. It is alleged that complainant Aholtz was the owner of certain town lots in Blue Momid, in Macon county, with a dwelling-house situated thereon; that Goltra and Smith, by wrongful means, and by collu- sion with a then tenant of Aholtz, got possession of the house and premises without his knowledge, and by themselves and their tenants, since April, 1875, for a period of over eight years, forcibly kept the possession from complainant Aholtz ; that he had only recently re- gained possession of the premises ; and that during the period defendants withheld the same from complain- ant they were reasonably worth the sum of $120 for each year, amounting in the aggregate to the sum of $1,000. There is also an allegation in the bill that the prem- ises were damaged by the defendants or their tenant to the extent of $50, which, together with the reason- able rent due, makes a total sum of $1,050 due from defendants Goltra and Smith to complainant Aholtz. The prayer of the bill is that an account may be taken, by and under the direction of the court, (1) of the amount due to defendants Goltra and Smith on the judgment in their favor; and (2) for an account of the reasonable rental value of the premises and improve- ments thereon during the time the defendants held the same and kept complainant Aholtz out of possession; that one claim be set off against the other; that the amount that may be so found to be due to defendants on such judgment, with the interest and costs, be first paid and satisfied; and that complainant Aholtz have a decree against Goltra and Smith for the remainder, for whatever may be found due to him for the reason- able rent and damages to the premises, and in the meantime that an injunction issue restraining the sheriff from levying the execution on the property of either complainant, and for general relief. To the bill stating these facts and others, some of which may be stated further on, with sufficient fullness, the court sustained a demurrer, and dismissed for want of equity. That decree was affirmed in the Appellate Court of the third district, and complainants bring the case to this court on their further appeal. ^80 It very clearly appears complainants have a full, complete, and adequate remedy at law, and their bill was therefore very properly dismissed on demurrer, as was done, for want of equity. The bill contains no allegation whatever that would warrant a court of chancery to assume jurisdiction. It is nowhere alleged defendants Goltra and Smith, or either of them, are insolvent, and no reason is shown why complainant Aholtz may not proceed at law to recover whatever, if anything, may be due to him from either or both de- fendants. The only ground suggested in the bill is that neither defendant resided in Macon county, so that process from the Circuit Court of that county could be legally served upon them. It is averred that Smith is a non-resident of the state, and that Goltra is a non-resident of Macon county, but that the latter- named defendant resides in Sangamon county, in this state, which, of course, is the next adjoining county to Macon. No reason is shown why complainant Aholtz cannot pursue him remedy at law against Goltra and recover anything that may be due him, either from him or from Goltra and Smith. No ground whatever is suggested for equitable relief, and as it does not appear but complainants had a full, complete, and adequate remedy at law, they will be remitted to a common-law court for the recovery of anything that may be due to either of them. The claims they insist upon, if valid, are legal claims, and no reason appears why equity should assume jurisdiction to adjust them. The judgment of the Appellate Court will be af- firmed. LESTER V. STEVENS, 29 111. 155. (1862.) Caton, C. J. At the time this plea to the jurisdic- tion of the court was filed, there were four defendants, one of whom, the sheriff of Ogle, had been brought in and made a party by the amended bill. The plea avers 281 that Willard and Pearce, 'Hlie major part of said de- fendants, ' ' reside in Cook county. The averment that two is the major part of four does not make it so ; nor does the setting of a plea for hearing admit that which cannot be true. Now, our statute says that the suit shall be commenced in the county where the defend- ants, or a major part of them, reside; this, if it were possible to raise the question, would put beyond the jurisdiction of any court a vast number of suits where there are several defendants, for it is very common that a major part of the defendants do not reside in any one county; and but for the rule that every plea to the jurisdiction must give a better writ, and show affirmatively that some other court can take jurisdic- tion, there would be a failure of justice in such cases. In order to make this plea good, we must find in it the facts which would give some other court jurisdic- tion. We only learn from the plea that two of the four defendants reside in Cook county. This is not sufficient to give that court jurisdiction under the stat- ute, any more than the residence of the other two in Ogle would give that court jurisdiction. It gives the party no better writ, and he may stay where he is till he is shown a better one. The next objection is that this is a bill to restrain the collection of a judgment rendered in the Circuit Court of Cook county. If this were the primary object of the bill, it would undoubtedly be fatal to the juris- diction of the court, but it is not so where the prin- cipal object of the bill is for other relief, and the stay of the collection of the judgment is incidental or aux- iliary, and for the purpose of making the relief com- plete for which the bill is filed; and for the purpose of determining these questions, even on such a plea as this, we must look into the bill itself. If the plea avers that there are but three defendants, or that two is a major part of the defendants, which is the same thing in substance, that averment in the plea cannot avail against the fact that there is on the face of the bill manifestly four defendants; and so when we can see that the principal objects of the bill are other 282 than the stay of the execution, and that that is but the incident, the averment of the plea to the contrary can- not avail. Here the principal objects of the bill are to be re- lieved from a mortgage or trust deed, and a sale made under it on account of usury ; and the stay of the exe- cution in the hands of one of the defendants is intro- duced as incidental to that main object. Whether, in the attainment of that main object, the complainants can obtain relief from that judgment, is not before us on this plea. The bill may be obnoxious to a demurrer for multifariousness, or for want of equity, or for any other cause, without affecting this question, which is one of jurisdiction only. We think the plea was insufficient to oust the court of its jurisdiction, and that it should not have been sustained. We have treated what the party calls a demurrer to the plea as simply setting the plea down for hearing, which is the proper mode of raising the question of the sufficiency of a plea to bill in chan- cery, because the court below so treated it. The court would have been justified in disregarding the paper called a demurrer, as inappropriate to such a plead- ing. The decree is reversed, and the suit remanded. Decree reversed. JEWETT ET AL., COMMMISSIONERS, v. SWEET. 178 111. 96. (1899.) BoGGS, J. This was a bill in chancery by appellee for an injunction restraining the appellants, in their official capacity as commissioners of highways, from cutting a certain ditch and waterway through a high- way and turnpike road upon which the farm of appellee abuts. Decree as prayed was awarded by the chancel- lor, and on appeal the decree was affirmed by the Ap- pellate Court for the Second District. This is a further appeal by the said commissioners. 283 The opinion of the Appellate Court, rendered by Mr. Justice DiBELL, is as follows: "Appellee owns the southeast quarter of the north- east quarter of section 7, in the town of Harrison, in Winnebago county, and a tract of twenty-four acres next south thereof. John Dolan owns land north of appellee. The heirs of Catherine Grattan, deceased, own lands west of Dolan, and own the southwest quar- ter of the northeast quarter of said section 7. William Bodine owns a twenty-acre tract south of the Grattan lands. The Grattan and Bodine tracts are therefore next west of the two tracts owned by appellee. Be- tween the lands of appellee and Dolan, on the one side, and of Grattan and Bodine, on the other, is a north and south highway. About three-eighths of a mile north of appellee's land. Otter creek flows in a general easterly direction, and crosses the highway, and there is a bridge in the highway at that place. About half a mile directly west from the southern part of appel- lee's land is a lake or pond, the natural and ordinary outlet of which is due north into Otter creek. In times of high water the pond also overflows in a northerly and easterly direction. Several natural draws or de- pressions cross the highway south of the creek, and carry off these waters. There is one bridge across such a draw opposite the south part of Dolan 's land, and three bridges cross three such draws opposite the north part of appellee's land. Some forty years before this suit was begun, the then owner of the Grattan and Bodine lands dug a ditch east and west on the north line of Bodine 's present land, extending back from said highway eighty rods Said ditch was dug to carry a part of said overflow off the lands here called the Grattan and Bodine lands, and to carry it to the highway. The highway authorities at that time built a sluiceway across the highway at that point to let said waters across the road. At or about that time a ditch was dug in the highway on the east side thereof, which received said waters to a greater or less extent, and conveyed them north to the draws before men- tioned. At some time, variously estimated by the wit« 284 nesses at from seventeen to thirty years before this suit was brought, the highway authorities closed said ditch on tlie east side of the highway, took out said sluiceway at the east end of said Grattan and Bodine ditch, turnpiked said road, and dug a deep ditch on the west side of said turnpike, which received the waters from said Grattan and Bodine ditch, and con- ducted them north to said draws and bridges. In the spring of 1897 the highway commissioners of said town decided to cut through the turnpike at a point 135 feet north of the place where said old sluiceway had formerly been, and 315 feet south of the most southern of the existing bridges, and to put in a bridge across the turnpike at that point, and thus to provide a way across the highway for the water coming from the west, and from the Grattan and Bodine ditch, and to discharge said water upon appellee's land at that point. Thereupon appellee began this suit, by filing a bill to enjoin the commissioners from cutting through said turnpike and putting in said bridge at that point. .He set out the facts as to the location and ownership of the land, the waters and their natural outlets, the bridges already in existence, the Grattan and Bodine ditch, and the highway ditches ; and he charged that to open said turnpike and put in said bridge would take said waters out of their natural course, and cast them upon his lands to the east of said proposed bridge, and irreparably injure them. A preliminary injunction was granted, and the commissioners answered. Proofs were heard, and there was a decree making said in- junction perpetual. From that decree the commis- sioners now appeal. ''The commissioners, in their answer, do not claim that the proper care of the highway requires the new bridge to be put in and the proposed cut to be made through the turnpike. They do not set up in their answer that the highway, in its present condition and with its present bridges, is in any respect defective or out of repair. They do not seek to justify their pro- posed action on the ground that it will in any respect improve the highway. They do not suggest in their 285 answer that they are acting for the public good. Neither in their answer nor their proofs do they deny that complainant's lands will be injured by their pro- posed course, and they do not offer to restore the ditch on the east side of the highway, which was some protection to the land on that side of the road when said former sluiceway was in existence at the end of the Grattan and Bodine ditch. The answer does assert the right of the commissioners to open the turnpike and build the new bridge, regardless of its effect upon appellee's land, and it places that claim of right upon two grounds. "The answer is, first and chiefly, devoted to the claim that the Grattan and Bodine ditch was lawfully dug by the man who then owned the lands west of the road, and that it and the sliuceway across the highway at the end thereof were constructed with the approval of the man who then owned the land east of the road, appellee's grantor; that the highway com- missioners ought not to have taken out said sluiceway, and that to do so was a wrong against the owners of the Grattan and Bodine lands; and the highway com- missioners here set up and pleaded the rights which they claim exist in the owners of said lands west of the highway by reason of what occurred forty years before between the adjacent landowners. The Grattan heirs and Bodine are not before the court. They have not asked any relief against appellee. We are of opinion the highway commissioners have no right to injure appellee merely for the purpose of benefiting Bodine and the Grattans. If the Grattans and Bodine have any contract rights or any equities against appellee because of what occurred between their respective grantors when the Grattan and Bodine ditch was dug, that is a matter for the interested parties to litigate, if they desire; but we think the highway commissioners should not take it upon themselves to determine those questions, nor to initiate this change in the course of the water, and carry on litigation for the benefit of Bodine and the Grattans. "The answer secondly claims that the natural flow 286 of the water from the west is across the highway at about the point of the proposed bridge, and therefore the commissioners may build a bridge there if they clioose. We tliink the preponderance of the evidence is that the water from the lake or pond in question would never reach the place where the commissioners planned to put in the new bridge but for the Grattan and Bodine ditch, which ditch, we tliink the evidence shows, was cut through a rise of ground which would have pre- vented the waters from the pond coming into a state of nature to the point where it was proposed to locate the new bridge. The result of building such bridge will be to cast upon appellee's land water which would not have come upon that part of his farm in a state of nature, but which would have passed northeasterly over the lands of Bodine and the Grattans, and reached the highway at one of the bridges already in the road. The commissioners have no right to do this, and in- junction is a proper remedy to prevent the wrong. Graham v. Keene, 143 111. 425, 32 N. E. 180. "It is argued that to carry this water to the old bridges through the ditch on the west side of the high- way is to discharge it where they have no right to carry it. We think the proof shows that is the place the overflow would have reached the highway if the Grattan and Bodine ditch had not been dug, and it is the point to which the highway commissioners have carried it for not less than seventeen, and perhaps thirty, years ; and, when it crosses the highway at that point, it discharges upon the lands of appellee, and not upon the lands of some stranger, but at the point where said overflowing waters crossed his land in a state of nature, and where, therefore, he is bound to receive them. "Some attempt was made by defendant to prove that the condition of the highway was such that this bridge was needed, or that to put in the new bridge would benefit the highway. The rule that a party cannot make one case by his pleadings, and a different case by his proofs, is applicable to a defendant as well as to a complainant. The defendant is bound to apprise 287 the complainant, by liis answer, of the nature of the case he intends to set up, and cannot avail himself of any matter of defense not stated in his answer, even though it appears in evidence. Johnson v. Johnson, 114 111. 611, 3 N. E. 232. By filing an answer, the defendant submits to the court the case made by the pleadings. Kaufman v. Weiner, 169 111. 596, 48 N. E. 479 ; Holmes v. Dole, Clarke, Ch. 71. As the answer in this case does not assert any public necessity for the proposed bridge, nor that the highway will be improved thereby, complainant was not required to meet that defense, and defendants cannot ask a decree in their favor because of any evidence which they introduced on that subject. But the proof shows the commission- ers have permitted the ditch on the west side of the road to become filled and clogged up to some consid- erable extent, and have let willows grow in it, and corn stalks, straw, hay, and stubble to accumulate against the willows, to the serious obstruction of the flow of the water, and have let long grass grow under the present bridges. We conclude from the evidence that, if the highway commissioners will remove the ob- structions in that ditch, and under the existing bridges, the proposed new bridge will not be required for the benefit of the highway. We think the answer shows this was not the reason why they planned to cut the turnpike and put in the bridge. For the reasons stated, the decree of the court below will be affirmed. ' ' We find the conclusions arrived at by the Appellate Court as to the matters of fact involved in the case abundantly supported by the proof. The principles of law announced in the opinion are in accord with our views. There seems no reason why we should indulge in further observations as to the case. The opinion of the Appellate Court is adopted as the opinion of this court, and its judgment is affirmed. Judgment affirmed. 288 MAHAR V. O'HARA, 9 111. 424. (1847.) Opinion of the court by Caton, J. On the 20th of July, 1840, Helen Mahar filed her bill in the [*426] Eandolph Circuit Court to enforce the payment of a contingent legacy secured to her by the last will and testament of Henry O'Hara, against James O'Hara, executor and residuary legatee of the said Henry O'Hara. The bill states that before and at the time of the death of the said Henry O'Hara, she was his wife, and that on the 20th of June, 1826, he made and published his last will and testament in due form of law, whereby among other things he gave to his son James, the present defendant, his home- stead except certain specified portions which he gave to other devisees; and after making various other bequests and devises, the testator declared it to be his desire, that those of his children who then resided with him should continue to reside on the plantation after his death, with his son James, and that his wife Helen, the present complainant, should continue to reside there and act as mother to his children and to her own, and that they should reside there together so long as they could agree; but in case the complain- ant should desire to reside by herself, James should build her a comfortable dwelling house convenient to a good spring of water, and should deliver to her one hundred bushels of corn, twenty bushels of wheat and five hundred pounds of pork, annually. By the will, also, there were a considerable number of specific be- quests made to the complainant, although of no great value. The bill then declares that inasmuch as he had given the principal part of his estate, and re- quested him to make the several payments as before expressed, to the other legatees and to the complain- ant, he appoints him, the said James, his executor. The bill then avers, that soon after the death of the testator, to wit: on the 3d day of July, 1826, James O'Hara proved the will, and took upon himself 289 tlie execution thereof, and possessed himself of [*427] all the real and personal estate of which the said testator died seized, and possessed and accepted the real estate and personal property, which by the said will were devised and bequeathed to him. The defendant delivered to her all of the specific property be- queathed to her in the will, and built the house as di- rected in the will for her, and delivered to her the provisions as specified in the will till the year 1830, since which time he has refused to pay the said an- nuity, although she has ever since lived separate from the said James; that the said defendant has, ever since the death of the said testator, received, ac- cepted and enjoyed the real and personal estate be- queathed and de\'ised to him, of the value of $5,000. The defendant in his answer admits all of the ma- terial allegations of the bill, except that he denies that real and personal estate which he received by the will, was worth $5,000. He admits that he had re- fused to pay the annuity for the time mentioned in the bill, for the reason that she had ceased to live in, and occupy, the house which he had built for her on his premises, but had married a man of the name of Mahar and removed to the state of Missouri. A replication was filed and proofs taken, and the cause was heard by the court below, and the bill dis- missed with costs, in April, 1843, which decree we are asked to reverse, and to render a decree in favor of the complainant according to the. prayer of the bill. As the jurisdiction of a court of equity is ques- tioned, that will be first considered. The several Cir- cuit Courts of this state in their respective circuits, have the same jurisdiction in chancery which the court of chancery in England has, except where its jurisdiction is limited by express statute, or by neces- sary implication, as where some other court may be vested with exclusive jurisdiction of the particular matter. Our courts are vested with the same powers and are governed by the same practice; or agreeably to such rules as may be established by said courts, except where particular provision is made by our statute. 290 Without stopping to inquire into the general jurisdic- tion of courts of equity over the administration of estates, either exckisively, or concurrently [*428] with the ecclesiastical courts in England, or in this country the probate courts, it is sufficient to observe, that the jurisdiction of the courts of equity in cases of legacies, has been firmly established, and beyond con- troversy, at least since the time of Lord Nottingham. The grounds of that jurisdiction are various, and most satisfactory. 1 Story's Eq. Jur. Chap. 10. In equity, executors and administrators are trustees, and so also is a devisee who takes a devise, charge- able with legacies or debts. No better illustration could be desired, than the case before us. Here the testator devised an etsate to his son, who also he made his executor, and in consideration of the devise, he imposed upon his son the burthen of supporting the widow of the testator in his family, so long as they could agree, or she should choose to reside there, and when she should choose to live by herself, he should build for her a house, and furnish her an- nually with a specified quantity of corn, wheat and pork. Now, in equity he is considered a trustee for the purpose of executing these provisions in favor of the widow, and by accepting the estate he assumed the trust, and the estate thus devised is not only chargeable in equity with the trust, but by accepting the devise he became personally responsible for the payment of the legacy, according to the provisions of the will. Indeed, without the aid of the searching powers of the court of equity, estates might never be fairly settled, frauds would go undetected, and lega- cies but too frequently would remain unsatisfied, and the intention of testators would be defeated. But so far from the jurisdiction of the courts of equity in cases of legacies being taken away by our statutes, it is expressly confirmed. The 131st section of our statute of wills, among other things, provides: *'And every executor, being a residuary legatee, may have an action of account, or suit in equity against his co- executor, or co-executors, and recover his part of the 291 estate in his or their hands; and any other legatee may have the like remedy against the executors; pro- vided, that before any action should be commenced for the legacies as aforesaid, the court of pro- bate shall make an order directing them to be [*429] paid." Now nothing more need be said on this subject of jurisdiction, except perhaps to give a proper construction to the proviso in the last clause of the section, as some might suppose that the legis- lature had made so absurd a law as to tie up the hands of the courts of equity, as well as all other courts, in all cases of legacies, no matter how compli- cated, extraordinary or difficult the case might be, whether involving a construction of the will or not, till the court of probate had made an order for the pay- ment of the legacy, thus making the court of chancery a mere instrument in the hands of the Probate Court, to carry into etfect its orders and judgment. Such a construction should not be adopted, unless the lan- guage of the law will admit of no other. In this case, however, we think we may safely say, that the legislature meant no such thing. In the preced- ing part of the section, two modes are prescribed for enforcing the payment of the legacies, one by action of account and the other by suit in equity; and the proviso declares that before any action shall be com- menced for legacies as aforesaid, an order shall be made by the Probate Court, etc.. This clearly applies only to cases where the action of account shall be commenced, for the term action is never properly ap- plied to a suit in equity, nor is suit a proper designa- tion for an action of account. The proviso, therefore, does not apply to a suit in equity to enforce the pay- ment of a legacy. It is next objected that the husband of the complain- ant should have joined her in the bill. The objection would have been fatal beyond all doubt if the answer had only shown that she had a husband living. Ap- parently, not with a view of showing a want of proper parties, but for the purpose of presenting an excuse for not paying the annuity, the answer states that the 292 complainant was married to one Mahar in 1831 or 1832, but it does not state that lie is still living. If he had been, we are not to presume that the answer would have omitted to state it. Like any other pleading, nothing is to be presumed in favor of the [*430] answer. By the same rule, had the bill shown the marriage to Mahar, it would probably have been necessary to have went on and shown a sufficient reason for not making him a party. We will next inquire into the proper construction of this will, or that portion of it which is relied upon as the foundation of this suit. I have before shown that, by taking the estate devised to him, he assumed to pay the legacies imposed upon him by the will. Messenger v. Andrews, 4 Eng. Ch. E. 479. It is, therefore, only necessary to inquire what the com- plainant is entitled to under the will. It is insisted upon by the counsel for the complain- ant that he was only bound to provide her with a house, and furnish her with the provisions during the time that she resided by herself, in the house built for her, and not after her marriage to Mahar. This is the clause relied upon: "But in case my wife shall choose to separate from them (James and the other children) and desire a residence to herself, I direct that my son James shall build her a comfortable dwell- ing house, on his part of the land above given him, convenient to a good spring of water, and to deliver to her one hundred bushels of corn, and twenty bushels of wheat, and five hundred pounds weight of good pork annually." To say that the testator intended that she should have the provisions no longer than she lived in the house by herself, is almost as unrea- sonable as to say that she was not intended to have the house any longer than she should eat all the pro- visions herself. It cannot be presumed that he in- tended to compel her to reside in that house, whether it suited her convenience or not. By residing to her- self, is only meant a residence away from the family of the defendant. A refusal to enjoy one portion of the provision did not deprive her of her right to the 293 other; nor can we reasonably infer that the testator intended to prohibit her marrying, should she desire to do so, by limiting this bounty to her during her widow- hood. The law is averse to any provision in a will or other instrument in restraint of marriage, as being against the interest of the state, and it will not attrib- ute any such intention to the testator, unless his lan- guage will bear no other reasonable construc- tion. If a testator design to exercise a control [*431] over the acts and happiness of those who shall live after him, not for their own good, but from mere caprice, or from an apprehension that he may be for- gotten, he must at least manifest such an intention clearly, or else we cannot attribute to him such a de- sign. While it may be admitted that a testator may impose reasonable restraints upon his legacies, against improvident marriages, yet there are many cases which show that an absolute prohibition of marriage will be disregarded, either in a bequest or a gift; and such may be the law as a general rule, yet it is said, and I think with truth, that an annuity to a widow during widowhood is not void by the common law, although it generally was by the civil law (1 Story's Eq. Jur., sec. 285, note 4) ; but such conditions are held to great rigor and strictness. Long v. Dennis, 4 Burr. 2055; Parsons v. Winslow, 6 Mass. 169. However, as this question in its full extent does not necessarily arise in the decision of this case, I shall refrain from a re- view of the authorities on the subject, or from attempt- ing to point out the mere distinctions wlich will be found to prevail on this subject. Enough has been said to show that by no legal or reasonable construc- tion does this will provide that this annuity was lim- ited to her during her widowhood; and this legacy was far from being a gratuity to the complainant, and at the expense of the defendant, for by accepting it she has lost her right of dower, which, if we may judge from what appears in the record, would have been of vastly greater value than this pittance of about $60 a year, and the use of a house ; and this loss of dower has been a direct gain to the defendant, who took the 294 lands discharged of it, so that he received directly from her ranch more than an ample consideration for all that she claims of him; and it does seem to me that it is most ungracious in him to refuse to pay this small annuity, yet it is his right, if he thinks he has a legal defense, to make it, j^et certainly he ought not to expect a very strained construction in his favor. What has been already decided substantially deter- mines this case without looking particularly into [*432] the depositions, for although the defendant de- nies that the estate which he received by the will was worth $5,000, as charged in the bill, yet he has not stated how much less it was worth. The proof, how- ever, is that it was worth at least $3,000 ; but I appre- hend that this makes but very little difference. Some question was also made on the argument as to the sufficiency of the demand made of the defendant for the annuity, yet the demand is not only sufficiently established by the proof, but the defendant, in his answer, admits that he has refused to pay it ever since her removal from the house which he built for her, and since the time charged in the bill. The case made by this bill vests the court with the right, not only to declare the right of the complainant to an annuity for life, but to secure and enforce its payment, as well for the future as for the past, which may be well done here under the general prayer, and in this case most particularly should it be done, to avoid the expense and vexation of an annual suit to recover the annuity as it may fall due. The decree of the Circuit Court must be reversed and the cause remanded, with directions to that court to enter a de- cree declaring the complainant to be entitled to the use of the dwelling house mentioned in the pleadings, which was built for her by the defendant, during her natural life; also that she is entitled to recover of the defendant the value of the said annuity of corn, wheat and pork, from and including the year 1831, till the time of filing this bill; also that she is entitled to re- cover, in like manner, the said annuity from the said defendant from the time of the commencement of the 295 said suit up to the time of rendering said decree, in case it shall be found that the said defendant has re- fused to pay said annuity in kind, according to the directions of said will; and if there has been no such refusal, then she is entitled to receive the amount of said annuity in kind, during the time aforesaid, of the said defendant ; also that she is entitled to receive from the said defendant the said annuity in kind of the said Court have an account taken, to ascertain the amount due the complainant up to the time of rendering [*433] said decree, either in money or in kind, and that it enforce the payment thereof, either by execu- tion or attachment, as the case may require ; and also that the Circuit Court enforce the payment of the said annuity by the said defendant, from time to time as it may fall due, either by attachment or otherwise, as the case may require, upon proper application, made by the said complainant under that decree, and that the defendant pay the costs. As it was stated upon the argument by the complainant's counsel, that the de- fendant is amply responsible, the decree need not make the said annuity a lien upon the land devised to the said defendant in and by said will, unless it shall be found to be necessary by a subsequent appli- cation to be made to the Circuit Court. The decree of the Circuit Court is reversed with costs, and the cause remanded with directions for fur- ther proceedings according to this opinion. Decree reversed. DOWDEN V. WILSON, 108 111, 257. (1884.) Mr. Justice Walker delivered the opinion of the court. Appellee in this case filed a l)ill in the Ford Circuit Court, against appellants, to foreclose a mortgage given on a tract of land in that county, to secure three promissory notes, amounting in the aggregate 296 to $1,000. This is a second suit commenced in that court to foreclose the same mortgage. The first bill was filed by the same complainant against the same de- fendants. That case was heard, a decree rendered, and appealed to this court, where the decree was re- versed, and the cause ordered to be remanded, but the order was not applied for or issued within two years, and the case became discontinued. On the trial of this case it was proved that the records and files of the former case were destroyed by the burning of the clerk's office of that court. On the hearing appellants oifered and read in evidence copies of two depositions of defendant Dowden, taken and read in evidence on the trial in the former case. The copies were from the transcript of the record in this court, and were properly certified to be true copies by the clerk of this court. They were read on the hearing, subject to the objections of complainant. There had been filed among the papers of this case, at or before the hearing, an agreement between counsel of the respective parties that counsel for defendants might, on the hearing, read the transcript of the record in this court, but being unable to procure leave to withdraw it for the purpose, on an application he pro- cured the copies thus certified, and complainant's coun- sel objected because they were copies. In deciding the case the court, it is claimed, declined to consider the copies of these depositions. When the case was heard and submitted at the April term, 1882, the court took the case under advisement, to be decided in vacation, and on the 30th day of August following a final decree foreclosing the mortgage was filed, entitled of the pre- ceding April term, and recorded by the clerk as of that term. Subsequently appellants' counsel, on the 4th day of October, 1882, applied to the judge in vaca- tion for an order for a rehearing, but the application was denied, and defendants perfected an appeal to the Appellate Court for the Third District, where the de- cree of foreclosure was affirmed, and they appeal to this court. The first question we shall consider is, whether the 297 judge erred in refusing, on the application in vacation, to grant a rehearing of the case. We regard the 47th section of chapter 37 as settling the practice in such cases. It provides that where a cause or matter is taken under advisement, and it is decided in vacation, the judgment, decree or order may be entered of record in vacation, but such judgment, decree or order may, for good cause shown, be set aside, or modified, or excepted to at the next term of the court, on motion filed on or before the second day of the term, of which the oppsite party, or his attorney, shall have reason- able notice, and if not so set aside or modified, it shall thereupon become final. This section afforded appellants the opportunity, at the December term, 1882, to apply and show cause for setting aside the decree and obtaining a re-trial. The statute does not con- template such an application in vacation, nor can we see the slightest necessity for such a practice, as all can be had by an application in term time that could be in vacation. Where the statute has prescribed one mode of accomplishing a purpose, which is full and complete, it must be presumed that other modes were intended to be excluded. Nor were defendants de- prived of this right by the decree being entitled of, and the clerk recording it as of, the April term. That could be done only as prescribed by the 48tli section of the same act. That section requires the consent of the parties to authorize a decree rendered in vacation to be entered as a decree of the term at which the case was submitted and taken under advisement. The record in this case shows no such agreement, and inas- much as appellants took no steps to set aside the de- cree at the December term, they have waived all right to have the decree set aside, and to have a re-trial. Inasmuch as the copies of the depositions of Dowden were read in evidence, they must be considered, unless complainant's objection was well taken. Were they properly admitted under the agreement that the record might be read"? We think they were. In substance and in fact there was not a particle of difference be- tween that portion of the transcript and the true copies 298 that were read. It is a mere quibble to say that the^' are not the same in substance, or to say that complain- ant was taken by surprise, or that he sustained a par- ticle of injury by reading the copies instead of the originals as contained in the transcript on file in this court. Although copies were not specifically named in the agreement, they were within the implication and spirit of the agreement, and were properly admitted, and should have been considered by the court below. But we, on an appeal in a chancery case, consider all the evidence properly in the record, and must consider the depositions in connection with the other legtimate evidence in the case. Having disjoosed of these preliminary questions, we shall proceed to consider the case on its merits. Does the evidence sustain the decree? There is no question that the notes were given for the purchase of a patent right to a brake for wagons, etc. There was no other consideration for the notes or the mortgage securing them. Had appellants been fully satisfied, the brake was worthless, why did they not, in the years that have elapsed since the decree was reversed, have a brake constructed, and its quality fully tested? It would have required but slight expense or trouble. It was not done, and no doul^t because it would in all probability have proved to be all that it was repre- sented. None of the witnesses, except one, pretend ever to have seen a brake made from this model, and he only saw it attached to a wagon standing still. It is not probable that he could, from the standing wagon, form a correct opinion as to its working in descend- ing a hill, when its operation would be tested. None of the other witnesses ever saw anything more than the model, and they say that they had seen others that were worked on the same principle, and this was worthless. They only state their opinions. They do not state or explain the principle, or give any reason why it would not work. Although they say they are experts, we fail to see they were. Again, independent of that, the defense fails for other reasons. It is claimed that the invention was 299 not new, and that fact is proved by the evidence, and not being true, there was a fraud perpetrated on ap- pellants, and the consideration had failed. On turning to the answer we find that no such representation is alleged to have been made when Wilson purchased. The allegations and proofs must agree to render a defense available. Whatever the proofs may estab- lish, there is no allegation in the answer that the patent was represented to be a new invention, and hence this evidence has no application to the answer, as that is not set up as a defense. The other representations were only such as are usual in commending an article for sale, and were not fraudulent, and require no fur- ther consideration. Moreover, appellants, so far as we can see from the record, have never offered to release or cancel the deed conveying to them the right to manufacture and vend the brake, nor do they offer in their answer to do so, but so far as we can see they still hold the right to manufacture and vend the brake. Even if there was fraudulent representation set up as a defense, or failure of the consideration in the pur- chase, appellants should have restored, or oft'ered to restore, the title to the patent to the vendors. They have no right to hold that and escape paying the con- sideration for the notes and mortgage. What else the proofs may show, there is no allegation or proof that the title was reconveyed, or offered to be reconveyed. This, of itself, precludes appellants from insisting upon the defense. For these reasons the decree of the court below is affirmed. Decree affirmed. ASHMORE V. HAWKINS. 145 111. 447. (1893.) Wilkin, J. It appears from the record that on the trial more than fifty witnesses testified before the jury, about an equal number testifying on behalf of either 300 party. The principal question submitted to this court is, does the evidence sustain the decree? And the de- cision of that question depends upon whether the proof of the mental incapacity of James Hopkins produced upon the trial was sufficient to authorize the verdict of the jury. We have examined the evidence bearing on this question, and, weighing it, as we are compelled to do, without reference to the appearance and conduct of the witnesses on the stand, are of the opinion that, if no other evidence had been submitted to the jury than that introduced by the complainants, it would have been justified in finding as it did. The evidence of the witnesses is in irreconcilable conflict. We think the fact that the grantor was mentally and physically enfeebled by old age at the time he made the deeds in question was clearly proved, but whether that en- feebled condition had reached the point of incapacity to transact the ordinary business affairs of life, is by no means clear. The court below and jury saw all the witnesses, and heard them testify, and were better able to judge of the weight of their testimony than is this court. Speaking on this subject in the recent case of Wilbur V. Wilbur, 138 111. 446, 27 N. E. Rep. 701, we said, repeating what had been frequently said be- fore: "It was therefore the jorovince of the jury to determine which was entitled to the greater weight, and in such case this court will not interfere, even though, as an original proposition, it might have arrived at a different conclusion. This rule is so well established, and supported by so many decisions of this court, that neither reason nor authority need be given for applying it to this case." The same lan- guage must be applied to the present case. Counsel for appellants contend that the court below erred in not providing in its decree for the repay- ment of $100 per year paid by them since the year 1885, as well as taxes paid on the land conveyed to them. As to this point it is only necessary to say that no such affirmative relief was asked by the pleadings. There being no errors of law insisted on by appel- lants, as to the admission or exclusion of testimony, 301 or to the giving or refusing of instructions, and the evidence being sufficient, under the above stated rule, to support the verdict of the jury, the decree of the Circuit Court must be affirmed. CUMMINS V. CUMMINS, 15 111. 34. (1853.) ScATES, J. This bill was filed by the ward against the testamentary guardian for an account, charging that lands and moneys had come into his hands as guardian. The guardian answers, admitting that, in recover- ing the estate of the ward out of the hands of the executor of the will, *he had acquired title to [*34] certain lands purchased under an execution on a judgment against the executor for $418.75, and con- veyed to him on 7th November, 1843. He admits assets to the value of this land to be $427.12, and then states and sets up an account for maintenance and educa- tion and expenses exceeding the assets. The cause was heard upon bill, answer, replication, and exhibits, without proofs, and the bill dismissed. This is erroneous, according to the rules of pleading ; the answer is evidence only so far as it is responsive to the allegations of the bill; so far as matters in dis- charge are stated in the answer, they must be proved, unless in cases where the same matter or statement that creates the charge shows also its discharge. Here it was a distinct and independent matter, and should have been proven. 12 Pet. R. 191 ; 1 Greenl. Ev., sec. 351; 2 Story's Eq. Jur., sees. 1528, 1529. Upon these principles complainant was entitled to a decree for an account. The dismissal was erroneous in another respect. Courts of equity exercise a strict supervision over the expenditures of guardians, requiring the application of the income of the estate to the support and educa- tion of the ward to be satisfactorily shown, so far as 302 needed for that purpose, and the surplus, if any, to be kept productive. But they seldom sanction the use of the principal, even for these purposes, unless a very clear case of its necessity is made out to the court for so ordering. 2 Fonbl. Eq. 473, 474; Davis, Adm'r, v. Harknesse et al., 1 Gilm. R. 177; Davis et al. v. Rob- erts, 1 S. & M. 553. Much stricter still is the rule when a guardian breaks it upon the principal, without first obtaining an order of a proper court authorizing him to do so. 1 Gilm. R. 177. The decree is reversed and the cause remanded. Decree reversed. SWIFT V. SCHOOL TRUSTEES, 14 111. 493. (1853.) Treat, C. J. This was a bill in chancery to foreclose a mortgage, brought by the trustees of schools against Palmer, Rue, Morris, and Swift. The bill set forth the execution of a mortgage by Palmer to the com- plainants ; a conveyance of the premises by Palmer to Rue, subject to the mortgage; a conveyance by Rue to Donnell; and a conveyance by the latter to Morris in trust for Swift, both of whom had notice of the mort- gage. The bill was taken for confessed against Palmer and Rue. Morris and Swift, in their answers on oath, expressly denied all notice of the mortgage. A decree of foreclosure was entered, and Morris and Swift sued out a writ of error. As the mortgage was not registered, the defendants had no notice of its existence from the records. The bill alleges that the conveyance to Rue was made sub- ject to the mortgage; and as the defendants derive title through him, it may perhaps be that such a con- dition in the deed would operate as notice to them of the mortgage. But the deed was not produced in evidence, and there is nothing in the case to sustain this allegation. The only proof to establish the charge 303 of notice consists of the testimony of a single witness. That is not sufficient against the sworn statements of the answers. The allegation of notice is distinctly de- nied in the answers. That part of the answers is clearly responsive to the bill, and is evidence for the defendants. And it must prevail, unless the complain- ants sustained the charge of notice by two witnesses, or by one witness and strong corroborating circum- stances. Such is the well established rule of equity. The testimony of one witness is not sufficient to over- come the positive denial of a material allegation of a bill. The effect of the answer is only neutralized by the opposing testimony of a single witness. It [*495] is but oath against *oath. Further testimony is necessary to incline the scale, and give a pre- ponderance on the side of the complainant. The decree is reversed, and the cause is remanded. Decree reversed. WALLWORK V. DERBY, 40 111. 527. (1866.) Me. Justice Breese delivered the opinion of the court. This record presents but one point which we deem worthy of consideration. Two separate tracts of land, particularly described by their government numbers, were conveyed by Road- night and wife to Monroe, in trust, to sell, in the event that certain notes Roadnight had executed to Derby were not paid. The lands were again sold by Road- night to the complainant, Wallwork, described as in the deed to Monroe, subject to this deed. In the deed to Monroe is this clause: "And also to sell said premises entire, without divi- sion or in parcels, as the said party of the second part (Monroe) may think best." Under the power to sell, contained in the deed with this clause in it, one note for $1,800, remaining due 304 to Derby, and unpaid, Monroe, the trustee, at Derby's request, advertised the land, as described in the deed, to be sold at public auction. At this sale it appears in the recitals of Monroe's deed that Derby "bid for the tract first hereinafter named, the sum of $1,600. ' ' The tract first thereinafter named in the deed is the east half of the S. E. 32, town 42, N. range 11, east of the tliird principal meridian. This is the tract Derby bid off, but the trustee conveyed to him in addition the other tract, viz. : All that portion of the east half of N. E. of 32, lying south of the railroad, as it crossed that section on the 10th day of July, 1862, con- taining 100 21/100 acres, more or less. The theory of appellees is that the two tracts were but one parcel of land, and constituted a farm, on which there were no division fences, or visible divid- ing lines, and that a bid for one of the tracts covered the other of necessity. That both together made up "the premises," which the trustee advertised, and in- tended to and did sell. This does not appear from any of the deeds. They all describe two distinct parcels of land, containing in the aggregate 120 20/100 acres. They were "the prem- ises" authorized to be sold, with no recital that they made a farm, or were united for any practical pur- pose. No information by the deed or by the advertise- ment of sale by the trustee, that they were any other than two separate but adjoining tracts of land, con- taining together a certain number of acres. Nor does it appear that any notice was given that they would be sold together as a farm. What, then, did Derby buy? Can it be said he bought anything more than he bid for? Bidding for the first described tract, and being the highest bidder, entitled him, possibly, to a deed for that tract, but what right did it confer upon the trustee to throw in the other tract gratuitously? Derby did not bid on that, nor did he bid on the premises taken as a whole, but he bid for the first described tract only. The last described tract was not offered for sale. AVe are at a loss to perceive the right of the trustee to convey to 305 him both tracts when he only purchased one. "VVe think the trustee has not, in this, executed the power. He could sell the property entire or in parcels. His deed should show how he sold it. By reference to that, it appears he offered the premises as an entirety, and Derby bid for one tract composing a portion of the premises, and received a deed for the whole premises. Counsel for appellees say the deed was written on an ordinary printed blank form, and the blanks filled up as circumstances required, and that in the printed part of the recitals contained in this deed, and before the premises, occur the terms to which we have ad- verted, "and bid for the tract first hereinafter named the sum of," etc. Is not the printed part of a deed as much a part of the deed as the written portion, and is not a party as strongly bound by the printed as by the written parts? After this recital comes the granting clause, by which there is granted to Derby, on his bid for one tract, all those certain tracts, pieces or parcels of land situated, etc., and described as follows, to-wit : The east half of the southeast quarter of section 32, town 42 N. range 11 west; and also that portion of the east half of N. E. 32 lying south, etc. Had bid- ders been apprised by the notice that the purchaser of one tract would be entitled to both tracts, and that they formed but one parcel, bidding would, doubtless, have been more spirited, but no such fact was noti- fied to the public, nor does the trust-deed, in any part of it, state that those tracts of land constituted but one parcel, occupied as a farm. Had the notice of sale so stated, and the deed of the trustee recited the fact, that the tracts were offered for sale as one parcel, a sale under the general description of prem- ises would, perhaps, have included both tracts. It is said by appellees that it was a mere blunder of the scrivener who drew the deed that the obnoxious word, "first," was not stricken out, and that no equities on the part of appellant could grow up out of such a blunder, and that the assumption of appellant that he has such an equity is a very extraordinary assump- 306 tion in the face of the deed itself, the sworn and un- contradicted answers of the defendants, and proofs in the case. Again, appellees say that, upon the face of the deed itself, it plainly appears Monroe sold, and Derby purchased the entire premises therein described, and not a part. And to substantiate this, they propose to leave out of view their sworn and uncontradicted statements in their answers, and consider only the proper construction to be placed on those deeds. Again, they say, "thus far we have been consider- ing the case upon the hypothesis that the deed itself was the only evidence in the case of the intention of the parties thereto. But, when we take one step fur- ther, and glance into the record, we there find that the bill is not only filled with foul charges, but wishing to purge the conscience of the defendants, asks for a discovery under oath, and this the defendants have fully and fairly given, making plain, beyond a doubt or question, that which might otherwise be considered as debatable." Again, they say, under the same head of argument: "Here, then, in addition to the deed itself, are the an- swers of these two defendants called for and given under oath, directly responsive to the bill, uncontradicted and uncontradictable, asserting, not merely as a matter of opinion, but proving absolutely, as a matter of fact, that the trustee oif ered for sale and sold, and the defendant Derby purchased and paid for, the entire lands de- scribed in the deed." And, in support of this, they refer to the old rule of chancery practice, tliat, where an answer, thus called for under oath, is responsive to the bill, it shall be taken as true, unless disproved by two witnesses, or by one witness and pregnant circum- stances to overthrow and disprove it. And, on the point of tender alleged by complainant, appellees say : ' ' Derby, in his answer under oath, says, etc." And, again: "Here, then, we have the sworn answers of both defendants, denying positively and unequivocally these statements in the bill." We have made these quotations from the printed argument of appellees for the purpose of making some 307 strictures thereon, which they seem to require. We cannot believe it was the hope or design of appellees to impose upon the court, by attempting to pass their answers upon the court as having the character they have given them, and exalting what is mere pleading to the dignity of evidence, and alleging that such an- swers were called for by complainant in his bill. We must believe, out of the high respect we entertain for the counsel of appellees, that their treatment of these answers, as answers under oath, and as such, called for by complainant, has arisen from inadvertence, with no design to mislead the court, or to derive an advan- tage to which the law does not entitle them; at the same time we cannot but express our surprise they should have so regarded the bill, and put in sworn answers, when, in the bill, are found these statements : ''That they, and each of them, be required to answer all and singular the matters and allegations herein- before set forth, according to the rules and practice of this honorable court, without ofith, an ansiver under oath being hereby expressly waived." It is, as we have had occasion heretofore to remark, bad practice to put in sworn answers to a bill wherein the oath of the defendant is expressly waived, and have rebuked counsel for so doing. But they derive no advantage from it, and can derive none, for the court will certainly find out the true nature of the pleadings, and never suffer what is but pleading — the mere declarations of a party — to assume the char- acter of evidence, to be overcome by countervailing testimony. These various allegations, then, in the defendant's answers are in no sense evidence; they are mere alle- gations of pleading, and avail nothing as evidence for the parties making them. Disregarding the answers, the case must rest on the naked deed from the trustee to Derby, and this most unmistakably recites a bid of $1,600, $200 less than the amount due on the land, for the first named tract, under which bid the trustee conveyed to Derby both tracts. This we conceive was such misconduct 308 on the part of the trustee as to compel the setting aside the sale. We say nothing on the point of in- adequacy of price — that of itself might not be suffi- cient ground for our interference. Our objection rests on the simple fact that the trustee has conveyed a tract of land he did not sell; we agree to the rule, so strenuously urged upon our attention, that the in- tention of parties to a deed must prevail, but that intention must be gathered from the words of the deed and surrounding circumstances. The words in this deed are express and unambiguous, and no circum- stance attending the sale invites us to construe the deed differently from what we have done. The decree is reversed, and the cause remanded for further pro- ceedings consistent with this opinion. Decree reversed. ATKINSON V. CHICAGO TIRE & SPRING WORKS BT AL. 138 111. 187. (1891.) Baker, J. In a suit in equity brought by the Linden Steel Company, Limited, against the Chicago Tire & Spring Works and others, a cross-bill was exhibited by Frederick M. Atkinson, the appellant, and a certain other cross-bill was exhibited by Charles H. Ferry, one of the appellees. The cause was heard on the 20th day of February, 1889, upon said cross-bill, and upon the amended cross-bill and supplemental cross-bill of Atkinson, and the amended cross-bill of Ferry, and the answers and replications ; and a decree was en- tered dismissing the cross-bill, and the amended and supplemental cross-bills, of Atkinson for want of equity; and the finding that "the agreement referred to in said Ferrj^'s amended cross-bill, and made a part thereof, as Exhibit A, was executed by said At- /kinson and said Charles H. Ferry, and that the same is an existing and valid agreement, and not void by reason of public policy, or for any other reason; and that said Ferry is entitled to vote the said 500 shares 309 of said stock of the Chicago Tire & Spring Works be- longing to Atkinson, and held by said Ferry under said agreement, until said $15,000, with interest thereon at the rate of eight per cent, per annum, shall have been repaid to said Ferry, as provided in said agreement." And the court "further ordered, ad- judged, and decreed that said Charles H. Ferry is entitled to vote upon the 500 shares of the stock of said Atkinson held by said Ferry, and standing in his name on the books of said Chicago Tire & Spring Works under said agreement of September 10, 1881, between said Ferry and said Atkinson, until said sum of $15,000, with interest at the rate of eight per cent, per annum, shall have been repaid to said Ferry in pursuance of said agreement." The only grounds urged for a reversal of the decree rendered upon the cross-bills are that there is no evidence in the record showing that the contract upon which the decree is predicated was ever introduced in evidence, and that said decree does not state that any evidence was heard in support thereof. We find in the record a certificate of the evidence which was heard by the court on the 17th day of February, 1887, and more than two years before the final hearing in this cause, upon a motion for an injunction upon the cross-bill of Ferry, and a motion to dissolve the injunction theretofore granted upon the cross-bill of Atkinson. But said evidence consists of ex parte affidavits, which were read upon the submission of said motions, and it does not appear, either from the certificate or otherwise, that said affi- davits were either read or considered upon the final hearing. Ex parte affidavits produced on a motion to dissolve an injunction cannot be read as evidence on the final hearing, except by consent of parties, which should appear from the certificate of the judge who heard the cause. Bressler v. McCune, 56 111. 475. We may therefore consider said certificate of evidence as eliminated from the record. The decree appealed from is of a twofold character. In the first place, it dismisses the cross-bills of appel- lant for want of equity; and, in the second place, it 310 grants relief upon the cross-bills of Ferry. In respect to the decree upon the cross-bills of appellant, the case of Thomas v. Adams, 59 111. 223, is an authority in point. There the answers to the bill of complaint put its averments in issue, and the record contained no evidence, and the decree failed to recite that the hearing was upon evidence, and the action of the court below dismissing the bill was sustained. This court in that case said: "If, on the evidence before the chancellor, complainant believed the decree was er- roneous, he should have had it embodied in a certifi- cate signed by the judge who tried the case. We must, in the absence of proof presume that the court below decided correctly in dismissing the bill. Nor was it the duty of the defendants to preserve complainant's evidence. It may be that proof was heard on the trial, but it does not appear in the transcript. We fail to find any error in the record, and the decree of the court below is affirmed." In respect to the decree in the cross-cause of Ferry, it is recited therein that, said cause "coming on for final hearing, the court finds, ' ' etc. ; setting forth the facts as hereinbefore quoted from the decree. There is no recital that the hearing was upon evidence or upon proofs. The statement in the transcript is simply that the court "finds" certain specified facts, and those facts are such as would authorize the decree that was rendered. If evidence was necessary to justify the findings inserted in the decree, ought it to be pre- sumed, in favor of the validity of the action of the trial court, that it did hear evidence? There can be no question of the rule in this state that in all chancery causes either the evidence to support the decree must appear in the record, in some mode or other, or else the facts upon which the decree is based must be found by the court. In Jones v. Neely, 72 111. 449, it was recited in the decree that the same was tried on bill, answer, and proofs, and that a special master was appointed to reduce the testimony to writing, as heard in open court. In these respects that case differs from this. In that case this court used the following Ian- 311 guage : ' ' It is said the recital in the decree that it ap- pearing to the court so and so, is not a recital that the matters therein stated were found by the court upon the evidence in the case. This is construing the language of the decree with unwarrantable strictness, and presuming against instead of in favor of the cor- rect action of a court. Courts act in view of testi- mony, and we cannot and ought not to presume that anything appeared to the court and the trial of the cause, except what appeared from the testimony." So, in the decree at bar appears the recital that the court "finds" so and so. The court could not "find" the facts therein stated, without it did so either from admissions in the pleadings, or from the stipulations of the parties or from the evidence. In the absence of anything to the contrary in the record, this court should presume, if necessary in order to sustain the "findings," that the court did hear evidence. But, even, if the rule were otherwise, yet we think that the admissions in the pleadings in the cause sufficiently support the decree. The principal point made by ap- pellant seems to be that it does not appear that the contract of September 10, 1881, upon which the decree is predicated, was introduced in evidence. Under the circumstances of the particular case, it was not in- cumbent upon Ferry to offer the written agreement of that date in evidence. In no case, either at law or in chancery, is a party required to prove facts, alleged in his pleadings, which are admitted by the pleadings of the opposite party. Pankey v. Raum, 51 111. 88. Here the existence, execution, and contents of the agreement of September 10, 1881, fully apears in the pleadings of both parties. Said written agreement is set out as an exhibit to Ferry's cross-bill, and is also set out and made an exhibit to the cross-bill of appel- lant; and by his answer filed on February 17, 1887, to the amended cross-bill of Ferry, appellant expressly admits that Ferry and he "entered into" said agree- ment; and in said answer he, for greater certainty, makes reference to the copy of said agreement which is attached to his (appellant's) original cross-bill. It 312 was unimportant, under the circumstances, that the execution of said agreement was not proven at the trial, and that the contract was not formally intro- duced in evidence. The claims set up by appellant in his pleadings were in regard to the legal construction of said agreement, and that said agreement was ' ' con- trary to public policy, and that Ferry should not be allowed to take advantage of its terms." The only facts, other than the execution, existence, and con- tents of the contract, which were involved in the find- ings made by the court or in the decree based thereon were that Ferry purchased 600 shares of stock in the tyre and spring works for $15,000; that appellant transferred to Ferry 500 shares of the 605 shares of his (appellant's) stock mentioned in said agreement; and that the $15,000, with interest at 8 per cent., had not been repaid to Ferry, as provided for in the agree- ment. The answer of appellant to the cross-bill of Ferry admitted the purchase by Ferry of the 600 shares of stock, and that appellant had delivered to Ferry a certificate for 500 other shares of his stock; and the cross-bill of appellant admitted the purchase by Ferry of the 600 shares of stock for $15,000; and the supplemental bill of appellant asked that Ferry "return and assign to your orator [appellant] the said 500 shares of stock in his possession, and claimed by him under said agreement." By the terms of the agreement. Ferry was to have the right to vote the 605 shares mentioned therein, and only 500 shares of which were in fact transferred to him, imtil the $15,000, with interest at 8 per cent., should be re- paid. The repayment of the $15,000 would not be presumed, and such repajonent would be an affirma- tive fact to be established by api^ellant. But, waiv- ing this, it already appears from the admissions in ap- pellant's answer to Ferry's cross-bill, and from the admissions in appellant's cross-bill, that said $15,000 has not been repaid, either by dividends upon stock or by sales of the 600 shares of stock or otherwise, and that Ferry is still the owner of said 600 shares. It may be, as is suggested by appellant in his reply brief, 313 that he in his pleadings denied the right of Ferry to vote the stock in question; contested his right to have any further stock issued; denied and challenged the validity of the contract on the ground of public policy ; averred that he was the absolute owner of the stock, and that he alone had the right to vote the same; de- nied that Ferry had any right to the repajTuent of the $15,000; and asserted that the same was a part pay- ment on stock, and was to be used in and about the business of the tyre and spring works, and was not to be repaid to Ferry. But all these claims of appel- lant are matters which involve only the legal validity of, and the construction to be placed upon, the writ- ten contract, and indicate clearly that the contentions of appellant in the trial court were in respect to mat- ters of law, and admitted the facts upon which the de- cree of the Supreme Court was based. We find no substantial error in the record. The judgment of the Appellate Court is affirmed. LOUGHBRIDGE v. NORTHWESTERN INS. CO. 180 111. 267. (1899.) Wilkin, J. Appellee filed its bill in the Circuit Court of Cook county to foreclose a real estate mort- gage alleged to have been execiited by C. E. and Gay Dorn to secure an indebtedness due it of $20,000, evi- denced by their certain l)ond ;tlie bond and mortgage being made exhibits to the bill. Though not shown by the abstract (which is very imperfect), it is admitted the bill alleged that, subsequently to the recording of the mortgage, the mortgagors conveyed the prem- ises to the appellant, and that they claimed an interest in the premises. A decree was entered in favor of complainant for the amount claimed in the bill, and this appellant appealed first to the Appellate Court, where the decree below was affirmed, and now prose- cutes this appeal. The bill alleges that $2,000 of the secured indebted- 314 ness was twice extended; that for a default in the jDayment of a part of that indebtedness the complain- ant, on April 14, 1897, declared the whole amount of said loan due and unpaid, and that there was at that time due $19,700, with interest from November 1, 1896, at 6 per cent, per annum; that by reason of the failure of the mortgagors and persons interested to pay taxes on the mortgaged premises, complainant, on April 26, 1897, advanced $253.92; that on May 7, 1897, it paid $250 for such insurance premiums, which sums, with 6 per cent, interest, should be added to the principal amount due, that it became necessary to procure a continuation of abstracts of title, and to incur further expenses in continuing abstracts, the amounts for which were also claimed. To the bill appellant filed his answer, in which he admits that he purchased the premises, as alleged, "and assumed and agreed to pay, as a part consideration therefor, all liens and incumbrances thereon, * * * and is now the legal owner of said premises, and admits that his interest in said premises is subject to the lien of complainant's said mortgage; * * * that both G. Dorn and C. E. Dorn are, with this affiant, personally liable to pay to complainant its said claim, amounting to $19,700, and interest and costs . * * * that this defendant stands ready and willing to pay the entire amount of said mortgage and interest to date." Other allega- tions of the bill are neither admitted nor denied, but full proof is required. It was provided in the mort- gage that the mortgagors should keep the premises in- sured for $20,000, and pay the taxes annually, and de- liver to complainant, on or before May 1st, yearly, duplicate receipts for such payments, and that, in case of failure to make such insurance or to pay such taxes, the mortgagee might insure the premises and pay the taxes, the amounts so paid, with interest and expenses, to be added to the principal; that, in default of any of the covenants in the mortgage, the mortgagee might declare the whole amount due, and foreclose for the same. It is also agreed in the mortgage that, in case of foreclosure, the Dorns should pay for continuing 315 abstracts of title for the purpose of foreclosing, and reasonable solicitor's fees. The only grounds of re- versal here urged are : First, that there is a variance between the allegations of the bill, proof, and the de- cree ; second, that the court erred in entering the decree for the tax payment of $253.92 and interest thereon, and also for insurance paid, $250, and interest thereon, and also for the $48 and $7 for continuation of abstract. On the first point a long list of authorities is cited as sustaining the proposition that, in a chancery proceed- ing, the bill, testimony, and decree must correspond, and that the decree cannot go beyond these ; that where the answer discloses other grounds of relief, the com- plainant, to avail of such relief, must amend his bill. Generally speaking, no one will deny this proposition ; but the argument of counsel fails to show wherein there has been a substantial violation of the rule. It is said there is no proof whatever of the alleged ex- tension upon the $2,000 indebtedness. As shown, the bill, after that allegation, states that the whole amount due upon the mortgage was $19,700, and that allega- tion is expressly admitted by the answer. Where a fact is alleged in a bill and admitted in the answer, the admission is conclusive, and evidence to establish it is wholly unnecessary. Neither can evidence be heard to dispute it. Insurance Co. v. Myer, 93 111. 271, and authorities cited. It is wholly immaterial whether the answer making the admission be sworn to or not. Daub v. Englebach, 109 111. 267. In view of this allegation and admission by the answer, whether there was an extension of the $2,000 is wholly imma- terial. The first contention on the second point is that the appellant had until May 1, 1897, to pay the tax allowed by the decree, and that, inasmuch as complainant paid it before that time (April 28th), it could not recover. This position is based upon an assumption in direct .conflict with § 177 of chap. 120 of the Revised Statutes, which provides that ''all real estate upon which taxes remain due and unpaid on the lOtli day of March annually, * * * shall be deemed delin- 316 quent." As to money paid for insurance and for ex- tension of the abstract of title, we deem it only neces- sary to say that the payments were provided for by the mortgage and proven by the evidence Other grounds of reversal seem to have been urged in the Appellate Court, but are not insisted upon here, and, if they were, could not be sustained. There is no substantial error in this record. The cause was properly disposed of by the Appellate Court, and its judgment will be affirmed. Judgment affirmed. MAKER V. BULL, 39 111. 531. (1864.) Mr. Justice Beckwith delivered the opinion of the court. The appellee's testator filed a bill in equity against the appellant and Edward Kelly to dissolve a co-part- nership between them, and wind up its affairs. A joint and several answer under oath was filed by the de- fendants, to which there was a replication. The de- fendants filed a cross-bill, alleging a violation of the articles of co-partnership by the complainant, from which they had sustained damages, and praying for their allowance. An answer was filed to the cross- bill, to which there was also a replication. Subse- quently the appellant made an application to file a further answer, which was granted, and, as the record states, subject to objection and to such disposition as the court might make of it at the final hearing. The final decree directs the further answer of the appel- lant to be stricken from the files, and we presume that this was done for the reason that the court was of the opinion that he was not entitled to rehef from the admissions of his former answer. Where an an- swer is not under oath, and a further answer is neces- sary to present a defendant's case, it is always allowed upon application made in apt time, so that the com- 317 plainant is not surprised or delayed in the progress of the cause, nor injustice is done him thereby. The original answer, until it is otherwise ordered, always remains a part of the record, and, while it so remains, the defendant is bound by its admissions, and a retraction of them in a supplemental answer is of no more use than so much waste paper. The court never allows its records to be incumbered with useless papers. If an admission has been made in an answer improvi- dently and by mistake, the court will relieve the party making it from its effect, by an order directing so much of the answer as contains the admission to be treated as no part of the record, but, before such an order will be made, the court must be satisfied by affidavit that the admission was made under a misapprehension or by mistake. Courts exercise a liberal discretion in relieving from the effect of admissions in answers not under oath, which are mere pleadings and are fre- quently signed by counsel; but where an answer is under oath great caution is observed. If the relief sought is from an admission of law it may be suffi- cient to show that he was erroneously advised by his solicitor in that regard; but where the relief sought is from an admission of fact it should be shown that the answer was drawn with care and attention, stating upon information and belief such facts as were not within the defendant's own knowledge. No court ought to relieve a party from the consequences of a reckless misstatement under oath. It should also be shown that the fact misstated was not one within the defendant's own knowledge, and that he was erro- neously informed in regard to it, and made oath to the answer, honestly believing such erroneous in- formation. The affidavit of the appellant was entirely insufficient to relieve him from the effect of admissions in his original answer, and his application to file a supplemental answer for that purpose was properly denied. An order was made, during the progress of the cause, requiring the defendants to close their proofs by a day named, which was afterward enlarged, upon their 318 motion. At the hearing the appellant offered to sus- tain the allegations of his answer and cross-bill by the testimony of witnesses to be examined in open court; but he was not allowed to examine them, because the rule for closing proofs had expired. Under the act of February 12, 1849, parties have the right to sus- tain every material allegation of their pleadings by an examination of witnesses in open court, and no order can be made abridging the rights of parties under it, or requiring them to waive or forego the rights thus secured to them. The proper practice is to set the cause for a hearing, and if afterward justice or convenience require further delay the hearing may be postponed, from time to time, until the court, in its discretion, directs the parties to proceed therein. Every reasonable indulgence should be granted to parties to enable them to procure their testimony ; and, after it has been done, if they are not prepared at the hearing, they should justly suffer the consequences of their own neglect. It was suggested, in argument, that the testimony offered by the appellant was only cumu- lative. If it so appeared by the record, and the testi- mony had been excluded for that reason, the case would merit a different consideration. According to the record, the parties were not heard, as they were entitled to be; and, without any examination of the merits of the case, the decree of the court below will be reversed, and the cause remanded for further pro- ceedings. Decree reversed. DERBY V. GAGE, 38 111. 27. Mr. Justice Laweence delivered the opinion of the court . This was a bill in chancery, filed by the appellees against the appellants for the settlement of a part- nership account. The case was heard on bill and an- swer, and the court decreed the defendant, Derby, to 319 pay the complainants, Gage and Tucker, $5,500, the sum originally invested by them. The bill alleges a partnership, for the purpose of buying cotton, to have been formed between the com- plainants, the defendant Derby, and several other per- sons, to which various sums were contributed by the different parties. From the answer it appears that the entire capital and business were under the control of the defendant Derby — that the venture for the pur- chase of cotton resulted in no profits, but in saving about the capital invested — that two of the partners then retired and others were received into the con- cern — that the complainants allowed their $5,500 [*29] to remain, and that the capital and business re- mained as before, under the control of Derby. He took a boat load of goods to Vicksburg, with a view of selling them and buying cotton. He says in his answer that he sold the greater part of the goods, but was not permitted to buy cotton, and returned with the unsold goods, which are now stored in Chi- cago. He admits that he has paid two of the partners the amount invested by them, thinking there would be no loss, but he thinks nothing will be made, and that if he charges his expenses, which he claims the right to do, there will be a loss of about $400. He says, however, he is willing to pay the complainants the amount invested by them, if they will allow him $2,480, which he claims to be due from them to him on a transaction not having the most remote connec- tion with this partnership. We are inclined to the opinion, judging from the general spirit and character of this answer, that no great injustice has been done by this decree. At the same time we cannot affirm it without disregarding the settled rules of chancery practice, which the ap- pellant has a right to and does invoke. The decree proceeds on the ground, and indeed recites, that Derby admits the possession of $5,500 belonging equitably to complainants. This is an error. He says the goods are not all sold, though he admits the greater part of them are, and says the residue are still in store 320 at Chicago. There is nowhere in his answer an admis- sion that he has in his hands either $5,500, or any other specific sum, belonging to complainants. The answer is evasive, and the complainants should havo excepted to it and compelled a specific statement o^' the amount of goods sold and unsold, or have filed a replication, and taken proof on these points. But the case having been heard on bill and answer, the latter must be taken as true, and all that it contains in support of complainants ' case is the admission that the defendant has sold the larger part of the goods. This is altogether too indefinite to form the basis of a decree. The fact that he has paid two of the part- ners their capital invested must be taken with [*30] the explanation given in the answer, that he did so under the belief that on the sale of the un- sold goods there would be no loss. This, however, does not bind him to anticipate the sale of the goods in settling with the other partners. The claim of set-off, made in the answer, is inad- missible. It could, in any event, only be heard upon a cross-bill, and a cross-bill should not be permitted to be filed for that purpose unless it is shown to the court by affidavit that the complainants are in such pecuniary circumstances that the alleged claim is likely to be lost unless allowed to be set off. As already stated, the claim has not the slightest connection with the subject-matter of this suit, and is for unliquidated damages. The complainants will have leave to except to the answer, or to file a replication and take proof. If, however, all the facts stated in the answer are true, it would appear that there are partners who have not been made parties to the bill, in which event the com- plainants must amend. It is evident from the answer that there is some sum coming to complainants from the defendant Derby, and when this sum is ascertained, the court will give a decree for the amount and for interest upon it from the time when complainants de- manded payment. Decree reversed. 321 SCHNADT V. DAVIS, 185 111. 476. (1900.) Mb. Justice Boggs delivered the opinion of the court. Section 39 of chapter 22 of the Revised Statutes, en- titled ''Chancery," provides a cause may be referred to the master in chancery to take and report the evi- dence with or without his conclusions thereupon. In the case at bar the cause was referred to the master to take the proof in the cause and report the same, together with his "opinion of the law and the evi- dence," It was the duty of the master, under this order of reference, to cause the witnesses to be brought before him and examined, to have their testimony re- duced to writing and to embody such testimony in his report, together with his conclusions as to the facts established by the testimony and his opinion as to the rights of the parties under the law applicable to that state of facts. ''The document exhibiting the referee's or master's findings and conclusions is called his re- 13ort, the object of which is to show the proceedings which have been had under the order of reference, the evidence which has been taken, and the findings and conclusions reached by the master or referee, accord- ing to the terms of the order of reference, in such a manner that intelligent action may be had thereon by the court." (17 Ency. of PI. «& Pr. 1033.) In Hayes V. Hammond, 162 HI. 133, we said (p. 135): "In the absence of any statute the master did not report the evidence to the court, and it was necessary for the parties to apply to him for certified copies of such evidence as they might require, relating to matters excepted to; but by our statute the whole of the evi- dence is reported to the court, and the parties may select from it such portions as are relevant to the ex- ceptions and present them to the court." In Ronan V. Bluhm, 173 HI. 277, we said (p. 284): "The cause having been referred to the master to take and report the proofs and his conclusions on points of law and 322 fact, the proofs taken by the master should have been submitted with his report." The master to whom this case was referred holds his office by virtue of appointment thereto under the provisions of section 1 of chapter 90 of the Revised Statutes, entitled "Masters in Chancery." Section 9 of said chapter 90 reads as follows : ' ' Masters in chan- cery shall receive for their services such compensation as shall be allowed by law, to be taxed as other costs." Section 20 of chapter 53 of our statutes, entitled "Fees and Salaries" (Kurd's Stat. 1897, p. 830), fixes the compensation to be allowed to be charged and col- lected by masters for their services. Said section 20, so far as it relates to services rendered by the master in this instance, is as follows: "Masters in Chancery. — Sec. 20. — Fees of. * * * For taking depositions and certifying, for every one hundred words, fifteen cents. For taking and report- ing testimony under order of court, the same fees as for taking depositions. * * * Yoy examining ques- tions of law and fact in issue by the pleadings, and reporting conclusions, whenever specially ordered by the court, a sum not exceeding ten dollars. * * * And no other fee or allowance whatever shall be made for services by masters in chancery. In counties of the third class, masters in chancery may receive for exam- ining questions in issue referred to them, and reporting conclusions thereon, such compensation as the court may deem just, and for services not enumerated above in this section, and which have been and may be im- posed by statute or special order, they may receive such fee as the court may allow." The fees which masters are entitled to charge for official sei*vices in the matter of taking and reporting the evidence are enumerated in section 20. The con- cluding portion of the section, which relates to the fees of masters in the count}^ of Cook, that county being of the third class, changes the provision of the preceding portions of the section relating to the fees to be allowed for examining questions in issue referred to them and reporting conclusions, but in no respect affects the provisions fixing the fees for taking 323 and reporting testimon^^ The fees for taking and reporting testimony are the same in each of the coun- ties of the state, viz., fifteen cents per hundred words. Said section 20 expressly prohibits the allowance to masters of any fee or allowance not provided for in the section. The fees which an incumbent of the office of master in chancery may lawfully exact depend upon the terms of the statute, and the rule is that such stat- utes are to be strictly construed. (4 Am. & Eng. Ency. of Law, 314.) "Neither court, jury nor referees can award costs unless authorized by law, and where the rule is fixed by statute it must be followed strictly." (4 Am. & Eng. Ency. of Law, 315.) "It may be safely asserted as a legal proposition, that fees or costs can- not be allowed or recovered unless fixed by law. * * * A witness or officer of the law has no legal right to recover on a quantum meruit for services rendered under the requirements of the law. For such services he is limited to the fee or compensation fixed by the statute." Smith v. McLaughlin, 77 111. 596. If a master deems it desirable to have the services of a stenographer to enable him to perform the duty of taking or reporting the evidence, the services ren- dered by the stenographer are to the master, and the stenographer must look to the master — not the parties, or either of them — for his compensation. The compen- sation of the master fixed by the statute for taking and reporting testimony is fifteen cents per hundred words, and no more can be legally demanded of the parties, or either of them, for or on account of such services. Nor has the court power to order the pay- ment of a greater sum or allowance for such service, or to order the parties, or either of them, to pay any sum to a stenographer for assisting the master in taking and reporting the proof. If the court had been clothed with power to order the apx^ellants to procure a transcript of the evidence from the stenographer, there would be force in the contention the amount to be received by the stenographer should have been fixed in the order — that the appellants should not have been left wholly in the power of the stenographer as to 324 the amount to be paid. The sense of justice is not always strong enough to moderate and restrain the desire for gain. But the stenographer is not an officer of the court, had no legal connection with the court, the master or the case. The law has not fixed his compensation or authorized the court to do so, and the order in its entirety must be reversed. Counsel for appellee says : ' ' The practice before the master uniformly contemplates the reduction of the testimony to writing by a stenographer. The stenog- raphers do not work for nothing. When a party to litigation calls witnesses and examines them at length, with knowledge that their testimony is to be taken by the stenographer, he must expect that before a master can consider the evidence it shall be presented to him in writing. * * * The master cannot make up his report until the evidence is before him in writ- ten form." The duty of a master is to have the wit- ness brought before him and examined in his presence. The testimony of the witnesses is presented to the master orally, and is thus before him for considera- tion. His duty is to reduce it to writing, or have it so reduced to writing, and report it to the court. It would seem from the statements of counsel for appel- lee it has become the practice of masters in Cook county to commit the duty of hearing the witnesses testify to a stenographer — not in the presence and hearing of the master — and of requiring the parties to produce a transcript of the testimony so taken for the considera- tion of the master, in order he may thereby be informed as to what has been testified to, and consider and weigh the testimony as disclosed by the transcrii3t, and make his findings from such transcript and use such transcript for his report of the testimony, and that the practice further is to impose upon suitors the burden of compensating the stenographer for doing- work which it is the duty of the master to doj and for which the master also collects the full allowance author- ized by the statute to be paid for such service. If such practice has obtained it should no longer be tol- erated. When the order of reference requires no more 325 than that the master shall take and report the evi- dence, the evil of the practice is the illegal exaction of the sum of money demanded from suitors as for the compensation of the stenographer, which, if not sub- mitted to, shall, as counsel for appellee contends, be enforced by the denial of a hearing in the courts. But the practice is fraught with another and not less serious evil when indulged in a case where, as here, the order of reference requires the master shall also make report of his conclusions of law and fact. In order to discharge the duty of arriving at conclusions as to the facts, the master should see the witnesses and hear them testify. In 17 Eney. of PL & Pr. 1028, it is said : ' ' One of the most important duties and powers of the referee is to hear the parties and such evidence as may be presented bearing upon the issues involved." The order entered by the court, on motion of the appellee, that the master should not consider the testi- mony which had been taken before him in behalf of the appellants unless the appellants should procure and submit to the master a stenographer's transcript of the said testimony, should not have been entered, but the motion should have been denied. The action of the master in considering only the testimony of the appellee and forming his conclusions therefrom should not have been approved by the court, but the objections and exceptions in that respect presented to the report should have been sustained. It was the right of the master to demand compensation for taking and report- ing the proof at the statutory rate of fifteen cents per hundred words. For examining the questions of law and fact and reporting his conclusions thereon the master was entitled to such compensation as the court should deem just — that is, such amount as the court, upon consideration of such services, should judicially determine to be just and reasonable and should order to be paid. The master cannot arbitrarily fix upon an amount to be paid him as his compensation for examining questions of fact and reporting his con- clusions, but before he is entitled to demand the par- ties, or either of them, shall compensate him in any 326 sum for such services, it is his duty to have the court determine the amount he is justly entitled to receive for such services. In the determination of that ques- tion the parties are entitled to be heard. The hear- ing should be had after the master has considered the evidence, made his finding of law and fact and com- pleted his report, so that it is ready to be filed on payment of the amount the court finds should be paid for such services, for the reason an inspection of the report is necessary to enable the court to ascertain and determine as to the just compensation to be paid the master and by whom it shall be paid. The course is desirable for the further reason, before the master has acted he is, in a sense, clothed with power to declare judgTuent on the rights and interests of the parties, and their condition and relation to the master is such they should not then be required to accede to or con- test his demands for services to be rendered in the matter of deciding for or against them. The report in this case as to the fees and charges of the master is as follows: ''Master's fee this report, $50." This mode of reporting fees and charges can be easily made a cover for illegal and oppressive exactions. An item- ized statement of services rendered, and the fees al- lowed therefor by the statute, should be made, and if services are rendered for which the fees are not fixed by the statute, but are left to be determined by the chancellor, the report should state such service and the action of the court in the matter of the master's com- pensation therefor, and also should show whether such costs had been paid, and if paid, by whom. It is urged it does not appear from the record, other- wise than from the statements in the exceptions to the report of the master, that the witnesses named in such exceptions gave testimony before the master, or that the master did not consider all the testimony produced by the appellants on the hearing before the master. The court, on motion of the appellee, ordered that the appellants should, on or before a day named^ submit to the master a stenographer's transcript of the evi- dence taken on behalf of said appellants and that in 327 default of compliance with such order the master should make up and return his report upon the evi- dence appearing from transcripts of stenographer's notes submitted to him. This order clearly established that the testimony of witnesses produced by appellants had been heard and taken down in shorthand. The master's report contains no testimony taken on behalf of appellants. The certificate attached by the master to his report states, in express terms, the report con- tained all the evidence "submitted" to him and on which he acted, and that such evidence was that, only, which had been produced by and on behalf of appellee. That the master did not regard the testimony of wit- nesses taken under the order of reference, but not transcribed into longhand, as "submitted" and that he excluded such testimony from his report and from consideration, is too clear to admit of doubt or require discussion. It is urged that the exceptions to the action and re- port of the master should have been supported by a showing of the testimony on behalf of the appellants which the exceptions allege was erroneously excluded from the report. This testimony had been produced before the master. It was the duty of the master to have embraced it within his report as a proper part of the record of the cause. It was omitted from the report and excluded from consideration under author- ity of an order which the appellee procured to be im- properly entered. It was enough for the appellants to show that the master had thus omitted the testimony produced in their behalf. On such showing the report should have been disapproved and the master ordered to make report of the testimony produced before him. The judgment of the Appellate Court and the de- cree of the Circuit Court are each reversed^ and the cause will be remanded to the Circuit (^ourt, with directions to deny the motion entered by appellee to require the appellants to procure and submit to the master transcripts of the testimony produced before the master by the appellants, and to take such further 328 proceedings in the cause as to justice and equity shall appertain. Reversed and remanded, with directions. cox V. PIERCE, 120 111. 556. (1887.) ScHGLFiELD, J. A full statement of this case will be found in 22 111. App. 43, and we entirely concur in the conclusion there reached, and in all that is there said on the questions of fact. We deem it necessary to notice here only one ques- tion of law discussed in the arguments of counsel. The bill is for an account of partnership dealings. An- swer was filed putting in issue the material allegations of the bill, and to this there was filed a replication. The court afterwards referred the cause to the master in chancery to take the evidence and report it to the court, and thereafter the court further ordered that the master in chancery, "on concluding the taking of testimony, state the account between the said parties, and report the same, with the evidence taken by him, ' ' to the court. The master in chancery proceeded, in com- pliance with this order, to take the testimony, and state the account between the parties, and he prepared a report thereof, which he submitted to the respective parties. The present appellant filed exceptions to the report, which the master disallowed. The report, to- gether with the evidence taken, and appellant's excep- tions to the report, were then filed in the Circuit Court. By agreement of parties entered of record, the chan- cellor heard the case upon the report, exceptions, etc., and accompanying evidence in vacation, and then sus- tained the exceptions, and decreed that the cause be again referred to the master, and that he restate the account. In obedience to this order the master re- stated the account, and made a report thereof to the respective parties, and the appellant filed exceptions to this report also, but the master disallowed them. 329 This report, and the exceptions thereto, and the evi- dence taken, were afterwards filed in the Circuit Court, and appellant there renewed his exceptions to the master's report, but they were overruled by the court. And thereupon appellant, after identifying certain books as the account books of the firm, offered to read them in evidence, but the court refused to allow them to be so read. Appellant then offered to prove by oral evidence facts tending to show that the accounts, as stated by the master, was not correctly stated, but the court likewise refused to allow this proof to be made ; and thereupon decree was rendered, in conform- ity with the master's report, in favor of appellee. Prior to the act of February 12, 1849, (Scates, Comp. 166,) oral evidence was not heard in chancery cases, but all evidence was presented by depositions. That act, however, provided that, "on the trial of any suit in chancery, the evidence on the part of either plaint- iff or defendant may be given orally." And in Owens V. Ranstead, 22 111. 161, it was held that the court can- not deprive parties of their rights, under the statute, to introduce oral evidence, by a rule of court exclud- ing it unless ten days' previous notice of the intention to offer such evidence shall be given. And in Maher V. Bull, 39 111. 531, it was held that the court cannot by an order to close proofs by a particular time, pre- vent a party from giving oral evidence, under this statute, on the hearing. Neither case, however, it will be noticed, has any relevancy to a hearing before a master in chancery, and when they were decided there was no statutory provision authorizing a reference to a master in chancery. Since these cases were decided, our legislature, by an act approved March 15, 1872, (2 Gross, St. 1873, p. 35, § 39,) has enacted: "The court may, upon default or upon issue being joined, refer to the cause to a master in chancery, or special commissioners, to take and report evidence, with or without his conclusions thereupon." See, also, note at bottom of page 36, icL This section is reproduced liter- ally as section 39 of chapter 22, entitled "Chancery," in the Eevision of 1874. And the substance of the act 330 of February 12, 1849, is reproduced in that revision as section 38 of chapter 51, entitled "Evidence and Depositions," in these words: "On the trial of every suit in chancery, oral testimony shall be taken when desired by either party." These sections must, then, be construed as parts of a single system, and so as to give effect to both. We cannot suppose that the legislature intended to confer upon the Circuit Courts so useless a power as that of referring causes to mas- ters in chancery to take and report the evidence, to- gether with their conclusions thereon, when such evi- dence and report might be entirely disregarded by either party, and the court be required to again listen to all the evidence detailed orally by witnesses. The words "the evidence in the case" unquestionably mean all the evidence in the case; and the only pur- pose in allowing it to be referred to the master to take it and report it, with or without his conclusions therein, to the court, is to lighten, to that extent, the labors of the court. It must therefore have been intended that oral evidence, instead of depositions, shall be taken on the trial of every suit in chancery, when desired by either party; but when it is referred to the master to take and report the evidence in the case, and his conclusions thereon, all the evidence, whether in de- positions or documents, oi' to be detailed by the mouths of living witnesses, must be introduced before him; and when thus introduced, and afterwards properly reported by the master to the court, it is, in the lan- guage of section 38, c. 51, supra, "taken on the trial." And, on the assumpsit that this is the correct construc- tion of the sections, we held, in Prince v. Cutler, 69 111. 267, that, upon hearing exceptions to the master's report, it is not competent to hear any evidence that was not before the master when he made his report. See page 272. If the evidence offered was not ad- missible upon the question of confirming the report, it cannot be admissible to contradict it; for to allow it for that purpose would be only to do indirectly what is not allowed to be done directly. The ruling was right. The judgment of the Appel- late Court is affirmed. 531 BLAIR V. READING, 99 111. 600. (1881.) Me. Justice Mulkley delivered the opinion of the court. Quite a number of objections are urged against the propriety, regularity and legality of the decree in this case ; but it is claimed, as to most of them, the assign- ment of errors in the Appellate Court is not suffi- ciently broad to cover them. The tenth assignment of error in that court questions the justness and legal- ity of the record and proceedings in the Circuit Court generally, and we are of opinion it is sufficiently defi- nite to present for our consideration all the objections urged against the decree and proceedings in that court. As the decree will have to be reversed for errors mani- fest on the face of it, we do not deem it proper to enter upon a discussion of the evidence, or to express any opinion upon the merits of the controversy, so that upon a rehearing the efforts of the court and parties to arrive at a just and proper conclusion upon the real merits of the controversy may not be embarrassed by anything we may here say. The circumstances under which this case was tried, in our judgment, afford sufficient ground for remand- ing the cause for a rehearing, if there were no other reasons for doing so. After the issues were made up, and the cause was standing for a hearing upon the proofs already taken and reported by a special master, the parties mutually agreed that the cause might be heard by the judge at chambers in vacation. Now, it is very clear that the judge at such a hearing could exercise no judicial func- tion. He could not, therefore, make any order in the case which would be binding upon the parties, as a judicial act or otherwise, against their assent, which was not strictly in pursuance of their agreement, if at all. It therefore follows, the judge upon the hearing at chambers had no power to entertain an application 332 to dismiss complainant's bill as to Reading, and a for- tiori had no power or authority to require Blair to answer Reading's cross-bill, or to pass upon the suffi- ciency of the answer which he had filed under protest ; and least of all had he any authority to pronounce a decree pro confesso against Blair, on his failure to further answer said cross-bill, in obedience to a rule to answer instanter, which he had no power to enter. It is a fundamental principle that courts can exer- cise judicial functions only at such times and places as are fixed by law, and that the judges of courts can enter no orders in vacation, except such as are ex- pressly authorized by statute. The legislature has pro- vided that the judges of circuit courts and the Superior Court of Cook county may, upon due notice, entertain motions in vacation to dissolve injunctions, permit amendments of pleadings, etc., and they may also enter judgments in causes which have been taken under advisement; but these provisions have no appli- cation to the case in hand. The agreement to a hearing in vacation was volun- tary, and could not, in any view, become binding upon the parties, except so far as it was executed with their assent, and in strict conformity with its terms. Whether, if the judge had heard the cause upon the evidence and pleadings as they stood at the time the agreement was entered into, and the parties had ap- peared and participated in the hearing without ob- jection, and a decree had subsequently been entered up in term time, in pursuance of such hearing, the parties under such circumstances would be estopped from questioning the regularity of the proceedings, is a question which is not presented by this record, and about which we do not feel called upon to express any opinion. Whatever might be the rule in such a case as that, cannot affect the result in this case. The parties, in entering into the agreement in question, must be presumed to have known that the judge, in vacation, would be powerless to enter any orders which would in any manner change the status of the case, and that no such power could be conferred upon him by the mere agreement of the parties. 333 It is, therefore, but reasonable to assume that the parties, by entering into this agreement, intended to bind themselves to nothing further than that the ease should be heard by the judge at the time and place specified, upon the issues as then made up, and such evidence as had already been taken and might be pro- duced at the hearing, and that the conclusion reached by the judge upon such hearing might subsequently be entered by the court as the decree in the cause, subject to such exceptions as the parties might see proper to make to the same. But the judge who pre- sided at the hearing seems to have taken a different view of the matter. He clearly acted upon the legal hypothesis that he was clothed with judicial powers to the same extent as if court had been in session. This, as we have already seen, was a misapprehen- sion of the law. Indeed, it is conceded by counsel on both sides, that all orders made by the judge at the hearing were without any authority of law, and there- fore void, and upon this very ground the decree is sought to be justified by defendants in error. It is argued that inasmuch as all the proceedings before the judge in vacation were unauthorized and void, this court must disregard them altogether, just as though they had never taken j^lace, and look only to the de- cree as finally entered by the court. While this posi- tion at first view may seem plausible, yet there are several fatal objections to it. In the first place, it appears, from the recitals of the decree itself, that it is based upon the hearing in vacation, and not upon any trial or hearing in court, and if that hearing is to be disregarded altogether, then the decree was simply entered up without any hearing at all, for it is manifest there never was any other hearing except the one in vacation, and to render a decree without any hearing or submission at all would clearly be error. Again, the decree further shows that the hearing was had upon, among other things, the cross-bill of Reading, to which no answer was filed by Blair except the one in vacation : and as no rule to answer was ever 334 entered against him, except that which was entered in vacation, it follows, upon the theory assumed, that the decree upon the Reading cross-bill was rendered, in contemplation of law, without any answer, or even a rule to answer, for the record shows no other rule except that in vacation was ever entered against him requiring an answer, and to enter a decree on a cross- bill without either an answer or rule to answer, would clearly be error. Assuming, then, that the proceedings before the judge were irregular and iuvalid, it follows that any decree founded upon them would of neces- sity be erroneous. While we regard the orders of the judge, with respect to the cross-bill and answer thereto, as without authority, and therefore void, yet it does not follow that the cross-bill and answer, when filed in court in the cause, were also void. When properly entitled and filed they became pleadings in the cause, notwithstanding error may have intervened in the man- ner in which they became a part of the files. Let it, therefore, be admitted that while the orders of the judge in vacation are to be regarded as mere nullities, yet as the cross-bill of Reading, and answer thereto, were filed before the decree was entered, they became upon such filing proper pleadings in the cause, and the court, in rendering its decree, had the right to act upon them, although the answer was filed under pro- test and in obedience to a rule which the judge had no power to make. Still, we are of opinion the decree upon the Reading cross-bill is erroneous; for in that view of the case it would have been the duty of the court, on discovering the cross-bill and answer on file, to have set the case down for a hearing, at least as to the cross-bill, which was not done. Moreover, as- suming this view of the law to be correct, it would follow, if Blair had the right, under the law, to dis- miss his bill as to Reading at the time of his applica- tion to do so, his written motion filed for that purpose having been made the day before the filing of the cross- bill, had the effect of defeating altogether the right to file the cross-bill. The motion to dismiss being first in time, had precedence of the motion to file the cross- 335 bill, and should have been disposed of first, according to the rights of the parties as they appeared when the motion was made. It is laid down in Daniell's Chancery Practice, with- out any modification, that a complainant has the right, at any time before hearing, to dismiss his bill at his own costs, either as to a part or all of the defendants, and this, in the absence of any statutory provisions on the subject, is unquestionably the correct rule. 2 Daniell's Ch. P. 927; Dixon v. Parks, 1 Ves. Jr. 402; Curtice v. Lloyd, 4 Mylne & Craig, 194. Our statute, however, has provided, that "no com- plainant shall be allowed to dismiss his bill after a cross-bill has been filed, without the consent of the defendant," and it is claimed by defendants in error, that inasmuch as Ray had filed a cross-bill before Blair's application to dismiss as to Reading, the lat- ter, who had filed none at that time, can avail him- self of the fact that Ray had, in order to defeat Blair's right to dismiss as to Reading. The manifest object of the legislature in adopting this provision was to enable any defendant in chan- cery who might have some equitable right or cause of action against the complainant, growing out of and connected with the matters set up in the complainant 's bill, to have all matters of difference connected with the subject matter of litigation fully and finally dis- posed of at the same time, or at least in the same suit. It certainly could not have been intended, where the parties are numerous and the plaintiff dis- covers he has improperly joined some of them in the bill, to deprive him of the right of dismissing as to them, merely because one or more of the others have filed a cross-bill, in which the unnecessary parties have not joined or deemed the matter in controversy of suffici- ent importance to file one on their own account. Is the complainant bound to keep these parties in court, thereby increasing the costs and expenses of the liti- gation, merely because some of their co-defendants happen to want to litigate matters in which these un- necessary parties have no concern, and the others pos- 336 sibly withhold their assent to a dismissal merely for the sake of harassing and punishing the complainant? We think not. We are of opinion that no one can avail himself of the statute unless he has, either by himself or in connection with other defendants, filed a cross-bill before the application to dismiss is made. It follows, therefore, that the pendency of Ray's cross-bill to which Reading was not a party complain- ant, presented no reason why Blair's bill should not have been dismissed. This being so, whether the pro- ceedings in vacation be regarded void or valid, the decree, so far as it is based upon Reading's cross-bill, is erroneous. The decree upon the cross-bill of Ray is also er- roneous in several respects. The decree, after declar- ing the injunctions in the two replevin suits, and in the action of assumpsit, in which the judgment for $2,569.20 had been confessed, dissolved, and after re- citing the fact that said judgment had been opened and leave granted to plea to the merits, proceeds in these words : ' ' And in said case of Lyman B. Ray V. Novel Blair, in assumpsit, said motion to open and for leave to plead are ordered to be vacated and set aside, and said judgment for said sum of $2,574, en- tered May 25, 1875, confirmed; and it is further or- dered that said case of Novel Blair against Ray, Reading and Schroder in replevin, be dismissed out of court, with the customary order for the return of the property replevied." While a court of chancery, under a proper state of facts, may restrain parties from prosecuting a suit at law, and may declare, for sufficient reasons, such suit and all proceedings under it null and void, yet we are aware of no principle that authorizes it to otherwise assume control over such proceedings by directing this or that step shall be taken in the case, as was done in the present case. Whether the prop- erty replevied should be returned or not, was a ques- tion for the exclusive determination of the court of law in which the case was pending. Courts of equity can control proceedings at law only by acting upon the 337 parties, or by annulling their proceedings when con- summated. They have no right to sit as a court of error for the purpose of reviewing their proceedings, or of directing what steps shall be taken in them. Courts of law of general jurisdiction have the same control over their proceedings as courts of equity have over theirs, subject to the limitation already stated, and any decree which assumes to exercise such power or jurisdiction over them is erroneous. Again the decree directs, "that in case of default by said Blair in making such return of the property, the coroner of Grundy county, upon being presented with a certified copy of this decree, seize the said property, if found within his county, and return the the same to said Ray, and make due return of his acts in that regard to this court," etc. This x)i"ovision of the decree is clearly erroneous. The coroner of Grundy county not being a party to the suit, as an individual was not subject to the orders or direction of the court. As an officer he was not authorized to exercise any power or authority over the property re- plevied, except in obedience to legal process placed in his hands for that purpose, and a certified copy of the decree is in no sense legal process, within the mean- ing of the constitution. By the provisions of that in- strument all process must run in the name of the People of the State of Illinois, and a mere certified copy of the decree would not meet this requirement of the constitution. We fully recognize the power of a court of equity, where it has obtained jurisdiction over property in litigation, to appoint a receiver or other custodian of such property, and clothe him with such power and authority as may be necessary for the management and preservation of the same; but that is not the case here, and the principle has no application to the facts of this case. There are other errors of a similar character ap- pearing upon the face of the decree, but we will not consume further time by considering them, as what we have already said is deemed sufficient to present our views upon this subject. 338 We are also of opinion the assessment of damages, on account of suing out the injunction, is not war- ranted by the circumstances in this case. The only element of damages which entered into the allowance made by the court, was that of solicitor's fees. The whole amount in controversy was, as shown by the de- cree, a fraction over $2,400, and the court assessed the damages at $600. The propriety of suing out the injunction was never called up or considered by the court until the case was finally considered on its merits. Hence the extra expense of a separate hearing of a motion to dissolve was not incurred, and upon an examination of the record and the general character of the evidence, it is manifest, that so far as any portion of the proofs was neces- sary or appropriate in obtaining a dissolution of the injunction, with the exception of that which was of- fered in proof of the damages, it was equally neces- sary and appropriate to establish the case of defend- ants in error, irrespective of the injunction. In short, we are of opinion the expenses incurred on account of solicitor's fees in the preparation of the case for a hearing, and in conducting the hearing, would, un- der the circumstances of this case, have been sub- stantially the same as if no injunction had been sued out at all. At any rate, we are quite clear that the suing out of the injunction did not make a difference of $600, — something near one-fourth of the amount in controversy, — and it is only for the additional expense there should have been a recovery. AVilson v. H?ecker, 85 111. 349. Without consuming further time in the considera- tion of other questions raised upon the argument, suf- fice it to say that outside of the errors alread}^ indi- cated, we are satisfied, upon a careful consideration of the record, the ends of justice will be subserved by a rehearing of the whole case ; and in view of the fact that some of the pleadings seem to be, when consid- ered in the light of the proofs, to some extent defec- tive, the judgment of the Appellate Court will be re- versed, and the cause remanded, with directions to 339 reverse the judgment of the Circuit Court and re- mand the cause for a rehearing, with leave to both parties to amend their pleadings and take additional testimony, if they shall be so advised. Judgment reversed. Sheldon, J., concurs in the conclusion. JOHNSON V. F. & M. R. RY. CO., Ill 111. 417. (1884.) Mr. Chief Justice Scholfield delivered the opinion of the court. This is a proceeding commenced by petition, by the Freeport and Mississippi Eailroad Company, to con- demn, under the Eminent Domain act, the whole of lots 10, 11 and 12, in block 5, on the east side of the Galena river, in the city of Galena, that remains after taking therefrom a strip of land ten feet in width off the east end thereof, conveyed to the Illinois Central Eailroad Company, and after taking therefrom another strip of ground off the west end thereof twenty-two feet wide, on Bouthillier street, and grad- ually narrowing southwardly to a width of ten feet on the southerly boundary line of said lot 10, conveyed to the city of Galena, the title whereof is conceded to be in fee in Ann Eliza Johnson. The purpose of the condemnation is for depot, station building, right of way for construction and operation of main and side- track, spurs, switches, etc. At the return day of the writ, Ann Eliza Johnson filed her cross-petition in the proceeding, in which, among other things, she alleged that "she is the owner of a strip of ground off the west end of said lots 10, 11 and 12, of twenty-two feet, on Bouthillier street, narrowing southwardly to ten feet in front of lot 10, on Water street, in which the right of user was con- veyed to the city of Galena, which strip is not in- cluded in the petition for condemnation; that in and by her deed conveying such right of user to the city 340 of Galena, which was dated January 25, 1856, it was stipulated that the conveyance was made on the con- dition that the grounds so conveyed should be forever kept and used as a public street and wharf for the use of the inhabitants of Galena, and that Water street, in front of said lots, should be kept and maintained at all times forty-five feet wide; that in consequence of the said condition on which said conveyance was executed, she has a vested interest in so much of said Water street as in front of said lots, paramount to other lot owners abutting on said street ; that the peti- tioner, by the line of its contemplated railroad, will run over and appropriate to itself the exclusive use of said Water street in front of said lots, under and by authority of an ordinance of the city of Galena, which provides that said petitioner shall pay all dam- ages occasioned thereby." The cross-petition con- cludes, "by means whereof she will be greatly injured and damaged in other property she is interested in, adjacent and within two hundred feet thereof, by reason of taking said Water street aforesaid, and prays that damages may be assessed under the law, as required by the statute," etc. On motion of the attorney for the petitioner, this cross-petition was stricken from the files. Afterwards, Ann Eliza John- son filed a special plea to the petition, and this, on motion of the attorney for the petitioner, was also stricken from the files. When the cause came on to be heard, the attornej^ for Ann Eliza Johnson challenged the array of jurors, and moved to dismiss the petition; but the challenge was disallowed, and the motion to dismiss was over- ruled. Her damages were then assessed, by the ver- dict of the jury, at $2,500, whereupon she moved for a new trial, but the court overruled the motion and entered judgment upon the verdict. Exceptions were taken by Ann Eliza Johnson to the various rulings of the court adverse to the contentions of her attor- neys, which were allowed, and she now assigns numer- ous errors in consequence of such rulings. Such of 341 them as we deem important we shall notice in consecu- tive order. First — We think the court erred in striking the cross- petition of Ann Eliza Johnson from the files. The constitution guarantees as well that private property shall not be damaged, as that it shall not be taken for public use without just compensation (sec. 13, art. 2, of the constitution), and this guaranty is repeated in the first section of the Eminent Domain act. The second section of that act likewise makes provision for assessing damages on account of property damaged, as well as on account of property taken for public use. AVliere some property is damaged and other property is taken for public use at the same time, in many instances it would seem to be almost indis- pensable to the ends of justice that the questions should be considered together, and hence there ought to be some way by which, if the petitioner neglect to include in his petition all property damaged as well as all property taken, it could be brought before the court. Obviously, the most convenient way to do this is by cross-petition. It is true the statute makes ex- press provision for filing a cross-petition only by a person interested who is not made a defendant; but this, by implication, would seem to recognize the right of a person already made defendant, whose interests are not fully or accurately stated in the petition, to file a cross-petition for that purpose. It surely could never have been intended that a person whose name or in- terest is not mentioned in the petition may come in by cross-petition, describe his interest and have his rights adjudicated, and yet a person who is summoned as defendant shall be denied the privilege of being allowed to accurately describe his interest in a cross- petition and have his rights adjudicated. The right to file a cross-petition, by the analogies of the law, would seem to result as an incident from the right to file the petition, and so we have held that a cross- petition is an appropriate mode of bringing before the court x)i'operty of the defendant taken or dam- aged and not described in the petition. Mix v. La- 342 fayette, Bloomington and Mississippi R. R. Co., 67 111. 319 ; Jones v. Chicago and Iowa R. R. Co., 68 id. 380 ; Galena and Southern Wisconsin R. R. Co. v. Birkbeck, 70 id. 208. This cross-petition distinctly shows an ownership of the defendant, Ann Eliza Johnson, in the fee of certain soil theretofore conveyed to the city, adjacent to Water street, — an implied obligation on the part of the city to keep that street open in front of her prop- erty, forty- five feet wide; that the petitioner will run over and appropriate the exclusive use of that street in front of her property, and that she will be dam- aged thereby. There is, undoubtedly, an insufficient description of the property claimed to be damaged, and precisely how it will be damaged; but this can be remedied by amendment. Had the petitioner de- murred to the cross-petition, instead of moving to strike it from the files, the demurrer should have been sustained ; but then the party would have been allowed to amend, and might thus have brought before the court such a claim for damages as she would have been entitled to have adjudicated in this proceeding. The rule in equity is, a bill will not be dismissed, on motion, unless it be for want of equity apparent on the face of the bill, and where it is manifest no amendment could help it, or for want of jurisdiction; (Thomas, Trustee, v. Adams et al., 30 111. 37;) and at law, if a plea be insufficient in form or substance, the only mode of taking advantage of the defect is by demurrer. It is improper in such case to strike the plea from the files. Orne v. Cook, 31 111. 238. Second — We have held in Smith v. Chicago and Western Indiana R. R. Co., 105 111. 511, that under the Eminent Domain act an answer is not allowable, and the principle includes a plea. The plea was therefore properly stricken from the files. Third — The objections that inasmuch as the petition was filed in vacation, the cause could not be tried at a regular term, is untenable, and the challenge inter- posed to the array of jurors, and motion to dismiss the petition based on that objection, were properly dis- 343 allowed and overruled. We held in Bowman et al. v. Venice and Carondelet Ry. Co., 102 111. 468, et seq., that a proceeding of this character, though commenced in vacation, may be tried, as was here done, in term time. Fourth — We are unable to say whether the court properly rejected, as evidence, the deed from Lucj^ N. Wight to the city of Galena, and the deed from Lucy N. Wight to Ann Eliza Johnson, and ordinance of the city of Galena, as offered to be read by the attor- ney for Ann Eliza Johnson, because they are not set forth in the bill of exceptions or certificate of evi- dence. They may or may not have been properly excluded. This can only be determined by an inspec- tion of their contents, and the burden is on the party alleging error to affirmatively show its existence. Fifth — The objection that opinions of witnesses not shown to have been experts, were received in regard to the value of the property sought to be taken is not tenable. Persons who are familiar with the land, and have an opinion of its value, are competent to express that opinion. But the weight of such evidence pre- sents a different question. On that point, where there is equal credibility, superior opportunity and intelli- gence would, of course, be entitled to the greater weight (AVhite et al. v. Hermann, 51 111. 243; Keiths- burg and Eastern R. R. Co. v. Henry, 79 111. 290.) Such opinions of witnesses are not to be passively re- ceived and blindly followed, but they are to be weighed by the jury, and judged of in view of all the evidence in the case and the jury's own general knowledge of affairs, and have only such consideration given to them as the jury may believe them entitled to receive. Mc- Reynolds et al. v. Burlington and Ohio River Ry. Co., 106 111. 152. Sixth — On the trial there were offers by the defend- ant, Ann Eliza Johnson, to prove that the property sought to be condemned had a special value for rail- road purposes bej^ond its general market value, and also that certain prices had been offered for the prop- erty, within a few months of the time of the trial, above S44 the general market value, — all of whicE, on objection, the court refused to allow to be proved; and, consist- ently with such ruling, the court, among other things, at the instance of the petitioner, instructed the jury: "The jury are instructed by the court, that the evi- dence of certain witnesses as to what they would give for the property in controversy, is not proper evidence for the jury to consider in making up their verdict in this case, that such testimony was ruled out by the court, and should not be considered by the jury." In these rulings we hold there was error. In St. Louis, Jerseyville and Springfield R. R. Co. v. Kirby, 104 111. 345, we held that it is competent to show, in such cases, that the land proposed to be taken has a special value to the owner by reason of a special prof- itable use, and he is entitled to compensation for the loss occasioned by deprivation of such special use. In that case the use was that of a training track. It was said: "The value of land consists in its fitness for use, present or future, and before it can be taken for public use the owner must have just compensation. If he has adopted a peculiar mode of using that land, by which he derives profit, and he is deprived of that use, justice requires that he be compensated for the loss. That loss is the loss to himself. It is the value which he has, and of which he is deprived, which must be made good by compensation." And upon like prin- ciple we held in Lake Shore and Michigan Southern Ry. Co. et al. v. Chicago and Western Indiana R. R. Co., 100 111. 21, that where land has no market value, from the fact of its being used as a right of way for a railroad, and devoted to a special use of making rail- road transfers, estimates of its value with reference to such use, by those competent to speak in that re- gard, should be received on the question of compensa- tion to be paid for its condemnation for the use of another railroad company for its right of way. And in Lafayette, Bloomington and Mississippi R. R. Co. V. Winslow et al., 66 111. 219, it was said: "As land and city lots have no standard value, it is right and 345 necessary to take the opinions of witnesses, and to hear the facts upon which such opinions are founded. ' ' The principle recognized in these cases clearly leads to this: If property has a special value, from what- ever cause, that special value belongs to the owner of the property, and he is entitled to be paid it by the party seeking condenmation. In determining the value of real property in such cases, to the owner, witnesses may give their opinions, and any special circumstances upon which those opinions are founded, for what they are worth. For the errors indicated, the judgment is reversed and the cause remanded. Judgment reversed. FIRST NAT. BANK OF CHICAGO v. BAKER. 161 111. 281. (1896.) Cartwright, J. Appellee is receiver of the Corey Car & Manufacturing Company, appointed by the Cir- cuit Court of Cook county in pursuance of a bill filed by Henry S. Jaffray against that corporation. Apel- lant filed its petition in the suit, alleging an indebted- ness of the defendant corporation to it, evidenced by promissory notes, and secured by a chattel mortgage executed by the defendant prior to the commencement of the suit. The prayer of the petition was that the receiver should be ordered to pay the indebtedness secured by the mortgage, or to deliver up the mort- gaged property to be dealt with in accordance with the terms of the mortgage, or that the receiver should be ordered to sell the property, and, from the proceeds of the sale, pay the petitioner the amount of its mort- gage. The petition was answered by the receiver. It was also answered by Lesh, Sanders & Egbert Com- pany and S. D. Kimbark, who were creditors of the receiver, denying the right of the petitioner, and claim- ing an estoppel against the enforcement of the mort- gage. Upon a hearing, the prayer of the petition was 346 denied, and it was dismissed at the cost of the peti- tioner. That decree has been affirmed by the Appel- late Court. A certificate of evidence appears in the record, but it does not purport to contain all the evidence intro- duced on the hearing of the petition. Where a decree is entered granting relief, the rule is that the decree must be justified either by facts which it specifically finds, or by evidence appearing in the record. White V. Morrison, 11 111. 361 ; Bennett v. Whitman, 22 111. 448 ; James v. Bushnell, 28 111. 158 ; Mcintosh v. Saun- ders, 68 111. 128; Marvin v. Collins, 98 111. 510. But a decree dismissing a bill or petition needs no evidence to support it. It is supported by the absence of any evidence, since that is the proper decree in case there is no evidence, or if the evidence is insufficient to authorize the relief asked for. Ryan v. Sanford, 133 111. 291, 24 N. E. 428; Jackson v. Sackett, 146 111. 646, 35 N. E. 234; Alexander v. Alexander, 45 111. App. 211. The decree dismissing the petition in this case cannot be reversed because the relief was denied, unless ap- pellant shall show that the evidence was such as to entitle it to the relief asked for. In order to do this, the whole of the evidence must be preserved; other- wise it will be presumed that there was evidence which justified the finding. Corpus v. Teed, 69 111. 205 ; Allen v. LeMoyne, 102 111. 25 ; Groenendyke v. Coffeen, 109 111. 325; Brown v. Miner, 128 111. 148, 21 N. E. 223. The fact that the solicitors for appellee indorsed the certificate "O.K.," over their signatures, is insisted upon as ground for the claim that the certificate must be considered as containing all the evidence. This, however, does not follow. The indorsement was an acknowledgment of the correctness of the certificate for what it purports to be, but the approval of the certificate could not be extended beyond what appeared in it. It is also argued that it appears elsewhere in the record that the certificate of evidence contained a complete statement. This claim is founded on the fact of the recital in the decree that two witnesses therein named were examined in open court. But this recital does not show that all the evidence, even of those witnesses, is contained in the certificate; and it appears, both from the certificate and the decree, that there was other evidence than the testimony of these witnesses introduced, and considered by the court. There is nothing in the record which will aid the certificate, and the rule that cases shall not be re- versed on a partial statement of the evidence is of too great importance to be disregarded. One of the findings of the decree was that the mort- gage was not acknowledged by the defendant corpora- tion according to law; and, the acknowledgment ap- pearing upon the face of the mortgage, and being un- affected by any question of evidence, it is argued that this court should determine, as a matter of law, whether the acknowledgment was valid. Whatever the conclu- sion might be as to that question, or however erroneous the finding, as a matter of law, might be held, the ap- pellant would not be aided, because the court further finds in the decree, as a matter of fact, that the peti- tioner is equitably estopped from enforcing the mort- gage against the lawful creditors of the receiver. The fact is found upon the evidence, and, if correct, the decree must be sustained, whether the acknowledg- ment was legal or not. As the record does not purport to contain all the evidence upon which the decree de- nying the relief was founded, the judgment of the Ap- pellate Court must be affirmed. Judgment affirmed. BATES V. SKIDMORB. 170 111. 233. (1897.) Magruder, J. The only question which we deem it necessary to consider in this case is whether or not the Circuit Court erred in overruling the motion made by the complainant below (the appellant here) to dis- miss the bill without prejudice at her own cost. It is 348 assigned for error that the Circuit Court erred in de- nying and overruling said motion. We are unable to see why said motion should not have been allowed. It is true that when the motion to dismiss was made, on January 12, 1897, the cause had theretofore, to-wit, on December 16, 1896, been referred to a master; but no proof had been introduced, nor had any other steps of any kind been taken before the master, when the motion was made on January 12, 1897. This court has decided that a complainant may dismiss his or her bill at any time before decree, when no cross-bill has been filed. Reilly v. Reilly, 139 111. 180, 28 N. E. 960; Langlois v. Matthiessen, 155 111. 230, N. E. 496. It is not denied by appellee that, if this had been a mere motion to dismiss the bill, appellant would have been entitled to have it allowed. But it is said that this was a motion, not merely to dismiss the bill, but to dismiss it without prejudice. It is then contended that it is within the discretion of the trial court to grant a motion to dismiss a bill in chancery without preju- dice, or to deny it; that the court was not bound to exercise its discretion in favor of a dismissal of the bill without prejudice unless some good reason was given why it should be dismissed; and that in the present case, as no such good reason was given, and as there was no abuse of its discretion by the court, the refusal to dismiss cannot be here insisted upon as error. In Reilly v. Reilly, supra, it was said that there were some cases which hold that a chancellor has a discretion, and may, in certain cases, likely to work a hardship to a defendant, refuse to allow a com- plainant to dismiss his bill; but it was also there said that such cases were not in harmony with the current of authority, and that we were not inclined to change the rule already adopted by this court, in order to follow such cases. In Langlois v. Matthiessen, supra, we sustained the action of the Circuit Court in dis- missing a bill without prejudice upon motion of the complainant, although the cause had been heard upon the evidence as reported to the court by the master. In the case last mentioned we said: "In the case at 349 bar there had not, so far as the record discloses, been any determination of the rights of either party, and there is nothing in the record to show that there was any abnse of discretion by the trial court in permitting the bill to be dismissed without prejudice." It might naturally be inferred from this language that the right to dismiss without prejudice is a matter of discretion with the court, but it was not there intended to lay down any such general rule. Where a bill is dismssed without any consideration of the merits, and before decree, even though the order of dismissal does not contain the words "without prejudice," the judgment or decree of dismissal is not res judicata, and consti- tutes no bar to a new proceeding for the same cause of action between the same parties. Such termination of the suit leaves the parties as if no legal proceedings had been taken. 6 Enc. PI. & Prac, pp. 986, 987; Eichards v. Railway Co., 124 111. 516, 16 N. E. 909; Chamberlain v. Sutherland, 4 111. App. 494. The same is true where the order is that the bill be dismissed "without prejudice." In other words, the dismissal of a bill by a complainant upon his own motion before the merits are considered, and the dismissal of such a bill by the complainant upon his own motion without prejudice, have the same effect, to the extent that neither is a bar to a new proceeding for the same cause of action between the same parties. In Ray v. Adden, 50 N. H. 84, which was a bill for divorce hied by a husband against his wife, and where an entry was made that the suit was "dismissed without preju- dice," those words were held to indicate that the bill was not dismissed upon the merits of the case, or be- cause the equities were shown to be with the defend- ant. In Kempton v. Burgess, 136 Mass. 192, it was said: "It is a matter of course to permit a plaintiff to dismiss his bill at any time before hearing, upon payment of the costs. * * * Such an order of dis- missal is in the nature of a nonsuit at law, and not a bar to another bill. * * * When a bill is dismissed upon the motion of the plaintiff, it is a safe and con- venient practice, and we think it is our usual practice, 350 to dismiss it without prejudice." This authority cer- tainly holds that a dismissal of a bill by a complainant at his own costs at any time before hearing is the same as a dismissal of it "without prejudice. ' ' In Vaneman V. Fairbrother, 7 Blackf. 541, where a complainant in chancery moved the court to dismiss the bill "without prejudice," and the court refused so to dismiss the bill, but dismissed it "with prejudice," it was held that the dismissal would be no bar to another suit for the same cause; and it was there said, in the opinion deciding the case: "Had the order of dismission con- tained the words 'without prejudice,' as desired by the complainant, it would have afforded no more secur- ity to its rights than it would without them; and the insertion of the words 'with prejudice,' as insisted on by the court, does not render the order of dismission peremptory, like a decree of dismission on the merits. Either set of words is unmeaning in an order of dis- missal on the motion of the complainant without a final hearing, as it would have been had the cause been dismissed on motion of the defendants for want of prosecution." 1 Beach, Mod. Eq. Prac, §§450, 463. Under the view thus presented, it would appear that a complainant would have the same right to dismiss his bill without prejudice at his own cost before a hearing, as to dismiss it at his own cost before a hear- ing, without stating in the order that it was so dis- missed without prejudice. If this rule is to prevail, it certainly was error in the court below not to grant the complainant's motion to dismiss her bill without prejudice, under the circumstances. But it is true that some authorities hold that the propriety of per- mitting a complainant to dismiss his bill without preju- dice rests in the sound discretion of the court. Adams, Eq., p. 375, note 2; Conner v. Drake, 1 Ohio St. 170; Chicago & A. K. R. Co. v. Union Rolling-Mill Co., 109 U. S. 702, 3 Sup. Ct. 594. But, where it is a matter of the discretion of the court, such discretion must be a sound, legal discretion, and must be exercised with reference to the rights of both parties. Beach, in the first volume of his work on Modern Equity Practice, 351 at §450, says: "It is very clear, from an examination of the authorities, English and American, that the right of a complainant to dismiss his bill without preju- dice, on payment of the costs, is of course, except in certain cases." One of the exceptions is that a court may refuse permission to dismiss a bill without preju- dice if such a dismissal would work a prejudice to the other party. It is not regarded as prejudice to the defendant that the complainant dismisses his own bill, simply because the complainant may file another bill for the same matter. Another exception is that such order of dismissal should not be made where the de- fendant has been put to the trouble of making his de- fense. 1 Beach, Mod. Eq. Prac, § 450 ; Bank v. Rose, 1 Rich. Eq. 294; Chicago & A. R. R. v. Union Rolling- Mill Co., supra. In the case at bar we are unable to discover that, if appellant's motion to dismiss had been granted at the time it was made, the appellee would have been prejudiced in any other way than that she might be liable at some future time to become defend- ant to another bill of the same character. At the time when appellant's motion was made, appellee had not been put to any trouble in making her defense ; nor, at that time, had it been made manifest that she was en- titled to a decree in her favor. Therefore, even if the rule is to prevail that the granting or refusing of a complainant's motion to dismiss the bill at his or her own cost before a hearing is within the sound dis- cretion of the court, we discover no reason upon the face of this record why such discretion should not have been exercised in favor of appellant's motion. The costs in this case accruing up to the time of making the motion to dismiss, and including such motion, should be paid by the appellant, but all costs incurred subsequently to the refusal of the court to grant such motion should be paid by the appellee. With this direction as to the division and payment of the costs, the decree of the Circuit Court is reversed, and the cause is remanded to that court, with directions to dis- miss appellant's bill without prejudice. Reversed and remanded. 352 CRAWFORD V. BELL, 95 111. App. 427. (1900.) Mk. Justice Seaes delivered the opinion of the court. This is an appeal from an interlocutory order grant- ing an injunction. By the order appellant and others were restrained from the prosecution of some hundred attachment suits brought by appellant against the var- ious appellees. The original bill of complaint was filed by Asa Bell, who was made a defendant in one of the attachment suits, and the other appellees, who were severally defendants in other attachment suits brought by appellant, filed their intervening petitions in the cause. The relief asked by the original bill of com- plaint and by each intervening petition was the same, viz., that the further prosecution of the attachment suits be enjoined. Neither the bill of complaint nor any of the intervening petitions was verified. No affidavits were presented in support of the motion for a temporary injunction. The order granting the in- junction recites that "the court having heard the testi- mony of the defendants and other witnesses taken in open court, etc., and being fully advised in the prem- ises does order," etc. But the order does not recite any facts found from such testimony. The order cannot be sustained. It is not necessary to consider any other ground of objection except the Tack of any evidence to support the unverified allega- tions of the bill of complaint. This bill of complaint was not sworn to by any one, and was not even signed by the complainant, but by his solicitor only. No affidavits were filed in support of the bill, and the evidence heard by the chancellor is not preserved by a certificate of the evidence or by specific findings of fact in the decree. The order can not be permitted to thus rest upon the mere unverified allegations of a bill of complaint. It has been repeatedly held by this court that to warrant the issuing of a temporary in- 353 junction upon the allegations of a bill of complaint, these allegations must, in their material parts, be veri- fied, and that such verifications must be positive and not merely upon information and belief. The Board of Trade v. Eiordan, 94 111. App. 298, and cases therein cited. Here there was no verification whatever. The re- cital in the order that evidence was heard by the chan- cellor in open court, does not avail, for that evidence is not preserved. It is a well established rule of our chancery practice, that an order or decree granting aflfirmative relief must have support in the record, either by finding of specific facts in the decree, or by depositions, or by evidence contained in the report of a master in chancery or by certificate of the evidence. Wliite V. Morrison, 11 111'. 361 ; Ward v. Owens, 12 111. 283; Nichols v. Thornton, 16 111. 113: Bennett v. Wliit- man, 22 111. 448; James v. Bushnell, 28 111. 158; Waugh V. Bobbins, 33 111. 181; Quigley v. Boberts. 44 111. 503; Wilhite V. Pearce, 47 111. 413; Driscoll v. Tannock, 76 m. 154; Marvin v. Collins, 98 Bl. 510; Baird v. Pow- ers, 131 Bl. 66; Bonnell v. Lewis, 3 111. App. 283; Up- dike V. Parker, 11 111. App. 356; Gage v. Eggleston, 26 111. App. 601 ; Bump v. Bump, 94 111. App. 582. At common law it rests upon the party attacking the judgment to preserve the evidence, if he desires to question its sufficiency; but in chancery it rests upon the party in whose favor the decision grants relief to preserve in some manner, in the decree itself or else- where in the record, the evidence which sustains and warrants the decree. Hughs v. Washington, 65 111. 245. And this rule of practice applies as well to other orders in a suit in chancery as to the final decree. Al- bright V. Smith, 68 Bl. 181; Stinnett v. Wilson, 19 111. App. 38. In no manner is the evidence preserved in this rec- ord to support the order appealed from. It must therefore be reversed. The order is reversed and the cause is remanded. 354 TITUS V. MABEE, 25 111. 232. (1851.) Mr. Justice Walker delivered the opinion of the court. This was a bill filed, by the trustees of the bondhold- ers of the St. Louis, Alton and Chicago Railroad, against Mabee, Pitts and Brown, — the first two, judg- ment creditors of the road, and the last the sheriff of Madison county. The object of the bill was to enjoin the sheriff from selling a freight car, an iron safe and an iron planing machine, to satisfy executions which had been issued on their judgments. On the sixth day of April, 1857, the railroad, with its lands, track, furniture, equipments and personal property, was conveyed to complainants in trust, to secure bond- holders of the road in their debts and accruing interest. The bill alleges that the property levied upon, under the executions, is the same that was held by the road, and embraced in the deed of trust, or has been subse- quently acquired, and is essential to the prosperity of the road. The court below dissolved the injunction, from which decision the complainants appeal to this court. It is first urged that the decree of the court below is not final, and is therefore not the subject of review in this court. The only relief sought by the bill, was to enjoin the sale of the property under the executions, and when defendants entered their motion to dissolve the temporary injunction, it was for the want of equity appearing on the face of the bill. The motion operated precisely as a demurrer, and by it the defendant admit- ted the truth of all the allegations relied upon to entitle the complainants to an injunction. The practice is to allow either a demurrer to the bill, or a motion to dis- solve the injunction, and either course produces pre- cisely the same result, so far as the injunction is con- cerned. On sustaining the demurrer, or allowing the motion, the temporary injunction is in either case dis- 355 solved, and if no other relief is sought, the case is virtually at an end. If the bill were retained, and full proof of all the allegations which it contained was made, the result would not be changed. It would only be to prove what is admitted by the demurrer or the motion. If other relief were sought by the bill, the decree dissolving the injunction could not, however, be regarded as final. But as no other relief was sought in this case, we are of the opinion that without refer- ence to what has become of the bill, the decree of the court is final, and this court has jurisdiction to review that decision. BARTON V. BARBOUR, 104 U. S. 126. (1881.) Me. Justice Woods delivered the opinion of the court. This was a suit brought by Frances H. Barton, the plaintiff in error, against John S. Barbour, as receiver of the Washington City, Virginia Midland, and Great Southern Railroad Company. The declaration was as follows: "The plaintiff, Frances H. Barton, sues the defendant, John S. Bar- bour, as receiver of the Washington City, Virginia Midland, and Great Southern Railroad Company, a corporation organized under a law of the State of Virginia, and doing business and having an office in the District of Columbia, for that the defendant, on the eleventh day of January, 1877, was running and oi^er- ating a railroad through the State of Virginia, and upon said railroad the defendant was a common car- rier of freight and passengers for hire. That, on the day and year aforesaid, the plaintiff was a passenger in a sleeping-car upon said railroad, and by reason of a defective and insufficient rail upon the track of said railroad the car in which the plaintiff was a passenger was thrown from the track and turned over down an embankment, and she was greatly hurt and injured, 356 and her bodily health permanently injured; that the defendant did not use due care in relation to said defective rail, and the injury to the plaintiff was occasioned by the negligence and carelessness of the defendant, but the plaintiff used due care. The plain- tiff claims $5,000 damages." To this declaration the defendant below filed a plea to the jurisdiction, in which he alleged that at the time of service of process on him he was the receiver of all the property, rights, and franchises of said railroad company, by virtue of a decree made by the Circuit Court for the city of Alexandria, in the State of Vir- ginia, on July 13, 1876, in a cause depending on the equity side of said court, wherein John C. Graham, who sued for himself and others, was complainant, and said railroad company and others were defendants ; that said decree authorized him to defend all actions brought against him as such receiver, by the leave of said court, and declared that he should not in any case incur any personal or individual liability in conducting the business of said railroad, by reason of any act done by him or his servants, he acting in good faith and in the exercise of his best discretion, but that the prop- erty in his hands as such receiver should nevertheless be chargeable with any claim which might be established in any action brought against him as such receiver under leave of the court first had and obtained. The plea then averred that the plaintiff had not ob- tained leave of said court to bring and maintain said suit. Wherefore the defendant prayed judgment whether the court could or would take further cogniz- ance of said action. The plaintiff filed the general demurrer to the plea. The court below gave judgment overruling the de- murrer, and against the plaintiff for costs. She prose- cutes this writ of error to reverse that judgment. The question presented by the record is the suffi- ciency of the plea to the jurisdiction of the court. The defendant insists that the Supreme Court of the District of Columbia had no jurisdiction to enter- 357 tain the suit without leave of the court by which he was appointed receiver. It is a general rule that before suit is brought against a receiver leave of the court by which he was appointed must be obtained. Davis v. Gray, 16 Wall. 203, and cases there cited. But the learned counsel of the plaintiff in error strenuously contends that the only consequence resulting from prosecuting the suit without such leave is that the plaintiff may be re- strained by injunction or attached for contempt, and that the rule applies only to cases where the suit is brought to take from the receiver property whereof he is in possession by order of the court. We conceive that the rule is not so limited. The evident purpose of a suitor who brings his action against a receiver without leave is to obtain some advan- tage over the other claimants upon the assets in the re- ceiver's hands. His judgment, if he recovered one, would be against the defendant in his capacity as receiver, and the execution would run against the property in his hands as such. Hall v. Smith, 2 Bing. 156; Camp v. Barney, 4 Hun (N. Y.) 373; Common- wealth V. Runk, 26 Pa. St. 235; Thompson v. Scott, 4 Dill 508. If he has the right, in a distinct suit, to prosecute his demand to judgment without leave of the court ap- pointing the receiver, he would have the right to en- force satisfaction of it. By virtue of his judgment he could, unless restrained by injunction, seize upon the property of the trust or attach its credits. If his judgment were recovered outside the territorial juris- diction of the court by which the receiver was ap- pointed, he could do this, and the court which ap- pointed the receiver and was administering the trust assets would be impotent to restrain him. The effect upon the property of the trust, of any attempt to en- force satisfaction of his judgment, would be precisely the same as if his suit had been brought for the pur- pose of taking property from the possession of the re- ceiver. A suit therefore, brought without leave to re- cover judgment against a receiver for a money demand, 358 is virtually a suit the purpose of which is, and effect which may be, to take the property of the trust from his hands and apply it to the payment of the plaintiff's claim, without regard to the rights of other creditors or the orders of the court which is administering the trust property. We think, therefore, that it is imma- terial whether the suit is brought against him to re- cover specific property or to obtain judgment for a money demand. In either case leave should be first obtained. And it has been so held in effect by this court. In Wiswall V. Sampson (14 How. 52), this court said: **It has been argued that a sale of the premises on exe- cution and purchase occasioned no interference with the possession of the receiver, and hence no contempt of the authority of the court, and the sale, therefore, in such a case should be upheld. But, conceding the proceedings did not disturb the possession of the re- ceiver, the argument does not meet the objection. The property is a fund in court to abide the result of the litigation, and to be applied to the payment of the judgment creditor who has filed his bill to remove im- pediments in the way of his execution. If he has suc- ceeded in establishing his right to the application of any portion of the fund, it is the duty of the court to see that such application is made. And in order to effect this, the court must administer it independently of any rights acquired by third persons pending the litigation. Otherwise the whole fund may have passed out of its hands before the final decree, and the litiga- tion become fruitless." So in Ames v. Trustees of Birkenhead Docks (20 Beav. 332), Lord Romilly, Master of the Rolls, said that it is an idle distinction that the rule forbidding any interference with property in the course of administra- tion in the Court of Chancery, only applies to property actually in the hands of the receiver, and declared that it applied to debts, rents, and tolls, which the receiver was appointed to receive. It is next asserted by the plaintiff that the fact that the receiver in this case is in possession of, and is con- 359 ducting the business of, a railroad as a common car- rier, takes his case out of the rule that he is only an- swerable to the court by which he is appointed, and cannot be sued without its leave. Her contention is that parties who deal with such a receiver, either as freighters or passengers upon his railroad, may for any injury suffered, either in person or property, sue him without leave of the court by which he was ap- pointed. We do not perceive how the fact that the receiver, under the orders of the court, is doing the business usually done by a common carrier makes his case any exception to the rule under consideration. It was said by this court in Cowdrey v. Galveston, etc., Railroad Co. (93 U. S. 352), that ''the allowance for goods lost in transportation, and for damages done to property whilst the road was in the hands of the receiver, was properly made. The earnings received were as much chargeable with such loss and dam- age as they were chargeable with the ordinary ex- penses of managing the road. The bondholders were only entitled to what remained after charges of this kind, as well as the expenses incurred in their behalf, were paid." This puts calims against the receiver, in his capacity as a connnon carrier, on the same foot- ing precisely as the salaries of his subordinates, or as claims for labor and material used in carrying on the business. If a passenger on the railroad, who is in- jured in person or property by- the negligence of the servants of the receiver, can, without leave, sue him to recover his damages, then every conductor, engineer, brakeman, or track-hand can also sue for his wages without leave. To admit such a practice would be to allow the charges and expenses of the administration of a trust property in the hands of a court of equity to be controlled by other courts, at the instance of im- patient suitors, without regard to the equities of other claimants and to permit the trust property to be wasted in the costs of unnecessary litigation. Such is not the course and practice of courts of equity in administering a trust estate. The costs and 360 expenses of the trust are allowed by the court upon a reference to its own master. If the adjustment of the claim involves any dispute in regard to the alleged negligence of the receiver, or any other fact upon which his liability depends, or in regard to the amount of the damages sustained by a party, the court, in a proper case, in the exercise of its legal discretion, either of its own motion or on the demand of the party injured, may allow him to sue the receiver in a court of law, or direct the trial of a feigned issue to settle the contested facts. The claim of the plaintiff, which is against the re- ceiver for a personal injury sustained by her while traveling on the railroad managed by him, stands on precisely the same footing as any of the expenses in- curred in the execution of the trust, and must be ad- justed and satisfied in the same way. We, therefore, think that the demand of the plaintiff is not of such a nature that it may be j^rosecuted by suit without leave of the court. The plaintiff lastly contends that want of leave to bring the suit does not take away the jurisdiction of the court in which it was brought to hear and determine it, but only subjects the plaintiff to liability to be at- tached for contempt, or to be enjoined from its further prosecution. In other words, she says that leave to prosecute the suit is not a jurisdictional fact, and that, therefore, the plea to the jurisdiction should not have been sustained. Our decision upon this question will be limited to the facts of this case, which are that the receiver was ap- pointed by a court of the State of Virginia, and the property in course of administration was in that state ; the suit was brought in a court of the District of Col- umbia, a foreign jurisdiction, and the cause of action was an injury received by plaintiff in the State of Virginia, by reason of the negligence of the defend- ant while carrying on the business of a railroad, under the orders of the court by which he was appointed. No leave was obtained to bring the suit, and it does not appear that any application was made, either to 361 the receiver or to the court by which he was appointed, to allow and pay the demand of the plaintiff. Upon these facts we are of opinion that the Supreme Court of the District of Columbia had no jurisdiction to entertain a suit. This point has been substantially settled by this court in the case of Peale v. Phipps, 14 How. 386. In that case it appeared that, under a law of the State of Mississippi, by the decree of the Circuit Court of Adams County in that state, the charter of the Agricultural Bank at Natchez was declared for- feited and the corporation dissolved, and Peale, the plaintiff in error, appointed trustee and assignee of its assets, and was the sole legal representative of the corporation; that he became legally liable to the creditors of the bank to the extent of the assets, and that he had assets in his possession sufficient to pay all the debts of the corporation. The defendants in error claimed that there was due them from the bank a large sum of money on account of mesne profits, etc., of certain real estate in Natchez, from which they had been unlawfully expelled by the bank, and the posses- sion of which they had recovered from the bank in an action of ejectment. The defendants in error pre- sented their claim to Peale, the receiver, for allowance as a valid claim against the bank, who refused to admit or allow it, or any part of it. Thereupon the defendant in error brought suit against Peale in the United States Circuit Court for the Eastern District of Louisiana, to recover said mesne profits, and effected service upon him in that district. Peale, among other defenses, filed an ex- ception, in which he denied the jurisdiction of the court. This was overruled and judgment was ren- dered against him for $20,058, to be satisfied out of the assets of the bank in the hands of Peals as trustee. The case having been brought on error to this court, the judgment was reversed. The court, Mr. Chief Jus- tice Taney delivering its opinion, said: "As we think this exception," the one just mentioned, "de- cisive against the jurisdiction of the Circuit Court of 36^ Louisiana, it is unnecessary to set out the other excep- tions. We see no ground upon which the jurisdiction of the court can be sustained. The plaintiff in error held the assets of the bank as the agent and receiver of the court of Adams county and subject to its order, and was not authorized to dispose of any assets or pay any debts due from the bank, except by order of the court. He had given bond for the performance of his duty, and would be liable to an action if he paid any claim without the authority of the court from which he received his appointment and to which he was ac- countable. The property in legal contemplation was in the custody of the court of which he was an officer, and had been placed there by the laws of Mississippi. And while it thus remained in the custody and posses- sion of that court, awaiting its order and decision, no other court had a right to interfere with it and wrest it from the hands of its agent and thereby put it out of his power to perform his duty. ' ' And the court de- clared that the facts stated in the petition showed "that the Circuit Court of Louisiana had no jurisdic- tion" of the case. That case differs from the one now under considera- tion only in this, that it was a suit to recover a judg- ment against the trustee and receiver upon a demand due from the bank before his appointment; while the present case seeks to establish a demand against the receiver for a claim which, according to the decision of this court (Cowdrey v. Galveston, etc., Eailroad Co., supra), forms a part of the charges and expenses of executing that trust. Such charges are specially subject to the control and allowance of the court which is administering the trust property. We think, therefore, that the case just cited is de- cisive of this. The argument is much pressed, that by leaving all question relating to the liability of receivers in the hands of the court appointing them, persons having claims against the insolvent corporation, or the re- ceiver, will be deprived of a trial by jury. This, it is said, is depriving a party of a constitutional right. 563 To support this view the following cases are cited: Palys V. Jewett, New Jersey Court of Error and Ap- peals, Am. Law Reg., Sept., 1880, 553; Kinney v. Crocker, 18 Wis. 74; Allen v. Central Railroad of Iowa, 42 Iowa 683. But those who use this argument lose sight of the fundamental principle that the right of trial by jury, considered as an absolute right, does not extend to cases of equity jurisdiction. If it be conceded or clearly shown that a case belongs to this class, the trial of question involved in it belongs to the court itself, no matter what may be its importance or complexity. Thus, upon a bill filed for an injunction to restrain the infringement of letters-patent, and for an account of profits for past infringement, it is now the con- stant practice of courts of equity to try without a jury issues of fact relating to the title of the patentee, in- volving questions of the novelty, utility, prior public use, abandonment, and assignment of the invention patented. The jurisdiction of a court of equity to try such issues according to its own course of practice is too well settled to be shaken. Rubber Company v. Goodyear, 9 Wall. 788 ; Cawood Patent, 94 U. S. '695 ; Marsh v. Seymour, 97 id. 348. So, in cases of bankruptcy, many incidental ques- tions arise in the course of administering the bank- rupt estate, which would ordinarily be pure cases at law, and in respect of their facts triable by jury, but, as belonging to the bankruptcy proceedings, they be- come cases over which the bankruptcy court, which acts as a court of equity, exercises exclusive control. Thus a claim of debt or damages against the bankrupt is investigated by chancery methods. The bankruptcy court may, and in cases peculiarly requiring such a course will, direct an action or an issue at law to aid it in arriving at a right conclusion. But this rests in its sound discretion. True, if one clauns that the as- signee has wrongfully taken possession of his prop- erty as property of the bankrupt, he is entitled to sue him in his private capacity as a wrong-doer in an action at law for its recovery. 364 Very analogous to the case of an assignee in bank- ruptcy is that of a receiver of an insolvent railroad company or other corporation. Claims against the company must be presented in due course, as the court having charge of the case may direct. But if, by mis- take or wrongfully, the receiver takes possession of property belonging to another, such person may bring suit therefor against him personally as a matter of right; for in such case the receiver would be acting ultra vires. Parker v. Browning, 8 Paige (N. Y.) 388; Paige V. Smith, 99 Mass. 395; Hills v. Parker, 111 id. 508. So far the case seems plain. But if claims arise against the receiver as such, whilst acting under the powers conferred on him, whether for labor per- formed, for supplies and materials furnished, or for injury to persons or property, then a question of some difficulty arises as to the proper mode of obtaining satisfaction and redress. The new and changed con- dition of things which is presented by the insolvency of such a corporation as a railroad company has ren- dered necessary the exercise of large and modified forms of control over its property by the courts charged with the settlement of its affairs and the dis- position of its assets. Two very different courses of proceeding are presented for adoption. One is the old method, usually applied to banking, insurance, and manufacturing companies, of shutting down and stop- ping by injunction all operations and proceedings, tak- ing possession of the property in the condition it is found at the instant of stoppage, and selling it for what it will bring at auction. The other is to give the receiver power to continue the ordinary operations of the corporation, to run trains of cars, to keep the tracks, bridges, and other property in repair, so as to save them from destruction, and as soon as the in- terest of all parties having any title to or claim upon the corpus of the estate will allow, to dispose of it to the best advantage for all, having due regard to the rights of those who have priority of claim. It is evident that the first method would often be highly injurious, and result in a total sacrifice of the 365 property. Besides, the cessation of business for a day- would be a public injury. A railroad is authorized to be constructed more for the public good to be sul)- served, than for jDrivate gain. As a highway for pub- lic transportation it is a matter of public concern, and its construction and management belong primarily to the Commonwealth, and are only put into private hands to subserve the public convenience and economy. But the public retains rights of vast consequence in the road and its appendages, with which neither the company nor any creditor or mortgagee can interfere. They take their rights subject to the rights of the public, and must be content to enjoy them in subordi- nation thereto. It is, therefore, a matter of public right by which the courts, when they take possession of the property, authorize the receiver or other offi- cer in whose charge it is placed to carry on in the usual way those active operations for which it was designed and constructed, so that the public may not suffer detriment by the non-user of the franchises. And in most cases the creditors cannot complain, be- cause their interest as well as that of the public is pro- moted by preventing the property from being sacrificed at an untimely sale, and protecting the franchise from forfeiture for non-user. As a choice, then, of least evil, if not of the most positive good (but generally of the latter also), it has come to be settled law that a court of equity may, and in most cases ought to, authorize its receiver of rail- road property to keep it in repair, and to manage and use it in the ordinary way until it can be sold to the best advantage of all interested. The power of the court to do this was expressly recognized in Wallace v. Loomis, 97 U. S. 146. But here arises a dilemma. If the receiver is to be suable as a private proprietor of the railroad would be, or as the company itself whilst carrying on the business of the railroad was, it would become impos- sible for the court to discharge its duty to preserve the property and distribute its proceeds among those entitled to it according to their equities and priorities. 36() It has, therefore, been found necessary, and has become a common practice for a court of equity, in its decree appointing a receiver of a railroad property, to pro- vide that he shall not be liable to suit unless leave is first obtained of the court by which he was appointed. If the court below had entertained jurisdiction of this suit, it would have been an attempt on its part to adjust charges and expenses incident to the adminis- tration by the court of another jurisdiction of trust property in its possession, and to enforce the payment of such charges and expenses out of the trust prop- erty without the leave of the court which was admin- istering it, and without consideration of the rights and equities of other claimants thereto. It would have been an usurpation of the powers and duties which belonged exclusively to another court, and it would have made impossible of performance the duty of that court to distribute the trust assets to creditors equitably and according to their respective priorities. We therefore declare it as our opinion that when the court of one state has a railroad or other prop- erty in its possession for administration as trust as- sets, and has appointed a receiver to aid it in the performance of its duty by carrying on the business to which the property is adapted, until such time as it can be sold with due regard to the rights of all persons interested therein, a court of another state has not jurisdiction, without leave of the court by which the receiver was appointed, to entertain a suit against him for a cause of action arising in the state in which he was appointed and in which the property in his pos- session is situated, based on his negligence or that of his servants in the performance of their duty in re- spect of such property. Judgment affirmed. 367 WANGELIN V. GOB, 50 111. 459. (1869.) Mr. Chief Justice Breese delivered the opinion of the court. The important question raised on this record is, as to the power of a circuit judge to grant an injunction on the facts stated in the bill of complaint, and that brings up the question of the refusal of the court to dissolve the injunction on motion, and the ruling of the court in disallowing a demurrer to the bill. Appellants make the point, first, that the motion to dissolve should have been allowed, as the material allegations of the bill were disproved by the affidavits submitted by the defendants in support of the motion. We are not advised of any practice in our courts to submit affidavits on a motion to dissolve an injunction, and do not understand by what proceeding the affi- davits to which reference is made have become a part of the record in this case. The motion to dissolve the injunction operates in the same way as a demurrer to the bill, and is based on matters intrinsic, appearing on the face of the bill, hence no affidavits showing ex- traneous matter could be used. Titus v. Mabee, 25 111. 257. When an answer is filed denying the allegations of the bill, it would then be in order to move for a dis- solution of the injunction, as provided in chap. 72, en- titled '^Ne exeat and injunctions," sec. 13 of which provides that upon filing an answer it shall be in order at any time to move for the dissolution of an injunc- tion, and upon such motion, it is allowed to either party to introduce testimony to support the bill and answer, and this is substantially the English practice. This motion is to be decided by the court upon the weight of testimony, without being bound to take the answer as absolutely true. Gross' Stat. 458. The motion to dissolve, and the production of affi- 368 davits, were, therefore, premature, and the court did right to disallow it. The next point made is, that the demurrer to the bill should have been sustained, and the bill dismissed for want of equity on its face. The office of a demurrer to a bill in equity is to deny, in form and substance, the complainant's right to have his case considered in a court of equity, and to admit all the allegations that are properly pleaded, and when it is disclosed on the face of the bill that a court of equity has no jurisdiction, because the party has an adequate remedy at law, the bill is obnoxious to a de- murrer for want of equity, and it will be so adjudged on error or appeal. AYinkler v. Winkler et al. 40 111. 179. To determine if the demurrer was well taken, we must look at the facts stated in the bill of complaint. The most important are, briefly, these: That com- plainant Goe is a resident of St. Clair county, and on the ninth day of November, 1868, one Henry C. Yaeger was in the lawful possession of certain real estate in the town of Lebanon, in that county, containing two acres and four rods of ground, ''being the tract of land known as the Wangelin Mill tract ; ' ' that Yaeger sold the same to complainant for $14,000, with the appurtenances, in fee simple, and put complainant in possession; that while so in possession he made valuable and lasting improvements on the premises and put the mill in good running order, and was run- ning the mill, and had in it wheat and corn belong- ing to himself and his customers, to be ground into flour and meal, of the value of $1,000, and that he was operating the mill with great profit to himself, his customers, and to the community generally; that, being thus in possession, on the twenty-fifth day of Jan- uary, 1869, about twelve o 'clock noon of that day, while he was absent at dinner, the defendants, Wangelin and Heuer, combining with others unknown, against the will of complainant, and with force and arms, broke and entered into possession of the premises and with drawn pistols drove the miller from the premises, and have 369 ever since, with a guard of armed men, with force, kept possession of the mill by day and by night, and deprived compUiinant of the use of the mill, thereby depriving him of large gains and profits ; that thereby he has sutfered irreparable injury and damages for which he has no adequate remedy at law, and he charges that neither of the defendants has property subject to execution at law. The prayer is, that the defendants, and all persons under them, be enjoined from inter- fering with complainant in the possession and opera- tion of the mill, and that, on the final hearing, the in- junction may be made perpetual, and for other relief. It is apparent the sole object of the bill was for an injunction to restrain defendants from doing what the bill alleges they had done, and if it was to have any effect whatever, it must be made to operate as a writ of restitution, a writ which the court could not grant, under the allegations and prayer of the bill. The deed was done, and there remained nothing on which the writ of injunction could operate. An injunction is understood to be a preventive remedy merely, and cannot be so framed as to command a party to undo what he has done. The ver^^ terms of the writ indicate its purpose, that is, restraint. It is described as a judicial process, by which a party is required to do a particular thing, or to refrain from doing a particular thing, according to the exigency of the writ, the most common sort of which operate as a restraint upon the party in the exercise of his real or supi:>osed rights, and is called the remedial writ of injunction. The other sort, requiring a party to do a particular thing, is sometimes called the judicial writ, and only issues after a decree has passed, and is in the nature of an execution to enforce it. 2 Story's Eq. Jur., sec. 861. It is further said, in the same treatise, that the ob- ject of this process is generally protective and pre- ventive, rather than restorative, though, by no means confined to the former. It is under this last branch of the definition appellee relies, to sustain this proceeding. His counsel say, the only point properly presented by the record is, whether 370 a court of chancery will restrain, by injunction, an insolvent person, who, by brute force, with weapons, is molesting a party in the peaceable and lawful pos- session of his property, until the rights of the parties can be settled at law. It is unfortunate for the appellee, that his bill of complaint contains no allegation that proceedings at law have been, or are about to be, instituted, to try the respective rights of these parties to the premises, nor is there any allusion whatever to any such pro- ceedings. It is a naked bill for an injunction to re- strain appellants from doing the acts which the bill alleges they have done. There is no prayer that appel- lants shall be turned out of possession and appellee put in. The facts stated disclose nothing more than a simple case of trespass, by a forcible entry and de- tainer, the remedy for which is ample at law, and fully adequate. It has often been held by this court, that a party can have no footing in a court of equity when he has an adequate remedy at law. Winkler v. Winkler et. al., supra. The point made by appellee is disposed of by saying that, in a proper case, a court of chancery will restrain, by injunction, any person who, by brute force, with weapons, is molesting a party in the peaceable and lawful possession of his property, provided the rules of law, in their application to the case, shall afford him no adequate remedy. But that is not the case. There is no charge in the bill that appellants are molesting appellee in the enjoyment of his property. The acts charged are past and done, and the prayer is that they be restrained from doing them. As well might A, whose dwelling house has been entered by a trespasser during the temporary absence of the family, apply for an injunction to restrain him from doing such an unlawful act. We think the books will be searched in vain for a precedent of that character. It is urged by appellee, where a trespass is like to be repeated, and the party is insolvent, or adequate damages cannot be estimated in money, an injunction is proper, and in this connection says that injunctions 371 to prevent forcible dispositions of possession were common at one time in England, referring to 2 Story's Eq. Jur., sees. 869-70. By turning to sec. 869, it will be seen that the author is treating of cases wholly differ- ent from this. He says, ''in the early course of chan- cery proceedings, injunctions to quiet the possession of the parties before the hearing were indiscriminately granted to either party, plaintiff or defendant, in cases where corporeal hereditaments were the subject of the suit, the object of them being to prevent a forcible change of possession by either party, pending the liti- gation." In the next section, 870, the author says, "the practice of granting injunctions of this sort has become obsolete in England, if not altogether, at least in so great a degree that there are few instances of it in modern times. But injunctions in the nature of an interdict, unde vi, of the Roman law, to restore a possession from which the party has been forcibly ejected, are, under the name of possessory bills, said to be still conmion in Ireland." The proceeding before us is of this character, and is in the nature of an interdict wide vi, but there is no precedent for it in the American or English courts, and, we may add, no necessity for it. Again, counsel for appellee say that courts of equity interfere in cases of trespass, to prevent irreparable mischiefs, or to suppress multiplicity of suits and oppressive litigation, in cases of cutting timber, digging in mines, coal beds, quarries, and the like. That is all true, and the re- straining power of chancery is often successfully in- voked in such cases, but no case can be shown where the trespasser was required to put back into the quarry or mine, or coal bed, the material he had taken out. The counsel further say that mill operators are pro- tected from molestation in their business, for the same reason that miners are protected, because it is impos- sible to estimate their losses and profits, and irre- parable injury is done to the operator and to the pub- lic, and Hilliard on Injunctions, 448, is referred to. The author is there treating of the rights of mill own- ers on the same stream of water, and the power of a 372 court of chancery to enjoin a nuisance, — cases quite different from the one we are considering. Eeference is also made by appellee to a case decided by this court, in support of the injunction. It is the case of Brunnenmeyer et al. v. Buhre et al., 32 111. 183. That was a case in which a difficulty had arisen in a religious society of which Brunnenmeyer was one of the trustees, and Buhre the pastor. This trustee, with one of his co-trustees, Fickensher, locked up the church building, to the exclusion of the pastor and those mem- bers of the church who desired to retain him in that position. There was, subsequently, an election of trus- tees, by a majority of the members, and the pastor was retained in their service. The church being locked up by Brunnenmeyer, the pastor, Bulire, with other members of the church, and on behalf of the church, exhibited their bill in chan- cery, against Brunnenmeyer and others, for an injunc- tion, setting out their title to the church property, and praying for an injunction to restrain the defendants from interfering or in anywise intermeddling with the complainants and members of the church in con- vening and worshipping according to its usages and customs, as they had theretofore done. The defendants admitted the charge of locking up the church to protect the property in it, alleging it was done upon proper authority, setting out the facts. The court, on final hearing, made the injunction perpetual, and on appeal to this court the decree was affirmed, the court holding the church was trust property, and that the defendants were not warranted in closing it against the complainants, thereby depriving them of the use of it for purposes of worship. It was urged in that case that the act complained of was already performed, and there was nothing to restrain, but the court said it was not like a simple act of trespass — it was of a continu- ing nature, and designed to deprive complainants of their rights in the future as well as in the past, and to prevent this continuing injury and deprivation of right, the court had the authority to interpose by its restraining power, and to grant preventive relief, to 373 the same extent that it could to prevent a single in- jurious act. It is apparent in this case that the rules of law fur- nished no adequate remedy for the injury of which complaint was made, as no action of forcible entry and detainer would lie, while in the case at bar, one of the most simple remedies known to the law, and fully ade- quate, was open to the appellee. The case of Goodnough v. Sheppard, 28 111. 81, cited by appellee, was a case of the ordinary exercise of the powers of the equity court to restrain an officer from disturbing a man in possession, who was not a party to the judgment or named in the execution, and who did not claim through any of the litigating parties. The ground of that decision is that a person in the quiet possession of real estate as owner, may have an injunction to restrain others from dispossessing him by means of process growing out of litigation to which he was not a party, a case of very frequent occurrence. - The case of Webber v. Gage, 39 N. H. 182, is re- ferred to, as sustaining this injunction. That was a case where the complainant had enjoyed an easement to his saw mill for forty years, and the defendants were restrained from obstructing it or closing it up. Among the numerous cases cited by appellee we do not find one where an injunction was awarded after the act was done, or to put a party in possession of real estate on a bill to restrain tort-feasors from enter- ing upon the estate. If, on a bill for such purpose, it should be found the wrong-doers are in actual pos- session, they would not be held as in contempt in main- taining such possession by force. The case of The People V. Simonson, 10 Mich. 335, is on this point. The proceedings were for a contempt. The complainant, Van Ness, was put in actual possession of certain premises under a lease from Wapler, who had ob- tained a writ of possession against Simonson. On the same day he was put in possession, he was put out with all his effects by Simonson. The injunction was served a few days after, and the next day Van Ness undertook to enter the house, but was prevented by 374 Simonson, who, with the other respondents, continued to keep him out. It was for this the attachment issued against the respondents, Simonson and others, to an- swer for a contempt in disobeying the injunction. The court say, when the bill was filed, and ever since, Simonson and the other respondents under him have had the actual possession of the premises, and their acts, during this period, have consisted only in en- deavor to maintain it. This being the case, the court say the injunction has not been violated, for it was issued to preserve an actual possesion against molesta- tion, and not to oust a possessor who may have been a tortious holder. No court can, by a preliminary ex parte order or process, turn even a wrong-doer out of possession, and we cannot presume that the writ in the case before us was designed to have any such operation. In these views we fully accord, and as it is a case in many respects identical with the one before us, we must hold, as in that case, that as the injunction was allowed in this case, the wrong-doers being in posses- sion of the premises when the bill was filed, they could not be turned out of possession by such a writ. Even in cases of nuisance, equity will not exercise jurisdiction to remove it, until it is found to be such by a jury, either in an action at law or on an issue out of chancery, and with an erection which, if made, might be a nuisance, a court of equity would not inter- fere, but would leave the injured party to Ms action on the case. Dunning v. The City of Aurora, 40 111. 481. This bill is brought, evidently, to recover possession of the mill, and is what may be called an ejectment bill, and such a bill is demurrable, the redress being at law, either by action of ejectment, trespass quare clausum f regit, or by the more summary mode, by the action for forcible entry and detainer. Story's Eq. PL, sec. 476. A case similar, in some respects, to this, as the bill alleged and unlawful and violent entry into the prem- ises, withholding their use from the complainants, and depriving them of their support and maintenance from 375 the land, and that the defendant was insolvent, and praj'ing that the defendant be enjoined and compelled to surrender the premises, and that a receiver be ap- pointed, is reported in 14 Maryland, 376, Pfeltz et al. V. Pfeltz et al. There it was held the facts charged in the bill did not show defendant was committing irre- parable damage to the property, to prevent which an injunction was necessary. That court considered the object of the proceeding was to obtain possession of the land, and presented a case proper for redress at law, and reversed the judgment of the Circuit Court granting an injunction. The only material difference between that case and this is that complainaint in his bill charges that by the forcible entry and taking possession of the mill he has been deprived of the use of the mill, and of large gains and profits therefrom, whereby he has suf- fered irreparable injury and damages for which he has no adequate remedy at law. No damage to the premises is alleged, nor is there any statement in the bill from which such an inference can be drawn, and it is usually for such irreparable damages an injunction can be allowed, and then only for purposes of prevention. The injunction is a pre- ventive remedy. It comes between the complainant and the injury he fears or seeks to avoid. If the injury be already done, the writ can have no operation, for it cannot be applied correctively, so as to remove it. Att'y Gen. v. New J. E. R. & Trans. Co., 2 Green's Ch. R. 136. We may add to this, that it is at the same time a fetter and a shield, not a weapon to pierce. The record in this case further shows that the appel- lants, refusing to surrender possession of the mill, on the service of the writ of injunction, an attachment for the contempt was issued against them, returnable before the judge at chambers, which coming to the knowledge of the defendants, they surrendered the pos- session to the sheriff, and no further proceedings were had on the attachment. Under these circumstances, and as the injunction 376 Was wrongfully sued out, and as, by it, or through the instrumentality of proceedings under it, the de- fendants have been deprived of the possession of the mill, and which, for aught we know, may be their right- ful property, we deem it but just that a writ of resti- tution should issue to restore to them the possession of the premises. In the ordinary action of ejectment, when, upon the recovery by the plaintiff, a writ of pos- session issue in his favor, upon a new trial and re- covery by the defendant, a writ of restitution issues in his behalf, so in this case, appellants having been deprived of the possession by the action of the Circuit Court, and which we have considered as unauthorized, it is but just and equitable they should be restored to the position they occupied at the time these pro- ceedings were commenced, and complainant remitted to his action of ejectment, or forcible entry and de- tainer, to recover the possession. He must be the actor in such a proceeding, and not appellants. Upon the point made by appellants, that the court proceeded to a decree on overruling the demurrer, there was no irregularity in that, as the record shows the defendants elected to abide by the demurrer, and if they had not so elected, it was not necessary the court should have ruled them to answer, but could proceed at once to a decree. Roach v. Chapin, 27 111. 194. The error is in the decree itself, having been rendered on a bill void of equity. The decree must be reversed and the cause re- manded, with directions to the Circuit Court to award to appellants a writ of restitution of the premises in the bill described, if the same should be moved for by them. Decree reversed. 377 ST. LOUIS, A. & S. R. CO. ET AL. v. HAMILTON, 158 111. 366. (1895.) Craig, C. J. The first question presented by the record is whether the court erred in overruling the de- murrer of Joseph Dickson, receiver, to the declaration. It will be observed that Joseph Dickson was sued, not as an individual, but as a receiver. It was thus im- pliedly admitted in the declaration that Joseph Dick- son had been appointed receiver of St. Louis, Alton & Springfield Railroad Company by some court in com- petent jurisdiction; and, having been thus appointed, he was an officer of the court, and his possession of the land sought to be recovered was the possession of the court. The law is well settled, where a receiver has been appointed by a court of competent jurisdic- tion, and has taken possession of property in his capa- city of receiver, he has the right to hold such property, and dispose of it under the direction of the court ; and any unauthorized interference therewith, by taking- possession of the property, or. instituting legal pro- ceedings to obtain possession, without the sanction of the court appointing such receiver, is a direct con- tempt of court, and punishable as such. Richards v. People, 81 111. 554. Here the property was in the pos- session of Dickson as receiver, and, if the plaintiff de- sired to contest his right to hold the possession of the property, the law required her to go to the court who appointed the receiver, and obtain permission to bring an action for that purpose. Beach, Rec. §§ 655, 726; Hight, Rec. §§ 254, 395a, 139. In the last section this author says: "Thus, the court will not permit a claimant of real estate which is in possession of its receiver to bring an action of ejectment without first obtaining leave for that purpose. And ordinarly, when real estate is in the actual possession of a re- ceiver, an action of ejectment will not be maintained 378 against him in another court, but the claimant will be permitted to pursue his remedy against the receiver in the action in which he was appointed." In section 254, the author says: ''And it is necessary to aver in the * * * declaration against a receiver that leave of court has been granted to bring the action, and the absence of such averment is fatal on de- murrer." See, also, Keen v. Breckinridge, 96 Ind. 69. The question of right to bring an action against a receiver without first obtaining leave arose in Mul- cahey v. Strauss, 151 111. 70, 37 N. E. 702; and, after a review of the authorities, it was held : While it was a contempt of court to bring suit against a receiver without leave of court, and while the appointing court may protect its officer by attachment, or by an in- junction stopping the suit, the failure to obtain such leave is no bar to the jurisdiction of the court in which the suit is brought, in all cases where there is no con- tempt to interfere with the actual possession of the property held by the receiver. Here the action was brought for the purpose of obtaining possession of the property held by the receiver, and, under the rule an- nounced, we think the plaintiff should have averred in her declaration that she had obtained leave of the court in which the receiver was appointed to bring the action, and the court erred in overruling the de- murrer to the declaration. There is another ground upon which the judgment must be reversed: As has been seen, the defendant, by the second plea, presented an issue as to its posses- sion of the land when the action was brought. Under this issue it devolved on plaintiff to prove that the defendant was in the possession of the premises, but no evidence whatever was introduced to establish that fact; and, as plaintiff was not entitled to judgment against defendant unless it was in possession, the court erred in rendering the judgment against the de- fendant the St. Louis, Alton & Springfield Eailroad Company. For the errors indicated the judgment will be reversed, and the cause remanded. Reversed and remanded. INDEX. PAGE Accounting before master in federal courts 201 procedure upon order of reference to state account 62 Address of bill 16 Admissions by pleadings 71 Affidavit to answer 127 that plea or demurrer not filed for delay in federal court 183 depositions and documents previously used in court may be used before the master in Cook County... 170 depositions and documents already used in court may be used in federal court 201 as evidence 79 Affirmative relief 29, 45 Allegations ambiguous 24 bill 20 whether in bill or in answer, must be proved unless expressly admitted by the opponent's pleading 44 to do equity 23 in cases of fraud or usury 23 Amendment 52 must be upon leave of court 57 of answer in federal court 192 by supplemental bill 53 of bill, federal 182 continuance upon 54 Amendment filing a material amendment, sets aside all default orders 58 Illinois statutes on 54 in Illinois to conform to proofs already taken 55 Answer 43 form of 126 oath to 46 where oath waived 46, 47 must state defense 43, 45 must be full 43 testing legal sufficiency of 47 Illinois statute requires full answer, even if oath waived 18 in federal court 185 Federal rule does not require full answer 18 (379) 380 Answer — Continued. page to amended bill in federal court 188 how verified in federal practice 192 separate, cost of, in federal court 193 accompanying plea in certain cases 40 to cross-bill in federal practice 198 effect of where oath not waived 46 may suggest want of parties, if names are given 46 proceedings, if insuflScient 44 in Illinois, if notice of answer given, replication must be filed in four days 52 amendment to conform to proof 56 admissions in, effect of 47 upon amendment bringing in new issue 57 upon amendment to conform to proofs 56 need not answer immaterial, irrelevant, or scandalous allegations 44 affirmative relief upon 45 acts held to waive filing of answer 49 Appearance 34 rule as to in Cook County 159 when and how entered, federal 178 Bill original 13 parts 16 form of stating part 122 formal parts of 121 caption 16 address 16 introductory part 16 form of introduction in federal courts 179 confederating part 16 form of confederating part 122 charging part 17 charging part of 122 jurisdiction clause 17 form of jurisdictional clause 122 interrogatory part 17 form of interrogating part of 122 prayer for relief 8 praying for relief 14 form of prayer for relief 123 prayer for process 19 form of prayer for process 123 parts may be omitted 20 clauses which may be omitted from bill in federal courts 179 federal, signing 181 framed upon alternative theories 23 of interpleader 13, 24 381 Bill — Continued. page of certiorari 13 of discovery 13 not praying for relief 14 to examine witnesses de bene esse 14 to perpetuate testimony 14 not original 13, 26, 33 supplemental 14 cross-bills 14 of revivor 14, 26 to suspend decree 14 to impeach decree 14 to carry decree into effect 14 of review 14, 26 annexing exhibits 24 by stockholder, in federal court 205 Bonds, spreading same of becobd upon motion in cook county.. 166 Brief of lawyer suggesting findings for master's report. ... 63 Caption of bill 16 Case law, what is 8 Certificate of evidence by Judge 129 of sale, form 149 Charging clause of bill 17 Citizenship of parties, form of introduction 121 Commissioners, special 67 Common law, what is 8 Conclusions, legal 22 Confederating clause of bill 16 Confession by pleadings 71 by default 71 Continuance affidavit for, upon motion must show diligence 57 upon amendment 54 Cook County, chancery rules 159 Costs 101 security for 102 on frivolous cause in federal court 202 form of master's certificate of 135 appearance fees 167 federal 181 Court, federal, always open 173 Cross-bill 14, 28 form of 31 in Illinois 30 in foreclosure suits 30 382 Cboss-blll — Continued. page answer to in federal practice 198 defenses to 31 Decbee 92, 95 final and interlocutory 93 time to prepare 22 mandate of court 21 pro confesso 95 pro confesso, how set aside 96 federal, pro confesso 178 disposing of objections to master's report 64 in foreclosure 143 of foreclosure in federal court 205 place of selling real estate in Cook county 165 changing final decree as to alimony or custody of child- dren in Cook county 165 corrections of in federal court 203 dismissing bill 100 lien of 99 enforcement of 98 enforcement of, federal court 175 Deed, master's 151 Default for want of appearance or pleading, set aside by a material amendment filed 58 court rule as to in Cook county 159 cases in Cook county 164 federal 178 Defenses to bills 35 in equity, chart 50 Demurrer 35 form of 124 in federal court 184 general 36 special 36 "speaking" 35 purpose of 38 grounds of 37, 38 as to character or want of parties 37 to jurisdiction 37 to form of bill 38 as to substantial matters of bill 38 ore tenus 36 effect of sustaining 36 effect of overruling 36 acts held to waive a demurrer on file 36 failure to set down for argument in federal court 185 aflSdavit of non-delay in federal courts 37 383 PAGE Deposition nature of 79 mode of taking 81 verification of 80 Determination of facts 21 of law 21 DiSCLAIMEK 51 form of 128 Discovery in answer not conclusive 44 Dismissal of bill 100 Divorce and default cases in cook county 164 Docketing cause in federal court 177 Duces tecum form of master's subpoena 132 Equity courts, origin 7 Equity law, what is 8 Evidence 70 mode of taking 72 deposition 79 when oral 83 oral evidence must be received on trial in Illinois 59 testimony, how taken in federal court 194 nature of before master 78 form of master's notice to take evidence 132 in master's office in Chicago 82 in cases referred to master, all evidence must be heard by master 83 verification of testimony before master 80 subscribing to testimony before master 78 rules to close in master's office 82 nature of hearing in master office 86 proof of exhibits, deeds and writings viva voce on hearing for decree, after hearing before master.... 85 preserving in record 73 admissions by pleadings 70 confession by default 71 stipulation 71 in Illinois, preserving in record 74 form of in the record 77 judge's certificate of 77, 129 master's report of 78 master's certificate of 135 form of master's report of 134 judge's certificate of 77 recital of finding in decree 74 documents 78, 79 production of books and papers before master 61 384 Evidence — Continued. page discretion of master as to what books and writings to be produced 61 production of books and writings 87 affidavit upon motion to produce books and writings. . . 62 master has power to receive but not to surrender exhibits 62 newly discovered bill of review 28 prima facie, in foreclosure suits 138 abstract of 91 abstract of in Cook county 165 proof of records of corporations 87 proof of records of court 87 proof of statutes 87 affidavits 79 oral examination instead of affidavits in Illinois 80 de bene esse federal court 198 objections and rulings upon 75 incompetent must be objected to 77 objections to in Chicago, time of 86 objection that same is not in issue 57 tho ruled out may appear in the record 73, 77 in federal court, discretion of master to admit 61 Examinees 70 Exception to answer 48 for impertinence and scandal 25 for scandal and impertinence in federal court 181 federal 193 for insufficiency, federal 192 to master's report 64 to master's report, form of 142 setting for argument in federal court 193 Exhibits, annexing to bill 24 Facts, in chanceby cause 21 Fees form of master's certificate of 135 form of order directing payment of master's fees 137 Findings of fact 21 of law 21 fobeclosure, plan of master's preparation for report 137 Form 121 bill 121 address of bill 121 introduction to bill 121 of introduction, as to infant 121 of introduction to bill, as to corporation 121 stating part of bill 122 385 Form — Continued. page confederating part of bill 122 charging part of bill 122 jurisdictional clause of bill 122 interrogating part of bill 122 prayer of bill for relief 123 prayer for process in bill 123 prayer for injunction 124 of subpoena to answer bill in federal court 123 jurisdiction, interrogatory, relief and process clauses. . 123 summons 124 demurrer 124 plea 125 answer 126 replication 129 disclaimer 128 objections to master's report 65 Fraud, allegation of specific facts 23 Frauds statute of, as ground of demurrer 38 statute of, as ground of plea 42 Guardian ad litem in federal court 203 Hearing in master's office, nature of 86 for decree in court 91 in Illinois upon bill and answer for want of filing replication within four days after notice of answer filed 52 setting cause for as to sufficiency of plea 40 setting cause for hearing upon bill and answer 47 upon bill and answer, effect of answer 47 Infant should be named as such in prayer for process 20 form of introduction to bill as to 121 Information 13 Injunction 103 right to 104 form of prayer for 124 in prayer for process 19 in prayer for relief 19 federal 190 on appeal in federal court 205 dissolution of 105 Impertinence ' 25 Interest, mode of calcltlation in Illinois 139 Interpreter, oath of 91 Introductory part of bill 16 Interrogatory part of bill 17 386 Intebbogatoeies page in federal courts 186 last interrogatory in federal practice 198 further, upon coming in of answer 44 Judge-made laws, what aee 8 jueisdiction equity 10 clause of bill 17 demurrer to 37 plea to 41 Laches 23 as ground of demurrer 38 as ground of plea 42 Law nature of 7 conclusions or findings of 21 Legal conclusions, in fedebal coubts legal effect of instbu- ments to be pleaded 181 Limitation statute as ground of demurrer 38 as ground of plea 38, 42 when suit begins as to 13 Lis Pendens, notice of, when begins 13 Masteb in chanceby 58 Masteb duties of 58 duties and powers in federal courts 60 appointment of in federal court 202 duty and power in federal practice 200 special master 67 rules governing 168 acts only upon order of reference 59 proceedings upon reference in federal court 199 procedure upon reference to state account 62 what cases must be referred to 59 form of order of reference 130 form of order of reference to state account 131 form of order of reference as to alimony 132 notice of hearings in Chicago 83 form of notice to take testimony 132 form of subpoena duces tecum 132 in Cook county may use affidavits, depositions, etc., already used in court 170 suggestions or requests for master's findings 63 report of 63 report, what to contain 66 findings in report, effect of 66 report of evidence 78 verification of testimony before 80 387 Master — Continued. page evidence in master's office in Ctiicago 82 form of report 133 report, in federal court 200 return and entry of report of, in federal court 202 form of notice of report drafted 141 objections to report of 64 form of objections to report of 65 exceptions to report of 64 form of exceptions to report 142 preparation of foreclosure report 137 preparation for report in building and loan association foreclosure 139 schedule of information for foreclosure sale 145 report of sale and distribution 146 form of deed of sale 151 form of certificate of sale 149 form of report of partition sale 154 form of report in partition suit 152 report of distribution in partition suit 156 Mesne peocess, federal 175 Motions 99 of course. Cook county rules 159 federal, not of course 175 federal, entry in order book 174 federal, grantable by clerk 174 MXTLTIFARIOUS 24 as ground of demurrer 38 Multiplicity of suits 24 Ne exeat 19, 110 Notice form of master's, to take evidence 132 form of notice of report drafted 141 memorandum of time, place, etc., of foreclosure sale... 145 of receiver's reports in Cook county 166 Oath of witness in Illinois 90 of interpreter 91 Objections and rulings upon evidence 75 to incompetent evidence must be made 77 to evidence in Chicago 85 should be ruled upon 76 to master's report 64 to master's report, character of 66 to master's report, form of 65 before master in federal courts 60 Orders 92 at chambers, federal 173 restraining 104 388 Obdek page of reference to master, form 130 confirming master's report 142 confirming sale and for deficiency decree 148 form of confirming master's report of partition sale and directing distribution 155 form of, directing master's fees to be paid 137 Origin of equity courts 7 Oyer 24 Parties 112 plaintiff 112 defendant 113 necessary 113 indispensable 113 dispensable 113 proper 114 necessary 113 unnecessary 114 chart of 115 citizenship of to be stated 21 objections as to 116 want of dispensable parties must be raised by de- murrer, plea or answer 46 want of stated in answer 46 demurrer for want of, or as to character of 37 omission of in federal court 188 persons not parties, in federal courts 176 beyond jurisdiction, in federal courts 180 obtaining jurisdiction over parties beyond the district.. 118 to cross-bill 30 as to joining unwilling party complainant 117 curing defects of 116 defects of in federal courts 189 Passed cases in cook county 164 Petition 13 Plea 39 form of 125 must be under oath 41 affidavit, signing, verifying 125 purpose of 43 pure plea 39 negative plea 39 grounds of 41 to the person 42 to jurisdiction 41 to substantial matters of bill 42 denying plaintiff's right to sue 42 of laches 42 of statute of frauds 42 389 Plea — Continued. page of statute of limitations 42 allegations, effect of 41 no answer with plea except in certain cases 39 testing legal sufficiency of 40 effect of going to hearing upon bill, plea and replica- tion 41 failure to reply to, or to set down for argument in federal court 185 acts constituting waiver of plea 41 Pleadings abstract of 91 copies to be filed in Cook county 166 denial of execution of instrument must be upon oath . . 48 extending time to plead 56 meeting new mattei of the answer 17 Prayer for relief 19 Prayer for process 19 Procedure in master's office in Chicago 82 Process prayer for 19 prayer for in federal courts 180 final, federal 175 Pbochein ami for infants in federal court 203 Proof (see Evidence) Reason and law 9 Receiver 105 nature of appointment 107 grounds of appointment 106 control over property 107 situs of property 106 of corporation 108 for a trustee 107 bond instead of 108 leave to sue 109 notice of filing reports of in Cook county 166 Record of cause must contain evidence 73 chancery, in Illinois 102 of all pleadings and files may be made any time in Cook county 166 Reference order of to master 59 what cases subject to refer 59 in federal court all the issues in a cause cannot be re- ferred to master except by consent 61 divorce cases in Illinois 60 master cannot act except upon order 59 390 Reference — Continued. page order should show what matter referred 61 form of order of to master 130 form of order to state account 131 form of order as to alimony 132 to state account 62 when order not necessary 59 proceedings upon in federal court 199 costs of 59 Register, chancery to be kept 166 Rehearing 26 in federal court 203 Replication 51 special 51, 52 form of 129 amendment to bill instead of 51 in federal court 187, 194 if notice of answer filed is given replication must be filed in four days 52 acts held to waive filing of 51 Report of master, what to contain 63 form of master's 133 of master in federal court 200 return and entry of master's report in federal court 202 form of master's in partition suit 153 of distribution in partition suit 156 Restraining orders 104 Rights independent of legislatures, rulers, judges, or mobs . . 8 Revivor of suit, in federal court 191 Revivor and supplement 191 Rule day. federal court 173 Sale, report of by master, form 147 Scandal • 25 and impertinence in federal court, exceptions 181 Sickness of solicitor in cook county 163 Solicitors, withdrawal of in cook county 165 Special commissioners 67 Special master 67 Stare decisis, what is 7 Stating part of bill 16 Statute law, what is proper 8 Subpoena for witness 89 issuance in federal court 176 return of in federal court 176 manner of service in federal court 177 duces tecum 90 391 PAGE Summons, foem of 124 Supplemental bill 14 26 191 amendments by 53 Testimony (see Evidence) Time to file pleading 34 Title to sue 16, 20, 38 plea denying plaintiff's title 42 Trial calendar, cook county 163 Ultimate facts 21 Usury, allegation of specific facts 23 Witness g9 subpcena duces tecum 90 in federal court 200 oath in Illinois 90 fees of 39 Writ of assistance, federal 176 SC: ' LAW LIBKARY UNIV...,. : Ci' CALIFORNIA LGS ANGELES UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 869 321 o