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CORNELL UNIVERSITY LIBRARY 
 
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Cornell University 
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 the Cornell University Library. 
 
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Pleading and Practice 
 
 IN THE 
 
 COURT OF GHANGERY 
 OF NEW JERSEY 
 
 CONTAINING 
 
 "An Act Respecting the Court of Chancery" {Revision 
 
 of 1902) with the Several Supplements and Amend'. 
 
 ments thereto and including all Statutes and 
 
 Rules of Court relating to Pleading and 
 
 Practice under the above Act. 
 
 With a Discussion of the Decisions Affecting and 
 Construing the Same. 
 
 By CHARLES F. KOGHER 
 
 Author of New Jersey Orphans' Court Practice, etc. 
 
 NEWARK, N. J. 
 SONEY & SAGE 
 
 1913 
 
)Qk^S^5- 
 
 Copyright, 1913, by 
 CHARLES F. KOCHER. 
 
PREFACE. 
 
 The object of this volume is to set forth the various statutes, rules 
 and decisions of the Court of Chancery relating to pleadings and 
 practice in that court in such a manner as to render them readily- 
 accessible. 
 
 Part one contains the chancery act with notes of decisions discussing 
 and construing its various provisions. In part two will be found the 
 various statutes, rules and decisions relating to general practice in the 
 court of chancery as well as those relating to particular proceedings 
 in that court. 
 
 The text of this volume was in print at the time of the enactment 
 by the legislature of the statute abolishing terms of the court of 
 chancery. This fact should be kept in mind in using this work as 
 allusions to terms of court will be found in several places. The rules 
 promulgated by the chancellor to take effect on July 4, 1913, will be 
 found in an addenda. 
 
 CHARLES F. KOCHER. 
 Newark, N. J., October, 1913. 
 
TABLE OF CONTENTS. 
 
 PART I. 
 
 THE CHANCEEY ACT ANNOTATED. 
 
 . Page. 
 The Court, when open 1 
 
 Subpoena and process for appearance and how served 2 
 
 Description of parties whose names are unknown 10 
 
 Proceedings against non-residents 11 
 
 Pleadings and proceedings after return of subpoena; 33 
 
 Evidence; Interrogatories; Examination of witnesses 34 
 
 Setting do^yn the cause and the hearing 40 
 
 Decree, its enrollment and effect -41 
 
 Final process and duty and liability of sheriff 46 
 
 Proceedings in foreclosure 50 
 
 Injunctions 58 
 
 Proceedings with respect to unsatisfied judgments at law 61 
 
 General provisions 68 
 
 Vice chancellors, their duties and powers 77 
 
 Advisory Masters ,84 
 
 Appeal 86 
 
 PART II. 
 
 PLEADING AND PEACTICE IN THE COURT OF 
 
 CHANCERY OF NEW JERSEY. 
 
 Parties 91 
 
 Objections for non-joinder of parties 134 
 
 Bills in equity 138 
 
 General rules concerning pleadings 161 
 
 Multifariousness 163 
 
 Impertinence and scandal 181 
 
 Supplemental bills 187 
 
 Cross Bills 195 
 
 Bills of interpleader 206 
 
 Bills to quiet title 218 
 
 V 
 
Page. 
 
 Bills of Revivor ; 238 
 
 Bills of review 344 
 
 Pleas 248 
 
 Demurrers 267 
 
 Motions to strike out pleadings 287 
 
 Answers 294 
 
 Supplemental answers 310 
 
 Disclaimers 313 
 
 Replications 315 
 
 Amendment of pleadings 317 
 
 Lis Pendens 334 
 
 Dismissal , 340 
 
 Ne exeat 349 
 
 References 354 
 
 Submission of issues to jury 369 
 
 Evidence 385 
 
 Testimony de bene esse 399 
 
 Of inspection of books and pap^s 420 
 
 Evidence admissible under pleadings 423 
 
 Decrees 430 
 
 Proceedings to correct or vacate decrees 436 
 
 Contempts 452 
 
 Motions 472 
 
 Inj unctions 477 
 
 Foreclosure of mortgages 539 
 
 Redemption of mortgages 650 
 
 Suits for partition 662 
 
 Lunacy proceedings 713 
 
 Miscellaneous proceedings in connection with estates of lunatics. . 730 
 
 Sale of infants' lands 733 
 
 Sale of lands of lunatics 742 
 
 Of moneys in hands of masters 746 
 
 Various proceedings respecting lands of infants, idiots and lunatics. 747 
 
 Costs 751 
 
 Appeals 763 
 
 Addenda (Rules of Court) 801 
 
 Table of cases cited 807 
 
 Index . : 843 
 
 VI 
 
Part I. 
 
 The Chancery Act 
 Annotated 
 
An Act Respecting th9 Court. of'- 
 Chancery 
 
 (REVISION OF 1902) 
 
 Session Laws of 1 902, page 510 
 
 Approved Aprils, 1902 
 
 TOGETHER WITH THE SEVERAL SLPPLEMENTS TO AND 
 AMENDMENTS THEREOF 
 
 I. THE COURT, WHEN OPEN. 
 
 1. Stated Terms of Court; Abolished. The Court of 
 Chancery shall hold no stated terms, and pleas and demurrers 
 required to be noticed and set down for argument at terms may 
 be brought on for hearing on regular motion days (except in 
 vacation) upon eight days' notice by either party to the other. 
 All writs and process heretofore issued and returnable to term 
 after this act takes effect shall be returnable on the day and date 
 when the succeeding term named therein or endorsed thereon 
 would have opened and all writs and process tested and issued 
 after this act takes effect shall be returnable on such, days and 
 at such times as the Chancellor shall by rule or order direct. ( i ) 
 
 2. Court to be Always Open for Certain Purposes. 
 
 The court of chancery shall be considered as always open for 
 
 I. This section as above enacted is a supplement to the chancery 
 act and was approved by the Governor on April g, 1913. The act does 
 not provide when it shall take effect, it will therefore not become efifect- 
 ive until July 4, 1913. 
 
 As this act was approved after the body of this volume was in print, 
 allusions will be found throughout to . proceedings founded upon the 
 stated terms of court as they existed prior to the approval of this act. 
 This fact should be kept in mind in referring to the portions of this 
 volume where terms of court are alluded to. 
 
2 The Chancery Act Annotated. 
 
 the granting and return of writs, and for making all orders 
 and decrees, interlocutory or final. (2) 
 
 II. SUBPOENA AND PROCESS FOR APPEARANCE, 
 AND HOW SERVED. 
 
 3. Bill First Filed ; Writ or Process ; Contents ; Issuance ; 
 Subpoena ad Respondendum; Notice Attached To. No 
 
 subpoena or other process for appearance shall issue out of the 
 court of chancery until after the bill shall have been filed; (3) 
 
 2. Effect of Holiday Act on this Section. Our act "in relation 
 to legal holidays" provides that no court shall sit upon the days men- 
 tioned in the act. The prohibition is in reference to the sitting of the 
 court. The main object of the statute is to secure to all engaged in the 
 business of courts — judges, lawyers, jurors, suitors, witnesses, court 
 attendants, etc. — exemption from attendance at or upon the court on 
 those days, and hence the courts are forbidden to sit; but the probition 
 does not extend to all judicial acts. Courts on those days may do 
 ex parte business such as can be done at chambers; for example, the 
 court of chancery may grant injunction or award writs of ne exeat, 
 etc., and process may be tested on those days. There is a difference 
 between the legal holidays mentioned in the act and Sunday. Sunday 
 is not a holiday. Courts cannot sit nor can any judicial business be 
 transacted on that day, for that day is exempted from such business by 
 the common law by reason of its solemnity. McEvoy v. Trustees, 38 N. J. 
 Eq., 420; Glenn v. Eddy, 51 N. J. L., 255; Atlantic City v. Feretti, 70 
 N. J. L., 489 ; and see note 4 to section 3 infra. 
 
 3. Process on Supplemental Bill. Process on the original bill 
 should be served before a supplemental bill is filed. Cutwater v. 
 Berry, 6 N. J. Eq., .63. 
 
 Effect of Issuing Subpoena Before Filing Bill. The issuing of 
 the subpoena before filing the bill is irregular, and if promptly brought 
 to the notice of the court, the subpoena on motion for that purpose will 
 be set aside as illegally issued. The statute is merely directory of the 
 mode of proceeding, the time or form in which the thing is directed to 
 be done is not essential. The issue of the subpoena before filing bill 
 is a purely technical irregularity, and is waived by an appearance. Appli- 
 cation to take advantage of this defect must be made at the first oppor- 
 tunity; if a solicitor after notice of such irregularity takes any step 
 in the cause, or lies by and suffers his adversary to proceed therein 
 under a belief that his proceedings are regular, the court will not inter- 
 fere to correct the irregularity. Crowell v. Botsford, 16 N. J. Eq., 458. 
 So on motion to dismiss a supplemental bill, because no subpoena was 
 issued therewith, complainant may apply for leave to issue such sub- 
 poena nunc pro tunc. Barber v. Beers, July, 1884. As under rule 
 213, a motion to dismiss a bill, is in the nature of a demurrer, and as 
 by such motion a defendant puts himself in court by a general de- 
 fense, a motion by such defendant to vacate the service of a subpoena, 
 on the ground that the teste thereof antedates the filing of the bill, will 
 
Process for Appearance. 3 
 
 every writ or process shall be issued by a solicitor, or by the 
 clerk, at the instance of the party, and before the service or 
 execution thereof shall be subscribed or endorsed with the 
 name of the said solicitor or party, and also signed and sealed 
 by the clerk, and shall be in the form prescribed by the rules 
 of the court of chancery ; the names of all defendants in any 
 suit, who are resident in the same county, shall be inserted in 
 one subpoena or process 1(4) to every subpoena ad responden- 
 dum, a notice shall be added that the defendant is not required 
 to appear at Trenton in person, at the return day, but if he in- 
 
 not be entertained. Van Dyke v. Van Dyke, 49 Atl. Rep., 11 16 and see 
 "Motion to strike out," page 287, infra. 
 
 Amendment of Subpoena. A mistake in antedating a subpoena, 
 when in fact it was not issued before the filing of the bill, may be cor- 
 rected by amendment, even after final decree, execution and sale of 
 mortgaged premises thereunder. Dinsmore v. Westcott, 25 N. J. Eq., 
 302. 
 
 4. Form of Subpoena. The names of all the defendants in the 
 same cause shall be inserted in one subpoena, unless the defendants 
 reside in different counties, in which case the names of all those 
 who reside in the same county shall be inserted in the same subpoena. 
 Chancery rule 51. 
 
 Description of Parties. If the defendant is properly charged in 
 the bill as executor, devisee, or in any other special capacity, it is 
 no ground of demurrer that the subpoena is issued against him gener- 
 ally, without stating the character in which he is sued. It is by in- 
 specting the bill that the defendant ascertains the nature of the charge 
 against him. The subpoena only gives him notice that there is a bill 
 filed against him, and if he be properly charged in the bill as executor 
 or devisee, it is not a good objection that the subpoena is issued against 
 him generally. Walton v. Herbert, 4 N. J. Eq., 73 ; White v. Davis, 
 48 N. J. Eq., 22; aMrmed, 49 N. J. Eq., 567; Matthews v. Hoagland, 
 48 N. J. Eq., 455 ; Evans v. Evans, 23 N. J. Eq., 71 ; Ransom v. Geer, 
 30 N. J. Eq., 249. So in a suit to set aside as fraudulent an assignment 
 for benefit of creditors, where a person is properly charged in a bill 
 as assignee, it is not a good objection that he is not so styled in the 
 prayer for process or subpoena. White v. Davis, 48 N. J. Eq., 22; 
 and see "Bill" — "Prayer for Process," page 159, infra. 
 
 Effect of Making Subpoena Returnable on Sunday. If a sub- 
 poena ad respondendum is inadvertently made returnable on Sunday, 
 and is duly served more than ten days before the return day, it will 
 not , be quashed, but may be amended so as to make it returnable on 
 the following Monday. Sunday is not a holiday, that day being exempt 
 from judicial business by the common law and by our statute. McEvoy 
 v. Trustees, 38 N. J. Eq.; 420; Glenn v. Eddy, 51 N. J. L., 255; Law- 
 rence Harbor Colony v. American Surety Company, 70 N. J. L., 589, 
 and see note 2 to section 2 supra. 
 
 Effect of Making Subpoena Returnable on Holiday. The fact 
 that the subpoena ad respondendum is returnable on a legal holiday 
 is not ground for setting it aside. Kinney v. Emery, 37 N. jf. Eq., 339.; 
 Glenn v. Eddy, 51 N. J. L., 255. 
 
4 The Chancery Act Annotated. 
 
 tend to make a defense, it is only necessary for him to answer, 
 plead or demur to the bill within the time required by law. 
 
 4. Bill to Foreclose Mortgage; Ticket; Service with 
 Subpoena. Where a bill shall be filed on any mortgage, or 
 instrument in the nature thereof, for a foreclosure or sale of 
 the pr€;mises contained in the same, or any part thereof, and 
 the complainant shall deem it expedient to make any person a 
 defendant therein, other than the mortgagor, his heirs, execu- 
 tors, administrators, or assigns, such complainant shall, with 
 the subpoena to be issued against such other defendant, cause 
 to be issued a ticket, in writing, shortly making known for 
 what cause he is subpoenaed to answer; which ticket shall be 
 by the officer serving the subpoena, left with the said defend- 
 ant at the time of each service, and no charge be made there- 
 for. (5) 
 
 5. Service and Return of Process or Subpoena by Offi- 
 
 (As amended by P. L., 1913.) 
 cer. Every subpoena or process for appearance shall be 
 served by the sheriff or other officer authorized to serve writs 
 of summons and other common law processes, on the person 
 to whom it is directed, by giving to him personally a copy or 
 leaving a copy thereof at his dwelling-house or usual place 
 of abode, at least five days prior to its return, (6) and it shall be 
 
 5. Service of Ticket. Copies of tickets served with the sub- 
 poena upon defendants shall be annexed to and returned with the 
 subpoena. Chancery rule 52. 
 
 Objection that no Ticket has been Issued. An objection that 
 no ticket was issued with the subpoena is no ground of demurrer ; relief 
 on that ground must be obtained otherwise. Such an objection will, 
 moreover, be waived by an appearance in a suit. Ludington v. Eliza- 
 beth, 32 N. J. Eq., 159. And if a defendant appears and demurs to a 
 bill, he waives the issuing and serving of a ticket. Ludington v. Eliza- 
 beth, 32 N. J. Eq., 159. 
 
 Proof of Service. Where the ticket is attached to the sub- 
 poena, the sheriff's return "served" upon the subpoena is presumptive 
 proof of the service of the ticket. Bell v. Gilmore, 25 N. J. Eq., 104. 
 And an affidavit of the defendant, not denying that he was served with 
 the ticket, but merely asserting that he believes that he was served with 
 an ordinary subpoena only, is not sufficient to rebut the presumption 
 arising from the sheriff's return. Mulford v. Reilly, 32 N. J. Eq., 419. 
 
 6. "Dwelling House or Usual Place of Abode." Tbe statute 
 directs that service of process shall be made at the "dwelling house or 
 usual place of abode" of a defendant, and not at his residence. Where 
 persons have several residences which they permanently maintain, oc- 
 cupying one at one period of the year and another at another period, 
 process must be served at the dwelling house in which the defendant is 
 
Process for Appearance. 5 
 
 the duty of the sheriff or other officer, as the case may require, 
 of any county in this state, to whom any subpcena, order, 
 attachment, process of sequestration, writ of execution or other 
 process issuing out of the court of chancery, shall be directed 
 
 living at the time when the service is made. Stout v. Leonard, 37 N. J. 
 L., 492; Mygatt v. Coe, 63 N. J. L., 510; Camden Safe Deposit Co. v. 
 Barbour, 66 N. J. L., 103. It does not affect the legality of the service 
 that defendant was temporarily away, from such dwelling while his 
 family remained in it. Camden Safe Deposit Co. v. Barbour, 66 N. J. 
 L., 103. So where defendant was residing with his family in the house 
 of his mother in this state for the summer, during which time his own 
 house in New York City was open and in charge of a servant, and the 
 defendant testified that he considered both his mother's house and his 
 own house in New York equally his homes, it was held that leaving a 
 copy of the subpoena at his mother's house during the period of his 
 residence there was a good service, it being "his dwelling house or 
 usual place of abode." Harrison v. Farrington, 35 N. J. Eq., 4. Service 
 of subpoena upjon defendants by leaving copies with their father at work 
 in the field near the house on his farm where they live with him, said 
 defendants both being absent from home, and there being no one at the 
 house on whom they could be served, is held to be a substantial com- 
 pliance with the requirements of the statute. Wagner v. Blanchet, 27 
 N. J. Eq., 356. "Usual place of abode" does not mean defendant's 
 domicile or home in that sense of permancy in which those terms are 
 employed in the divorce act, the election law and the tax acts, and 
 hence where defendant was a student at a college in another state 
 who while on vacation was living at his father's home in this state, 
 service of process by leaving the same at his father's home was a good 
 service at his "usual place of abode." Missell v. Hayes, 85 Atl., 818. 
 
 Service oi Process Procured by Fraud. Where a petitioner 
 for divorce wrote his wife in another state, asking her to meet him at 
 a certain place within the state, and she complied with that request, but 
 the petitioner did not meet her, but caused process to be served upon 
 her at the place of meeting, such service will be set aside as fraudulent. 
 Heston v. Heston, 52 N. J. Eq., 91. 
 
 Effect of Defective Service of Process. Where a subpoena was 
 served by leaving a copy at the former place of abode of the defend- 
 ant, who had departed from this state without intention of returning, 
 such service is void, and the court will not acquire jurisdiction of the 
 person of the defendant. The proceedings made and taken in the suit 
 will not bind him, and on his application, made under a special appear- 
 ance entered for that purpose, must be set aside. Hervey v. Hervey, 56 
 N. J. Eq., 424. 
 
 Effect of Improper Service. While at law the declaration must 
 follow the writ and fall with it, the subpoena in equity is a mere notice, 
 and it can be quashed without affecting the bill; so that failure properly 
 to serve the subpoena is merely ground in abatement, and will not sup- 
 port a plea to the jurisdiction. Ewald v. Ortynsky, 77 N. J. Eq., 76; 
 afHrmed 78 N. J. Eq., 527. 
 
 Method of Taking Advantage of Insufficient Service. A defend- 
 ant in equity is entitled to question the jurisdiction of the court for 
 lack of proper service in limine before answer. Lanning v. Twining, 
 71 N. J. Eq., 573. The proper method of taking advantage of insufficient 
 service of process in a suit in chancery is by motion to set aside the 
 
6 The Chancery Act Annotated. 
 
 or delivered, to serve or execute the same, and to make return 
 thereof at the time and place therein mentioned, which shall 
 be filed by the clerk. (7) 
 
 5a. Service of Process on Corporation. 
 
 (P. L. 1907, p. 76.) 
 In any suit or proceeding heretofore or hereafter begun in 
 the court of chancery against a corporation of this state, pro- 
 cess of subpoena or other v^^rit, notice, orders, and papers of any 
 nature whatsoever in such suit or proceedings served upon the 
 president, vice-president, a director or the designated agent of 
 the corporation or other officer thereof, shall be good and effect- 
 ive service upon the corporation. (7a) 
 
 service based upon a conditional appearance. Ewald v. Ortynsky, 77 
 N. J. Eq., 76 ; afHrmed, 78 N; J. Eq., 527 ; distinguishing Puster v. Park- 
 er, 64 N. J. Eq., 599, and Kirkpatrick v. Post, 53 N. J. Eq., 641 and Wil- 
 son V. American Palace Car Co., 65 N. J. Eq., 730; see also Hervey v. 
 Hervey, 56 N. J. Eq., 166; affirmed, ib., 425; Groel v. United Electric 
 Co., 69 N. J. Eq., 397 and "Pleas," page 248, infra. As a condi- 
 tion of granting leave to the defendant to enter a special appear- 
 ance to contest the question of jurisdiction, there should be inserted 
 in the order an understanding or stipulation that the defendant will 
 submit without further process to the order of the court if the point 
 should be decided against him. Hervey v. Hervey, 56 N. J. Eq., 166- 
 173; S. C. ib., 424. While a plea to the jurisdiction of the court is 
 proper where it has jurisdiction of the subject matter and of the per- 
 son, as in case of a domestic corporation, the objection of want of 
 service should be made by motion to abate the suit until defendant 
 is properly served, and not by plea to the jurisdiction. Ewald v. Ortyn- 
 sky, 77 N. J. Eq., 76 ; affirmed, 78 N. J. Eq., 527 ; and see "Pleas," page 
 248, infra; so the court may set aside a service of a subpoena which has 
 by mistake been served on a person other than defendant and may order 
 the issuance of a new writ and its service on defendant. Ewald v. 
 Ortynsky, 78 N. J. Eq., S27. 
 
 7. Validity of Return of Officer. The Sheriff's return "served" 
 is presumptive proof of service of the subpoena. Bell v. Gilmore, 25 
 N. J. Eq., 104; Mulford v. Reilly, 32 N. J. Eq., 419; and the return of 
 an officer upon the process is conclusive even as to matters of opinion 
 stated therein to be made, the only remedy for a false return being an 
 action against him. Ewald v. Ortynsky, 77 N. J. Eq., 76; afHrmcd, 78 
 N. J. Eq., 527. 
 
 7a. Effect of Service on Non-resident Temporarily Within the 
 State. If a subpoena is served upon an officer of a foreign corpo- 
 ration while casually in the state, such service will not be set aside. The 
 subpoena is notice to defendant of pending litigation, thus affording it an 
 opportunity of coming in and taking part in it if it sees fit to do so. 
 Such service can do defendant no harm, as it is not to be assumed that 
 the Court of Chancery would pronounce a decree founded on process of 
 this character that would be illegal and contradictory to the Federal 
 Constitution. Puster v. Parker Mercantile Co., 64 N. J. Elq., S99; Hill 
 V. Henry, 66 N. J. Eq., 150; Kirkpatrick v. Post, S3 N. J. Eq., SQi- 
 
Process for Appearance. 7 
 
 6. Written Appearance Equivalent to Subpoena. A 
 
 written appearance in any suit in chancery, or a written ac- 
 knowledgment of the service of any subpoena to answer, 
 signed by a defendant or his solicitor, shall have the same 
 force and effect as if such defendant had been regularly 
 served with a subpoena to answer, by the sheriff or any other 
 proper officer; provided, such signature of the party be veri- 
 fied by affidavit. (8) 
 
 8. Authority to Enter Appearance. The entry of an appear- 
 ance for a defendant carries with it a presumption that it was entered 
 by his authority. If the contrary is alleged, affirmative proof must be 
 produced, and until it is, the defendant will be treated as properly in 
 court. Dey v. Hathaway Printing & Telephone Co., 41 N. J. Eq., 419; 
 Mutual Life Insurance Co. v. Pinner. 43 N. J. Eq., 52 ; Gifford v. Thorn, 
 9 N. J. Eq., 702; Purcell v. Bennett, 53 Atl., 235. But if it' is satis- 
 factorily proved, promptly after discovery of the fact, that an appear- 
 ance was entered without authority, the defendant will be relieved from 
 its consequences. Mutual Life Ins. Co. v. Pinner, 43 N. J. Eq., 52 ; Mer- 
 ritt V. Merritt, 48 N. J. Eq., i; affirmed, 51 N. J. Eq., 638. One of 
 several joint debtors has no authority to enter the appearance of the 
 remaining joint debtors in a suit brought against all of them. Davis 
 V. Megroz, 55 N. J. L., 427. 
 
 What Constitutes an Appearance. If a defendant files a de- 
 murrer or other pleading, such act will constitute an appearance in the 
 suit for all purposes, and will preclude him from denying that he is in 
 court. Albert v. Clarendon Investment Co., 53 N. J. Eq., 623 ; Lud- 
 ington V. Elizabeth, 32 N. J. Eq., 159. So a motion to dismiss the bill 
 for want of equity is equivalent to filing a general demurrer, and 
 amounts to a general appearance. Albert v. Clarendon Land Co., 53 
 N. J. Eq., 623 ; Van Dyke v. Van Dyke, 49 Atl., 11 16. 
 
 Effect of Entering a General Appearance. No rule is better 
 settled than that a general appearance is a waiver of any irregularity in 
 bringing the defendant into court, while the opposite is the result of a 
 special appearance to raise the objection of irregularity. Mulhearn v. 
 Press Publishing Co., 53 N. J. L., 150; Watson v. Noblett, 65 N. J. L., 
 S06. So where a subpoena is issued before the bill is filed, such defect 
 is waived by an appearance. Crowell v. Botsford, 16 N. J. Eq., 458. 
 And so an objection that parties to a suit are foreign executors, and 
 not amenable to suit in this state, is waived by their appearance in the 
 suit. Newark Saving's Institution v. Jones, 35 N. J. Eq., 406. So if a 
 defendant answers or appears upon the return of the subpoena, he 
 will be held to have waived the issue and service of the ticket. Lud- 
 ington v. Elizabeth, 32 N. J. Eq., 159. So the irregularity of filing a 
 supplemental bill without leave for that purpose first obtained will be 
 considered as waived by a voluntary appearance by the defendants. 
 Allen V. Taylor, 3 N. J. Eq., 435. 
 
 Appearance for a Special Purpose. If a party to a suit wishes 
 to make an application to the court in the cause, but does not wish to 
 become bound by an appearance in the suit, he may make his applica- 
 tion under a special appearance entered for that purpose. Hervey v. 
 Hervey, 56 N. J. Eq., 424; Franklyn v. Taylor, &c. Co., S2_Atl., 714, and 
 a special appearance, entered for the sole purpose of objecting to the 
 jurisdiction of the court, will not be stricken out because filed without 
 
8 The Chancery Act Annotated. 
 
 7. Writ of Ne Exeat; When Granted; Indorsements. 
 
 No writ of ne exeat shall be granted, unless satisfactory proof 
 be made that the defendant designs quickly to depart from 
 this state ; and if granted, the chancellor, a vice chancellor, 
 or an injunction master, shall direct to be indorsed thereon 
 the sum in which the party shall give bond, with satisfactory 
 surety or sureties. (9) 
 
 8. Security or Deposit for Costs. If the complainant 
 reside out of this state, he shall, before the issuing of a process 
 to appear, cause a bond to be executed by at least one suffi- 
 cient person, being a freeholder and resident within this state, 
 to the defendant in the penal sum of one hundred and fifty 
 dollars, conditioned to prosecute the suit with effect and to 
 pay costs to the defendant, if he shall be entitled thereto, and 
 have the same filed with the clerk,(io) or, in default thereof, 
 
 any special leave or order of the court. Groel v. United Electric Co. 
 of N. J., 68 N. J. Eq., 249; but see Allman v. United Brotherhood, 81 
 Atl., 116. 
 
 9. Ne Exeat. For general consideration of this subject, see 
 ne exeat, page 349, infra. 
 
 10. Jurisdiction to Require Security from Non-resident Com- 
 plainant. The right of a defendant in equity to require from the 
 complainant, who is a non-resident, security for the costs qf the suit, 
 does not rest alone upon the provisions of the statute. It is an ancient 
 and well established rule that if the complainant is resident abroad, the 
 court, upon the application of the defendant, will order him to give 
 security for costs and, in the meantime, direct that all proceedings be 
 stayed. Newman v. Landrine, 14 N. J. Eq., 291. 
 
 When a Resident Complainant is Joined with a Non-resident. A 
 complainant who is a non-resident will not be required to give security 
 for costs if he is joined with a resident complainant, for the reason 
 that as each complainant is bound for the whole costs, and one com- 
 plainant is a resident of this state, the defendant has security. Jones 
 V. Knauss, 33 N. J. Eq., 188. 
 
 Where Complainant Removes from State after Suit Commenced. 
 A complainant, who was a resident of this state at the time of filing his 
 bill, but who removes from the state after the commencement of the 
 suit, will be required to give security for the costs of the suit. New- 
 man V. Landrine, 14 N. J. Eq., 291. 
 
 Affidavits on Application for Order for Security for Costs. Upon 
 an application for an order requiring complainant to give security for 
 costs, defendant's affidavits must show clearly that he did not know of 
 complainant's non-residence before taking his last step in the cause. 
 If this fact be not clearly proven, the application will be denied. New- 
 man v. Landrine, 14 N. J. Eq., 291. 
 
 Waiver of Right to Require Security for Costs. If the fact of 
 the non-residence of the complainant appears on the face of the bill, or 
 is known to the defendant, he must apply for security before taking any 
 
Process for Appearance. 9 
 
 the complainant's solicitor, who shall file the said bill and issue 
 process thereon, shall be. responsible to pay the defendant 
 such costs as he may be entitled to by the order of the court, 
 to an amount not exceeding the penalty of said bond ; ( 1 1 ) and 
 whether the said bill and process be signed by the complainant 
 or his solicitor, the said suit may be stayed until such bond be 
 filed, and if it be not filed by the time appointed by the court, 
 the bill shall be dismissed with costs ; provided, in lieu of such 
 bond the complainant may deposit with the clerk the sum of 
 one hundred and fifty dollars in money. (12) 
 
 step in the cause. If, after notice of non-residence, the defendant takes 
 any step in the cause, he thereby waives security for costs. Newman 
 V. Landrine, 14 N. J. Eq., 291 ; Shuttleworth v. Dunlop, 34 N. J. Eq., 488. 
 And so if the defendant proceeds with the cause in his own behalf, after 
 obtaining an order requiring the complainant to give security, it amounts 
 to a waiver of the right of security. Reed v. Benzine-Ated Soap Co., 
 72 N. J. Eq., 622. And so where defendant asks for the continuance of 
 an interlocutory motion, and afterwards proceeds to hearing on it 
 without objection, he waives his right to security for costs. Shuttle- 
 w6rth v. Dunlop, 34 N. J. Eq., 488; and so filing a demurrer. Long v, 
 Majestre, I Johns. Ch., 203; taking an order for time to answer, Good- 
 rich ^. Pendleton, 3 Johns. Ch., 520; Rommel v. Kirk, 4 N. J. L. J., 216: 
 and obtaining an order extending the time within which the testimony 
 should be closed, Newman v. Landrine, 14 N. J. Eq., 291 ; have been 
 held to amount to a waiver. For additional cases of acts held to have 
 constituted a waiver, see Reporters Note to Shuttleworth v. Dunlop, 34 
 N. J. Eq., 488. 
 
 11. Power to Hold Solicitor for Costs. The power to hold a 
 solicitor for costs, when- the complainant is a non-resident, is purely 
 statutory, and will only be enforced where^the complainant is required 
 to give security; and if the right to such security is waived as to the 
 complainant by the defendant, the waiver inures to the benefit of the 
 solicitor. Reed v. Benzine-Ated Soap Co., 72 N. J. Eq., 622 ; and see 
 "Waiver of Right to require Security for Costs," supra. An answer by 
 way of cross bill, filed under chancery rule 206, is a pleading in the 
 original cause, and costs taxed thereon are costs for which the solici- 
 tor filing a bill for a non-resident complainant is responsible, if the 
 complainant has not given the security required by the statute. Reed 
 V. Benzine-Ated Soap Co., 72 N. J. Eq., 622. 
 
 12. Notice of Filing Security. A complainant, whose suit has 
 been stayed by order until he files security for costs, does not relieve 
 hitnself from the stay, so as to put the defendant in default for not 
 pleading, by simply filing security ; but to place the defendant in a 
 position where time will run against him, the complainant must, in 
 addition to filing security, give notice that it has been filed. Southern 
 National Bank v. Darling, 49 N. J. Eq., 398. 
 
10 The Chancery Act Annotated. 
 
 III. DESCRIPTION OF PARTIES WHOSE NAMES 
 ARE UNKNOWN. 
 
 9. Designation of Married Women as Parties Defend- 
 ant. In any suit hereafter to be commenced in the court 
 of chancery wherein it shall be thought necessary or proper 
 to make any married woman a party, and it shall appear by 
 the affidavit of the complainant, or his solicitor, annexed to 
 the bill of complaint, and filed therewith, that, notwithstanding 
 due inquiry has been made therefor, the christian name of 
 such married woman cannot be ascertained, .it shall be 
 lawful and sufficient to designate any such married woman 
 by the name of her husband, with "Mrs." prefixed thereto; 
 it shall be lawful for any married woman so designated in 
 any suit, to appear and plead, answer or demur, either by 
 the name by which she shall have been made a party, or by 
 her own christian name, but if by the latter, she shall also 
 state the name by which she was made a party. 
 
 10. Designation of Persons not known to be Dead, 
 their Heirs, Devisees or Personal Representatives as Parties 
 Defendant; Service of Notice on such persons. In all 
 
 actions hereafter commenced in the court of chancery, when- 
 ever it shall appear by the allegations of the bill or petition, 
 duly verified by affidavit thereto annexed, that any person 
 mentioned in said bill or petition, or his heirs, devisees or 
 personal representatives, are proper parties defendant to said 
 bill of complaint or said petition; and that the complainant 
 or petitioner, after diligent and careful inquiry therefor, made 
 as in case of absent defendants, has been unable to ascertain 
 whether such person is still alive, or if he is known or be- 
 lieved to be dead, has been unable to ascertain the names 
 and residences of his heirs, devisees or personal representa- 
 tives, or. such of them as may be proper parties defendant 
 as aforesaid, such action may proceed against such person 
 by name, and his heirs, devisees and personal representatives, 
 as in the case of absent defendants whose names are known ; 
 and such notice as is required by law to be published against 
 absent defendants in default of personal service, addressed 
 to such person by name, and to "his heirs, devisees and per- 
 sonal representatives," and containing such further statements 
 
Absent Defendants. 11 
 
 and giving such further time as the chancellor may by his 
 order direct, shall be first published and mailed in such 
 manner as the chancellor may, by his order in said action, 
 direct; and in case such person, or his heirs, devisees or 
 personal representatives, shall not appear, plead, answer or 
 demur within the time limited in said notice, or further allowed 
 by the chancellor, if he shall think proper, on proof to the 
 satisfaction of the chancellor of mailing and publication of 
 said notice as directed, such action may proceed in all respects 
 as if such person, or his heirs, devisees or personal repre- 
 sentatives had been duly named and described and served 
 with process ' of subpoena in said action, and had failed to 
 plead, answer or demur^ within the time thereto allowed by 
 law.(i) 
 
 11. Persons Summoned in Accordance with Preceding 
 Section Bound by Decrees. All such defendants, and all 
 persons falling within the description of "heirs, devisees or 
 personal representatives" of the defendant supposed to be dead 
 as aforesaid, shall thereupon be bound by all orders and decrees 
 in said cause as if they had been duly riamed and described 
 and served with process in this state, and proofs may be made, 
 costs allowed, security ordered and proceedings for restitu- 
 tion or other relief from said decrees and orders had in like 
 manner as the same are now allowed by law in the case of 
 absent defendants. (2) 
 
 IV. PROCEEDINGS AGAINST NON-RESIDENTS. 
 
 12. Absent Defendants; Order of Publication. In case 
 of a bill filed against any defendant against whom a subpoena 
 or other process to appear shall issue, and such defendant 
 
 1. Application of Section to Suit to Quiet Title. This section 
 cannot be deemed to have any application to the act to quiet titles. 
 This is not because its language is not broad enough to include all 
 suits that may be properly brought in this court, but because it does not 
 fit the act. The requirements of that act are such that unascertained 
 defendants are excluded from its application. Hill v. Henry, 66 N. J. 
 Eq., 150; and see "Bills to Quiet title," page 218, infra. 
 
 2. Construction of Act. This section does not apply to the 
 "Act to compel the determination of claims to real estate in certain 
 cases to quiet the title to the same." Hill v. Henry, 66 N. J. Eq., 150. 
 
12 The Chancery Act Annotated. 
 
 shall not cause his appearance to be entered in such suit, as 
 according to the practice of said court the same ought to be 
 entered, in case such process has been duly served, and it shall 
 be made to appear, by affidavit or otherwise, to the satisfaction 
 of the chancellor, that such defendant is out of the state, or 
 cannot, upon due inquiry, be found therein, or that he con- 
 ceals himself within this state, or that none of the officers or 
 directors of a defendant corporation of this state is resident 
 in this state or can be found therein to be served with process, 
 every such defendant shall be deemed and taken to be an absent 
 defendant, ( I ) and thereupran the chancellor may, by order, 
 direct such absent defendant to appear and plead, answer or 
 demur to the complainant's bill or petition, at a certain day 
 therein to be named, not less than one nor more than three 
 months from the date of such order. (2) 
 
 1. Application of Act When Defendant is a Resident. The 
 
 statute applies as well to persons who may be domiciled in this state 
 and who have concealed themselves, or who cannot be found therein, 
 as to non-residents. Where, therefore, a subpoena is returned with an 
 affidavit by the sheriff that he has made due and diligent inquiry for 
 the defendant, and was informed and believed that he was not a resi- 
 dent of his county at that time, but of another state, the order for 
 publication is warranted, though the defendant was in fact a resident of 
 this state. Equitable Life Ins. Co. v. Laird, 24 N. J. Eq., 319 ; affirmed, 
 26 N. J. Eq., S3I. 
 
 Validity of Sheriff's Return "Not Found Within the State." 
 
 Where the sheriff's return vipon the subpoena was that defendant "could 
 not be found" with the usual affidavit of non-residence, such return is 
 conclusive, except where collusion between the sheriff, and the com- 
 plainant, or his solicitor is shown. Corey v. Voorhees, 2 N. J. Eq., 5. 
 
 2. When Order May be Made. No order of publication shall 
 be made in any suit until after the return day of the citation or subpoena 
 therein, without the special order of the court. Chancery rule 56. 
 
 Feme Covert Defendants. In cases where husband and wife 
 are made defendants, and he only is served with process of subpoena, 
 the wife being out of the state, an order of publication shall be taken 
 against her, unless an appearance be entered for her. Chancery rule 55. 
 
 When Order Returnable. In all suits against an aabent defend- 
 ant, an order may be had that said defendant appear, plead, answer or 
 demur to the complainant's bill in two months from the date of the 
 order, unless the Chancellor, for special reasons) shall otherwise direct. 
 Chancery rule S4- 
 
 Amendtnent of Order. An error in the name of the paper in 
 which notice to an absent defendant was directed to be published is 
 amendable even after execution, when there can be no question but that 
 the notice was published in the paper intended by the court in making 
 the order. Equitable Life Insurance Co. v. Laird, 24 N. J. Eq., 319; 
 affirmed, 26 N. J. Eq., 531. 
 
 Effect of the 14th Amendment to the Constitution of the 
 
Absent Defendants. 13 
 
 United States. The statutes of New Jersey have long contained 
 provisions according to which the Court of Chancery may make de- 
 crees against absent defendants with the same efifect as if they were 
 present. Since the adoption of the 14th Amendment to the Federal 
 Constitution in 1864, hoWever, New Jersey has not possessed sovereign 
 power in this regard. The clause in that amendment declaring that no 
 state should deprive any person of life, liberty or property without due 
 process of law annulled such of our statutes as authorized judicial pro- 
 ceedings not in harmony with that injunction. In Permoyer v. NefT, 95 
 U. S., 714, the Supreme Court of the United States held that the term 
 "due process of law," when applied to judicial proceedings which were 
 not in the nature of a proceeding in rem, required that the defendant 
 in a state court should be brought within the jurisdiction either by 
 service of process within the state or by his voluntary appearance ; and 
 in Clair v. Cox, 106 U. S., 350, the same rule was declared as to 
 foreign corporations. Wilson v. American Palace Car Co., 65 N. J. 
 Eq., 730. 
 
 The following propositions have been established by the Supreme 
 Court of the United States : 
 
 1. That a personal judgment is without validity if it be rendered by 
 a state court in an action upon a money demand against a non-resident 
 proceeded against by publication, but not personally served with process 
 within the state and not appearing. Lanning v. Twining, 71 N. J. Eq., 
 573. 
 
 2. That no validity is imparted to such a judgment by the fact that 
 the defendant has, at the time the action is commenced, property with- 
 in the state upon which a levy can be made under such judgment. Pen- 
 noyer v. Neflf, 95 U. S., 713. 
 
 3. That even a judgment for costs in an action of trespass to try 
 title, the plaintiff claiming only an undivided interest, although it is a 
 suit quasi in rem, cannot be made out of an undivided share of a non- 
 resident, he not being personally served and not appearing. Freeman 
 v. Alderson, 119 U. S., 185. 
 
 4. In suits strictly in rem — that is, where the property itself is con- 
 ceived as having done the wrong or as having been the instrument of 
 its commission, and is being proceeded against — and in suits quasi in 
 rem — that is where the suit is against the person in respect of the res, 
 as for example a partition sale or other disposition of defendant's prop- 
 erty within the jurisdiction, to satisfy plaintifif's demand by enforcing 
 a lien upon it — personal service within the jurisdiction or appearance 
 is not necessary. There is, however, this distinction between these two 
 classes of proceedings ; in the former, public citation to the world is all 
 that is necessary and the decree binds everybody; in the latter, defend- 
 ant's interest is alone such as to be aflfected. He must be cited to appear, 
 and a judgment in the proceeding is conclusive only between the 
 parties. Freeman v. Alderson, 119 U. S., 185. 
 
 5. Both classes of cases last mentioned have this in common, that 
 the res, the subject of the controversy, is within the jurisdiction; and 
 it is because this is so that the court is able to afifect defendant's in- 
 terest in it. There is a further case, illustrated by proceedings to 
 quiet title. This case is based upon a denial of any res in the defend- 
 ant, and in this class of cases the Supreme Court has taken a distinction. 
 If the decree sought be a decree operating in personam, only, to remain 
 under the ordinary jurisdiction of equity — <a. decree, for instance, that the 
 defendant make or cancel a conveyance or that defendant be restrained 
 from asserting his claim — it can only be made after personal service 
 
14 The Chancery Act Annotated. 
 
 within the jurisdiction or after appearance. Hart v. Samson, no U. S., 
 151. But if the decree be taken under a statute which authorizes the 
 court to determine the question of title and to decree it to the party- 
 entitled, then it binds without such service or appearance if the statute 
 has provided "a reasonable method of imparting notice." Arndt v. 
 Greggs, 134 U. S., 316; Hill v. Henry, 66 N. J. Eq., 150. The Court 
 of Qiancery may acquire jurisdiction of a suit to establish rights in per- 
 sonal prop'erty in the custody of a person in this state as against a non- 
 resident, as such a suit would be one quasi in rem, a. decree in per- 
 sonam not being necessary to transfer the legal title to complainant, 
 since the court can enforce the decree by the appointment of a receiver 
 to take possession of the property, and by a decree enjoining the cus- 
 todian from interfering with the receiver's possession. Such jurisdic- 
 tion is founded upon the existence of a power to seize the property, 
 and a mere possibility that the court's decree may be rendered nuga- 
 tory by the removal of the property from the state does not destroy 
 the quality of the suit as one quasi in rem. Amparo Mining Co. v. 
 Fidelity Trust Co., 74 N. J. Eq., 197; aMrm^d, 75 N. J. Eq., 555. The 
 elements of an action quasi in rem have been held to be : 
 
 1. A res located within the territorial limits of the state in such a 
 way that the state can, if it see iit to do so, exercise absolute power to 
 control and dispose of it. 
 
 2. A course of judicial procedure, the object and result of which 
 are to subject the res to the power of the state directly by a judgment 
 or decree which is entered, as distinguished from a course of proce- 
 dure which only affects or disposes of the res by compelling a party 
 to the action to control or dispose of the res in accordance with the 
 mandate of the judgment or decree. 
 
 3. A course of judicial procedure on its face directed specifically 
 toward the res, so as to disclose this res to the defendant when rea- 
 sonably notified of the action. Amparo Mining Co. v. Fidelity Trust 
 Co., 74 N. J. Eq., 197; affirmed, 75 N. J. Eq., 555. So when the object 
 of the suit is to enforce a specific lien upon the property of the defend- 
 ant within the state, or when the court obtains control over such 
 property, or when the status of a citizen of the state is the subject of 
 adjudication, a state court may be authorized, after reasonable effort to 
 notify the absent defendant, to enforce the claim of the plaintiff re- 
 specting such property or status. In such cases the court acquires a 
 jurisdiction quasi in rem sufficient to support a limited judgment. An- 
 drews V. Guayaquil & Quito R. R. Co., 69 N. J. Eq., 211, affirmed, 71 Atl., 
 1 133; Wilson V. American Palace Car Co., 65 N. j. Eq., 730; Sohege v. 
 Singer Mfg. Co., 73 N. J. Eq., 567 ; Amparo Mining Co. v. Fidelity Trust 
 Co., 74 N. J. Eq., 197 ; affirmed, 75 N. J. Eq., 555. And so a general notice 
 that an opportunity to be heard has been given, has been held to be 
 sufficient where land is to be sold for non-payment of taxes. Glidden 
 V. Harrington, 189 U. S., 255 ; or where land is condemned for rail- 
 way purposes ; Huling v. Kaw Valley R. R., 130 U. S., 559. So where 
 an action is brought which involves property within the state, and non- 
 resident defendants are fairly notified of the action, and have ample 
 opportunity to appear and be heard therein, the rights of all parties in- 
 terested in such property are determined in such action by due process 
 of law. Amparo Mining Co. v. Fidelity Trust Co., 74 N. J. Eq., 197; 
 affirmed, 75 N. J. Eq., 555. So where, on a bill by a citizen or for- 
 eigner to have shares in a New Jersey corporation held by foreign 
 residents awarded to complainants, and to have their names placed 
 on the stock register, the court has enjoined the transfer of the 
 shares and appointed receivers of them, the foreign defendants may 
 
Absent Defendants. 15 
 
 13. Absent Defendants; Service or Publication of No- 
 tice to Plead, Etc. 
 
 (As amended by P. L., 1912, p. 224.) 
 
 Such notice of said order as the chancellor shall by rule di- 
 rect(3) shall, within twenty days thereafter, or within such 
 shorter time as the chancellor shall direct, be served person- 
 be brought in by substituted service. Sohege v. Singer Mfg. Co., 73 
 N. J. Eq., 567. But in a suit by a receiver of a corporation against 
 non-resident directors to recover money lost by it by reason of their 
 negligence and improper conduct, the court can acquire no jurisdiction 
 in personam by substituted service. The legislature has not attempted 
 to put non-resident directors, when they are sued for negligence, on 
 any different footing, in respect to service of process, from any other 
 class of persons when so sued; it is not sought "to compel them to 
 waive their constitutional privilege as a prerequisite to holding corpo- 
 rate office. The distinction made by the Supreme Court of the United 
 States is between suits in personam and suits in rem or quasi in rem. 
 Lanning v. Twining, 71 N. J. Eq., 573 ; and see "Validity of Decree," 
 page 20, infra. 
 
 Validity of Order Where Decree in Personam is Sought. An 
 
 order of publication will not be set aside as improvidently entered 
 where it appears that the court has no jurisdiction over the defend- 
 ants named therein. The power of the court to order publication 
 against' a non-resident extends to any bill filed, and cannot be con- 
 strued to be limited to a bill filed to enforce demands upon which the 
 court has jurisdiction to make final decree if the non-resident does 
 not appear; thus, on a bill calling for a personal decree, an order of 
 publication is not objectionable even though a decree cannot be taken 
 against such defendants if they fail to appear. Such an order is not 
 repugnant to the 14th Amendment of the United States Constitution 
 on the ground of taking property without due process of law. The 
 Supreme Court has declared the operation of the amendment to be 
 confined to cases where property is taken or attempted to be taken by 
 process issued under judgment; and the benefit of its protection cannot 
 be claimed against statutes of a state which merely regulate procedure 
 in cases prior to the final judgment. Post v. Kirkpatrick, 53 N. J. Eq., 
 641 ; York v. Texas, 137 U. S., 15 ; Kauffman v. Wooters, 138 U. S., 
 235. The mere entry of a judgment for money, which is void for 
 want of proper service, touches neither person not property. It is 
 only when process is issued thereon, or a judgment is sought to be 
 enforced, that liberty or property is in present danger. If at that 
 time of immediate attack the substantial guarantee of the amendment is 
 preserved, there is no just cause of complaint. Kirkpatrick v. Post, 
 S3 N. J. Eq., sgi ; affirmed, ib., 641 ; Puster v. Parker Mercantile Co., 
 64 N. J. Eq., 599; but see Ewald v. Ortynsky, yy N. J. Eq, 76; and see 
 "Validity of Decree," page 20, infra. 
 
 3. Form of Notice. Such notice shall be entitled in the court 
 only, not in the cause, shall be addressed to the absent defendants by 
 name, shall state the date of the order, the name of the complainant, 
 and the time within which the absent defendants are required to 
 appear, plead, answer or. demur; the notice shall also state briefly, in 
 general terms, the object of the suit, and why the persons to whom 
 it is addressed are made defendants ; and in foreclosure suits state the 
 
16 The Chancery Act Annotated. 
 
 ally on such absent defendant, by a delivery of a copy thereof 
 to him, or be published four times in one or more of the public 
 newspapers printed in the state and designated in such order 
 during four consecutive calendar w^eeks, at least once in each 
 week; and in case of such publication, a copy of such notice 
 shall be mailed to such defendant, prepaid, directed to him 
 at the post-office nearest his residence, or the post-office at 
 which he usually receives his letters, (4) unless such residence 
 
 parties to the mortgage to be foreclosed, the date thereof and the 
 municipality and county in which the lands are situated ; and in suits un- 
 der the "Act to compel the determination of claims to real estate in 
 certain cases and to quiet the title to the same," shall describe the lands 
 in respect to which the bill is filed with precision, and state the object 
 of the suit, and notify the defendants that if they claim any title to, 
 interest in, or encumbrances upon said lands, they are required to 
 answer the bill, but not otherwise ; and in suits under the "Act to 
 compel the determination of the existence and validity of covenants, 
 conditions and agreements for the forfeiture and payment of sums of 
 money or penalties on breach thereof, and of restrictions contained in 
 deeds of conveyance of real estate (P. L., 1909, p. 223), shall describe 
 the lands in respect to which the bill is filed with precision, state the 
 object of the suit, set out the covenants, conditions, agreements and 
 restrictions, the existence and validity of which are sought to be 
 determined in said suit, and notify the defendants that if they claim 
 any right, title or interest in, under or to such covenants, conditions, 
 agreements or restrictions, they are required to answer the bill, but not 
 otherwise. Such notice shall be signed witht the name and post office 
 address of the solicitor of the complainant, or of the complainant if 
 he has no solicitor, and the mailing of such notice, in the manner 
 herein directed, shall be sufficient service thereof. Chancery rule 58. 
 The notice of the order of publication to be served on an absent de- 
 fendant is required to state the object of the suit, and if the notice un- 
 dertakes unnecessarily to assert the grounds upon which rehef is 
 sought, it must state grounds which give jurisdiction to the court to 
 decree relief, otherwise it will be defective. Brant v. Brant, 71 N. J. 
 Eq., 66. So the notice required by this rule must apprise the defend- 
 ant not only that he is suedj but also of the nature of the suit, and 
 must disclose the res toward which the suit is directed. Amparo Min- 
 ing Co. V. Fidehty Trust Co., 74 N. J. Eq., 197; aMrmed, 75 N. J. Eq., 
 555- 
 
 4. Notice to be Published. Where publication is required for 
 absent defendants to appear, plead, answer or demur to the bill, there 
 shall be published or served a notice substantially of the form pre- 
 scribed by rule 58; and if published, and the suit is concerning land, 
 such publication shall be in a newspaper published in the county where 
 the lands are situated, or in case the lands are situated in more than 
 one county, then in a newspaper published in each covmty in which the 
 lands are situated, unless otherwise ordered. Chancery rule 57. Pub- 
 lication of the notice to an absent defendant should be made at that 
 place in this state where the notice is most likely to come to his at- 
 tention. A complainant who procures an order of publication directing 
 an improper or insufficient publication to be made, takes it at his peril. 
 Stone V. Stone, 28 N. J. Eq., 409. The publication and service of the 
 
Absent Defendants. 17 
 
 or post-office be unknown and cannot be ascertained upon mak- 
 ing such inquiries as the chancellor may, by rule, prescribe in 
 such case, which said notice shall also be published or served 
 in any other manner that the chancellor may see proper in the 
 same to direct; the solicitor shall be entitled to one dollar and 
 fifty cents for every notice served or mailed as aforesaid. (5) 
 
 14. Absent Defendants; Failure to Appear; Decree 
 Pro Confesso. In case such absent defendant shall not 
 
 order, instead of the notice as required by the statute and rule, is a 
 mere formal error. Rogers v. Rogers, 18 N. J. Eq., 445. 
 
 5. Nature of Inquiry for Absent Defendant. The complain- 
 ant or his solicitor, or his agent actually entrusted with the manage- 
 . ment and conduct of the suit, shall, in all cases where the residence and 
 post office address of an absent defendant not actually served with the 
 notice to appear shall not be known, make diligent and careful inquiry 
 therefor; such, inquiry shall, as to persons made defendants by rea- 
 son of a judgment, attachment or decree, include inquiry of the plain- 
 tiff's attorney or solicitor in such judgment, attachment or decree, if 
 residing within this state, and as to persons made defendants by 
 reason of any mortgage or contract stated in the bill shall include in- 
 quiry of the person who made the mortgage or contract, if known and 
 residing in this state, and in any suit for divorce, such inquiry shall 
 be made of the nearest relatives of the defendant, if known; or if not 
 known, such inquiry shall be made of any person known to be connected 
 with the defendant by marriage or in business, or of any person 
 who the complainant or his solicitor making the inquiry has reason to 
 believe possesses knowledge of the residence or post office address of 
 the defendant ; such inquiries may be made in person or by letter, and 
 shall state that suit has been commenced against the person inquired 
 for, and that the object of the inquiry is to give him notice of such 
 suit, that he may appear and defend it; and when made by letter, shall 
 enclose a proper postage stamp for return of an answer. Chancery 
 rule 59. Where the affidavit as to service shows only inquiry of com- 
 plainant's relatives, and it does not appear whether defendant had 
 notice in fact, the service is insufficient. Barker v. Barker, 63 N. J.. 
 Eq., 593. But it is no proof that the efforts of the solicitor fell short of 
 "diligent and careful inquiry" that he omitted to send notice of the 
 foreclosure suit to a defendant at a place designated as his residence 
 in a deed made fifteen years previously. Leonard v. New York Bay 
 Co., 28 N. J. Eq., 192; affirmed, 28 N. J. Eq., 467-469- 
 
 Rules to Apply to Proceedings Commenced by Petition. The 
 53rd, S7th, s8th, S9th, and 6oth rules shall apply to suits for divorce 
 commenced by bill or petition, and to all other proceedings commenced 
 by petition; and the term complainant, in the rules of this court, shall 
 be held to include the petitioner in suits or proceedings commenced by 
 petition. Chancery rule 61. 
 
 Defects in Notice. Where the notice required to be given to an 
 absent defendant was entitled in the cause and was not directed to the 
 defendant nor mailed within twenty days after the date of the order, 
 such defendant will be held not to be within the jurisdiction of the 
 court, and no decree can be made against him. Karr v. Karr, 19 N. J. 
 Eq., 427 ; Hervey v. Hervey, 56 N. J. Eq., 424. 
 
18 The Chancery Act Annotated. 
 
 appear, plead, answer or demur within the time so limited, or 
 within some further time to be allowed by the chancellor, if 
 he shall think proper, and on proof of personal service, or 
 the publication and the mailing of said notice as aforesaid, 
 and of the performance of the direction contained in said or- 
 der, to the satisfaction of the chancellor, the chancellor may 
 order and direct that the complainant's bill or petition be taken 
 as confessed against such absent defendant so faiUng to plead, 
 answer or demur, or the chancellor may, at his discretion, order 
 the complainant to produce documents, depositions, exhibits 
 or other evidence to substantiate and prove the allegations in 
 the bill or petition, or the chancellor may examine the com- 
 plainant on oath or affirmation, touching or concerning such 
 allegations, and thereupon such decree shall be made in either 
 case as the chancellor shall think equitable and just. (6) 
 
 6. Proof of Service; Publication and Inquiry. No decree 
 pro confesso shall be taken against an absent defendant who has not 
 appeared or been served with process of subpoena, unless it shall 
 appear by proof that the notice prescribed by the fifty-eighth rule has 
 been served personally upon him, or that it has been published and also 
 mailed in the manner required by law and the rules of this court; or 
 unless it shall appear by the affidavit of the complainant or his solicitor, 
 or the person actually entrusted with the management and conduct of 
 the suit, that inquiry has been made in good faith and without success 
 for the post office address of such defendant, in the manner required 
 by these rules, and in such other manner as the affiant supposed would 
 probably give information thereof if the same could be had. And in 
 a suit for divorce the affidavit shall be made by the complainant or 
 his solicitor, and shall fully specify the inquiry made, of what persons 
 and in what manner it was made, so that by the facts stated in such 
 affidavit it may appear that the inquiry has been made in good faith 
 and for the purpose of effecting actual notice to the defendant, and 
 has been of the character intended, not only by the letter, but also by the 
 spirit of rule 59 (page 17, supra). If the affidavit discloses that the 
 inquiry made has elicited information of the residence or post office ad- 
 dress of the absent defendant, it shall be accompanied by an affidavit of 
 the person furnishing such information, disclosing affiant's knowledge 
 of such residence or post office address, if such affidavit can be ob- 
 tained. The affidavit of personal service upon an absent defendant in 
 a suit for divorce, of the notice prescribed by rule 58, page 16, supra, 
 shall state the age, residence and occupation of the affiant, and the 
 source of his knowledge of the identity of the person served. In any 
 suit for divorce to which no defense has been made, and in which it 
 does not appear that the defendant had actual notice of the suit, and the 
 affidavit of inquiry has not been made by the solicitor of the com- 
 plainant or petitioner before final decree is made, such solicitor or one 
 of the firm of solicitors by whom the subpoena or citation was issued, 
 shall make and file his certificate that the inquiry respecting the resi- 
 dence and post office address of the defendant has been made in 
 good faith, and for the purpose of effecting actual notice to the defend- 
 ant, and without success. Chancery rule 60. 
 
Absent Dependants. 19 
 
 15. Absent Defendants; Effect of Decree; Security, 
 When Required. Any defendant tipon whom such notice 
 is served as herein directed shall be bound by the decree in 
 such case as if he were served with process within the state, 
 but in such cases where the same shall be published and sent 
 by mail, if such defendant shall make oath that he did not 
 receive the same, and that it did not in any way come to his 
 knowledge, within ten days after the time within which it was 
 directed to be served ; or in cases where actual service is sworn 
 to, if it shall be made to appear by satisfactory proof that such 
 service was not made, the chancellor may, in his discretion, be- 
 
 Proof of Inquiry. The rule requires inquiry for residence of 
 the defendant to be made of defendant's nearest relatives, if known. 
 Where the affidavit as to service shows inquiry of complainant's re- 
 latives only and it do«s not appear whether defendant had notice in 
 fact, the service is insufficient. Barker v. Barker, 63 N. J. E'q., S93. 
 
 Proof of Mailing. It must clearly appear from the affidavit that 
 the notice was sent to the defendant's post office address. That the 
 solicitor was informed that the address to which it was sent was the 
 defendant's address, without stating the source of information, or 
 that he was "creditably informed" and "verily" believes, is not suffi- 
 cient. Rogers v. Rogers, 18 N. J. Eq., 445. So where it does not 
 appear from' the papers in the cause that the defendant has received 
 notice, and the proof of mailing does not show that the postage there- 
 on was prepaid, the service is insufficient. Barker v. Barker, 63 N. J. 
 Eq-, 593- The fact that a notice sent to an absent defendant was not 
 delivered to her on account of her illness, cannot aflfect the complain- 
 ant. Homer v. Corning, 28 N. J. Eq., 254. 
 
 Amendment of Proof of Mailing. A defect in the affidavit of 
 mailing a copy of the notice to an absent defendant, in not showing 
 that the place to which it was directed was the defendant's post office 
 address, may be amended by supplying the proof by waV of amend- 
 ment, even after final decree, execution and sale of mortgaged lands 
 thereunder. Rogers v. Rogers, 18 N. J. Eq., 44s; Dinsmore v. West- 
 cott, 25 N. J. Eq., 302. 
 
 When Decree May be Taken. A decree pro confesso may be 
 taken at any time after the time limited for the defendant to plead, 
 answer or demur has expired.* It may be taken without notice and as 
 of course, unless it appear that some prejudice will thereby accrue, to 
 the adverse party. Oakley v. O'Neill, 2 N. J. Eq., 287; and see "De- 
 crees," page 430, infra. 
 
 What Constitutes an Appearance. Where, in a suit by a receiver 
 of an insolvent corporation to recover stockholders liabilities for un- 
 paid stock, non-resident stockholders having no property in New 
 Jersey appeared and litigated the question of their liability, it was 
 held that they thereby submitted themselves to the jurisdiction of the 
 court, and were subject to a decree, though recourse to the courts of 
 the state of their residence would be required in order to enforce the 
 same. See v. Heppenheimer, 69 N. J. Eq., 36; and see "What Consti- 
 , tutes an Appearance," page 7, ^s'upra. 
 
20 The Chancery . Act Annotated. 
 
 fore executing such decree, proceed to take security in the 
 manner provided in this act. (7) 
 
 16. Ex Parte Affidavits Taken Out of State. Any ex 
 
 parte affidavits required in any suit in chancery may be taken 
 out of this state before any master in chancery of this state 
 or any officer authorized to administer oaths in the state or 
 territory of the United States where the same is taken ; and 
 in any foreign state or country, before any notary public or 
 any minister, secretary of legation, charge d'affaires, consul 
 or vice-consul of the United States there being. (8) 
 
 7. Validity of Decree Against Absent Defendant. A decree 
 pronounced against an absent defendant, who had been notified of the 
 suit in the manner prescribed by the statute, is in all respects as valid 
 and effectual, for all local purposes, as a decree made against a defend- 
 ant who has been brought into court by the personal service of pro- 
 cess. Mutual Life Insurance Company v. Pinner, 43 N. J. Eq., 52. But 
 it is a general and unvarying principle of law that a court cannot obtain 
 jurisdiction of any person as a person without service of process upon 
 him within its territorial jurisdiction, and any judgment or decree in 
 personam based upon anything short of such a service or a voluntary 
 appearance, is absolutely void ; there is only one apparent exception to 
 this rule and it is only apparent, and that is that when the subject 
 matter of the suit, or res, lies within the jurisdiction of the court, it 
 may act upon the subject matter after giving the absent party claiming 
 an interest therein such reasonable notice as is required by the funda- 
 mental rules of justice. Lynde v. Lynde, 54 N. J. Eq., 473 ; affirmed, 
 SS N. J. Eq., 591 ; Hervey v. Hervey, 56 N. J. Eq., 424 ; Wallace v. 
 Wallace, 62 N. J. Eq., 509; Pennoyer v. Neff, 95 U. S., 714. So a 
 decree for alimony made against a defendant, who is not served with 
 process for appearance within , the state, does not appear in the 
 cause, and has no property within the control of the court, is a decree 
 fixing a personal liability without "due process of law" prohibited by 
 the fourteenth amendment to the constitution of the United States. 
 Lynde v. Lynde, 54 N. J. Eq., 473; afHrmed 55 N. J. Eq., 591 ; Elmen- 
 dorf V. Elmendorf, 58 N. J. Eq., 113. If both parties to a suit in 
 chancery are residents of this state, but it is found impossible to serve 
 process upon the defendant within this state and jurisdiction of such 
 defendant is obtained by publication and service by mail, the court 
 has such jurisdiction of the person of the defendant as to empower 
 it to enjoin his prosecuting a suit for divorce in another state, the 
 jurisdiction of which he had invoked on a false and fraudulent allega- 
 tion Kempson v. Kempson, 6i N. J. Eq., 303; affirmed, 63 N. J. Eq., 
 783 ; and see "Effect of Fourteenth Amendment," page 12, supra. A 
 decree pro confesso declaring that it appears to the satisfaction of the 
 chancellor that the order of publication has been published, pursuant 
 to the order in the cause, is conclusive upon the question as between 
 such non-resident defendant and a purchaser under the decree. Mc- 
 Cahill V. Equitable Life Assurance Society, 26 N. J; Eq., 531. 
 
 Effect of the 14th Amendment of the United States Constitution. 
 See note 2 sec. 12, page 12, supra. 
 
 8. Affidavits to Answers Taken Out of the State. Where an 
 answer shall be sworn to by a defendant out of this state, the oath 
 
Absent Defendants. 21 
 
 17. Absent Defendants ; Decree ; Enforcement ; Security 
 from Complciinant. When a decree shall be made against 
 an absent defendant, the, chancellor, before issuing process to 
 compel the performance of such decree against such absent 
 defendant, may, if he deems it equitable so to do, require the 
 complainant to give bond, with such security and in such sum 
 as he may direct, to abide such decree or order touching the 
 restitution of the estate and effects of such absent defendant, 
 or the repayment of any sum of money which the complain- 
 ant may receive by virtue of such decree, but which shall after- 
 wards be made to appear, as hereinafter provided, not to have 
 been due and owing to him ; and in case no such security shall 
 be given, no process or execution shall issue to compel the 
 performance of the decree so made against such absent defend- 
 ant, but the estate and effects of such absent defendant may, 
 by order of the chancellor, be sequestered, and remain under 
 the direction of the chancellor, to abide such order as he shall 
 think just and proper respecting the same. 
 
 18. Absent Defendants ; Appearance and Pleading After 
 Decree; Confirmation of Decree. In case any such absent 
 defendant; against whom any decree shall be made as afore- 
 said, his heirs, devisees, executors, administrators or assigns, 
 shall, within six months after notice in writing be given to 
 him or them of such decree, or within three years after such 
 decree in case no notice as aforesaid shall be given, petition 
 the chancellor touching the matter of such decree, and pay 
 or secure to be paid, such costs as the chancellor shall think 
 
 may be taken before a master in chancery of this state, or a notary 
 public, certified under his seal and otherwise in compliance with the 
 requirements of statute, or before any person who shall be authorized 
 by the law of this state to take acknowledgment of the execution of a 
 deed for lands in this state, at the place where such answer shall be 
 sworn to, and . the authority of such person shall be certified in the 
 same manner as required for the recording of a deed acknowledged 
 before him. Chancery rule 62. An answer cannot be sworn to before 
 an officer in another state, not authorized by the statutes of this state or 
 the rules of the court to take an oath to an answer. Freytag v. Hoe- 
 land, 23 N. J. Eq., 36. But where in an affidavit to an answer taken out 
 of this state, a foreign notary public affixed his official seal, and signed 
 his name, but without adding his official designation, though it was con- 
 tained in the jurat, it was held to be a sufficient compliance with this 
 rule, although the statute requires that his official designation be annexed 
 to his signature. "Where oath to be used in any suit or legal' proceed- 
 ing in this state, is taken out of this state before a notary public, etc." 
 Feuchtwanger v. McCool, 29 N. J. Eq., 151 ; Magowan v. Baird, 53 
 N. J. Eq., 656. 
 
22 The Chancery Act Annotated. 
 
 reasonable to order and direct, then and in such case the per- 
 son so petitioning may be permitted to appear and answer 
 the complainant's bill, and thereupon such proceedings shall 
 be had as if such absent defendant had appeared in due season 
 and no decree had been made ; or such absent defendant may, 
 within the times aforesaid, file his bill of complaint in the said 
 court, for an account and settlement of the amount which was 
 due to the complainant at the time of the decree, and to com- 
 pel the said complainant to refund and repay what he may 
 have wrongfully recovered and received, together with the 
 interest from the time of the receipt thereof, with costs of 
 suit, the former decree against such absent defendant notwith- 
 standing ; but in case no petition shall be presented, or bill filed, 
 as before provided for, within six months from the time notice 
 as aforesaid shall be given, due proof thereof being made, or 
 within three years from the date of the decree, the decree shall 
 be deemed and adjudged to be confirmed; which confirmation 
 shall have relation to the time of making said decree ; and the 
 decree shall be executed and performed as in cases where the 
 defendant had duly appeared. (9) 
 
 V. PLEADINGS AND PROCEEDINGS AFTER 
 RETURN OF SUBPOENA. 
 
 19. Prayer in Bill for Answer Without Oath ; Effect of 
 Answer; Interrogatories and Answers Thereto. The com- 
 plainant may, in any bill in chancery, pray that the defendant 
 answer without oath, in which case the answer need not be 
 
 g. Relief Discretionary With Chancellor. Relief under this 
 section is not a matter of right, but rests in the discretion of the chan- 
 cellor, to be exercised in view of all the circumstances of the case, the 
 party applying for relief must show merits and where the circumstances 
 demand surprise. Homer v. Corning, 28 N. J. Eq., 254; Cresse v. 
 Security Land Co., 54 N. J. Eq., 447. So the mere fact that a notice sent 
 to an absent defendant was not delivered to her on account of her ill- 
 ness, is not sufficient tO' justify the opening of a decree to let in a 
 defense. Homer v. Corning, 28 N. J. Eq., 254. But an absent defend- 
 ant against whom a decree has been made by default has a right under 
 this section, upon showing a meritorious defense, to an order permit- 
 ting him * to appear and answer the complainant's bill, provided he 
 makes his application within the time limited by the section. Consoli- 
 dated Electric Storage Co. v. Atlantic Trust Co., 50 N. J. Eq., 93; and 
 see, "Proceedings to Correct or Vacate Decrees," page 436, infra. 
 
Proceedings After Subpoena. 23 
 
 sworn to,(i) and the allegations and statements therein, 
 whether responsive or not, shall not be evidence against the 
 complainant, except on a motion to grant or dissolve an in- 
 junction, on which motion the statements and denials in an 
 answer duly sworn to, shall have the same effect as hereto- 
 fore ;(2) and when an answer without oath is so prayed, the 
 complainant may annex to the bill interrogatories, founded on 
 statements in the bill, and the same or any part thereof may 
 be addressed to all or any of the defendants, and each defend- 
 ant to whom such interrogatories are addressed, shall answer 
 the same, under oath or affirmation, fully, directly and respon- 
 sively, confining the answer to the interrogatory proposed ; 
 and such answers shall be annexed to the answer to the bill, 
 be filed therewith, and be liable to be excepted to, as a part 
 of the answer ; and so far as responsive to such interrogatories, 
 shall have the same effect as the responsive allegations in 
 answers required to be sworn to ; and any defendant omitting 
 to answer any such interrogatory directly and fully may be 
 compelled so to do, or the allegations in the bill upon which 
 the interrogatory is founded, shall be taken as admitted to be 
 true, and a decree made thereon accordingly. (3) 
 
 1. Answer Without Oath. See "Bill of Complaint,'' page 138, 
 infra. 
 
 2. Unsworn Answer as Evidence. See "Bill of Complaint," page 
 138, infra. 
 
 Sworn Answer to Injunction Bill as Evidence. See Injunc- 
 tions, page 513, infra. 
 
 3. Interrogatories Must be Fully Answered. A defendant must 
 give a full and complete answer to all proper interrogatories, and a 
 partial answer will not be considered sufficient. Mutual Life Ins. Co. 
 V. Cokefair, 41 N. J. Eq., 142. So an interrogatory regarding the pay- 
 ment of money, by whom and to whom paid, and who were present 
 at the time of payment, must be answered in full, and the omission 
 to state who were present leaves the answer insufficient. Mutual Life 
 Ins. Co. V. Cokefair, 41 N. J, Eq., 142. So> an answer to an interroga- 
 tory concerning the conveyance of property, should contain the names 
 of the persons to whom the deed was delivered, and should also con- 
 tain a statement of the place of delivery. Mutual Life Ins. Co. v. 
 Cokefair, 41 N. J. Eq., 142. But a party is not bound to make dis- 
 covery of facts which may subject him to a forfeiture or penalty. 
 Vanderveer v. Holcomb, 17 N. J. Eq., 87; affirmed ib., 547;. And so 
 defendants will not be required to answer an interrogatory as to 
 whether they had surreptitiously taken and destroyed a will. Bailey 
 V. Stiles, 3 N. J. Eq., 245-247. An interrogatory annexed to a cross 
 bill, requiring complainant to state "whether the statements set forth 
 in the cross bill are not substantially true, and if not, what part of 
 said statements is true," need not be answered. Mutual Life Ins. Co. v. 
 
24 The Chancery Act Annotated. 
 
 20. Plea or Demurrer to Bill; Time for Filing; Notice 
 of Cause for Argument; Answer to Bill; Time for Filing. 
 
 (As amended by P. L., 1913.) 
 
 When a subpoena to answer shall have been returned duly 
 served by the proper officer, or the appearance of the defend- 
 ant shall have been signed, or service of a subpcena acknowl- 
 edged, as hereinbefore mentioned, the defendant shall file his 
 plea (4) or demurrer (5--) to the bill of complaint within twenty 
 days from the return day of the subpoena, unless further time 
 be granted and the cause, within ten days thereafter, shall be 
 noticed and set down for argument for the next term, by the 
 party demurring or pleading; (6) the answer to any bill in 
 chancery shall be filed within twenty days from the return day 
 of the subpoena, in case no plea or demurrer be filed, unless 
 further time be. granted. (7) 
 
 Cokefair, 41 N. J. Eq., 142. And see "Bill of Complaint," "Interrogating 
 part," page 151, infra. 
 
 Interrogatories: Where Answer Under Oath is Prayed. In- 
 dependently of the statute, a comp'lainant may pray for an answer 
 under oath, and append to his bill interrogatories based upon the state- 
 ments and charges therein made. Such interrogatories may be regarded 
 as incorporated in the bill, and a prayer for a responsive answer thereto 
 under oath is not demurrable. Romaine v. Hendrickson, 24 N. J. 
 E'q., 231. And see "Bill of Coniplaint" "Interrogating part," page 151, 
 infra. 
 
 Practice Where Interrogatory is not Responsive. So much of 
 a witness's answer to an interrogatory as is not responsive may be 
 stricken out on motion after notice. Barrett v. New York, &c., R. R. 
 Co., 4 N. J. L. J., 32. 
 
 4. Pleas. For general consideration of this subject, see "Pleas," 
 (page 248, infra. 
 
 5. Demurrers. For a general consideration of this subject, 
 see "Demurrers," page 267, infra. 
 
 6. Practice Where Complainant Fails to Take Advantage of 
 Neglect to Bring on Hearing. If a defendant fails to notice his 
 demurrer for argument, and the complainant omits to take advantage 
 of the failure at the first term thereafter, he may do so at a subsequent 
 term without first taking an order on the defendant to bring it to 
 argument ; but in that case he should serve the rule to answer on the 
 Church, 9 N. J. Eq., 76. But see, "Terms of Court Abolished," page i, 
 supra. 
 
 Time for Filing Pleadings. See note 7 infra "Filing pleadings." 
 
 Notice of Argument. Notice of argument left at the solicitor's 
 
 house in his absence is good service. Taylor v. Thomas, 2 N. J. Eq., 
 
 106; and a notice of argument is good although dated on Sunday. 
 
 Taylor v. Thomas, 2 N. J. Eq., 106. 
 
 7. Plea or Demurrer and Answer. A litigant may demur to 
 part, answer to part and plead to part of a bill. All the modes of 
 defense may be joined, provided each relates to separate and distinct 
 
Proceedings After Subpoena. 25 
 
 21. Frivolous Demurrer Overruled; Extension of Time 
 to Answer. When a demurrer shall have been filed which 
 shall not be actually argued, or which, upon argument, ap- 
 pears to the chancellor to be frivolous, or intended for the 
 purpose of delay, the same shall be overruled as frivolous, and 
 the chancellor shall not grant in such suit any order extending 
 
 parts of the bill. Bennett v. Bennett, 63 N. J. Eq., 306. The general 
 rule is settled that if a defendant filed a plea or answer to the whole 
 or part of a bill, the whole of which is demurred to, the plea or answer 
 overrules the demurrer. McDevitt v. Connell, 63 Atl., 504; Veghte v. 
 Raritan Water Power Co., 19 N. J. Eq., 142 ; Redrow v. Sparks, 72 Atl., 
 442. So defendant, having answered in full, cannot include in his 
 answer a demurrer to all or any part of the bill. Bird v. Magowan, 
 43 Atl., 278. 
 
 Filing Pleadings — ^When Last Day to Ansvirer Falls on a Holiday. 
 When the last day for filing an answer falls on a legal holiday, filing 
 it on the next day on which the clerk's office is open will be sufficient. 
 Feuchtwanger v. McCool, 29 N'. J. Eq., 151 ; Vondeplace v. Weller, 
 64 N. J. L., I5S. 
 
 Practice When Pleadings are Filed Out of Time. When a plead- 
 ing is filed out of time, advantage of this defect may be taken by 
 motion to take the pleading from the files. Feuchtwanger v. McCool, 
 29 N. J. Eq., 151. 
 
 Extending Time for Pleading. The rule is that the court will 
 not grant a favor by way of extending the time to plead or answer 
 where a party has been in default, except by putting him on terms 
 not to take advantage of certain pleas which are called unconscionable. 
 This rule is based on the ground that the party by failing to plead in 
 time, or omitting to plead a statute as a bar to any plea or answer filed, 
 has waived the benefit therein given, and in order to interpose some 
 defense, which he considers essential or desirable, he has to ask a 
 favor of the court, which the court will grant only on the terms that 
 he shall not act inconsistently with his waiver or make use of a defense 
 considered against conscience. Boehme v. Rail, 51 N. J. Eq., 541. 
 
 Extension of Time to Answer. Where a defendant fails to 
 answer the complainant's bill within the prescribed time, and is com 
 pelled to appeal to the favor of the court for relief to file his answer, 
 he will be restricted to an equitable defense, and will not be permitted 
 to set up usury ; CoUard v. Smith, 13 N. J. Eq., 43 ; Marsh v. Lasher, 
 13 N. J. Eq., 253 ; Campion v. Kille, 14 N. J. Eq., 229. Affirmed 15 N. 
 J. Eq., 476 ; Vanderveer's Adm'r v. Holcomb, 22 N. J. Eq., 555 ; 
 Young V. Clarkville Mfg. Co., 27 N. J. Eq., 67; Boynton v. Sandford's 
 Executor, 28 N. J. Eq., i%^;aMrmed 28 N. J. Eq., 592; Remer v. Shaw, 
 8 N. J. Eq., 355 ; Hill v. Colie, 25 N. J Eq., 469. Otherwise, however, 
 where the extension of time was given before the defendant was in 
 laches. Collard v. Smith, 13 N. J. Eq., 43; Vanderveer v. Holcomb, 22 
 N. J. Eq., 555; 3oynton v. Sandford, 28 N. J. Eq., 185 ; afHrmcd. ib., 592. 
 So where the time to answer has been extended by order of the court 
 without POtic« to the complainant, or without his consent, the court 
 will modify the order so as to exclude a defense of usury. Rerter v. 
 Shaw. 8 N. J. Eq., 355. Collard v. Smith, 13 N. J. Eq,, 43. If defend- 
 ant obtains an order for further time to answer, it is his duty to serve 
 a copy of it, without delay, on the complainant's solicitor. If, in 
 default of such service, complainant takes a decree pro confesso, and 
 
26 The Chancery Act Annotated. 
 
 the time to answer herein limited, unless, upon full examina- 
 tion of the circumstances of the case, it shall be made to appear 
 to him that evident injustice would be done without such exten- 
 sion, and then he shall grant such extension only as may be 
 absolutely' necessary, with proper diligence, to prepare such 
 answer. (8) 
 
 22. Affidavit and Certificate to Plea or Demurrer. Every 
 plea or demurrer in chancery shall have annexed thereto the 
 affidavit of the defendant or defendants filing the same, or 
 his or their agent in the suit, that the same is not interposed 
 for delay, but in good faith ; and also the certificate of counsel 
 that he has perused the complainant's bill, and that such plea 
 or demurrer is well founded in point of law; and every plea 
 or demurrer filed without such affidavit and certificate may 
 be treated as a nullity. (9) 
 
 23. Failure to Plead, Demur or Answer; Decree Pro 
 Confesso; Procedure; Rule to Stay and Open Decree. If 
 
 the defendant shall not file his plea, demurrer or answer within 
 the time hereby limited, or that granted by the court, the bill 
 of complaint shall be taken in term time or vacation, as con- 
 fessed against such defendant, and such decree made thereon 
 
 proceeds to final decree thereon, all the subsequent proceedings taken 
 in the cause will be held regular. Emery v. Downing, 13 N. J. Eq., 59. 
 And when an order for further time to answer is made without notice, 
 the complainant is entitled to the costs of proceeding until he is served 
 with a copy of the order. Emery v. Downing, 13 N. J. Eq., 59. 
 
 Answers. For general consideration of this subject, see "An- 
 swers," page 294, infra. 
 
 Extension of Time to Plead by Consent of Complainant. If 
 comp'lainant consents to an extension of time to answer, and the time 
 for pleading has expired when consent extending the time for pleading 
 is given, a defense of usury will not be permitted to' be set up ; had 
 defendant applied to the court for the extension of time to plead, he 
 would not have been permitted to plead usury, and the consent of the 
 complainant's solicitor to an extension of time should give no greater 
 advantage. Where, however, the consent to an extension is given 
 before the time for answering has expired, the defendant at the time 
 the consent was given had the right to set up usury as a defense, had 
 he filed his answer within the time at his disposal ; under such circum- 
 stances, he will be permitted to set up_ all defenses which were available 
 at the time the consent to an extension was given. CoHard v. Smith, 
 13 N. J. Eq., 43. 
 
 8. Frivolous Demurrer. See "Demurrers," page 267, infra. 
 
 9. Certificate of Counsel and Verification. See "Pleas," page 
 248, infra; "Demurrers," page 267, infra. 
 
Proceedings After Subpoena. 27 
 
 as by the court shall be deemed equitable and just; or the 
 chancellor may, at his discretion, order the complainant to 
 produce documents and witnesses to substantiate and prove 
 the allegations in the bill of complaint; or the chancellor may 
 examine the complainant on oath or affirmation, to ascertain 
 the truth of the allegations in the said bill; and such decree 
 shall be made in either case as the chancellor shall think equit- 
 able and just; provided, to prevent fraud or mistake, the chan- 
 cellor may, at any time, upon notice and sufficient cause shown, 
 grant a rule staying proceedings and to open such decree. (lo) 
 
 24. Reply to Plea and Issue Thereon; Argument on 
 Demurrer; Answer After Demurrer Overruled; Costs of 
 Demurrer; By Whom Paid. When the complainant con- 
 ceives the plea to be good, though not true, he may reply to 
 
 10. Decrees Pro Confesso. For a general consideration of this 
 subject, see "Decrees," page 430, infra. 
 
 Opening Decrees Pro Confesso. See "Proceedings to correct or 
 vacate decrees," page 436, infra. 
 
 When Order of Reference is Made. In cases where the com- 
 plainant's bill' shall be ordered to be taken pro confesso against a de- 
 fendant, where there are no infant defendants, and there shall be a 
 reference to a master ordered in the cause, the complainant may pro- 
 ceed before the master without notice thereof to such defendant, and 
 it shall not be necessary, upon the coming in of the master's report, 
 to enter a rule to confirm the same nisi, or to set the cause down pre- 
 paratory to further directions or to a final decree against such defend- 
 ant; but the complainant shall, without further notice, be entitled to a 
 final decree. Chancery rule 22. 
 
 Practice When Complainant is Ordered to Prove Allegations of 
 Bill. In cases where the court shall order the complainant to 
 produce documents and depositions, exhibits or other evidence, to 
 substantiate and prove the allegations in his bill, the proceedings 
 subsequent to the said order may be considered as ex parte, and it 
 shall not be necessary for the complainant to give notice thereof to the 
 defendant. Chancery rule 26. Where a bill is filed to establish and 
 enforce a trust, although the alleged trustee does not appear to oppose 
 the claim, the court will order proofs to be taken to establish the case 
 made by the bill. And the evidence to prove the trust must be legal 
 and will not be dispensed with because the trustee does not answer and 
 deny the trust. Smith v. Howell, 11 N. J. Eq., 349, and an order for 
 proofs on default may be set aside in' case of surprise. Lewis v. 
 Elizabeth, 25 N. J. Eq., 2g8. 
 
 When Order to Answer Necessary. Where a complainant omits 
 to take a decree pro confesso within four months after the time when 
 he is entitled to it against a defendant or defendants, he shall not 
 thereafter move such decree until he has first taken and served an 
 order on the defendant or defendants, if in this state, to file their 
 answer or answers at such short day as the court may appoint. Chan- 
 cery rule 27. 
 
28 The Chancery Act Annotated. 
 
 and take issue upon it, and proceed as in case of an an- 
 swer ;(ii) if the defendant file a demurrer and answer, the 
 complainant shall not proceed on the answer until the de- 
 murrer has been argued or disposed of ; if the plea or demurrer 
 be overruled, no other plea or demurrer shall be thereafter re- 
 ceived; but in such case the defendant shall file his answer 
 to the complainant's bill in twenty days after such overruling, 
 and if he fail to do so, the said bill shall be taken as con- 
 fessed ;( 12) if the plea or demurrer be allowed, the complain- 
 ant shall pay costs, and if overruled, the defendant shall pjiy 
 them. (13) 
 
 11. Practice Where Issue is Taken on Plea. See "Pleas," page 263, 
 infra. 
 
 12. Court May Permit Defendant to File Plea After Demurrer 
 Overruled. Although the act declares that after a demurrer has been 
 overruled the defendant shall answer, it has always been held that it is 
 in the discretion of the court in such case to permit him to file a plea in- 
 stead of an answer. Kirkpatrick v. Corning, 39 N. J. Eq., 22-24. Reversed 
 40 N. J. Eq., 241. But leave to file a plea after demurrer overruled 
 will not be granted if it is manifest that the plea offered, if true in 
 fact, would be no bar to the relief sought by the bill. Seeley v. Price, 
 5 N. J. Eq., 231. And where a general demurrer has been filed to a 
 bill, and has been overruled, a second demurrer or a motion to strike 
 out either the whole or parts of the same bill cannot be entertained 
 unless special leave therefor be first obtained from the court. Steven- 
 son V. Morgan, 63 N. J. Eq., 707; affirmed ib., 80s. But if the usual 
 order is entered requiring defendant to file his answer within a pre- 
 scribed time, the defendant cannot file a plea; if it be essential to the 
 defendant's rights that a plea should be interposed after a demurrer 
 overruled, the defendant should obtain a special order for that purpose. 
 White V. Dummer, 2 N. J. Eq., 527; Kirkpatrick v. Corning, 39 N. J. 
 Eq., 22; reversed 40 N. J. Eq., 241. 
 
 Duty of Defendant After Demiurrer Overruled. The duty of de- 
 fendant, under this section, is to answer in twenty days from the over- 
 ruling of his demurrer and without order therefor, and is not affected 
 by the existence of an order permitting the amendment of the bill 
 which has not been served. Vanderbeck v. Perry, 30 N. J. Eq., 78 ; and 
 see generally, "Demurrers," page 286, infra. 
 
 13. Costs on Demurrer. The court has no discretionary power 
 in the matter of costs on demurrer. The statute is mandatory, and 
 although a demurrer to a bill for want of equity, multifariousness and 
 non-joinder is sustained for non-joinder only, it is error to refuse costs 
 to demurrant. Cannon v. Ballard, 63 N. J. Eq., 797; Brown v. Tallman, 
 54 Atl., 457; Hicks v. Campbell, ig N. J. Eq., 183. But when a general 
 demurrer is overruled because demurrant relied, in support of his 
 demurrer, on defects of form which appeared in the bill, not reached 
 by a general demurrer, and the court permitted the defendant to amend 
 his demurrer, costs will not be allowed to either party as against the 
 other. Marsh v. Marsh, 16 N. J. Eq., 391; Boon v. Pierpont, 28 N. J. 
 tq., 7. 
 
Proceedings After Subpoena. 29 
 
 25. Exceptions or Replication and Issue Thereon; Set- 
 ting Cause for Hearing; Dismissal of Bill with Costs. 
 
 (As amended by P. L., 1913.) 
 The complainant shall file exceptions or a replication, or set 
 down a cause for hearing upon bill and answer within twenty 
 days after the expiration of the time limited or granted for 
 filing the answer, or on failure thereof his bill shall be dismissed 
 with costs, unless good cause be shown to the contrary; (14) 
 on filing a replication the cause shall be deemed to be at 
 issue. (15) 
 
 26. Hearing or Reference of Exceptions to Answer; 
 Costs; By Whom Paid. When exceptions shall be filed to 
 an answer, either party may move on notice for a decision 
 upon them, and the chancellor may hear the motion or refer 
 it to a master to report within such time as the chancellor may 
 fix; the complainant, if his exceptions be overruled, shall pay 
 costs to the defendant ; and tHe defendant, if his answer shall 
 
 -14. Exceptions to Answer. If an answer be filed, however de- 
 fective, the complainant must either file exceptions or a replication. 
 Squier v. Shaw, 24 N. J. Eq., 74; Feuchtwanger v. McCool, 29 N. J. 
 Eq., 151-152. Objections for insufficiency may be taken to an answer 
 of a corporation, or to an answer, oath to which has been waived. 
 Reid V. Cumberland Mutual Fire Ins. Co., 36 N. J. Eq., 393 ; Flitcroft 
 v. Allenhurst Club, 69 N. J. Eq., 13 ; Ryan v. Anglesea Co., 12 Atl., 539. 
 For general consideration of the subject of Exceptions to Answer, see 
 "Answer," page 306, infra; see also note 16 to section 26, page 30, infra. 
 
 15. Form of Replication. The general replication to an answer, 
 or plea, shall be in form as follows : The complainant joins issue on 
 the answer or plea of the defendant. The replication to an answer, part 
 of which is in the nature of a cross-bill, shall be in the form following: 
 The complainant joins issue on so much of the defendant's answer 
 as is not in the nature of a cross-bill, and as to that part of said 
 answer which is in the nature of a cross-bill, he says proceeding to 
 answer the cross-matter. Chancery Rule 207. 
 
 Effect of Neglect to File Replication. If complainant neglects 
 to file his replication, the court will, at the hearing, or even after decree, 
 give leave to complainant, to file a replication nunc pro tunc. Gaskill 
 v. Sine, 13 ,N. J. Eq., 130. Where on the 20th of May the defendant 
 took an order on the complainant to speed his cause, and the order was 
 served on the day following, and on the 22nd the complainant filed his 
 replication and took no further step in the cause, it was held that the 
 defendant was entitled to have the bill dismissed- at the next stated 
 term because the corap-lainant had not, in compliance with the statute, 
 brought his cause to a hearing at that term. West v. Paige, 9 N. J. 
 Eq., 203. 
 
 Nature and Function of Replication. See "Replication," page 315, 
 infra. 
 
30 The Chancery Act Annotated. 
 
 be adjudged insufficient, shall pay costs to the complain- 
 ant. (i6) 
 
 i6. Practice on Exceptions to Answer. When the complainant 
 shall file exceptions to an answer for impertinence, or scandal, he may, 
 at the same time, except to the answer for insufficiency; after filing 
 exceptions to an answer for impertinence or scandal, the complainant 
 shall not be allowed to except thereto^ for insufficiency'; after filing 
 exceptions to an answer for insufficiency, the complainant shall not be 
 allowed tO' except thereto for impertinence or scandal. Exceptions 
 to an answer will be sufficiently taken if signed by the solicitor of the 
 excepting party. Qiancery' rule 72. 
 
 Exceptions for Insufficiency. A motion for a decision upon ex- 
 cep1:ions to an answer for insufficiency shall not be entered until six 
 days after service of a copy of the exceptions on the defendant or his 
 solicitor ; and if the defendant shall, within that time, submit to answer 
 the exceptions, he shall give notice thereof to the complainant's solicitor, 
 and pay the costs of the exceptions; and in that case, if the com- 
 plainant shall, within six days after such notice, or within such further 
 time as the court shall allow, amend his bill and the defendant's copy, 
 the defendant shall answer the exceptions and amendments at the same 
 time. Chancery rule 73. 
 
 When Defendant Submits to Answer Exceptions. When a de- 
 fendant shall have given notice that he submits to answer the excep- 
 tions, he shall file a second or further answer within twenty days after 
 the complainant has amended his bill and the defendant's copy, if the 
 complainant shall amend his bill ; or if the complainant shall not amend 
 his bill, then, within twenty days after receiving a copy of the excep- 
 tions, or on failure thereof, the complainant's bill shall be taken as con- 
 fessed, and such proceedings had thereon as if the first original answer 
 had not been filed. Chancery rule 74. 
 
 Exceptions for Insufficiency and Impertinence or Scandal. When 
 an answer shall be excepted to for insufficiency and for impertinence 
 and scandal, or for insufficiency and impertinence or scandal, if the 
 defendant submits to an answer the exceptions for insufficiency but 
 does not at the same time give notice that he consents to have the parts 
 of the answer excepted to for impertinence or scandal expunged, the 
 complainant may immediately move Ujpon notice for a decision upon 
 such exception. Chancery rule 75. 
 
 Exceptions to Pleadings Other Than the. Answer. Exceptions 
 to any pleading or other matter pending before the court, for scandal 
 or impertinence, shall be taken in the same manner as exceptions to 
 an answer for insufficiency, and may be submitted to in like manner, 
 and within the same time; if they are not submitted to, either party 
 may move on notice for a decision thereon in the same manner as a 
 motion for a decision on exceptions to an answer may be made. Chan- 
 cery rule 76. 
 
 Rule for Reference of Exceptions to Master a Comrnon Rule. 
 Every rule for a reference to a master of exceptions to a bill, answer 
 or to interrogatories to a complainant to be answered; every rule 
 for setting down for argument a plea, demurrer or exceptions to a 
 master's report of a cause for hearing; every rule to confirm a master's 
 report nisi or for an injunction where a master shall report that it is 
 proper for an injunction to issue, and every order to show cause, 
 every ad interim restraining order and every rule or order for an 
 injunction, ne exeat or habeas corpus advised by a vice-chancellor under 
 
Proceedings After Subpoena. 31 
 
 27. Second or Further Answer; When Filed; Double 
 Costs ; Third or Further Answer ; Treble Costs ; Decree Pro 
 Confesso. When an answer shall be adjudged to be insuffi- 
 cient, the defendant shall file a second or further answer within 
 thirty days after such adjudication; if such second or further 
 answer shall be adjudged to be insufficient, the defendant shall 
 pay double costs, and may, by leave of the court and not other- 
 wise, file a third or further answer within twenty days after 
 such adjudication; if such third or further answer shall be 
 adjudged to be insufficient, the defendant shall pay treble costs ; 
 and further time to answer shall not be allowed ; and in such 
 case or in case of default in the filing of the second or third 
 answer within the time limited, the said bill shall be taken 
 as confessed, and such proceedings be had thereon as if the 
 first or original answer had not been filed in due time. 
 
 28. Cross-Bill and Answers Thereto. If a cross-bill be 
 exhibited, the defendant to the first bill shall answer thereto 
 before the defendant to the cross-bill shall be compelled to 
 answer such cross-bill. (17) 
 
 29. Persons Acquiring Interest After Bill Filed Made 
 Parties; Petition; Service; Order. Where after the filing 
 of the bill, any person shall acquire such an interest in the 
 subject-matter of the suit as would have made him a proper 
 
 rule 204-a, and every rule to which a party would, according to the 
 practice of this court, be entitled of course without showing a special 
 cause, shall be denominated a common rule, and every other rule shall 
 be denominated a special rule ; all common rules, other than those 
 Sdvised under rule 204-a, and all rules, whether common or special, by 
 consent of parties, such consent being in writing and signed by the 
 parties or their solicitor or counsel, and filed, may be entered, either 
 in term-time or vacation, with the clerk of the court, in a book to be 
 by him procured and kept for that purpose; but every such rule shall 
 be considered as entered at the peril of the party at whose instance 
 it is entered, and the day of entering thereof shall be noted in the said 
 book. Chancery rule 19. 
 
 When Complainant Neglects to Proceed Before the Master. When 
 • the complainant is in laches, in not procuring the master's report the 
 proper remedy is for the defendant to obtain an order that he procure 
 the report in the time stated, or that the exceptions be dismissed. 
 Camden and Amboy R. R. v. Stewart, 19 N. J. Eq., 343 ; affirmed, 21 N. 
 J. Eq., 484. 
 
 Nature and Function of Exceptions. See "Answers," page 306, 
 infra. 
 
 17. Cross Bill. For general consideration of the subject of 
 cross bills, see "Cross Bills," page 19S, infra. 
 
32 The Chancery Act Annotated. 
 
 or necessary party, if such interest had been possessed by him 
 at the time of the commencement of the suit, it shall not be 
 necessary to file a supplemental bill to make such person a 
 party, but the same may be done by petition filed in the cause, 
 and which petition, verified by oath, shall state the interest 
 of such person, and the manner in which the same was ac- 
 quired ; and a copy of the petition and notice of the applica- 
 tion shall be served on the complainant or his solicitor, and 
 notice of the application shall be served on such of the defend- 
 ants as the chancellor shall direct, if made before the time 
 for answering has expired, and, if after that time, on each 
 defendant who has answered or appeared in the cause ; and the 
 chancellor may thereupon, if it appear that such person is 
 entitled to be made a party to the cause, and has acquired his 
 interest from some party to the same, order that he be made 
 a party thereto; but such person shall be bound by all orders 
 and proceedings in the cause against the party whose interest 
 he has acquired, and the cause shall not be delayed by the 
 admission of such party, except for such time as it may seem 
 to the chancellor to be necessary to take the evidence regard- 
 ing such claim. (i8) 
 
 i8. Scope of the Statute. There is no such thing known to 
 equity practice as the admission of a stranger to a pending suit either 
 as complainant or defendant, unless the complainant shall consent 
 thereto, or there be a statute within the provisions of which he may- 
 bring his application. Shepard v. N. J. Consolidated Water Company, 
 73 N'. J. Eq., 5781 Prior to the enactment of the provisions of this 
 section in 1870, there wasi no authority or precedent for allowing any 
 one, not a party to the suit, to intervene by petition and on his own 
 motion, to be made a party, except in such cases as that in Melick v. 
 Melick, 17 N. J. Eq., 156, where a cestui que trust was permitted t(f 
 litigate in the name of his trustee, who was a defendant and who was 
 in a position to have more interest or leaning in favor of the com- 
 plainant than of his cestui que trust. Jones v. Winans, 20 N. J. Eq., 
 96. The design of this section is to provide an easy and inexpensive 
 method by which a person who succeeds to or acquires pendente lite 
 an interest in the subject matter of the suit, may take the place of his 
 predecessors under the issues existing in the suit, in the state or 
 condition in which those issues are when he comes in, but it is not its 
 design to give him the right to raise new and different issues from 
 those existing at the time he comes in. Mutual Life Insurance Com- 
 pany V. Schwab, SI N. J. Eq., 204. So one who, pending a foreclosure 
 suit, has acquired a contested claim to part of the surplus paid into 
 court on the foreclosure sale after satisfying the cofnplainant's mort- 
 gage, may not be made a party to the suit by petition, after final decree, 
 for the purpose of enforcing such claim. Mutual Life Insurance Co. 
 V. Schwab, 51 N. J. Eq., 204. But where a bill to foreclose a mortgage 
 has been filed, and also a cross bill by the owner of the mortgaged 
 premises setting up that the mortgagee had received certain stock as col- 
 
Proceedings After Subpoena. 33 
 
 30. Persons Acquiring Interest After Bill Filed Made 
 Parties Before or After Interlocutory or Final Decree. In 
 
 all cases in which it is provided in this act that a person may 
 be made a party by petition after the commencement of the suit, 
 such person may be made a party either before or after an 
 interlocutory or final decree therein, but such decree shall not 
 be opened or set aside thereby, and in all cases where the per- 
 son so made a party does not dispute the claim of the com- 
 plainant, or any part of it, the complainant, or any defendant 
 whose prior right is not disputed, shall not be delayed by the 
 admission of such party ; but his claim shall be fully heard and 
 investigated in disposing of the residue of the subject-matter 
 of the suit of the proceeds thereof. (19) 
 
 lateral to the mortgage, and praying that he might be compelled to 
 have recourse thereto before proceeding in the foreclosure, it was held 
 that one claiming a prior lien on such stock, by virtue of an attachment 
 issued in another state, might be admitted as a party. Dodge v. Fuller, 
 28 N. J. Eq., 578. It could not have been the intention to impose upon 
 the incoming party the obligaition to submit to an order previously 
 made, if he could show tO' the satisfaction of the chancellor that such 
 order had been obtained in violation of the rules of practice or the 
 principles of equity. In such respects it would seem that his right to 
 ask the court to interfere and set things right would be precisely the 
 same as would have been the right of him whom he superseded as a 
 party. Guest v. Hewitt, 27 N. J. Eq., 479-481. A petitioner seeking to 
 be admitted as a party to a suit must show that he would be advan- 
 taged by being made a party in respect to the matter touching which 
 he seeks to intervene, and his petition must disclose a substantial 
 equity. Davis v. Sullivan, 33 N. J. Eq., 569; Ward v. Montclair R. R. 
 Co., 26 N. J. Eq., 260. It would be futile to allow a person who is not 
 a party to a suit to come in and set up a defense, unless he show prima 
 facte on his moving papers that such a defense exists. Shepard v. 
 N. J. Consolidated, &c., Co., 73 N. J. Eq., 578-583. 
 
 Service of Notice of Application. If the party shall be dead on 
 whom the petition or notice of application is required to be served by 
 this section, such notice of petition may be served either on the executor 
 or administrator of such deceased party, or on the solicitor who ap- 
 peared for him in his lifetime; or, in case there be no such executor, 
 administrator or solicitor, it may be served by putting up the same in 
 the office of the clerk of this court, and such service shall be lawful 
 service. Chancery rule 142. 
 
 Admission of Party by Petition in Foreclosure Suit. See Section 
 58 and notes, page 53, infra. 
 
 ig. Scope of the Statute. A party who, having acquired an in- 
 terest during the pendency of the suit, applies under this section of 
 the Chancery Act to be made a party in order to move to open the 
 decree, must present in his petition a case of substantial equity. Davis 
 v. Sullivan, 33 N. J. Eq., 569; Shepard v. N. J. Consolidated, &c., Co., 
 73 N. J. Eq., 578. 
 
 Who May be Admitted as a Party. In a foreclosure suit, a pur- 
 
34 The Chancery Act Annotated. 
 
 VI. EVIDENCE; INTERROGATORIES, EXAMINA- 
 TION OF WITNESSES. 
 
 31. Hearing on Bill and Answer ; Evidence. If any com- 
 plainant proceed to a hearing on bill and answer only, the 
 answer shall be taken to be true in all points ; and no evidence 
 shall be received unless it be matter of record, to which the 
 answer relates, and is provable by the same record. ( i ) 
 
 32. Interrogatories to Complainant; Answer; Effect; 
 Failure to Answer; Contempt; Dismissal of Bill. The de- 
 fendant, after he shall have filed his answer, may exhibit inter- 
 rogatories to the complainant, which shall be answered by him 
 on oath or affirmation ; and such answer shall be evidence in the 
 cause in the same manner and to the same effect as the de- 
 fendant's answer to the complanant's bill is evidence ; and if 
 the complainant shall not answer such interrogatories by the 
 
 chaser of the mortgaged premises during the pendency of the suit may 
 be admitted as a defendant even after final decree. He cannot, how- 
 ever, contest the complainant's claim. Hewitt & Ward v. Montclair 
 R. R. Co., 25 N. J. Eq., loo; affirmed, 27 N. J. Eq., 479; Atwood 
 V. Carmer, 73 Atl. Rep., 114. And when a foreclosure suit has pro- 
 ceeded to decree pro confesso and order of reference, and the mort- 
 gaged premises are sold, though the purchaser will be admitted as 
 a party defendant, he will not be permitted to answer. He may 
 be present at the time of the account, and avail himself of all 
 the defenses which the mortgagor could, after the decree pro con- 
 fesso against him. Hewitt & Ward v. Montclair R. R. Co., 25 
 N. J. Eq., 100; afHrmed, 27 N. J. Eq., 479. And this section does 
 not permit one who, pending a foreclosure suit, has acquired a 
 contested claim to part of the surplus paid into court on the fore- 
 closure sale after satisfying the complainant's mortgage, to be made a 
 party to the suit by petition after final decree for the purpose of 
 enforcing such claim. Mutual Life Ins. Co. v. Schwab, 51 N. J. Eq., 
 204. So a petition, filed by a stranger to the suit, claiming the payment 
 of moneys paid into court in the cause to satisfy a judgment recovered 
 in a foreign stafe, will be dismissed on the ground that the petitioner, 
 not being a party to the suit, had no standing and could have no relief 
 therein, and that the proceedings for the purpose should be by original 
 bill in the nature of a supplemental bill. Esterbrook Co. v. Ahem, 
 31 N. J. Eq., 3. A party coming into a case by virtue of this section 
 is no further bound by the previous orders and proceedings in the 
 cause than the party whose interest he has acquired would have been 
 bound. Guest v. Hewitt, 27 N. J. Eq., 479. 
 
 Admission of Party by Petition in Foreclosure Suit. See Section 
 58 and notes, page 53, infra. 
 
 I. The Answer as Evidence. See "Hearing on Bill and Answer," 
 page 388, infra. 
 
Evidence; Interrogatories. 35 
 
 time appointed by the court, he shall be in contempt, and his 
 bill may be dismissed, with costs. (2) 
 
 33. Examination of Witnesses; Procedure. All examin- 
 ations of witnesses hereafter to be taken and made use of at 
 the hearing of any cause in the court of chancery, except such 
 3 3 shall be taken before the chancellor, a vice-chancellor or an 
 advisory master shall be taken and reduced to writing by one 
 of the examiners of said court, or before a commissioner or 
 commissioners appointed by the chancellor according to the 
 course of the court, who are hereby authorized to administer 
 the proper oath or affifmation to the witnesses .examined by 
 them, or any of them; and unless otherwise specially ordered 
 by the court all examinations of witnesses before examiners 
 shall be taken on ten days' notice of the time and place of 
 taking such examination, given by the party or his solicitor to 
 the opposite party or his solicitor; and either of the parties in 
 the cause shall, in their proper persons, or by their solicitor 
 or counsel, have liberty to be present and examine and cross- 
 examine such witnesses ; all of which examination of witnesses 
 
 2. Practice. If the defendant intend to exhibit interrogatories 
 to the complainant, he shall file the same, and serve a copy thereof 
 within fifteen days after filing his answer, and not after, without leave 
 of the chancellor; and the complainant shall answer the said inter- 
 rogatories within thirty days after service thereof, unless the chancellor 
 shall allow further time for answering the same; and if the com- 
 plainant except to the interrogatories, he shall file his exceptions within 
 ten days after service of the interrogatories, and enter a rule of course 
 with the clerk tO' refer them to a master, who shall decide and report 
 thereon within fifteen days after they are filed; but an appeal from 
 such report shall be allowed to the chancellor, if taken within ten 
 days after filing the master's report; and the chancellor, whether in 
 term time or vacation, upon ten days' notice given by either party, shall 
 hear and determine the same; and if the said exceptions be overruled, 
 the complainant shall pay costs to the defendant; but if any of the 
 said interrogatories shall be adjudged to be improper, the defendant 
 shall pay costs to the complainant. Chancery rule ^^. A complainant 
 will not be ordered to answer interrogatories which are not filed within 
 fifteen days after filing the answer, as required by .rule 77, unless a 
 sufficient reason be disclosed to excuse the neglect on the part of the 
 defendant to file his interrogatories pursuani to the rule. Phelps v. 
 Curtis, 2 N. J. Eq., 387. 
 
 Practice Prior to Statute. Before the enactment of this_ section 
 (Revision 1846), a cross bill was necessary for the purpose of discovery, 
 because, by a settled rule of equity, a complainant in a suit could not 
 be examined as a witness in that suit. Ames v. N. J. Franklinite Co., 
 12 N. J. Eq., 66; affimed ib., 512. 
 
 Interrogatories Must be Fully Answered. See note 3 to Section 
 19, page 22, supra. 
 
36 The Chancery Act Annotated. 
 
 so taken shall be filed with the clerk of the court, to be made 
 use of and read in evidence upon, the hearing of the cause, 
 saving all legal exceptions; witnesses shall be allowed the 
 -same fees as by law are allowed to witnesses in the supreme 
 court. (3) 
 
 3. Order of Examination-Notice. When any catise shall be at 
 issue, and the interrogatories exhibited to' the complainant, if any, 
 answered, each party, the comiplainant first, and then the defendant,, 
 shall proceed to take and complete the testimony on his part before 
 an examiner, by sessions continued from day to day, on proper notice 
 of the time and place of commencing the same,' which notice shall be 
 served at least ten days before the day ' appointed for taking the 
 examination. Chancery rule 78. 
 
 Right to Re-examine Witnesses. It is an established rule no less 
 of courts of law than of the Court of Chancery, that a witness cannot 
 without leave of the court be re-examined on a matter as to which 
 he has been p'reviously examined; but the ground of objection must 
 be specifically stated when he is recalled, or his testimony will not be 
 excluded. Tlie rule, however, does not prevent the recalling of a 
 witness in rebuttal. Osborne v. O'Reilly, 34 N. J. Eq., 60; Reilly v. 
 Roberts, 34 N. J. Eq., 299-304; Crawford v. Bertholf, i N. J. Eq., 458; 
 Delany v. Noble, 3 N. J. Eq., 441 ; Hanson v. First Presbyterian Church, 
 II N. J. Eq., 441. But if the opposite party does not object to evidence 
 thus taken, it does not lie in the mouth of the party oifering it to call 
 it in question. Delany v. Noble, 3 N. J. Eq., 441. If the evidence is 
 found to be defective on the hearing, the case may be sent back for 
 further testimony to be taken. Nicwark & N. Y. R. R. Co. v. Newark, 
 23 N. J. Eq., SIS. 
 
 Objections to Testimony. Objections to testimony taken before 
 the master are to be settled by the court, and if they are not renewed 
 at the hearing or at the time when the depositions are acted upon 
 by the court, they are waived. Black v. Lamb, 12 N. J. Eq., 108. And 
 a witness on examination before a master has no discretion as to what: 
 questions may or may not be answered, unless the answer will subject 
 him to a penal liability, or any kind of punishment, or to a criminal 
 charge, or to the forfeiture of his estate, or unless it tends to degrade 
 his character. Rusling v. Bray, 37 N. J. Eq., 174. The deposition 
 of a witness who refused to answer some of the complainant's questions,, 
 though they were proper, who introduced impertinent matter in his own 
 favor in his answers to others, among which matter were the contents 
 of papers, the originals, or even copies of which he refused to produce, 
 and who refused after due demand and notice to produce the partner- 
 ship books in his, possession— the suit being between partners for an 
 account of partnership transactions and the production thereof being 
 required for the purposas of the examination — will be suppressed. 
 Fulton V. Golden, 28 N. J. Eq., 37. 
 
 Before Whom Depositions May be Taken. Depositions, except 
 when taken ex parte, shall be taken before an examiner to be agreed' 
 upon by the solicitors of the parties to the issue. If they are unable 
 to agree ^hereon, the examiner shall be named by the chancellor on 
 motion to be made on a regular motion day. Chancery rule 78a. 
 
 Examiner Shall Not Be Solicitor or Clerk. Testimony shall not 
 be taken, except by consent, before an examiner who is a partner of,. 
 
Evidence; Interrogatories. 37 
 
 34. Printing of Pleadings and Evidence ; Expense Taxed 
 as Costs. It shall be lawful for the chancellor in such cases 
 
 or connected in business with, or clerk for, the solicitor of either of 
 the parties. Chancery rule 79. 
 
 Complainant's Time for Examination. The complainant shall 
 commence taking testimony on his part within fifteen days after issue 
 joined, and shall conclude the same in thirty days, and declare to the 
 examiner when the testimony on his part is concluded. Chancery rule 
 80. A defendant who postpones the hearing of a cause term after 
 term, and on whom an order to close his testimony was duly served, 
 must be deemed to have waived all objections to complainant's not 
 having strictly observed this rule. Boon v. Pierpont, 32 N. J. Eq., 217. 
 
 Defendant's Time. Within fifteen days after the testimony on 
 the part of the complainant is declared to be concluded, or after the 
 time for taking the same has expired, if no such declaration has been 
 made, the defendant shall commence taking testimony on his part, if 
 any he has, and shall conclude the same in thirty days, and declare 
 when the same is concluded. Chancery rule 81. 
 
 Adjournments. The examiner may, at the request of the party 
 taking testimony, adjourn to any day within said thirty days, and to 
 any place within the county; and any examiner may take such testi- 
 mony, or any part thereof, in place of the examiner named in the notice, 
 or before whom the testimony was commenced ; but only one examina- 
 tion shall proceed in the same cause at the same time, except on com- 
 mission by interrogatories. Chancery rule 82. The examiner may, at 
 the request of either party, adjourn the examination to a day within 
 the time limited to said party, giving precedence to the request of the 
 party then proceeding with taking testimony; and when siich adjourn- 
 ment is regularly made at the time and place at or to which an exami- 
 nation was noticed or adjourned, no notice of the same need be given. 
 Chancery rule 84. 
 
 Rebutting Testimony. When the defendant shall declare the 
 testimony on his part closed, or when the thirty days for taking testi- 
 mony on his part shall have expired, the complainant may proceed 
 immediately, or by adjournment not exceeding ten days, with testimony 
 to rebut the testimony of the defendant, or to sustain testimony on his 
 part impeached or contradicted by the defendant, and the defendant 
 may afterwards produce counter rebutting evidence on his part; but 
 such evidence shall not be continued for more than five days on each 
 side. Chancery rule 83. 
 
 Extension of Time by Order. If either party cannot complete 
 his testimony within such thirty days, his time may be enlarged upon 
 motion, on notice served before the expiration of said time, for reasons, 
 verified by proof, satisfactory to the chancellor. Chancery rule 85. 
 
 Extension of Time by Consent. The time for taking testimony 
 above limited shall not be extended, except by written consent or by 
 order of the court, made upon notice. Chancery rule 86. 
 
 Legal Holidays and Vacation not Computed. No legal holiday, 
 except Sunday, nor any day between the fifteenth day of July and 
 first day of September, unless occupied in taking testimony, shall be 
 computed as part of said limited time. Chancery rule 87. 
 
 Examination of Complainant. Wlhere any complainant or peti- 
 tioner in any action or proceeding in this court shall desire to avail 
 
38 The Chancery Act Annotated. 
 
 as he may judge proper, to order the pleadings and evidence, 
 or any part thereof, to be printed, and to order the expense 
 
 himself of the benefit of the sixth section of the '"act concerning 
 evidence," P. L. 1900, p. 362, he shall be sworn and examined as a 
 witness for the purposes mentioned in the act, before any other witness 
 shall be examined in the cause, either on the part of the comprlainant 
 or defendant; and the testimony of such complainant shall be taken 
 within twenty days after issued joined. Qiancery rule 88. 
 
 Exhibits. The exhibits offered in any cause, except books of 
 account in actual use, shall, upon request, be left with the examiner 
 for such reasonable time as he may prescribe, and that the same may 
 be examined by other parties and copies made by the examiner, unless 
 the party producing them, will furnish such copies; and then they may 
 be inspected as directed by the examiner, in the presence and custody 
 of the party producing them'; and there shall be paid for such copies, 
 when made by the examiner, ten cents per folio, and when made by 
 the party, four cents per folio, which shall be allowed and taxed as 
 costs in the cause. Chancery rule 89. 
 
 Depositions — How Taken. All depositions of witnesses before 
 examiners shall be taken down in the first person as spoken by the 
 witness, and as nearly as practicable in the words of the witness ; and 
 such depositions shall be taken down in narrative form, and not by 
 entering both question and answer, except in cases where either party 
 shall require them to be taken by entering both question and answer, or 
 where the examiner shall, from the subject matter or the manner of 
 the witness, determine that, in his opinion, it is necessary for the correct 
 understanding of the evidence or of the deposition of the witness to 
 take down both question and answer, and in such case the examiner 
 shall enter on his minutes and sign his determination to that effect ; 
 provided, that in litigated cases, by consent of parties, and in ex parte 
 cases when the examiner shall certify that in his judgment it should 
 be done, the testimony may be taken by a stenographer, selected by the 
 examiner and sworn as required by rule 44, question and answer, and 
 afterwards written out in full, but in such case the examiner shall 
 accompany the depositions with his certificate that the testimony was 
 taken in his immediate presence and hearing, by the stenographer so 
 selected and sworn, and that he believes that it accurately states the 
 evidence given. Chancery rule go. 
 
 Order of Proof on a Plea. When issue shall be joined on a plea, 
 the defendant shall begin taking testimony, and the same shall then 
 proceed in the manner above directed; but the times for commencing 
 and taking the same by each party shall be one-third of the times 
 prescribed in the above rules. Chancery rule 91. 
 
 Regulations as to Form of Depositions. The examiner shall 
 number each page of the examination taken by him, and also every 
 tenth line of the same, leaving sufficient margin for the purpose; he 
 shall, at the top of each page, place the name of the witness whose 
 evidence is contained therein, and indicate the nature of the examination 
 by the words "direct," "cross," "re-direct," &c. ; and where more than 
 one witness is examined, he shall annex a separate leaf to the examina- 
 tion containing a list of the names of the witnesses, and a reference 
 to the pages on which their examination respectively commences ; and 
 no costs shall be taxed for any examination when this rule has not 
 been strictly complied, with. Chancery rule 92. 
 
Evidence; Interrogatories. 39 
 
 of such printing to be taxed as part of the costs in the cause. (4) 
 
 When Examiner to File Depositions. It shall be the duty of 
 the examiners of this court to transmit, without any unnecessary delay, 
 all depositions _ and examinations of witnesses by them taken in any 
 cause pending in this court, to the clerk of the court, to be filed ; and 
 all depositions and examinatians of witnesses taken in a cause by an- 
 examiner shall be, filed in the clerk's office within ten days after the 
 examination of witnesses in the cause shall be closed; and no exami- 
 nation shall be filed after the expiration of the said ten days without 
 an order of the chancellor directing the filing thereof. Chancery rule 93. 
 
 Subpoenas for Witnesses. In order to compel the attendance 
 of witnesses who reside in the state before the examiners of the court 
 or before any vice-chancellor or advisory master, for the purpose of 
 giving evidence in a cause depending in the court, a subpoena may be 
 issued by the clerk upon request of any complainant or defendant or 
 his solicitor, with a blank for the names of the witnesses to be filled 
 up by the party procuring the same, as occasion may require, com- 
 manding the attendance of the witnesses before the examiners therein 
 named, at the time and place therein expressed; and the names oi any 
 number of witnesses may be inserted in the same subpoena. It shall 
 be sufficient service of such subpoena if it is shown to the witness and 
 there is at the same time delivered to him a' ticket or notice signed by 
 the solicitor and making known the title and nature of the cause and 
 the time and place at which the attendance of the witness is required, 
 with such fees as are prescribed by law ; and the subpoena with a copy 
 of the ticket so served, shall be returned and filed with an affidavit 
 of the nature and manner of the service. Chancery rule 94. 
 
 Documentary Evidence. No documentary evidence which is 
 not made an exhibit before the examiner, vice-chancellor or advisory 
 master shall be read at the hearing of the cause, except records or 
 files of this court, which may be read upon notice given before the 
 testimony of the party giving the notice is closed. Chancery rule 95. 
 Documentary evidence or exhibits produced before any officer taking 
 any deposition may be annexed to and returned with the deposition, 
 or the officer shall, if requested by the party producing such evidence 
 or exhibit, mark it as an exhibit in the suit, and return it to the party 
 offering the same. P. L. 1900, p. 377, sec. 49. 
 
 Examination on Bill for Discovery. See Sections 70 to 75 and 
 notes, page 61, infra. 
 
 Hearing Before Vice-chancellor. See Section 97 and notes, page 
 80, infra. 
 
 Testimony de Bene Esse — Method of Taking. See page 399, infra. 
 
 4. Evidence to be Printed if Over 120 Folios. In all cases the 
 pleadings and evidence in any cause to be used on the hearing shall be 
 printed, unless the same shall be less than one hundred and twenty 
 folios; and printing shall be paid for as directed in the looth rule of 
 this court ; and in cases where part of the evidence consists of ex- 
 hibits, only those parts of the exhibits shall be printed upon which 
 some question exists or shall be made by the parties in the cause. 
 Chancery rule 99. 
 
 Payment of Costs of Printing. Parties may agree to print the 
 pleadings and evidence in any cause for the final hearing, or if they 
 do not agree, either party may apply for an order that the same be 
 printed at the joint expense of both parties; in both cases each party 
 
40 The Chancery Act Annotated. 
 
 VII. SETTING DOWN THE CAUSE AND THE 
 HEARING. 
 
 35. Hearing of Causes ; Time ; Dismissal. Every cause, 
 unless referred to a vice-chancellor or a master, shall be set 
 down for hearing at the next stated term after the filing of 
 the replication; or, on failure thereof, the complainant's bill 
 shall be dismissed, with costs, unless the court on just cause 
 and reasonable terms, allow further time for the said hearing ; 
 and if the said hearing be not had within the time so limited 
 or allowed, then the court shall dismiss the said bill, with 
 costs ; provided, there be fifteen days between the filing of the 
 replication and the next stated term ; and, if there be not, then 
 the hearing shall be had at the subsequent stated term or at 
 a- special term; a cause referred to a vice-chancellor or a 
 master shall be heard at such time as he shall on notice 
 appoint. ( I ) 
 
 36. Decree on Hearing in Absence of Either Party. 
 
 If either party shall not attend at the time appointed for the 
 hearing of the cause, the pleadings and proofs shall be read 
 on the part of the party attending, and the court thereupon 
 shall decree as the case may require. 
 
 37. Dismissal at Hearing Except for Cause Prohibited; 
 Application for Final Decree on Failure of Party to Prose-! 
 
 shall, in the first histance, pay a share of the costs of printing in pro- 
 portion to the length of his examinations, cross-examinations and ex- 
 hibits, and such payment shall be allowed in the taxation of costs ; and 
 either party may, at his own risk, cause the evidence to be printed, 
 in which case the chancellor shall make such order for payment of 
 printing as he shall deem right on the determination of the suit ; and 
 all pleadings and evidence furnished in print shall be printed on good 
 paper, on pages seven by eleven inches in size, numbered consecu- 
 tively, with a large margin, on which every tenth line on each pagei 
 shall be numbered; each page of the evidence shall state at the top 
 the name of the witness whose evidence is contained thereon, and indi- 
 cate the nature of the examination by the words "direct," "cross," 
 "re-direct," &c. Chancery rule lOO. 
 
 I. Dismissal for Failure to Bring on Hearing. See "Dismissals," 
 page 342, infra. 
 
 Practice on Setting Down Cause for Hearing. See "Hearing," 
 page 380, infra. 
 
 Hearing Before Vice-Chancellor. See section 95, et. seq. and 
 notes, page 78, infra. 
 
 Terms of Court Abolished. See page i, supra. 
 
Pecrees. 41 
 
 cute Cause. When a hearing has been commenced before a 
 vice-chancellor or an advisory master and the taking of proofs 
 upon such hearing has been begun by complainant upon his 
 bill, or defendant upon his cross-bill, neither the complainant 
 nor the defendant shall be allowed to dismiss his bill or cross- 
 bill except upon good cause shown and by special order ; and in 
 case of the failure of the complainant or defendant to further 
 prosecute his bill or cross-bill, after hearing of proofs there- 
 under has been begun by him, the defendant to the bill or 
 cross-bill, instead of applying to dismiss the bill or cross-bill 
 for want of prosecution, may apply to proceed to final decree 
 upon the hearing, notwithstanding the failure of the complain- 
 ant to the bill or cross-bill to take further proofs, or to further 
 appear regularly at the hearing, and upon such application 
 being granted, may so proceed to final decree. (2) 
 
 38. Papers Used at Hearing. The bill, answer, plead- 
 ings, papers, documents, examinations and proofs filed in the 
 cause shall be used at the argument or hearing, for which no 
 charge shall be made by the clerk. 
 
 VIII. DECREE, ITS ENROLLMENT AND EFFECT. 
 
 39. Enrollment of Pleadings, Etc.; Signature by Chan- 
 cellor; Contents of Decree. When any cause shall be finally 
 determined in the court of chancery, except where the suit, 
 bill, or proceeding, shall be dismissed by consent, the clerk of 
 the court shall enter or enroll together, in order, the bill, 
 answer, pleadings, reports, decretal orders, and decree in such 
 cause, in a book to be kept for that purpose, which shall be 
 signed by the chancellor as of the day on which such decree 
 was pronounced; but such decree shall not contain any recital 
 of the said bill, answer or other pleadings. ( i ) 
 
 2. See "Dismissals," page 340, infra. 
 
 1. Effect of Enrollment of Decree. See "Proceedings to Open 
 Decrees," page 437, infra. 
 
 Final Decrees — When Enrolled. No final decree shall be enrolled 
 by the clerk until the expiration of ten days after filing the same, un- 
 less the form of the decree has been settled by the chancellor or a 
 vice-chancellor upon proper application therefor; nor shall the enroll- 
 ment be signed by the chancellor within such time without the special 
 
42 The Chancery Act Annotated. 
 
 40. Enrollment Not To Be Made on Dismissal by Con- 
 sent; Exception. Whenever any suit, bill or proceeding 
 shall be dismissed in pursuance of any consent or agreement 
 of the parties for that purpose, no enrollment of the bill, peti- 
 tion, answer or other proceedings had in such suit, shall be 
 necessary ; nor shall any fees be allowed or taxed ; provided, 
 either party may, at his or their own expense, require the 
 same to be enrolled. 
 
 41. Enrollment to be Made by Clerk; Time of Making; 
 Fees. Whenever the proceedings and decree in any case 
 are by law required to be entered or enrolled in manner afore- 
 said, it shall be the duty of the clerk to enter or enroll the 
 same, so that the record may be ready to be signed by the 
 chancellor within three months after the final decree in such 
 cause shall have been filed with the said clerk; and no clerk 
 
 order of the court. Chancery rule loi, and see Hudson Trust Co. v. 
 Boyd, 84 Atl. 715, as to effect of enrollment and as to when a decree 
 is to be considered as of record. 
 
 Enrollment of Proceedings Subsequent to Decree. In all cases 
 where there are proceedings subsequent to a decree final, which shall 
 alter or vary such decree, the same shall be enrolled by the clerk, but 
 not otherwise. Chancery Rule 39. 
 
 On Rehearing and Caveat Final Decree Not to be Enrolled. If 
 
 a petition for re-hearing shall be presented to the Chancellor before a 
 final decree shall have been settled upon application, or within ten days 
 after filing any final decree not settled on application, and a caveat 
 against enrolling and signing the same shall be filed with the clerk 
 of the Court, such final decree shall not be enrolled and signed, or 
 any process issued thereon, until the said application shall be finally 
 disposed of. Chancery Rule 145. 
 
 Objections to Form of Decree — ^When to be Taken. Every 
 party who may be affected by any order or decree, not settled by a 
 chancellor or a vice-chancellor upon application, shall be held to have 
 waived all objection to the form thereof, unless he shall file his objec- 
 tion thereto in ten days from the time of filing such order or decree. 
 The objection shall specify the part or parts of the order or decree to 
 which he objects, and state what the form ought to be; provided, that 
 nothing herein contained shall be held to prevent or preclude an ap- 
 plication to the chancellor or a vice-chancellor to settle the form of 
 the order or decree at any time. Chancery rule 102. 
 
 Objections to Award of Costs — When to be Taken. Every party 
 who may be affected by an award of costs in any order or decree, 
 where the opinion is silent on the subject of costs, shall be deemed 
 to have waived all objections thereto, unless he objects in writing ten 
 days from the filing of the order or decree; provided, that nothing 
 herein contained shall be held to prevent or preclude an application to 
 the chancellor at any time to change the order or decree as to the 
 award of costs. Chancery rule 103. 
 
Decrees. 43 
 
 shall charge any fee therefor until such service shall have been 
 actually performed. 
 
 42. Enrollment to be Made by Clerk's Successor. When- 
 ever any cause shall be finally determined in the court of chan- 
 cery, and the person then being clerk of the said court shall 
 cease to be such, before he shall have entered or enrolled the 
 procedingS' in such cause, in manner aforesaid, if by law they 
 ought to be so entered or enrolled, then it shall be the duty 
 of his successor in office, within three months after his ap- 
 pointment, to make or cause to be made such entry or enroll- 
 ment. 
 
 43. Signature to Enrollment May Be Made by Chancel- 
 lor's Successor in Ofifice. If the chancellor, by whom any 
 cause shall have been finally heard and determined, shall go 
 out of office, and some other person shall be appointed chan- 
 cellor before the proceedings and final decree in such case shall 
 have been enrolled and signed in the book kept for that 
 purpose, then it shall be the duty of his successor in office, or 
 the chancellor for the time being, to sign such enrollment 
 with his own name, prefixing to such signature the words 
 "by the statute;" and all proceedings and decrees so signed, 
 shall be as good and effectual in law, to all intents and purpo- 
 ses, as if the same had been duly signed by the chancellor who 
 pronounced such final decree. 
 
 44. Decree to Have Effect of Judgment at Law ; Execu- 
 tion Thereon; Lands Not Bound Until Abstract Filed in 
 Supreme Court. The decree of the court of chancery shall, 
 from the time of its being signed, have the force, operation 
 and effect of a judgment at law in the supreme court, from the 
 time of the actual entry of such judgment; and all decrees and 
 orders of the court of chancery, whereby any sum of money 
 shall be ordered to be paid by one person to another, shall 
 have the force, operation and effect of a judgment at law in 
 the supreme court, from the time of the actual entry of such 
 judgment, and the chancellor may order such executions there- 
 on as in other cases, provided, no decree of the court of chan- 
 cery, hereafter to be made, shall, as against any person not a 
 party thereto, become a lien upon or bind any lands, other 
 than those specifically mentioned and described in such de- ■ 
 cree, or in a bill of complaint on which the same is founded, 
 
44 The Chancery Act Annotated. 
 
 until the parties interested in such decree, or some or one of 
 them, shall have filed in the office of the clerk of the supreme 
 court a statement or abstract of such decree, containing the 
 names of all parties thereto, designating particularly those 
 against whom it is rendered, with the state and county in which 
 they respectively resided, the time at which the said decree was 
 signed, and the amount of the debt^ damages, costs or other 
 sum of money thereby directed to be paid; (2) wliich state- 
 ment or abstract the said clerk shall forthwith record in a 
 proper book, to be by him provided and kept in his office for 
 that purpose ; which book shall be properly indexed by the 
 said clerk, and be a public record, to which all persons desirous 
 to examine the same shall have access. (3) 
 
 2. Decrees Included Within Provisions of Section. A decree 
 in equity, except it is founded on a right or cause of action which 
 makes the decree a lien, does not bind the lands unless such efficacy 
 is given to it by the statute. Mutual Life Ins. Co. v. Hopper, 43 N. J. 
 Eq., 387; afHrmed, 44 N. J. Eq., 604. The provisions of this section, 
 which give to decrees in chancery the force, operation and effect of a 
 judgment at law in the Supreme CAurt apply only to such decrees as 
 resemble such judgment in the pecuniary obligations they impose. 
 Close v. Close, 28 N. J. Eq., 472; VanBuskirk v. Mulock, 18 N. J. L., 
 185. And .the provisions of this section do not apply to an ordinary 
 decree of foreclosure, and the record of such a decree in the clerk's 
 office will be expunged. Dawes v. Wheeler, 45 N. J. L., 67. So a 
 decree for foreclosure and sale of mortgaged premises, which contains 
 a declaration of the liability of the mortgagor defendant to pay any 
 deficiency which may arise in the sale, is not a decree for the pay- 
 ment of money which binds lands under the statute. Stoddard v. 
 VanBussum, 57 N. J. Eq., 34. And a decree for a deficiency does not 
 bind the land of the debtor as a lien, until the court has after sale 
 ascertained the amount of the deficit and made an order or decree 
 fixing the amount. Mutual Life Ins. Co. v. Hopper, 43 N. J. Eq., 387; 
 affirmed, 44 N. J. Eq., 604; Mutual Life Ins. Co. v. Southard, 25 N. J. 
 Eq., 337. But an abstract of a decree upon the foreclosure of a mort- 
 gage, fixing the amount of the deficiency, may be filed with the clerk 
 of the Supreme Court, and when so filed will operate as a judgment 
 obtained in the Supreme Court upon lands of the mortgagor. Mutual 
 Life Ins. Co. v. Hopper, 43 N. J. Eq., 387; affirmed, 44 N. J. Eq., 604; 
 Roll V. Rea, S7 N. J. L., 647 ; Stoddard v. VanBussum, 57 N. J. Eq., 35 ; 
 Dawes v. Wheeler, 45 N. J. L., 67. 
 
 What Description of Lands is Sufficient. The specific men- 
 tion and description of lands in the decree or bill of complaint which, 
 under the proviso of this section, will preserve the lien of the decree 
 upon those lands against all persons without filing the abstract in the 
 Supreme Court, must be a mention and description of such lands as 
 subject to some equitable lien which it is designed to enforce or 
 create. Close v. Close, 28 N. J. Eq., 472. 
 
 3. When Decrees Become Liens on Lands. Decrees of the 
 Court of Chancery become liens upon lands as against persons not 
 
Decrees. 45 
 
 45. Decree to Convey Lands; Effect. Where a decree 
 of the court of chancery shall be- made for a conveyance, re- 
 lease or acquittance of lands or any interest therein, and the 
 party against whom the said decree shall pass, shall not com- 
 ply therewith by the time appointed, then such decree shall be 
 considered and taken, in all courts of law and equity, to have 
 the same operation and effect, and be as available as if the con- 
 veyance, release or acquittance had been executed conformably 
 to such decree, and this, notwithstanding any disability of such 
 party by infancy, lunacy, coverture or otherwise. (4) 
 
 parties to the suit only after an abstract thereof is filed in the office 
 of the clerk of the Supreme Court; and their lien is liable to be 
 divested by a sale under a subsequent judgment at law where the 
 execution was issued before execution on the decree. Close v. Close, 
 28 N. J. Eq., 472; Roll V. Rea, $7 N. J. L., 647. So a decree directing 
 the defendant to pay a certain sum of money to the complainant, and 
 declaring that it shall constitute a lien upon all the defendant's real 
 and personal property in New Jersey, creates no lien upon land as 
 against persons not parties thereto until the abstract is filed pursuant 
 to the provisions of this section. Close v. Close, 28 N. J. Eq., 472. 
 So creditors under an attachment, who acquire their rights pendente 
 lite, are chargeable with notice although no lis pendens was filed. The 
 filing of a written notice of pendency of suit, in order to constitute 
 constructive notice, applies only to bona fide purchasers or mortga- 
 gees. Dunning v. Crane, 61 N. J. Eq., 634. And so a bona fide mort- 
 gage given after the entry of the personal decree of the Court of 
 Chancery against the mortgagor for the payment of money merely, 
 but before the filing of a statement or abstract of the decree in the 
 Supreme Court in accordance with the provisions of this section, is 
 entitled to priority over the decree. Jersey v. Demarest, 27 N. J. Eq., 
 299. 
 
 4. Effect of Provisions of Section. By force of the statute, 
 a decree directing a conveyance to be made vests the estate, so that 
 the rights of the parties, in case of a variance between the terms of 
 the decree and of the conveyance, must depend upon the former 
 rather than on the latter. Price v. Sisson, 13 N. J. Eq., 168; afHrmed, 
 ly N. J. Eq., 475- So an equitable estate existing in favor of a lessee, 
 who has exercised an option to purchase, is transformed by a decree 
 for specific performance into a legal estate, which will support a bill 
 for partition. White v. Smith, 60 Atl., 399. The terms of such a de- 
 cree as is referred to in this section must be construed precisely as 
 the conveyance itself would be. Price v. Sisson, 13 N. J. Eq., 168; 
 aMrmed, 17 N. J. Eq., 475. But a decree of the Court of Chancery 
 that a sheriff's deed should become void, and the purchaser re-convey 
 on the payment to him of a certain sum within a specified time, is 
 not such a decree as becomes a conveyance by force of this section. 
 Kloepping v. Stellmacher, 36 N. J. L., 176. 
 
46 The Chancery Act Annotated. 
 
 IX. FINAL PROCESS AND DUTY AND LIABILITY 
 OF SHERIFF. 
 
 46. Sequestration, Fieri Facias; Capias Ad Satisfacien- 
 dum, or Injunction to Enforce Decree. The complainant 
 having obtained a decree, it shall be lawful for the said court 
 to issue process for the immediate sequestration of the real 
 and personal estate of the defendant, or so much thereof as 
 may be sufficient to satisfy the demand of the complainant in 
 the decree specified, with costs, or to issue a writ of fieri facias 
 against the goods and chattels, lands and tenements, heredita- 
 ments and real estate, of the defendant, upon which sufficient 
 property shall be taken and sold to satisfy the said demand, 
 with costs,(i) or to issue a capias ad satisfaciendum against 
 the defendant, upon which writs of fieri facias and capias ad 
 
 I. Construction of Section. In cases where no special equities 
 exist, this section provides the only method by which a decree of 
 the Court of Chancery for the payment of a sum of money due upon 
 a contract between the parties can be enforced, to wit: by a sequestra- 
 tion of the estate of the defendant; by fi. fa. against his real and per- 
 sonal property; and, in cases of fraud, by capias against his person. 
 Aspinwall v. Aspinwall, S3 N. J. Eq., 684. 
 
 Execution to be Directed to Sheriff. Every execution issued, 
 shall be directed to a sheriff, unless the chancellor shall, for reasons 
 presented to him, otherwise order. Chancery rule 115. 
 
 Order of Liability of Defendants to be Enforced on Execution. 
 On any execution issued for deficiency against several defendants, 
 some liable after the others, the order in which they are liable as 
 between themselves shall be endorsed, and if the deficiency be paid 
 by a defendant not primarily liable, he shall have the right to use the 
 decree and execution to compel the payment by parties liable before 
 him. Chancery rule 116. 
 
 Sheriff to Make Return Within Thirty Days. Every Sheriff 
 shall make return of his execution, and pay to the clerk of this court 
 any surplus in his hands, within thirty days after sale ; and no execu- 
 tion shall hereafter be directed to any sheriff while he shall be in de- 
 fault in either of the above respects; and any sheriff who shall pay 
 over to any defendant named in an execution any money raised by 
 him on the same, unless so directed by the writ, or by an order of 
 the court afterwards made, shall have no allowance for the same. 
 Chancery rule 117. 
 
 Execution Not to Issue for Ten Days After Final Decree. 
 No execution or other process shall issue on a final decree until the 
 expiration of ten days from the filing of such decree, unless the 
 chancellor "shall otherwise direct. Chancery rule 118. 
 
 Execution for Costs. No execution shall issue for costs allowed 
 by a decree or order of the court, unless specially directed. Chancery 
 rule 114, and see section 84, page 71, infra. 
 
Final Process. 47 
 
 satisfaciendum there shall be the same proceedings as at 
 law; (2) or to cause, by injunction, the possession of the 
 effects and estate demanded by the bill and whereof the pos- 
 session or a sale is decreed, to be delivered to the complain- 
 ant or otherwise, according to such decree and as the nature 
 of the case may require ; and in case of sequestration, the 
 court shall order payment and satisfaction to be made out of 
 the estate so sequestered, according to the true intent and 
 meaning of the decree. (3) 
 
 47. Lien of Fieri Facias. A writ of fieri facias shall 
 bind the property or the goods of the person against whom it 
 is issued, from the time that it shall be delivered to the 
 sheriff or other officer to be executed, as at law. (4) 
 
 48. Amercement of Sheriff or Other Officer for Neglect 
 of Duties Relating to Final Process; Procedure. If the 
 
 sheriff or other officer shall neglect or refuse to execute any 
 process of sequestration to him directed and delivered, or to 
 make payment of the rents, issues and profits of the estate 
 so sequestered, according to the order of the said court, or, 
 where the execution shall be by -fieri facias, shall neglect to 
 file a just and true inventory of the goods and chattels, lands, 
 tenements, hereditaments, and real estate so levied on and 
 seized, unless he return that he hath levied to the amount of 
 the demand or sum therein specified, with costs, or shall volun- 
 tarily or negligently omit, for the space of two^ months, to 
 render to the complainant, or his representative or solicitor, 
 the money which he shall have received from the sale of the 
 estate, real and personal, of the defendant or otherwise, then 
 
 2. When Capias Will Issue. Where a surviving- partner wrong- 
 fully misappropriated funds which he held in trust for the estate of his 
 deceased partner, the latter's administrator, in a proceeding in equity 
 to compel the enforcement of a decree for the payment of the money, 
 was held entitled to process against the defendant's body, which would 
 be executed in the absence of proof that defendant was unable to obey 
 the order. Haggerty v. Badkin, 66 Atl., 420. 
 
 3. General Powers of Court. The court out of which an execu- 
 tion issued may, at its discretion, order paid into court money which 
 by the terms of the writ is payable to a person named. Gifford v. 
 McGuinness, 63 N. J. Eq., 834. 
 
 4. Priority of Writ of Fi. Fa. In a contest between an, execu- 
 tion on a judgment at law and an execution on a money decree in 
 chancery, the writ first delivered to the sheriff and levied on the 
 lands is entitled to priority. Close v. Close, 28 N. J. Eq., 472. 
 
48 The Chancery Act Annotated. 
 
 such sheriff or officer shall be amerced by the said court to the 
 amount of the demand of the complainant, with costs, for the 
 use of the said complainant; provided, ten days' notice in 
 writing shall be given to such sheriff or officer by the complain- 
 ant, his representative or solicitor, of the intended application 
 for such amercement; which amercement, so ordered by the 
 court, shall have the force, operation, and effect of a decree 
 whereon execution, in the name and for the use of the said 
 complainant, or his representative, may instantly, on motion 
 in term time, and without further proceedings, be awarded 
 and issued against the goods and chattels, lands, tenements, 
 hereditaments and real estate of the said sheriff or officer. 
 
 49. Amercement of Sheriff or Other Officer for Neglect 
 of Duties Relating to Final Process; Procedure. If the 
 
 sheriff or other officer shall neglect or refuse to execute any 
 writ of fieri facias to him directed or delivered, for the space 
 of two months, or shall adjourn the sale or vendue of the 
 lands, tenements, hereditaments and real estate by him levied 
 upon by virtue of such writ of fieri facias, more than twice 
 or exceeding one month for each adjournment, he shall be 
 and is hereby made liable to the amount of the debt or damages 
 and costs, or sum or sums of money mentioned in the said 
 writ, with interest, and for the recovery thereof may be 
 amerced and proceeded against in the manner prescribed in 
 and by the last preceeding section of this act ; provided, if the 
 said sheriff Or other officer shall, at any time before the entry 
 of such amercement against him as aforesaid, sell the prop- 
 erty levied upon, and bring the whole amount of the product 
 of such sale (after deducting his lawful fees.) into court, 
 the said sheriff or other officer shall be exonerated from all 
 liability on account of said amercement. 
 
 50. Further Remedy Against Sheriff for Neglect of 
 Duties Relating to Final Process. If any party to a suit in 
 chancery shall be aggrieved by the neglect, default, malpractice 
 or misconduct of the sheriff, then such party, his representa- 
 tive or attorney, may apply and be redressed to the amount 
 of the sum specified, in the order or "decree, in the manner 
 prescribed by the act entitled "An act concerning sheriffs." 
 
 51. Failure of Sheriff or Officer to Return Process or 
 Order; Contempt. If any sheriff or other officer, to whom 
 
Final Process. " 49 
 
 any writ, process or order of the court of chancery shall be 
 directed or delivered, shall not make return thereof at the 
 day of return, and according to the tenor of such writ, process 
 or order, the same not being countermanded, he shall be in 
 contempt and process of contempt shall, on motion in term 
 'time, be issued against him ; and before he shall be discharged 
 from such contempt he shall pay to the clerk for the use of 
 the state as a fine for the said contempt, a sum not exceeding 
 fifty dollars, to be imposed by the court, and the costs incurred 
 by means thereof. 
 
 52. Proceedings on Execution in Case of Death, Dis- 
 ability, etc., of Sheriff, Master, etc. 
 
 (As Amended by P. L. igo6, p. 82; i Comp. Stat, p. 429, sec. 52.) 
 When any sheriff, master in chancery, receiver or other per- 
 son to whom any writ of execution or order or decree for the 
 sale of any lands, tenements, heriditaments, or real estate issuing 
 out of the court of chancery, hath heretofore been directed and 
 delivered, or shall hereafter be directed and delivered, hath died 
 or shall die, or hath or shall become unable to discharge the 
 duties of his office or apf>ointment, or hath removed or shall 
 remove out of tlie state and continue to reside thereout without 
 discharging the duties of his office or appointment in relation 
 to the command of said writ, order or decree, then, or in 
 either of said cases it shall be lawful for the chancellor, upon 
 presenting a petition setting forth the facts above mentioned 
 and verified to the satisfaction of the chancellor to award an- 
 other writ of execution, order or decree for sale to be 
 directed to the sheriff of the proper county or to one of the 
 masters of said court, or to some other proper person, com- 
 manding him to proceed to discharge the exigencies of said 
 writ, order or decree in the same manner as such officer so 
 dying, becoming disabled, or removing as aforesaid, was com- 
 manded in and by said writ, order or decree so to do, and any 
 proceeding had by such officer to whom such writ, order or 
 decree shall be directed and delivered shall be as good, valid 
 and effectual as if the said execution, order or decree first 
 issued or made had been originally directed to him ; and any 
 notice of sale given by public advertisements by said former 
 sheriff, master, or receiver shall be as good, valid and effectual 
 in law as if the same were given by said substituted sheriff, 
 master or other proper person; and such sheriff, master 01^ 
 
50 The Chancery Act Annotated. 
 
 other proper person shall be entitled to the same fees for serv- 
 ices done and subject to the same suits, penalties, amercements 
 and proceedings for neglect of duty as if the said writ of exe- 
 cution, order or decree had been originally directed and de- 
 livered to such sheriflf, master or other proper person. 
 
 X. PROCEEDINGS IN FORECLOSURE. 
 
 53. Fieri Facias; Issue; Record. When a bill shall be 
 filed for the foreclosure or satisfaction of any mortgage, it shall 
 be lawful for the court to decree a sale of the mortgaged prem- 
 ises, or such part thereof as shall be sufficient to discharge the 
 said mortgage or incumbrances on the said mortgaged prem- 
 ises, besides costs ;(i) which sale shall be made either by one 
 of the masters of the court or by the sheriff of the county 
 where the premises are situated, by virtue of a writ of fieri 
 facias, issued for that purpose ; which said writ of fieri facias 
 shall, before it is sued forth, be recorded by the clerk of the 
 said court in the book kept by him for recording of executions 
 against real estate. (2) 
 
 54. Fieri Facias ; Sale and Conveyance of Premises ; Dis- 
 position of Surplus. The sheriff or oth^r officer to whom 
 such writ of fieri facias, as mentioned in the last preceding 
 section, shall be directed and delivered shall make sale pursu- 
 ant to the command of said writ, and shall make and execute 
 a deed or deeds for the premises sold, as the case may require ; 
 and the moneys arising from the said sale shall be applied to 
 pay off and discharge the moneys decreed to be paid, (3) and 
 the remainder, if any there be, and if the person or persons 
 entitled to receive it shall be absent out of this state, may be 
 invested at interest on such security as the said court shall 
 think proper to order ; and the same shall be delivered or paid 
 to the person or persons entitled to receive it, upon his appli- 
 cation to the court for the same; (4) provided, no greater 
 
 1. See "Foreclosure of Mortgages," page 594, infra. 
 
 2. See "Foreclosure of Mortgages," page 603, infra. 
 
 3. See "Foreclosure of Mortgages"^"D'isposition of Proceeds of 
 Sale," page ^44, infra. 
 
 4. See "Foreclosure of Mortgages" — "Disposition of Proceeds 
 of Sale," page 644, infra. 
 
Foreclosure Proceedings. 51 
 
 estate in the premises sold shall at any time be conveyed or 
 granted to such purchaser than would have been vested in the 
 mortgagee had the equity of redemption been duly fore- 
 closed. (5) 
 
 55. Supersedeas to Stay Proceedings. In all cases of a 
 decree for sale of mortgaged premises against any absent de- 
 fendant, if such defendant shall, at any time, before the sale 
 made by t1ie sheriff, in pursuance of any writ of execution, 
 issued as aforesaid, cause his appearance to be entered in 
 court, and shall pay such costs to the complainant as the court 
 shall think reasonable, then it shall be lawful for the said 
 court, by a writ of supersedeas, directed to the sheriff or other 
 officer, to stay the proceedings on the execution for the sale 
 of such mortgaged premises; and thereupon such proceedings 
 shall be had, as if an appearance had been entered, within such 
 time and in such manner as, according to the rules of the court, 
 the same ought to have been entered, in case the first process 
 in the suit had been duly served. (6) 
 
 56. Sale When Entire Amount of Mortgage Not Due. 
 
 When a decree of the court of chancery shall be made for the 
 sale of mortgaged premises (in cases where the whole sum 
 secured by the mortgage is not due) either for non-payment 
 of any portion or installment of the debt or demand intended 
 to be secured by the mortgage, or the non-payment of interest 
 due, or both, and it shall appear to the court that a part of the 
 mortgaged premises cannot be sold to satisfy the amount due , 
 without material injury to the remaining part of the mortgaged 
 premises, and that it is just and reasonable that the whole of 
 
 5. See "Foreclosure of Mortgages" — "Property and Rights Se- 
 cured by Purchaser" page 632, infra. 
 
 6. Relief Discretionary With the Chancellor. This section is 
 merely declaratory of a power which was, at the time of its passage, 
 inherent in the court, and perhaps to some extent regulates the exer- 
 cise of that power. It is neither in its terms nor in its spirit manda- 
 tory. Whether the writ of supersedeas shall or shall not issue, depends 
 not on the will of the party, but on the discretion of the court, to be 
 exercised in view of all the circumstances of the case. A party who 
 invokes the aid of the court under this section should show at least sur- 
 prise and merits. Horner v. Corning, 28 N. J. E|q., 254; Cresse v. 
 Security Land Company, S4 N. J. Eq., 447; Horning v. Ludlum, 28 
 N. J. Eq., 398. See also notes to section 18, page 21, supra. The fact 
 that a notice sent to an absent defendant was not delivered to her on 
 account of her illness is not sufficient ground for relief under this 
 section. Horner v. Corning, 28 N. J. Elq., 254. 
 
52 The Chancery Act Annotated. 
 
 the mortgaged premises should be sold together, it shall be 
 lawful for the said court to decree a sale to be made of the 
 whole of the mortgaged premises, and to apply the proceeds 
 of the sale of said premises or so much thereof as shall be nec- 
 essary, as well to the payment of the interest, installments, or 
 portions then due, and also the costs then due and payable as 
 to the payment of the whole or residue of the debt or demand 
 which hath not become due and payable, and the^ residue of 
 the proceeds of such sale to be paid to the person or persons 
 entitled to receive the same, or to be brought into court to 
 abide the further order of the court, as the equity and cir- 
 cumstances of the case require; provided, when the residue 
 of the debt or demand intended to be secured by the said mort- 
 gage is payable at a future day without interest, and the mort- 
 gagee is willing to receive the same, the court shall deduct a 
 rebate of legal interest for what the mortgagee shall receive 
 on the said debt or demand, to be computed from the time 
 of the actual payment thereof to the time such residue of the 
 debt or demand would have become due and payable. (7) 
 
 57. Satisfaction of Decree for Foreclosure; Entry. 
 
 When the amount due on any decree in chancery for the fore- 
 closure and sale of mortgaged premises shall be paid and satis- 
 fied in any other way than by a sale of the mortgaged premises, 
 or when any decree in chancery for the payment of money 
 shall be paid and satisfied, satisfaction shall be entered on the 
 margin of the enrollment by the party receiving satisfaction, 
 or his solicitor, or by the clerk, by virtue of a warrant of at- 
 torney from the party duly acknowledged or proved, in the 
 same manner as satisfaction is entered of judgments at 
 law; and upon filing an acknowledgment of such satisfaction, 
 under the hand of the solicitor of any party, such satisfaction 
 may be entered for him by the clerk, and the same fees shall 
 be paid as in the supreme court for like services. 
 
 7. Construction of Statute. Where a itiortgage is foreclosed 
 for failure to pay an instalment, the njaster, in computing the amount 
 due, must make a rebate of the interest on such payments not bear- 
 ing interest as are not yet due. The language of the statute "if the 
 mortgagee shall be willing to accept the same" has never been con- 
 strued to give the option to claim the whole without rebate. The mean- 
 ing of this language is that he need not have the principal not yet due 
 included in his decree, if he does not choose so to do. Greenville 
 B. & L. Assn. V. Wholey, 68 N. J. Eq., 92, 97. And see "Foreclosure of 
 Mortgages," page 594, infra. 
 
Foreclosure Proceedings. 53 
 
 58. Owners of Unrecorded Liens Bound by Decree; 
 May Be Made Parties to Proceedings by Petition. 
 
 (As amended by P. L. 1903, p. 385 ; i Comp. Stat., p. 432, sec. 58.) 
 In any suit for the foreclosure of a mortgage upon or which 
 may relate to real or personal property in this state, all per- 
 sons claiming an interest in or an incumbrance or lien upon 
 such property, by or through any conveyance, mortgage, as- 
 signment, lien or any instrument which, by any provision of 
 law, could be recorded, registered, entered or filed in any 
 public officein this state, and which shall not be so recorded, 
 registered, entered or filed at the time of the filing of the bill 
 in such suit, shall be bound by the proceedings in such suit, 
 so far as the said property is concerned, in the same manner 
 as if he had been made a party to and appeared in such suit, 
 and the decree therein made against him as one of the defend- 
 ants therein ; but such person, upon causing such conveyance, 
 mortgage, assignment, lien, claim or other instrument to be 
 recorded, registered, entered or filed as provided by law, may 
 cause himself to be made a party to such suit by petition, in 
 the same manner as is by this act provided in the case of per- 
 sons acquiring an interest in the subject-matter of a suit after 
 its commencement; the petition in such case must set forth 
 such instrument at length, and the title and interest of such 
 party in such manner as to show that he has an interest in 
 the subject-matter, and is a proper party in that suit.(8) 
 
 8. Construction of Statute. This section is a statute of con- 
 venience of procedure only, and does not determine ultinjate rights. 
 It relieves the complainants from any obligation to make parties of 
 persons holding liens against the mortgaged property not of record, and 
 binds those parties from further asserting their claims against that 
 property. But it does not destroy their equitable interest in the pro- 
 ceeds of the sale, nor deprive them of the right thereafter to bring 
 them to any competent court for determination. Raymond v. Post, 
 25 N. J. Eq., 447; Stiles v. Galbreath, 69 N. J. Eq., 222; affirmed, 
 71 N. J. Eq., 299. So the owner of a mortgage by an unrecorded 
 assignment is bound by proceedings under foreclosure of a prior 
 mortgage in the Court of Chancery, to which his assignor was made 
 a party defendant by reason of his apparent ownership of the mort- 
 gage, so far as the mortgaged premises are concerned, although he 
 was not a party to such profceedings. Cannon v. Wright, 49 N. J. Eq., 
 17; Sibell v. Weeks, 65 N. J. Eq., 714. So where a lien claim was 
 filed after the commencement of a suit in the Court of Chancery to 
 foreclose a mortgage which was on the land before the work was done 
 or material furnished for which the lien was claimed, and the lien 
 defendants were not made parties to the suit, and did not apply to 
 be made parties, the claim will be cut off, by virtue of the provisions 
 of this section, by sale under the foreclosure. Raymond v. Post, 25 
 
54 The Chancery Act Annotated. 
 
 59. Fees in Foreclosure Proceedings. In all foreclosures 
 of mortgages and the sale of mortgaged premises, where the 
 amount due does not exceed three hundred dollars, the fees 
 
 N. J. Eq., 447; Lamb v. Cannon, 38 N. J. L., 362. And where the 
 grantee under a mortgagor does not record his deed until four months 
 after the final decree was entered in the cause, he is bound by the 
 proceedings so far as his property is concerned in the same manner 
 as if he had been made a party to the suit and the decree thereunder 
 made against him as one of the defendants. Dinsmore v. Westcott, 
 25 N. J. Eq., 302; Leonard v. N. Y. Bay Co., 28 N. J. Eq., 192; Craw- 
 ley V. Leonard, 28 N. J. Eq., 467. So where land was conveyed by a 
 deed containing the clause "subject nevertheless to two mortgages for 
 $1,000 and $2,000 respectively," and no mortgage on the land for 
 $2,000 was ever on record, it was held that such clause in the deed 
 formed no objection to the title of complainant, who purchased under 
 foreclosure proceedings instituted on the $1,000 mortgage, to which 
 no one representing the $2,000 mortgage was ever made a party. 
 McCrea v. Newman, 46 N. J. Eq., 473. The holder of a mortgage not 
 recorded when a bill is filed to foreclose another mortgage upon the 
 premises cannot file an original bill upon the unrecorded mortgage, 
 but must seek his rights by applying to intervene in the first suit in 
 accordance with the provisions of this section. Sibell v. Weeks, 65 
 N. J. Eq., 714. See also sections 29 and 30 and notes page — , supra. 
 But where a mortgagor conveyed premises to a grantee, who con- 
 veyed to a third person, who conveyed to a married woman, and at 
 the time the mortgagee filed his bill to foreclose, the married woman 
 was in possession and her deed recorded, but the deed to the third 
 person was not recorded, and the mortgagee only made the mortgagor 
 and his grantee and their wives parties, it was held that the husband 
 of the married woman, who after her death claimed the premises as 
 tenant by the curtesy, did not claim the estate under the mortgagor 
 or his grantee, and that he was not bound by the decree of fore- 
 closure. New Jersey B. & L. &c. Co. v. Schatzkin, 72 N. J. Eq., 175. 
 A lease neither acknowledged nor proved is not an "instrument which 
 by any provision of law could be recorded" within the meaning of this 
 section; this section applies only to a case of withholding from the 
 record an instrument which in its then condition might be lawfully 
 placed on record. Strong v. Smith, 68 N. J. Eq., 686. So where a 
 prior judgment creditor was made a party to a foreclosure bill, but 
 his judgment having been paid by a surety for the debt on which the 
 judgment was recovered, he entered no appearance, and there was no 
 proof before the master as to the amount due on the judgment, nor 
 any direction in the final decree as to its payment, it was held that as 
 to the surety, the priority and lien of the judgment were unaffected 
 by the proceedings, and a petition by him to be made a party in order 
 to protect his rights was dismissed. Farmers National Bank v. Lloyd, 
 30 N. J. Eq., 442. 
 
 Who May be Admitted as a Party. ■ A person claiming to be 
 subrogated to the rights of a first mortgagee under his mortgage may 
 be admitted as a party by petition, and in such case it is not necessary 
 that the petitioner submit his proposed answer to the court that it may 
 judge of it before he is permitted to file it. All that can reasonably 
 be required is that the applicant shall by petition specifically state such 
 facts, duly verified, as shall satisfy the court that he has a bona fide 
 claim to such an interest as entitles him to be made a party to the suit. 
 
Foreclosure Proceedings. 55 
 
 of the solicitor, clerk, chancellor, master and examiner, sheriff 
 or any other official, shall be one-half the amount allowed by 
 law, where tlie amount due exceeds three hundred dollars. (9) 
 
 60. Allowance by Consent of Gross Sum in Lieu of 
 Dower, Curtesy, Life Estate or for Years in Mortgaged 
 Premises Out of Proceeds of Sale; Investment of Proceeds 
 of Sale in Lieu of Estate Otherwise. If^ upon the foreclosure 
 of any mortgage and the sale of the premises therein described, 
 there shall be paid into court any moneys representing an estate 
 in dower or by the curtesy or estate for life or for years in 
 said premises or any part thereof, any person entitled to such 
 estate may make application to the court for a sum in gross 
 in lieu of the estate aforesaid, and the court shall direct the 
 piayment of such sum in gross out of the proceeds of the sale 
 of the premises to the person entitled to such estate, as shall 
 be deemed a just and reasonable satisfaction for such estate, 
 
 Conrad v. Mullison, 24 N. J. Eq., 65 ; see also sections 29 & 30 and 
 notes page 31, supra. So subsequent encumbrancers may be made parties 
 by filing a petition under this section, instead of by supplemental bill. 
 Leveridge v. Marsh, 30 N. J. Eq., S9. But a person whose rights cannot 
 be properly adjudicated as part of the relief prayed for in the original 
 bill is not entitled to be admitted as a party complainant, nor, on the 
 other hand,- can a person be admitted as a party defendant when the 
 right which he seeks to set up' is one which requires that he should, 
 either by answer by way of cross bill, or by answer and cross bill, place 
 himself in a position where he can be entitled to the relief asked for. 
 Mutual Life Insurance Company v. Schwab, 51 N. J. Eq., 204; Shepard 
 V. N. J. Consolidated Water, &c., Co., 73 N. J. Eq., 578. 
 
 Form of Petition. Where the applicant fully states in his peti- 
 tion his title and interest, and whence and in what manner derived, 
 he cannot be deprived of his right to be admitted as a party to the suit 
 because he does not set out the instrument under which he claims at 
 length in a case where it is alleged that complainant holds the instru- 
 ment and refuses to deliver possession of it. Kirkland's Administra- 
 trix V. Kirkland, 26 N. J. Eq., 276; Leveridge v. Marsh, 30 N. J. Eq., 
 59; see also sections 29 & 30 and notes, page 31, supra. 
 
 Necessity of Recording Instrument. It is not in all cases re- 
 quisite that a person seeking to be made a party to a foreclosure suit 
 by petition should first cause the instrument in which he claims an 
 interest or a lien upon the mortgaged premises to be recorded, regis- 
 tered, entered or filed. If for any cause, such as the loss of an instru- 
 ment, or where it is alleged that complainant withholds the instrument 
 from' him, petitioner is unable to comply with the preliminary require- 
 ment of the act, he will not be debarred from the benefits of the 
 provision. Kirkland's Administratrix v. Kirkland, 26 N. J. Eq., 276. 
 
 9. Construction of Act. The words "'amount due" in this section 
 includes costs, except the sheriff's execution fees. Crane v. Feltz, 36 
 N. J. Eq., IS9. 
 
56 The Chancery Act Annotated. 
 
 and which the person so entitled shall consent in writing to 
 accept in lieu thereof; but in case no such consent be given 
 before the distribution of the proceeds thereof, then the court 
 shall ascertain and determine what proportion of such pro- 
 ceeds will be a just and reasonable su.m to be invested for the 
 benefit of the person entitled to such estate, and shall order 
 the same to be put at interest on sufficient security of real 
 property or invested in public stock or deposited in some safe 
 and reliable savings bank by order and under the direction and 
 control of said court for the benefit of the parties entitled, and 
 the interest thereon to be paid to them as the same may be- 
 come due as a compensation for and in lieu of the said estate, 
 and at the termination of said estate the principal sum shall 
 be paid to or distributed among the parties entitled there- 
 to. (lo) 
 
 61. Set-Offs in Foreclosure Proceedings. In all suits 
 where the amount due on any mortgage is in issue, all just set- 
 offs shall be allowed in ascertaining the amount .due, whether 
 the holder of such mortgage be a party complainant or defend- 
 ant, in the same manner and to the same extent as the like 
 set-offs are allowed in actions at law.(ii) 
 
 62. Sale of Property Pending Foreclosure Proceedings. 
 
 The court shall have power in any suit for the foreclosure or 
 
 10. Construction of Statute. The fact that this act was passed 
 subsequent to the marriage of complainant, the remainderman, to one 
 of the defendants, and after his title accrued, does not make it uncon- 
 stitutional by depriving him of a vested right without his consent, since 
 the amount to be paid to the life tenant is only the value of her interest, 
 and the remainderman's rights beyond that are secure. Leach v. Leach, 
 72 N. J. Eq., 571. This section does not require the consent of the 
 persons interested in remainder, but only that of the owner of the 
 estate for life. Leach v. Leach, 69 N. J. Eq., 620. 
 
 11. Practice Prior to Enactment of Section. Prior to the en- 
 actment of this section, it was a settled rule in New Jersey that on the 
 foreclosure of a mortgage the owner of the equity of redemption could 
 not set up in defense a counter-indebtedness against the holder of the 
 mortgage; in other words, that the mortgagor and obligor could not 
 set oft against his bond and mortgage in the hands of the obligee and 
 mortgagee a debt due to him from the latter. Williamson v. Fox, 30 
 N. J. Eq., 488; Parker v. Hartt, 32 N. J. Eq., 225; affirmed, ib., 844; 
 Davis V. Flagg, 44 N. J. Eq., 109: Loder v. Allen, 50 N. J. Eq., 631-636; 
 Brown v. Coriell, 50 N. J. Eq., 753; McMichael v. Webster, 57 N. J. 
 Eq., 29s. For a general consideration of the subject of the right of 
 set off in foreclosure proceedings, see "Foreclosure of mortgages," page 
 557, infra. 
 
Foreclosure Proceedings. 57 
 
 batisfaction of any mortgage covering real or personal prop- 
 erty, or both, upon the petition of any party to such suit, 
 where the property mortgaged is of such character or so 
 situated as to make it liable to deteriorate in value pending 
 said suit, or to make its care or preservation difficult or ex- 
 pensive, to order a sale to be made thereof at public pr private 
 sale, through a receiver, sheriff, master, or otherwise, as the 
 said court may direct, and the proceeds of any such sale to be 
 brought into court, there to remain subject to the same liens 
 and equities of all parties in interest as was the mortgaged 
 property, and to be disposed of as the said court by its de- 
 cree or order shall direct.(i2) 
 
 63. Surplus of Proceeds of Sale Paid to Administrator 
 or Executor of^ Mortgagor, When; New Bond of Adminis- 
 trator or Executor. The. surplus money arising from the 
 sale of mortgaged premises, in cases where the mortgagor, or 
 person owning the mortgaged premises, shall be deceased at 
 the time of the sale, may, if in the opinion of the chancellor 
 the same shall be expedient or necessary for the proper ad- 
 ministration of the estate, be paid to the administrator or 
 executor of said deceased, to be administered in same manner 
 as money arising from the sale of real estate made by ad- 
 ministrators or executors ; provided, said administrator or 
 •executor shall enter into bond as now requii-ed by law, upon 
 their application for the sale of real estate. (13) 
 
 12. Scope of Section. This section plainly intends by an imme- 
 diate sale to prevent an impending depreciation of some extraordinary 
 character which is threatened before, by the regular course of proced- 
 ure, a disposition of the property can be effected, such as a dangefous 
 condition of the buildings, an abandonment of the premises, or the 
 like. In such case, an immediate disposition of the property would be 
 made in the expectation of securing now a price which would be 
 unlikely at the end of the litigation. Horner v. Dey, 61 N. J. Eq., 554. 
 But the depreciation of the value of a farm attending the removal of 
 crops therefrom is not a ground for an order for immediate sale. 
 Horner v. Dey, 61 N. J. Eq., 554. 
 
 13. Application for Moneys in Court to Pay Debts of Decedent. 
 Petition for Surplus to Pay Debts. Applications by executors or 
 
 administrators for the surplus moneys on foreclosure sales, or for the 
 proceeds of lands sold in suits for partition, to be applied by them to 
 the payment of the debts of a decedent represented by them, shall be 
 made by petition ; the petition shall state the time of the death of the 
 decedent, the date of the sheriff's or master's deed upon which such 
 moneys were received, whether any of the heirs or devisees have 
 aliened or encumbered their estate in the lands sold, in whole or in 
 part, or their interest in the proceeds of the sale thereof or any part 
 
58 The Chancery Act Annotated. 
 
 XI. INJUNCTIONS. 
 
 64. Stay of Proceedings at Law in Personal Actions 
 After Verdict or Judgment; Deposit or Security. No in- 
 junction shall issue to stay proceedings at law in any personal 
 action after verdict or judgment, on the application of a de- 
 fendant in the said proceedings at law, unless a sum of money 
 equal to the amount due at the time of such deposit upon said 
 verdict or judgment, with costs, shall be first deposited with 
 
 of the same, and when, and what part and to whom; and also whether 
 any married woman has an inchoate right of dower in said surplus 
 moneys, or any part thereof. There shall be annexed to the petition 
 a true account of the personal estate of the decedent that has come to 
 the hands or knowledge of the petitioner, stating the amount of the 
 same which has been collected or realized, and what part, if any, has 
 not been collected or realized, and specifying what parts are deemed 
 good, doubtful or desperate; such account shall also state how the 
 amount realized has been disposed of, and how much remains on hand; 
 also, the debts due or claimed to be due from the decedent and to 
 whom owing, and what parts of such debts are disputed by the peti- 
 tioner; and such petition and account shall be verified by oath. Chan- 
 cery rule ISS- 
 
 One of Two Executors May Apply. One of two executors may 
 apply to this court for moneys in the hands of the court to pay undis- 
 puted claims when any sufficient reason appears for not joining the 
 other executor. Hattersley v. Bissett, 52 N. J; Eq., 693 ; Personette v. 
 Johnson, 40 N. J. Eq., 173. In order to induce the court to order 
 surplus money arising upon sale of mortgaged premises to be paid to 
 the personal representative of the owner of the equity of redemption, 
 it is not necessary that each of the claims presented to such personal 
 representative should be finally passed upon by the court. It is sufficient 
 if the court shall be satisfied that it is expedient or necessary for the 
 proper administration of the estate that such payment should be made. 
 Notwithstanding such payment, the personal representative or other 
 person interested in the estate is at liberty to contest any of the claims 
 reported by the representative to the Court of Chancery. Salaun v. 
 Hartshorne, 52 N. J. Eq., 739. 
 
 Notice and Service of Petition. Such petition shall be filed and 
 notice of the application shall be given for ten days before the same 
 is made, tO' all persons entitled tO' such moneys, or any part thereof, 
 if not required for the payment of debts ; such notice, besides the time 
 and place of application, shall state the amount of the personal estate 
 that has come to the hands of the petitioner, the amount paid out for 
 debts and expenses, and the amount of debts paid and claimed to be 
 due and unpaid; such notice may be served upon persons who reside 
 out of the state and have not appeared in the suit by setting up a copy 
 in the office of the clerk of this court, and also by mailing a copy to 
 the post office address of such person, if the same be known. Chancery 
 rule 156. 
 
 Reference and Report. Unless the consent of all so interested 
 in such moneys shall be given to the payment of the same, or a suffi- 
 
Injunctions. 59. 
 
 the clerk of the court by the apphcant for such injunction, 
 or unless said applicant shall give such security, by bond, as 
 the chancellor shall deem good, to the party or parties at law 
 against whom such injunction is prayed, in double the amount 
 then due on such verdict or judgment and the costs at law,' 
 with condition to abide such order or decree as the chancellor 
 shall make in the premises ; or if the bill be dismissed, to pay 
 the amount of the said verdict or judgment and costs, with- the 
 interest th-ereon.(i) 
 
 cient part thereof, to the petitioner, it shall be referred to a special 
 master to ascertain and report upon the truth of the matters in such 
 petition and account, and also how much will be required for the pay- 
 ment of the debts of decedent above the amount realized and likely 
 to be realized from the personal estate, and also whether any part 
 of the lands sold, or of the proceeds of the sale thereof, has - been 
 aliened by the heirs or devisees, so as by law to be free from the lien 
 for the debts of the decedent, and what part, and when and to whom 
 aliened ; and the summons to attend such hearing before the master 
 shall not be required to be served on any person except such as may 
 have entered an appearance on the notice of the application. Chancery 
 rule 157. 
 
 Proof Before Master. No order shall be made for the payment 
 of such moneys unless it appear that such executor or administrator 
 shall have administered, as nearly as practicable, all the moneys received 
 by him, and used due diligence to collect such as have not come to his 
 hands. Chancery rule 158. 
 
 Bond on Receipt of Surplus. No moneys shall be paid on such 
 application until the petitioner shall have filed in this court his bond 
 to the ordinary, in double the sum directed to be paid, with two suiB- 
 ' cient sureties, residents of this state, or such other surety as is permitted 
 by law, with condition similar to that prescribed by law for bonds 
 upon orders of the Orphans' Court for the sale of lands for the payment 
 of debts.' Chancery rule 159. 
 
 I. Scope of Section. The provision in this section of the Chan- 
 cery act is peremptory, and prohibits the issuing of an injunction to 
 restrain legal proceedings after verdict or judgment, at the instance 
 of' the defendant therein, unless the money be paid into court, or a 
 bond given according to the statutory requirements ; and neither the 
 Court of Chancery, nor the Cpurt of Errors and Appeals can dispense 
 even temporarily with such conditions or any part of them. Phillips v. 
 PuUen, 4S N. J. Eq., 157; Morris Canal Co. v. Bartlett, 3 N. J. Eq., 9. 
 The legislatiye intent by the expression "proceedings at law in any 
 personal action after a verdict or judgment" is held to be proceedings 
 at law in the suit by execution or otherwise and that it would also be 
 a reasonable construction to extend the prohibition to a suit at law in 
 this state upon the judgment; but not to a suit at law thereon in 
 another state. Cairo, &c., R. R. Co. v. Titus, 26 N. J. Eq., 94. Thus 
 this statute is not limited to proceedings in the same suit. Its meaning 
 is that a party who has obtained a judgment shall not be stayed or 
 hindered in any proceedings he may institute for the recovery of it, 
 unless the amount of the judgment be first deposited with the clerk 
 of the court. Kinney v. Ogden, 3 N. J. Eq., 168. A judgment entered 
 
•60 The Chancery Act Annotated. 
 
 65. Stay of Proceedings at Law in Mixed Actions After 
 Verdict or Judgment; Deposit or Security. No injunction 
 shall issue to stay proceedings at law in any mixed action 
 after verdict or judgment, on the application of a defendant 
 in the said proceedings at law, unless the applicant shall first 
 deposit with the clerk of the court such sum of money as the' 
 chancellor shall direct, or give such security, by bond, to the 
 party against whom the injunction is prayed, as the chan- 
 cellor shall direct. 
 
 66. Stay of Proceedings at Law After Verdict or Judg- 
 ment; Insufficiency of Security; Further Security. When 
 any injunction shall be granted upoti bond as aforesaid, and 
 the party against whom the same has been granted shall think 
 the said bond not sufficient security, such party may apply to 
 the chancellor to have the security made sufficient ; whereupon 
 the chancellor, if he shall deem it expedient to hear such appli- 
 cant, shall direct notice to. be given to the party giving such 
 bond to appear before him at such time and place as he shall 
 appoint ; and if, upon the hearing of the matter, it shall appear 
 that the said bond is not sufficient security, then the chancellor 
 shall have power to order further security; and if such fur- 
 by confession upon a bond and warrant of attorney is within the pro- 
 visions of this section. Marlatt v. Perrine, \^ N. J. Eq., 49. So the 
 provisions of this section apply as well to an interpleading bill where ' 
 an injunction is prayed as to other cases. Morris Canal Co. v. Bartlett, 
 3 N. J. Eq., 9. And a temporary injunction or staying order is within 
 the statutory prohibition. Phillips v. Pullen, 45 N. J. Eq., 157. Where 
 an injunction has been granted contrary to the provisions of this 
 section, defendant is entitled to summary relief and will not be put 
 to his motion to dissolve, or the court may order it to be set aside 
 with costs, unless complainant within a stated time, deposit the money, 
 or give the security required by the statute, in which event the in- 
 junction should stand. Morris Canal, &c., Co. v. Bartlett, 3 N. J. Eq., 
 9 ; Kinney v. Ogden, 3 N. J. Eq., 168 ; Merlatt v. Perrine, 17 N. J. Eq., 
 49; Phillips v. Pullen, 45 N. J. Eq., 157; Cairo, &c., R. R. Co. v. Titus, 
 26 N. J. Eq., 94. The Court of Chancery has no jurisdiction to interfere 
 with the judgment of a court of law, except where some well-defined 
 independent equitable ground exists for restraining the enforcement 
 thereof. Clark v. Board of Education, 76 N. J. Eq., 326. And the 
 fact that an unsuccessful litigant in a court of law has appealed there- 
 from, and is meanwhile unable to secure from any law court a restraint 
 against further proceedings under the judgment below, is not an 
 independent equity which gives the Court of Chancery jurisdiction to 
 interfere, although such proceedings under the judgment may result in 
 such a change in the status of the subject matter of the controversy 
 as may make nugatory a judgment of the court of review when pro- 
 nounced. Qark v. Board of Education, 76 N. J. Eq., 326. 
 
Discovery. 61 
 
 ther security shall not be given, according to the order made 
 for that purpose, then, for that cause, the chancellor shall have 
 the power to dissolve the injunction granted on such bond. 
 
 67. Stay of Proceedings at Law After Verdict or Judg- 
 ment; Insufficiency of Security; Reference to Determine. 
 
 The chancellor shall have the power to refer the whole matter 
 of the last preceding section to a master in chancery, who shall 
 hear the parties, after at least six days' notice to the party 
 giving the said bond, and make report to the chancellor with 
 all convenient speed. 
 
 68. Stay of Proceedings at Law Before Verdict ; Affida- 
 vit. No injunction shall be granted to stay proceedings in 
 any suit at law before a verdict or judgment, unless the chan- 
 cellor be satisfied of the complainant's equity, either by affi- 
 davit, certified at the foot or on the back of the bill, that the 
 allegations thereof are true, or by other means. 
 
 69. Disobedience to Injunction ; Contempt ; Punishment. 
 
 The chancellor may, on motion supported by proof, order an 
 attachment for contempt to be issued against any person 
 charged with disobedience to any injunction ; and if the person 
 so offending shall be brought before the chancellor, by virtue 
 of the said attachment, and if "upon a hearing such disobedi- 
 ence shall appear, the chancellor may, in his discretion, order 
 such offender to be committed and kept in close custody until 
 he shall give further order therein. (2) 
 
 XII. PROCEEDINGS WITH RESPECT TO UNSATIS- 
 FIED JUDGMENTS AT LAW. 
 
 70. Bill for Discovery; When Had. Hereafter, when- 
 ever an execution against the property of a defendant shall 
 have been issued on a judgment at law, and shall have been 
 returned unsatisfied in whole or in part, leaving an amount or 
 balance remaining due exceeding one hundred dollars, exclu- 
 sive of costs, the party suing out such execution may file a 
 bill in chancery to compel the discovery of any property or 
 
 2. See "Contempts," page 452, infra. See also section 82, page 
 71, infra. 
 
62 The Chancery Act Annotated. 
 
 thing in action belonging to the defendant in such judgment, 
 and of any property, money or thing in action, due to him or 
 held in trust for him,(i) except such property as is now re- 
 
 1. Construction of Statute. The jurisdiction of the Court of 
 Chancery to collect the choses in action of a judgment debtor and 
 apply them to the payment of his debts was never assumed in this 
 state until conferred by this section, which was originally enacted in 
 1845. See P. L. 1845, page 141; Whitney v. Robbins, 17 N. J. Eq., 360; 
 Wisner v. Osborne, 64 N. J. Eq., 614-620; Mallory v. Kirkpatrick, 54 
 N. J. Eq., so; Allen v. Demarest, 41 N. J. Eq., 162-166; Hardenburg v. 
 Blair, 30 N. J. Eq., 645. At common law a judgment or execution 
 gave no lien upon the choses in action of the debtor, or the debts due 
 to him; but under the provisions of this section, a creditor upon the 
 return of an execution nulla bona has a lien upon the choses in action 
 of his debtor, and can maintain a suit to set aside a fraudulent 
 assignment. Green v. Tantum, 19 N. J. Eq., 105 ; affirmed, 19 N. J. 
 Eq., 574; S. C. 21 N. J. Eq., 364. This section does not attempt to 
 change or define the general jurisdiction of the Court of Chancery; 
 that is left unaltered and in its original vigor. All that the statute 
 does is to make an old remedy more efficacious, and declare who shall 
 be entitled to its benefit. Allen v. Demarest, 41 N. J. Eq., 162-166. 
 And this section makes no change as to the rights of creditors against 
 the fraudulent conveyance of property that may be reached by execu- 
 tion; this class of cases stand as they did before the statute. Lore v. 
 Getsinger, 7 N. J. Eq., 191. Reversed, ib 639- The statute should be 
 liberally construed so as to apply to such property as is enumerated 
 in it without regard to the means by which it came to the debtor, 
 whether by gift, grant, or devise, unless it be such property as is ex- 
 pressly excepted. Property reserved by law to the judgment debtor 
 and property and things in action held in trust for him, when such 
 trust has been created by or the funds so held in trust have proceeded 
 from some other person than the debtor himself, are expressly ex- 
 cepted. Hardenburg v. Blair, 30 N. J. Eq., 645. 
 
 Who May File Bill. Any judgment creditor who has delivered 
 his writ of execution to the sheriff may maintain a bill in chancery 
 under this section to set aside a fraudulent sale of personal property 
 made by the defendant. Hall v. Nash, 58 N. J. Eq., 554. So a creditor 
 by judgment in the Circuit Court of the United States, or an assignee 
 of such creditor, can exhibit a bill under this section. Vanderveer v. 
 Stryker, 8 N. J. Eq., 175. And several judgment creditors of a com- 
 mon debtor may join in a bill to set aside a fraudulent transfer made 
 by him. Morehouse v. Kissam, 58 N. J. Eq., 364; aMrmed, 60 N. J. 
 Eq., 443. Where a bill by a judgment creditor to set aside a convey- 
 ance by a debtor as fraudulent shows that the judgment was ob- 
 tained in the District Court, on a debt and for an amount within its 
 jurisdiction, it must be presumed that the judgment was properly 
 obtained, and a demurrer to the bill on the ground that it was not 
 properly obtained must be overruled. McDevitt v. Connell, 71 N. J. \ 
 Eq., iig. 
 
 Parties. All persons through whom the title to the property 
 charged to be held in trust passed, and who therefore knew the truth 
 of the facts to be inquired into, are proper parties. A bill making 
 such persons parties is not liable to the objection of multifariousness 
 on the ground that other facts may be inquired into with which they 
 
Discovery. 63 
 
 served by law, (2) and to prevent the transfer of any such 
 property, money or thing in action, or the payment or delivery 
 thereof to the defendant, except when such trust had been 
 created by, or the fund so held in trust has proceeded from 
 some person other than the defendant himself. (3) 
 
 have no concern, and that the receiver may receive other property 
 than that in which they are interested. Whitney v. Robbins, 17 N. J. 
 Eq., 360; New Jersey Lumber Co. v. Ryan, 57 N. J. Eq., 331. 
 
 Defendants. This act, as a whole, applies only to natural per- 
 sons, who may be called upon to be examined under oath as defend- 
 ants, and has no application to a corporation. Gallagher v. Asphalt 
 Company of America, 65 N. J. Eq., 258-268. So corporations cannot 
 be proceeded against under this and subsequent sections of this 
 chapter. Mallory v. Kirkpatrick, 54 N. J. Eq., 50. 
 
 Intervention of Creditors. In creditor's bills based upon this 
 section, a creditor is not obliged directly or indirectly to sue for the 
 benefit of all the creditors, although he may do so ; and, however he 
 frames his bill he obtains a preference and priority of lien by filing 
 his bill and getting his order. Mallory v. Kirkpatrick, 54 N. J. Eq., 50; 
 Whitney v. Robbins, 17 N. J. Eq., 360; Dey v. Allen, 'J^ N. J. Eq., 522. 
 
 2. Property Reserved by Law. Goods and chattels, shares of 
 stock or interest in any corporation, and personal property of every 
 kind not exceeding in value (exclusive of wearing apparel) the sum 
 of two hundred dollars, and all wearing apparel the property of any 
 debtor having a family residing in this state shall be reserved, as well 
 after as before the death of the debtor for tht use of his family. 2 
 Comp. Stat., 224s, sec. 10. 
 
 Persons Entitled — Head of Family. In order to constitute a 
 debtor having a family within the meaning of the statute, the debtor 
 must be the head of the family; there must be either a legal or moral 
 duty to support the family or at least an actual dependence upon him 
 for support. Briggs v. Bell, 8 N. J. L. J., 251. Thus, a mother living 
 with her married daughter (although she is a minor) and the 
 daughter's husband, is not the head of a family especially when the 
 mother has no more means than the son-in-law. Briggs v. Bell, 8 Ni 
 J. L. J., 251. But it is sufficient if the family of the debtor reside, 
 within the state wherever he himself may reside. Bonnell v. Dunn, 
 
 28 N. J. L., 153; reversed 29 N. J. L., 435; and the fact that the 
 debtor is absent from the state and that the family is at the railroad 
 
 .station with the goods and is actually removing will not defeat the 
 right to such exemption. Bonnell v. Dunn, 28 N. J. L., 153 ; reversed, 
 
 29 N. J. L., 43S. ^ 
 
 Wearing Apparel. A lace shawl is wearing apparel, and exempt 
 from execution. Whether it is of greater value than the owner 
 ought to wear in her condition in life as to property cannot be in- 
 quired into where it was bought for her use before judgment or claim 
 against her. Frazier v. Barnumj 19 N. J. Eq., 316. Rings and jewelry 
 are not wearing apparel, and are liable for debt. Frazier v. Barnum, 
 19 N. J. Eq., 316. 
 
 3. Property Which Creditor May Reach. See notes to section 
 73, page 64, irCfra. 
 
64 The Chancery Act Annotated. 
 
 71. Power to Compel Discovery. The court shall have 
 power to compel such discovery, and to prevent such transfer, 
 payment or delivery, and to decree satisfaction of the sum 
 remaining due on such judgment out of any personal property, 
 money or thing in action belonging to the defendant, or held in 
 trust for him, with the exception above stated, which shall be 
 discovered by the proceedings in chancery; provided, if the 
 personal property, money or thing in action, which shall be 
 discovered as aforesaid does not amount to the sum of one 
 hundred dollars, no costs shall be recovered by the plaintifiE 
 against the defendant in such proceeding. 
 
 72. Examination of Debtor. When a bill is filed for the 
 purpose aforesaid, and shall be duly verified by the oath of 
 
 . the complainant therein, or his solicitor or agent, that he be- 
 lieves the contents thereof are true, it shall be lawful for the 
 chancellor, in term time or vacation, forthwith to make an 
 order requiring the judgment debtor to appear, and make dis- 
 
 . covery on oath concerning his property and things in action, 
 before a master of said court, to be designated in such order 
 at a time and place in said order to be specified. (4) 
 
 73. Order to Prevent Transfer of Property. If it shall 
 
 appear by said bill, or by one supplemental thereto, and by proof 
 by the oath of the complainant, or that of any other person, that 
 any person owes the said judgment debtor, or holds money or 
 property in possession or action, in trust for him or for his 
 use, except such property as is now reserved by law, or "when 
 such trust has been created by, or the fund so held in trust has 
 proceeded from some person other than the debtor himself, 
 ^nd the income from such trust does not exceed the sum of 
 'four thousand dollars, it shall be lawful for the chancellor to 
 make an order forbidding the payment of such debt, or the 
 transfer of said property or money by or to the said debtor, - 
 until further order to be by him made. (5) 
 
 4. Construction of Section. An interlocutory order for dis- 
 covery which does not specify the place for defendant's appearance 
 is void. Barr v. Voorhess, 55 N. J. Eq., 561. Quaere whether an order 
 simply requiring a defendant's appearance for discovery is appealable. 
 Barr v. Voorhees, SS N. J. Eq., 561. 
 
 5. Property, &c., Which Judgment Creditor May Recover. The 
 
 jurisdiction of the Court of Chancery under this section does not ex- 
 tend to property held in trust for the debtor or for his use, "where 
 
Discovery. 65 
 
 74. Examination of Witnesses, Taking of Depositions 
 and Appointment of Receiver Pendente Lite. Witnesses 
 may be required to appear and testify concerning said mat- 
 ters, by either party, by subpoena ad testificandum, issued tout 
 of the court of chancery, and the master may adjourn the ex- 
 amination from time to time, at the instance of either party; 
 
 such trust has been created by or the fund held in trust has pro- 
 ceeded from some person other than the debtor himself." Harden- 
 burg V. Blair, 30 N. J. Eq., 645 ; Lippincott v. Evens, 35 N. J. Eq., 553 ; 
 Frazier v. Barnum, 19 N. J. Eq., 316; Harris v. Hibbard, 71 Atl. 737. 
 So where a husband conveyed lands in trust for the benefit of his wife 
 and children, creditors of the wife cannot subject such lands to the 
 payment of her debts. Stout v. Apgar, 69 N. J. Eq., 337. So where 
 testator's will provided that a share of, his estate should be held in 
 trust for his daughter, a married woman, to "her sole and separate 
 use" during her life, so that she might enjoy the net income free from 
 the control of her husband, that she should have power to dispose 
 of the principal fund by will, and that in default of such will it 
 should go to her heirs, it was held that neither the principal nor the 
 income of the fund could be subjected to the claim of her attorneys 
 for services in advising her in relation to the management of the fund, 
 the will creating a mere spendthrift trust. Castree v. Shotwell, 68 Atl., 
 774. So where a testator gave his executors power to sell any or all 
 of his lands, and to pay over the rents from the time of his death 
 until the time of such sale, after deducting the charges thereon, to 
 the persons designated by him, and the executors had in hand a con- 
 siderable sura belonging to P., one of such persons, it was held that 
 this constituted a trust within the exception of this section, and that 
 consequently the fund could not be reached to satisfy a judgment 
 creditor of P. Force v. Brown, 32 N. J. Eq., 118. And so where a 
 fund is given tO' executors, with directions J;o invest it and to pay to 
 a legetee during his life the interest and income thereof at such times, 
 in such manner and in such amounts as the executors should deem 
 prudent, neither the principal fund nor the accumulations of interest, 
 which the executors have kept back from the legatee for life because 
 they have not deemed it prudent to pay it over to him, can be reached 
 in the Court of Chancery by a judgment creditor of the legatee for 
 life and applied in payment of the judgment under the statute. Har- 
 denburg v. Blair, 30 N. J. Eq., 645. So where the sum of $6,000.00 
 was bequeathed to executors in trust to invest it and pay over the 
 income therefrom to the daughter of the testator, with the provision 
 that in case the daughter should, at any time, wish a part or the whole 
 of said sum, it should be paid to her, and the husband of the daughter, 
 who owned a farm, became bankrupt, and the farm was sold by the 
 assignee, and at the request of the daughteer, the said executors pur- 
 chased the farm from the person who had bought it from the assignee, 
 the deed to the executors containing a trust clause to the effect that 
 the daughter should be permitted to occupy the farm and receive 
 the income arising therefrom, and that the trustees should sell to 
 such person as she should appoint, upon a bill filed by a judgment 
 creditor of the daughter, it was held that the farm was held under a 
 trust created by the testator, and pot by the debtor, and could not be 
 reached. Lippincott v. Evens, 35 N. J. Eq., SS3- So where the father 
 of a lunatic bequeathed a moiety of the residue of his estate to her 
 
66 The Chancery Act Annotated. 
 
 the said examination of said debtor and witnesses shall be 
 certified by the master to the court of chancery, and thereupon 
 it shall be lawful for the chancellor to appoint a receiver, 
 pendente lite, of the property and things in action belonging 
 or due to or held in trust for said debtor, who thereby shall 
 receive authority to possess, receive and in his own name, as 
 
 as follows : "As my daughter Catherine is not capable of taking charge 
 of her share of my estate hereinbefore bequeathed to her, I give and 
 bequeath whatever sum may be found to be her equal share of my 
 estate as set forth in the preceding item to my executors in trust for 
 the use and comfortable maintenance and support of my said daughter 
 Catherine," it was held that Catherine's creditors, who had recovered 
 a judgment at law against her for expenditures for her support before 
 her father's death, could not subject thereto her share in the execu- 
 tors' hands. Hunterdon Freeholders v. Henry, 41 N. J. Eq., 388. The 
 unearned half pay of a retired officer of the army is exempt from 
 attack under the provisions of this section. Schwenk v. Wyckoff, 46 
 N. J. Eq., 560. On the other hand, a legacy in the hands of an 
 executor upon no other trust than to pay it over to the legatee is not 
 held in trust within the meaning of the exception in the statute, and 
 such legacy may be reached by a judgment creditor of the legatee by 
 proceedings under the statute. Hardenburg v. Blair, 30 N. J. Eq., 645. 
 So a dower right is a "thing in action" within the contemplation of 
 this section applicable to the debts of the doweress.even before actual 
 assignment or admeasurement of dower. Tenbrook v. Jessup, 60 N. 
 J. Eq., 234; Schuhardt v. Wittcke, 76 N. J. Eq., 119. So also is a 
 certain sum of money deposited in a Trust Company in a special 
 account credited, "A. Conrad, trustee for Katie Wiltske" (the defend- 
 ant), the same being the proceeds of a check which she received from 
 a fraternal order of which her husband was a member at the time 
 of his death. Schuhardt v. Wittcke, 76 N'. J. Eq., 119. And although 
 a purchaser of property, transferred by the debtor to defraud his 
 creditors, pay full consideration, and have no notice that the property 
 is transferred to him for that purpose, yet if the circumstances are 
 such that he must have inferred that such was the object, the sale 
 will be set aside as against a creditor. Green v. Tantum, ig N. J. Eq., 
 105 ; affirmed, 19 N. J. Eq., 574, S. C. 21 N. J. Eq., 364 ; Sayre v. Coyne, 
 33 Atl., 300; Jefifray v. Tow.ar, 63 N. J. Eq., 530-542; Harrison v. 
 Fleischman, 70 N. J. Eq., 301. Payments made .by a debtor as premi- 
 ums upon a policy of life insurance upon his life for the benefit of a 
 wife and child are essentially given to the beneficiary, and conclu- 
 sively fraudulent and void as against creditors existing at the time 
 of such payments. Merchants & Miners Transportation Co. v. Bor- 
 land, S3 N. J. Eq., 282. And so the proceeds of a fraternal insurance 
 policy upon a husband's life, payable to his widow, which was sub- 
 stantially the same as an ordinary life policy, are applicable under this 
 section to the payment of the claim of a judgment creditor of the 
 widow. New Jersey Lumber Co. v. Ryan, 57 N. J. Eq., 330. And when 
 the government of the United States restored to P., a former purser 
 of the navy, his private moneys, which his successor in office, without 
 the authority of the United States, borrowed from P. for the use 
 of the government, but which, in fact, the successor did not apply to 
 that use, such moneys were not exempt from the creditors of P. 
 Forrest v. Price, 52 N. J. Eq., 16; afHrmed, 55 N. J. Eq., 693. S. C, 54 
 
Discovery. 67 
 
 such receiver, sue for such property or things in action; and 
 the. chancellor may order said judgment debtor to convey 
 and deHver to such receiver all such property and rights in 
 action and the evidence thereof; and the receiver shall in all 
 respects be subject to the authority of the chancellor, in ac- 
 cordance with the practice of the court, and shall and may 
 dispose of the property and things in action in conformity 
 with the final decree. (6) 
 
 N. J. Eq., 669. So an assignment of an annuity, though due from 
 parties and property out of the jurisdiction of the Court of Chancery, 
 made by the person to whom it belongs to a receiver here under the 
 direction of the Court of Chancery, is good, and would enable the 
 receiver to collect it in a foreign state. Frazief v. Barnum, 19 N. J. 
 'Eq., 316; Hardenburgh v. Blair, 30 N. J. Eq., 645-656. Where the 
 creditor of an insolvent acquired an equitable lien upon his assets by 
 filing a creditor's bill under this section before bankruptcy proceed- 
 ings were begun by the debtor, the trustee in bankruptcy took the 
 property subject to such lien. Taylor v. Taylor, 59 N. J. Eq., 86; 
 Case V. McGill, 69 N. J. Eq., 354. 
 
 Order of Prohibition. An order of prohibition under this section 
 cannot be general, but must be directed to a specific debt of trust 
 pointed out in the bill, and proved by oath to exist. Barr v. Voorhees, 
 55 N.xJ. Eq., 561. An order of prohibition made under the authority 
 of this section is appealable. Barr v. Voorhees, 55 N. J. Eq., 561. 
 
 6. When Receiver Will be Appointed. The principal grounds 
 upon which courts of equity grant their extraordinary aid by the ap- 
 pointment of receivers pendente lite, are that the person seeking the 
 relief has shown at least a probable interest in the property, and that 
 there is danger of its being lost unless a receiver is appointed, the 
 element of danger being an important consideration of the case. A 
 remote or past danger will not suffice as a ground for the relief; 
 there must be a well founded apprehension of immediate injury. The 
 power of appointment is usually invoked either for the prevention of 
 fraud, to save the subject of litigation from material injury, or to rescue 
 it from threatened destruction ; and to warrant the interposition of the 
 Court of Chancery by the aid of a receiver, it is essential that the com- 
 plainant should show first either that he has a clear legal right in himself 
 to the property in controversy, or that he has some lien upon it, or that 
 it constitutes a special fund out of which he is entitled to the satis- 
 faction of his demand, and, secondly, it must appear that possession 
 of the property was obtained by the defendant through fraud, or that 
 the property itself, or the income from it, is in danger of logs from 
 the neglect, waste, misconduct or insolvency of the defendant. Flagler 
 v. Blunt, 32 N. J. Eq., 518-523; N. J. Lumber Company v. Ryan, 57 N. 
 J. Eq., 330; Buchanan v. Buchanan, 73 N. J. Eq., 544; Whitney v. 
 Robbins, 17 N. J. Eq., 360. An analysis of the cases shows that the 
 equitable jurisdiction exercised by the Court of Chancery in ap- 
 pointing a receiver pendente lite has been assumed only where there 
 is danger of loss if the property presumptively or actually belonging 
 to the defendant is not protected by an injunction or the appointment 
 of a receiver pending the determination of the controversy. Buchanan 
 V. Buchanan, 71 Atl., 745-748; S. C. 73, N. J. Eq., 544; Attorney 
 General v. Clavin, 72 N. J. Eq., 642; Sobernheimer v. Wheeler, 45 N. 
 
68 The Chancery Act Annotated. 
 
 75. Use of Depositions Taken ; Procedure. Either party, 
 on the final hearing of said cause, may use his own deposition 
 and that of the opposite party, or either of them, and the depo- 
 sition or depositions of any other witness or witnesses so 
 taken as aforesaid ; provided, said party so intending to use 
 the same shall file with the clerk of said court, within twenty 
 days after the filing of said deposition in the clerk's office a 
 written notice of his said intention ; m'id provided further, the 
 said deposition so designated would have been legal evidence 
 in said suit if the same had been taken after issue joined, ac- 
 cording to the practice of said court. 
 
 XIII. GENERAL PROVISIONS. 
 
 76. Rules; Entry by Consent. All rules, common or 
 special, by consent of the parties or their solicitors, shall be 
 entered, of course, with the clerk, whether in term time or 
 in vacation. 
 
 77. Amendments; Terms. All amendments shall be 
 made with or without costs, and on such equitable terms 
 as the court shall direct. ( i ) 
 
 78. Notice to be Taken of Filing of Pleadings and Pro- 
 nouncement and Signing of Decrees. Parties to suits in 
 chancery shall take notice at their peril, of the filing of answers, 
 demurrers, pleas, replications and other pleadings, and of the 
 pronouncing and signing of decrees. ' 
 
 79. Reference of Matters of Law to Supreme Court; 
 Direction of Trial of Issues of Fact by Jury in Supreme' 
 Court. The court of chancery may send any matter of law 
 
 J. Eq., 614; N. J. Lumber Co. v. Ryan, 57 N. J. Eq., 330. So as it may 
 be out of the power of the sheriff to levy upon rings and jewelry, 
 or to take possession of them, they being usually worn on the person, 
 a receiver will be appointed and an order made for their delivery 
 to him. Frazier v. Barnum, 19 N. J. Eq., 316. On a motion for a 
 receiver, if a defendant sets up and relies in his affidavits, upon any 
 new matter riot directly responsive to the matter set up in complain- 
 ant's affidavits, the complainant may read affidavits in reply to such 
 new matter. Sobernheimer v. Wheeler, 45 N. J. Eq., 614. 
 
 I. For a general consideration of the subject of amendments 
 see "Amendment of Pleadings," page 317, infra. 
 
General Provisions. 69 
 
 to the supreme court for its opinion to be certified thereon ; if 
 any matter of fact shall render the intervention of a jury 
 necessary, then the court of chancery is hereby authorized to 
 direct an issue for the trial of the same in the supreme court. (2) 
 
 80. Fees of Masters in Chancery for Services in Advis- 
 ing with Chancellor. Whenever the chancellor shall deem 
 it necessary to call to his assistance one or more of the masters 
 in chancery to advise with, upon the hearing of a cause, or an 
 argument, or upon matters of importance, or when any mat- 
 ter shall be referred to any of said officers, pursuant to the 
 general rules of said court, or to any special order or decree 
 in any cause, matter or proceeding depending therein, the 
 fees for such services shall be proportionate, as nearly as may 
 be, to the actual value of such service, and shall be regulated 
 by the chancellor from time to time. 
 
 81. Moneys Brought Into Court; Deposit in Bank or 
 Investment; Duties of Clerk. It shall be lawful for the 
 chancellor to cause any moneys brought into court, to be 
 deposited by the clerk, in his name as clerk of said court, in 
 any of the banks or trust companies of this state to the credit 
 of the cause to which it belongs, or to be invested in any 
 public stock of the United States, and the money so deposi- 
 ted or public stock in which it shall be so invested shall be 
 from time to time accounted for, invested, transferred, or re- 
 invested, or otherwise disposed of, as the court shall deem 
 reasonable and proper; and on the resignation, death or re- 
 moval of the clerk of said court of chancery, all moneys so 
 deposited shall be carried to the account of his successor in 
 office, and the said banks or trust companies shall take notice 
 thereof and transfer such accounts accordingly ; and the chan- 
 cellor may, from time to time, make such rules and regula- 
 tions respecting such deposits and investments as to him shall 
 appear just and right, and for the interest of all persons and 
 parties concerned therein. (3) 
 
 2. Trial of Issue in Supreme Court. See "Submission of Issues to 
 Jury," page 369, infra. 
 
 3. Payment of Money into Court. Where money is voluntarily 
 paid into court by a party to a suit no order of leave or sanction need 
 be signed by the chancellor or rule to that effect be entered in the 
 minutes in a case where the payment itself and its purpose is mentioned 
 in a pleading of the party paying. Neldon v. Roof, SS N. J. Eq., 608. 
 
 Investment of Funds Paid into Court. All moneys paid into 
 the court shall be deposited forthwith in the "Trenton Banking Com- 
 
70 The Chancery Act Annotated. 
 
 81a. Moneys Brought into Court; Investment; How 
 Made; Disposition of Interest and Income. 
 
 (P. L., 1909, p. 84, sec. I. I Comp. Stat, p. 441, sec, 8ia.) 
 It shall be lawful for the chancellor to cause any moneys re- , 
 maining on deposit with the court to be invested in interest- 
 bearing bonds of such character and description as are or may 
 be lawful investments for moneys deposited with the savings 
 banks of this state; or in bonds secured by mortgages which 
 shall be a first lien upon improved real estate situate in this 
 state worth at least double the amount loaned thereon; and 
 for the purpose of making such investments, moneys remain- 
 ing to the credit of different persons or causes may be com- 
 mingled together; and the moneys so invested, and the securi- 
 ties in which the same be invested, shall be from time to time 
 accounted for, transferred, reinvested, or otherwise disposed 
 of, as the court shall deem reasonable and proper; and the 
 interest and income derived from such investments, after de- 
 ducting necessary expenses, shall be apportioned to the several 
 parties entitled thereto; and the chancellor may from time to 
 time make such rules and regulations respecting such deposits 
 and investments as to him shall appear just and right and for 
 the interest of all persons concerned therein. 
 
 pany,'' to the credit of the "Court of Chancery of the State of New 
 Jersey," unless otherwise specially ordered by the court ; and no moneys 
 on deposit under this rule, or under any special order of the court, 
 shall be drawn, except by a draft or check of the clerk, countersigned 
 by the chancellor, or a vice-chancellor; and whenever any money is 
 paid into court, it shall be the duty of the clerk, immediately upon the 
 receipt thereof, to give notice of the same to the chancellor. Chancery 
 rule 34. 
 
 Clerk to Make Annual Statement to Chancellor of Funds on 
 Deposit. The clerk of the court shall, on or before the first day 
 of January, annually, exhibit to the chancellor the book or books 
 containing a statement of the funds in his hands, where the same are 
 deposited, or how invested, and the times when the same were received, 
 and the suit or matter in which the same were paid in, and shall give 
 to the Chancellor at any time such statements thereof in writing as he 
 shall require, in order that the chancellor may give such directions 
 concerning the same as he may deem advisable. C3iancery rule 33. 
 
 Interest on Money Paid into Court. All sums exceeding two 
 hundred dollars which shall be deposited and remain in the court for 
 ten days, and all sums not exceeding two hundred dollars which shall 
 be deposited and remain in court for thirty days, shall bfe allowed 
 interest at the rate paid by the depository of the funds of the court at 
 the time, for the full period for which such funds shall remain in 
 court. Chancery rule 161. 
 
General Provisions. 71 
 
 81b. Moneys Brought into Court; Appointment of Per- 
 sons to Care for and Supervise Funds, Investments, etc. 
 
 (P. L. igog, p. 8s, sec. 2; i Comp. Stat., p. 441, sec. 8ib,) 
 The chancellor may from time to time employ some suitable 
 person, to be selected by him, to exercise general care and 
 supervision (subject to the orders of the chancellor) over the 
 funds, investments and securities from time to time remain- 
 ing in the court of chancery ; and may allow reasonable com- 
 pensation for such care and supervision, to be paid either out 
 of the general income of the funds remaining in the court, or 
 out of any fund for the benefit of which special services may 
 be rendered, as may be equitable and just. 
 
 82. Contempt; Punishment; Purging. To enforce 
 obedience to the process, rules and orders of the court of 
 chancery, where any j>erson shall be in contempt according to 
 the law, practice or course of the said court, he shall, for every 
 such contempt, and before he be released or discharged from 
 the same, pay to the clerk in chancery, for the use of this 
 state, a sum not exceeding fifty dollars, as a fine for the said 
 contempt; and the said person being in court, upon process of 
 contempt or otherwise, shall stand committed and remain in 
 close custody until the said process, rule or order shall be 
 obeyed and performed, and until the fine so imposed for such 
 contempt, with the costs, be fully paid. (4) 
 
 83. Accounting for Fines by Clerk in Chancery. The 
 
 clerk in chancery" shall account, on oath, and pay annually to 
 the treasurer of this state, the fines which he shall have re- 
 ceived by virtue of this act. 
 
 84. Costs; Discretion of Court; Enforcement of Pay- 
 ment. Except where it is otherwise directed by this act or 
 some other law, it shall be in the discretion of the court of 
 chancery to award costs or not; and the payment of costs, 
 when awarded, may be compelled by writ of fteri facia's or 
 capias ad satisfaciendum issuing out of the said court, or by 
 subpoena and attachment. (5) 
 
 85. Subpoena to Hear Judgment, Attachment with 
 Proclamations, and Commission of Rebellion Abolished. 
 
 4. Practice in Contenlpt Proceedings. See "Contempts," page 
 452, infra. 
 
 5. Costs. See "Costs,"' page 751, infra. 
 
72 The Chancery Act Annotated. 
 
 Subpoena to hear judgment, attachment with proclamations, 
 and commission of rebelhon, shall, in all cases in chancery, be 
 deemed unnecessary, and omitted accordingly. 
 
 86. Rules, Orders, Decrees or Reports Not to be Regis- 
 tered; Filing to Have Effect of Registry. It shall not be 
 necessary for the clerk in chancery to register any rule, order 
 or decree, or any master's report, that may be made in any 
 cause or proceeding depending or hereafter to be brought or 
 prosecuted in the said court of chancery ; nor shall any fees be 
 allowed or taxed for registering any such rule, order, decree 
 or report; the filing of any rule, order or decree signed by the 
 chancellor or advised by a vice-chancellor, shall have the same 
 effect as the registry of such rule, order or decree, and the 
 rule, order or decree filed shall be the full minute of the rule, 
 order or decree made by the court, and shall be taken and 
 considered as made in open court and registered. 
 
 87. Rules of Court; Powers and Duties of Chancellor. 
 
 It shall be the duty of the chancellor, from time tO time, to 
 make such rules and orders to regulate pleadings and practice 
 and the taking and production of evidence in the court of 
 chancery, as may, in his judgment, render the proceedings more 
 efficient and simple, and prevent unnecessary cost and delay, 
 and for that purpose he shall have full power to change and 
 regulate such proceedings. (5a) 
 
 88. Issue of Execution without Revival of Decree; 
 When. Execution may issue, without a revival of the de- 
 cree, at any time within twenty years from the date of such 
 decree ; provided, the parties to the decree, or those of them 
 during whose lives execution may now issue without a revival, 
 be then living; and provided further, if more than six years 
 have elapsed since the entering of the decree, a special order 
 of the court shall be necessary before the execution issue to 
 be made upon ten days' notice to the defendant of the applica- 
 tion therefor, and proof to the satisfaction of the court of the 
 amount remaining due upon the decree. 
 
 89. Master in Chancery to Perform Duties of Chancel- 
 lor; When. In case of the sickness of the chancellor or his 
 
 5a. Power of Court to Make Rules. The power of the court 
 to promulgate rules is discussed in a note to the case of Gansv. 
 Dabergott, 40 N. J. Eq., 1814. 
 
General- Provisions. 73 
 
 temporary absence from the state, he may, by order filed with 
 the clerk, authorize such master in chancery as may be therein 
 named for that purpose, to grant and dissolve injunctions, 
 and perform such other duties of the chancellor as may be 
 therein designated, not including the-final hearing and determi- 
 nation of causes ; and all orders and acts of such master 
 within the scope of such authority, shall have the same force 
 and effect as if made and done by the chancellor in person. (6) 
 
 90. Trustees to Receive and Care for Trust Property 
 Transferred from Other State; Bonds and Powers and 
 Duties of Trustees. In all cases where property is or shall 
 be held in trust in another state, and any of the cestuis que 
 trust for whose benefit said property is or shall be so held in 
 trust, reside in this state, and desire the transfer of such trust 
 property to this state, the chancellor may, upon petition pre- 
 sented to him for that purpose, and upon ten days' notice of 
 the time of presenting said petition having been given to all 
 persons having a beneficial interest in the estate so held in 
 trust, appoint a trustee for the purpose of receiving, holding 
 and managing all such trust property as may be transferred 
 from such other state in accordance with the laws thereof ; 
 and such trustee when so appointed, first having executed 
 a bond to the chancellor in such an amount, and with such 
 surety or sureties as the said chancellor shall approve, con- 
 ditioned for the faithful execution of the trust, shall have all 
 the powers and privileges and be subject to all the liabilities 
 incident to the original trust. 
 
 91. Counsel Fees and Costs; Allowance; Fees in Fore- 
 closure; Amount. 
 
 (As amended by P. L., igio, p. 427, i Comp. Stat. p. 445, Sec. 91). 
 
 In any cause, matter or proceeding in the court of chancery 
 the chancellor may make such allowances by way of counsel 
 fee to the party or parties obtaining the order or decree as 
 shall seem to him to be reasonable and proper, and shall 
 direct which of the parties shall pay such allowances ; or, 
 
 6. Construction of Act. A decree in Chancery made upon a 
 reading of the pleadings, the evidence of witnesses and the arguments 
 of the resoective counsel is made upon the final hearing and deter- 
 mination of the cause within the meaning of this section of the Chancery 
 act. and cannot be signed for the chancellor by a master in chancery 
 under the authority of this statute. Morton v. Beach, 56 N. J. E^., 
 791. 
 
74 The Chancery Act Annotated. 
 
 where such allowances are ordered to be paid out of property 
 or funds, shall specify and direct the property or funds liable 
 therefor. The chancellor may provide for the inclusion of 
 such allowances in the taxable costs, or may provide for their 
 collection in such other manner as is agreeable to the practice 
 of the court. Such allowances shall be in lieu of any allow- 
 ance for counsel fees now provided for by statute. In un- 
 contested foreclosure causes^ the allowance for counsel fees 
 shall not exceed five per centum of the amount decreed for 
 principal and interest, and shall be regulated by the chan- 
 cellor from time to time by a general rule ; but in contested 
 foreclosure causes, counsel fees may be allowed to any party 
 as herein provided for in other causes, matters or proceedings 
 in the court of chancery. (7) 
 
 7. Counsel Fees in Foreclosure Cases. The percentage, if any, 
 to be allowed in foreclosure cases, pursuant to this section, is hereby 
 prescribed by the chancellor as follows, viz : on all sums decreed to be 
 paid in such causes amounting to $5,000 or less, at the rate of one 
 per cent.; upon the excess over $S,ooo and up to $10,000, at the rate 
 of one-half of one per cent. ; upon the excess over $10,000 and up 
 to $25,000, at the rate of one-quarter of one per cent.; and upon the 
 excess over $25,000 at the rate of one-fifth of one per cent. ; pro- 
 vided, that in cases where the complainant prevails after bona fide 
 litigation a certificate to that effect may be made in the discretion of 
 the Chancellor or Vice-chancellor, in which case the complainant shall 
 be entitled to double the above mentioned percentages. Chancery 
 rule 224. Rule 224 of the Court of Chancery, promulgated in pur- 
 suance of the authority conferred by section 91 of the chancery act, 
 provides for the only allowance, by way of fee, for counsel for the 
 complainant, that can be made in a foreclosure suit, litigated or ex 
 parte. Whatever the complainant's counsel is entitled to beyond the 
 amount provided for in this rule he will have to collect from his 
 clients. Shreve v. Harvey, 74 N. J. Eq., 336. This section does not 
 control the charges which attorneys, solicitors and counsel may make 
 against their clients, but they may lawfully charge their clients reason- 
 able fees for services rendered without an express contract for a 
 specific sum. Strong & Sons v. Mundy, 52 N. J. Eq,, 833. 
 
 Application Where Cause is Heard by Chancellor. Applications 
 for allowances to counsel in cases not heard before a vice-chancellor, 
 must be made to the chancellor before final decree ; in uncontested 
 without notice, in contested cases upon notice to the defendants who 
 may be decreed to pay the costs. Chancery Rule 223. 
 
 Application When Cause is Heard by Vice-chancellor. In cases 
 heard before a vice-chancellor, in which a decree is advised for com- 
 plainant with costs, the application shall first be made to such vice- 
 chancellor, either upon the hearing, or upon notice to the defendant 
 who may be decreed to pay the costs; such vice-chancellor shall 
 report to the chancellor what, in his- opinion, is a reasonable fee to 
 be allowed, if any. If the complainant, or defendant who may be 
 decreed to pay costs, be dissatisfied with the sum reported by the vice- 
 
General Provisions. ■ 75 
 
 92. Fees for Searches in Partitirf^n and Foreclosure Pro- 
 ceedings; Taxation as Costs. 
 
 (As amended by P. L., 1908, p, 34, i Comp. Stat., p. 446, sec. 92.) 
 It shall be lawful in any action in the court of chancery 
 for the partition and sale of lands, or for the foreclosure of 
 any mortgage, for the clerk to tax as a part of the taxable costs 
 in favor of the complainant in said action any and all such 
 legal fees and charges as may have been necessarily paid or 
 incurred for or in behalf of said party in procuring searches 
 against or in relation to the title of the mortgaged premises 
 or lands sought to be partitioned or sold in said action, which 
 fees or charges shall be ascertained in such way as the chan- 
 cellor may direct, and in said taxed bill of costs there shall be 
 included all such legal fees and charges as may have been 
 necessarily incurred for searches for unpaid taxes or municipal 
 liens, and other searches required to enable the officer making 
 public sale of any property to insert in his notices and ad- 
 vertisements of sale required by law and in his conditions of 
 sale a description of the estate or interest to be sold and of 
 the defects in title and liens or encumbrances thereon, as 
 authorized by law. (8) 
 
 chancellor, he may, upon notice to the other party, apply to the chan- 
 cellor to fix a greater or less sum. If no application is made before 
 decree, no allowance will be made. Chancery rule 223. By the terms 
 of this section, the legislature intended to confer on the chancellor 
 discretionary powers to make certain allowances to be included in 
 the complainant's taxed costs; and it is the duty of the chancellor to 
 consider the application for the exercise of that power. In respect 
 to causes heard by vice-chancellors, the application for a counsel fee 
 under this section should be primarily made to the vice-chancellor, 
 who should report whether any allowance should be made, and what 
 would be a reasonable sum to allow; and the parties will be heard 
 by the chancellor, if desired, in respect to the allowance reported. 
 McMullin V. Doughty, 68 N. J. Eq., 776. 
 
 Construction of Former Act. Prior to the enactment of this 
 amendment the act provided that counsel fees might be allowed to 
 complainant, and in construing that act it was held that the statute in 
 terms applied only to complainant and that one who filed a claim with 
 a receiver of an insolvent corporation and sustained his claim before 
 the Court of Chancery on appeal was not a complainant and so not 
 entitled to the allowance of a counsel fee. Porch v. Agnew Co., 72 
 N. J. Eq., 319. 
 
 8. Search Fees. The clerk shall not tax fees for searches as 
 a part of the taxable costs in favor of the complainant in any parti- 
 tion or foreclosure suit, unless, prior to the taxation of such costs, 
 there be filed with the papers in the cause an abstract of the searches 
 made for the purposes of said action, which, in partition cases shall 
 set forth the date and manner of the commencement of the co-tenancy. 
 
76 The Chancery Act Annotated. 
 
 93. Application of Surplus from Proceeds of Sales of 
 Land to Payment of Judgments ; Procedure. Whenever on 
 any sale of lands, sold by virtue of any order or decree of the 
 court of chancery, there shall be a surplus which shall be 
 deposited in said court, and any person shall hold a judgment 
 in any of the courts of this state against the owner of said 
 lands or any other person who shall be entitled to such sur- 
 plus money, or any part thereof, the chancellor is hereby 
 authorized, empowered and directed, upon petition filed by or 
 in behalf of such judgment creditor, and upon proof made to 
 the satisfaction of the chancellor that the residence of the 
 person entitled to such surplus mone)rs is unknown, and can- 
 not be ascertained, to order and direct such surplus moneys 
 
 and, in foreclosure cases, shall set forth the date of the mortgage, 
 and which shall shortly indicate precisely what searches were made 
 and for what purpose made, together with an affidavit of the com- 
 plainant or his solicitor, which shall set forth an itemized statement 
 of the fees and charges for which taxation is asked, and which shall 
 include only such fees and charges as were actually and necessarily 
 paid or incurred for the purpose of the action. There shall also be 
 filed a certificate or report of the reference master that he has exam- 
 ined the abstract of search, and statement of fees and charges claimed, 
 and that in his opinion such search was necessary for the proper 
 purposes of the suit. Without the special order of the court, no search 
 fees shall be certified or taxed for searches respecting the state of the 
 title or encumbrances thereon prior to the commencement of the 
 co-tenancy in partition cases, nor prior to the date of the mortgage 
 in foreclosure cases. The abstracts of search shall remain permanently 
 upon the files. Chancery rule 113a. No search fee shall be included 
 in the taxed bill of costs for searches made to enable the person 
 making sale of the property to insert in the notices, advertisements or 
 conditions of sale a description of the estate or interest to be sold, or 
 defects in title or liens and encumbrances thereon, unless insertion of 
 such statement in the notices, advertisements or conditions of sale shall 
 have been authorized by special order of the court, made upon notice 
 to the parties concerned, if such notice be practicable, and upon such 
 terms as to costs as the court shall prescribe. Chancery rule 113b. 
 Under the provisions of these rules, the solicitor is entitled to the ex- 
 pense incurred in procuring searches showing the state of the title 
 since 'the date of the mortgage only. The fact that the act of 1906 
 provides that unless defects in the title and liens or encumbrances be 
 inserted in the notices and advertisements of sale and in the condi- 
 tions of sale, a purchaser may be relieved of his bid, does not alter 
 this rule. It has been held that that statute does not cast any duty 
 upon the complainant, or upon any of the parties in the suit, but does 
 extend to each of them a privilege; that before the enactment of this 
 statute a purchaser at the sale took only such title as the proceedings 
 showed, and that the effect of the statute is to prevent the bidder or 
 purchaser from being relieved if the defects in the title and the liens 
 and encumbrances thereon are brought to his notice before sale. Arm- 
 strong v. Fisher, 73 N. J, Eq., 228. 
 
Vice Chancellors. 77 
 
 to be applied upon said judgment, notwithstanding such credi- 
 tor was not made defendant in said cause ; in such case it shall 
 not be necessary for the judgment creditor to be admitted as 
 party defendant in said cause, but said petition shall be en- 
 titled in the cause out of which such surplus was realized ; and 
 such proof as is by this act required, may be by affidavit, or 
 otherwise, as the chancellor shall direct. 
 
 94. Officers Selling Lands to Make Reports of Sales; 
 Confirmation of Sales. Whenever the sheriff or other offi- 
 cer shall by virtue of any decree or order of the court, sell any 
 lands or any interest therein, he shall within five days there- 
 after, report such sale to the court making such decree or 
 order of sale, and the court shall, if it approve the sale, con- 
 firm the same as valid and effectual in law, and shall by rule 
 of court, allow in open court or at chambers, direct said sheriff 
 or other officer to execute good and sufficient conveyance in 
 law to the purchaser or purchasers for the lands or interest 
 therein so sold ; provided, no such sale shall be confirmed until 
 the court is satisfied by evidence that the lands or interest 
 therein have been sold at the highest and best price the same 
 would theft bring, and such evidence may be in the form otf 
 affidavits ; provided further, such sale and the confirmation 
 thereof, shall be subject to such rules and orders in respect 
 thereto as the court may at any time make. (9) 
 
 XIV. VICE-CHANCELLORS, THEIR DUTIES AND 
 
 POWERS. 
 
 • 95. Number ; Appointment ; Term of Office. 
 
 (As amended by P. L. 1913.) 
 
 There shall not be more than eight vice-chancellors, who 
 shall be counsellors-at-law of at least ten years' standing, and 
 shall be appointed by the chancellor and commissioned by the 
 governor, under the great seal of the state, and shall continue 
 in office for seven years from the date of commission. ( i ) 
 
 9. See "Foreclosure of Mortgages, page 615, infra. 
 
 I. Review of Decisions of Vice-chancellors. The introduction 
 of vice-chancellors into our system of chancery jurisprudence arose 
 from legislation based on the ancient right of the chancellor to call 
 upon the masters of his court for their advice as to his action in causes 
 
78 The Chancery Act Annotated. 
 
 96. Reference to Vice-chancellors. The chancellor may 
 refer to such vice-chancellors any cause or other matter which 
 at any time may be j>ending in the court of chancery, to hear 
 the same for the chancellor, and to report thereon to him and 
 advise what order or decree should be made therein ; and any 
 
 and proceedings pending before him. When that legislation was first 
 adopted, the Business of the court had outgrown the power of the 
 chancellor to dispose of it alone; and for the purpose of relieving the 
 court, the legislature gave . authority to the chancellor to appoint an 
 officer to be called a vice-chancellor to whom he might refer causes 
 for trial, and who might try the cause, thus referred, upon evidence 
 orally taken, and who was required to report to- the chancellor his 
 opinion, and advise what decree should be made therein ; and as the 
 business of the court still further increased, the legislature, from time 
 to time, authorized the appointment of additional vice-chancellors. By 
 this system, the Court of Chancery has practically been enabled to keep 
 pace with its business. The legislation on this subject has not at- 
 tempted to deprive, and it could not constitutionally deprive the 
 chancellor of his right to make the decrees of his court. Obviously, 
 however, the purpose of this legislation could not at the time it was 
 originally adopted, and certainly could not now be made effective and 
 useful in conducting the business of the court, if the chancellor, should 
 deem himiself compelled to review the opinion and advice of every 
 vice-chancellor in every case on the mere demand of a party thereto. 
 In all ordinary cases, it is essential to the conduct of the business of 
 the court that the chancellor should decline to revise the opinion of a 
 vice-chancellor or to refuse to follow his advice, and this was the 
 plain intent of the legislation. Parties may well, in such cases, be left 
 to obtain relief by review of the decree by appeal. There may be 
 exceptional cases in which it would be the duty of the chancellor to 
 review the conclusions reached by a vice-chancellor, to consider whether 
 or not his advice should be followed. There appear, however, to be 
 only two classes of such cases. One class would be composed of cases 
 in which the decree advised is based upon a principle, or the conclusion 
 reached is by a course of practice in direct opposition to the previous 
 decisions of the chancellor or of some vice-chancellor whose advice had 
 been acted upon by the chancellor; the obvious reason being that the 
 Court of Chancery must speak with one voice, and not discordantly. 
 Another class would be composed of certain cases in which application 
 for a re-hearing has been made. If it is made to appear to the 
 chancellor that a re-hearing has been practically denied by a vice- 
 chancellor, and that such denial deprives a party of the opportunity of 
 presenting the case on an issue made by the pleadings, and thereby 
 produces an injury which cannot be relieved by an appeal, it would 
 seem that the chancellor ought to intervene to the extent of protecting 
 the objecting party from the consequences. Gregory v. Gregory, ^ 
 N. J. Eq., 7. Another exception to the general rule is in the case of a 
 proceeding for contempt not committed in open court, which, being 
 punitive in character, and hence not the subject of appeal, and which 
 may affect property and liberty, ought not to depend upon the judg- 
 ment of a single judicial officer unless necessary, as for example, in the 
 punishment of a contempt of court committed in open court. In cases 
 of this character, the chancellor will review the conclusions of vice- 
 chancellors. Seastream v. N. J. Exhibition Co., 69 N. J. Eq., 15; 
 affirmed, 72 N. J. Eq., 377. The act of 1909 (see contempts, page 470, 
 
Vice Chancellors. 79 
 
 matter or cause in which the chancellor is interested may be 
 so referred; the chancellor may also, by general rule, provide 
 for the reference to a vice-chancellor of causes, matters and 
 proceedings pending or future. (2) 
 
 infra), however, provides that an appeal may be taken from every order 
 adjudging a person in contempt and whether or not the same be com- 
 mitted in the presence of the court. This enactment would seem to 
 be fatal to the reasoning of the court in this case. A vice-chancellor 
 cannot entertain jurisdiction over a case except when referred to him 
 by general or special order. When, however, a case was heard by a 
 vice-chancellor without objection, and the chancellor adopted his advice, 
 and signed a decree, it was held to be too- late to raise on appeal the 
 question as to the vice-chancellor's right to hear the case. Delaware, 
 &c., R, R. Co. V. Markley, 45 N. J. Eq., 139. 
 
 2. Notice of Application for Order of Reference. Any cause 
 or other matter may be referred to a vice-chancellor (or advisory 
 master), at the discretion of the chancellor. Application for such 
 reference, if not made by both parties, may be in presence of, or upon 
 five days' notice to the adverse party or his solicitor. Chancery rule 
 193- 
 
 Motion to Fix Day for Hearing. When a cause referred to a 
 vice-chancellor shall be at issue, either party may, upon five daysl notice 
 to the other party or parties, apply to the vice-chancellor to whom the 
 cause is referred' to fix a time and place for the hearing thereof, "and 
 upon such application, such vice-chancellor may designate such time 
 and place; and upon fifteen days' notice, in writing, of the time and 
 place so designated, given by either party to the other or others, the 
 cause m3y be heard. Chancery Rule 195. Where an order fixing the 
 time and place of hearing is made by consent of both counsel, in default 
 of the appearance of either party, fifteen days notice of the date of 
 such hearing must be given by one party to the other before the court 
 can hear the case, unless such notice is waived by the appearance 
 of the -parties on the day fixed for hearing. In re Rule of Court of 
 Chancery No. 195. 64 Atl., 982. 
 
 Vice-chancellor to Retain Cause Referred. When a cause shall 
 be referred to a vice-chancellor, all proceedings in it to the final decree 
 shall be had before him. Chancery Rule 194. And so after bill 
 filed and order of reference to a vice-chancellor, an application to 
 be permitted to be made a party complainant, must be made to the 
 vice-chancellor to whom the cause has been referred, and cannot be 
 heard by the advisory master in the clerk's office; Perrine v. Perrine, 
 63 N. J. Eq., 483 ; aMrmed 65 N. J. Eq., 419. 
 
 General References to Vice-chancellors. Applications in the 
 following cases may be made to any vice-chancellor, and such applica- 
 tions are hereby referred to such vice-chancellor to hear and advise 
 orders and decrees therein without special order of reference: 
 
 1. Applications for writs of habeas corpus to be issued out of the 
 Court of Chancery under its general equity jurisdiction, and hearings 
 on the petition, writ and return. 
 
 2. Applications for writs of ne exeat, interlocutory injunctions and 
 temporary restraining orders. 
 
 3. Applications in relation to insolvent corporations, including adju- 
 
80 The Chancery Act Annotated. 
 
 97. Reference to Vice-chancellors; Taking Evidence; 
 Reports. When any cause or matter shall be so referred to 
 a vice-chancellor, it shall be lawful for him to take and hear 
 the evidence of any or all witnesses in said cause or matter 
 orally, in the same manner as the evidence is now taken and 
 heard in the several courts of law in this state on trials before 
 a jury; and if a report of the evidence so taken before him 
 shall become necessary in the progress of said cause, for use 
 on appeal from the decree of the chancellor thereon or other- 
 wise, then such vice-chancellor shall settle and sign such re- 
 port. (3) 
 
 dications of insolvency, appointment of receivers, and all applications 
 for orders in the cause, to and including distribution among creditors. 
 
 4. Applications on summary proceedings under the statute for the 
 production, custody or examination of the books of corporations, and 
 the investigation of the election of directors of corporations. 
 
 5. Applications in any cause or proceedings for orders or decrees, 
 excepting decrees pro confesso and final decrees, and excepting orders 
 of reference to a vice-chancellor or to an advisory master, or to a 
 special master in divorce proceedings. Any rule, order or decree, or 
 other than a final decree, advised by a vice-chancellor upon such 
 application, when rnarked filed by him or by the clerk, shall be consid- 
 ered and taken as made by the court in open court, and the rule, 
 order or decree advised and signed by such vice-chancellor shall be 
 deemed and taken as the full minute of the rule, order or decree of 
 the court. Upon such filing of any such rule, order or decree for a writ 
 of habeas corpus or ne exeat, or injunction, the appropriate writ shall 
 issue. Provided, however, that when any application in any of the 
 above causes or matters, has been made to one of the vice-chancellors, 
 any other vice-chancellor may hear any subsequent application therein, 
 if the cause has not been referred by special order, but the vice-chan- 
 cellor to whom a subsequent application therein shall be made under 
 this rule may decline to entertain the same, if, in his judgment, such 
 application should be made to the vice-chancellor to whom any previous 
 application in such cause or matter has been made. Chancery rule 204a. 
 
 Practice Where Chancellor is a party or Interested in a Suit. 
 See rule 160, page 139, infra, note 12. 
 
 3. Trial Before Vice-chancellor. At the time for which notice 
 is givenor designated for hearing, both parties shall attend with their 
 witnesses and other evidence, and the cause shall proceed, as at a trial 
 at law before a jury, by the oral examinations of the witnesses on both 
 sides continuously, until all the evidence has been produced and closed ; 
 the party holding the affirmative first producing all his evidence, and, 
 after resting, he shall be permitted to produce evidence in rebuttal only; 
 but the vice-chancellor may in his discretion reserve to either party the 
 right to produce one or more witnesses, who shall be named, to be 
 examined orally or by deposition at a future day. But such right shall 
 not be granted, unless the vice-chancellor be satisfied that due diligence 
 has been used to procure the attendance or deposition of such witnesses 
 before the trial, nor unless it be fairly disclosed what is expected to 
 be proved by such witnesses and such evidence shall appear to be 
 material, and shall not be admitted by the other party or parties. If 
 
Vice Chancellors. 81 
 
 98. Reference to Vice-chancellors; Stenographic Re- 
 ports of Evidence; Expense of; How Divided. It shall be 
 lawful for each vice-chancellor to employ a competent steno- 
 graphic reporter to take down the evidence of such witnesses 
 as may be examined before him, for the use of the court and 
 the parties in the cause qr matter ; and to fix, allow and tax 
 the fees of such reporter for writing out such evidence, and 
 to apportion the same between the parties, and each party 
 
 at the time and place so designated for hearing, the complainant shall 
 not appear, and it shall be made to appear to the vice-chancellor to. 
 whom the cause has been referred, that the required notice of the 
 hearing has been given by either party to the other or others, the 
 vice-chancellor may, in his discretion, report the fact to the chahcellor, 
 and thereon advise that the bill should be dismissed. Chancery rule 196. 
 When a stenographer, appointed by the vice-chancellor, shall attend to 
 take down the testimony, the examination shall proceed as rapidly 
 as counsel can ask, and the witness answer the questions. The exam- 
 ining counsel shall not take notes, nor shall the examination be delayed 
 in order that any counsel or other person, except the reporter, may 
 take minutes of the testimony. But every effort shall be made by the 
 court and counsel to expedite the cause, so far as may be consistent 
 with a full and fair hearing thereof. Chancery rule ig6. 
 
 When a stenographer, appointed by the Vice Chancellor, shall at- 
 tend to take down the testimony, the examination shall proceed as 
 rapidly as counsel can ask, and the witness answer, the questions. 
 The examining counsel shall not take notes nor shall the examina- 
 tion be delayed in order that any counsel or other 'person, exceptj 
 the reporter, may take minutes of the testimony. But every effort 
 shall be made by the court and counsel to expedite the cause, so far 
 as may be consistent with a full and fair hearing thereof. Qiancery 
 rule 197. 
 
 Adjournment of Hearing. At the time designated for the hearing 
 of a cause, the hearing shall not be put off (except by consent) for 
 the absence of a- material witness, unless the vice-chancellor shall be 
 satisfied that a fair and earnest effort has been made in proper time 
 to procure the attendance of such witness, and if such attendance 
 could not be procured, to procure his deposition ; and the vice-chancellor 
 may, in his discretion, order the hearing to proceed, and direct that 
 any material witness named may be examined orally, or his deposition 
 procured at a future day fixed and named in such order; but the 
 matter to be proved by such witness shall be disclosed at the making 
 of such order, and no hearing shall be postponed for any cause, unless 
 a future time and place for hearing be fixed and designated, and such 
 terms as to costs as may be directed by the vice-chancellor be complied 
 with. The argument of a cause or matter may be had, at the dis- 
 cretion of the vice-chancellor, either immediately upon the closing 
 of the testimony, or at a future da.y to be fixed. Chancery rule 199. 
 
 Vice-chancellor to Rule on Admissibility of Evidence. The com- 
 petency of evidence shall be determined by the vice-chancellor, who, 
 upon the objection of either party, or upon his own motion, shall 
 exclude evidence that may be illegal or irrelevant. Chancery rule 19&. 
 
82 The Chancery Act Annotated. 
 
 shall forthwith pay the part so apportioned to him, which 
 shall be part of the taxable costs in the cause. 
 
 99. Division of State into Districts; Appointment of 
 Times and Places of Sittings of Vice-chancellors; General 
 Rules and Regulations. It shall be lawful for the chancellor, 
 from time to time, to divide the state into convenient districts, 
 and appoint times and places for the sitting of said vice-chan- 
 cellors for the hearing of causes and matters referred to them, 
 and to make all such general rules for the efifectual execution 
 and carrying out of this act as he shall deem necessary and 
 proper. 
 
 100. Vice-chancellors Not to Practice Law; Salary, 
 How Paid. 
 
 (As amended by P. L., 1905, p. 232. i Comp. Stat. p. 448, sec. 100.) 
 Said vice-chancellors shall not engage in the practice of law 
 as counsel or otherwise, in any of the courts of this state, and 
 shall receive an annual salary at the rate of ten thousand dol- 
 lars and no more ; said salaries shall be paid in equal monthly 
 payments by the treasurer of this state on the warrant of the 
 comptroller, and shall be in full of all services to be rendered 
 by said officers respectively, and said officers shall not be entitled 
 to any per diem or other allowance over and above said salaries. 
 
 101. Sergeants-at-arms ; Appointment; Duties; Com- 
 pensation. The chancellor and vice-chancellors shall have 
 power to appoint suitable persons to hold office during their 
 pleasure, as sergeant-at-arms of their respective court rooms, 
 whose duty it shall be to attend the courts or' hearings when 
 required, for which service they shall each receive three dol- 
 lars per day for each day they shall respectively be in at- 
 tendance upon the court, to be paid by the treasurer of the 
 state upon the certificate of the chancellor or vice-chancellor. 
 
 101a. Salary of Sergeants-at-arms. 
 
 (P. L., 1910, p. 78. I Comp. Stat. p. 448, sec. loia.) 
 The chancellor may by a certificate under his hand, filed with 
 the comptroller, fix and designate an annual salary or compen- 
 sation to be paid to each of the sergeants-at-arms connected 
 with the several chancery chambers of this state; provided, 
 however, that the same shall not exceed the sum of fifteen 
 
Vice Chancellors. 83 
 
 hundred dollars and shall be in lieu of the per diem or other 
 allowance now fixed by law. 
 
 101b. Method of Payment of Salary of Sergeants-at- 
 arms. 
 
 (P. L. 1910, p. 79. I Comp. Stat. p. 448, sec. loib.) 
 
 After the filing of such certificate or certificates the comp- 
 troller shall draw his warrant or warrants monthly, and the 
 treasurer shall pay the said sergeants-at-arms, monthly, the 
 salary or compensation fixed in said certificate. 
 
 102. Vice-chancellors May Punish for Contempt. The 
 
 vice-chancellors, when sitting as judges of the court of chan- 
 cery for the transaction of the business of said court, shall have 
 power to adjudicate upon and punish any and all contempts 
 committed by any person or persons in the presence of the 
 court so held by such vice-chancellor, in same manner as the 
 chancellor may now do, and the several sheriffs and keepers 
 of the common jails of the several counties of this state shall 
 respect and execute all orders and commitments made and 
 signed by any of the vice-chancellors in any matters of 'con- 
 tempt in all respects the same as if made and signed by the 
 chancellor, provided that any person adjudicated guilty of con- 
 tempt under this act shall have the right of immediate appeal 
 to the chancellor, which appeal shall operate as a stay of pro- 
 ceedings, and the chancellor shall provide by rule for the man- 
 ner and method of such appeals, and shall hear them on the 
 
 merits. (4) 1 
 
 • 
 
 103. Compensation of Stenographers. The stenograph- 
 er employed to report the proceedings in the vice-chancellors' 
 courts shall receive ten dollars a day for attending such courts, 
 which shall be paid monthly by the state treasurer on the cer- 
 tificate of the vice-chancellor; the vice-chancellor, with the 
 approval of the chancellor, may fix an annual salary for his 
 stenographer in lieu of such per diems, and in such case a 
 certificate stating the amount of the salary so fixed, signed by 
 the vice-chancellor and the chancellor, shall be filed with the 
 state treasurer, who shall thereafter pay such salary monthly; 
 this annual salary shall include payment for services to the 
 vice-chancellor in the preparation of his opinion or conclu- 
 
 4. See "Contempts," page 462, infra. 
 
84 The Chancery Act Annotated. 
 
 sions and other official work, when deemed necessary; and 
 for services in his official work other than attendance upon 
 and reporting proceedings in his court, a vice-chancellor may 
 employ other persons than the stenographer, paying for such 
 services a salary, either monthly or annual, to be fixed and 
 paid in like manner. 
 
 XV. ADVISORY MASTERS. 
 
 104. Reference to Master. The chancellor may refer to 
 any master in chancery, who shall be a counsellor-at-law of at 
 least five years' standing, any cause or other matter which, at 
 any time, may be pending in the court of chancery, to hear the 
 same for the chancellor, and to report thereon to him, and 
 advise what order or decree should be made therein.(i) 
 
 105. Reference to Master; Taking Evidence; Report. 
 
 When any cause or matter shall be so referred to a master, it 
 shall be lawful for him to take and hear the evidence of any 
 or all witnesses in said cause or matter orally in the same man- 
 ner as the evidence is now taken and heard in courts of law 
 in this state on trials before a jury; and if a report of the evi- 
 dence, so taken before him, shall become necessary in the 
 progress of said cause or matter, for use on appeal from the 
 decree of the chancellor therein or otherwise, then such master 
 shall settle and sign such report. (2) 
 
 1. Master to Hear Cause and Advise Decree. When a cause 
 or matter is referred to an advisory master, he shall proceed to hear 
 it with all reasonable dispatch, and shall advise the chancellor vtrhat 
 order or decree to make therein, and all the proceedings in the cause 
 or matter shall, from the time of the reference up to the final decree 
 or order, be before such master. Chancery rule 201, and see "Refer- 
 ences," page 354, infra. 
 
 2. Trial to Proceed as Before Vice-chancellor. The master shall 
 hear the cause or matter in the same manner as provided by the rules 
 of this court in the case of references to a vice-chancellor, and all the 
 provisions of such rules with respect to fixing the time for the hearing 
 of a cause (as far as applicable), the taking of testimony, as well de 
 bene esse as otherwise, the excluding of incompetent evidence, and the 
 hearing and conduct of the cause before a vice-chancellor, shall govern 
 the like matters in cases before the advisory masters ; and the rule in 
 
Advisory Masters. 85 
 
 106. Reference to Master; Employment of Stenograph- 
 er; Apportionment of Expense of. It shall be lawful for 
 such master, when any cause or matter is so referred to him, 
 to employ a competent stenographic reporter to take down the 
 evidence of such witnesses as may be examined before him, 
 for the use of the court and parties in such cause or matter, and 
 to fix, allow and tax the fees of such reporter, for writing out 
 such evidence, and to apportion the same between the parties, 
 and each party shall forthwith pay the part so apportioned to 
 him, which shall be part of the taxable costs in the cause. • 
 
 107. Appointment, Removal and Compensation of 
 
 Masters. It shall be lawful for the chancellor, by rule of 
 court, to fix and determine to what masters the references 
 provided for by this act shall be made, and to remove and 
 change the same at his pleasure, and to fix the compensation 
 to be paid to such masters for their services, which compensa- 
 tion shall be proportionate, as near as may be, to the actual 
 value of such services, and shall be paid them from the state 
 treasury on the certificate of the chancellor, and the chan- 
 cellor may make all such general rules for the effectual execu- 
 tion of this act as he shall deem necessary and proper. 
 
 108. Compensation of Stenographer. The stenographer 
 employed to report the proceedings in causes before any ad- 
 visory master, shall be paid for his services in attending before 
 said master and taking down the evidence, ten dollars per 
 diem, and the sum due such stenographer shall be paid by 
 the state treasurer monthly, on the certificate of the advisory 
 master, approved by the chancellor. 
 
 regard to the re-hearing of causes heard by a vice-chancellor shall 
 apply to causes heard by the advisory masters. Chancery rule 202. 
 
 Master Not to Write Opinion. The advisory masters are not to 
 write opinions, but will merely advise the order or decree by advisory 
 certificate at the foot thereof, and whenever it shall appear to be 
 necessary or proper to do so, they will report to the chancellor the 
 grounds of the order or decree by a mere concise statement of the facts 
 found, and the conclusion thereon. Chancery rule 203. 
 
 Master to Report Within Thirty Days. Adivsory masters and 
 all other masters to whom causes or matters shall be referred by the 
 chancellor to hear the same for him, etc., shall report thereon within 
 thirty days from the time of the hearing, unless further time be 
 granted by the chancellor. Chancery rule 204. 
 
86 The Chancery Act Annotated. 
 
 XVI. WHEN CHANCELLOR MAY EMPLOY 
 STENOGRAPHER. 
 
 109. Employment of Stenographer by Chancellor; Ap- 
 portionment of Expense of. Whenever the chancellor shall 
 take and hear the evidence of witnesses orally in any cause, 
 it shall be lawful for him to employ a competent stenographic 
 reporter to take down the evidence of such witnesses for the 
 use of the court and of the parties, and to fix, allow and tax 
 the fees of such reporter for writing out such evidence, and 
 to apportion the same between the parties, and each party 
 shall forthwith pay the part so apportioned, which shall be 
 part of the taxable costs in the cause. 
 
 110. Compensation of Stenographer. The stenographer 
 so employed shall be paid for his services in attending before 
 the chancellor and taking down the evidence, ten dollars per 
 diem, and the sum due such stenographer shall be paid by the 
 state treasurer, on the certificate of the chancellor. 
 
 XVII. APPEAL. 
 
 111. Person Entitled; Time for Taking. 
 
 (As amended by P. L., 1907, p. 452, i Comp. Stat. p. 450, sec. iii.) 
 All persons aggrieved by. any order or decree of the court 
 of chancery, may appeal from the same, or any part thereof, to 
 the court of errors and appeals ; and all appeals, except from 
 final decrees, shall be made within forty days after filing the 
 order or decree appealed from; and all appeals from final 
 decrees in the said court shall be made within one year after 
 making such decree; unless a notice of lis pendens has been 
 filed, or on bills to quiet title, in which cases, all appeals from 
 final decrees shall be made within three months after filing the 
 decree appealed from ; provided, in cases where the person en- 
 titled to such appeal from any final decree be an infant, or 
 insane, he shall have one year to bring such appeal, after such 
 disability shall be removed, except where a notice of lis pendens 
 has been filed or the bill is filed to quiet the title of the lands, in 
 
Appeal. 87 
 
 which case the appeal shall be taken within three months after 
 such disability is removed.(i) 
 
 112. Effect of Appeal on Injunction. No appeal taken 
 from an order or decree granting an injunction shall suspend 
 or .modify the operation of the injunction without an order of 
 the chancellor or of the court of errors and appeals for that 
 purpose, and such suspension or modification shall extend only 
 so far as may be necessary to preserve the subject of the ap- 
 peal, and shall not in any case be allowed to destroy the right 
 established or protected by the order or decree appealed 
 from. (2) 
 
 113. Appeal Not to Continue Injunction Dissolved. No 
 
 appeal taken from an order or decree dissolving an injunction 
 shall have the efifect to continue in force the injunction un- 
 less the chancellor or the court of errors and appeals for good 
 cause shall direct such continuance in whole or part and pre- 
 scribe the terrns thereof. (3) 
 
 113a. Appeals in Contempt Proceedings. 
 
 (P. L. 1909, p. 270, I Comp. Stat, p. 452, sec. 113a.) 
 Whenever any person or corporation shall be adjudged in 
 contempt by the court of chancery of the state of New Jersey, 
 for acts done or omitted elsewhere than in the presence of 
 the court, and such court shall, in consequence, impose upon 
 said person or corporation any fine or imprisonment or other 
 punishment, such person or corporation may appeal from 
 such adjudication to the court of errors and appeals, which 
 appeal shall be taken and prosecuted, in all respects, as other 
 appeals are taken and prosecuted from said court of chan- 
 cery. (4) 
 
 1. Construction of Statute. A petition to open a decree to quiet 
 title under the statute cannot be filed after the expiration of the 
 statutory period within which an appeal can be taken from such decree. 
 Sparks v. Fortescue, 75 N. J. Eq., 586. For general practice on appeal, 
 see "Appeals," page 763, infra. 
 
 2. See "Appeals,"' page 776, infra. 
 
 3. See "Appeals,'' page 776, infra. 
 
 4. See "Contempts," page 469, infra. 
 
Part II. 
 
 Pleading and Practice 
 
 in the 
 
 Court of Chancery 
 
 of New Jersey 
 
Parties. 91 
 
 CHAPTER I 
 PARTIES TO SUITS IN EQUITY. 
 
 Classification. Parties to suits in equity may be divided 
 into two classes: First, necessary, or indispensable, parties; 
 and second, proper or formal, but not necessary or indispens- 
 able, parties. 
 
 Necessary parties are those without whom the court will 
 refuse to permit the suit to proceed. Proper parties, or, as 
 they are sometimes called, formal parties, are persons having 
 no real interest in the question at issue, but who still have 
 some interest in the subject matter of the suit which may be 
 conveniently settled in such suit, thereby preventing further 
 litigation. ( i ) 
 
 NECESSARY PARTIES. 
 
 General Rule. It is the aim of equity to decide and settle 
 the rights of all persons interested in the subject matter of 
 a suit, not only for the purpose of making decrees that can 
 safely be executed by those who are compelled to obey them, 
 but also for the purpose of preventing further litigation. (2) 
 This principle combined with the familiar principle that equity 
 has no power to make a decree affecting persons not before 
 the court, and that such persons will not be bound by a decree 
 if made, (3) has given rise to the general rule regarding neces- 
 sary parties to suits in equity, which is almost universally 
 stated to be, that all persons interested in the subject matter 
 of a suit should be made parties. Thus Justice Story says: 
 "All persons materially interested, either legally or beneficially, 
 in the subject matter of a suit, are to be made parties to it, 
 either as plaintiffs or defendants, no matter how numerous 
 
 (i) See page 103, infra. 
 
 (2) McLaughlin v. Van Keuren, 21 N. J. Eq., 379-380. Cutler v. 
 Tuttle, 19 N. J. Eq., 549-556. Speakman v. Tatem, 45 N. J. Eq., 388-390. 
 
 (3) Armstrong v. Armstrong, 19 N. J. Eq., 357. Hamburgh Mfg. 
 Co. V. Edsall, 5 N. J. Eq., 249. S. C. ib. 658. In re Dey, 9 N. J. Eq., 181. 
 Haughwout V. Murphy, 22 N. J. Eq., 531. Hundit v. Tomson, 26 N. J. 
 Eq., 239. Van Derver v. Tallman, i N. J. Eq., 9. Kingsland v. Kings- 
 land, 60 N. J. Eq., 65. 
 
92 Parties. 
 
 they may be, so that there may be a complete decree which 
 will bind them all."(4) Lord Eldon says: "The strict rule 
 is that all persons materially interested in the subject of the 
 suit, however numerous, ought to be parties, that there may 
 be a complete decree between all parties having material inter- 
 est," (5) and Chancellor Walworth says: "It is a general rule 
 in equity that all persons materially interested in the subject 
 matter of the suit, either as complainants or defendants', ought 
 to be made parties, in order that a complete decree mfty be 
 made which will bind the rights of all, and prevent a useless 
 multiplication of suits." (6) 
 
 This rule, although everywhere thus stated, may be criticised 
 as indefinite in that' the expression "Subject matter of the 
 suit" may mean either the fund or estate respecting which the 
 question at issue has arisen, or else such question itself ; thus, 
 in a foreclosure suit, it may mean either, in the first sense, the 
 mortgage debt or mortgaged premises, or, in the second sense, 
 the question whether a foreclosure ought or ought not to take 
 place. Many cases may be cited which show that a mere inter- 
 est in the subje< t of the suit, used in its first sense, is not suffi- 
 cient to render a person a necessary party. Thus, encum- 
 brancers are not necessary parties to a bill to partition real 
 estate, because, while they have an interest in the subject 
 matter of the suit, i. e., the lands sought to be partitioned, 
 their rights are not affected by such suit. (7) And so, where 
 the object of a suit brought by a trustee is' simply to recover 
 the trust estate from the legal representative of a former de- 
 ceased trustee, the cestuis que trustent are not necessary par- 
 ties. (8) A more accurate statement of the rule would seem 
 to be, that all persons who are interested in the object of the 
 suit, or who may be affected by the relief prayed, are necessary 
 parties; and this statement of the rule has been generally 
 adopted by the courts of this state. (9) 
 
 (4) Story's Eq. PI., section 72. 
 
 (5) Cockburn v. Thomson, 16 Ves., 325. 
 
 (6) Hallett v. Hallett, 2 Paige 15-18. 
 
 (7) Low V. Holmes, 17 N. J. Eq., 148. Speer v. Speer, 14 N. J. Eq., 
 240. 
 
 (8) Stevens v. Bosch, 54 N. J. Eq., 59. See also Trustees and cestui 
 que trustent, page 114, infra. 
 
 (9) Van Keuren v. McLaughlin, 21 N. J. Eq., 163. Hare v. Headley, 
 52 N. J. Eq., 496. Commissioners v. Johnson, 36 N. J. Eq., 211. Wilson 
 V. American Palace Car Co., 55 Atl., 997. 
 
Necessary Parties. 93 
 
 The rule was stated by Vice-Chancellor Pitney, in a com- 
 paratively recent case, in the following language : "All per- 
 sons who are parties' to the interests involved in the issue, or 
 who must necessarily be affected by the decree, should be made 
 parties. "(lo) And so, where a conveyance of land has been 
 inade in fee, and a third person, claiming a Hfe estate in the 
 same land by virtue of an alleged parol agreement made with 
 the grantor before the execution of the deed, seeks to reform 
 the deed so as to protect his life estate, he must make the 
 grantor as well as the grantee parties to the suit.(ii) So in 
 specific performance cases, the presence in the suit of all per- 
 sons who have an interest in the lands or a right to a part of 
 the purchase money is necessary, irrespective of whether or 
 not they are parties to the contract. (12) So on a bill filed for 
 an account, and to execute the trust created by a deed, abso- 
 lute upon its face, but which in fact was executed in trust to 
 satisfy a debt of the grantor and then for the use and benefit 
 of his family, the widow and heirs of the grantor are neces- 
 sary parties. (13) 
 
 In regard to the nature of the interest requisite to make the 
 owner thereof a necessary party, owners of equitable interests 
 are necessary parties as well as persons owning a legal interest. 
 Thus, cestuis que trustent are necessary parties to a suit in- 
 volving their title to the trust estate. (14) So on a bill filed 
 for the specific performance of a contract for the sale of lands, 
 brought by the heirs-at-law of a deceased vendee, the widow 
 of such vendee, being entitled to dower in her husband's equit- 
 able estat^ in the lands, is a necessary party. (15) 
 
 In a bill filed to set aside a conveyance of lands as' fraudu- 
 lent, the complainant proceeds upon the theory that the equit- 
 able title to such lands is still in the debtor, who is a necessary 
 party, since the object of the suit is to declare such conveyance 
 void; (16) and in such case all persons participating in making 
 
 (10) Fletcher v. Newark Telephone Co., 55 N. J. Eq., 47. 
 
 (11) DeGroot v. Wright, 7 N. J. Eq., 516. S. C. 9 N. J. Eq., SS- 
 
 (12) Day V. Devitt, 81 Atl., 368. 
 
 (13) Pence v. Pence, 13 N. J. Eq., 257. Canon v. Ballard, 62 N. J. 
 Eq., 383. Rev.~63 N. J. Eq., 797- 
 
 (14) See "trustees and cestui que trustent," page 114, infra. 
 (is) Hill Y. Smith, 32 N. J. Eq., 473- 
 
 (16) Hunt V. Field, 9 N. J. Eq., 36. Richman v. Donnell, 53 N. J. 
 Eq., 32. Sewall v. Russell, 2 Paige, 175-176. 
 
94; Parties. 
 
 the ■ fraudulent conveyance are proper parties to the suit. (17) 
 So the grantee, since his title is drawn in question, is also a 
 necessary party; (18) and in such suit a mortgagee holding a 
 mortgage on such lands, given by the alleged fraudulent 
 grantee, is a necessary party. (19) And so where the fraudu- 
 lent grantor is dead, and complainant alleges that he left no 
 will, and that no administration upon his estate has been 
 granted, all the children of such deceased fraudulent grantor 
 are proper parties, since they have, as next of kin, an interest 
 in the personal estate of such decedent, which personal estate 
 is the primary fund for the payment of the debt; (20) and as 
 all judgment creditors of such debtor are interested in the 
 object of the suit, they are necessary parties ;(2i) but creditors 
 who have not obtained a lien upon the property, by judgment 
 or otherwise, are not necessary parties. (22) 
 
 Another application of the same principle is found in the 
 case of a bill filed to restrain a municipality from paying elec- 
 tion officers for their services rendered to the city at a munici- 
 pal election; such election officers are necessary parties. (23) 
 So on a bill filed to set aside a transfer of property alleged to 
 have been obtained by duress, persons in whose favor certain 
 charges on the lands thereby conveyed were made are neces- 
 sary parties. (24) 
 
 Owners of interests in expectancy in the subject of a suit 
 which are liable to be defeated or diminished by the complain- 
 ant's claim have an immediate interest ia resisting his demand. 
 
 (17) Miller v. Jamison, 24 N. J. Eq., 41. Rev. 27 N. J. Eq., 586. 
 Importers & Traders Natl. Bank v. Littell, 41 N. J. Eq., 29. 
 
 (18) Terhune v. Sibbald, 55 N. J. Eq., 236. 
 
 (19) Henry v. Brown, 8 *N. J. Eq., 245. Miller v. Jamison, 24 
 N. J. Eq., 41- Rev. 27 N. J. Eq., 586. 
 
 (20) Hunt V. VanDerveer, 43 N. J. Eq., 414. . 
 
 (21) Williams v. Michenor, 11 N. J. Eq., 521. Voorhees v. Reford, 
 14 N. J. Eq., 155- 
 
 (22) Way V. Bragaw, 16 N. J. Eq., 213. Annin v. Annin, 24 N. J. 
 Eq., 184. See also Paterson v. Stapler, 4 N. J. L. J., 203. Whitney 
 v. Kirtland, 27 N. J. Eq., 333. 
 
 (23) Bingham v. Camden, 29 N. J. Eq., 464. 
 
 (24) Probasco v. Probasco, 30 N. J. Eq., 63. See also Keeler v. 
 Keeler, 11 N. J. Eq., 458. Johnes v. Outwater, 55 N. J. Eq., 398-404- 
 
 .^tilwell V. McNeely, 2 N. J. Eq., 305. Traphagen v. Levy, 45 N. J. Eq., 
 448. Whitney v. Kirtland, 27 N. J. Eq., 333. Hill v. Smith, 32 N. J. 
 Eq., 473. Paterson v. Stapler, 4 N. J. L. J., 203. Holmes v. Chester, 
 26 N. J. Eq., 79- 
 
Necessary Parties. 95 
 
 and are necessary parties; So on a bill to set aside as fraudu- 
 lent a mortgage given to indemnify the mortgagee against his 
 liability as endorser on certain promissory notes', the holders 
 of the notes, being entitled to the benefit of any security given 
 to the endorser by the principal creditor, are necessary parties 
 to the suit. (25) But in a suit to set aside a conveyance made 
 by a trustee of lands held in trust for one for life, with re- 
 mainder to such of her children as she might appoint, it was 
 held that such children as the cestui que trust might have were 
 not necessary parties, as their interest was too remote and 
 contingent. (26) 
 
 In a suit brought to enforce a joint obligation or liability, 
 all the parties to such agreement or all the persons jointly so 
 liable must be parties to the suit. (27) So in suits by or against 
 a partnership, all the members of such partnership are neces- 
 sary parties. (28) So where an alleged way is over private 
 property owned by two in common, the court will not declare 
 the existence of such alleged way unless both the owners of 
 the property are before the court. (29) 
 
 A bill is not defective for want of proper parties when all 
 the persons' whose rights are to be aflfected by the decree are 
 joined, although persons having an interest in the subject mat- 
 ter of the suit, but who will not be aflfected by the decree 
 sought therein, are not joined. (30) So where the sole object 
 of the bill is to have the individual property of one partner, 
 alleged to have been fraudulently conveyed away by him, ap- 
 plied in satisfaction of a judgment against the firm, another 
 partner, against whom no relief is prayed, is neither a neces- 
 sary nor a proper party. (31) So if one of two joint debtors 
 is insolvent, is not a necessary party to a bill filed against the 
 solvent debtor to recover the debt. (32) If one of several 
 
 (25) Dunham v. Ramsey, 37 N. J. Eq., 388. See also Story's Eq. PI., 
 137. Daniel's Ch. Pr., 246. Waker v. Booraem, 68 N. J. Eq., 345. 
 
 (26) Booraem v. Wells, 19 N. J. Eq., 87. 
 
 (27) Freeman v. Scofield, 16 N. J. Eq., 28. Story's Eq. PL, pp. 
 165, 169. 
 
 (28) DeGreiff v. Wilson, 30 N. J. Eq., 435. 
 
 (29) South Branch R. R. v. Parker, 41 N. J. Eq., 489. 
 
 (30) Swedesborough Church v. Shivers, 16 N. J. Eq., 453. Fletcher 
 V. Newark Telephone Company, 55 N. J. Eq., 47. 
 
 (31) Randolph v. Daly, 16 N. J. Eq., 313. 
 
 (32) Hazen v. Durling, 2 N. J. Eq., 133. i Daniel's Ch. Pr., 270. 
 
96 Parties. 
 
 persons jointly liable upon an obligation be dead, his heirs at 
 law or personal representatives, as the case may require, must 
 be joined as parties. (33) So in a suit to foreclose a mortgage 
 given to a husband and wife jointly, brought by the holder of 
 the njortgage under assignment from the husband's executors, 
 in which assignment the widow did not join, the widow is' a 
 necessary party defendant. (34) 
 
 If the obligation or liability is joint and several, the above 
 rule relating to joint obligors does not apply, but suit may be 
 maintained to enforce such obligation against one or more of 
 the persons severally liable thereon. (35) So where several 
 persons' unite in a fraudulent act, it is not necessary that all 
 the fraud doers be joined as parties defendant to a suit founded 
 upon such act. (36) So a bill is not defective, where one of the 
 claims set out in the bill might be construed to be a joint and 
 several claim against the defendant and another, by reason of 
 the non-joinder of such other person. (37) 
 
 We have seen that all persons who will be affected by the 
 decree are necessary parties; it therefore follows that all per- 
 sons who may properly be required by a decree to perform 
 some act in relation to the subject matter of the suit are neces- 
 sary parties, even though they have no interest in the contro- 
 versy. So where the object of a suit is to recover possession 
 of certain documents, the person in whose possession such 
 documents are is a necessary party defendant, though he 
 claims no interest in them, and holds them merely as bailee ; 
 since if he be not made a party to the suit, no decree could be 
 made directing him to deliver the documents to their rightful 
 owner. (38) For the same reason, persons whose duty it is 
 to distribute a fund which is sought to be recovered are neces- 
 sary parties to such suit. Thus, where a bill is filed by heirs 
 at law of a decedent to recover lands whereof such decedent 
 
 (33) Miller v. Henderson, 10 N. J. Eq., 320. 
 
 (34) Trades Saving Bank v. Freese, 26 N. J. Eq., 453. Mutual Life 
 Ins. Co. V. Sturges, 32 N. J. Eq., 678. Rev. 33 N. J. Eq., 328. 
 
 (35) Story's Eq. PI., 166. Conolly v. Wells, 33 Fed., 205. Howth 
 V. Owens, 29 Fed., 722. DePuy v. Strong, 37 N. Y., 372. 
 
 (36) Stockton V. Anderson, 40 N. J. Exj., 486. Trenton Passenger 
 R. R. Co. V. Wilson, 53 N. J. Eq., 577. Arnold v. Searing, 73 N. J. Eq., 
 268. Barry v. Moeller, 68 N. J. Eq., 483. 
 
 (,37) Stockton V. Anderson, 40 N. J. Eq., 486. Trenton Passenger 
 R. R. Co. V. Wilson, 53 N. J. Eq., 577. 
 
 (38) Pattison v. Skillman, 43 N. J. Eq., 392. 
 
Necessary Parties. 97 
 
 died seized by an equitable title, and praying as alternative 
 relief that moneys expended by such decedent on such lands 
 be repaid, the personal representative of such decedent must be 
 a party, to receive such moneys if repayment thereof be de- 
 creed. (39) And so, where a creditor of one who has made an 
 assignment for the benefit of his creditors institutes proceed- 
 ings for the discovery of assets, the assignee, being charged 
 with the distribution of all of his assignor's estate, is a neces- 
 sary party. (40) ■ 
 
 The general rule, that all persons having an interest in the 
 object of the suit must be made parties, is not to be regarded 
 as an inflexible one, to be applied to every case irrespective of 
 surrounding circumstances, but rather as a 'rule of conveni- 
 ence, which will be controlled and regulated in the discretion 
 of the court. (41 ) Thus, where the parties in interest are very 
 numerous, and the enforcement of the rule would necessitate 
 unnecessary expense, as, for instance, where a mortgage is 
 made to trustees in trust for numerous and unknown persons, 
 such as holders of bonds issued by railroads, &c., whose names 
 and consent it would be practically impossible tO' obtain, the 
 rule will not be enforced ; but in such cases the trustee will 
 be permitted to maintain a bill to foreclose the mortgage with- 
 out making the cestuis que trustent parties. (42) So when a 
 person who ought to be made a party is out of the jurisdic- 
 tion of the court, that fact, being stated in the bill, or ad- 
 mitted by the defendant, or proved at the hearing, is in most 
 cases a sufficient reason for not bringing him before the court ; 
 and the court will proceed without him against the other par- 
 ties as far as circumstances will permit. (43) But the court 
 will not relieve the complainant from his duty to bring all 
 parties in interest before it simply because to do so may be 
 difficult or annoying. The inconvenience must be such that, 
 if the rule were enforced, the complainant would be subjected 
 
 (39) Young V. Young, 45 N. J. Eq., 27. See also "Executors and 
 Administrators," page 106, infra. 
 
 (40) Hanlon v. Burnett, 52 N. J. Eq., 70. 
 
 (41) Stillwell V. McNeely, 2 N. J. Eq., 305. Parker v. Stevens, 
 3 N. J. Eq., 56. Smith v. Gaines, 39 N. J. Eq., S4S-5SO- Ring v. New 
 Auditorium &c. Co., 77 N. J. Eq,, 442. 
 
 (42) See "Trustees and cestui que trustent," page 114, infra. 
 
 (43) Rusling V. Brodhead, SS N. J. Eq., 200. Story's Eq. PI., 81. 
 Daniel's Ch. Pr. (6th Ed.), 150, 152. Wilson v. American Palace 
 Car Co., 67 N. J. Eq., 262. 
 
98 Parties. 
 
 to a very great expense or to such additional inquiry and pro- 
 cedure that to burden him with it would amount to a denial 
 of the aid of the court in the recovery of his money. (44) 
 
 The general rule requires a person to be made a party 
 merely as the owner and protector of a certain interest. It is 
 the interest which the court is considering, and the owner 
 merely as the guardian of that interest; if, then, some other 
 person is a party who, with reference to that interest, is equally 
 certain to bring forward the entire merits of the question, the 
 object for which the presence of the actual owner would be 
 required is satisfied, and the court may, without putting any 
 right in jeopardy, proceed to make a complete decree; the 
 absent person appears by this representative, by whom his 
 interest is protected and his claims enforced. (45) 
 
 This principle is known as the doctrine of representation, 
 and constitutes- a well defined exception to the general rule. 
 Thus, in suits by or against executors or administrators not 
 involving the construction of the will, or the disposition of the 
 residue of the estate; creditors, legatees and distributees are 
 sufficiently represented by the executor or administrator, and 
 need not be made parties. (46) So where a fund is in the 
 hands' of a trustee for the life of the parent, who takes a life 
 interest, with remainder to her children upon her death, and in 
 a suit affecting such fund the trustee and parent are defend- 
 ants, an objection taken at the hearing for want of parties 
 because the children have not been joined as defendants will 
 not prevail, the interest of the children being fully protected by 
 their representatives. (47) So in the case of trustees, whei-e 
 the object of the suit is' not to administer a trust nor for the 
 construction of the terms of such trust, and where the rights 
 between trustee and cestuis que trustent are not involved, the 
 latter are sufficiently represented by the trustee, and are not 
 necessary parties. (48) And upon the same principle, an 
 officer making a judicial sale represents all the parties in in- 
 terest, and is the only necessary party complainant to a bill to 
 
 (44) Johnes v. Cutwater, 55 N. J. Eq., 398-406. 
 
 (45) Calvert on Parties, 20. Sweet v. Parker, 27 N. J. Eq., 279. 
 Rusling V. Brodhead, 55 N. J. Eq., 200. Swallow v. Swallow, 27 N. J. 
 Eq., 278. 
 
 (46) See "Executors and administrators,'' page 106, infra. 
 
 (47) Sweet V. Parker, 22 N. J. Eq., 453. 
 
 (48) See "Trustees and cestuis que trustent," page 114, infra. 
 
Necessary Parties. 99 
 
 enforce specific performance of an agreement to purchase, 
 made at such sale. (49) 
 
 Ordinarily all persons having th^ same interest should stand 
 on the same side in a suit ; those interested in obtaining a de- 
 cree being joined as complainants, and those interested in 
 resisting the relief sought by complainants being made de- 
 fendants. Persons having c'onflicting interests should not be 
 joined as parties on the same side of a suit. (50) If, however, 
 one who, by reason of his interest, should ordinarily be joined 
 as a co-complainant refuses to permit himself to be so joined, 
 (51) or if there is a conflict of interest between the persons 
 so interested, they may be joined as defendants ;(52) but in 
 such case the reason for such joinder should be suggested in 
 the bill. (53) So where a trustee occupies such a position that 
 he cannot attack the validity of a deed without accusing him- 
 self of wanton neglect of professional duty, his cestui que trust 
 has a right to seek relief in equity in his own name, making 
 his trustee a party defendant. (54) Mere association of par- 
 ites will not, however, prevent the consideration and determina- 
 tion of the opposing equities of parties standing on the same 
 side; the court will frame its decree to suit the equities of 
 the case as it may determine them, and may pronounce a de- 
 cree in favor of some of the complainants against the defend- 
 ants and another of the complainants, or vice versa. (55) 
 
 An objection that k person joined as a defendant should 
 have been joined as a complainant is a question of form 
 
 (49) Brown v. Ritter, 26 N. J. Eq., 456. 
 
 (so) Freeman v. Scofield, 16 N. J. Eq., 28. Kempton v. Bartine, S9 
 N .J. Eq., 149; affirmed, 60 N. J. Eq., 411. Jewell v. West Orange, 
 36 N. J Eq., 403. Johnson v. Vail, 14 N. J. Eq., 423. Knikel v. Spitz, 
 74 N. J. Eq., S8i. 
 
 (si) Evans v. Evans, 23 N. J. Eq., 71. LeGendre v. Goodridge, 
 46 N. J. Eq., 419 ; affirmed, 48 N. J. Eq., 308. Knikel v. Spitz, 74 N. J. 
 Eq., S8i. 
 
 (52) Freeman v. Scofield, 16 N. J. Eq., 28. Dare v. Allen, 2 N. J. 
 Eq., 288. 
 
 (53) Freeman v. Scofield, 16 N. J. Eq., 28. Kempton v. Bartine, S9 
 N. J. Eq., 149; affirmed, 60 N. J. Eq., 411. Knikel v. Spi.tz, 74 N. J. 
 Eq., s8i. 
 
 (54) LeGendre v. Goodridge, 46 N. J. Eq., 419; affirmed, 48 N. J. 
 Eq., 308. 
 
 ■(SS) Kempton v. Bartine, S9 N. J. Eq., 149; affirmed, 60 N. J. Eq., 
 411. 
 
100 Parties. 
 
 merely, and should be raised by demurrer ;( 56) but in the 
 case of Elmer v. Loper, such an objection was raised for the 
 first time at the hearing, and the complainant was permitted to 
 amend his bill by making the party erroneously joined as a 
 defendant a complainant, and striking out his name as a de- 
 fendant. (57) 
 
 General Rule Stated in the Negative. Having considered 
 the general rule as to who are necessary parties to a suit, it 
 now becomes necessary to consider that rule in its negative 
 form. The question will now be, who are not to be made par- 
 ties ; and the general rule is, that no person should be made 
 a party to a suit who has not an interest in the object of it, 
 and as against wh6m the complainant is entitled to no relief; 
 the multiplication of parties should be avoided whenever they 
 have no interest at stake in the cause. (i) So a person who 
 has parted with his interest in property which is the subject 
 of a trust is not a necessary party to a bill for the enforcement 
 of the trust. (2) So legatees who have assigned all their inter- 
 est in their legacies are neither necessary nor proper parties 
 to a bill filed by the assignee for the recovery of the lega- 
 cies. (3) And so where the authority of municipal commis- 
 sioners terminated with their assessment and return to the 
 city common council, they are not necessary parties to a suit 
 to set aside a sale of lands ordered by the common council an-d 
 predicated upon their proceedings. (4) And so in a bill against 
 executors to recover the residuurni of an estate after the pay- 
 ment of debts, legacies and other prior encumbrances, the 
 creditors, legatees, and other prior encumbrancers need not be 
 made parties, since their claims and priorities are admitted, 
 and there can be no residuum' until they are satisfied. (5) So 
 
 (56) Freeman v. Scofield, 16 N. J. Eq., 28, and see "Objections for 
 non-joinder," page 134, infra. 
 
 (57) Elmer v. Loper, 25 N. J. Eq., 475. Freeman v. Scofield, 16 
 N. J. Eq., 28. 
 
 (i) VanKeuren v. McLaughlin, 21 N. J. Eq., 163. Marselis v. 
 Morris Canal Co., i N. J. Eq., 31. Bruen v. Crane, 2 N. J. Eq., 347. 
 
 (2) Carter v. Uhlein, 36 At!., 956. 
 
 (3) King.v. Berry, 3 N. J. Eq., 44. 
 
 (4) Carpenter v. Hoboken, 33 N. J. Eq., 27. 
 
 <5) Vanderpool v. Davenport, 3 N. J. Eq., 120. See also Swedes- 
 borough Church V. Shivers, 16 N. J. Eq., 453. Van Keuren v. Mc- 
 Laughlin, 21 N. J. Eq., 163. Grassman v. Bonn, 30 N. J. Eq,, 490. 
 Hassell v. VanHouten, 39 N. J. Eq., 113. 
 
Necessary Parties. 101 
 
 in a suit brought by a third person to enforce a promise made 
 for his benefit, the promisee has no interest in the enforce- 
 ment of the promise, nor could a decree be made against him, 
 and he is therefore not a necessary, though he is a proper 
 party complainant. (6) 
 
 We have seen (7) that the mere fact that a person is inter- 
 ested in the subject matter of a suit is not sufficient to make 
 him a necessary party; and as a general rule, persons inter- 
 ested in the subject matter of a suit, but whose interests can- 
 not in any way be affected by the result of the suit, are not 
 necessary parties'. (8) Thus, where a testamentary guardian 
 has never qualified, and the trust created by the will for the 
 support of the minors can be executed without reference to 
 such guardian, she is not a necessary party to a bill to enforce 
 such trust. (9) And so if the sum of money or other thing 
 due to complainant is already ascertained, and no other per- 
 son has any right or interest in that particular sum of money 
 -or thing so due, it is not necessary to make any other than 
 the person having possession of the money or thing sought to 
 be recovered a party. (10) Thus, a legatee who is entitled 
 to priority of payment may file his bill to recover his legacy 
 without making the residuary legatees parties to the suit.(ii) 
 And so where lands charged with the payment of a legacy 
 have been partitioned, and a bill seeks to charge the balance 
 due on the legacy upon the moiety of the land which in equity 
 is bound to satisfy it, it is unnecessary to make the owners of 
 the other moiety of the land parties to the suit, since they will 
 be in no way affected by the decree. (12) 
 
 While a person having an interest in the subject matter of 
 the suit, but whose interest cannot be affected by the result of 
 the suit, is not a necessary party, yet. if it is necessary to have 
 
 (6) Cubberly v. Cubberly, 33 N. J. Eq., 82; aMrmed, ib. 591. 
 
 (7) Supra page. 
 
 (8) Van Keuren v. McLaughlin, 21 N. J. Eq., 163. Ludlow v. 
 Strong, S3 N. J. Eq., 326. Low v. Holmes, 17 N. j. Eq., 148. Speer 
 V. Speer, 14 N. J. Eq., 240. Stevens v. Bosch, 54 N. J. Eq., 59. 
 
 (9) Pfefferle v. Herr, 65 N. J. Eq., 325. 
 
 (10) Speakman V. Tatera, 45 N. J. Eq., 388-391. Fletcher v. Newark 
 Telephone Co., 55 N. J. Eq., 47-52. Soper v. Kipp, 5 N. J. Eq., 383. 
 See also "Executors and administrators," page 106, infra. 
 
 (11) Vanderpool v. Davenport, 3 N. J. Eq., 120, 123 and see 
 "Executors and administrators," page 106, infra. 
 
 (12) Van Winkle v. Van Houten, 3 N. J. Eq., 172. 
 
102 Parties. 
 
 such person in court to settle all or a part of the question in 
 controversy between the parties, he then becomes a necessary 
 party. (13) And if the presence of a person who has no interest 
 in the object of the suit is necessary for the protection of other 
 parties to the suit, he becomes a necessary party. (14) So in 
 a suit brought by a creditor of a fraudulent vendor to charge 
 a judgment upon lands formerly owned and fraudulently con- 
 veyed by such vendor, and which, after several intermediate 
 conveyances through parties, who each took title with notice 
 of the fraud, finally reached an innocent vendee who paid a 
 part of the purchase price, the immediate grantor of such 
 vendee should be 'made a party to the suit for the protection 
 of the vendee, for unless he be made a party to the suit, he 
 would not be bound by a decree based upon his fraudulent act 
 in selling the land, and would therefore have his action against 
 the vendee for the unpaid purchase money. (15) And so an 
 agent who, while acting in behalf of his principal, contracts in 
 his own name for the purchase of real estate, is, together with 
 his principal, a necessary party complainant to a suit for the 
 specific performance of the contract, the vendee being entitled 
 for his protection to the presence of the agent as a party to 
 the suit. (16) And so in a bill filed to compel the executor 
 of an executor to pay to complainant a share of the original 
 testator's estate bequeathed to one of testator's children, which 
 share had been sold to complainant under attachment proceed- 
 ings instituted against such legatee, since the executor is en- 
 titled to have every one made a party who may by reason of 
 his relation to the estate thereafter give him vexation and 
 trouble unless bound by the decree, the legatee is a necessary 
 party to such suit. (17) 
 
 Another exception to the rule which we are considering 
 arises in cases of fraud. A complainant filing a bill to have 
 a fraudulent transaction set aside may properly make, all per- 
 sons participating in the fraud parties, for the purpose of dis- 
 
 (13) Van Keuren v. McLaughlin, 21 N. J. Eq., 163. 
 
 (14) Keeler v. Keeler, 11 N. J. Eq., 458. Irick v. Black, 17 N. J. 
 Eq., 189. Hicks v. Campbell, 19 N. J. Eq., 183. Wilson v. Bellows, 
 30 N. J., 282. Canon v. Ballard, 62 N. J. Eq., 383; affirmed, 63 N. J. 
 Eq., 797. 
 
 (is) Winans v. Graves, 43 N. J. Eq., 263. 
 
 (16) Nichols V. Williams, 22 N. J. Eq., 63. Pennsylvania & New 
 England R. R. v. Ryerson, 36 N. J. Eq., 112. 
 
 (17) Drake v. Drake, 24 Fed. Rep., 527. 
 
Proper Parties. 103 
 
 covery.(i8) If a defendant is a necessary party to some part 
 of the complainant's case as stated, he cannot object that he 
 has no interest in other transactions which constitute a part 
 of the entire case. (19) So on a bill to set aside fraudulent 
 conveyances' made by a debtor, and for a discovery of his prop- 
 erty, it is no objection to his being made a party that a defend- 
 ant to whom a portion of the property has been conveyed has 
 no connection with other fraudulent transactions of the 
 debtor. (20) 
 
 Proper Parties. Proper, or, as they are sometimes called, 
 formal or nominal parties are, as has been seen, persons hav- 
 ing no real interest in the question at issue, but who still have 
 some interest in the subject matter of the suit which may be 
 conveniently settled in the suit thereby preventing future liti- 
 gation. ( I ) The test to determine whether a person is a neces- 
 sary or a proper party is, whether or not a decree is sought 
 against him. If a decree against him is essential to the relief 
 sought, he is a necessary, and not merely a proper party. (2) 
 An illustration of the application of this principle is the case 
 of a suit in which an account is prayed, in which case persons 
 without interest in the controversy, but who, as sureties or 
 otherwise, are interested in the result of the accounting, are 
 proper, but not necessary parties. (3) So if one of the parties 
 to an agreement for the sale of lands assigns his interest to a 
 third person, he is not a necessary party, though he is a proper 
 party if complainant chooses to join him as such. If, how- 
 ever, the assignment is not absolute, but is conditional only, 
 the assignor is a necessary party. (4) So if an assignment of 
 a judgment constituting a lien on mortgaged premises is un- 
 conditional, the assignor is a proper but not a necessary party 
 to a bill to foreclose the mortgage. (5) So where a mortgagor 
 has disposed of the equity of redemption to another, he has 
 
 (18) Robinson v. Davis, 11 N. J. Eq., 302; Miller v. Jamison, 24 
 N. J. Eq., 41 ; Reversed, 27 N. J. Eq., 586. 
 
 (19) Randolph v. Daly, 16 N. J. Eq., 313. 
 
 (20) Randolph v. Daly, 16 N. J. Eq., 313; Importers & Traders Bank 
 V. Littell, 41 N. J. Eq., 29; Bermes v. Frick, 38 N. J. Eq., 88. 
 
 (i) See cases cited 15 Ency. of, PI., p. 659, note 4. 
 
 (2) See supra, page 91. 
 
 (3) Dorsheimer v. Rorback, 23 N. J. Eq., 46; affirmed 25 N. J. Eq., 
 516 and see "Matters of Account," page 105, infra. 
 
 (4) Miller v. Henderson, 10 N. J. Eq., 320. 
 
 (5) Bruen v. Crane, 2 N. J. Eq., 347. 
 
104 Parties. 
 
 no interest in the mortgaged premises, and is not a necessary, 
 though a proper party. (6) 
 
 Whether persons who are proper but not necessary parties 
 shall be joined as parties to a suit rests entirely in the discre- 
 tion of the complainant ; and the defendants to such suit can- 
 not compel him to make such persons parties. (7) The joinder 
 in the bill, as defendants, of persons who are proper but not 
 necessary parties is not ground for demurrer. (8) 
 
 Mis-Joinder of Parties. (9) 
 
 Designation of Married Women as Parties Defend- 
 ant.(io) 
 
 Designation of Persons as Parties Who Are Unknown 
 to be Living or Dead. (11) 
 
 Proceedings Against Absent Defendants. (12) 
 
 Bringing in New Parties. (13) 
 
 Proceedings in Case of Death of Party. (14) 
 
 (6) Harrison v. Johnson, 18 N. J. E'q., 420, 425 ; reversed, 19 N. J. 
 Eq., 488; Vreeland v. Loubat, 2 N. J. Eq., 104; Bruen v. Crane, 2 N. J. 
 Eq., 348; and see "Foreclosure of mortgages," page 570, infra. 
 
 (7) Vreeland v. Loubat, 2 N. J. Eq., 104; Bruen v. Crane, 2 N. J. 
 Eq., 348; Johnes v. Cutwater, 35 N. J. Eq.. 398. 
 
 (8) Whittemore v. Coster, 4 N. J. Eq., 438. 
 
 (9) See "Multifariousness," page 163, infra. 
 
 (10) See Chancery Act, section 9, page 10, supra. 
 
 (11) See Chancery Act, section 10, page 10, supra. 
 
 (12) See Chancery Act, sections 12 to 18, page 11, supra. 
 
 (13) See Chancery Act, sections 29 and 30, page 31, supra. 
 
 (14) See "Bill of Revivor," page 238, infra. 
 
Accounting. 105 
 
 Having in the preceding pages examined the general rule 
 in regard to the persons who are necessary or proper parties 
 to suits in equity, we will now proceed to apply these rules to 
 some of the principal classes of cases to which the rule has 
 been applied. 
 
 Matters of Account. An account may be prayed by one 
 or by many, against one or agaitist many. In the case of one 
 person seeking against another an account of moneys in which 
 they only are interested, it is quite clear that they only are 
 the necessary parties. Where many are interested in seeking 
 the account, they must all be made parties ; all the persons en- 
 titled to a fund and interested in taking the accounts which 
 constitute it are necessary parties to the suit. (i) So in suits 
 for the settlement and distribution of an estate, all persons in- 
 terested in the residuum are necessary parties, so that only one 
 account need be taken ; (2) and so in a suit instituted by one of 
 the next of kin against an administrator for a settlement of the 
 estate in the court of chancery, all these entitled to a dis- 
 tributive share of the estate are necessary parties. (3) 
 
 Persons having no interest in the controversy, but who are 
 interested as sureties or otherwise in the result of an account- 
 ing, may be joined as proper but not necessary parties. (4) So 
 in a bill for an account against the principal on a bond, the 
 sureties on such bond are proper, but not necessary parties, for 
 the purpose of the accounting; though no decree for payment 
 can be made against them, the sureties will be bound by the 
 decree as to the amount due complainant, and it is proper that 
 they should have the right to defend. (5) On the same princi- 
 ple, the administrator of a deceased mortgagor is a proper but 
 not a necessary party to a suit for the foreclosure of a mort- 
 gage on the land ■oi his intestate ; he represents the personalty, 
 which is the fund primarially liable for the payment of the 
 debt secured by the mortgage, and consequently is interested 
 
 (i) Keeler v. Keeler, 11 N. J. Eq., 458; Evans v. Evans, 57 Atl., 
 872; Pence v. Pence, 13 N. J. Eq., 257; Speakman v. Tatem, 45 N. J. 
 Eq., 388. 
 
 (2) See "Executors and administrators," page 106, infra. 
 
 (3) Van Mater v. Sickler, 9 N. J. Eq., 483. 
 
 (4) Rutherford v. Alyea, S3 N. J. Eq., 580; reversed, 54 N. J, Eq., 
 411.^ 
 
 (5) Dorsheimer v. Rorback, 23 N. J. Eq., 46; aMrmed, 25 N. J. Eq., 
 516. Rutherford v. Alyea, 53 N. J. Eq., 580; Reversed, 54 X. J. Eq., 
 411; Cooper V. Cooper, 5 N. J. Eq., 4g8. 
 
106 Parties. 
 
 in the result of the accounting to be taken in the foreclosure 
 suit (6) and so with a mortgagor who has parted with the 
 mortgaged premises. (7) So sureties on an adminibtrator's 
 bond, in a suit against the administrator for a distributive 
 share, in which suit it is alleged that the administrator has 
 committed a devastavit, are proper but not necessary parties, 
 though no decree can be made against them. (8) And so 
 when mortgaged property has been sold several times, each 
 grantee assuming the mortgage, the successive grantees are all 
 proper but not necessary parties to the foreclosure suit. (9) 
 
 In suits by and against partners for an accounting, when- 
 ever the right of the firm to reclaim property which has been 
 improperly or fraudulently transferred to a third party has 
 to be settled before an accounting can be completed, such 
 third party can be made a party to the suit, and the right of 
 the firm to the property alleged to have been fraudulently con- 
 veyed may then be tried in the same suit. (10) 
 
 Executors and Administrators. The title to the personal 
 estate of a decedent passes, upon his death, to his executor or 
 administrator, who is therefore a necessary party to all suits 
 by the decree in which the personal assets may be affected (11), 
 as well as in those cases in which he may properly be required 
 by the decree to perform some act in relation to the decedent's 
 estate (12) ; and, as a general rule, in suits affecting funds in 
 the hands of executors, the executor only is a necessary party. 
 He represents the legatees under the will, and it is therefore 
 unnecessary to join the persons to whom the funds may go. (13) 
 So a substituted administrator c. t. a. may in his own name 
 foreclose a mortgage given to his predecessor, the executor 
 of the owner thereof, and no other persons than those inter- 
 ested in the equity of redemption need be made parties de- 
 
 (6) United Security Life v. Vandergrift, 51 N. J. Eq., 400. 
 
 (7) Whittemore v. Coster, 4 N. J. Eq., 438-442; Chester v. King, 
 2 N. J. Eq., 40s ; Johnes v. Oiutwater, 55 N. J. Eq., 398-402. 
 
 (8) Dorsheimer v. Rorback, 23 N. J. Eq., 46; affirmed, 25 N. J. Eq., 
 5 16. 
 
 (9) Field V. Thistle, 58 N. J. Eq., 339; affirmed, 60 N. J. Eq., 444. 
 
 (10) ' Schlichter v. Vogel,_S9 N. J. Eq., 351 ; Hayes v. Heyer, 4 Sandf. 
 Ch., 485. See also "Multifariousness," page 163, infra. 
 
 (11) Story's Eq. PL, section 170. 
 
 (12) See page 96, supra. 
 
 (13) Folwell's case, 68 N. J. Eq., 728. 
 
Personal Representatives. 107 
 
 fendant(i4). Heirs, next of kin and creditors cannot in 
 their own names prosecute actions at law or suits in equity to 
 recover the unadministered estate of a decedent, or to collect 
 debts or other choses in action due him; such suits can be 
 maintained only by the qualified personal representative of the 
 deceased. (15) An exception to this rule arises where the 
 personal representative of a decedent, by reason of collusion 
 with the defendant, or otherwise, is derelict in the perform- 
 ance of his duty, when, as in the case of a delinquent trustee, 
 the next of kin, like the cestui que trust, may maintain the 
 action, joining the personal representative as a party defend- 
 a;nt.(i6) 
 
 Where an intestate has contracted for the purchase of real 
 estate, the interest in such contract passes at his death to his 
 heirs at law, who may file their bill for the specific perform- 
 ance of such contract; and since, in the event of the perform- 
 ance of such contract being decreed, the administrator of such 
 decedent will be required to pay the purchase money, if there 
 be sufficient personal estate for that purpose, he is a neces- 
 sary party to the suit. (17) But if, in the last stated case, the 
 consideration money had been paid by thq, decedent, the per- 
 sonal estate would not be affected by the suit, and the adminis- ^ 
 trator would not be a necessary party, unless it should become 
 necessary to resort to such real estate for the payment of the 
 debts of the decedent. (18) So where a fund is held by one 
 in trust for an insane person, upon the death of such insane 
 person all his title and interest in such fund passes to his ad- 
 ministrator, who is therefore a necessary party to a suit to 
 recover the fund. (19) So where heirs at law claim a fund 
 in court on the ground that it is to be treated as real estate, 
 the administrator of the ancestor through whom such heirs 
 claim is a necessary party to the suit, he being as much inter- 
 ested in the suit as the heirs themselves; for if the heirs at 
 
 (14) Parker v. Fay, 61 N. J. Eq., 167. 
 
 (15) Buchanan v. Buchanan, 75 N. J. Eq., 274; Mathis v. Sears, 
 3 N. J. L., 594 ; Hayes v. Hayes, 45 N. J. Eq., 461 ; aMrmcd, 47 N. J. Eq., 
 567. 
 
 (16) Buchanan v. Buchanan, 75 N. J. Eq., 274. 
 
 (17) Downing v. Risley, 15 N. J. Eq., 93; Young v. Young, 45 
 N. J. Eq., 27-35. 
 
 (18) Hill V. Smith, 32 N. J. Eq., 473; and see page 109, infra. 
 
 (19) Read v. Bennett, ss N. J. Eq., 587! 
 
108 Parties. 
 
 law succeed in their efforts to recover the fund, the adminis- 
 trator will be deprived of moneys that would otherwise have 
 come into his possession to be administered by him. (20) So 
 where a bill seeks to enforce the specific performance of a 
 contract made by a decedent testator to give and devise his 
 whole estate at his death, the executor of the will of such de- 
 cedent, who primarily takes the legal title to the personalty, is 
 a necessary party defendant, without whose presence the cause 
 should not proceed. (21) 
 
 While an executor represents the creditors and next of kin 
 of the decedent, and is thus a necessary party to suits affecting 
 the personal estate, yet if decedent's debts are paid, and all 
 the parties interested are before the court, the necessity of 
 making the personal representative of the decedent a party no 
 longer exists. So where a bill is filed to establish a trust in 
 personalty created by decedent, and all decedent's debts have 
 been paid, and all those interested in the fund are before the 
 court, there is no necessity for administering upon the estate 
 of such decedent or of having his personal representatives 
 before the court in such suit. (22) 
 
 After an estate is settled, the authority of the executor or 
 administrator is at an end, and he is no longer a necessary 
 party to suits concerning it. So where a testator devised his 
 estate to his wife for life, with remainde.r over, and appointed 
 his wife and another executors of his will, and after the settle- 
 ment of the estate in the Orphan's Court testator's son fraudu- 
 lently obtained a conveyance from the wife of her life estate, 
 on a bill filed to set aside such conveyance, the executor is not 
 a necessary party; the estate having been settled, he has no 
 interest in the controversy. (23) So where lands charged with 
 the payment of legacies are sold by judicial proceedings, and 
 the estate has been settled, the executor is not a necessary 
 party complainant to a suit against the purchaser of the lands 
 to recover a legacy. (24) 
 
 (20) Cox V. Roome, 36 N. J. Eq., 317. 
 
 (21) Colfax V. Colfax, 32 N. J. Eq., 207; Kempton v. Bartine, sg 
 N. J. Eq., 149; aHirmed, 60 N. J. Eq., 411; Haberman v. Kaufer, 60 
 N. J. Eq., 271. 
 
 (22) Hooper v. Holmes, 11 N. J. Eq., 122. 
 
 (23) Danner v. Banner, 30 N. J. Eq., 67; Chasy v. Gowdy, 43 N. J. 
 Eq., 95- 
 
 (24) Cool V. Higgins, 25 N. J. Eq., 117. 
 
Personal Representatives. 109 
 
 The personal estate of a decedent is the primary fund for 
 the payment of his debts, and, if he die testate for the pay- 
 ment of such legacies as are mentioned in his will. It is the 
 duty of the executor or administrator to pay such debts and 
 legacies; so long as the estate remains unsettled, the personal 
 representative is thereforte a necessary party to all suits by 
 creditors and legatees to enforce their claims even though 
 they may be charged upon the realty. (25) And where the 
 estate has been settled, but not distributed, and the executor 
 or administrator is in possession of sufficient personalty to pay 
 the debt, he is a necessary party to a suit brought by a credi- 
 tor to charge legatees or devisees with the payment of a claim 
 against the decedent. (26) And so where a bill is filed by a 
 legatee who seeks to charge the deceased executor of his 
 testator with a devastavit, the personal estate of such deceased 
 executor being liable for the amount of such devastavit, his 
 executor is a necessary party defendant. (27) 
 
 In addition to the title to the personalty of a decedent, an 
 executor or administrator has an equitable interest in behalf 
 of creditors in the realty whereof the decedent died seized, 
 which interest is paramount to the title of the heirs. Upon 
 a deficiency of the personal assets, he may apply the real estate 
 to the payment of debts. The realty devolves upon the heirs 
 charged with this encumbrance, and may be sold at the in- 
 stance of the executor or administrator. (28) While the estate 
 remains unsettled and decedent's debts unpaid, the executor 
 or administrator is therefore a necessary party to all suits 
 brbught for the purpose of divesting to complainant, wholly 
 or in part, the title to real estate of decedent. (29) Thus where 
 a bill was filed by the heirs at law of a deceased vendee by 
 parol contract against a purchaser claiming by a subsequent 
 deed from the vendor, charging such purchaser with notice 
 of the parol contract of sale, and praying a decree for specific 
 performance against the purchaser, it was held that the ad- 
 
 (25) Congregational Qiurch v. Benedict, 59 N. J. Eq., 136. 
 
 (26) Loehenberg v. Loehenberg, 52 Atl., 710. 
 
 (27) Dodd V. Lindsley, 53 N. J. Eq., 652. 
 
 (28) P. L. 1898, p. 743. Kocher's Orphans' Ct. Pr., 127. 
 
 (29) Downing v. Risley, is N. J. Eq., 93; Young v. Young, 45 N. J. 
 Eq., 27; Haberman v. Kaufer, 60 N. J., 271-278; Kempton v. Bartine, 
 59 N. J. Eq., 149; affirmed, 60 N. J. Eq., 411; Colfax v. Colfax, 
 32 N. J. Eq., 206; Ball v. Ward, 73 N. J. Eq., 440. 
 
110 Parties. 
 
 ministrator of the intestate was a necessary party to the suit, 
 by reason of his interest in the realty of his intestate. (30) 
 When a suit respecting the real estate of a decedent does not 
 ■ affect the equitable interest of the executor or administrator 
 therein, it of course follows that he is not a necessary party. 
 Thtis, an administrator is not a necessary party to a bill to 
 partition the realty of his intestate among the heirs at law, 
 since the partition will not affect the right of the administrator 
 in the lands of his intestate; if the lands are liable for debts 
 before the partition, they will remain so afterwards. (31) So 
 where a judgment creditor of a decedent whose estate is in- 
 solvent, and whose administrator refuses to bring suit, files a 
 creditor's bill to set aside as fraudulent a conveyance of lands 
 made by such decedent, the administrator has no interest in 
 the lands in controversy; after the payment of complainant's 
 debt, and those of such. other creditors as may be entitled to 
 come in and participate in the suit, the residue of the value 
 of the land will belong to the grantee, for as between him and 
 the grantor the conveyance was valid. The administrator is 
 therefore not a necessary party to such suit. (32) If a personal 
 representative is a necessary party to a suit, the fact that a sole 
 executor is dead does not justify the failure to make a personal 
 representative a party, since an administrator with the will 
 annexed may be appointed. (33) An exception to the rule 
 under consideration is the case of the executor or adminis- 
 trator of a deceased mortgagor, who, it is well settled, is not 
 a necessary party to a suit to foreclose the mortgage, although 
 he is a proper party, if the complainant chooses to join 
 him. (34) Nor are the personal representatives of a de- 
 ceased obligor, who joined with the owner of mortgaged 
 premises in a bond given to secure a mortgage, necessary 
 parties to a bill to foreclose such mortgage. (35) 
 
 It has already been seen that in suits brought by a creditor 
 or legatee against the executor or administrator for the re- 
 covery of his debt or legacy, and which do not involve the 
 
 (30) Downing v. Risky, 15 N. J. Eq., 93. 
 
 (31) Speer v. Speer, 14 N. J. Eq., 240. 
 
 (32) Munn V. Marsh, 38 N. J. Eq., 440; aMrmed, 40 N. J. Eq., 343. 
 
 (33) Congregational Church v. Benedict, S9 N. J. Eq., 136; see also 
 P. L., 1901, p. 303; Kocher's Orphans' Ct. Pr., page 53, et seq. 
 
 (34) See "Foreclosure of Mortgages," page S73> infra. 
 
 (35) Savings Association v. Vandervere, 11 N. J. Eq., 383. 
 
Personal Representatives. Ill 
 
 construction of the residilary clause of a will, although the 
 interest of every unsatisfied creditor, legatee and person inter- 
 ested in the assets after payment of debts will be afifected by 
 the suit, yet they are considered as sufficiently represented by 
 the executor or administrator (36) and need not be joined 
 as parties; and if the suit be fairly conducted, they will be 
 bound by the decree. In such suits, the executor or adminis- 
 trator is the only necessary party. (37) 
 
 If, however, the executor or administrator is not in a situa- 
 tion fairly to represent the interests of legatees or creditors 
 and to make a full defense to the action, a legatee or distribu- 
 tee may, on petition in the same cause, be admitted to defend 
 the rights which in ordinary cases the law entrusts to the care 
 of the executor or administrator. (38) And so where there is 
 collusion alleged between the executor and the debtors, or the 
 executor refuses to collect the debts, a legatee or creditor may 
 make such debtors parties to a suit to collect his legacy or 
 debt. (39) But in case of a bill to recover a debt or claim out 
 of the estate of a deceased partner, where there are unsettled 
 accounts with a surviving partner of decedent, such surviving 
 partner may be joined as a party to the suit without stating 
 a case of collusion, in order that there may be an account of 
 the personal estate entire. (40) 
 
 In suits involving the construction and effect of the residu- 
 ary clause of a will, the residuary legatees, being directly 
 interested, are necessary parties. (41) So a person who, by 
 a possible construction of the will, may become a legatee there- 
 
 (36) See page 98, supra. 
 
 (37) Vanderpool v. Davenport, 3 N. J. Eq., 120; Melick v. Melick, 
 17 N. J. Eq., 156; Read v. Patterson, 44 N. J. Eq., 211 and cases cited 
 page 217; Decker v. Wilson, 45 N. J. Eq., 772, and cases cited page 
 772; Harrison v. Righter, 11 N. J. Eq., 389; Evans v. Evans, 23 N. J. 
 Eq., 71 ; Dorsheimer v. Rorback, 23 N. J. Eiq., 46 ; aMrmed, 25 N. J. Eq., 
 S16. Davison v. Rake, 45 N. J. Eq., 767; Merritt v. Merritt, 43 N. J., 
 11; Sweet V. Parker, 22 N. J. Eq., 453-456, and see "Trustees and 
 cestui que trust," page 114, mfra. 
 
 (38) Melick V. Melick, 17 N. J. Eq., 156; Le Gendre v. Gkwdridge, 
 46 N. J. Eq., 419; affirmed, 48 N. J. Eq., 308. 
 
 (39) Evans v. -Evans, 23 N. J. Eq., 71; Dorsheimer v. Rorback, 
 23 N. J. Eq., 46; affirmed, 25 N. J. Eq., 516; Goble v. Andruss, 2 N. J. 
 Eq., 66. 
 
 (40) Harrison v. Righter, 11 N. J. Eq., 389; Story's Eq. PI., section 
 178; and see "Matters of account," page 105, supra. 
 
 (41) Read v. Patterson, 44 N. J. Eq., 211, and cases cited on page 
 217. 
 
112 Parties. 
 
 under should be made a party to a bill for the construction of 
 the will; (42) and in suits for the settlement and distribution 
 of an estate, all persons interested in the residuum of the estate 
 must be made parties, so that only one account need be taken, 
 and one distribution made. (43) And this rule applies to 
 persons whose interests are merely contingent. (44) So where 
 a bill is filed to recover legacies which are charged upon real 
 estate, all the legatees whose legacies are so charged should 
 be made parties. (45) 
 
 Where there are several executors', all must be joined as 
 parties to suits respecting the estate of their testator ;( 46) and 
 where one of several executors refuses to join in a suit for 
 the benefit oi the estate, the others can bring suit, but must 
 make him. a party defendant 1(47 ) but if part only of the execu- 
 tor^s named in a will have qualified as such, only those who 
 actually qualify are necessary parties to a suit respecting the 
 estate of their testator. (48) An executor or administrator 
 cannot be permitted to conduct both sides of a litigation ; there- 
 fore, when a suit is brought against an executor or adminis- 
 trator to recover a debt due from him to the estate, he should 
 not be made a complainant, but should be made a defendant 
 in the character in which he owes the debt; (49) and if it ap- 
 pears that an executor or administrator, joined as a party com- 
 plainant, claims' adversely to the prayer of the bill, the court, 
 upon motion, will direct that his name be stricken from the 
 bill as a complainant, and inserted as a defendant. (50) 
 
 Upon the death of one of two co-executors, the administra- 
 tion of the estate devolves upon the surviving executor, and it 
 
 (42) Walker v. Booraem, 68 N. J. Eq., 345. 
 
 (43) Speakman v. Tatem, 45 N. J. Eq., 388; Deegan v. Capner, 
 44 N. J. Eq., 339; Keeler v. Keeler, 11 N. J. Eq., 458; Van Mater v. 
 Sickler, 9 N. J. Eq., 483 ; Dehart v. Dehart, 3 N. J. Eq., 471 ; Evans v. 
 Evans, $7 Atl., 872; Vanderpool v. Davenport, 3 N. J. Eq., 121. 
 
 (44) Vanderpool v. Davenport, 3 N. J. Eq., 120. 
 
 (45) Trustees v. 'Wilkinson, 36 N. J. Eq., 141 ; affirmed, 38 N. J. Eq., 
 514- 
 
 (46) Evans v. Evans, 23 N. J. Eq., 71. 
 
 (47) Evans v. Evans, 23 N. J. Eq., 71; Arkenburgh v. Lakeside 
 Residence Assn., 56 N. J. Eq., 102. 
 
 (48) Rinehart v. Rinehart, 15 N. J. Eq., 44; Newark Savings Inst. 
 V. Jones, 35 N. J. Eq., 406. 
 
 (49) Ransom v. Geer, 30 N. J. Eq., 249; Black v. Shreeve, 7 N. J. 
 Eq., 440-457- 
 
 (so) Dare v. Allen, 2 N. J. Eq., 288. 
 
Heirs and Devisees. 113 
 
 is not necessary to join the representatives of the deceased 
 executor as parties to a suit against the surviving executor to 
 recover a debt or legacy, or for a settlement and distribution 
 of the estate. (51) Where, however, such deceased co-executor 
 is charged with having assets, or when fraud or collusion is 
 charged between the executors, the representative of the de- 
 ceased co-executor is a proper party. (52) 
 
 Heirs and Devisees. As a general rule, heirs and de- 
 visees' are necessary parties to all suits affecting lands de- 
 scended or devised to them. So where a testator by his will 
 made such disposition of his estate that the fee in his lands 
 descended to his heirs subject to the operation of a power of 
 sale vested in the executor of his will, such heirs at law are 
 necessary parties to a suit to compel the executor to execute 
 the power of sale;(53) and upon the same principle, heirs of 
 an intestate who had contracted to sell his lands are necessary 
 parties to a bill praying the specific performance of such con- 
 tract. (54) So on a bill filed by an heir to avoid the deed of 
 his ancestor, all the heirs at law of the ancestor are necessary 
 parties, all being interested in the object of the suit;(55) and 
 upon the same grounds, devisees of lands charged with the 
 payment of a legacy or debt are necessary parties to a suit 
 against the executor to recover, such legacy or debt; (56) and 
 so where the devisee of lands' so charged dies, his heirs at law 
 are necessary parties to a suit to charge the lands so devised 
 with the legacy. (57) But heirs at law are not necessary par- 
 ties to a suit against the legal representative of their ancestor 
 to recover for loss sustained by a breach of trust of the an- 
 cestor as executor, though they are proper parties if the com- 
 plainant sees fit to join them. (58) 
 
 It is a general rule that whenever one of the objects prayed 
 is the proof of a will, the heir of the testator must be made a 
 
 (si) Dehart v. Dehart, 3 N. J. Eq., 471 ; Goble v. Andruss, 2 N. J. 
 Eq., 66. 
 
 (52) Goble V. Andruss, 2 N. J. Eq., 66. 
 
 (53) Wooster v. Cooper, 56 N. J. Eq., 759. 
 
 (54) Hill V. Smith, 32 N. J. Eq., 473. 
 
 (55) Young V. Bilderback, 3 N. J. Eq., 206. 
 
 (56) Evans v. Evans, 23 N. J. Eq., 71. 
 
 (57) Kingsland v. Kingsland, 60 N. J. Eq., 65. 
 
 (58) McCartin v. Traphagen, 43 N. J. Eq., 323; affirmed, 45 N. J. 
 Eq., 265. 
 
114 Parties. 
 
 party, since the real estate of a decedent descends upon his 
 death to his heir at law, who cannot be disinherited without 
 an opportunity of defending his rights ;(59) and upon the 
 same principle, where a bill is filed for the construction "of a 
 will, and one of. the questions at issue is whether such real 
 estate is disposed of by the will, the decedent's heirs at law are 
 necessary parties. (60) So all the residuary legatees named in 
 a will are necessary parties to a suit in equity brought by two 
 of them to compel distribution and payment of their lega- 
 cies. (61) 
 
 Trustees and Cestuis Que Trustent. In suits brought 
 either by or against trustees respecting the trust estate, as a 
 general rule the cestuis que trustent as well as the trustees 
 are necessary parties. The trustee holds the legal title and 
 is therefore interested in the object of the suit, and a necessary 
 party; the cestuis que trustent have the equitable and beneficial 
 interest to be affected by the decree, and are therefore also 
 necessary parties. (62) Thus where in partition it appears that 
 the deceased owner left a will, whereby he gave the land sought 
 to be partitioned to a trustee, and that the trustee holds the 
 legal title to the land, the trustee as such is a necessary party ; 
 (63) and so if a mortgage be made to a trustee in trust, all 
 the cestuis que trustent are necessary parties to a bill for the 
 foreclosure of such mortgage. (64) So in suits by trustees 
 for the recovery of the trust fund, in which the title of the 
 cestuis que trustent is involved, the cestuis que trustent are 
 necessary parties 1(65) and so also when a bill filed by trus- 
 
 (59) Calvert on Parties, 162. 
 
 (60) Lomerson v. Vroom, 42 N., 290. 
 
 (61) Wykoff V. O'Neil, 71 N. J. Eq., 681. 
 
 (62) Stillwell V. McNeely, 2 N. J. Eq., 305; Sayre v. Sayre, 17 
 N. J. Eq., 349; Smith v. Gaines, 39 N. J. Eq., ,545; Brokaw v. Brokaw, 
 41 N. J. Eq., 215; Fence v. Pence, 13 N. J. Eq., 257; Plum v. Smith, 
 56 N. J. Eq., 468; Pancoast v. Geishaker, 58 N. J. Eq., 537; Day v. 
 Devitt, 81 Atl., 368; Schuler v. Southern Iron Co., 77 N. J. Eq., 60. 
 
 (63) Mackay v. Mackay, 71 N. J. Eq., 686. 
 
 (64) Allen V. Roll, 25 N. J. Eq., 163 ; Johnes v. Cutwater, 55' N. J. 
 Eq., 398-403; Dunn v. Seymour, 11 N. J. Eq., 220; Willink v. The 
 Morris Canal Co., 4 N. J. Eq., 377; Tyson v. Applegate, 40 N. J. Eq., 
 305-311 ; Story's Eq. PI., section 201. Large v. Van Doren, 14 N. J. Eq., 
 208. 
 
 (65) Reed v. Reed, 16 N. J. Eq., 248; Van Doren v. Robinson, 16 
 N. J. Eq., 256; Elmer v. Loper, 25 N. J. Eq., 475; Plum v. Smith, 
 S6 N. J. Eq.. 468. 
 
\ Cestuis Que Trustent. 115 
 
 tees for the construction of the v^ill creating the trust under 
 which they hold seeks to determine the title of "the trustees 
 to the property devised. (66) So where a suit to enforce afi 
 alleged trust for the benefit of minors involves the construc- 
 tion of the will creating the trust, as to whether the income 
 of the entire estate be applicable to the education and mainten- 
 ance of the minors, or only the income of their several shares, 
 all the minors interested in the estate are necessary parties. (67) 
 So where a trustee is called upon to account for the trust 
 moneys held by him as trustee, all the cestuis que trustent 
 should be made parties to the suit, so that there may be a single 
 accounting, and that all persons interested in the trust funds 
 may be bound by it. (68) So where an agreement is executed 
 by one in his own name, as agent for another, the principal 
 is a necessary party to a suit to enforce such agreement. (69) 
 
 There are, however, exceptions to the general rule as above 
 stated, and the limits of such exceptions never have been, and 
 probably never can be precisely defined. (69a) The first to be 
 considered arises from an application of the doctrine of repre- 
 sentation. (70) Where the object of a suit is not to administer a 
 trust nor to construe the terins of a trust, and where the rights 
 between trustee and cestuis que trustent are not involved, 
 the latter are sufficiently represented by the trustee, and need 
 not be made parties. (71) So where the only object of a suit 
 is to transfer trust property into the hands of the trustees the, 
 cestuis que trustent need not be joined. (72) And as has been 
 seen where trustees hold a fund for the purpose of paying the 
 income thereof to one for his life, and after his death to pay 
 the principal to his children, the remaindermen are not neces- 
 sary parties to a suit affecting such fund, as their interests are 
 protected by their representatives. (73) So cestuis que trustent 
 
 (66) Traphagen v. Levy, 45 N. J. Eq., 448. 
 
 (67) Pfefferle v. Herr, 65 N. J. Eq., 325. 
 
 (68) Speakman v. Tatem, 45 N. J. Eq., 388; Deegan v. Capner, 44 
 N. J. Eq., 339; Pfefferle v. Herr, SS Atl., 1103. 
 
 (69) Nichols V. Williams, 22 N. J. Eq., 63 ; Willink v. Morris Canal 
 Co., 4 N. J. Eq., 377. 
 
 (69a) Ring V. New Auditorium Co., 77 N. J. Eq., 422-430. 
 
 (70) See page 98, supra. 
 
 (71) Stevens v. Bosch, 54 N. J. Eq., 59-63- 
 
 (72) Smith V. Gaines, 39 N. J. Eq., S4S-5SO. 
 
 (73) Sweet V. Parker, 22 N. J. Eq., 453. 
 
116 Parties. ^ 
 
 are not necessai'y parties to a suit against their trustees to com- 
 pel the specific performance'of a contract entered into by such 
 trustees, except when some question arises touching the power 
 of the trustees to execute the contract, or their authority to act 
 under it. (74) So where one of several cestuis que trustent 
 entitled to a certain share of a certain fund seeks to recover 
 from the trustee his share of that fund, he need not make the 
 other cesHi-is que trustent parties to his suit. (75) 
 
 Another exception to the rule under discussion exists where 
 the cestuis que trustent are very numerous, or where unneces- 
 sary expense would be involved in joining all of them. In such 
 cases the court may in its discretion relax the general rule, 
 and permit the trustee to file the bill in his own name without 
 making the cestuis que trustent parties. (76) But the court 
 will not relieve complainant from his duty to bring all parties 
 in interest before it simply because it may be difficult or annoy- 
 ing to do so; the inconvenience must be such that if the rule 
 were enforced the complainant would be subjected to a very 
 great expense, or to such additional inquiry and procedure 
 that to burden him with it would amount to a denial of the 
 aid of the court in the recovery of his claim, (77) as when a 
 mortgage is made to trustees in trust for numerous and un- 
 known persons, such- as' holders of bonds issued by railroads 
 (78) or where there are 250 cestuis que trustent, {79) or 
 where the cestuis que trustent are so scattered over the face 
 of the earth that it would be impossible for complainant to 
 find them. (80) Where the parties are very numerous, a trus- 
 tee filing a bill in his own name need not allege that the persons 
 interested are so numerous that they cannot be brought be- 
 
 (74) Van Doren v. Robinson, t6 N. J. Eq., 256; Newark Savings 
 Institution v. Jones, 35 N. J. Eq., 406. 
 
 (75 ) Speakman v. Tatem, 45 N. J. Eq., 388-391 ; Fletcher v. Newark 
 Telephone Co., SS N. J. Eq., 47. 
 
 {76) Willink V. The Morris Canal Co., 4 N. J. Eq., 577-^97; Still- 
 well V. McNeely, 2 N. J. Eq., 305; Hackensack Water Co. v. DeKay, 
 36 N. J. Eq., 548. 
 
 {77) Johnes v. Cutwater, 55 N. J. Eq., 406; Camden Safe Deposit, 
 &c., Co. V. Dialogue, 75 N. J. Eq., 600. 
 
 (78) Williamson v. N. J. Southern R. R. Co., 25 N. J. Eq., 13; 
 Tyson v. Applegate, 40 N. J. Eq., 305-311; Hackensack Water Co. 
 V. DeKay, 36 N. J. Eq., 548. 
 
 (79) Van Vechten v. Terry, 2 Johns. Ch., 197. 
 
 (80) Willink V. Morris Canal Co., 4 N. J. Eq., 377. 
 
Cestuis Que Trustent. 117 
 
 fore the court without great inconvenience and expense, if 
 this fact sufficiently appears upon the face of the transaction 
 as disclosed in the bill. (8i) 
 
 Ordinarily, in a bill to foreclose a trust mortgage, as well 
 as in other suits of like character, the trustee mortgagee should 
 be complainant; but if the trustee refuses to act, any bond 
 holder may file a bill, but in such case the other bond holders 
 must be brought in, (82) or, if they be very numerous, the 
 trustee, as the representative of the bond holders not joining 
 in the suit, must be made a party defendant. (83) So as has 
 already been seen, where a trustee occupies such a position 
 that he cannot attack the validity of a deed by suit without 
 accusing himself of fraud or wanton neglect of duty, his cestuis 
 que trustent may, without notice to such trustee, file their bill 
 for relief in their own name, making the trustee a party de- 
 fendant. (84) 
 
 In suits to foreclose trust mortgages, whether the bill be 
 filed by the trustee or by some of the bond holders, making the 
 trustee a party defendant, the court will protect the rights of 
 the other bond holders; though they are not made parties and 
 do not appear in the suit, they may come in and prove their 
 claims before the Master. (85) 
 
 Where there are several trustees, all must be joined as par- 
 ties to a suit* relating to the trust estate. (86) Upon the death 
 of one of several trustees, the title to the trust estate devolves 
 upon the .survivors, who are necessary parties to suits respect- 
 ing the subject matter of the trust; if one of several trustees 
 dies or is removed, and a new trustee is appointed in his place, 
 such new trustee and the survivors of the original trustees are 
 necessary parties. (87) 
 
 (81) Willink V. Morris Canal Co., 4 N. J. Eq., 377; Johnes v. 
 Cutwater, 55 N. J. Eq., 398-405. 
 
 (82) Johnes v. Cutwater, 55 N. J. Eq., 398-404- 
 
 (83) Hackensack Water Co. v. DeKay, 36 N. J. Eq., 548. 
 
 (84) LeGendre v. Goodridge, 46- N. J. Eq., 419; affirmed, 48 N. J. 
 Eq., 308. 
 
 (85) Hackensack Water Co. v. DeKay, 36 N. J. Eq., 548; Story's 
 Eq. PI., section 99. 
 
 (86) Story's Eq. PL, section 210; i Daniel's Ch. Pr., 249. 
 
 (87) 4 Comp. Stat, page 5667, section i. 
 
118 Parties. 
 
 Upon the death of a sole surviving trustee, the title descends 
 to his personal representatives or heirs at common law i. e. 
 his eldest son, if any, according as the trust estate is personalty 
 or realty. (88) The heirs at law or personal representatives of 
 a deceased trustee are therefore necessary parties to a bill or 
 petition praying the appointment of a new trustee. (89) Thus, 
 if a deceased trustee received assets of his testator for which 
 he did not account to his co-trustee, a cestms qvre trust may 
 join the personal representatives of the deceased trustee with 
 the surviving trustee as parties to a suit for an accounting. (90) 
 If, however, the deceased trustee has fully accounted for all 
 the assets of the estate received by him, the proper practice is 
 not to join his' representatives as parties to a suit for an ac- 
 counting, but to allege in the bill that the deceased trustee fully 
 accounted with the survivor, arid that nothing is due from the 
 estate of the deceased trustee to the estate of the testator. (91) 
 
 Bruere, 42 
 aMrmjed, 
 
 (88) Schenck v. Schenck, 16 N. J. Eq., 174; Gulick v. B 
 N. J. Eq., 639; Zabriskie v. M. & E. R. R., 33 N. J. Eq., 22; 
 34 N. J. Eq., 282; Brown v. Pancoast, 34 N. J. Eq., 321. 
 
 (8g) Plumley v. Plumley, 8 N. J. Eq., 511 ; Martling v. Martling, 
 55 N. J. Eq., 771. 
 
 (90) Evans v. Evans, 57 Atl., 872. 
 
 (91) Evans v. Evans, 57 Atl., 872; i Daniel's Ch. Pr., 253; Carpen- 
 ter V. Gray, 37 N. J. Eq., 389. 
 
Capacity to Sue and Defend. 119 
 
 CAPACITY TO SUE AND BE SUED, 
 
 In General. All persons, except those under a disability, 
 may sue or be sued in the court of chancery.(i) The term 
 "persons" includes not only natural persons, but also bodies 
 politic and corporate. Foreign corporations may be sued in 
 the courts of this state, (2) but cannot maintain a suit until 
 they have obtained a certificate from the secretary of state 
 authorizing them to transact business in this state. (3) Non- 
 residents may maintain an action in the same manner as resi- 
 dents, but they are required to give bond to the defendant in 
 the sum of one hundred and fifty dollars, with one surety being 
 a freeholder and resident of this state, which bond is required 
 to be filed before process for appearance shall issue. (4) With 
 regard to foreign executors and administrators, the early prac- 
 tice required that they obtain ancillary letters in this state 
 before they might maintain an action in our courts ;(5) but 
 by the statute of 1896, foreign executors or administrators are 
 empowered to prosecute their suit in the courts of this state, 
 provided they first file in the office of the register of the pre- 
 rogative court an exemplified copy of their letters, and pro- 
 vided also that security for costs may be required from such 
 executor or administrator as if he were a non-resident of this 
 state. (6) Foreign executors are not amenable to compulsory 
 process in a suit in New Jersey, where no probate proceedings 
 of any character have been had in this state, unless the suit is 
 either in rem or qumsi in rem. Although courts disagree as 
 to whether or not voluntary submission to suits by foreign 
 executors confers jurisdiction upon the court, our courts are 
 among those which hold affirmatively that it does. (7) 
 
 Persons under a disability are infants, idiots and lunatics, 
 and married women, (8) although the disabiHties of married 
 
 (i) Mit. Eq. PI., 119. 
 
 (2) P. L. 1896, p. 30S, section 88. 
 
 (3) P. L. 1896, p. 308, section 89. 
 
 (4) Chancery Act, section 8, page 8, supra, 
 
 (5) Porter v. Trail, 30 N. J. Eq., 106. 
 
 (6) 2 Comp. Stat., page 2265, section 21. It is sufficient if the 
 exemplified copy of the foreign letters is filed before final hearing. 
 Buecicer v. Carr, 60 N. J. Eq., 300. 
 
 (7) Babbitt v. Fidelity Trust Co., 70 N. J. Eq., 671. 
 
 (8) Story's Eq. PI., section 56. 
 
120 Parties. 
 
 women have for the most part been removed by the married 
 women's act. (g) 
 
 Infants. An infant is incapable by himself of maintain- 
 ing a suit or other legal proceeding, but must sue by his 
 guardian duly appointed by some court of competent jurisdic- 
 tion, or by his next friend, ( lo) who may bring such suit with- 
 out any previous authority from the infant or from the court, 
 ( n ) but is to be considered as an officer of the court, specially 
 appointed for the purpose of protecting the interests of the 
 infant. (12) The usual practice, in case of a bill filed on behalf 
 of an infant without next friend, is for defendant to move to 
 have it dismissed, with costs to be paid by the solicitor. (13) 
 
 Any person of full age and sound mind may institute a suit 
 on behalf of an infant ; but a father has the first and best right 
 to act as the next friend of his infant child, unless his interests 
 are hostile to those of the child, or he has been guilty of de- 
 fault or neglect. (14) This right of the father is regarded as 
 so superior that it is spoken of as a vested right; and in an 
 English case, it is declared that the father has a right, even 
 where another person has instituted a suit in behalf of his 
 infant child and prosecuted it to decree, to have such other 
 person displaced after decree pronounced, and himself sub- 
 stituted as next friend. (15) 
 
 It is the duty and power of the court to look to the rights 
 of the infant, and to see that the infant is not prejudiced by 
 any act or omission of his next friend. Thus, the court will, 
 where the interests of the infant require it, order that an 
 infant complainant be joined as a defendant; (16) and so if it 
 is represented to the court that a suit instituted on behalf of 
 an infant by a next friend is not for his benefit, the court will 
 refer it to a master to inquire into the circumstances and re- 
 
 (g) See page 126, infra. 
 
 (10) McGiffen v. Stout, i N. J. L., 108; Lang v. Belloff, 53 
 N. J. Eq., 298. 
 
 (11) Fulton V. Rosevelt, i Paige Ch., 178. 
 
 (12) Morgan v. Thome, 7 M. & W., 400. 
 
 (13) Moore v. Moore, 74 N. J. Eq., 733. 
 
 ,(14) Rue V. Meirs, 43 N. J. Eq., 377; Morgan v. Potter, 157 U. S., 
 195- 
 
 (is) Woolf V. Pemberton, 6 L. R. (ch. div.), 19. 
 
 (16) Bowen v. Idley, I Edw. Ch., 148; Plunket v. Joyce, 2 Sch. 
 & Lef., 158; Middleditch v. Williams, 47 N. J. Eq., 585. 
 
Infants. 121 
 
 port whether the suit is for the benefit of the infant, and if it 
 appears upon the coming in of the master's report that the suit 
 was improperly instituted, is not for the benefit of the infant, 
 or should not be prosecuted by the particular person who 
 instituted it, the court will stay further proceedings. (17) 
 
 Where two suits for the same purpose are instituted on be- 
 half of an infant by different persons acting as his next friend, 
 that one is to be preferred which, on taking into account all the 
 circumstances likely to influence the course of the proceedings, 
 appears most for the infant's benefit. The priority of one of 
 the suits to the other, or the fact that in one the next friend 
 is a relative and in the other not, is to be disregarded if it 
 appear that the later suit, or that in which the next friend is 
 not a relative, is most likely to be prosecuted zealously for the 
 benefit of the infant ; and the court will restrain the further 
 prosecution of the suit not for his benefit. (18) 
 
 If a next friend will not proceed with the cause, or other- 
 wise refuses to perform his duties, or is guilty of any mis- 
 conduct, the court will order him removed. (19) So the court 
 will not permit a person whose interests are adverse to an 
 infant's to act as next friend of that infant in any litigation 
 concerning such interests, but will remove such next friend 
 and appoint a new one. (20) And where it is made to appear 
 that a next friend is a person of immoral character, who insti- 
 tuted the suit from spite, the court will order the bill to be 
 taken from the files, with costs to be paid by the next friend. 
 (21) But the court will not remove a next friend merely 
 because he is nearly related to or connected with the defendant, 
 unless it is satisfied that there is a probability that the infant's 
 interests will be prejudiced if the next friend is allowed to 
 remain. (22) 
 
 (17) Middleditch v. Williams, 47 N. J. Eq., 585-588; DaCosta v. 
 DaCosta, 3 P. Wms., 140; Fulton v. Rosevelt, i Paige Ch., 178; Garr 
 V. Drake, 2 Johns. Ch., 541 ; i Daniel's Ch. Pr., 71 ; Story's Eq. PI., 
 section 60. 
 
 (18) Morrison v. Bell, 5 Ir. Eq., 354; Story's Eq. PI., section 60; 
 I Daniel's Ch. Pr., 69. 
 
 (19) I Daniel's Ch. Pr., 75; Russell v. Sharp, i Jac. & W., 482; 
 Tripp V. Gifford, 155 Mass., 109. 
 
 (20) Langford v. Little, 5 Ir. Eq., 343; Peyton v. Bond, I Sim., 390; 
 I Daniel's Ch. Pr., 75. 
 
 (21) Walker v. Else, 7 Sim., 234; i Daniel's Chr. Pr., 71. 
 
 (22) Bedwin v. Asprev, 11 Sim., 530. 
 
122 Parties. 
 
 ' The next friend is primarily responsible for the costs of an 
 unsuccessful suit prosecuted by him in behalf of an infant 5(23) 
 but if it appears that he acted in good faith and with reasonable 
 caution, he is entitled to be reimbursed out of the infant's estate. 
 (24) If, however, a suit prosecuted by a next friend on behalf 
 of an infant was wantonly and improperly instituted, the next 
 friend is liable for the costs. (25) 
 
 A suit brought by a next friend in behalf of an infant is the 
 suit of the infant; such suit should therefore be brought in 
 the name of the infant, describing him as suing by his next 
 friend. (26) 
 
 If a next friend dies, or is discharged or removed during 
 the pendency of the suit, the proper course is for the solicitor 
 for the complainant to apply to the court for the appointment 
 of a new next friend ; upon such application the consent of the 
 proposed next friend to act should be presented to the court. 
 The order appointing a new next friend should be served upon 
 the defendant's solicitor, and the name of the new next friend 
 should be used in all subsequent proceedings where the former 
 would have been named. (27) 
 
 The coming of age of an infant complainant does not abate 
 the suit 1(28) but he may elect whether or not he will continue 
 it. (29) If he goes on with the cause, all future proceedings 
 may be carried on in his own name, and the record need not be 
 amended or altered. (30) A suit begun by an infant without 
 a next friend may be continued on his arriving at full age in 
 his own name as complainant; and a plea averring that com- 
 plainant was an infant, and exhibited the bill without a next 
 
 (23) Smith V. Floyd, i Pick, 275; Wend v. Cantwell, 36 Hun., 
 528; Fellows V. Niver, 18 Wend., 564; Waring v. Crane, 2 Paige, 
 79 ; Rima v. Rosse Iron Works, 120 N. Y., 433 ; i Daniel's Ch. Pr., 78. 
 
 (24) Voorhis v. Polhemus, 36 N. J. Eq., 456; Waring v. Crane, 
 2 Paige, 79; I Daniel's Ch. Pr., 79. 
 
 (25) I Mitf. Eq. PI. by Jeremy, 121; Story's Eq. PI., sec. 59; I 
 Daniel's Ch. Pr., 71; In re Ryder, 11 Paige, 181. 
 
 (26) Longstreet v. Tilton, i N. J. L., 45 ; Dickinson Ch. Pr., page 3. 
 
 (27) I Daniel's Ch. Pr., 77; Bracey v. Sandiford, 3 Madd., 468. 
 
 (28) Campbell v. Bowne, S Paige Ch., 34. 
 
 (29) I Daniel's Ch. Pr., 78; Shuttlesworth v. Hughey, 6 Rich. L 
 (S. Car), 329; 60 Am. Dec. 130. 
 
 (30) I Daniel's Ch. Pr., 78; Shuttlesworth v. Hughey, 6 Rich. L. 
 (S. Car), 329; 60 Am. Dec. 130. 
 
Infants. 123 
 
 friend, is inefficacious when it is filed after complainant reached 
 full age. (31) 
 
 An infant is as incapable of defending as of maintaining a 
 suit. If, therefore, a suit be brought against an infant, he 
 must defend by his guardian ad litem appointed by the court 
 for that purpose. (32) 
 
 (31) Moore v. Moore, 74 N. J. Eq., 733. 
 
 (32) Lang V. Belloff, 53 N. J. Eq., 298. 
 
 Practice on Appointment of Guardian Ad Litem. — On Applica- 
 tion on Behalf of Infant Defendant. For the purpose of having 
 a guardian appointed for an infant to answer and defend a suit, a peti- 
 tion may be presented by the infant, if above the age of fourteen years, 
 or if under that age, by his father, or some other friend in his behalf, 
 praying such appointment; an agreement expressing the assent of the 
 person petitioned for to accept the appointment, and also an affidavit or 
 affidavits that the petition and agreement were duly signed, and veri- 
 fying the age of the infant, shall accompany the petition. Chancery 
 rule 63. 
 
 When No Application is Made on Behalf of Infant Defendant. 
 When a bill is filed against an infant, or when, upon an abatement, any 
 infant shall by order of the court be made a defendant, and no appli- 
 cation shall be made on his behalf within four days next after the day 
 of appearance specified in the subpoena or order of publication for 
 the appointment of a guardian, the chancellor may on an application 
 on behalf of the complainant, by order, assign a guardian for the in- 
 fant, the same as if he had been brought into court for that purpose, 
 or make such other order as may appear most proper and advisable 
 in the premises ; but fifteen days' notice of such application must be 
 given to the infant, if of the age of fourteen years and resident within 
 this state, or, if under that age, or not a resident in this tate, to his 
 guardian appointed by the Orphans' Court, if any there be, and if no 
 such guardian, to the father of such infant, or if no father, then 
 to the mother and if no mother, to the person, if any, who stands 
 in loco parentis to the infant — ^provided such guardian, father or 
 mother be resident in this state ; which notice may be served at the time 
 of the service of the subpoena or at any time after. Chancery rule 64. 
 
 In Foreclosure Suits. In suits for the satisfaction of a mort- 
 gage, when an application shall be made for the appointment of a 
 guardian for an infant defendant, as provided for in the last preceding 
 rule, or when it shall appear by affidavit, to the satisfaction of the 
 chancellor, that notice cannot be served, as mentioned in that rule, 
 the Chancellor may, on the application of the complainant, appoint the 
 clerk of the court guardian ad litem for such infant, whose duty it 
 shall be, if no application shall be made on behalf of the infant for 
 the appointment of a guardian within the time allowed by law for such . 
 infant to answer, plead or demur to the bill, to enter an appearance 
 for the infant to the suit; after which the complainant may, if the 
 suit is against the infant alone, or the bill shall have been ordered 
 to be taken pro confesso against the other defendant or defendants, 
 take an order to refer the cause to a master to ascertain the truth 
 of the allegations of the complainant's bill, and to take an account of 
 what is due upon the complainant's mortgage, if anything, and also 
 upon any other encumbrance, the ampunt of which it may be necessary 
 
124 Parties. 
 
 It is the duty of the guardian ad litem to ascertain the legal 
 and equitable rights of his ward; and if a special answer is 
 necessary or advisable for the purpose of bringing the rights 
 of the infant properly before the court, it is his duty to put in 
 such an answer. If the infant is a mere nominal party, or has 
 no defense to the suit, and no equitable rights as against his 
 co-defendants which render a special answer necessary, the 
 general answer will be sufficient. (33) Whenever during the 
 progress of a cause the interests ,of the infant require it, the 
 court will direct the guardian ad litem to employ counsel ap- 
 proved by the court to represent him, and will order that such 
 counsel be compensated out of the infant's estate. (34) 
 
 The authority of a guardian ad litem and of the solicitor ap- 
 pointed by him expires upon the coming of age of the infant. 
 (35) The suit does not, however, abate by the infant defendant 
 becoming of full age during the pendency of the suit, but the 
 proper course is for the former infant to enter his appearance 
 by such solicitor as he may select. If he neglects to do so, the 
 proper course is for the complainant to apply to the court for 
 an order that he appoint a solicitor, in the same manner as in 
 case of the death, removal or suspension of the solicitor of 
 a defendant. (36) 
 
 Idiots and Lunatics. Idiots and lunatics sue by their 
 guardians upon inquisition found, or specially appointed. (37) 
 
 to ascertain, and if more encumbrances than one, to report their 
 several priorities ; and the complainant and every other person setting 
 up an encumbrance before the master, affecting the estate or interest 
 of such infant, shall prove his demand before the master, and the 
 master may, if he thinks proper so to do, examine the complainant or 
 other person setting up such demand, on oath or affirmation, to ascer- 
 tain the truth thereof, and shall report such examination, if any, and 
 all the proofs taken before him to the court ; and shall also inquire and 
 report whether, under the circumstances of the case, a sale of the 
 whole, or a part only, of the mortgaged premises is necessary, to be 
 made, and any other special matter which the master may deem proper 
 for the benefit of the infant; and if no exception to said master's report 
 shall be filed within four days after the filing of said report, the 
 complainant shall, without further notice or setting down such cause 
 for hearing, be entitled to a final decree. Chancery rule 65. 
 
 (33) Knickerbocker v. DeFreest, i Paige Ch., 304. 
 
 (34) Colgate v. Colgate, 23 N. J. Eq., 372, 
 
 (35) Lang v. Belloff, 53 N. J. Eq., 298. 
 
 (36) Campbell v. Bowne, S Paige Ch., 34. 
 
 (37) Norcom v. Rogers, 16 N. J. Eq., 484; Dorsheimer v. Rorback, 
 18 N. J. Eq., 438; Story's Eq. PI.,. section 65 ; I Daniel's Ch. Pr., 83-84. 
 
Idiots and Lunatics. 125 
 
 In such cases the suit is brought in the name of the lunatic, 
 stating that he sues by his guardian. (38) A suit in the court 
 of chancery may, however, by the special order of the court 
 under circumstances properly brought to its attention, be 
 maintained in favor of a lunatic by his or her next friend, 
 where the lunatic has not been so found upon inquisition nor 
 any guardian appointed. (39) If a bill be filed in behalf of a 
 lunatic by a next friend, without leave of the court, if the 
 lunatic is the sole complainant, the proper method of taking 
 advantage of such want of leave is by motion to take the bill 
 from the files. The propriety of an order authorizing such 
 a suit by a next friend may also be attacked in the same man- 
 ner. (40) If the lunatic be one of several complainants, the 
 proper method of attacking the authority of the next friend to 
 represent the lunatic is by demurrer. (41) If the interests of 
 the guardian of a person of unsound mind are adverse to those 
 of his ward, the latter must sue by the attorney-general or by 
 next friend. (42) 
 
 Idiots and lunatics defend a suit against them by their 
 guardian, who will be appointed their guardian ad litem as a 
 matter of course. (43) If a suit be brought against an idiot or 
 lunatic who has no guardian, a guardian ad litem will be ap- 
 pointed by the court on an application in the name of the 
 person of unsound mind. (44) The practice upon such applica- 
 tion is the same as in case of infant defendants. (45) It 
 is the duty of a complainant who files a bill against a person 
 known by him to be of unsound mind, without a committee 
 or guardian, to make known his incapacity to the court, and ask 
 for the appointment of a guardian ad litem. Any proceedings 
 
 (38) Gorhara v. Gorham, 3 Barb, ch., 23 ; i Daniel's Ch. Pr., 83 ; 
 Story's Eq. PL, section 64. 
 
 (39) Collins V. Toppin, 63 N. J. Eq., 381 ; Kidder v. Houston, 47 
 Atl., 336- 
 
 (40) Dorsheimer v. Rorback, 18 N. J. Eq., 438; Collins v. Toppin, 
 63 N. J. Eq., 381 ; Norcom v. Rogers, 16 N. J. Eq., 484. 
 
 (41) Palmer v. Sinnickson, 59 N. J. Eq., 530; Collins v. Toppin, 
 63 N. J. Eq., 381. 
 
 (42) Norcom v. Rogers, 16 N. J. Eq., 484; Story's Eq. PI., section 
 70. 
 
 (43) Story's Eq. PI., section 70; i Daniel's Ch. Pr., 176. 
 
 (44) I Daniel's Ch. Pr., 176. 
 
 (45) Ammon v. Wiebold, 61 N. J. Eq., 351 at page 355 ; see page 123, 
 supra. 
 
126 Parties. 
 
 in such a case taken without so informing the court will be 
 liable to be set aside or treated as a nullity, as the justice of 
 the case may require. (46) If, after bill filed, a party defendant 
 to such bill becomes of unsound mind, a guardian ad litem 
 for such defendant should be appointed and made a party to 
 the suit. (47) 
 
 Husband and Wife. Before the enactment of the Mar- 
 ried Woman's Acts, a married woman could neither sue nor be 
 sued except jointly with her husband. (48) The statute of 
 1852 (49) enacts that the real and per3onal property of any 
 married woman and the rents, issues and profits thereof, as 
 well as the wages and earnings thereafter acquired by any 
 married woman in any employment, occupation or trade in 
 which she is employed and which she carries on separately 
 from her husband, shall be her sole and separate property, as 
 though she were single. The act further provides that married 
 women may bind themselves by contract as though unmarried, 
 which contracts may be enforced at law or in equity by or 
 against such married woman in her own name apart from her 
 husband, provided that no married woman may become an 
 accommodation indorser, guarantor or surety, nor shall she 
 be liable on any promise to pay the debt or answer for the 
 default or liability of any other person. The act of 1876 (50) 
 provides that a married woman may maintain an action in her 
 own name, and without joining her husband, for breaches of 
 contract and for the recovery of all debts, wages, earnings, 
 moneys and all property, real and personal, which by the above 
 statutes is declared to be her separate property, and for all 
 damages thereto, and shall have in her own name the same 
 remedies for the recovery and protection of such property as 
 if she were a single woman. 
 
 It will be observed that the statute of 1852, while it termi- 
 nated the husband's interest in his wife's property, did not 
 authorize a married woman to maintain an action for the 
 recovery of her property. In such a suit it was necessary for 
 
 (46) Ammon v. Wiebold, 61 N. J. Eq., 351. 
 
 (47) Search v. Search, 26 N. J. Eq., no. 
 
 (48) Story's Eq. PI., section 61; McDermott v. French, 15 N. J. 
 Eq., 78; Pendleton v. Woodhouse, 24 N. J. Eq., 347. 
 
 (49) 3 Comp. St., page 3223, section i ; page 3224, sections 2, 3, 4 
 and 5. 
 
 (so) 3 Comp. Stat, page 3225; section 11. 
 
Married Women. 127 
 
 the wife to sue by her next friend, making her husband a party 
 defendant; (51) and a wife could not sue or be sued alone even 
 though she was living separate from her husband under a 
 deed of separation; the husband was required to be joined. (52) 
 Since the passage of section 11 of the Married Woman's 
 Act of 1876, a wife may bring a suit for the protection of her 
 property in her own name, without joining her husband as a 
 party to the suit. This statute enables a wife to sue as a feme 
 sole, but does not require her to do so. If she desires to make 
 her husband a party to the suit, she must follow the procedure 
 observed before the adoption of section 11, and sue by her next 
 friend, making her husband a defendant. (53) The husband 
 of a married woman is neither a necessary nor a proper party 
 complainant to a suit by a married woman for relief in respect 
 to her separate estate. (54) Thus, an interest in lands as a 
 tenant in common being a married woman's separate property, 
 she may maintain a suit to partition the lands in her own 
 name without joining her husband. (55) So she may bring 
 a suit for the specific performance of a contract to con- 
 vey land to her. (56) So she may sue in her own name, 
 without the intervention of a next friend, to recover an award 
 of costs, in a suit for a divorce a mensa ei thoro;{^y) and she 
 may sue in her own name for specific performance of a contract 
 to convey land to her, without joining her husband as a party. 
 (58) When a married woman is a party defendant in any 
 cause or proceeding, she may appear by solicitor and may, 
 without any special order giving leave for that purpose, file 
 any answer, plea, demurrer, or other pleading in her own name 
 and separately from her husband. (59) 
 
 (si) Johnson v. Vail, 14 N. J. Eq., 423; Barrett v. Doughty, 25 
 N. J. Eq., 379. Tunnard v. Littell, 23 N. J. Eq., 264. 
 
 (52) McD'ermott v. French, 15 N. J. Eq., 78; Pendleton v. Wood- 
 house, 24 N. J. Eq., 347. 
 
 (53) Bristol v. Skerry, 64 N. J. Exj., 624; Castner v. Sliker, 43 N. J. 
 Eq., 8; Young v. Young, 45 N. J. Eq., 27; Van Orden v. Van Orden, 
 41 Atl., 671. 
 
 (54) Bristol V. Skerry, 64 N. J. Eq!, 624; Tantum v. Coleman, 26 
 N. J. Eq., 128. 
 
 (55) Castner v. Sliker, 43 N. J. Eq., 8. 
 
 (56) Young V. Young, 4s N. J. Eq., 27. 
 
 (57) Van Orden v. Van Orden, 41 Atl., 671. 
 
 (58) Young V. Young, 4s N. J. Eq., 27. 
 
 (59) .Chancery rule 219. Since the above was written the act 
 of 1912 has been passed, providing that a married woman may sue or 
 
128 Parties. 
 
 Under the common law, after issue born alive and capable 
 of inheriting the estate, the husband acquired an estate of free- 
 hold which continued for his own life; this was termed an 
 •estate by the courtesy initiate during his wife's life, and be- 
 came consummate on her death. What the Married Woman's 
 Act did was to deprive the husband of a freehold during 
 the wife's life ; he no longer held a freehold estate in 
 possession. It did not affect the estate which he took after 
 her death ; upon that event he became entitled to a freehold 
 interest in possession during his own life. After issue born 
 alive, the husband has therefore in effect an estate in re- 
 mainder in his wife's land, which is as completely vested in 
 him as any vested estate in remainder for life is ever vested in 
 any remainderman. It would therefore seem clear that after 
 issue born the husband has such an interest as would make 
 him a necessary party to any suit which might touch or affect 
 his interest in his wife's land after her death. (60) So the hus- 
 band is a necessary party defendant, in a suit against the wife 
 to set aside a deed to her; (61) and so a husband is a proper 
 party to a suit brought by the wife to protect her lands. It is, 
 however, a misjoinder to make him a complainant with his 
 wife; if he is made a party, it should be as defendant. (62) 
 
 Corporations. The power to sue and be sued is a right 
 which is inseparably incident to every corporation. (63) The 
 right to recover for an injury sustained by a corporation is not 
 in the stockholders, but in the corporation itself ; suits by cor- 
 porations must therefore be brought in the corporate name. (64) 
 Thus, a suit against the directors of a corporation to recover 
 losses sustained by the corporation by the misconduct of the 
 directors must be brought in the name of the corporation. (65) 
 
 be sued without joining her husband in any case whatsoever in 
 which he would be an unnecessary party if he were not her husband. 
 P. L., 1912, p. 416. 
 
 (60) Doremus v. Paterson, 69 N. J. Eq., 18S; affinned ib. 775; Leach 
 V. Leach, 69 N. J. Eq., 620. 
 
 (61) Decker v. Panz, 54 At!., 137; Bristol v. Skerry, 64 N. J. Eq., 
 624. 
 
 (62) Bristol V. Skerry, 64 N. J. Eq., 624; Tantum v. Coleman, 26 
 N. J. Eq., 128. 
 
 (63) I Black Com., 475 P. L., 1896, p. 277, 
 
 (64) Daniel's Ch. Pr., 21 ; Nichols v. Williams, 22 N. J. Eq., 63. 
 (6s) Brown v. Van Dyke, 8 N. J. Eq., 795; Williams v. Halliard, 
 
 38 N. J. Eq., 373; Reversed, 40 N. J. Eq., 189; Wetherbee v. Baker, 
 
Corporations. 129 
 
 So in a suit by a judgment creditor against stockholders of a 
 corporation to compel payment of their unpaid subscriptions 
 to the capital stock, the corporation is a necessary party. (66) 
 So the president of a corporation cannot bring suit in his own 
 name to ^enforce an agreement signed by him as president, 
 and entered into on behalf of the corporation; such suit must 
 be brought in the name of the corporation. (67) 
 
 In suits against corporations, directors and stockholders are 
 neither necessary nor proper parties unless discovery is sought 
 from them. (68) Where the question is whether an act per- 
 formed by the directors of a corporation in their separate corpo- 
 rate capacity be within or without their power, the corporation 
 is a necessary party to the suit ; since the matter to be adjudged 
 is the extent of its authority, the corporation has a right to 
 be heard in its proper person. (69) 
 
 If a corporation neglects or refuses to bring a suit to en- 
 force a right of the corporation, suit may be brought by credi- 
 tors or stockholders ; but in such case the corporation, or, if it 
 be insolvent, its receiver, is a necessary party. (70) Such a 
 suit may be brought by a creditor or a stockholder in his 
 own name, without first requesting the officers of the corpora- 
 tion to sue, where it is made to appear that if such request 
 had been made, it would have been refused, or that if granted, 
 the litigation would necessarily have been subject to the con- 
 trol of persons opposed to its success. So the directors of a 
 corporation need not be asked to bring a suit in its name 
 when a majority of them are among those against whom re- 
 lief is sought. (71) Where the directors of a corporation are 
 themselves the wrongdoers, or the partizans of the wrong- 
 doers, they are incapacitated from acting as the representatives 
 
 35 N. J. Eq., 501; Chester v. Halliard, 36 N. J. Eq., 313; Conway v. 
 Halsey, 44 N. J. L., 462. 
 
 (66) Wetherbee v. Baker, 35 N. J. Eq., 501. 
 
 (67) Nichols V. WilHams, 22 N. J. Eq., 63. 
 
 (68) Terhune v. Midland R. R. Co., 38 N. J. Eq., 423- 
 
 (69) Morgan v. Rose, 22 N. J, Eq., 583. 
 
 (70) Chester v. Halliard, 34 N. J. Eq., 341 ; aMrmed, 36 N. J. Eq., 
 313; Williams v. Halliard, 38 N. J. Eq., 373; reversed, 40 N. J. Eq., 
 189; Ackerman v. Halsey, 37 N. J. Eq., 356; afHrmed, 38 N. J. Eq., 
 501 ; Knoop v. Bohmrich, 49 N. J. Eq., 82 ; affirmed, 50 N. J. Eq., 485 ; 
 Stevens v. U. S. Steel Corporation, 68 N. J. Eq., 373; Groel v. United 
 Electric Co., 70 N. J. Eq., 616; Barry v. Moeller, 68 N. J. Eq., 483. 
 
 (71) Appleton V. American Malting Co., 54 Atl., 454. 
 
130 Parties. 
 
 of the corporation in any litigation wliich may be instituted 
 for the correction of the wrong which it is alleged they have 
 committed or approved. (72) 
 
 Receivers. Upon the appointment of a receiver for a 
 corporation, the title to the effects of such corporation and 
 the authority to settle its affairs is vested exclusively in the 
 receiver, (73) who has full power and authority to institute 
 suits at law or in equity for the recovery of any estate, prop- 
 erty, damages, or demands existing in favor of the corpora- 
 tion; (74) all suits for the recovery of the property, estate 
 or demands of an insolvent corporation must therefore be 
 brought in the name of the receiver. (75) A receiver will, 
 upon application by him, be substituted as a party defendant 
 or complainant in the place and stead of the corporation, in 
 any suit or proceeding at law or in equity which was pending 
 at the time of his appointment ;( 76) but actions pending at 
 the time of the appointment of the receiver may go on to judg- 
 ment without making the receiver a party. It is the privilege 
 of the receiver to be substituted for the corporation, if he so 
 desires'; (77) and an objection by a third party to the bill for 
 want of proper parties will not be sustained. (78) If the re- 
 ceiver refuses to bring suit to recover claims, demands or 
 property of the corporation, a creditor, stockholder, or other 
 person aggrieved may bringj the suit, making the receiver a 
 party defendant. (79) 
 
 Conversely, the receiver is a necessary party defendant to 
 all suits affecting the ownership of the property belonging to 
 the corporation, as well as to all suits by which he will neces- 
 
 (72) Brown v. Van Dyke, 8 N. J. Eq., 79S ; Knoop v. Bohmrich, 49 
 N. J. Eq., 82; aMrmed, 50 N. J. Eq., 485. 
 
 (73) P. L., 1896, p. 299. 
 
 (74) P. L., i8g6, p. 299. 
 
 (75) Smith v. Trenton Delaware Falls Co., 4 N. J. Eq., 505; Min- 
 chin V. Second National Bank, 36 N. J. Eq., 436; Werner v. Murphy, 
 60 Fed. Rep., 769. 
 
 (76) P. L., 1896, p. 302, section 79. 
 
 (77) Cooper V. Philadelphia Worsted Co., 57 Atl., 733; Ennis v. 
 Eden Mills Paper Co., 48 Atl., 610; Willink v. Morris Canal Co., 
 4 N. J. Eq., 377. 
 
 (78) Willink V, Morris Canal Co., 4 N. J. Eq., 377. 
 
 (79) Chester v. Halliard, 34 N. J. Eq., 341 ; Ackerman v. Halsey, 
 
 37 N. J. Eq., 3S6; affirmed, 38 N. J. Eq., 501; Williams v. Halliard, 
 
 38 N. J. Eq., 373 ; see also "Corporations," page 128, supra, "Assignees 
 for benefit of creditors," page 132, infra. 
 
Receivers. 131 
 
 sarily be afifected as such receiver. (80) So a receiver is a 
 necessary party to a petition by the state for an injunction to 
 restrain the further exercise of any franchise of the corpora- 
 tion because of its' non-payment of the state franchise tax; 
 (81) and so if the effect of granting the prayer of a bill will 
 be to relieve a receiver from a portion of his duties, and to 
 effect pi^o tanto a removal of the receiver, he is a necessary 
 party. (82) 
 
 Before a suit may be brought against a receiver, an order 
 permitting such suit to be brought must first be obtained from 
 the court appointing the receiver. (83) In cases where the 
 receiver is appointed by the court of chancery, such order may 
 be obtained upon application by petition to a vice-chancellor, 
 upon five days' notice to the receiver. (84) 
 
 A receiver has no extra-territorial jurisdiction, and cannot 
 as a matter of strict right go into another state and there sue 
 on a debt or other claim due to the person or estate subject 
 to his receivership; but on principles of comity, the receiver of 
 a foreign corporation who is clothed with authority to take the 
 designated property will be permitted by the courts' of New 
 Jersey to maintain a suit in this state to recover possession of 
 property of the corporation situate within this state, where 
 there are no domestic creditors to be protected, and where the 
 rights of citizens of this state are not likely to be prejudiced 
 thereby. (85) Thus, the receiver of partnership assets, ap- 
 pointed by a competent court of another state, may maintain a 
 suit in this state to set aside a sale of partnership assets 
 situate in this state made by one partner in fraud of other 
 partners, where there are no creditors of the partnership, and 
 the only person to be benefited is the partner who was de- 
 frauded; (86) and a foreign receiver may maintain a suit in 
 
 (80) Kirkpatrick v. Corning, 38 N. J. Eq., 234; Kirkpatrick v. 
 McElroy, 41 N. J. Eq., 539. 
 
 (81) Mathers Sons Co.'s Case, 52 N. J. Eq., 607. 
 
 (82) Smith V. Trenton Delaware Falls Co., 4 N. J. Eq., 505. 
 
 (83) Lehigh Coal Co. v. C. R. R. of N. J., 38 N. J. Eq., 17S ; Van- 
 derbilt v. Central R. R. Co., 43 N. J. Eq., 669 ; Mather's Sons Co. Case, 
 52 N. J. Eq., 607. 
 
 (84) Chancery rule No. 141. 
 
 (85) Bidlock V. Mason, 26 N. J. Eq., 230; Hurd v. Elizabeth, 41 
 N. J. L., i; Irwin v. Granite State Provident Assn., 56 N. J. Eq., 
 244 ; National Trust Co. v. Miller, 33 N. J. Eq., IS5- 
 
 (86) Soberneimer v. Wheeler, 45 N. J. Eq., 614. 
 
132 Parties. 
 
 the courts of New Jersey, if he prosecutes solely in behalf of 
 a citizen of this state, even though a claim of otJher citizens of 
 this state may be injuriously affected thereby. (87) 
 
 Assignees for Benefit of Creditors. An assignee for the 
 benefit of creditors stands in the place of the assignor, and 
 should therefore be made a party to all suits concerning the 
 estate assigned to him. (88) So assignees have power to sue 
 for and recover in their own name everything belonging or 
 appertaining to the estate of their assignor. Assignees are 
 also the representatives of the creditors of their assignors, and 
 have the same power to set aside conveyances, and to recover 
 or reach assets for the benefit of the creditors of such assignor, 
 as a creditor of said assignor would have who had recovered 
 a judgment against said assignor at the date of said assign- 
 ment. (89) So the assignee is a necessary party defendant to 
 a suit for the foreclosure of a chattel mortgage given by the 
 assignor. (90) , 
 
 If an assignee for the benefit of creditors refuses or unrea- 
 sonably neglects to take proceedings to set aside conveyances 
 by the assignor in fraud of his creditors, such suit may be 
 instituted by a creditor for the benefit of himself and such 
 other creditors as against whom such conveyances are void ; 
 in such suit the assignee is a necessary party defendant. (91) 
 But before a creditor can maintain such an action, he must not 
 only give notice to the assignee to take such proceedings, but 
 must admit to him facts tending to show that the transfers 
 were fraudulent and that a reasonable ground for a contest 
 exists ; and if the assignee declities to act on the ground that 
 there are no funds with which to make the contest, the credi- 
 tor must show that he offered to supply the necessary funds or 
 
 (87) Falk V. James, 49 N. J. Eq., 484; Reversed in part, 50 N. J. 
 Eq., 468. 
 
 (88) P. L., 1899, p. 152, section 15. 
 
 (89) P. L., 1899, p. 152, section 15. Pillsbury v. Kingon, 33 N. J. 
 Eq., 28"; Moore v. Williamson, 44 N. J. Eq., 496; Smith's administrator 
 V. Wood, 42 N. J. Eq., 563. 
 
 (90) Watson V. Rowley, 63 N. J. Eq., 195. 
 
 (91) See V. Cole, 44 N. J. Eq., 318; reversed, 45 N. J. Eq., 779; 
 Kalmus v. Ballin, 52 N. J. Eq., 290; Hamlen's administrator v. Bennett, 
 52 N. J. Eq., 70; McLaughlin v. Van Keuren, 21 N. J. Eq., 379; 
 Loucheim v. Casperson, 61 N. J. Eq., 529. 
 
Assignees. 133 
 
 to indemnify him against loss, or that the excuse of want 
 of funds was false. (92) 
 
 If, however, the assignee is so implicated in the fraud that 
 he is incapacitated from acting as the representative of the 
 creditors', the latter may institute proceedings in their own 
 behalf without notice to him 1(93) as, for instance, where the 
 assignee is the brother of the assignor, and it is his duty to 
 attack the assignor and others of his brothers as fraud doers, 
 and he has evinced an inclination to favor the assignor to the 
 detriment of the creditors. (94) But only such creditors as 
 have either presented their claims to the assignee in the man- 
 ner provided by the statute (95) or have reduced their claims 
 to judgment are entitled to demand performance of the as- 
 signee's duty, and in default thereof to bring suit in their own 
 name. (96) 
 
 (92) Kalmus v. Ballin, 52 N. J. Eq., 290. 
 
 (93) Kalmus v. Ballin, 52 N. J. Eq., 290; Terhune v. Sibbald, SS 
 N. J. Eq., 236; LeGendre v. Goodridge, 46 N. J. Eq., 419; affirmed, 48 
 N. J. Eq., 308. 
 
 (94) White V. Davis, 48 N. J. Eq., 22 ; affirmed, 49 N. J. Eq., 567. 
 
 (95) Kalmus v. Ballin, 52 N. J. Eq., 290, Loucheim v. Casperson, 
 
 61 N. J. Eq., 529. 
 
 (96) White V. Davis, 48 N. J. Eq., 22; affirmed, 49 N. J. Eq., 567. 
 
134 Parties. 
 
 OBJECTIONS FOR NON-JOINDER OF PARTIES. 
 
 Where it appears upon the face of a bill that necessary par- 
 ties have been omitted, such defect may be taken advantage 
 of either by demurrer, or by motion under the 213th rule;(i) 
 but it is no defect if persons who are proper but not necessary 
 parties are not joined in the bill, and a demurrer founded upon 
 such non-joinder will be overruled. (2) If upon the true con- 
 struction of an agreement, set out in the bill, subscribers to it, 
 who are not made defendants, should have been joined as 
 such, the defect of parties may be taken advantage of by 
 demurrer, though the complainant in his bill has put a construc- 
 tion on the agreement which would make it necessary to make 
 such subscribers defendants. (3) So on general demurrer to 
 the whole bill for the want of parties defendant, if any one 
 of the several claims on which the bill is based appears in the 
 bill to be a claim against the defendant alone, the demurrer 
 must be overruled. (4) 
 
 A demurrer for want of parties must be special, and show 
 who are the proper parties, in such manner as to point out 
 to the plaintiff the defect in his bill ; ( 5 ) but under a demurrer 
 for want of equity, a demurrer ore tenus for want of parties 
 may be made at the argument, (6) even though the general 
 demurrer for want of equity be overruled. (7) 
 
 If a defendant demur to the bill for want of parties, the 
 complainant may amend of course at any time before the next 
 term after filing the demurrer, upon payment of costs to be 
 taxed; (8) and if a demurrer for want of parties be sustained, 
 
 (i) Wilson V. Bellows, 30 N. J. Eq., 282; Melick v. Melick, 17 
 N. J. Eq., 156; Black v. Shreeve, 7 N. J. Eq., 440-456; Wilson v. 
 American Palace Car Co., 67 N. J. Eq., 262; and see "Motion to strike 
 out," page 287, infra. 
 
 (2) Bruen v. Crane, 2 N. J. Eq., 347; Vreeland v. Loubat, 2 N. J. 
 Eq., 104; Berryman v. Graham, 21 N. J. Eq., 370; Johnes v. Out- 
 water, ss N. J. Eq., 398; Dorsheimer v. Rorback, 23 N. J. Eq., 
 46; affirmed, 25 N. J. Eq., 516. 
 
 (3) Black V. Shreeve, 7 N. J. Eq., 440. 
 
 (4) Trenton Passenger R. R. Co. v. Wilson, S3 N. J. Eq., 577. 
 
 (5) O'liva V. Bunaforza, 31 N. J. Eq., 395; i Daniel's Ch. Pr., 289. 
 
 (6) Stillwell V. McNeely, 2 N. J. Eq., 30s; Johnes v. Cutwater, SS 
 N. J. Eq., 398-408. 
 
 (7) Barrett v. Doughty, 25 N. J. Eq., 379. 
 
 (8) Chancery rule 70. 
 
Objections for Non-Joinder. 135 
 
 the court may permit complainant to amend his bill by add- 
 ing the necessary parties. (9) 
 
 If the defect of parties does not appear upon the face of the 
 bill, such objection may be taken by plea or answer; (10) but 
 if objection is taken by way of answer, such objection will not 
 avail a defendant who has proceeded to hearing upon bill and 
 answer without taking proof of the interest of such party in 
 the subject matter of the suit, since when a cause is set down 
 for hearing on bill and answer, the answer is to be taken as 
 true in all matters responsive to the bill, but is no evidence 
 of matters set up by way of confession and avoidance. Such 
 matter, to be available to the defendant, must be proved by 
 testimony. (11) 
 
 It is the aim of courts of equity to do complete justice by 
 deciding upon and settling the rights of all persons interested 
 in the subject matter of the suit ; and therefore, if it be essen- 
 tial to enabling the court to make a complete and final disjKisi- 
 tion of the subject matter of the controversy, a necessary party 
 may be added at any stage of the cause. So an objection for 
 want of necessary parties may be taken advantage of at the 
 final hearing, (12) or at the hearing of a general demurrer to 
 the equity of the bill; (13) and the court may even allow new 
 parties to be added after the testimony is closed, and after 
 the final hearing. (14) Such an objection may even be urged 
 before the court of appeals, even though no objection for 
 want of parties was made during the progress of the cause in 
 the court of chancery, and though such defect is not made a 
 ground of appeal ; it is not, however, for the protection of the 
 defendant that the Court of Appeals will entertain such an 
 objection, but because that court cannot, with the parties there 
 present, make a decree which will finally and properly dispose 
 f 
 
 (9) Plumley v. Plutnley, 8 N. J. Eq., 511; l Daniel's Ch. Pr. 287. 
 
 (10) Story's Eq. PI., section 236; i Daniel's Ch. Pr. 287; Booraem v. 
 Wells, 19 N. J. Eq., 87; Van Dyke v. Van Dyke, 26 N. J. Eq., 180; 
 Wilson V. American Palace Car Co., (i^ N. J. Eq., 262 and see "Amend- 
 ment of Pleadings," page 317, infra. 
 
 (11) Van Dyke v. Van Dyke, 26 N. J. Eq., 180. 
 
 (12) Campbell v. Campbell, 8 N. J. Eq., 738; Dunn v. Seymour, 
 II N. J. Eq., 220; Wilson v. American Palace Car Co., 67 N. J. Eq., 
 262. 
 
 (13) Wilson V. American Palace Car Co., 67 N. J. Eq., 262. 
 
 (14) Henry v. Brown, 8 N. J. Eq., 245; Seymour v. Long Dock Co., 
 17 N. J. Eq., 169. 
 
136 Parties. 
 
 of the controversy. (15) When, however, a cause has reached 
 the Court of Appeals, the bill cannot be amended by adding 
 new parties in that court ; but under such circumstances, the 
 court will reverse the decree, and remit the record to the court 
 below that the necessary parties may be added. (16) 
 
 When an objection for want of necessary parties is taken 
 for the first time at the hearing, the disposition of such objec- 
 tion rests very much in the discretion of the court, to be exer- 
 cised in view of the eflfect of the decree upon the rights of the 
 omitted party, and the value of the decree to the complainant. 
 Such an objection will not prevail unless the omitted parties 
 are necessary to the final determination of the cause. (17) So 
 an objection for want of a party defendant, taken at the hear- 
 ing, will not be sustained where, so far as complainant's rights 
 are concerned, the interests of such omitted party are repre- 
 sented by the defendants, and the presence of such absent party 
 is not necessary to a decree against the objectors. (18) And 
 so where the only eflfect of the absence of the omitted party 
 is to render the defendant liable to a revival of the litigation, 
 the court may in its discretion refuse to sustain such objec- 
 tion at the hearing. (19) 
 
 So solicitous is the court that exact justice be done, and that 
 the controversy submitted to it be finally disposed of, that if at 
 any stage of the cause there appears to, be a lack of a necessary 
 party, without whose presence a decree cannot be pronounced 
 which will finally and properly dispose of the controversy, even 
 though the parties to the suit neglect to take advantage of such 
 defect, the court will of its own motion direct the cause to stand 
 over for a period in order that such omitted party may be 
 
 (is) McLaughlin v. Van Keuren, 21 N. J. Eq., 379; Berryftian v. 
 Graham, 21 N. J. E^., 370. 
 
 (16) Cutler V. Tuttle, 19 N. J. Eq,, S49; N. J. Franklinite Co. v. 
 Ames, 12 N. J. Eq., 507 ; McLaughlin v. Van Keuren, 21 N. J. Eq., 
 379; Stevens v. U. S. Steel Corporation, 68 N. J. Eq., 373-377. 
 
 (17) Van D'oren v. Robinson, 16 N. J. Eq., 256; Wood v. Stover, 
 28 N. J. Eq., 248 ; Winans v. Graves, 43 N. J. Eq., 263 ; Cutler v. Tuttle, 
 19 N. J. Eq., 549; Wilson v. American Palace Car Co., 67 N. J. Eq., 
 262. 
 
 (18) Swallow V. Swallow. 27 N. J. Eq., 278. 
 
 (19) Cutler V. Tuttle, 19 N. J. Eq., 549; Voorhees v. Melick, 25 N. J. 
 Eq., 523- 
 
Objections for Misjoinder. 137 
 
 brought in, and may order that if this be not done within the 
 period named the bill be dismissed. (20) 
 
 OBJECTIONS FOR MISJOINDER OF PARTIES. 
 
 This subject is fully considered in connection with the chap- 
 ter on multifariousness. (21) 
 
 (20) Reed v. Reed, 16 N. J. Eq., 248; Booraem v. Wells, 19 N. J. Eq., 
 87 ; Armstrong v. Armstrong, 19 N. J. Eq., 357 ; Traphagen v. Levy, 45 
 N. J. Eq., 448; Wooster v. Cooper, 56 N. J. Eq., 759; Kempton v. 
 Bartine, 59 N. J. Eq., 149 ; affirmed, 60 N. J. Eq., 41 1 ; Haberman v. 
 Kaufer, 60 N. J. Eq., 271 ; Van Keuren v. McLaughlin, 21 N. J. Eq., 
 163 ; Reversed ib. 379 ; Stevens v. U. S. Steel Corporations, 68 N. J. Eq., 
 273-377 't Wilson v. American Palace Car Co., 67 N. J. Eq., 262; Ball 
 v. Ward, 73 N. J. Eq., 440. 
 
 (21) See "Multifariousness," page 163, infra. 
 
138 Bills in Equity. 
 
 CHAPTER II 
 BILLS IN EQUITY. 
 
 Definition and Classification. A suit in the court of 
 Chancery is instituted by filing a bill stating the subject matter 
 of complaint and praying a relief adequate to the case made 
 out. When jurisdiction is conferred by statute upon the Court 
 of Chancery, without provision made for the kind of pleading 
 by which the power of the court is to be invoked, a bill of 
 complaint is the proper method of procedure. ( i ) No sub- 
 poena or other process for appearance will issue- until after the 
 bill shall have been filed. (2) 
 
 Bills in equity may be divided into three classes; Original 
 Bills, which relate to some matter not before litigated in the 
 court by the same persons standing in the same interests; 
 Bills not Original, either in addition to or a continuance of an 
 original bill or both; as for example supplemental bills (3), 
 bills of revivor (4), bills for the purpose of cross litigation, 
 such as cross bills ;(5) and Bills of Review. (6) These last 
 are often called bills in the nature of original bills. Original 
 bills have been again divided into those praying relief and those 
 not praying relief. A bill praying relief may be either one 
 praying the decree or order of the. court touching some right 
 claimed by the person exhibiting the bill in opposition to some 
 right claimed by the persons against whom the bill is exhibited, 
 or a bill of interpleader, (7) where the person exhibiting the bill 
 claims no right in opposition to the rights claimed by the per- 
 sons against whom the bill is exhibited, but prays the decree 
 of the court touching the rights of those persons. Original 
 bills not praying relief may be either bills to perpetuate testi- 
 mony or bills for discovery of facts resting within the knowl- 
 edge of the person against whom the bill is exhibited, or of 
 deeds, writings, or other things in his custody. (8) 
 
 (i) Salem v. State, 76 N. J. Eq., 264. 
 
 (2) Chancery Act, section 3, page 2, supra. 
 
 (3) See page 187, supra. 
 
 (4) See page 238, supra. 
 
 (5) See page 19s, supra. 
 
 (6) See page 244, supra. 
 
 (7) See page 206, supra. 
 
 (8) See page 422, infra. 
 
Analysis op Bills. 139 
 
 Analysis of Bills. A bill is usually described as consist- 
 ing of nine parts ; The Address, The Introduction, The Premi- 
 ses or Stating Part, The Confederating Part, The Charging 
 Part, The Averment of Jurisdiction, The Interrogating Part, 
 The Prayer for Relief, and The Prayer for Process. This 
 classification is that of Lord Redesdale, and is followed by 
 most writers upon this subject; (9) but the mere fact that 
 the frame of a bill is unusual and without a precedent does 
 not alone constitute an objection to the relief sought, if it can 
 be supported upon principle. (10) 
 
 The Address. Bills in chancery were anciently addressed 
 to the person who had the actual custody of the great seal at 
 the time the bill was filed. (11) In modern practice in the 
 United States, the address of the bill is to the court from 
 which it seeks relief; thus in New Jersey bills in Chancery 
 are addressed "To the Honorable Edwin R. Walker, Chan- 
 cellor of the State of New Jersey." In case the Chancellor 
 is a party to or interested in any suit, the address should be 
 to the "Chancellor of the State of New Jersey" without giving 
 his individual name. (12) 
 
 The Introduction. The introduction contains the names 
 and description of the persons exhibiting the bill, with their 
 places of abode and the character in which they sue. (13) The 
 object in requiring the residence or abode of the complainant 
 is that the court and the defendant in the suit may know where 
 to resort to compel obedience to any order or process of the 
 court, and particularly for the payment of any costs which 
 may be awarded against the complainant. In some of the 
 older text books it is stated that a demurrer will lie where 
 
 (9) Mitf. Eq. PI., 49. 
 
 \\)J iviiu. J:.q. J. 1., 4y. 
 
 (10) Yauger v. Skinner, 14 N. J. Eq., 389. 
 
 (11) Mitf. Eq. PI. 49; I Daniel's Ch. Pr., 357. 
 
 (12) Any matter or cause in which the chancellor may be interested 
 may be referred to a vice-chancellor. Chancery act, section 96, page 78, 
 supra. In any suit commenced in which the chancellor may be a 
 party, or may be interested, an order shall be made requesting a vice- 
 chancellor to hear the same and all proceedings therein and to advise 
 the chancellor what orders and decree to make therein and in the 
 process, pleadings, orders and other proceedings in suits to which he 
 may be a party, the chancellor, when referred to as such, shall be 
 designated by his name of office only. Rule 160. 
 
 (13) I Daniel's Ch. Pr., 357; Story's Eq. PI., 20. 
 
140 Bills in Equity. 
 
 the residence of the complainant is not set out in the bill, or 
 is not truly stated; but the modern practice appears to be to 
 apply to the court for an order that the complainant give secur- 
 ity for costs. (14) In New Jersey the statute requires that a 
 non-resident complainant shall, before issuing process to ap- 
 pear, file a bond in the sum of $150 as security for costs. The 
 statute further provides that if complainant neglects to file 
 such bond, the suit may be stayed until such bond be filed. (15) 
 
 When a complainant sues as executor, administrator or 
 trustee, good pleading requires that he should so describe him- 
 self in this part of the bill. If, however, the bill in its body 
 sets forth fully facts which give the complainant a right as 
 executor, trustee or in any other special capacity so that the 
 court upon these allegations can give the relief required, it 
 will be sufficient to bring him before the court in that capac- 
 ity. (16) Where a complainant sues on behalf of himself and 
 others of a similar class, as in a creditor's bill, it should be so 
 stated in this part of the bill. (17) But when a bill is filed by a 
 trustee to foreclose a mortgage for a large amount, where the 
 beneficiaries are many in number, it is not necessary that it 
 should appear on the face of the bill, in order to enable the 
 trustee to sue in his own name, that the persons interested 
 could not be joined without great inconvenience. (18) 
 
 Premises or Stating Part. The third part of a bill is 
 called the premises or stating part and contains the case of 
 the complainants. 
 
 There are probably few rules of pleading more firmly estab- 
 lished than the requirement that every material fact which it 
 is necessary for the complainant to prove in order to establish 
 the right he asks must be alleged in the premises of his bill 
 with fullness and particularity, and such charges must be clear, 
 
 (14) Simpson v. Burton, i Beav., 556; Howe v. Harvey, 8 Paige, 
 73; I Daniel's Ch. Pr., 358. 
 
 (is) Chancery Act, section 8; see page 8, supra. 
 
 (16) Evans v. Evans, 23 N. J. Eq., 71; Ransom v. Geer, 30 N. J. 
 Eq., 249; Matthews v. Hoagland, 48 N. J. Eq., 455; Evans v. Evans, 
 57 Atl. Re., 872, and see "prayer for process," page i.'^Q, infra. 
 
 (17) I Daniel's Ch. Pr., 360; Willink v. Morris Canal & Banking 
 Co., 4 N. J. Eq., 377. 
 
 (18) Willink V. Morris Canal & Banking Co., 4 N. J. Eq., 377. 
 
The Stating Part. 141 
 
 certain and positive. (19) No charge or statement in general 
 vague form will take the place of an averment of the substan- 
 tial necessary facts; as Chief Justice Beasley said in Stevens &• 
 Condit Transportation Compa>i'iy vs. Central R. R. of N. I. 
 (20), where the defendant demurred to charges that defend- 
 ant was "unlawfully" doing this and that, "neither adjectives 
 nor adverbs, no matter how numerous and sonorous can fill 
 the place of substantial statements." The rights of the several 
 parties, the injury complained of, and every material fact, 
 as to time, place and manner which it is necessary for a com- 
 plainant to prove to establish his right to the relief he asks, 
 must be alleged in the premises of the bill with reasonable 
 fullness and particularity. (21) But a bill of complaint is suffi- 
 cient if it states the legal effect of complainant's claim. (22) 
 
 The framing of this portion of the bill is of the greatest 
 importance, as the complainant must recover, if at all, upon 
 the case made by his bill. It is as important that the rule 
 that the allegata and probata must agree with . reasonable cer- 
 tainty should be adhered to in a court of equity as it is in a 
 court of law, and a complainant will not be permitted to make 
 one case by his bill and another by his proofs. The defendant 
 has a right, before answering, to be informed plainly and dis- 
 tinctly, by the bill, of the complainant's cause of action. When 
 proofs are produced, the defendant is only required to meet 
 such of the complainant's proofs as tend to establish the cause 
 of action alleged in the bill. Any other rule would render 
 pleadings useless. (23) 
 
 (19) Smith V. Wood, 42 N. J. Eq., 563; aMrmed, 44 N. J. Eq., 603; 
 Graham v. Spence, 71 N. J. Eq., 183 ; Hageman v. Brown, 76 N. J. Eq., 
 126; Schuler v. Southern Iron & Steel Company, 75 Atl. Rep., 552. 
 
 (20) 33 N. J. L., 229. 
 
 (21) Rawnsley v. Trenton Mut. Life Ins. Co., 9 N. J. Eq., 9S;-Chap- 
 man v. Hunt, 14 N. J. Eq., 149; Rorback v. Dorsheimer, 25 N. J. Eq., 
 516; Joyce V. Hains, 33 N. J. Eq., 99; New York, Susquehanna & 
 Western R. R. v. Lawton, 35 N. J. Eq., 386; Brokaw v. Brokaw, 41 N. J. 
 Eq., 21S; Smith v. Wood, 42 N. J. Eq., 563; aMrmed, 44 N. J. Eq., 603; 
 Bradley & Currier Co. v. Berns, 51 N. J. Eq., 437; Wolters v. Schrafft, 
 52 Atl., 694. 
 
 (22) Riley v. Hodgkins, S7 N. J. Eq., 278. 
 
 (23) Smith V. Axtell, I N. J. Eq., 494; Hopper v. Sisco, 5 N. J. 
 Eq., 343 ; Andrews v. Farnham, 10 N. J. Eq., 91 ; Parsons v. Heston, 
 II N. J. Eq., iss; Howell v. Sebring, 14 N. J. Eq., 84; Marshman v. 
 Conklin, 21 N. J. Eq., 546; Marsh v. Mitchell, 26 N. J. Eq., 497; Ja- 
 cobus V. Mut. Benefit Life Ins. Co., 27 N. J. Eq., 604; Wilson v. 
 Cobb, 28 N. J. Eq., 177; Rev. 29 N. J. Eq., 361; Stucky v. Stucky, 
 
14:2 Bills in Equity. 
 
 The rules of pleading in a Court of Equity are not so tech- 
 nical and precise as in courts of law. The powers of the court 
 and the modes of administering relief authorize and require 
 greater liberality. Still, when principles have by repeated 
 adjudication become settled, it is quite as important that these 
 principles should be preserved in this as in any other court, 
 
 (24) and in considering the sufficiency Oif a bill in equity, the 
 court will not accept the conclusion drawn by the pleader, 
 but will determine for itself the legal force of the facts' alleged. 
 
 (25) It is manifestly impossible to lay down any fixed test 
 as to what constitutes a sufficient degree of certainty, as each 
 case must in a large measure depend upon its own circum- 
 stances. (26) 
 
 The general rule is that such degree of certainty must be 
 adopted as will distinctly and plainly inform the defendant of 
 the nature and foundation of the claim made against him, 
 as will notify him what he has said or done which gives' his 
 adversary a right of action against him, and will fully inform 
 him of the case he is called upon to answer. (27) In other 
 words, all the facts essential to show the complainant's right 
 to relief must be averred in the bill with certainty, clearness 
 and positiveness ; they must not be left to inference. The com- 
 plainant must make a case by his bill which, if admitted or 
 proved, will entitle him to a decree. (28) So where complain- 
 
 30 N. J. Eq., 546; Lehigh Valley R. R. v. McFarlan, 30 N. J. Eq., 
 180; Rev. 31 N. J. Eq., 706; Parker v. Snyder, 31 N. J. Eq., 164; 
 affirmed, 32 N. J. Eq., 827; Watkins v. Mulligan, 37 N. J. Eq., 43s; 
 Riddle v. Keller, 61 N. J. Eq., 313; Banks v. Weaver, 48 Atl., 5x5. 
 
 (24) Marselis v. Morris Canal Co., i N. J. Eq., 31 ; Ransom v. 
 Geer, 30 N. J. Eq., 249. 
 
 (25) 5chuler v. Southern Iron & Steel Co., 75 Atl., 552; and by a 
 well settled rule of equity pleading all averments are to be' construed 
 most strongly against the pleader ; Trustees v. Taylor, 30 N. J. Eq., 625. 
 
 (26) Muller v. Muller, 76 N. J. Eq., 158. 
 
 (27) Search v. Search, 27 N. J. Eq., 137; Mut. Life Ins. Co. v. 
 Sturges, 32 N. J. Eq., 678; Rev. 33 N. J. Eq., 328; Arnett v. Welch, 46 
 N. J. Eq., 543 ; Brown v. Carpenter, 57 N. J. Eq., 23 ; Schrafft v. 
 Wolters, 63 N. J. Eq., 793; Muller v. Muller, 76 N. J. Eq., 158. 
 
 (28) Mitf . Eq. PI., 42 ; Paterson & H. R. R. v. Jersey City, 9 N. J. 
 Eq., 434; Philhower v. Todd, 11 N. J. Eq., 54; Hewitt v. Kuhl, 25 N. J. 
 Eq., 24; Bigelow Blue Stone Co. v. Magee, 27 N. J. Eq., 392; Kip v. 
 Kip, 33 N. J. Eq., 213 ; Stockton v. Lippincott, 37 N. J. Eq., 443 ; Brokaw 
 v. Brokaw, 41 N. J. Eq., 215 ; Goldingay v. Smith, 62 N. J. Eq., 
 354; Stevenson v. Morgan, 64 N. J. Eq., 219; Ter Knile v. Reddick, 
 39 Atl. Rep., 1062 ; Miller v, Willett, 62 Atl. Rep., 178 ; Pryor v. Grey, 
 62 Atl. Rep., 439; Graham v. Spence, 63 Atl. Rep., 344. 
 
The Stating Part. 143 
 
 ant sought a decree against the holder of a bond and mortgage 
 by assignment from the original owner thereof, awarding them 
 to him on the ground of his equitable ownership of them, and 
 his bill did not show how he became entitled to the bond and 
 mortgage; there being no allegation that he was entitled to 
 them at all, and it not appearing that he had not received the 
 full benefit of the consideration of the assignment, the bill 
 was held to be demurrable. (29) So if complainant's right to 
 the relief prayed depends upon the fact that he is a bona ftde 
 purchaser without notice, such fact must be alleged in the 
 bill, and the absence of such an allegation may be taken ad- 
 vantage of by demurrer. (30) Allegations that a company is 
 insolvent and has suspended its business for want of funds to 
 carry on the same are not sufficient in a bill to have it de- 
 clared insolvent and a receiver appointed; the facts and cir- 
 cumstances must be set out from which the insolvency of 
 the corporation shall appear. (31) And so a creditor's bill is 
 insufficient in not showing that complainant has exhausted his 
 claim at law, the return of the execution merely showing there 
 was no personal property, and the bill failing to show that 
 there is no other property the legal title to which is in defend- 
 ant. (32) And so in a bill filed by a judgment creditor for the 
 purpose of setting aside conveyances of real and personal 
 property alleged to have been made in fraud of creditors, it 
 is not enough for the bill to show that the debtor has made a 
 fraudulent disposition of any part of his property, but it must 
 show that such disfKisition embarrasses the complainant in 
 obtaining satisfaction of his debt ; for if his debt can be satis- 
 fied out of property upon which his judgment is a lien, it is 
 only inviting useless litigation for him to question conveyances 
 made by his debtor which, however, much they may have been 
 so intended, do not operate as a fraud upon him. (33) Where 
 the whole equity of a bill rested upon the fact that the defend- 
 ants were trustees of a church, and as such were violating their 
 trust, and there was no distinct allegation in the bill that the 
 
 (29) Phillips V. Schooley, 27 N. J. Eq., 410. 
 
 (30) Baldwin v. Richman, 9 N. J. Eq., 394. 
 
 (31) Newfoundland R. R., &c., Co. v. Schack, 40 N. J. Eq., 222; 
 Atlantic Trust Co. v. Consolidated Electric Storage Co., 49 N. J. Eq., 
 402. 
 
 (32) Bayley v. Bayley, 66 N. J. Eq., 84. 
 
 (33) Dunham v. Cox, 10 Nt-J. Eq., 437. 
 
144 Bills in Equity. 
 
 defendants were such trustees, or that there existed any such 
 corporate body, nor any statement of the manner in which the 
 trust they were charged with violating was committed to 
 them, it was held that the informalities and omissions in the 
 bill were a character that could not be cured or waived by the 
 pleadings or by consent. (34) And so where a complainant 
 claims the benefit of a statute, his bill must contain all the 
 averments necessary to bring his case within its beneficial pro- 
 visions. (35) Where a complainant comes into court with a 
 sworn bill, and it turns out upon investigation of the case that 
 the bill has been framed with skill and care tO' avoid an impres- 
 sion which would be made by an ingenuous statement of the 
 case, the complainant assumes a position in the court which 
 deprives him of the benefit of doubts which otherwise migh't 
 be resolved in his favor. A disingenuous bill which is sworn 
 to is quite as obnoxious to the court as a disingenuous an- 
 swer. (36) 
 
 On the other hand, the fact that a bill to foreclose a mort- 
 gage alleges nothing in terms against a defendant against whom 
 it prays process, is no grounds for demurrer. A bill to fore- 
 close differs from one where a discovery is sought or some 
 specific relief is prayed against the defendant personally, in 
 that it is a proceeding in rem and the defendants are made 
 parties only because they claim to have an interest in the sub- 
 ject matter. If the defendant is informed by the notice an- 
 nexed to his subpoena that he is made a party because he holds 
 a mortgage on the premises and claims some lien thereunder, 
 the bill will not be demurrable. (37) And so if there is in the 
 bill substantial averment, or the recital of facts which disclose 
 to the defendant generally the grounds of complaint, it will be 
 sufficient if on final hearing on pleadings and proofs in a case 
 where the facts cannot be within the knowledge of the acting 
 party, the grounds of relief are substantially involved in the 
 statements of the bill, and are sustained by the evidence. (38) 
 So averments in a bill which would ordinarily be objectionable 
 for uncertainty were held sufficient on demurrer in a case 
 
 (34) Rainier v. Howell, 9 N. J. Eq., 121. 
 
 (35) Eberhart v. Gilchrist, 11 N. J. Eq., 167. (See 24 Cyc, 39). 
 
 (36) Herbert v. Scofield, 9 N. J., 492. 
 
 (37) The Wheeler & Wilson Mfg. Co. v. Filer, 52 N. J. Eq., 164. 
 
 (38) Johnson v. Helmstaedter, 30 N. J. Eq., 1^4; Gogherty v. 
 Bennett, 37 N. J. Eq., 87; Mott v. Mott, 49 N. J. Eq., 192. 
 
The Stating Part. 145 
 
 where the bill was one for discovery, and the matters touching 
 which the bill was challenged for uncertainty were alleged 
 by the bill to be entirely within defendant's' exclusive knowl- 
 edge. (39) 
 
 A bill filed by an administrator must allege that his intes- 
 tate is dead, and that letters of administration have been issued 
 to him. (40) So, in a suit by an executor, it is necessary to 
 set forth in the bill the fact of the probate of the will; (41) 
 stating in the bill tliat the will has been duly proved in the 
 state of New Jersey might be sufficient without specifying 
 whether such proof was in either the Orphans' Court or before 
 the Ordinary ; (42) but if a bill filed by an executor alleges 
 that the will has been admitted to probate, in the absence of 
 an objection raised by the pleadings, a probate taken out at 
 any time before the hearing is sufficient. (43) In a bill by an 
 executor which does not allege the probate of the will, an alle- 
 gation in the bill that the complainant "hath taken upon him- 
 self the burden of executing the trusts and duties required 
 of him in the will, and become duly qualified as executor" is 
 not sufficient to show his right to sue in the capacity of execu- 
 tor. (44) So where a complainant claims as a substituted trus- 
 tee under a will, he must state facts showing how the vacancy 
 occurred, and that he was legally appointed. It is not sufficient 
 to allege that he was duly appointed. (45) 
 
 While a bill should contain averments of the right of the 
 complainant alleged to be attacked and of the injury thereto 
 inflicted or threatened by the defendant sufficient to invoke the 
 jurisdiction of the court and sustain the relief asked, it is not 
 always necessary that such injury be characterized by technical 
 terms, or the acts of the defendant detailed with particularity 
 with reference to such acts; if there be in the bill substantial 
 averment or the recital of facts which disclose to the defend- 
 
 (39) Watson V. Murray, 23 N. J. Eq., 257; MuUer v, Muller, 
 76 N. J. Eq., 158. 
 
 (40) Stover V. Reading, 29 N. J. Eq., 152. 
 
 (41) Armstrong v. Lear, 12 Wheat., 169; Pelletreau v. Rathbone, 
 I N. J. Eq., 331 ; Humphreys v. Ingledon, i P. Wms., 752. 
 
 (42) Pelletreau v. Rathbone, i N. J. Eq., 331. 
 
 (43) Pelletreau v. Rathbone, i N. J. Eq., 331 ; Goodrich v. Pendleton, 
 4 Johns. Ch., 549; Doolittle v. Lewis, 7 Johns., Ch. 51. 
 
 (44) Pelletreau v. Rathbone, i N. J. Eq., 331. 
 
 (45) Cruger v. Halliday, 11 Paige, 314. 
 
146 Bills in Equity. 
 
 ant generally the grounds of complaint, it will be suffi- 
 cient. (46) Certainty to a common intent is all that is required 
 in pleadings in equity ;(47) thus, where the gravamen of the 
 case is that the defendant fraudulently purchased the property 
 of the complainant for a nominal consideration, when in fact 
 it was worth a substantial sum, if the complainant's right is 
 stated in such a way as to authorize him to come in and com- 
 plain of the fraud and entitle him to relief against it, it is suffi- 
 cient. (48) And so a creditor's bill need not allege that defend- 
 ant has no other property liable to satisfy complainant's judg- 
 ment, if it shows that complainant has exhausted his legal 
 remedy. (49) And averments in the stating part of a bill evi- 
 dently intended as statements of facts must be answered by 
 the defendant if he intends to deny them, although the com- 
 plainant "charges'' the facts instead of "shows" or "alleges" 
 them. (50) A general charge or statement of the matter of 
 fact is sufficient; it is not necessary to charge minutely all the 
 circumstances which may conduce to prove the general charge, 
 for these are properly matters of evidence which need not be 
 charged in order to let them in as proof. (51) So if com- 
 plainant files his bill as the assignee of a mortgage, and alleges 
 that the debt is due and owing him, and that he is ready to 
 produce the note or obligation which is the evidence of the 
 debt the mortgage is given to secure, it is sufficient, without 
 stating that the note or obligation has been assigned to him. (52) 
 So, if a contract is several, it is no objection that the contract 
 made by the complainant with several defendants be described 
 in the bill as a contract between the complainant and defend- 
 ant, without reference to the other parties. (53) And so in a 
 suit in equity by a stockholder and creditor against the direct- 
 ors of a corporation, founded on alleged negligence, the bill 
 will not be demurrable if it sets out particular acts of gross 
 
 (46) Mott V. Mott, 49 N. J. Eq., 192. 
 
 (47) Paterson & Hudson River R. R. v. Jersey City, 9 N. J. Eq., 
 434 ; Randolph v. Daly, 16 N. J. Eq., 313 ; Gogherty v. Bennett, 37 N. J. 
 Eq., 87; Henninger v. Heald, 51 N. J. Eq., 74. 
 
 (48) Outcalt V. Disboraugh, 3 N. J. Eq., 214 ; see also Gogherty v 
 Bennett, 37 N. J. Eq., 87. 
 
 (49) Bayley v. Bayley, 66 N. J. Eq., 84. 
 (so) Halsey v. Ball, 36 N. J. Eq., 161. 
 
 (51) Johnson v. Helmstaedter, 30 N. J. Eq., 124. 
 
 (52) Cornelius v. Halsey, 11 N. J. Eq., 27. 
 
 (53) New Barbados Co. v. Vreeland, 4 N. J. Eq., 157. 
 
The Stating Part. 147' 
 
 negligence, although the facts are stated in a general form, 
 particularly where most of the charges are of such a nature 
 that their full development would necessitate great prolaxity 
 of narration. (54) 
 
 A suitor who seeks relief on the ground of fraud must do 
 something more than make a general charge of fraud. He 
 must state the facts which constitute the fraud, so that the 
 persons against whom relief is sought may be afforded a full 
 opportunity, not only to deny or explain the facts charged, but 
 to disprove them. A defendant has a right to know in advance 
 just what he will be required to meet.(55) Thus an allega- 
 tion that the complainant understands that a judicial sale was 
 conducted fraudulently ; that the defendants and others speci- 
 fied were the witingdoers, and that they suppressed certain 
 facts which ought to have been made known, is not a sufficient 
 statement of the facts which constitute the alleged fraud. It 
 should appear in what respect the sale was fraudulently con- 
 ducted, or what facts were suppressed to the detriment of the 
 corhplainant. (56) So a mere allegation that a purchaser took 
 title with notice of a suit, to which neither he nor any one 
 under whom he claims was a party, to set aside as fraudulent 
 the cancellation of a mortgage on the property, is insufficient 
 to charge him with the result of the suit, which was a decree 
 setting aside the cancellation. The facts constituting the fraud 
 must be set forth. (57) The principle which underlies this 
 rule is inapplicable to transactions between persons occupying 
 relations, whether legal, natural or conventional in their origin, 
 in which confidence is naturally inspired, is presumed, or in 
 fact reasonably exists. In such cases a presumption against 
 the transaction complained of arises from the existence of 
 such confidential relations, and it is not necessary to particular- 
 ize acts of bad faith or imposition, for in such cases the burden 
 of proof is thrown upon the person in whom confidence is re- 
 
 (54) Halsey v. Ackerman, 38 N. J. Eq., 501. 
 
 (55) Small V. Boudinot, 9 N. J. Eq., 381; Rorback v. Dorsheimer, 
 25 N. J. Eq., S16; Phillips v. Schevley, 27 N. J. Eq., 410; Stover v. 
 Reading, 29 N. J. Eq., 152; Smith v. Wood, 42 N. J. Eiq., 563; aMrmed, 
 44 N. J. Eq., 603; Bergen v. Porpoise Fis.hing Co., 42 N. J. Eq., 397; 
 Davis V. Davis, SS N. J. Eq., 37; Herbert v. Herbert, 47 N. J. Eq., 11; 
 Woglom V. Kant, 69 N. J. Eq., 489; Hageman v. Brown, 76 N. J. Eq., 
 126; Buttlar v. Buttlar, 57 N. J. Eq., 645. 
 
 (56) Small V. Boudinot, 9 N. J. Eq., 381. 
 
 (57) Stover v. Reading, 29 N. J. Eq., 152. 
 
148 Bills in Equity. 
 
 posed to show affirmatively that no deception was practiced, 
 no undue influence used, and that all was fair, open, volun- 
 tary and well understood. (58) Where, however, such relation 
 is alleged, and at the same time other allegations in the plead- 
 ing show that its influence terminated prior to the transactions 
 complained of, the general rule in cases of this character ap- 
 plies. (59) In applying this rule to the case of a suit brought 
 . by the guardian of a lunatic to set aside a conveyance as 
 fraudulent, it was said that the guardian had not and could 
 not have knowledge of the peculiar and special phase of fraud 
 adopted, and that to require particularity of charge in such a 
 case would be a denial of justice. (60) 
 
 Although all the material facts of the complainant's case 
 will certainly find their more appropriate place in the stating 
 part of the bill, yet if material facts are specifically averred 
 there does not seem to be any positive rule of law which re- 
 quires that they should be averred in the stating part of the 
 bill ; if a fact is stated anywhere in the bill with legal certainty, 
 it is well pleaded. (61) Thus, it has been held that if matters 
 of fact are inserted in the bill in the form of a charge, it will 
 be sufficient if it is evident that a statement by way of allega- 
 tion was intended by the pleader; (62) but if a fact, which it is 
 necessary for a complainant to prove to establish his right, 
 is not alleged in the bill, this objection is not cured by the 
 fact that these averments are made in the affidavit annexed to 
 the bill. (63) The bill should not recite records, deeds, or other 
 documents in full, but only such parts thereof as may be neces- 
 sary for the clear exhibition of the case or the construction 
 of the document. (64) 
 
 (58) Mott V. Mott, 49 N. J. Eq., 192; Hall v. Otterson, 52 N. J, Eq., 
 522-528 ; afHrmed, 53 N. J. Eq., 69S ; Davis v. Davis, 55 N. J. Eq., Z7- 
 
 (59) Davis V. Davis, 55 N. J. Eq., 37. 
 
 (60) Mott V. Mott, 49 N. J. Eq., 192. 
 
 (61) Paterson & Hudson River R. R. v. Jersey City, 9 N. J. Eq., 
 434; Rorback v. Dorsheimer, 25 N. J. Eq., 516. 
 
 (62) Johnson v. Helrastaedter, 30 N. J. Eq., 124. 
 
 (63) Chapman v. Hunt, 14 N. J. Eq., 149. An affidavit ajttached to 
 the bill cannot be considered as a part thereof. Streeter v. Braman 
 76 N. J. Eq., 371. 
 
 (64) Chancery rule 49. No bill or other pleading shall recite 
 records, deeds, or other documents in full, but only so much and such 
 parts thereof as may be necessary for the clear exhibition of the case, 
 or the construction of the document, omitting all parts not relevant 
 to the relief sought, or the defense set up; and no pleading shall re- 
 
The Charging Part. 149 
 
 If a bill be deficient for lack of certainty, this defect must 
 as a general rule be brought to the notice of the court by a 
 demurrer. It is but seldom, and only when the statement is 
 so vague and loose as to be utterly inert and inefficient, that 
 it can be objected to at final hearing, except in those very ex- 
 ceptional cases where the defendant can make it appear that 
 he has been misled by reason of the defect; and even in this 
 limited class of cases, it is difficult to imagine an instance in 
 which relief would be thus granted without the imposition 
 of terms protective of the rights of the complainant. (65) If 
 on final hearing the bill is found defective by reason of lack 
 of certainty, it must be dismissed, unless the complainant ob- 
 tain leave to amend. (66) 
 
 The Confederating Part. In early practice it was cus- 
 tomary to introduce into every bill a general charge that the 
 parties named in it combined together with several other per- 
 sons unknown to the plaintiff, whose names, when discovered, 
 the plaintiff prays he may be at liberty to insert in the bill. 
 This practice is said to have arisen from an idea that without 
 such a charge parties could not be added to the bill by amend- 
 ment ; and in some cases perhaps the charge has been inserted 
 with a view to give the court jurisdiction. (67) This part of 
 the bill is now abolished in New Jersey by the rules of the 
 Court of Chancery. (68) 
 
 The Charging Part. A complainant may anticipate the 
 defense of the defendant, and obtain a discovery of matters 
 connected with such defense which are in no wise responsive 
 to the main charges of the bill upon which the complainant's 
 
 peat documents or parts of documents set forth in any previous plead- 
 ing, but if the same are not fully or accurately set forth, may add 
 such parts as may be necessary to complete or correct the same. And 
 see "Impertinence and Scandal," page 181, infra. 
 
 (65) Rorback v. Dorsheimer, 25 N. J. Eq., 516; Jones v. Fayer- 
 weather, 46 N. J. Eq., 237-252; White v. Davis, 48 N. J. Eq., 22; Mu- 
 tual Life Ins. Co. v. Sturges, 33 N. J. Eq., 328. And see "Amend- 
 ment of Pleadings,'' page 317, infra; "Demurrers," page 267, infra. 
 
 (66) Schrafft v, Wolters, 63 N. J. Eq., 793 ; and see "Amendment 
 of Pleadings," page 317, infra. 
 
 (67) Mitf. Eq. PI., 40. 
 
 (68) Chancery rule 208. The general charge of confederacy in bills 
 and the clause reserving exceptions, and the general clause denying 
 combination, and the general traverse, and the general profert or 
 proof in answers, shall be omitted, and see "Impertinence and Scan- 
 dal," page 181, infra. 
 
150 Bills in Equity. 
 
 equity is supposed to rest, by framing his bill in such a manner 
 as to call for all the particulars of the defense which he sup- 
 poses the defendant intends to set up. This is effected by what 
 is usually called the charging part of the bill, in which the 
 anticipated defense is stated as a pretense of the defendant, 
 and then the real facts are charged to lay the foundation for 
 interrogatories founded upon such pretenses. In this way the 
 complainant is enabled to anticipate the defense itself, and to 
 examine the defendant on interrogatories in relation to all the 
 particulars of such defense. (69) Thus, if a bill is filed by 
 an heir who apprehends that his ancestor has made a will, he 
 may state his title as heir; and alleging the will by way of 
 pretence of the defendant claiming under it, make it a part 
 of the case without admitting it. (70) 
 
 The charging part of a bill is as necessary to be answered 
 as the stating part; so far as the charges are material to 
 anticipate and defeat a defense which may be set up, they may 
 be considered to be in the nature of a special replication, and 
 the complainant has the same right to defendant's answer to 
 the charging part of the bill to prove the truth of his special 
 replication as he has of the stating part to prove the truth of 
 that. If he does not waive an answer under oath, he makes 
 defendant a witness in favor of complainant, and against him- 
 self; the defendant's answer therefore, which is responsive 
 to any such statement or charge in the bill, is evidence in his 
 own favor, as well as in favor of the complainant. (71) 
 
 In modern practice, the charging part of a bill is often 
 omitted, and does not seem indispensable in any case. (72) 
 
 Averment of Jurisdiction. The averment of jurisdiction 
 is intended to give jurisdiction by a general averment that 
 the acts' complained of are contrary to equity and tend to the 
 injury of the complainant, and that he has no complete remedy 
 without the assistance of the court; but this averment must 
 be supported by the case shown in the bill, from which it must 
 be apparent that the court has jurisdiction. This clause will 
 
 (69) Freichnecht v. Meyer, y,g N. J. Eq., SS1-S54; Stafford v. 
 Brown, 4 Paige, 88; Mitf. Eq. PI., 50; i Daniel's Ch. Pr., 373. 
 
 (70) Mitf. Eq. PI., so. 
 
 (71) Smith V. Qark, 4 Paige Ch., 368-378. 
 
 (72) Freichnecht v. Meyer, 39 N. J. Eq., SSI-SS4; 1 Daniel's Ch. 
 Pr., 373; Story's Equity Pleading, section 33. 
 
Prayer for Relief. 151 
 
 not of itself give jurisdiction to the court, and is therefore 
 wholly unnecessary. (73) 
 
 Interrogating Part. This part of the bill requires de- 
 fendants either to admit or to deny all the facts set forth in the 
 bill; and if a full discovery is desired from the defendants, 
 complainant may add to the general requisition that defend- 
 ants should answer the contents of the bill, a repetition, by 
 way of interrogatory, of the matters most essential to be 
 answered ; therefore, if there is nothing in the prior part of the 
 bill to warrant an interrogatory the defendant is not obliged to 
 answer it. A variety of questions may, however, be founded 
 upon a single charge. (74) In modern practice, it is not 
 customary to repeat all the charges in the bill by way of inter- 
 rogatory, but to insert into the bill a general interrogatory 
 "that the defendants may full answer make to all and singular 
 the premises &c" ; and it is well settled that such interrogatory 
 is sufficient to call for a full and frank disclosure of the whole 
 subject matter of the bill. The defendant is bound to deny 
 or admit all the facts stated in the bill with all their material 
 circumstances without special interrogatories for that purpose ; 
 the latter are only used to probe more effectually the con- 
 science of the party, and to prevent evasion or omission as 
 to circumstances which may be deemed important. (75) 
 
 Under the New Jersey Chancery Act, a complainant may in 
 his bill pray for an answer without oath and annex to his 
 bill interrogatories founded upon the allegations and charges 
 contained in his bill; (76) but independently of this statute; 
 interrogatories appended to a bill which prays an answer 
 under oath, based on the statements and charges therein made, 
 may be regarded as incorporated in the bill, and a prayer for 
 a responsive answer under oath thereto is not demurrable. (77) 
 
 Prayer for Relief. The eighth part of the bill is the 
 prayer for relief. This may be either special or general ; the 
 former is for the particular form of relief to which the com- 
 plainant considers that his case entitles him; the latter is 
 
 (73) Mitf. Eq. PI., so; Storm v. Vanderberg, 91 Hun., 302; 36 N. Y. 
 Supp., 290; Story's Eq. PI., section 34. 
 
 (74) Mitf. Eq. PI., page 52. 
 
 (75 ) Methodist Episcopal Church v. Jaq'ues, i Johns. Ch., 62. 
 
 (76) Chancery Act, section 19, page 22, supra. 
 
 (77) Romaine v. Hendrickson, 24 N. J. Eq., 231. 
 
152 Bills in Equity. 
 
 generally for such relief in the premises as shall be agreeable 
 to equity. (78) 
 
 The prayer for relief, whether general or special, should 
 contain the names of those against whom relief is prayed, for 
 if it does not appear with reasonable certainty from the other 
 parts of the bill against whom the complainant is entitled to 
 relief, the bill will be fatally defective. (79) Thus, it was 
 held that in a bill to foreclose a mortgage, a prayer for relief 
 and discovery against "said defendants hereinafter named," 
 could only refer to defendants already mentioned, and not to 
 a defendant named merely in the following prayer for pro- 
 cess. (80) 
 
 Prayer for Special Relief. The prayer for special relief 
 should contain an accurate specification of the relief sought. 
 In complicated cases, the framing of the special prayer for 
 relief requires great care and attention, for although, if the 
 prayer does not embrace all the relief to which complainant 
 may at the hearing show a right, the deficient relief may under 
 some circumstances be supplied under the general prayer, yet 
 such relief must be consistent with that specifically prayed, as 
 well as with the case made by the bill. (81) If a bill contains 
 a prayer for special relief, but there is no prayer for general 
 relief, and the complainant is not entitled to the relief he 
 prays, no other relief can be granted to him, and his suit must 
 fail, unless the court permits the bill to be amended by adding 
 a prayer for general relief, (82) The instances, however, in 
 which an amendment to the prayer will be permitted are con- 
 fined to those where it appears from the case made by the bill 
 that the complainant is entitled to relief, though different 
 from that sought by the specific prayer ; where the object of the 
 proposed amendment is to make a new case, it will not be per- 
 mitted. (83) So in a bill for an accounting, the extent to 
 which the accounting is demanded must appear in the prayer, 
 
 (78) Story's Eq. PI., section 37. 
 
 (79) Howe V. Robins, 36 N. J. Eq., 19. 
 
 (80) The Wheeler & Wilson Mfg. Co. v. Filer, 52 N. J. Eq., 164. 
 
 (81) I Daniel's Ch. Pr., 378 and see "Prayer for General Relief," 
 page IS3, infra. 
 
 (82) Scott V. Gamble, 9 N. J. Eq., 218; Halsted v. Meeker, 18 
 N. J. Eq., 136; Story's Eq, PI., section 37. 
 
 (83) Halsted v. Meeker, 18 N. J. Eq., 136; and see "Amendment of 
 Pleadings," page 317, infra. 
 
Special Prayer. 153 
 
 and the allegations of the bill must be broad enough to sup- 
 port the prayer. (84) The court may, however, under the 
 special prayer, give appropriate relief which is of the same 
 general character, but less extensive than that prayed for. (85) 
 So where a bill prayed that the defendant might be restrained 
 from driving its coaches, used for the purpose of carrying 
 passengers, upon complainant's tracks, the court refused to 
 restrain defendant from using the tracks, but enjoined it from 
 using them in competition with complainant, and from ob- 
 structing and hindering complainant in the use of its tracks. 
 (86) 
 
 If a bill contains a sp>ecial prayer for relief which is not 
 warranted by the case set up by the bill, or for relief which 
 the court has no jurisdiction to afford, such prayer will be 
 stricken out upon demurrer ;(87) but where a bill prays for 
 special relief on several grounds, and also for general relief, 
 this may be granted even if the special relief claimed be not 
 warranted by the facts, or if the complainant mistakes the 
 principles of equity upon which his right to relief is founded, 
 and a general demurrer to the bill will be overruled. (88) 
 
 Prayer for General Relief. The use of the prayer for 
 general relief can never be safely omitted, because if the facts 
 stated in the bill are broad enough to give complainant relief, 
 it matters not how narrow his prayer for special relief may be 
 if his bill contains a prayer for general relief ; and 
 although he may claim a relief not at all - warranted by his 
 facts, or may be entitled to a relief upon very different princi- 
 ples of equity from what he supposed, such misapprehension 
 of his case cannot defeat his right to such relief as may be 
 warranted by the frame and structure of his bill. (89) A bill 
 will not be dismissed on account of the incongruousness and 
 
 (84) Vulcan Detinning v. American Can Company, 67 N. J. Eq., 
 243- 
 
 (8s) Camden Horse R. R. v. Citizen's Coach Co., 31 N. J. Eq., 
 S2S; affirmed, 33 N. J. Eq., 267; Eustis Mfg. Co. v. Eustis, 51 N. J. 
 Eq., 565-573- 
 
 (86) The Camden Horse R. R. v. The Citizens Coach Co., 31 N. J. 
 Eq., 525 ; afHrmed, 33 N. J. Eq., 267. 
 
 (87) Stevenson v. Morgan, 64 N. J. Eq., 219. 
 
 (88) Junion Order v. Sharp. 63 N. J. Eq., 500. 
 
 (89) Hill V. Beach, 12 N. J. Eq., 31; Belleville Ins. Co. v. Van 
 Winkle, 12 N. J. Eq., 333 ; Force v. Butcher, 18 N. J. Eq., 401-405 ; 
 
154 Bills in Equity. 
 
 inaptness of' the special prayers for relief, even if the special 
 prayers were such that no relief could be granted under them. 
 The court under the general prayer may grant appropriate 
 relief consistent with the case made out by the bill. (90) Fail- 
 ure to ask for the special relief appropriate to the case made 
 by complainant's bill is no objection to granting such relief; 
 the rule is that where the statement of facts in the bill is broad 
 enough to give the complainant a right to relief, it matters not 
 how- narrow the prayer may be, if there be a prayer for gen- 
 eral relief; (91) and relief may be granted even though the 
 bill contain no prayer for special relief. (92) So a prayer in a 
 bill by one who is next of kin against an administrator specifi- 
 fically praying for the ascertainment of complainant's distribu- 
 tive share, but not praying that the amount when ascertained 
 be decreed to complainant, suggests no infirmity in the bill; 
 the prayer for general relief will justify a decree for payment 
 of the distributive share. (93) 
 
 Under a prayer for general relief, a complainant can have 
 only such relief as is agreeable to the case made by the bill 
 and as the case stated will justify; he will not be entitled 
 under the general prayer to a decree based upon facts proven 
 but not alleged. (94) 
 
 If the bill sets up a cause which entitles complainant to 
 relief in a court of equity, the court will under the prayer for 
 general relief grant other relief appropriate to the case, 
 although such relief could be had at law; (95) but if the bill 
 does not set up a cause which entitles complainant to equita- 
 ble relief, he cannot have his suit retained for the purpose of 
 
 Graham v. Berryman, 19 N. J. Eq., 29 ; Rev., 21 N. J. Eq., 370 ; Bullock 
 V. Adams, 20 N. J. Eq., 367 ; Monmouth Ins. Co. v. Hutchinson, 21 N. J. 
 Eq., 107 ; Miller v. Jamison, 24 N. J. Eq., 41 ; Eustis Mfg. Co. v. Eustis, 
 SI N. J. Eq., 565-573; Haslett v. Stephany, 55 N. J. Eq., 68; Junior 
 Order v. Sharp, 63 N. J. Eq., 500. 
 
 (go) Annin v. Annin, 24 N. J. Eq., 184. 
 
 (91) Hill V. Beach, 12 N. J. Eq., 31; Annin v. Annin, 24 N. J, Eq., 
 184. 
 
 (92) Junior Order v. Sharp, 63 N. J. Eq., 500. 
 
 (93) Van Dyke v. Van Dyke, 65 Atl. Rep., 215. 
 
 (94) Walker v. Hill, 21 N. J. Eq., 191; affirmed, ■2a, N. J. Exj., 513; 
 Miller v. Jamison, 24 N. J. Eq., 41 ; Rev., 27 N. J. Eq., 586 ; Francis 
 V. Bertrand, 26 N. J. Eq., 213; Rigg v. Hancock, 36 N. J. Eq., 42. 
 
 (95) Bullock V. Adams, 20 N. J. Eq., 367. 
 
General Prayer. 155 
 
 obtaining relief to which he is only entitled at law. (96). So 
 where in a bill for specific performance the agreement to con- 
 vey lands sought to be enforced was not in writing, and the 
 complainant therefore failed on his only ground of equitable 
 relief, it was held that he was not entitled under the prayer 
 for general relief to a decree for the payment of the money 
 paid on the signing of the agreement. (97) The relief granted 
 under a prayer for general relief must be consistent with that 
 specially prayed, as well as with the case made by the bill (98), 
 for the court will not ordinarily be so indulgent as to permit 
 a bill framed for one purpose to answer another, particularly 
 if the defendant may be surprised or prejudiced thereby. (99) 
 
 The rule with regard to the nature of the relief which a 
 complainant may have under the prayer for general relief was 
 laid down by Lord Eldon in the following language: "The 
 rule is that if the bill contains charges putting facts in issue 
 that are material, the plaintiff is entitled to the relief which 
 those facts will sustain under the general prayer ; but he 
 cannot desert the specific relief prayed, and under the general 
 prayer ask specific relief of another description, unless the 
 facts and circumstances charged by the bill will, consistently 
 with the rules of the court, maintain that relief." (100) So 
 where on a bill to reform a contract to sell real estate and for 
 its specific enforcement as reformed, the prayer for reforma- 
 tion is refused; the relief of specific performance of the con- 
 tract as found to be proved may be granted under the prayer 
 for general relief, inasmuch as it is relief of the same general 
 nature as that specifically prayed.(i) 
 
 The rule that the court will grant only such relief as the 
 complainant is entitled to upon the case made out by the bill, 
 and as is consistent with the prayer for special relief, is most 
 strictly enforced in those cases where complainant relies upon 
 
 (96) Welsh V. Bayaud, 21 N. J.. Eq., 186. 
 
 (97) Hooper v. Hooper, 16 N. J. Eq., 147-149 ; Welsh v. Bayaud, 21 
 N. J. Eq., 186; Peeler v. Levy, 26 N. J. Eq., 330; Ten Eyck v. Manning, 
 52 N. J. Eq., 47 ; Logan v. Flattau, 73 N. J. Eq., 222 ; Public Service 
 Cor. V. Hackensack Meadows Co., 64 Atl. Rep., 976. 
 
 (98) Rennie v. Crowbie, 12 N. J. Eq., 457 ; Jordan v. Clark, 16 N. J. 
 Eq., 243; Newark v. Erie R. R. Co., 76 N. J. Eq., 317; Colton v. Ross, 
 2 Paige Ch., 396. 
 
 (99) Smith V. Trenton Delaware Falls Co., 4 N. J. Eq., 505. 
 
 (100) Hiern v. Mill, 13 Ves., 114. 
 
 (i) Gough V. Williamson, 62 N. J. Eq., 526. 
 
156 Bills in Equity. 
 
 fraud. Accordingly, where a bill sets up a case of actual 
 fraud, and makes that the ground of the prayer for relief, 
 the complainant is not in general entitled to a decree by 
 establishing some one or more of the facts, quite independent 
 of fraud, which might of themselves create a case under a 
 head of equity distinct from that which would be applicable 
 to the case of fraud originally stated. (2) 
 
 In the case of Graham vs. Berryman, however, the prayer 
 for relief was founded upon fraud alleged in the bill, and relief 
 was granted under the general prayer on the ground of mis- 
 take. ( 3 ) So upon a bill filed tO' recover the interest of a legacy 
 only, a decree cannot be made for the payment of the princi- 
 pal which has fallen due since the filing of the bill, as such a 
 decree is not within the special prayer for relief, and could 
 not have been prayed for at the time of the filing of the bill. 
 (4) So where a bill charges that an Act of the Legislature 
 is contrary to the constitution of the United States, and there- 
 fore illegal and void, it was held that the allegations of the 
 bill in reference to the Act were so vague and indefinite that 
 in the absence of a special prayer, a party defendant could 
 scarcely anticipate that complainant was seeking to have it 
 declared void, and that the court would not, under the general 
 prayer for relief, declare such Act unconstitutional. (5) 
 
 So where a bill was filed against defendants as trustees and 
 as the representatives of a testator, in their representative 
 characters, and the prayer of the bill was in conformity there- 
 to, the complainant was entitled to an account in that aspect 
 only. (6) And so an account cannot be ordered in a bill that 
 does not seek it either inferentially or by express prayer; (7) 
 but an accounting will be decreed under a general prayer for 
 relief, where it is not inconsistent with the special prayers, 
 and accords with the general prayer of the bill. (8) Ordinar- 
 ily an injunction cannot be granted under a prayer for general 
 
 (2) Hoyt v. Hoyt, 27 N. J. Eq., 399. 
 
 (3) Read v. Cramer, 2 N. J. Eq., 277; Graham v. Berryman, 19 
 N. J. Eq., 29; Reversed, 21 N. J. Eq., 370. 
 
 (4) Jordan v. Clark, 16 N. J. Eq., 243. 
 
 (5) Smith V. Trenton Delaware Falls Co., 4 N. J. Eq., 505. 
 
 (6) Scott V. Gamble, 9 N. J. Eq., 218. 
 
 (7) Marquise De Fortes v. Hurlbut, 44 N. J. Eq., 517. 
 
 (8) Chambers v. Kunzman, 59 N. J. Eq., 433. 
 
Alternative Prayer. 157 
 
 relief; it must be the subject of a special prayer, but the 
 bill may be so amended. (9) 
 
 It is usual to insert in this part of the bill any waiver or 
 offer which the complainant chooses or may be compelled by 
 the nature of his case to niake as a condition precedent to 
 obtaining relief, though there is no reason why this should not 
 be done in the stating part of the bill. It is a principle of 
 equity that the person seeking relief must himself do what 
 is equitable. It is therefore required in some cases that the 
 complainant should by his bill offer to do whatever the court 
 may consider necessary to be done on his part towards making 
 the decree which he seeks just and equitable with regard to 
 the other parties to the suit. (10) Upon this principle, where 
 a bill is filed to have an instrument or security, void under the 
 usury laws, delivered up and cancelled, equity will interfere 
 only upon the condition that the complainant pay to the de- 
 fendant what is bona Ude due him ; and where the complainant, 
 does not offer to do so by his bill, a demurrer will be allowed. 
 (II) 
 
 Alternative Prayer. If a complainant is in doubt as to 
 what relief he may be entitled to upon the facts set up in 
 his bill, he may pray for relief in the alternative. Bills with 
 a prayer framed in this manner are called bills with a double 
 aspect. (12) A proper case for a bill with a double aspect is 
 where the complainant is in doubt whether he is entitled to 
 one kind of relief or another upon the facts of his case as 
 stated in the bill. In such a case, he may frame his prayer in 
 the alternative, so that if the court is against him as to one 
 kind of relief prayed for, he may still be enabled to obtain any 
 other relief to which he is entitled under the other part of the 
 alternative prayer. So also where a complainant is entitled 
 to relief of some kind upon the general facts stated in his 
 bill, if the nature of the relief to which he is entitled depends 
 upon the existence or non-existence of a particular fact or 
 circumstance which is not within his knowledge, but which is 
 known to the defendant, he may allege his ignorance as to 
 
 (9) African M. E. Church v. Conover, 27 N. J. Eq., 157. 
 
 (10) I Daniel's Ch. Pr., 385. 
 
 (11) Ware v. Thompson, 13 N. J. Eq., 66; oKrmed, 17 N. J. Eq., 
 Sio; Giveans v. McMurtry, 16 N. J. Eq., 468. 
 
 (12) Colton V. Ross, 2 Paige Ch., 394; i Daniel's Ch. Pr., 385. 
 
158 Bills in Equity. 
 
 such fact and call for a discovery thereof, and in such case he 
 may also frame his prayer in the alternative so as to obtain 
 the proper relief according as the fact may appear at the hear- 
 ing of the cause. (13) And so a bill to set aside a deed alleg- 
 ing that it was not intended to pass title unless the purchase 
 price was paid, and that such price was not paid, and asking 
 in the alternative that if the first mode of relief should fail, 
 and the deed for any reason stand, then that the purchase 
 money which should have been paid, but was not paid, might 
 be declared a lien against the title so held, was held good on 
 demurrer. (14) So a bill for the specific performance of a 
 contract may contain an alternative prayer for the repayment 
 of moneys paid on account of such contract. ( 1 5 ) And so a 
 bill for dower may set up a claim to an equitable title to the 
 land in the widow, and pray that if that claim shall fail dower 
 may be assigned. (16) A complainant will not, however, be 
 permitted to allege two inconsistent states of facts in his bill, 
 and ask relief in the alternative. Thus where complainants 
 file their bill praying first a decree that defendant specifically 
 perform an award previously made between the parties by 
 arbitration, touching the fairness and equality of the partition 
 of lands formerly held by them as tenants in common; and, 
 secondly, that if the court decline to decree specific perform- 
 ance of the award, it should ascertain whether the partition 
 was fair and equal, and, if not, should make such decree as 
 will equalize it; and defendant answered to that part of the 
 bill which sought a performance of the award, and demurred 
 to the remainder, on the ground that the fairness of the par- 
 tition could not be questioned while complainant by his bill 
 insisted on the validity of the award and asked a performance 
 thereof ; it was held that the demurrer was well taken, because 
 complainant in his bill insisted on the validity of the award 
 and demanded its performance. If the award was valid, and 
 both parties were concluded by it, the validity of the partition 
 could not be drawn in question. (17) 
 
 (13) Lloyd V. Brewster, 4 Paige Ch., 536. 
 
 (14) Holmes v. Holmes, 59 N. J. Eq., 449. 
 (is) Young V. Young, 45 N. J. Eq., 27. 
 
 (16) Rockwell V. Morgan, 13 N. J. Eq., 384. 
 
 (17) Emans v. Emans, 14 N. J. Eq., 114. 
 
Prayer for Process. 159 
 
 Prayer for Process. The conclusion of the bill is a prayer 
 for process to compel the appearance and answer of the de- 
 fendant. The prayer for process selects and designates the 
 parties to the bill. No persons are parties to a bill except 
 those against whom process is prayed, or those who are specifi- 
 cally named and described in the bill as defendants. A person 
 does not become a party merely because his name is mentioned 
 in the bill.(i8) Defendants must be specially named in a bill, 
 and process prayed against them ; a prayer in a bill for process 
 against "the said defendants" without naming anybody is 
 fatally defective, unless it appears with reasonable certainty 
 in the other parts of the bill who are referred to as "the said 
 defendants." (19) 
 
 The general rule is that the bill must present parties to the 
 court in the precise capacity in which it is wished to charge or 
 bind them; (20) but where a bill in its averment sets forth 
 facts sufficient to show that a defendant is liable as an execu- 
 tor, assignee, trustee or in' any other special capacity, so that 
 the court upon these allegations can give the relief required, 
 it is no valid objection that such parties are not so styled 
 either in the prayer for process or in the process itself. (21) 
 So where a bill was brought by one of three executors against 
 the other, two to compel them to pay into the estate moneys 
 due from them, and the defendants were not styled executors 
 in the prayer for process, but the bill in its premises fully 
 stated the facts upon which complainant's right to relief rested, 
 and correctly described the character and relation of the parties, 
 it was held that the defendants were before the court in their 
 capacity as executors as well as in their individual capacity. (22) 
 
 I 
 
 (18) White V. Davis, 48 N. J. .Eq., 22; affirmed, 49 N. J. Eq., 567; 
 Talmadge v. Pell, 9 Paige Ch., 409 ; Brasher v. Van Cortlandt, 2 John's 
 On., 242 ; Windsor v. Windsor, 2 Dickins, 707 ; Fawkes v. Pratt, i P. 
 Wms., 592. 
 
 (19) Howe V. Robins, 36 N. J. Eq., 19. 
 
 (20) Kirkpatrick v. Corning, 38 N. J. Eq., 234; Lomerson v. Vroom, 
 42 N. J. Eq., 290. 
 
 (21) Walton V. Herbert, 4 N. J. Eq., 73; Evans v. Evans, 23 N. J. 
 Eq., 71; Ransom v. Geer, 30 N. J. Eq., 249; Plaut v. Plaut, 44 N. J. 
 Eq., 18; Matthews v. Hoagland, 48 N. J. Eq., 455; White v. Davis, 
 48 N. J. Eq., 22; affirmed,' 4Q N. J. Eq., 567; Harlem Co-operative Co. 
 v. Freeburn, 54 N. J. Eq., 37; Hatt v. Rich, 59 N. J. Eq., 492-500; 
 Evans v. Evans, S7 Atl., 872. 
 
 (22) Evans v. Evans, 23 N. J. Eq., 71. 
 
160 Bills in Equity. 
 
 And so if a bill describe a defendant as executor, and the 
 
 premises of the bill set forth facts showing that such defend- 
 ant is a trustee as well as executor, he will be considered as 
 being before the court in his capacity of trustee as well as 
 executor. (23) So an assignee for the benefit of creditors, who 
 was made a party to a bill in his personal capacity, was held 
 to be a party defendant as such assignee. (24) And an aver- 
 ment of the corporate existence of complainants is unneces- 
 sary. (25) But the mere fact that an executor, trustee, or 
 assignee is a party defendant to a suit in his personal capacity 
 is not sufficient to give the court jurisdiction over him in his 
 representative capacity in the absence of allegations in the 
 bill disclosing the necessity for such party to be before the 
 court in a representative character. (26) So where a bill is 
 filed against defendants as trustees and as the representatives 
 of a testator, in their representative capacity, and the prayer 
 for relief is in conformity thereto, the complainant is entitled 
 to an account in that aspect only. (27) 
 
 A bill which contains no prayer for process is demurra- 
 ble. (28) So if the names of necessary parties are omitted 
 from the prayer for process, advantage of this defect may be 
 taken by demurrer. (29) 
 
 Bill must be Signed by Counsel. From an early period 
 the signature of counsel practicing at the Qiancery bar was 
 required to every bill. That sanction for the issuing of the 
 subpoena was substituted for the personal examination of the 
 bill by the chancellor, and it was, besides, a security against the 
 introduction of scandalous and irrelevant matter with which 
 the parties were too apt to defile the records, when left to 
 
 (23) Hatt V. Rich, 59 N. J. Eq., 492-500 ; but the fact that by the will 
 of a deceased defendant the executors eo nominie are trustees and 
 devisees, does not make them parties in their capacity as executors, 
 if they are made parties only as trustees and devisees and because of 
 being such devisees, Ball v. Ward, 73 N. J. Eq., 440. 
 
 (24) White V. Davis, 48 N. J. Eq., 22; affirmed, 49 N. J. Eq.", 567. 
 
 (25) German Reformed Church v. Von Puechelstein, 27 N. J. Eq., 
 30. 
 
 (26) Harlem Co-operative Co. v. Freeburn, 54 N. J. Eq., 37. 
 
 (27) Scott V. Gamble, 9 N. J. Eq., 218. 
 
 (28) Wright V. Wright, 8 N. J. Eq., 143; Elmendorf v. Delancy, 
 I Hopk. Ch., ss. 
 
 (29) Boon V. Pierpont, 28 N. J. Eq., 7. 
 
Signature. 161 
 
 themselves. (30) The rules of the Court of Chancery from an 
 early date have provided that every bill shall be signed by 
 counsel before it is filed. (31) 
 
 The language of the rule as well as the object and spirit of 
 it requires, that the bill be signed by counsel, not with the 
 name of counsel ; signing the name of counsel even with his 
 consent is not a compliance with the rule. (32) Even though 
 a bill be signed by a solicitor who has the standing of counsel, 
 it will not be sufficient unless he signs it as soHcitor and 
 counsel. (33) A signature to a bill in the firm name of two 
 counsellors who are in partnership is, however, a compliance 
 with the rule if the signature be in the proper handwriting of 
 one of the members of the firm. (34) A bill which is not 
 signed by counsel is bad on demurrer. (35) 
 
 GENERAL RULES CONCERNING PLEADINGS. 
 
 All bills, petitions and other pleadings and all orders and 
 papers of every nature intended to be filed in any case, shall be 
 printed, or fairly and legibly written by the pen or typewriter in 
 exact conformity with Rule 218.(36) Every bill shall be signed 
 by counsel before it is' filed. (37) Every paper, before being 
 filed, shall be endorsed in the court, and with the name of the 
 complainant, or of the first complainant if there be more than 
 one, and with the name of the defendant, or of the first defend- 
 ant if there be more than one, and with a statement of the con- 
 tents, as "bill," "answer," "decree," or the like, and with the 
 name of the solicitor, or of the party, if he appears for him- 
 self ; such endorsement shall not occupy more than the upper 
 one-half of the folded paper and the lower one-half thereof 
 shall be left blank until filed. (38) 
 
 (30) Hampton v. Coddington, 28 N. J. Eq., 557. 
 
 (31) Chancery Rule 48. 
 
 (32) Davis V. Davis, 19 N. J. Eq., 180. 
 
 (33) Partridge v. Jackson, 2 Edw. Ch., 520. 
 
 (34) Hampton v. Coddington, 28 N. J. Eq., 557. 
 
 (35) Wright v. Wright, 8 N. J. Eq., 142. 
 
 (36) See page. 162, infra. 
 
 (37) "See Bill must be signed by Counsel," page 160, supra. 
 
 (38) Chancery Rule 48. 
 
162 Rules Concerning Pleadings. 
 
 The complainant or petitioner appearing for himself shall 
 append to his name endorsed on his bill or petition a statement 
 of his residence. The solicitor of any complainant or petitioner 
 shall append to his name endorsed on the bill or petition a state- 
 ment of his office address in this State. A defendant appearing 
 for himself shall append to his name endorsed on the first paper 
 filed by him in the cause a statement of his residence. The 
 solicitor of any defendant shall append to his name endorsed 
 on the first paper filed by him in the cause a statement of his 
 office address in this State. (38a) 
 
 The clerk shall not suffer to be filed in his office any pleading 
 or other paper, in a cause pending in the court, which shall 
 have been printed by means of a typewriter by the use of car- 
 bon paper, or by the use of any other than what is known as 
 a "black record ribbon," nor unless the paper upon which the 
 pleading is printed shall weigh at least seven pounds to the 
 ream of five hundred sheets. (39) 
 
 (38a) Chancery Rule 50. 
 (39) Chancery Rule 218. 
 
Multifariousness. 163 
 
 CHAPTER III. 
 MULTIFARIOUSNESS. 
 
 In General. By multifariousness is meant improperly 
 joining in one bill distinct and independent matters, and thereby 
 confounding them ; as for example, the uniting in one bill of 
 several matters perfectly distinct and unconnected against one 
 defendant, or the demand in the same bill of several matters 
 of a distinct and independent nature against several de- 
 fendants. ( I ) 
 
 To lay down any rule applicable universally, or to say 
 what constitutes multifariousness as an abstract proposition 
 is upon the authorities utterly impossible. The cases upon the 
 subject are extremely various, and the courts, in deciding them, 
 seem to have considered what was convenient in the particular 
 circumstances, rather than to have attempted to lay down 
 any absolute rule. One of the causes of this confusion is due 
 to the fact that although the books speak generally of de- 
 murrers for multifariousness, yet in truth such demurrers may 
 be divided into three distinct classes: First, to a misjoinder 
 of causes of action in a bill. Second, to a misjoinder of parties 
 complainant; and Third, to a misjoinder of parties defendant. 
 As commonly used the term includes all three classes, although 
 the latter two might more aptly be designated as misjoinder 
 of parties. (2) 
 
 The rule in regard to multifariousness, whether arising 
 from the misjoinder of causes of actions, or of parties is not 
 an inflexible rule of practice or procedure, but is a rule found- 
 ed in general convenience, which rests upon the consideration 
 of what will best promote the administration of justice without 
 multiplying unnecessary litigation on the one hand, or drawing 
 suitors into needless and unnecessary expense on the other. (3) 
 
 The court in dealing with this objection is simply called 
 upon to exercise its sound discretion and to decide whether 
 
 (i) Marselis v. Morris Canal Co., i N. J. Eq., 31; Story's Eq. 
 PL, section 271. 
 
 (2) Emans v. Etnans, 14 N. J. Ex[., 114; Knikel v. Spitz, 74 N. J. 
 Eq., 581 ; Campbell v. McKay, i My. & C, 603. 
 
 (3) Durling v. Haramar, 20 N. J. Eq., 220; Lehigh Valley v. Mc- 
 Farlan, 31 N, J. Eq., 730, 758; Young v. Young, 45 N. J. Eq., 27, 38; 
 Van Hise v. Van Hise, 6x N. J. Eq., 37. 
 
164 Multifariousness. 
 
 both or all the causes of action set forth in the bill should be 
 tried in a single suit or should be split up and tried in two or 
 more suits, or whether a defendant, who is a. necessary party . 
 in respect to one or more matters covered by the bill, has a 
 sufficient interest in or connection with the other matters in- 
 volved in the suit, to make him a proper party in respect to 
 such other matters. (4) 
 
 Misjoinder of Causes of Actions. The form of multifar- 
 iousness to which the term is most properly applicable is that, 
 where the fault lies in uniting in one bill several matters per- 
 fectly distinct and unconnected, against the same defendant. 
 (S) No general test as to what causes of action may be prop- 
 erly joined and what may not can be laid down, but it may 
 be stated generally that multifariousness exists when a party 
 is able to say he is brought in as a defendant upon a record 
 with a large portion of which and of the case made by which 
 he has no concern whatever, but that it does not exist in a 
 case where it appears that the complainants have common 
 interests, and the defendants are interested in all the different 
 questions raised on the record, and the suit has a common 
 object. (6) Or in other words, a bill disclosing no common 
 subject matter in respect to which complainant seeks relief, 
 but adverse and disconnected matters in respect to some of 
 which no relief is prayed for or could be granted as to some 
 of the defendants, is multifarious. (7) Thus, a bill by the 
 creditors of an insolvent company for the settlement of its 
 affairs, and which also seeks to settle disputed claims between 
 the company and its officers, is multifarious. (8) And so a 
 bill against a corporation seeking an injunction and receiver 
 
 (4) Rockwell V. Morgan, 13 N. J. Eq., 384-385; Emans v. Emans, 
 14 N. J. Eq., 114; Ferry v. Laible, 27 N. J. Eq., 146; Bolles v. 
 Belles, 44 N. J. Eq., 385 ;. Young v. Young, 45 N. J. Eq., 27, 38 ; Con- 
 over V. Sealy, 45 N. J. Eq., 589; Rowbotham v. Jones, 47 N. J. Eq., 
 337; Stevens v. Bosch, S4 N. J. Eq., 59; Collins v. Leary, 71 Atl. Rep., 
 603 ; Campbell v. MacKay, i Myl. & C., 603 ; Morristown v. Morris & 
 Somerset, 83 Atl., 178. 
 
 (5) Crane v. Fairchild, 14 N. J. Eq., 76; Daniels Chy. Pr., p. 334. 
 
 (6) Van Mater v. Sickler, 9 N. J. Eq., 483; Emans v. Wortman, 
 13 N. J. Eq., 20s; Crane v. Fairchild, 14 N. J. Eq., 76; Ferry v. 
 Laible, 27 N. J. Eq., 146; Cocks v. Varney, 42 N. J. Eq., 514; Bolles. 
 v. Bolles, 44 N. J. Eq., 385; The American Central Ins. Co. v. 
 Landau, 56 N. J. Eq., 513- 
 
 (7) Van Hise v. Van Hise, 61 N. J. Eq., 37. 
 
 (8) Barriclo v. Insurance Co., 13 N. J. Eq., 154. 
 
, Misjoinder of Causes. 165 
 
 on the ground of insolvency under the Corporation Act, and 
 also embracing a distinct action based upon the general ec^uity 
 jurisdiction of the court against the same alleged insolvent 
 corporation and other defendants is multifarious. (9) So a 
 bill which seeks to compel the specific performance of an 
 award in favor of complainants in pursuance of an agreement 
 for submission to arbitration, and which also seeks to compel 
 the defendants to account for any pay to complainants the 
 value of certain property conveyed by one of the complain- 
 ants and one of the defendants to the other defendant, is 
 multifarious. (10) 
 
 If a joint claim against two defendants is joined in the 
 same bill with a separate claim against one of them only, 
 either or both of the defendants may demur for multifarious- 
 ness,(ii) and so where the object of the bill is to reform a 
 deed in which one of the defendants has no concern and also 
 to set aside a trust in which he is concerned, the bill is multi- 
 farious. (12) So a bill which sets up distinct and different 
 causes of complaint which destroy each other, and which seeks 
 different reliefs inconsistent with each other, is multifarious. 
 (13) So, where a bill asks for relief on the ground that com- 
 plainant is a creditor and the real estate in controversy was 
 conveyed to two of the defendants by complainant's debtor 
 for the purpose of defrauding him, and the bill also asks 
 for relief on the grounds that he is one of the heirs at law of 
 the late owner of the property and that the said defendants 
 procured the conveyance of said lands from his ancestor by 
 fraud, it was held that the bill was multifarious. (14) 
 
 This rule does not, however, apply to the case of a prayer 
 for alternative relief where the prayers in the bill are not 
 inconsistent with each other. So a bill for the specific per- 
 formance of a contract, which contains an alternative prayer 
 
 (9) Pierce v. Old Dominion, etc., Smelting Co., 67 N. J. Eq., 399. 
 
 (10) Emans v. Wortman, 13 N. J. Eq., 20s; and so a cross bill, 
 seeking the distribution of a trust fund, and to subject complain- 
 ant's share of the trust fund to the payment of a judgment obtained 
 against him by one of the defendants, is multifarious; Plum v. Smith, 
 S6 N. J. Eq., 468. 
 
 (11) Emans v. Wortman, 13 N. J. Eq., 205; Crane v. Fairchild, 
 14 N. J. Eq., 76; Van Houten v. Van Winkle, 46 N. J. Eq., 380. 
 
 (12) Van Houten v. Van Winkle, 46 N. J. Eq., 380. 
 
 (13) Swayze v. Swayze, 9 N. J. Eq., 273. 
 
 (14) Swayze v. Swayze, 9 N. J. Eq., 273. 
 
166 Multifariousness. 
 
 for the repayment of moneys paid on account of such con- 
 tract, is not multifarious, (15) and so a bill for dower, which 
 sets up a claim to an equitable title to the land in the widow, 
 and prays that if that claim shall fail, dower may be assigned, 
 is not multifarious. (16) 
 
 If on the other hand, a complainant has two good causes of 
 action, each furnishing the foundation of a separate suit, one 
 the natural outgrowth of the othef, but springing from the 
 same subject matter, and which together make up complain- 
 ant's equity and are necessary to complete relief, they may 
 be properly joined, and the objection of multifariousness will 
 not be sustained. (17) So a bill by a beneficiary under a for- 
 eign will, against the executrix, seeking an accounting and 
 also alleging that the same defendant was executrix and trus- 
 tee under a will of a resident of this State, in which com- 
 plainant was interested, and had never properly accounted for 
 the assets thereof, but had mingled them with the assets de- 
 rived from the foreign estate and used them in the purchase 
 of real estate, which she caused to be conveyed to her children, 
 and seeking an accounting in both estates and relief as to such 
 real estate, is not open to demurrer for misjoinder of causes 
 of action, the two separate accountings sought being essential 
 and necessary to the main relief prayed against the real estate 
 thus acquired from the mingled assets. (18) So a bill by a 
 widow to set aside a conveyance of her life interest in real 
 estate, alleged to have been made by her to her son by reason 
 of importunity, deceit and duress, and also praying for an ac- 
 count and the return to her custody of personalty of which 
 the son had taken possession, is not multifarious. (19) And 
 so a bill by a receiver of a corporation alleging that the bonds 
 and stocks were issued without the payment of any considera- 
 tion or for a small portion only of the face value, and seeking 
 to ascertain the amount for which each of the bonds should be 
 held, to reduce the secured debt of the company accordingly, 
 
 (is) Young V. Young, 45 N. J. Eq., 27. 
 
 (16) Rockwell V. Morgan, 13 N. J. Eq., 384; and see "prayer for 
 alternative relief," page 157, supra. 
 
 (17) Chapman v. Hunt, 14 N. J. Eq., 149; Hicks v. Campbell, 
 19 N. J. Eq., 183; Ferry v. Laible, 27 N. J. Eq., 146; Conover v. Sealy, 
 45 N. J. Eq., 589. 
 
 (18) Holzer V. Thomas, 69 N. J. Eq., 515. 
 
 (19) Danner v. Banner, 30 N. J. Eq., 67. 
 
Misjoinder of Causes. 167 
 
 to declare the bonds, issued without consideration void, to 
 ascertain the amount actually paid to the company for their 
 stock by the several stockholders, and after applying all the 
 assets to the payment of creditors, to assess the difference pro 
 rata against such stock holders as have not paid for their 
 stock in full, is not multifarious. (20) So where complainant's 
 husband made a contract with defendant's husband and a cor- 
 poration controlled by him by which the corporation was to 
 have the use of a patent belonging to complainant's husband 
 for which the corporation agreed to pay a royalty and defend- 
 ant's husband agreed to convey to complainant a house, it was 
 held that the transaction was a single agreement and could be 
 dealt with by one decree against the two sets of defendants 
 and that a bill for the specific performance of the agreement 
 making defendant, her husband's heirs, and the corporation, 
 defendants, was not multifarious. (21) Where a bill to re- 
 strain defendants from utilizing a trade secret belonging to 
 complainant alleged that one of the defendants had by the 
 help of all the other defendants established and carried on 
 a plant for the utilization of such secret, it was held proper to 
 unite all such defendants in the bill. (22) So where several 
 persons claim separately under conveyances by a single judg- 
 ment debtor, all of which were made in carrying out the debt- 
 or's scheme of fraud on his creditors, the objection of multi- 
 fariousness, even when taken by a grantee of a portion of the 
 property, will be overruled. (23) So a bill filed by an execu- 
 tion creditor is not demurrable for multifariousness because 
 it seeks to set aside fraudulent conveyances and at the same 
 time to reach other property of the debtor, which is not the 
 subject of execution at law, and respecting which a discovery 
 is prayed. (24) So a creditor's bill is not multifarious because 
 complainant attempts to follow in one bill separate properties 
 and classes of property of the debtor in the hands of separate 
 
 (20) See V. Hepperiheimer, 55 N. J. Eq., 240; affirmed, 56 N. J. Eq., 
 453- 
 
 (21) Collins V. Leary, 71 Atl., 603. 
 
 (22) Vulcan Detinning Co. v. American Can Co., 67 N. J. Eq., 243. 
 
 (23) Way V. Bragaw, 16 N. J. Ekf., 213; Randolph v. Daly, 16 N. J. 
 Eq., 313; Importers & Traders Bank v. Littell, 41 N. J. Eq., 29; 
 Warwick v. Perrine, 65 N. J. Eq., 735 ; Shutts v. United Box, Board 
 & Paper Co., ^ N. J. Eq., 225. 
 
 (24) Randolph v. Daly, 16 N. J. Eq., 313; Way ■{. Bragaw, 16 N. J. 
 Eq., 213. 
 
168 Multifariousness. 
 
 defendants. (25) And so a bill for partition which also in- 
 cludes a prayer for an account from some of the defendants, 
 who were in possession of the premises, is not multifarious. 
 (26) So a complainant in a bill, one object of which is the 
 partition of lands, may include therein a question of title of said 
 lands, when the question is one for equitable cognizance. (27) 
 A bill praying that certain deeds alleged not to have been de- 
 livered by decedent in his lifetime may be set aside, and praying 
 also for the partition of lands conveyed by such deeds, is not 
 multifarious. (28) And so a bill filed by a person out of posses- 
 sion, who claims and seeks to have established an equitable 
 title of an undivided one-half part of a farm and who in the 
 same bill prays for a partition of the farm, is not multifari- 
 ous. (29) So, where in a suit by the assignee of a mortgage 
 on the undivided four-fifths of a house and lot, to foreclose 
 his mortgage, the owner of the equity of redemption of said 
 four-fifths, a judgment creditor of said owner and the holder 
 of the second mortgage of said four-fifths, who was also the 
 owner of the remaining one-fifth interest in the premises, 
 were made parties, it was held that a prayer for partition 
 of the premises in the ordinary form did not render the 
 bill multifarious. (30) 
 
 Where in an action for an accounting the bill states several 
 separate grounds for equitable relief, but they are so inter- 
 mingled that all must be determined in order to settle the 
 account, the bill is not multifarious. (31) So, a bill for the 
 specific performance of a contract, agreeing on a division of 
 certain assets, and to set aside as fraudulent a conveyance for 
 a nominal consideration of a portion of such assets made to 
 one of the defendants having notice of the contract, for the 
 purpose of hindering and delaying its enforcement, is not 
 multifarious, since its object is to carry out the contract, and 
 
 (25) Burne v. O'Shaughnessy, 38 Atl. Rep., 963. 
 
 (26) Obert V. Obert, 10 N. J. Eq., 98; affirmed, 12 N. J. Eq., 423. 
 
 (27) Woglom V. Kant, 69 N. J. Eq., 489; and see "Partition," 
 page 674, infra. 
 
 (28) Vreeland v. Vreeland, 49 N. J. Eq., 322. 
 
 (29) Durling v. Hammar, 20 N. J. Eq., 220. 
 
 (30) Conover v. Sealy, "^ N. J. Eq., 589. 
 
 (31) Canon v. Ballard, 62 N. J. Eq., 383.; affirmed, 63 N. J. Eq., 797; 
 Evfins V. Evans, 57 Atl., 872. 
 
Misjoinder of Complainants. 169 
 
 the fraudulent conveyance must be disposed of to accomplish 
 that result. (32) 
 
 A bill is not multifarious which sets up one sufficient ground 
 for equitable relief and also sets' up another distinct and 
 separate claim which upon its face contains no equity which 
 can entitle the complainant to the interposition of the court 
 either for discovery or relief. The proper course for the de- 
 fendant in such case is to answer as to the first claim and de- 
 mur to the second for want of equity; or he may answer as 
 to both, and make the objection as to the want of equity in 
 the latter claim at the hearing. (33) And in suits between 
 the proper parties, relating to the same subject matter, several 
 species of relief may be prayed, though each might be the 
 subject of a separate suit. (34) 1 
 
 Misjoinder of Complainants. Courts of Equity have 
 always exercised a sound discretion in determining whether 
 parties are properly joined in a suit. Their object has been 
 to adopt a course which will best promote the due administra- 
 tion of justice without multiplying unnecessary litigation on 
 the one hand, or causing suitors needless and oppressive ex- 
 pense and confusing the courts with many issues on the other. 
 (35) To justify the joinder of several persons as parties com- 
 plainant, it is necessary to show that they have a" common 
 interest in the ■subject matter of the bill, that the act com- 
 plained of operated upon them jointly and that they are en- 
 titled to joint relief. Parties having no common- interest, but 
 asserting several and distinct rights cannot unite and seek 
 redress in a joint suit, although their several rights of action 
 may be against the same defendant; to authorize them to join 
 as complainants, their cause of action must be the same, the 
 injury must be the same and they must have the same remedy. 
 
 (32) Woodrid'ge v. Carlstadt, 60 N. J. Eq,, i ; see also Young v. 
 Young, 45 N. J. Eq., 27 ; Stevens v. Bosch, 54 N. J. Eq., 59 ; Amer- 
 ican Central Ins. Co. v. Landau, 56 N. J. Eq., 513; Schlicher v. Vogel, 
 59 N. J. Eq., 35 1 ; Van Hise v. Van Hise, 61 N. J. Eq., 37. 
 
 (33) Emans v. Emans, 14 N. J. Eq., 114; Knikel v. Spitz, 74 N. J. 
 Eq., 581 ; Varick v. Smith, 5 Paige ch., 136. , 
 
 (34) Durling v. Hammar, 20 N. J. Eq., 220. 
 
 (35) Rowbotham v. Jones, 47 N. J. Eq., 337-3.39; affirmed, 48 N. J. 
 Eq., 311; Atty. Gen. v. Paterson, 58 N. J. Eq., i, 8; Reversed, 60 N. J. 
 Eq., 385. 
 
no Multifariousness. 
 
 (36) So where several persons having distinct and independ- 
 ent interests join as complainants to prevent the defendant 
 from entering upon their several parcels of land and excavat- 
 ing the same for the purpose of making a canal without making 
 compensation to the complainants respectively for their several 
 properties, the bill was held to' be multifarious ;(37) and so 
 where the respective owners of lots claiming titles to the middle 
 of the street on which their lots abutted, united in a bill to 
 restrain the construction of a horse railroad through such 
 street on the ground that their property was taken for public 
 use without just compensation, it was held that there was a 
 misjoinder of parties complainant ;( 38) and so where a grantor 
 conveyed two different tracts of land to two different grantees 
 at different times, such grantees cannot unite in a suit to pre- 
 vent the sale of their respective lands under a judgment 
 against their common grantor, (39) nor to reform the convey- 
 ance to correct an alleged mistake therein. (40) In both the 
 last cited cases, the two conveyances constituted separate and 
 entirely distinct transactions, and neither complainant had any 
 interest in or connection with the contract of the other. They 
 were therefore improperly joined as complainants. But 
 where a tract of land was bought by three persons, each hav- 
 ing an equal interest therein, and the title was taken in the 
 defendant's name in trust, merely for the purpose of conven- 
 ience, and the said lands were afterwards divided into build- 
 ing lots and conveyed by the defendant among the purchasers 
 pursuant to an agreement, and it was afterwards found that 
 a mistake had been made in the conveyances whereby the com- 
 plainants did not respectively receive the lots as agreed upon 
 among themselves ; on a bill filed by the original parties to tlie 
 allotment, their devisees and grantees of the lots therein 
 against the defendant, to reform their respective deeds, it 
 was held that since the defendant could have no defence 
 
 (36) Marselis v. Morris Canal Co., i N. J. Eq., 31 ; Dare v. Allen, 
 2 N. J. Eq., 288; Plum v. Morris Canal Co., 10 N. J. Eq., 256; Hend- 
 rickson v. Wallace, 31 N. J. Eq., 604; Demarest v. Hardham, 34 N. J. 
 Eq., 469. 
 
 (37) Marselis v. Morris Canal Co., i N. J. Eq., 31. 
 
 (38) Hinchman v. Paterson Horse R. R. Co., 17 N. J. Eq., 75 ; 
 M. & E. R. R. Co. V. Pruden, 20 N. J. Eq., 530. 
 
 (39) Titus V. Bennet, 8 N. J. Eq., 267. 
 
 (40) Hendrickson v. Wallace, 31 N. J. Eq., 604; Booraem v. 
 Wells, 19 N. J. Eq., 87. 
 
Misjoinder of Complainants. 171 
 
 peculiar to any of the conveyances and not equally applicable 
 to the others, complainants had such a common interest in the 
 subject matter of the suit as authorized them to sue jointly, 
 and that consequently a demurrer for misjoinder of parties 
 complainant must be overruled. This case differs from the 
 cases of Hendrickson vs. Wallace, and Booream vs. Wells 
 cited above in that in those cases the suit was brought for the 
 reformation of a deed given by the same grantor to different 
 persons at different times for different pieces of land — the 
 transactions were entirely distinct, the interests of the com- 
 plainants were in no wise connected with each other and the 
 granting of relief to one would not in any wise have 
 affected the others; while in the case under consideration, as 
 said above, the complainants had an interest in the suit and 
 the defendant would have had no defence peculiar to any of 
 the conveyances to his grantees not equally applicable to the 
 others. (41) 
 
 Another illustration of the same principle is the calse where 
 several depositors in a savings bank, who had been induced 
 to make their deposits by misrepresentation of the directors, 
 joined in a bill to compel the directors to indemnify them 
 against the loss sustained by them through the failure of the 
 bank. In this case it was held that the injurious act of the 
 defendants was joint, but that as it operated upon each of the 
 complainants as an individual standing alone and out of all 
 connection with his fellows, each depositor was separately de- 
 ceived. As actors in the suit, each would be obliged to prove 
 a distinct wrong done himself; some by the proofs might sus- 
 tain their case while at the same time others might fail to do 
 so; they had therefore no common interest, and could not be 
 joined as complainants. The bill filed in this case also alleged 
 an mjury to the stockholders by reason of the mismanage- 
 ment of the directors, and it was held that as to this charge the 
 bill was not multifarious, as the act complained of operated 
 upon all jointly. (42) 
 
 The right of a beneficiary of a trust to maintain a suit for 
 an accounting against the surviving trustee and the adminis- 
 trator of a deceased trustee, who has failed to account to the 
 
 (41) Dod V. Paul, 42 N. J. Eq., 154. 
 
 (42) Chester v. Halliard, 34 N. J. Eq., 341 ; aMrmed, 36 N. J. Eq., 
 13- 
 
172 Multifariousness. 
 
 surviving trustee, is entirely separate and distinct from his 
 right to the personal estate of one of the other beneficiaries of 
 the trust as his substituted administrator; and hence a bill 
 for an accounting to enforce both such rights is multifarious, 
 in the absence of special circumstances showing the necessity 
 of including both in a single suit. (43) So where a complain- 
 ant, as next of kin, calls upon the defendant who is the per- 
 sonal representative of the intestate, to answer in that capac- 
 ity, and as heir-at-law calls upon the defendant to account for 
 the rents and profits, the bill is multifarious. (44) 
 
 On the other hand, where it appears that the complainants 
 of a bill have a common interest, that the defendants are inter- 
 ested in all the different questions in the record and the suit 
 has a common object, the bill is not multifarious. (45) So 
 a bill by devisees against the executor and a co-devisee to set 
 aside a deed from the executor to his co-defendant, and for 
 an accounting, is not multifarious, all the complainants having 
 a common interest. (46) And so a bill is not demurrable on 
 the ground of misjoinder of several complainants, any one 
 of whom would not be entitled to proceed separately for re- 
 lief without making the others defendants, (47) 
 
 Several judgment creditors of a common debtor may join 
 in a bill to set aside a fraudulent transfer made by their 
 debtor, since in such a suit there is no particular matter in 
 litigation peculiar to each complainant. Their rights are 
 already established, and the subject in dispute may be said to 
 be joint as between the complainants on the one hand and the 
 defendant on the other, who is charged with a scheme to delay, 
 hinder and defraud his creditors. If each judgment creditor 
 were obliged to file his separate bill, it would merely bring the 
 same question of fraud into repeated discussion. (48) So a 
 surety who has paid a portion of his principal's debt may join 
 with the creditor in a suit against the principal to recover the 
 
 (43) Evans v. Evans, 58 Atl., 904. 
 
 (44) Van Mater v. Sickler, 9 N. J. Eq., 483. 
 
 (45) Couse V. Columbia Powder Mfg. Co., 33 Atl., 297; Belles 
 V. BoUes, 44 N. J. Eq., 385; Campbell v. McKay, i Myl. & C, 603. 
 
 (46) Bolles v. BoUes, 44 N. J. Eq., 385. 
 
 (47) Hicks V. Campbell, 19 N. J. Eq., 183. 
 
 (48) Lore V. Getsinger, 7 N. J. Eq., 191 ; Reversed, ib., 639 ; 
 Williams v. Michenor, 11 N. J. Eq., 520; Morehouse v. Kissam, 58 N. J. 
 Eq., 364; aMrmed, 60 N. J. Eq., 443. 
 
Misjoinder of Complainants. 173 
 
 debt;(49) and so where the widow and heir at law of a de- 
 ceased party to a contract for the conveyance of lands were 
 joined as parties complainants to a suit to enforce such con- 
 tract, it was held that the estates of the widow and heir at 
 law sprang from a common source, and were not so antago- 
 nistic to each other; or so distinct and dissimilar, as to pre- 
 vent their joining in a single suit to enforce such contract. ( 50) 
 Any number of persons severally owning or possessing dis- 
 tinct tenements injuriously affected by a common nuisance or 
 other common grievance may join in a bill for injunction or 
 relief; provided that it shall be in the discretion of the Chan- 
 cellor to strike out of the bill any such complainants, when in 
 his opinion the justice of the case or convenience of proceed- 
 ing shall require it. ( 5 1 ) 
 
 A nuisance or grievance is common to several when it affects 
 all of them, not necessarily precisely at the same moment and 
 in the same degree, but at the same period of time and in a 
 similar way; so that the same relief may be had in the suit 
 whether there be one or a dozen complainants, and the defence 
 against any one of the complainants will be a defence against 
 all. (52) So several owners of different dwellings' may join 
 in a suit to restrain the operation of a- private lunatic asylum 
 from which patients are permitted to wander unattended and 
 in which such patients are accustomed to scream loudly and 
 distressingly for great lengths of time, the injury being a com- ' 
 mon one affecting each in . the same way, though not at the 
 same moment, in the enjoyment of his property ;(S3) and on 
 the same principle, where a riparian owner for his own advant- 
 age deliberately pollutes the water of a stream, several owners 
 of different parcels of land on the banks of such stream may 
 join as complainants to enjoin such pollution. (54) So where 
 the owner of a dam executes leases granting to each lessee 
 
 (49) Comins v. Culver, 35 N. J. Eq., 94. 
 (so) Young V. Young, 45 N.^J. Eq., 27. 
 
 (51) Chancery rule 132. 
 
 (52) Demarest v. Hardham, 34 N. J. Eq., 469 ; Young v. Young, 
 45 N. J. Eq., 27, 36; Rowbotham v. Jones, 47 N. J. Eq., 337; aMrmed, 
 48 N. J. Eq., 3". 
 
 (53) Rowbotham v. Jones, 47 N. J. Eq., 337; affirmed, 48 N. J. Eq., 
 311- 
 
 (54) Attorney General v. Paterson, 58 N. J. Eq., i ; Reversed, 60 
 N. J. Eq., 38s. 
 
174 Multifariousness. 
 
 the right to draw off a specified quantity of water from the 
 nearest raceway, there is such a community of interests among 
 the lessees as to enable them to join with the lessor in a suit 
 to recover damages for the pollution of the water of the 
 stream. (55) . 
 
 If an injurious act operates upon each sf several persons as 
 an individual standing out of all connection with his fellows, 
 and the grounds of relief are a special injury to the property 
 of each, such persons may not join as parties complainant in 
 a suit founded upon such injurious act. (56) So where several 
 owners of distinct tenements joined in a bill to restrain the 
 operation of a drug mill because of offensive smoke and smells 
 emitted, and one of them also claimed injury because of the 
 jarring of his building by the operation of the machinery in 
 the mill, it was held that he was improperly joined, since he 
 claimed relief by reason of a special injury suffered by him; 
 although the bill was retained, because as to the smoke and 
 fumes complained of the grievance was common. (57) 
 
 If several persons have a common interest in the object of 
 the suit, it is not necessary that their interests should be co- 
 extensive ; thus, a dowress and heir, or a tenant for life and 
 remainderman may join in a suit respecting their interests in 
 an estate. (58) So where a trustee holds securities in trust to 
 pay the income to one for life with remainder over to third 
 persons, and upon the death of the life tenant a portion of the 
 income remains unpaid, the representatives of the life tenant 
 may join with the remaindermen- in a suit to recover, the 
 representatives the unpaid income, the remaindermen the 
 principal. (59) 
 
 Misjoinder of Defendants. Misjoinder of parties defend- 
 ants exists where a party is able to say he is brought in as 
 defendant upon a record with a large part of which and with 
 the case made by which he has no connection whatever. (60) 
 
 (55) Doremus v. Paterson, 52 Atl. Rep., 1107. 
 
 (56) Rowbotham v. Jones, 47 N. J. Eq., 337 ; affirmed, 48 N. J. Eq., 
 311- 
 
 (57) Davidson v. Isham, 9 N. J. Eq., 186; Demarest v. Hardham, 
 34 N. J, Eq., 469. 
 
 (58) Young V. Young, 45 N. J. Eq., 27. 
 
 (59) Lanterman v. Lanterman, 42 N". J. Eq., 319. 
 
 (60) Crane v. Fairchild, 14 N. J. Eq., 76: Bolles v. Bolles, 44 N. J. 
 Eq., 38s; Miller v. Willett, 62 Atl., 178; Campbell v. McKay, i Myl. 
 & C, 603, 618. 
 
Misjoinder of Defendants. 175 
 
 So if a bill unite several distinct matters of distinct natures 
 against different defendants, it is demurrable for multifarious- 
 ness. (6i) So a bill filed by a legatee or next of kin against 
 an administrator and a surviving partner of an intestate, pray- 
 ing for a settlement of the partnership accounts, and that the 
 surviving partner may account to the complainant for the 
 rents and profits of real estate owned by him and his deceased 
 partner, is multifarious. As next of kin complainants can 
 maintain their bill for the settlement of the personal estate 
 and for this purpose the administrator is a necessary party; 
 their right to recover the rents and profits of the real estate 
 is in a different capacity, and in this aspect of the bill the 
 administrator is not a proper party. (62) So where the sole 
 design of a bill is to have the indiyidual property of one part- 
 ner, alleged to have been fraudulently conveyed away by him, 
 applied in satisfaction of a judgment against the firm, another 
 partner, from whom no discovery is sought and against whom 
 no relief is prayed, is neither a necessary nor a proper party. 
 (63) So if a joint claim against two defendants is joined 
 in the same bill with a separate claim against one of them only, 
 either or both of the defendants may demur for multifarious- 
 ness. (64) And so if there are several nuisances of a like 
 nature surrounding the complainants, they must seek relief 
 from each separately; they cannot be joined in one suit. (65) 
 But in suits by a legatee, next of kin or creditor against an 
 executor or administrator, a debtor of the deceased is a proper 
 party where a special case is made showing that there is, in 
 the particular case, propriety in departing from the general 
 rule in order to afford the complainant adequate relief. Where 
 there are unsettled accounts with a surviving partner of the 
 deceased, it is a special case and an exception to the general 
 rule, and such partner is a proper party in order to take an 
 account of the personal estate entire. (66) 
 
 It is not indispensable that the defendants shall have a co- 
 extensive common interest in the right in dispute or that they 
 
 (61) Emans v. Wortman, 13 N. J. Eq., 205. 
 
 (62) Harrison v. Righter, 11 N. J. Eq., 389. 
 
 (63) Randolph v. Daly, 16 N. J. Eq., 313. 
 
 (64) Emans v. Wortman, 13 N. J. Eq., 205; Van Houten v. Van 
 Winkle, 46 N. J. Eq., 380. 
 
 (6s) Meigs V. Lister, 23 N. J. Eq., 199. 
 
 (66) Harrison v. Righter, 11 N. J. Eq., 389. 
 
176 Multifariousness. 
 
 shall have acquired their interests in the same manner or at 
 the same time; but there must be a general right in the com- 
 plainant in which the defendants have a common interest, and 
 which may be established against all who controvert it by a 
 single issue. (67) So where a bill to restrain defendants from 
 utilizing a trade secret belonging to complainant alleged that 
 one of the defendants had by the help of all the others estab- 
 lished and carried on a plant for the utilization of such secret, 
 it was proper to unite all such defendants in the bill. (68) The 
 objection of misjoinder must be confined to cases where the 
 case of each particular defendant is entirely distinct and sepa- 
 rate in its subject matter from that of the other defendants, 
 for the case against one defendant may be so entire as to be 
 incapable of being prosecuted in several suits, yet, if some 
 other defendant is a necessary party to some part of the case 
 as stated, he cannot object that he has no interest in other trans- 
 actions which constitute a part of the entire case. (69) It is, 
 therefore, not multifarious to join as parties defendant all 
 the persons who are alleged to have some interest in the sub- 
 ject matter of the controversy, whether as original contract- 
 ors or as their grantees or assignees. (70) So where a bill was 
 filed to set aside as fraudulent as against creditors, several 
 deeds of land conveyed by a judgment debtor to distinct grant- 
 ees and the bill made all the grantees of the judgment 
 debtor parties defendant, specifically stating the ground 
 for making each of the said grantees a defendant, it 
 was held that a bill thus drawn is not multifarious, since 
 it prevents multiciplicity of actions and enables the court 
 to determine by a decree in one suit the rights and equities of 
 all the parties. (71) So a bill that seeks to establish the lien 
 of an equitable mortgage on lands against the mortgagor, his 
 grantee and the mortgagee of the latter with notice of such 
 
 (67) Lehigh Valley R. R. Co. v. McFarlan, 31 N. J. Eq., 730. 
 
 (68) Vulcan Detinning Co. v. American Can Co., 67 N. J. Eq., a43. 
 
 (69) Way V. Bragaw, 16 N. J. Eq., 213 ; Randolph v. Daly, 16 N. J. 
 Eq., 313; Bermes v. Frick, 38 N. 'J. Eq., 88; Importers & Traders 
 National Bank v. Littell, 41 N. J. Eq., 29 ; See v. Heppenheimer, 55 
 N. J. Eq., 240; a-ffirmed, 56 N. J. Eq., 4S3; Story Eq. PL, section 271 A. 
 
 (70) Rennie v. Deshon, 31 N. J. Eq., 378; Heminger v. Heald, 
 SI N. J. Eq., 74- 
 
 (71) Way V. Bargaw, 16 N. J. Eq., 213; Warwick v. Perrine, 55 Atl. 
 Rep., 738. 
 
Misjoinder of Defendants. 177 
 
 equitable lien, is not multifarious. (72) So a creditor's bill 
 against an insolvent, praying for a discovery as to the debtor's 
 real estate, and alleging that certain parts of it had been 
 fraudulently conveyed to different persons, who were made 
 defendants, is not objectionable on the ground of multifarious- 
 ness. (73) And so a bill to set aside, as fraudulent as against 
 creditors, several deeds of land executed by the judgment 
 debtor to distinct grantees, is not multifarious, when it does 
 not appear how many of such deeds are to be set aside or in 
 what order, for all the grantees are entitled to be heard on 
 such questions. (74) And where there is one entire case 
 stated against a debtor, it is no objection that one or more 
 of the co-defendants, to whom parts of the property had been 
 fraudulently conveyed, had nothing to do with the other 
 fraudulent transactions ; in such case none of the defendants 
 can demur for multifariousness. (75) A complainant in a credi- 
 tor's bill may properly make every one a party who is a par- 
 ticipator in the fraud ; he has a right to do so for the purpose 
 of discovery. (76) 
 
 In respect to what matters, apart from the accounting itself, 
 can be brought into a suit for an accounting, there is a con- 
 trariety of judicial opinion. The weight of authority, as well 
 as of reason, seems to be that in suits by and against partners, 
 whenever the right of a firm to re-claim property which has 
 been improperly or fraudulently transferred to a third party 
 has to be settled before an accounting can be compelled, then 
 such right can be tried in and the third party be made a party 
 to the accounting suit. (77) So where a written agreement 
 fixing the rights of all the parties, was made between pro- 
 moters and a number of manufacturers as vendors, for the 
 organization of a corporation to which the properties of the 
 
 (72) Oliva V. Bunaforza, 31 N. J. Eq., 395. 
 
 (73) Importers, etc., National Bank v. Littell, 41 N. J. Eq., 29. 
 
 (74) Warwick v. Perrine, 65 N. J. Eq., 735. 
 
 (75) Way v. Bragaw, 16 N. J. Eq., 213; Randolph v. Daly, 16 N. J. 
 Eq., 313; Importers and Traders' National Bank v. Littell 41 N. J. Eq., 
 29; Warwick v. Perrine, 65 N. J. Eq., 735. 
 
 (76) Robinson v. Davis, 11 N. J. Eq., 302; Randolph v. Daly, 16 
 N. J. Eq., 313; Miller v. Jamison, 24 N. J. Eq., 41; Reversed, 27 N. J. 
 Eq., s86; Bermes v. Frick, 38 N. J. Eq., 88. 
 
 (,77) Schlicher v. Vogel, 59 N. J. Eq., 351. 
 
178 Multifariousness. 
 
 vendors should be conveyed, and a secret agreement was subse- 
 quently made by the promoters with a part of the vendors, giv- 
 ing the latter an advantage and profit over the other vendors, 
 it was held that a bill for an accounting of such profits by one 
 of the vendors, a party to the first agreement only, was not 
 subject to demurrer for multifariousness for making all the 
 vendors with whom the secret agreement was made parties 
 together with the corporation and the promoters. (78) Where 
 an insolvent partner credited his wife on the partnership books 
 with an amount she owed the firm for provisions furnished for 
 use in her boarding house, she was a proper party defendant 
 to a suit brought by another partner against her husband after 
 dissolution, to compel an accounting of the partnership business 
 and cancel the credit against her and re-establish her indebted- 
 ness to the firm, and her joinder was not subject to an objec- 
 tion of multifariousness'. (79) 
 
 Method of Raising Objection for Multifariousness. An 
 
 objection for multifariousness should be taken advantage of 
 by demurrer, unless the bill is so framed that the multi- 
 fariousness, while actually existing, does not appear upon 
 the face of the bill, in which case the objection may be 
 raised by setting forth the special matter by plea or by 
 answer expressly for that purpose. The dicta in many cases 
 and of the next writers that an objection for multifari- 
 ousness may be taken advantage of by answer, as well as 
 by plea or demurrer apply to answers for that purpose 
 only: (80) Where a bill sets up one sufficient ground for 
 equitable relief, and also sets up another distinct and separate 
 claim, which, upon its face, contains no equity, the proj)er 
 course for the defendant in such case is to answer as to the 
 former claim^ and demur to the latter for want of equity; or 
 he may answer as to both, and make the objection as to want 
 of equity in the latter claim at the hearing. (81) 
 
 (78) Shutts V. United Box Co.. 67 N. J. Eq., 225. 
 (,7g) Schlicher v. Vogel, 59 N. J. Eq., 351. 
 
 (80) Johnson v. Vail, 14 N. J. Eq., 423; Hinchman v. Paterson 
 Horse R. R., 17 N. J. Eq., 75; Veghte v. The Raritan Water Power 
 Coj, 19 N. J. Eq., 142 ; Reversed, 21 N. J. Eq., 463 ; Annin v. Annin, 
 24 N. J. Eq., 184; Story Eq. PI. section 747; Wilson v. Bellows, 30 
 N. J. Eq., 282. 
 
 (81) Eraans v. Emans, 14 N. J. Eq., 114; Knikel v. Spitz, 74 N. J. 
 Eq., 581; Varick v. Smith, 5 Paige Ch., 136. 
 
Objections. 179 
 
 A multifarious bill may, at an early stage of the cause, be 
 dismissed by the court of its own motion. (82) One of the 
 instances in which the court will of its own motion dismiss the 
 bill for misjoinder of parties complainant is where it appears 
 that the separate interests of the _ complainants are of such a 
 nature that they are likely, in the future progress of the cause, 
 to come into conflict, and thus transform the suit into a con- 
 test between the complainants. (83) 
 
 A defendant cannot demur to a bill merely because other 
 persons are improperly made defendants to the suit ; the 
 objection can only be taken by the party improperly joined. (84) 
 The whole bill will not be judged multifarious merely because 
 complainant by the case made in the bill is not entitled to the 
 relief asked against one of defendants, where the bill sets 
 up other sufficient ground for relief. (85) So where a de- 
 murrer is sustained as to part of the bill, the objection on the 
 score of multifariousness is removed; the rest of the bill, not 
 covered by that ground of demurrer, remains in court, and the 
 complainant, as to that part of his case, may proceed as if there 
 had been no demurrer. (86) And so where a bill contains 
 prayers for proper and improper relief, and a demurrer to the 
 part of the bill seeking improper relief is sustained, the bill 
 will be> retained for the administration of the relief properly 
 sought. (87) A general demurrer will not lie where the de- 
 murrant is a proper party, though no relief can be had against 
 him. (88) 
 
 The general rule is that a defendant by answering a bill 
 waives any objection for multifariousness, and cannot urge 
 such objection at the hearing. He will not be permitted, by 
 
 (82) Rutherford v. Alyea, 54 N. J. Eq., 411. 
 
 (83) Henrickson v. Wallace, 31 N. J. Eq., 604. 
 
 (84) Miller v. Jamison, 24 N. J. Eq., 41 ; Reversed^ 27 N. J. Eq., 
 586; Couse V. Columbia Powder Co., 33 Atl., 297; Olds v. Regan, 32 Atl. 
 Rep., 827; Bermes v. Frick, 38 N. J .Eq., 88; Shutts v. United Box, 
 Board and Paper Co., 6y N. J. Eq., 225, 231 ; Herman & Grace v. Free- 
 holders of Essex Co., 71 N. J. Eq., 541 ; Filley v. Van Dyke, 75 N. J. Eq., 
 571, S7S; McCulIough v. Ward, 76 N. J. Eq., 454. 
 
 (85) Durling v. Hammar, 20 N. J. Eq., 220. 
 
 (86) Emans v. Emans, 14 N. J. Eq., 114; Ehirling v. Hammar, 20 
 N. J. Eq., 220. 
 
 (87) Cole V. Cole, 69 N. J. Eq., 3. 
 
 (88) Dorsheimer v. Rorback, 23 N. J. Eq., 46; affirm^ed, 25 N. J. 
 Eq., S16. 
 
180 Multifariousness. 
 
 omitting to demur and answering the bill, to compel the com- 
 plainant to take his testimony, and then, after this expense is 
 incurred, to object at the final hearing that the bill is multi- 
 farious. (89) 
 
 Though a bill may be bad for multifariousness, yet where 
 the defendants do not raise the question and all the parties are 
 before the court, if a proper decree can be made consistent with 
 the general scope of the bill and without embarrassment to the 
 parties in any, of their rights the relief sought will be granted. 
 (90) This rule is subject to the qualification that if the court 
 finds itself embarrassed by the multifariousness of the bill 
 to such an extent as to prevent it from administering appropri- 
 ate relief, it will dismiss the bill even at the final hearing, and 
 may do so of its own motion. (91) So where a bill is filed 
 by a husband and wife praying performance of one or the 
 other of two agreements for the conveyance by the defendant 
 of the same premises upon the same terms, one being a parol 
 agreement made with the husband, which had been partly per- 
 formed, and the other a written agreement made with the wife, 
 while such a bill might have been demurrable for misjoinder, 
 yet the error is not such that the court will dismiss the bill on 
 this technical objection, after the defendant has allowed the 
 cause to proceed to hearing. (92) And so where two pur- 
 chasers of different parcels of the same tract of land join in 
 a bill in equity for relief against a judgment creditor seeking 
 to subject their lands to the payment of the judgment, an 
 objection of misjoinder or multifariousness which was not 
 made until the final hearing was not entertained. (93) 
 
 (8g) Hays v. Doane, 11 N. J. Eq., 84; Rockwell v. Morgan, 13; 
 N. J. Eq., 384; Emans v. Emans, 14 N. J. Eq., 114; Veghte v. Raritan 
 Water Power Co., 19 N. J. Eq., 142; Reversed, 21 N. J. Eq., 463; 
 Annin V. Annin, 24 N. J. Eq., 184; Lyman v. Place, 26 N. J. Eq., 30; 
 Hendrickson v. Wallace, 31 N. J. Eq., 604; Tru.stees v. Willanson,. 
 36 N. J. Eq., 141 ; aMrmed, 39 N. J. Eq., 5x4. 
 
 (90) Brown v. Grandin, 13 Atl., 266; Hays v. Doane, 11 N. J. 
 Eq., 84. 
 
 (91) Hays V. Doane, 11 N. J. Eq., 84; Swayze v. Swayze, 9 N. J. 
 Eq., 273; Emans v. Emans, 14 N. J. Eq., 114; Veghte v. Raritan Water 
 Power Co., ig N. J. Eq., 142; Reversed, 21 N. J. Eq., 463; Annin v.. 
 Annin, 24 N. J. Eq., 184; Hendrickson v. Wallace, 31 N. J. Eq., 604;. 
 Collins V. Leary, 71 Atl., 603 ; Drost v. Hall, 29 Atl., 437. 
 
 (92) Green v. Richards, 23 N. J. Eq., 32; aMrmed ib., 536. 
 
 (93) Sanborn v. Adair, 27 N. J. Eq., 425. 
 
Impertinence. 181 
 
 CHAPTER IV. 
 
 IMPERTINENCE AND SCANDAL. 
 
 Impertinence. For more than a century the Court of 
 Chancery in this state, by its rules and decisions, following 
 the example of the English Courts of Equity, has endeavored 
 to suppress the abuse of stuffing bills and other pleadings and 
 proceedings with matters immaterial to the controversy that 
 cannot aid in the relief sought, and with deeds, records and 
 other documents set forth at length, when a statement of their 
 effect only is material.(i) This defect in pleading is termed 
 impertinence, and has been defined as consisting in the intro- 
 duction into the bill of any matter which is not material to the 
 suit, or which if material is not in issue, or which if both 
 material and in issue is set forth with great and unnecessary 
 prolixity. (2) The Chancery Rules provide that no "bill or 
 other pleading shall recite records, deeds or other documents in 
 full, but only such parts thereof as may be necessary for the 
 clear exhibition of the case or the construction of the docu- 
 ment, omitting all parts not relevant to the relief sought or the 
 defense set up, and no pleading shall repeat documents or parts 
 of documents set forth in any previous pleading, but, if the 
 same are not fully or accurately set forth, may add such 
 parts as' may be necessary to complete the same." (3) They 
 further provide that in foreclosure suits the bill shall not "set 
 forth the bond and mortgage at length, but only those parts 
 thereof upon which the relief sought is founded, including 
 date, names of parties, consideration, words of conveyance, 
 description of premises the words limiting the estate and the 
 condition in full; and no costs shall be taxed or allowed for 
 any bill drawn in palpable violation of this rule. (4) 
 
 While there are many different definitions of impertinence, 
 they all seem to agree in this, that any matter alleged in a 
 pleading, to be entitled to stand against objection, must in 
 
 (i) Camden & Amboy R. R. Co. v. Stewart, 19 N. J. Eq., 343; 
 affirmed, 21 N. J. Eq., 484. 
 
 (2) Camden v. Amboy R. R. Co. v. Stewart, 19 N. J. Eq., 343; 
 affirmed, 21 N. J. Eq., 484. 
 
 (3) Chancery rule 49. 
 
 (4) Chancery rule 50. 
 
182 Impertinence and Scandal. 
 
 some way appear to be of use in deciding the question in dis- 
 pute in the particular cause, otherwise it will be impertinent 
 and serve but to cumber the record, and should be expelled as 
 worthless. ( 5 ) A bill in Chancery, like a declaration at law, 
 should confine its statements to such facts as are proper to 
 show that the complainant is entitled to relief, and which, if 
 proved, will entitle him to relief, and should not set out the 
 evidence, whether oral or written, by which the facts are to 
 be proved. (6) So allegations of facts which do not tend to 
 support the complainant's primary claim to relief, but only 
 to forefend some possible answer thereto which the defendant 
 may make, ought not to be set out in a bill of complaint. (7) 
 And so recitals from a bill filed by the defendant in another 
 suit, which might involve contradictions impairing his credi- 
 bility as a witness, and which, if admitted by the answer, 
 would not have any tendency to establish the complainant's 
 claim to the relief sought in his bill, are impertinent. So also 
 recitals of deeds at length, unless necessary for some special 
 purpose appearing on the face of the pleadings, are imperti- 
 nent. (8) 
 
 One test frequently applied by the courts to ascertain whether 
 matter is impertinent is to inquire whether the subject mat- 
 ter . of the allegations could be put in issue, and would be 
 proper to be given in evidence between the parties. (9) So in 
 an action to recover property of which complainant claims to 
 have been defrauded, an allegation in the bill that complainant 
 consulted with counsel as to the transactions, and directed 
 him to investigate the facts to enable him to take legal steps 
 for relief, is not impertinent, as it tends to show diligence 
 and explain delay, and is not prejudicial to the defendant. (10) 
 
 (S) Leslie v. Leslie, 50 N. J. Eq., ISS- 
 
 (B) Camden & Amboy R. R. Co. v. Stewart, 19 N. J. Ex[., 343; 
 affirmed, 21 N. J. Eq., 484. 
 
 (7) Stevenson v. Morgan, 64 N. J. Eq., 219. 
 
 (8) Camden & Amboy R. R. Co. v. Stewart, 19 N. J. Eq., 343; 
 affirm,ed, 21 N. J. Eq., 484. The court will not, because there are 
 here and there a few unnecessary words, treat them as impertinent; 
 for the rule is designed to prevent oppression and is not to be so 
 construed as to become itself oppressive. Story's Ch. PI., section 267. 
 
 (9) Kirkpatrick v. Coming, 40 N. J. Eq., 242; Wilkinson v. Dodd, 
 42 N. J. Ei[., 234; affirmed ib., 647; Leslie v. Leslie, 50 N. J. Eq., iSS 
 Hutchinson v. Van Voorhis, 54 N. J. Eq., 439. 
 
 (10) Riley v. Fithiaii, 64 N. J. Eq., 259. 
 
Impertinence. 183 
 
 The insertion, in a bill of complaint by a trustee to recover 
 trust property, of a letter written by complainant's counsel to 
 defendant before suit, stating counsel's view as to the legal basis 
 of complainant's claim, and suggesting an "adjustment without 
 recourse to the courts/' is proper as being matter showing 
 that the defendant was warned of his alleged inequitable con- 
 duct previous to the suit. Such an allegation suggests con- 
 siderations which may affect the allowance of costs. (ii) So 
 allegations of fraud consisting of successive acts, depending 
 on each other and implicating the parties to the fraud con- 
 cerning which relief is sought, are not impertinent. (12). And 
 so in a suit by the trustees under a will, for waste committed 
 on the trust property by a lessee, a statement of the will, the 
 death of the testator, the probate of the will by plaintiffs, and 
 their assumption of the trust, cannot be excepted to for im- 
 pertinence. (13) And so, in an action by a trustee to recover 
 trust property alleged to have been wrongfully obtained by 
 the defendant, parts of the bill narrating the origin and terms 
 of the trust and disclosing who are the cestuis que trustent 
 are material, and should not be stricken out as impertinent. ( 14) 
 
 In addition to being equivalent to a declaration at law, a bill 
 in Chancery is likewise an examination of the defendant for 
 the purjx)se of obtaining evidence to establish the plaintiff's 
 case, or to counterprove the defence which it is supposed may 
 be set up in the answer. As a general rule, therefore, the com- 
 plainant is permitted to set forth any fact, the admission of 
 which by the defendant will go either to establish the com- 
 plainant's own case or to overturn that of his adversary; but 
 the testimony sought for must in some way appear to be of 
 use to the party seeking it, otherwise it is useless in the case, 
 and serves but to cumber the record. (15) Such statements 
 would, however, without doubt be impertinent in a bill which 
 requires an answer without oath, and has no interrogatories 
 
 (11) Riley v. Fitliian, 64 N. J. Eq., 259. 
 
 (12) Kirkpatrick v. Coming, 40 N. J. Eq., 241. 
 
 (13) Hawley v. Wolverton, S Paige, 522. 
 
 (14) Riley v. Fithian, 64 N. J. Eq., 259. 
 
 (is) Camden & Amboy R. R. v. Stewart, 19 N. J. Eq., 343; affirmed, 
 21 N. J. Eq., 484; Wilkinson v. Dodd, 42 N. J. Eq., 234; affirmed ib., 
 647 ; Mechanics Bank v. Levy, 3 Paige, 606 ; Hawley v. Wolverton, 5 
 Paige, 522. 
 
184 Impertinence and Scandal. 
 
 annexed relating to them, as they are only pertinent for the 
 purpose of discovery. (i6) 
 
 The court in cases of impertinence ought, before expunging 
 the matter alleged to be impertinent, to be especially clear that 
 it is such as ought to be struck out of the record, for the rea- 
 son that the error on the one side is irremediable, on the other 
 not. If the court strikes' out the record it is gone, and the 
 party may have no opportunity of placing it there again ; 
 whereas, if it is left on the record, and is prolix or oppressive, 
 the court, at the hearing of the cause, has power to set the 
 matter right in point of costs. (17) Nothing should be ex- 
 punged from the bill which the complainant has a right to 
 prove, and which, if proved, can have any influence on the 
 judgment of the court, either in deciding whether the com- 
 plainant is entitled to any relief whatever, or the nature, char- 
 acter or extent of the relief to which he may be entitled, even 
 down to the question whether he shall have relief with or 
 without costs. (18) But this consideration addresses itself 
 principally to the judgment of the trial court. It ought to be 
 a clear case manifestly showing that the complaining party 
 will lose substantial rights to induce the appellate court to 
 annul an order of the Chancellor finding impertinence in the 
 proceedings before him. (19) Neither scandal nor imperti- 
 nence, however gross it may be, is a ground for demurrer. (20) 
 The Chancery Rules provide that exceptions will lie for im- 
 pertinence in a bill, answer or other pleadings, and in interrog- 
 atories', depositions or affidavits in any suit, in the same man- 
 ner as exceptions to an answer for insufficiency, and may be 
 submitted to in like manner and within the same dme, and if 
 not submitted to, the party excepting shall refer them to a 
 master, or they shall be considered as abandoned. (21) Im- 
 
 (16) Camden & Amboy R. R. Co. v. Stewart, ig N. J. Eq., 343; 
 affirmed, 21 N. J. Eq., 484. 
 
 (17) David V. Cripps, 2 Younge & Coll., 443; Camden & Amboy 
 R. R. V. Stewart, 21 N. J. Eq., 484, 491 ; Wilkinson v. Dodd, 42 N. J. 
 Eq., 234; affirmed ib., 647; Leslie v. Leslie, 50 N. J. Eq., 155. 
 
 (18) Leslie v. Leslie, 50 N. J. Eq., 155. 
 
 (19) Camden & Amboy R. R. v. Stewart, 21 N, J. Eq., 484. 
 
 (20) I Daniels Ch. Pr., 350. * 
 
 (21) Camden & Amboy R. R. Co. v. Stewart, 19 N. J. Eq., 343; 
 affirmjed, 21 N. J. Eq., 484; Chancery rule 76. For practice on excep- 
 tions to answer see "Answers," page 306, infra. 
 
Scandal 185 
 
 pertinent matter may also be stricken from a bill upon motion 
 under rule 213.(22) 
 
 Scandal. Scandal consists in the allegation of anything 
 which is unbecoming the dignity of the court to hear, or is 
 contrary to good manners', or which charges some person with 
 a crime not necessary to be shown in the cause; (23) to which 
 may be added that any unnecessary allegations bearing cruelly 
 upon the moral character of an individual are also scandalous. 
 (24) So, when a bill rests on the allegation that the complain- 
 ant's intestate gave a certificate of stock to the defendant in 
 consideration of her living thereafter in illicit relations with 
 him, and which prays for a surrender of such certificate, it 
 be stricken out on motion because it shows that the contract 
 was illegal and immoral. (25) Charges of the most offensive 
 character may however be introduced into a bill if they are 
 relevant to the issue or the matter in question between the 
 parties ; but it is not permissible to introduce offensive state- 
 ments unless they are relevant to the relief sought. It is then 
 scandal. In other words, it is never scandal when it is not 
 impertinent; if, however, the matter is introduced offensively, 
 making charges of immorality and misconduct having no rela- 
 tion whatever to the issue between the parties, then as it is 
 scandal in itself, so it is scandal in the eyes of the court. (26) 
 So, if a bill be filed by a cestui que trust for the purpose of 
 removing a trustee, it is not scandalous or impertinent to chal- 
 lenge every act of the trustee as misconduct, nor to impute to 
 him any corrupt or improper motive in the execution of the 
 trust, nor to allege that his misconduct is the vindictive conse- 
 quence of some act on the part of the cestui que trust or some 
 change in his situation ; but it is impertinent, and may be scan- 
 dalous, to state any circumstances as evidence of general malice 
 or personal hostility, because the fact of malice or hostility, if 
 established, affords no necessary or legal inference that the 
 conduct of the trustee results from such motive, and because 
 
 (22) Kirkpatrick v. Corning, 40 N. J. Eq., 241. For practice under 
 rule 213, see "motion to strike out pleadings," page 287, infra. 
 
 (23) Barb. Ch. Pr., 41 ; Wyatts Pr., 383 ; i Dan. Ch. Pr., 347.. 
 (2:4) Exparte Simpson 15 Ves. Jr., 476; i Dan. Ch. Pr., 347. 
 
 (25) Brindley v. Lawton, 53 N. J. Eq., 259. 
 
 (26) Ruebry v. Grant, L. R., 13 Eq., 443; Story's Eq. PL, section 
 270. 
 
186 Impertinence and Scandal. 
 
 such course of proceeding tends to render a bill in equity an 
 instrument of inquisition into the private life of any trustee. 
 (27) From what has been said, it will be apparent that scan- 
 dal includes impertinence, but that a matter may be imperti- 
 nent without being scandalous. (28) 
 
 The practice on objections to a bill for scandal is the same 
 as above outlined in cases' of impertinence. (29) 
 
 (27) Smith Oi. Pr., 567; Earl of Portsmouth v. Fellows, S Mad., 
 450. 
 
 (28) Fenhoulet v. Passavant, 2 Ves. Sr., 24; McConnell v. Holo- 
 bush, II 111., 61; Goodrich v. Parker, i Minn., 195; Story Eq. PI., 
 section 270. 
 
 (29) See page 184, supra. 
 
Supplemental Bills. 187 
 
 CHAPTER V 
 SUPPLEMENTAL BILLS. 
 
 Nature and Function. A supplemental bill is merely an 
 addition to the original bill for the purpose of supplying some 
 defect in its original frame or structure. In many cases 
 an imperfection in the frame of an original bill may be 
 remedied by an amendment; but, on the other hand, it 
 may be of such a nature, having occurred after the suit is 
 brought as not to be properly the subject of an amendment. 
 It is not generally allowable to introduce into the bill by amend- 
 ment any matter which has happened since the filing of the 
 bill. In such cases a supplemental bill is the appropriate 
 remedy, and such a supplemental bill may be not only for the 
 purpose of putting in issue new matter which may vary the 
 relief prayed in the original bill, but also for the purpose of 
 putting in issue matter which may prove the complainant's' 
 right to the relief originally prayed.(i) A supplemental bill 
 may be resorted to only when an amendment is not available ; 
 facts occurring and within complainant's knowledge before the 
 filing of the original bill should be introduced by application 
 to amend the bill ; and if introduced by supplemental bill, they 
 render it demurrable so far as based thereon, (2) and it is not 
 sufficient foundation for a supplemental bill that since the filing 
 of the original bill new matters have arisen tending to corrob- 
 orate the charges in the original bill. ( 3)- 
 
 A supplemental bill should be used in preference to an 
 original bill where it will equally serve the purposes of justice ; 
 so where a mortgagee has, before his mortgage debt became 
 due, filed a bill to restrain the commission of waste upon the 
 mortgaged premises, he may, after the mortgage money be- 
 comes due, file a supplemental bill setting out by way of sup- 
 
 (i) Story Eq. PL, 319; Williams v. Winans, 20 N. J. Eq., 392; 
 Reversed, 22 N. J. Eq., 573. 
 
 (2) Barriclo v. Trenton Mut Life, &c., Co., 13 N. J. Eq., 154; Com- 
 merical Assurance Co. v. N. J. Rubber Co., 61 N. J. Eq., 446; Reversed, 
 64 N. J. Eq., 338; Johnson v. McKenna, 73 N. J. Eq., i; afHrmed, 74 
 N. J. Eq., 448; and see "Amendment of Pleadings," page 317, infra. 
 
 (3) Barriclo v. Trenton Mutual Life Ins. Co., 13 N. J. Eq., 
 154 ; Johnson v. McKenna, 73 N. J. Eq., i ; affirmed, 74 N. J. Eq., 
 448. 
 
188 Supplemental Bills. 
 
 plement that the mortgage .has become due, and praying addi- 
 tional relief, viz., that the equity of redemption may be. fore- 
 closed, and the mortgage debt paid. (4) 
 
 As has been seen it is a general rule that facts which have 
 occurred after the filing of the original bill cannot be incorpo- 
 rated therein by amendment ; a supplemental bill is essential 
 to introduce such facts. (5) This may be necessary to aid the 
 complainant in obtaining either the relief sought, or new and 
 additional relief. (6) And if after bill filed any circumstance 
 occurs which does not abate the suit, but occasions an altera- 
 tion in the interest of any party, or renders it necessary that 
 new parties should be brought before the court, a supplemental 
 bill may be filed by a complainant, if his interests so require. 
 (7) So where complainants, in a proceeding in Qiancery based 
 on their individual rights, as stockholders of a corporation, 
 in the distribution of its assets, bring proceedings at law on 
 their claim as creditors after filing the bill, they are entitled 
 to file an amended and supplemental bill setting up the pro- 
 ceeding at law. (8) And so after. an original bill is filed to'set 
 aside a trust deed, a supplemental bill may be filed to set aside 
 a sale by the trustee and a deed given thereunder. (9) And 
 so a complainant to whom a mortgage has been assigned as 
 security for a specific debt can only have a decree for that 
 debt, although pending the foreclosure suit the whole mortgage 
 is absolutely assigned to him ; his remedy for the residue must 
 be by supplemental bill or petition for surplus. (10) 
 
 By the old practice, where the interest of a party is trans- 
 ferred pending the suit, and the proceedings become for that 
 reason defective, a supplemental bill is the proper method for 
 bringing in the new party. This may be done where the com- 
 plainant acquires a new right, or where the interests of de- 
 fendants have been transferred to strangers. ( 1 1 ) The Chan- 
 
 (4) Allen V. Taylor, 3 N. J. Eq., 435. 
 
 (5) See "Amendment of Pleadings," page 317, supra. 
 
 (6) Allen v. Taylor, 3 N. J. Eq., 435; Hoppock v. Gray, 21 Ml, 
 624. 
 
 (7) Zinc Co. V. Franklinite Co., 13 N. J. Eq., 322-325 ; Williams 
 V. Winans, 22 N. J. Eq., 573; O'Donnel v. McCann, 77 N. J. Eq., 188. 
 
 (8) Edwards v. National Window Glass Assn., 58 Atl., 527. 
 
 (9) Cutwater v. Berry, 6 N. J. Eq., 63. 
 
 (10) Underbill v. Atwater, 22 N. J. Eq., 16; Reversed, ib., S99. 
 
 (11) 16 Cyc, p. 358 and cases cited. 
 
, Nature and Function. 189 
 
 eery Act, however, provides that where any person shall ac- 
 quire an interest in the subject matter of the suit after the 
 bill was filed, it shall not be necessary to file a supplemental 
 bill to make such person a party, but the same may be done 
 by petition. The Act further provides that parties may be 
 added either before or after final decree. (12) 
 
 A supplemental bill is said to be properly applicable only to 
 cases where the same parties or the same interests remain be- 
 fore the court; where relief is required of a different kind or 
 upon a different principle from that in the original bill or 
 decree, an original bill in the nature of a supplemental bill 
 should be filed. Thus if a person pendente lite becomes as- 
 signee of the interest of the party in the suit, and wishes to 
 be admitted to take part therein, he must bring forward his 
 claim by an original bill in the nature of a supplemental bill. 
 (13) And so where a sole complainant suing in his own 
 right transfers his whole interest in the subject matter of the 
 litigation, the complainant being no longer able to prosecute 
 the suit for want of interest, and his assignee claiming by a 
 title which may be litigated, the benefit of the former proceed- 
 ings cannot be obtained by a mere supplemental bill, but must 
 be sought by an original bill in the nature of a supplemental 
 bill. (14) 
 
 The difference between an original bill in the nature of a 
 Bill of Revivor, and an original bill in the nature of a Supple- 
 mental Bill, is defined by Lord Redesdale as follows : "There 
 seems to be this difference between an original bill in the 
 nature of a Bill of Revivor and an original bill in the nature 
 of a Supplemental Bill. Upon the first, the benefit of the 
 former proceedings is absolutely obtained, so that the pleadings 
 in the first cause and the depositions of witnesses, if any have 
 been taken, may be used in the same manner as if filed or taken 
 in the second cause, and if any decree has been made in the 
 first cause, the same decree should be made in the second. But 
 in the other a new defense may be made, the pleadings and 
 depositions cannot be used in the same manner as if taken or 
 
 (12) Chancery Act, sections 29 & 30, page 31, supra. 
 
 (13) Story Eq. PL, section 345-346; Williams v. Winans, 20 N. J. 
 Eq., 392; Reversed, 22 N. J. Eq., 573; Fulton v. Greacen, 44 N. J. Eq., 
 443- 
 
 (14) Fulton V. Graecen, 44 N. J. Eq., 443. 
 
190 Supplemental Bills. 
 
 filed in the same cause, and the decree, if any has been ob- 
 tained, is not otherwise of advantage than as it may be by in- 
 ducement to the court to make a similar decree." (15) Lord 
 Eldon, in Lloyd v. Johns, (16) stated it as his opinion that the 
 only real distinction which exists between the rights or posi- 
 tions of the parties under the two different forms of plead- 
 ings' is that the defendant under an original bill in the nature 
 of a Supplemental Bill is just as much bound by the former 
 proceedings as under an orginal bill in the nature of a Bill of 
 Revivor, except as to any new equity or defense which may 
 have arisen since the original bill was filed, or which he may 
 have a right to urge against the new party coming into litiga- 
 tion, but which did not exist against the original complain- 
 ant. (17) 
 
 The distinction between supplemental bills' and original bills 
 in the nature of supplemental bills is purely technical, and is 
 frequently disregarded. (18) 
 
 Time for Filing. There is no general rule fixing the limit 
 within which a supplemental bill may be filed, but it should 
 be filed as soon as the matter sought to be inserted therein is 
 discovered; and if the party proceeds to a decree after dis- 
 covery of the facts upon which a new claim is founded, he 
 will not be permitted afterwards to file a supplemental bill in 
 the nature of a Bill of Review founded upon such facts. (19) 
 A supplemental bill may be filed even after decree in the origi- 
 nal suit, if necessary to the ends of substantial justice. (20) 
 Process on the original bill should be served before a supple- 
 mental bill is filed. (21) 
 
 Right to File. A supplemental bill may not be filed as 
 of course, but only on leave of the court first obtained. (22) 
 Where, however, no objection ha's been taken to the regu- 
 larity of the proceedings on this ground, it will be considered 
 
 (is) Mit. Eq. PI., 68. 
 
 (16) 9 Ves., 37. 
 
 (17) Fulton V. Greacen, 44 N. J. Eq., 443. 
 
 (18) Story's Eq. PI., section 345. 
 
 (19) Pendleton v. Fay, 3 Paige, 204. 
 
 (20) Barriclo v. Trenton Mut. Life Ins. Co., 13 N. J. Eq., 154. 
 
 (21) Cutwater v. Berry, 6 N. J. Eq., 63. 
 
 (22) Allen V. Taylor, 3 N. J. Eq., 435; Buckingham v. Corning, 
 29 N. J. Eq., 238. 
 
Sufficiency. 191 
 
 as waived by a voluntary appearance and a demurrer by the 
 defendants. (23) If a bill be sustainable on any ground, even 
 for the purpose of granting temporary relief, the court having 
 possession of the cause may hold it for the more general and 
 important purposes of the bill, and permit the complainant 
 to file a supplemental bill. (24) Where a supplemental bill, 
 filed by leave of the court, makes an essentially different , case 
 from that contemplated and intended by the permission given, 
 it will be ordered to be taken from the files. (25) If a supple- 
 mental bill is filed without authority of the court it is not 
 matter of demurrer, though it may on that ground in the 
 discretion of the court be dismissed. (26) 
 
 Form and Sufficiency. A supplemental bill should state 
 the original bill and the proceedings upon it. It is not the 
 practice to reiterate in a supplemental bill substantially all 
 the charges of the original bill, but to set them out by way 
 of reference, and charge the new and additional facts by way 
 of supplement. (27) 
 
 Where a bill of revivor or supplemental bill or bills in the 
 nature of either or both, for the joinder of additional or differ- 
 ent parties or for other purposes, is necessary, the requisite 
 allegations and prayers may be made in the form of an addi- 
 tion separately filed by way of supplement to the original bill, 
 and in such case service of process on any new parties shall 
 be made as in the case of an original bill, and service of copies 
 of the addition by way of supplement shall be made on all 
 of the defendants to the original bill affected thereby, includ- 
 ing all defendants who have appeared to or procured ' copies 
 (jf the original bill; and the complainant may thereupon pro- 
 ceed with the cause as if the addition by way of supplement 
 had been made in a supplemental bill or bill of revivor con- 
 taining a recital of the allegations and prayers of the origi- 
 nal bill and the proceedings thereon. (28) 
 
 Where a minority stockholder filed a bill against his cor- 
 poration, its entire board of directors and other parties, the 
 
 (23) Allen V. Taylor, 3 N. J. Eq., 435- 
 
 (24) Edgar v. Qevenger, 3 N. J. Eq., 258. 
 
 (25) Stockton V. American Tobacco Co., 53 N. J. Eq., 400. 
 
 (26) Barriclo v. Trenton Mutual Life Ins. Co., 13 N. J. Eq., 154. 
 
 (27) Edgar v. Clevenger, 3 N. J. Eq., 464. 
 
 (28) Chancery rules 210a. 
 
192 Supplemental Bills. 
 
 object of which was to protect the corporation by enjoining 
 certain contracts or transactions into which the board of 
 directors proposed to have it enter, a preliminary injunc- 
 tion was refused upon grounds which largely involved the 
 whole merits of the case. It was held that complainant was 
 not entitled, after most of the testimony of the cause had been 
 taken, to set up by amendment in his bill a grievance, against 
 a part only of the defendants, which arose before the filing of 
 the bill, or to set up by addition to the bill under this rule 
 a similar grievance which arose after the filing of the bill. (29) 
 
 Parties. Where a stranger who has acquired an interest 
 files a supplemental bill, he must bring in as parties thereto 
 all the remaining parties to the original bill. (30) But where 
 the new matter charged in a supplemental bill does not affect 
 the rights or interests of a mere formal party to the original 
 bill, it is not necessary to make him a party to such supple- 
 mental bill.(3i) And a supplemental bill, or even an origi- 
 nal bill in the nature of a supplemental bill, is not proper to 
 bring in a new defendant not concerned in the original frauds 
 charged in the bill, but who is alleged to have taken part in a 
 new fraud, perpetrated by means entirely different. (32) 
 Where a party has involuntarily acquired an interest in the 
 matter in controversy after the commencement of the suit by 
 an act of law, as in case of an assignee in bankruptcy or in- 
 solvency, it is necessary, in order- to bind such person, that 
 he should be made a party by supplemental bill. In other 
 cases it may be expedient, but it is not necessary. (33) A 
 supplemental bill bringing in new parties should pray for pro- 
 cess of subpoena against such new parties, and when such a 
 bill contains no prayer for process of subpoena it is defective; 
 but it may be amended in that regard. (34) When a person 
 who has acquired an interest in the controversy after the 
 
 (29) Pierce v. Old Dominion Copper Mining & Smelting Co., 72 
 N. J. Eq., 595; afHrm^d, 74 N. J. Eq., 450. 
 
 (30) 3 Daniel's Ch. Pr., 180. 
 
 (31) Allen V. Taylor, 3 N. J. Eq., 435. 
 
 (32) Williams v. Winans, 20 N. J. Eq., 392; Reversed, 22 N. J. Eq., 
 573- 
 
 (33) Williams v. Winans, 20 N. J. Eq., 392; Reversed, 22 N. J. Eq., 
 573- 
 
 (34) O'Donnell v. McCann, jj N. J. Eq., 188. 
 
Defenses. 193 
 
 commencement of the suit, as assignee or successor to an 
 original defendant, is made a party by supplemental bill, 
 whether filed by himself or by the complainant^ he comes 
 before the court in the same plight and condition as the form- 
 er party, is bound by his acts, and may be subject to all the 
 costs and proceedings from the beginning of the suit. It is 
 merely the continuation of the original suit, and whatever 
 evidence was properly taken in the original suit may be made 
 use of in both suits, though not entitled in the original suit. (35) 
 
 Relation to Original Bill. A supplemental bill is, as has 
 been seen, a mere addition to the original bill, and together 
 with the original cause constitutes one cause. It follows, 
 therefore, that if a supplemental bill is so inconsistent with 
 the original bill as to be destructive of tl^e complainant's stand- 
 ing in court, both will be dismissed. ( 36) And so if an origi- 
 nal bill be so entirely defective that no decree can be made 
 upon it, it will not be aided by a supplemental bill founded on 
 .facts that have subsequently taken place. (37) 
 
 Defenses. Any defendant in the supplemental bill may 
 demur on the ground that the bill is not properly supplemental, 
 but seeks to make a new and different case from the original 
 bill upon new matter. (38) And so where the case made by 
 the supplemental bill cannot stand as against defendants there- 
 by made parties without evidence under the original bill which 
 is inadmissible as to them, and no advantage can accrue to 
 complainants from the supplemental bill, the new defendant 
 will not be required to answer, and the bill will be dismissed. 
 (39) And so where defendants in answering an original bill 
 allege want of equity, and thereafter plaintiff files a supple- 
 mental bill, the question of such want of equity may be raised 
 by demurrer to the supplemental bill. (40) So where after 
 
 (35) Williams v. Winans, 20 N. J. Eq., 392; Reversed, 22 N. J. Eq., 
 573- 
 
 (36) Williams v. Winans, 20 N. J. Eq., 392; Reversed, 22 N. J. 
 Eq., 573; Leonard v. Cook, 21 At!., 47. 
 
 (37) Edgar v. Clevenger, 3 N. J. Eq., 258. 
 
 (38) Williams v.. Winans, 20 N. J. Eq., 392; Reversed, 22 N. J. 
 Eq., 573- 
 
 (39). Stover V. Wood, 26 N. J. Eq., 56; affirmed, 28 N. J. Eq., 248. 
 (40) Williams v. Winans, 22 N. J. Eq., 573. 
 
194 Supplemental Bills. 
 
 twenty-three years from the taking of the decree pro confesso 
 on an original bill against all the defendants therein except 
 one, and twenty-two years after that one had answered the 
 original bill, no step having been taken in the meantime in 
 the original suit, a supplemental bill was filed against ' some 
 of the defendants to the original bill, and against other per- 
 sons who had become assignees of others of said defendants 
 since the decree pro confesso had been taken, a, demurrer to 
 the supplemental bill was allowed. (41) 
 
 (41) Woodruff V. Brugh, 6 N. J. Eq., 465. 
 
Cross Bills. 195 
 
 CHAPTER VI 
 CROSS BILLS. 
 
 Nature and Office. A cross bill is a bill brought by a 
 defendant against the complainant in the same suit, or against 
 a co-defendant, or against both. The office of cross bill is to 
 enable a defendant to obtain discovery from or relief against 
 a complainant or co-defendant in the original bill, so that he 
 may make a more complete and efifectual defense than he 
 could make by answer alone, or so that the court mdy do com- 
 plete justice to all parties in respect to the matter put in 
 litigation by the original bill. If new facts are introduced 
 by it, they must be so closely connected with the cause of 
 action set up in the original bill as to render the cross bill 
 a mere auxiliary to the original suit. It must not be the means 
 of instituting a distinct suit in relation to other matters.(i) 
 
 Cross Bill to Obtain Affirmative Relief. In a suit in 
 equity, defendant cannot obtain affirmative relief unless he 
 files a cross bill for that purpose. (2) So substantive relief, 
 by way of specific performance of an agreement, cannot be 
 afforded upon an answer ; a cross bill is necessary for that pur- 
 pose. (3) So upon a bill to settle the accounts of one partner- 
 ship, a settlement of the accounts of another and different 
 partnership cannot be effected upon the defendant's answer; 
 his remedy is by cross bill. (4) So a defendant cannot im- 
 peach the mortgage of his co-defendant by an answer ; a cross 
 bill is necessary for that purpose. (5) So where complainant 
 
 (i) Kirkpatrick v. Corning, 39 N. J. Eq., 136; afHrmed, 40 N. J. 
 Eq., 343; Krueger v. Ferry, 41 N. J. Eq., 432; afRrmed, 43 N. J. Eq., 
 29s ; Beck v. Beck, 43 N. J. Eq., 39 ; Harrison v. Harrison, 46 N. J. Eq., 
 75 ; Doremus v. Paterson, 70 N. J. Eq., 296 ; aMrmed, 71 N. J. Eq., 789 ; 
 Asbury Park & S. G. R. R. v. Neptune Township, 73 N. J. Eq., 323. 
 
 (2) Speer v. Whitfield, 10 N. J. Eq., 107; Miller v. Gregory, 16 
 N. J. Eq., 274 ; Hoff v. Burd, 17 N. J. Eq., 201 ; Scott v. Lalor, 18 N. J. 
 Eq., 301; Leddel v. Starr, 19 N. J. Eq., 159; Graham v. Berryman, 
 19, N. J. Eq., 29; O'Brien v. Hulfish, 22 N. J. Eq., 471; Allen v. Roll, 
 2S N. J. Eq., 163 ; Parker v. Hartt, 32 N. J. Eq., 225 ; Brands v. DeWitt, 
 44 N. J. Eq., S4S ; Aspinwall v. Aspinwall, 49 N. J. Eq., 302 ; Parker 
 V. Jameson, 32 N. /. Eq., 222; Green v. Stone, 54 N. J. Eq., 387; Tall- 
 man V. Wallack, 54 N. J. Eq., 655. ' 
 
 (3) Duryee v. Linsheimer, 27 N. J. Eq., 366. 
 
 (4) Brewer v. Norcross, 17 N. J. Eq., 219. 
 
 (5) ■ Brinkerhoff v. Franklin 21 N. J. Eq., 334. 
 
196 Cross Bills. 
 
 sues for rents which defendant has collected, and defendant 
 denies complainant's right to them on the ground of a result- 
 ing trust, defendant, in order to procure a decree establishing 
 the trust, must file a cross bill. (6) 
 
 An answer to a bill to foreclose cannot draw in question 
 the fairness and validity of a sale, the purchase money where- 
 of the mortgage was given to secure, or impeach the contract 
 on which the title of the mortgagor is founded ; these matters 
 can only be drawn in question by cross bill. (7) Nor can a 
 mortgage be reformed, corrected or declared void for fraud 
 or mistake in the consideration in a suit brought to foreclose 
 it, nor can that suit be defended on such grounds ; the only 
 remedy is by cross bill for that purpose. (8) Where the object 
 of a bill in equity is to secure an accounting of a terminated 
 agency, the agreement for which agency contemplated that the 
 agent should be paid for his services, it is proper for the de^ 
 fendant agent, by cross bill, to demand payment for his servi- 
 ces, and have such payment adjusted with the accounting, so- 
 that by its decree the court may give complete relief between 
 the parties in respect of the agency. (9) So in a suit to fore- 
 close a purchase money mortgage, a cross bill praying not only 
 for the payment of the mortgage debt, but for the surrender 
 of the mortgage for cancellation on its being found that the 
 debt had been discharged, will be considered on demurrer as- 
 presenting equitable claims properly presented by answer by 
 way of cross bill, though an abatement of the mortgage debt 
 may be gained by answer. (10) 
 
 The court will sometimes permit an answer praying affirma- 
 tive relief to stand as a cross bill. Thus, where a defendant 
 in his answer prayed for affirmative relief, no objection being^ 
 made to the mode in which the defense was set up, the court 
 permitted the answer to stand as a cross bill and considered 
 
 (6) Beck V. Beck, 43 N. J. Eq., 39. 
 
 (7) Miller V. Gregory, 16 N. J. Eq., 274; O'Brien v. Hulfish, 22 
 N. J. Eq., 471 ; Allen v. Roll, 25 N. J. Eq., 163 ; Parker v. Jameson, 32- 
 N. J. Eq., 222; Parker v. Hartt, 32 N. J. Eq., 225; Green v. Stone, 54 
 N. J. Eq., 387. 
 
 (8) Miller v. Gregory, 16 N. J. Eq., 274; French v. Griffin, iS 
 N. J. Eq., 279 ; Graham v. Berryman, 19 N. J. Eq., 29 ; Hulfish v. 
 O'Brien, 20 N. J. Eq., 230; aMrmed, 22 N. J. Eq., 471. 
 
 (9) Hutchinson v. Van Voorhis, S4 N. J. Eq., 439. 
 
 (10) Peterson v. Reid, 76 N. J. Eq., 377. 
 
When Unnecessary. 197 
 
 the same, expressing, however, its disapproval of the prac- 
 tice. ( 1 1 ) 
 
 Cross Bill to Obtain Discovery. One use of the cross bill 
 is to compel complainant to make discovery or to submit docu- 
 mentary evidence in his possession to the inspection of the de- 
 fendant, to enable the latter to answer the bill and make his 
 defense to the suit. If complainant, upon request, refuse to 
 permit defendant to inspect such books or documents, defend- 
 ant may, if they are material to his defence of the suit, file his 
 cross bill for the discovery of them. (12) 
 
 Cross Bill to Introduce Newly Arising Defences. In 
 strict practice, a complainant is put to his supplemental bill, 
 and a defendant put to his own cross bill to raise a defence, 
 arising pendente lite, affecting a co-defendant. (13) 
 
 When Cross Bill is Unnecessary. A defendant cannot set 
 up by cross bill matter which he may make equally available 
 and effectual by answer. In such case the cross bill is not 
 only unnecessary but useless. The only purpose it could serve 
 would be to encumber the record and add to the expense of 
 the litigation. (14) And so where by the mistake of a scriven- 
 er certain ores were included within the terms of the mort- 
 gage sought to be foreclosed, and defendant sought by cross 
 bill to have the mortgage reformed, it was held that a cross 
 bill was unnecessary as there was no difficulty in accomplish- 
 ing that object by a decree upon the original bill declaring 
 that the complainant by reason of the mistake was not en- 
 titled to have the property in dispute sold to pay his debt. (15) 
 And so where a defendant in a bill to foreclose a purchase 
 money mortgage set up in his answer that the complainant 
 falsely and fraudulently represented to him, at the sale, that 
 the property he purchased contained several more acres thaui 
 it did in fact contain, and the price for the property was fixed 
 
 (11) Green v. Stone, 54 N. J. Eq., 387. 
 
 (12) Miller v. Gregory, 16 N. J. Eq., 274; Chester Iron Co. v. Beach, 
 40 N. J. Eq., 63 ; Evans v. Staples, 42 N. J. Eq., 584. 
 
 (13) National Bank of the Metropolis v. Sprague, 21 N. J. Eq., 530. 
 
 (14) Ames V. N. J. Franklinite Co., 12 N. J. Eq., 66; aMrmed ib., 
 512; Dayton v. Melick, 27 N. J. Eq., 362; Beck v. Beck, 43 N. J. Eq., 
 39; Van Winkle v. Armstrong, 41 N. J. Eq., 402; and see "Answer," 
 page 294, infra. 
 
 (is) Ames v. N. J. Franklinite Co., 12 N. J. Eq., 66; afHrmed ib., 
 S12. 
 
198 Cross Bills. 
 
 at so much per acre, so that the defendant was induced to pay 
 a substantial sum more than he should have done, it was held 
 that the question, whether the defendant was entitled to a 
 reduction for the claims, could be tried under the answer 
 without prejudice to any right of the complainant, and without 
 depriving him of any privilege or advantage to which he would 
 otherwise be entitled, and that hence a cross bill was not 
 necessary. (i6) 
 
 In bills in equity for an account, both parties are deemed 
 actors where the cause is before the court on its merits. It is 
 upon this ground that the party defendant, contrary to the 
 ordinary course of equity proceedings, is entitled to orders in 
 a cause, to which complainant is alone generally entitled. In 
 bills, for an account, if the balance is ultimately found in 
 favor of the defendant, he is entitled to a decree for such 
 balance against the complainant. (17) And so a cross bill is 
 not necessary in a suit between partners wherein the complain- 
 ant seeks a dissolution and an account from the defendant to 
 enable the latter to get an account from the former, or to 
 obtain relief against fraudulent practices of the complainant 
 in giving the note of the firm without consideration, for his 
 own benefit, and in buying up the paper of the concern at a 
 discount for his advantage with a view to obtaining the full 
 amount thereof out of the assets of the firm. (18) 
 
 The court may dispense with the necessity for a cross bill 
 when the whole matter is before it, and the party is not thereby 
 deprived of any of his substantial rights by a decree in the 
 existing^ suit; but it will never dispense with a cross bill where 
 any of the defendants would be prejudiced by the want of 
 one. ( 19) 
 
 Time for Filing Cross Bill. A cross bill against a com- 
 plainant should in general be filed at the time of filing the 
 
 (16) Dayton v. Melick, 27 N. J. Eq., 362; Reversed, 34 N .J. Eq., 
 24s. 
 
 (17) Scott V. Lalor, 18 N. J. Eq., 301; Johnson v. Buttler, 31 N. J. 
 Eq., 35 ; Blair v. Green, 45 N. J. Eq., 671 ; U. S. Fidelity & Guaranty 
 Co. V. Newark, 72 N. J. Eq., 841 ; afHrmed, 74 Atl., 454. 
 
 (18) Johnson v. Buttler, 31 N. J. Eq., 35. 
 
 (19) Ames V. N. J. Franlinite Co., 12 N. J. Eq., 66; aMrmed ib., 
 512; Hudnit V. Nash, 16 N. J. Eq., 550; Vandeveer v. Holcomb, 17 
 N. J. Eq., 87; aMrmed ib., 547; Randolph v. Wilson, 38 N. J. Eq., 
 28; aMrmed ib., 287. 
 
Parties. 199 
 
 answer, and in all cases before closing the testimony; but the 
 former rule does not apply to a cross' bill by one defendant 
 against another, for the reason that until the answers are filed 
 neither defendant can know what defense the other will set 
 up, nor does the latter apply to cases in which no testimony 
 has been taken. (20) And the court will grant leave to a de- 
 fendant to file a cross bill, after a reference to a Master in a 
 foreclosure suit, if it should be found necessary for his pro- 
 tection and to effectuate the ends of justice. (21) So' a defend- 
 ant ignorant of facts which entitle him to file a cross bill until 
 the depositions of complainant's witnesses reveal such facts, 
 cannot, if he file his cross bill without unnecessary delay, be 
 deprived of the benefit of such facts at the complainant's in- 
 stance, where he was wilfully kept in ignorance of them by a 
 person acting in concert with the complainant, and who had 
 been recommended by the complainant to defendant as a trust- 
 worthy person in the transaction, but whose fraudulent con- 
 duct was the ground of the cross bill. (22) But where the sole 
 object of the action is to settle the rights of legatees and de- 
 visees, the rule requiring a cross bill to-be filed at the same 
 time with the answer will not be applied with the same strict- 
 ness' as in cases involving the violation or withholding of 
 rights. (23) 
 
 An objection of lack of necessary parties should precede the 
 filing of a cross bill, in order that all the parties necessary to 
 the final disposition of the question raised by the cross' bill 
 should be before the court. (24) 
 
 Parties to Cross Bills — Complainants. Any defendant 
 who has a right in the subject matter of the controversy not 
 presented in the original bill, may assert it by cross bill ; but 
 a party who is a stranger or a mere volunteer with no claim 
 of title, either by mortgage or otherwise, in the subject matter 
 of the s'uit, may not exhibit a cross bill. (25) Where, however, 
 in a foreclosure suit, a person acquires an interest in the prop- 
 
 (20) Vandeveer v. Holcomb, 21 N. J. Eq., 105 ; Stevens v. Stevens, 
 24 N. J. Eq., ^T, N. Y. & N. J. Water Co. v. N. Arlington, 75 Atl. Rep., 
 177. 
 
 (21) Huber v. Deibold, 25 N. J. Eq., 170. 
 
 (22) Berryman v. Graham, 21 N. J. Eq., 370. 
 
 (23) Stevens v. Stevens, 24 N. J. Eq., "JT. 
 
 (24) Plum V. Smith, 56 N. J. Eq., 468. 
 
 (25) Mutual Life Insurance Co. v. Cokefair, 41 N. J. Eq., 142. 
 
200 Cross Bills. 
 
 erty sought to be foreclosed and the evidence of such interest 
 is in the hands of the complainant in the foreclosure suit, who 
 refuses to surrender the same, a bill in the nature of a cross 
 bill may be filed to prevent the complainant from depriving 
 the claimant of the benefit of his interest, or such claimant 
 may apply by petition to be made a party defendant to the 
 foreclosure suit. (26) 
 
 Parties Defendant. A cross bill requires the same parties 
 defendant as would an original bill for the same purpose, that 
 is to say, all persons having any interest in the object of the 
 suit. When the object of a cross bill is' affirmative relief, such 
 as would be obtained by the reformation of a deed in aid of a 
 defence to the suit, persons ~not parties to the original bill, who 
 are not necessary parties to the relief sought, may be made 
 parties to the cross bill. (27) The view expressed by Vice- 
 Chancellor Bird, in Richman v. Donnell, (27a) that new par- 
 ties cannot be introduced by cross bill, has force only where 
 new matter is set up in the cross bill which is foreign to the 
 subject to which the original bill is addressed. It does not 
 apply to cases where the relief sought by the cross bill affects 
 the same subject matter dealt with in the original bill, and the 
 denial of relief to the original complainant will, under the cir- 
 cumstances of the case, be substantially a declaration that the 
 affirmative relief sought by the cross bill should be adjudged. 
 
 (28) And so the complainant in the original bill may be made 
 a defendant to the cross bill, even though he become a defend- 
 ant in a new capacity, and, therefore, becomes a new party. 
 
 (29) If a cross bill lacks necessary parties as defendants, it 
 will not be stricken out for that reason ; but where there is 
 such a lack, and the cross bill has not for that reason been 
 challenged by the defendants, the court will stand the cause 
 over until the necessary parties are brought in as defend- 
 ants. (30) 
 
 Relation to Subject Matter of Original Bill. A cross bill 
 is considered as a- mode of defense, and must be confined to 
 
 (26) Kirkland v. Kirkland, 26 N. J. Eq., 276. 
 
 (27) Green v. Stone, 54 N. J. Eq., 387-400; Haberman v. Kaufer, 
 60 N. J. Eq., 271. 
 
 (27a) 53 N. J. Eq., 32. 
 
 (28) Haberman v. Kaufer, 60 N. J. Eq., 271. 
 
 (29) Haberman v. Kaufer, 60 N. J. Eq., 271-277. 
 
 (30) Haberman v. Kaufer, 60 N. J. Eq., 271. 
 
Relation" to Original Bill. 201 
 
 the subject of litigation in the original suit. It cannot be the 
 means ot instituting a distinct suit in relation to other matters, 
 and cannot become the foundation of a decree as to such 
 matters. (31) The new facts which it is proper for a defend- 
 ant to introduce into a pending litigation by means of a cross 
 bill are such, and such only, as it is necessary for the court 
 to have before it in deciding the question raised in the original 
 suit, and in order to enable it to do full and complete justice 
 to all the parties before it in respect to the cause of action 
 on which the complainant rests his right to aid or relief. If 
 a defendant in filing a cross bill attempts to go beyond this, 
 and to introduce new and distinct matters not essential to the 
 proper determination of the matters put in litigation by the 
 original bill, although he may show a perfect case against 
 either the complainant or one or more co-defendants, his 
 pleading will not be a cross bill, but an original bill. (32) No 
 relief is ever granted upon a cross bill except it be founded 
 on allegations in the bill or other pleadings. (33) The test to 
 be applied is whether the questions raised by the cross bill 
 are necessary to the proper determination of all the matters 
 involved in the litigation which the original bill originated. (34) 
 So where, to a bill for the cancellation of certificates of stock 
 issued by defendant corporation, because unlawfully issued, 
 defendants allege, by cross bill, that defendant corporation 
 had decided to cease the manufacture of goods for a time, and 
 that complainants had directed the concern to continue opera- 
 tions, and asked to have complainants restrained from further 
 interference, it was held that the cross bill should be stricken 
 out as foreign to the subject matter of the original bill. (35) 
 And so where an original bill was filed against a city to re- 
 strain a nuisance^ a cross bill filed by the city in which it ad- 
 mitted the nuisance, but averred that a certain Water Com- 
 pany had unlawfully diverted, for the benefit of another city, 
 
 (31) Seabring v. Conkling, 32 N. J. Eq., 24; Carpenter v. Gray, 
 37 N. J. Eq., 389; Kirkpatrick v. Corning, 39 N. J. Eq., 136; affirmed, 
 40 N. J. Eq., 343 ; Allen v. Fury, 53 N. J. Eq., 35 ; Mills v. Hendershot, 
 70 N. J. Eq., 258. 
 
 (32) Krueger v. Ferry, 41 'N. J. Eq., 432; affirmed, 43 N. J. Eq., 
 29s ; Allen v. Fury, S3 N. J. Eq., 35. 
 
 (33) Leddel's Exr. v. Starr, 19 N. J. Eq., 159. 
 
 (34) Krueger v. Ferry, 41 N. J. Eq., 432; affirmed, 43 N. J. Eq., 
 29s ; Hutchinson v. Van Voorhis, 54 N. J. Eq., 439. 
 
 (35) Allen v. Fury, 53 N. J. Eq., 35. 
 
202 Cross Bills. 
 
 water which would otherwise have flowed past defendant city 
 and helped to dilute its sewage, and that another Water Com- 
 pany had constructed a dam across the river below defendant 
 city, which prevented the passage of sewage down the stream, 
 is fatally defective as pleading matters not germane to the 
 original bill. (36) And so where a bill was filed against two 
 trustees to compel each to account for so much of the pro- 
 ceeds of certain property as came into his hands, by one who 
 was entitled to an aliquot part of each fund, it was held that 
 neither defendant could file a cross bill- for the purpose of 
 calling upon the other to account for the funds in his hands. 
 (^y) And so the share of complainant in a trust fund cre- 
 ated by will, for the recovery of which entire fund he sued, 
 cannot be subjected by a cross bill to the payment of a judg- 
 ment obtained against him by one of the defendants; it is an 
 independent effort to subject a debtor's property to the pay- 
 ment of a judgment at law, and has no connection with or 
 relation to the matter of the original suit. (38) So where a 
 bill was filed by an executor and trustee, before any settle- 
 ment of the estate or other final ascertainment of the amount 
 to be held in 'trust, praying that his dealings so far with the 
 estate might be approved, and that a new trustee might be 
 appointed, defendant filed a cross bill praying, among other 
 things, that a receiver be appointed ; the court upon motion 
 dismissed the cross bill for the reason that the charges in the 
 cross bill against the executor for wasting the estate were 
 too general in that they contained no specification of any par- 
 ticular instance or fact showing them to be true. (39) On 
 the other hand, where a bill was filed by a devisee of lands 
 charged with certain legacies, asking for specific performance 
 of a contract with testator for the sale of such lands unencum- 
 bered, the court had jurisdiction to enforce the charges against 
 the land, and hence an objection to the cross bill praying for 
 the sale of the land to pay the legacies, on the ground that it 
 set up matter which was not germane to the original bill, was 
 not well taken. (40) And so where a bill was filed to establish a 
 
 (36) Doremus v. Paterson, 70 N. J. Eq., 296; afHrmed, 71 N. J. Eq., 
 789. 
 
 (37) McClain v. Babbitt, 62 N. J. Eq., 753. 
 
 (38) Plum V. Smith, 56 N. J. Eq., 468. 
 
 (39) Blair v. Green, 45 N. J. Eq., 671. 
 
 (40) Haberman v. Kaufer, 60 N. J. Eq., 271. 
 
Defenses. 203 
 
 secret trust in real estate, and thereby to divest the Hen of a 
 judgment against the holder of the legal title, the trust being 
 alleged to result from the investment of trust moneys in lands, 
 by a deed which through mistake and oversight did not de- 
 clare the trust, and the bill further alleged that after the 
 recovery of the judgment the mistake was attempted to be 
 corrected by a conveyance in trust to one ■ of the complain- 
 ants, and defendant, by cross bill, attacked the remedial con- 
 veyance made by the judgment debtor, and prayed that it 
 might be set aside, it was held that such cross bill might be 
 maintained. (41) 
 
 Jurisdiction of Subject Matter. A cross bill must set up 
 a distinct ground of relief upon which the defendant must make 
 out a case entitling him to the interposition of the court upon 
 principles of equity, or he must fail, and leave the original 
 claim against him in full force. (42) So in a suit to enjoin 
 the holder of chattel mortgages and judgments from enforc- 
 ing them, defendant cannot, by cross bill, recover the sum 
 paid for attorney's fees in connection with the assignment to 
 him of one of the judgments, it not being included in any 
 judgment, and being recoverable at law. (43) And so a cross 
 bill, praying relief based upon a promise by one to make a 
 particular testamentary disposition of property for the benefit 
 of another, was stricken out on motion, because it failed to 
 disclose a sufficient consideration. (44) And so a cross bill 
 setting up a claim for unliquidated damages will be stricken 
 out as seeking to introduce matter not within the jurisdiction 
 of the Court of Chancery. (45) 
 
 Consistency with Answer. A defendant, in his cross bill, 
 cannot set up a cause inconsistent with the case made in his 
 answer to the original bill. (46) 
 
 Defenses to Cross Bills. If a cross bill be exhibited, the 
 defendant to the first bill must answer thereto before the de- 
 fendant to the cross bill shall be compelled to answer such 
 
 (41) Manley v. Mickle, 55 N. J. Eq., 793. 
 
 (42) Beach v. Waddell, 8 N. J. Eq., 299; aMrmed, 9 N. J. Eq., 293. 
 
 (43) Miller v. De Yoe, 58 Atl., 179. 
 
 (44) Drake v. Lanning, 49 N. J. Eq., 452. 
 
 (45) Norton v. Sinkhorn, 61 N. J. Eq., 508; Reversed, 63 N. J. 
 Eq., 313- 
 
 (46) Jackson v. Grant, 18 N. J. Eq., 145. 
 
204 Cross Bills. 
 
 cross bill. (47) The answer of the complainant to the cross 
 bill may be considered as substantially and for all practical 
 purposes a replication to the defendant's answer to the origi- 
 nal bill. (48) 
 
 Staying Proceedings on Original Bill. The filing of a 
 cross bill does not, as a matter of course, stay the proceedings 
 in the original suit. If the party filing the cross bill wishes 
 to stay the cause upon the original pleadings, he should give 
 notice and apply to the court for an order to that effect. (49) 
 
 Where the cross bill was not filed until a year after the 
 filing of the original bill and after the proofs had been taken 
 and the original cause noticed for hearing, and a proper de- 
 cree could be made without the necessity of a cross bill, the 
 Chancellor did not delay the hearing on the original suit on 
 the ground that the complainants had not answered the cross 
 bill. (50) But where the evidence is not closed in the original 
 suit, and the Attorney General has filed an information in the 
 nature of a cross bill to protect the rights of the state, the 
 original suit will be stayed, but only so far as it involves such 
 rights ; as to the other matters in controversy, the original 
 suit will go on. (51) 
 
 Answer by Way of Cross Bill. The chancery rules pro- 
 vide that a defendant may set up in his answer matter which 
 would ordinarily be the proper subject of a cross bill, prefixing 
 such matter with a statement that it is exhibited by way of 
 cross bill. The practice where an answer by way of cross bill 
 is filed will be found fully set forth in the Rules. (52) Pro- 
 
 (47) Chancery Act, section 28, page 31, supra. 
 
 (48) Whyte V. Arthur, 17 N. J. Eq., 521. 
 
 (49) Williams v. Carle, 10 N. J. Eq., S43. 
 (so) Williams v. Carle, 10 N. J. Eq., S43- 
 
 (si) Stevens v. Stevens, 24 N. J. Eq., 77; S. C, 26 N. J. Eq., loi. 
 
 (52) Practice on Answer By Way of Cross Bill. When a de- 
 fendant desires such relief as by the existing practice can only be ob- 
 tained by means of a cross-bill, it shall not be necessray to file such 
 bill to obtain it ; but he may set up in his answer matter which would 
 now be the proper subject of a cross-bill and obtain relief thereon. 
 He shall preface such matter with a statement that it is exhibited by 
 way of a cross-bill in the form following: 
 
 And this defendant by way of cross-bill exhibited against the com- 
 plainant (or, defendant, as the case may be), says: And he may 
 answer on oath. Where it is exhibited against a co-defendant, he 
 shall serve a copy of the answer on such defendant in five days 
 from the date of filing, unless the court shall gjiye further time. And 
 
Hearing. 205 
 
 vision is also made by the Chancery Rules for answer by way 
 of a cross bill in cases of divorce. (53) An answer by way of 
 cross bill filed under Chancery Rule 206 is a pleading in an 
 original cause, and costs taxed thereon are costs for which the 
 solicitor filing a bill for a non-resident complainant is responsi- 
 ble if the complainant has not given the security required by 
 the statute. (54) 
 
 Hearing on Bill and Cross Bill. For many purposes an 
 original and cross xause in Chancery are considered as one 
 suit; they are ordinarily heard together, and the rights of all 
 the parties in respect to the subject matter are settled by one 
 decree. (55) And where affirmative relief is not sought by the 
 cross bill against complainant in the original bill, a dismissal 
 of the original bill carries with it a failure of the cross bill. (56) 
 
 in case any such co-defendant shall be non-resident (or absent from 
 the State, or not found therein after reasonble inquiry) and it shall 
 appear that said defendant cannot, after reasonable effort, be actually 
 served, the chancellor will by order direct how constructive service 
 of the answer may be made. If the answer in the nature of a cross- 
 bill be exhibited against the complainant he shall answer it (on oath, 
 if required), by special replication foUowing the general replication 
 to the rest of defendant's answer in the form provided in the 207th 
 rule, to be filed within the same time now fixed for replying. If against 
 a co-defendant, such co-defendant shall answer by a pleading in the 
 form of an answer (and on oath, if required), to be filed within thirty 
 days from the time of serving the copy of the answer to which he 
 is called upon to respond. Issue shall be joined on the responsive 
 pleading (whether it be by special replication or answer) by the filing 
 of a note in the following form : 
 
 The defendant (or, the defendant if there be several 
 
 defendants in the cause) joins issue on the special replication (or, 
 
 answer, as the case may be), of to his answer 
 
 in the nature of a cross-bill. 
 
 Such note shall be filed in fifteen days from the expiration of the 
 time of filing such replication or answer. Chancery Rule 206. 
 
 This rule provides that when a defendant desires relief such as by 
 the existing practice can only be obtained by a cross-bill, it is not neces- 
 sary for him to file such bill, but he may set up in his answer the proper 
 subject matter of a cross-bill and obtain relief thereon. Of course the 
 matter set up by way of answer when affirniative relief is sought by the 
 defendant must be the proper subject matter of a cross-bill but under 
 this rule it may be set up by answer. Reed v. Benzine-Ated Soap Co., 
 72 N. J. Eq., 622. 
 
 (53) Chancery rule 206a. 
 
 (54) Reed v. Benzine-Ated Soap Co., 72 N. J. Eq., 622. 
 
 (55) Whyte v. Arthur, 17 N. J. Eq., 521 ; Reed v. Benzine-Ated 
 Soap Co., ^2 N. J. Eq., 622. 
 
 (56) New York and New Jersey Water Company v. Borough of 
 N. Arlington, 75 Atl., 177. 
 
206 Bills of Interpleader. 
 
 CHAPTER VII 
 
 B.ILLS GF INTERPLEADER. 
 
 Definition and Nature of Bill. A bill of interpleader is 
 one in which the complainant asserts his possession of some 
 fund or something in which he claims no personal interest, 
 but to which other persons, made defendants, set up conflict- 
 ing claims, and complainant cannot safely determine to which 
 claim he should yield.(i) Lord Redesdale states that the 
 right to exhibit a bill of interpleader exists when two or more 
 persons claim the same thing by different or separate interests, 
 and another person, not knowing to which of the claimants he 
 ought of right to render the debt or duty or to deliver the 
 property in his custody, fears he may be hurt by some of 
 them. (2) 
 
 The essential incident of the equity which justifies an inter- 
 pleader is that the complainant, so far as his own acts are con- 
 cerned, is under but a single liability to pay or deliver the 
 fund or thing in dispute, and yet is called upon to pay or de- 
 liver it to two or more contesting claimants. The complain- 
 ant, in such cases, having no interest in the fund or thing in 
 dispute, it is inequitable that he should be compelled to take 
 the risks of determining which of the conflicting claims is 
 superior. (3) So where a policy of life insurance'is payable 
 to a person named and designated as the wife of the insured, 
 and on his death two women claim to be the person so named 
 and designated, the insurance company is entitled to maintain 
 a bill of interpleader. (4) And so where money due on a 
 negotiable promissory note is claimed on the one hand by a 
 creditor of the payee, who has attached the money in the hands 
 of the maker of the note before its maturity, and on the other 
 hand by an endorsee of the note, who took it subsequent to 
 the attachment but before its maturity, and who claims to be 
 
 (i) Leddel v. Starr, 20 N. J. Eq., 274; Carter c. Cryer, 68 N. J. 
 Eq., 24; Metropolitan Life Insurance Co. v. Hamilton, 70 Atl., 677. 
 
 (2) Mitf. Eq. PI., 59; Wakeman v. Kingsland, 46 N. J. Eq., 113. 
 
 (3) Packard v. Stevens, 58 N. J. Eq., 489; Ireland v. Kelly, 60 N. J. 
 Eq., 308. 
 
 (4) Bayerischen National Verband, etc. v. Knaus, 75 N. J. Eq., 
 363. 
 
Complainants. 207 
 
 a bona fide holder for a valuable consideration, without notice 
 of the attachment, this state of facts presents a proper case 
 for a bill of interpleader. (5) And a bill of interpleader may 
 be filed although the claim of one of the claimants is action- 
 able at law and that of the other in equity. (6) 
 
 The existence of conflicting claims upon the same fund may 
 arise from so many causes that it is difficult to define any limi- 
 tation which must deprive the holder of the fund of his right 
 to be protected; so the fact that one party claims because of 
 an admitted contra(;t with the holder of the fund, and the 
 other by some claimed arrangement with the admitted con- 
 tractor, will not exclude the holder of the fund from his right 
 to be protected. The cases arising under building contracts are 
 familiar illustrations of this rule, although strictly speaking 
 this class of cases falls within the scope of a bill in the nature 
 of a bill of interpleader rather than within that of a bill of 
 strict interpleader. (7) The practice of the court has been 
 liberal in favor of persons standing in the situation of stake- 
 holders or agents having no interest in the property claimed, 
 but only desiring honestly to pay it where it is justly due. It 
 has proceeded on the principle that they have a right to pro- 
 tection, not alone from being compelled to pay, but from the 
 vexation attending all the suits that may possibly be instituted 
 against them ; and a bill of interpleader will be sustained in 
 cases where it is not absolutely necessary that the complainant 
 should resort to equity ibr protection. (8) 
 
 Complainant Must be Disinterested. A bill of inter- 
 pleader is founded upon the admitted want of interest in the 
 complainant. The position of the complainant should be one 
 of impartiality between the claimants, and it is essential that 
 he claim no personal interest in or title to the subject matter 
 of the litigation ; he should stand indifferent between the de- 
 fendants. (9) And so a person by becoming the complainant 
 in an interpleader suit and prosecuting his suit to a decree re- 
 
 (5) Briant v. Reed, 14 N. J. Eq., 271. 
 
 (6) Lozier v. Van Saun, 3 N. J. Eq., 325; Wakeman v. Kings- 
 land, 46 N. J. Eq., 113. ' 
 
 (7) Ireland v. Kelly, 60 N. J. Ejq., 308; and see "Bill in the nature 
 of a Bill of Interpleader," page 215, infra. 
 
 (8) Lozier v. Van Saun, 3 N. J. Eq., 325 ; Packard v. Stevens, 
 S8 N. J. Eq., 489-497. 
 
 (9) Lozier v. Van Saun, 3 N. J. Eq., 325. 
 
208 Bills of Interpleader. 
 
 quiring the defendants to interplead, cuts himself off by such 
 suit and decree from any right which he has in the property 
 which is subject to the suit. (lo) A complainant cannot ad- 
 just his own claims' against the matter in controversy and ask 
 defendants to interplead as to the balance. Strict interpleader 
 is where the depositary holds as depositary merely, and claims 
 are made against him in that character only. (ii) But an ex- 
 ecutor, against whom there are conflicting claims to the pro- 
 ceeds of notes executed by his testatrix before her death, and 
 claimed by attachment creditors, has no such interest in the 
 question of the amount due as will preclude him from filing a 
 bill of interpleader against the claimants. (12) 
 
 No Independent Liability Must Exist Between Gomplain- 
 ant and One Claimant. As respects the subject of the inter- 
 pleader, complainant must not have incurred, a personal lia- 
 bility to any of the defendants, independent of the question 
 between the defendants themselves; so if it appears that the 
 complainant, with respect to the fund in dispute, has entered 
 into a contract with one defendant in which the other defend- 
 ant has neither part nor interest, an interpleader will not be 
 decreed. (13) And so a complainant in a strict interpleader 
 suit, who is under personal liability to a defendant in respect 
 to the matter concerning which he asks .that the defendants 
 shall be compelled to interplead, cannot maintain his' suit 
 against such defendant, but the bill as to him must be dis- 
 missed. (14) So if a defendant in a strict interpleader suit 
 shows that the complainant is under a personal obligation to 
 him in respect to the matter concerning which the complainant 
 asks' that the defendants shall be compelled to interplead, so 
 that the litigation among the defendants under a decree direct- 
 ing them to interplead will not determine the right of such 
 defendant as against the complainant, the bill as against such 
 defendant must be dismissed. (15) 
 
 (10) Supreme Council of Chosen Friends v. Bennett, 47 N. J. Eq., 
 39; Reversed ib., 563; Catholic Benevolent Legion v. Murphy, 65 N. J. 
 Eq., 60. 
 
 (11) 'Williams v. Matthews, 47 N. J. Eq., 196. 
 
 (12) Lozier v. 'Van Saun, 3 N. J. Eq., '325. 
 
 (13) Pratt V. 'Worrell, 66 N. J. Eq., 194; but see "Bill in the 
 Nature of a Bill of Interpleader," page 215, infra. 
 
 (14) Wakeman v. Kingsland, 46 N. J. Eq., 113. 
 
 (15) Lozier v. Van Saun, 3 N. J. Eq., 325; 'Wakeman v. Kingsland, 
 46 N. J. Eq., 113-117. 
 
Complainants. 209 
 
 Complainant Must Not be a Wrongdoer. A bill of in- 
 terpleader cannot be sustained where the complainant is ob- 
 liged to admit that as to any of the defendants he is a wrong- 
 doer. (i6) So where government bonds are deposited with 
 the complainant to indemnify sureties on a recognizance of 
 the depositor, and claim to the bonds is made by a judgment 
 creditor and by a person who alleges herself to be the real 
 owner of the bonds and that the depositor never had any inter- 
 est in them, the position of complainant towards the opposing 
 claimants is radically different ; to one he is under the obliga- 
 tions of a-bailee; as to the other, if her claim is true, he is a 
 wrongdoer. Under this state of facts, an interpleader will 
 not lie. (17) 
 
 Complainant Must Be in Possession of the Fund. It is 
 essential that complainant be in possession or have control of 
 the property or fund in dispute. (18) 
 
 Complainant Cannot Have Been Guilty of Laches. A 
 stakeholder should use reasonable diligence in bringing the 
 contending claimants into court; the rule that, to entitle a 
 party to relief by bill of interpleader, he must apply before 
 verdict or judgment at law is obtained against him, appears to 
 be well recognized, and also uniformly enforced ; where, how- 
 ever, the effect of the verdict at law is merely to settle the 
 quantum of damages', the rule referred to is not uniformly ap- 
 plied. (19) So it is no cause of demurrer to a bill of inter- 
 pleader that it is filed after judgment at law, no defense having 
 been made against the recovery of the judgment, where the 
 whole or a part of the defense is equitable only. (20) The 
 right to file a bill of interpleader is not lost by filing pleas in 
 bar in actions brought at law, unless the defense at law is 
 persisted in until verdict. (21) 
 
 Privity of Title Between Claimants. A bill of inter- 
 pleader will not lie except vyhere privity of some sort exists 
 
 (16) Mt. Holly, etc., Turnpike Co. v. Ferree, 17 N. J. Eq., 117; Shaw 
 V. Coster, 8 Paige, 339; Quinti v. Patton, 2 Ired. Eq., 48. 
 
 (17) First National Bank of Morristown v. Bininger, 26 N. J. Eq., 
 345- 
 
 (18) Mt. Holly, etc., Turnpike Co. v. Ferree, 17 N. J. Eq., 117; 
 I Meriv. 405 ; 35 English Reprint, 723. 
 
 (19) Maxwell v. Leichtman, 65 Atl., 1007. 
 
 (20) Lozier v. Van Saun, 3 N. J. Eq., 325. 
 
 (21) Maxwell v. Leichtman, 65 Atl., 1007. 
 
210 Bills of Interpleader. 
 
 between all of the partieft. Where the claimants assert their 
 rights under adverse titles, and not in privity, and where their 
 claims are of different natures, the bill will not be maintained. 
 (22) So a tenant cannot sustain a bill of interpleader against 
 his landlord claiming rent under the lease, and a purchaser of 
 the demised premises claiming for the value of their use and 
 occupation during the same period, under attachment pro- 
 ceedings against the landlord. There is no privity of tenure 
 or of contract between the defendants, and the rent should 
 be paid to the landlord. (23) And so a bailee is not entitled 
 to call upon a party to interplead as to his right to the prop- 
 erty on the ground that as to such party he is a stakeholder 
 or trustee, when at the time of the bailment the party was 
 unknown, and had no connection with the transaction and 
 if his claim respecting the property is true, the bailee's iwsses- 
 sion of the property, if not tortious at its inception, became 
 so after demand and refusal, to deliver it. (24) 
 
 Parties. All persons claiming an interest in the fund or 
 property in dispute, whether in their own right or as the repre- 
 sentatives of others, should be joined as parties defendant. If 
 on the face of a bill seeking an interpleader decree it appears 
 that other parties than those made defendants have a right 
 to be heard regarding the fund in dispute, an interpleader will 
 not be decreed. (25) So a mortgagor is not entitled to an 
 interpleader on a charge that the attorney of the mortgagee 
 demands the money due on the mortgage, that the mortgagee 
 was imbecile or insane when she executed such power of 
 attorney, and that the mortgagee's daughter forbids complain- 
 ant to pay to the attorney on account of such mental incapacity, 
 the mortgagee herself not having been made a party to the 
 interpleader, since she is a necessary party. (26) 
 
 Payment of Fund Into Court. The complainant in a bill 
 of interpleader ought by his bill to offer to pay into court any 
 
 (22) First National Bank of Morristown v. Bininger, 26 N. J. Eq., 
 345- 
 
 (23) D'odd V. Bellows, 29 N. J. Eq., 127. 
 
 (24) First National Bank of Morristown v. Bininger, 26 N. J. Eq., 
 34S ; N. J. Title Guarantee & Trust Co. v. Rector, 75 N. J. Eq., 423 ; 
 but see "Bills in the nature of Bills of Interpleader," page 215, infra. 
 
 (25) Pratt V. Worrell, 66 N. J. Eq., 194. 
 
 (26) Blake v. Garwood, 42 N. J. Eq., 276. 
 
Frame of Bill. 211 
 
 money and interest which is due from him. (27) The omission 
 of such offer does not, however, render the bill demurrable. (28) 
 But the fund must be brought into court before any order will 
 be made in the cause. (29) By the payment into court under a 
 bill of interpleader of the sum in dispute, complainant admits 
 nothing but that he is bound to pay some one and so by pay- 
 ment into court of the sum secured by a benefit certificate 
 under a bill of interpleader filed by a Beneficial Order against 
 the beneficiary and one claiming under an assignment of the 
 certificate made in violation of the Constitution and By-Laws 
 of the Order prohibiting assignments, the complainant does 
 not admit the validity of the assignment. (30) 
 
 Frame of the Bill. To state a case of strict interpleader, 
 the complainant must show that conflicting claims are made 
 against him by two or more persons for the same thing; that 
 he has no interest in the subject matter of their controversy, 
 and that the title to the thing in dispute is in some of the 
 hostile claimants, but in which one he cannot determine ; and all 
 the relief he asks is that, on the surrender of the thing in 
 dispute, his liability shall cease, and that thereupon the hostile 
 claimants be required to settle their disputes among themselves. 
 (31) Where an impartial stakeholder brings a fund of which 
 he holds the custody, but in which he has no interest, into 
 court, and also brings in the hostile claimants, each of whom, 
 in good faith, insists that he is entitled to the whole of the 
 fund, an interpleader decree will not be refused the complain- 
 ant because one claimant probably has a better right to the 
 fund. The complainant's equity is that he, being impartial and 
 willing to pay once to the rightful party, shall be protected 
 from the necessity of deciding which is the rightful party, and 
 from the expense and danger of defending several suits by 
 
 (27) Mitf. Eq. PI., 49, 143; 2 Dan. Ch. Pr., p. 1563. 
 
 (28) 2 Dan. Ch. Pr., 1563; Meux v. Bell, 6 Sim., 175; Nash v. 
 Smith, 6 Conn., 421; Converse v. Ware S. Bank, 152 Mass., 405. 
 
 (29) Story's Eq. PI., section 291; 2 Dan. Ch. Pr., 1563; Dungey 
 V. Angrove, 3 Bro. C. C., 36 ; Sieveking v. Behrens, 2 M. & C, 581 ; 
 Shaw V. Coster, 8 Paige, 339; Chancery rule 221; see page 214, infra. 
 Mohawk & H. R. Co. v. Clute, 4 Paige, 384. 
 
 (30) Order of Heptasophs v. Dailey, 61 N. J. Eq., 145. 
 
 (31) Illingworth v. Rowe, 52 N. J. Eq., 360. 
 
212 Bills of Interpleader. 
 
 hostile claimants of the fund. (32) The complainant must, 
 however, at least show that there is some doubt to which 
 claimant the debt or duty belongs, and that the danger of 
 double vexation is real. A mere suspicion of a risk is in- 
 suflScient. If he states a case in his bill which shows that one 
 defendant is entitled to the debt and the other is not, both 
 defendants may demur. (33) 
 
 The recitals, in a bill of strict interpleader, should give so 
 full a statement of complainant's claim as to demonstrate 
 that he has no interest in the thing in controversy. (34) If 
 the subject matter in dispute is property, he must show his 
 possession, since one out of possession, or who has put one of 
 the claimants in possession, cannot ask for an interpleaded. (35) 
 
 In a bill of interpleader the claims should be specifically set 
 forth, so that they may appear to be of the same nature and 
 character, and the fit subject of a bill of interpleader. So a 
 bill of interpleader which states that G claims to be the ad- 
 ministrator of C and to be therefore, entitled to a certain fund,, 
 and also that he claims an interest in such fund, without 
 stating what that interest is or how it was obtained, 
 should be dismissed, because his claim is not specifically set 
 forth. (36) But it is not necessary for a complainant to state 
 fully the case of the claimants, he has only to set out the 
 claims as exhibited to him ; he cannot be expected to set up- 
 claimants' case with as much particularity as they themselves 
 might do. It is enough for the complainant to satisfy the 
 court that there are opposing claims, against which he is in 
 
 (32) Packard v. Stevens, 58 N. J. Eq., 489 ; Pennsylvania R. R. Co. 
 V. Earl, 63 N. J. Eq., 634 ; Reversed, 65 N. J. Eq., 721 ; Bayerischen 
 National Verbund, etc., v. Knaus, 75 K. J. Eq., 363. 
 
 (33) Briant v. Reed, 14 N. J. Eq., 271 ; Fitch v. Brower, 42 N. J. Eq., 
 300 ; Metropolitan Insurance Co. v. Hamilton, 70 Atl., 677. A bill of 
 interpleader by an owner of a building erected by a contractor for the 
 distribution among those who have filed legal stop notices, which 
 alleges that several claimants to the amount due under the contract 
 have made claims on the owner to the exclusion of other claimants 
 and which sets forth the substance of the stop notices, thereby creating 
 substantial doubt as to the suflficiency of some of the notices, shows 
 suiificient uncertainty as to the rights of the complainants to entitle 
 the owner to file the bill. Keupler v. Eisele, 83 Atl., 999. 
 
 (34) Williams v. Matthews-, 47 N. J. Eq., 196. 
 
 (35) Mt. Holly, etc., Turnpike Co. v. Ferree, 17 N. J. Eq., 117. 
 
 (36) Varrian v. Berrien, 42 N. J. Eq., i. 
 
Defendants' Pleadings. 213 
 
 equity entitled to protection until they are settled, so that he 
 may pay with safety. (37) 
 
 The prayer of the bill is that the defendants may set forth 
 their several titles and may interplead and settle their demands 
 between themselves. The bill may also pray an injunction 
 to restrain any proceeding of the claimants or of any of 
 them. (38) 
 
 The bill must be accompanied by an affidavit of the com- 
 plainant showing that there is no collusiorj between himself 
 and the other parties to it, as it is essential that he stand in- 
 different between them. (39) And the want of an affidavit 
 denying collusion to a bill of interpleader constitutes a ground 
 of demurrer; but it may also be taken advantage of at the 
 hearing. (40) 
 
 Defendants' Pleadings. If, on complainant's presenta- 
 tion of the case, it appears on the face of the bill that it is 
 not a proper case for interpleader, demurrer will lie ; but if 
 the bill should show a proper case, defendant may by answer 
 deny the allegations in the complainant's bill, or set up distinct 
 facts in bar of the suit, and such issue is to be tried according 
 to the practice of the Court of Chancery. (41) Any of the 
 defendants in an interpleader suit may raise an issue as to 
 complainant's averment that he is a disinterested stakeholder 
 by putting in an answer - denying the allegations of the bill 
 and setting up distinct facts in bar of the suit, in which case 
 the complainant must reply to the answef, and such issue will 
 be tried according to the practice of the court. (42) But the 
 only relief which can be given to a defendant in a strict inter- 
 pleader suit, as against the complainant, is a dismissal of the 
 complainant's bill, and that the defendant may always obtain 
 on answer. (43) So a defendant in a strict interpleader suit 
 
 (37) Lozier v. Van Saun, 3 N. J. Eq., 325 ; Briant v. Reed, 14 N. J. 
 Eq., 271 ; Stewart v. Fallon, 58 Atl., 96. 
 
 (38) Story's Equity PI., section 297; Mohawk, &c., R. R. Co. v. 
 Clute, 2 Paige, 384; Richards v. Salter, 6 Johns. Ch., 445. 
 
 (39) Story's Equity PI., section 297. 
 
 (40) Mt. Holly, etc., Turnpike Co. v. Ferree, 17 N. J. Eq., 117. 
 
 (41) Williams v. Matthews, 47 N. J. Eq., 196. 
 
 (42) Hail V. Baldwin, 45 N. J. Eq., 858-865 ; Williams v. Matthews, 
 47 N. J. Eq., 196; City Bank v. Bangs, 2 Paige, 570. 
 
 (43) Wakeman v. Kingsland, 46 N. J. Eq., 113. 
 
214 Bills of Interpleader. 
 
 cannot have relief by cross bill against the complainant. (44) 
 But where a bill of interpleader should, in strictness, be dis- 
 missed, if such dismissal would be contrary to justice and pre- 
 judicial to both parties, the court may retain the bill, -but 
 costs will not be allowed to either party. (45) 
 
 It is not necessary for parties made defendants to a bill of 
 interpleader or to a bill in the nature of a bill of interpleader 
 to file any answer thereto, unless they desire to contest the 
 right of complainant to maintain the suit or to dispute the 
 sufificiency in amount of the sum paid into court; in case 
 of an answer for either of the purposes above mentioned, it is 
 not necessary for any answering defendant who sets up a 
 claim to the fund or any part thereof to set out in the answer 
 the grounds of his claim to the fund paid in or any part there- 
 of, as against his co-defendant or co-defendants. After com- 
 plainant's right to maintain the suit has been determined in 
 his favor, and the whole amount due from him has been paid 
 into court, and a decree of interpleader has been made, it shall 
 be the duty of the defendants directed to interplead by such 
 decree either to file cross bills, or to make a concise statement 
 in writing of the grounds of their several claims to the fund, 
 and file the same with the clerk within twenty days after the 
 decree of interpleader has been made, unless the court shall 
 in such decree, or by subsequent order, specifically declare the 
 time and mode of stating such claims or filing such cross bills. 
 After the expiration of said twenty days or the time fixed by 
 such decree or order, any defendant who has filed such cross 
 bill or such statement in writing may, upon notice to the other 
 defendants who have filed cross bills' or made such statements 
 in writing, apply to the court for an order for trial of the issues 
 between the defendants made by such cross bills and state- 
 ments, or upon other issues otherwise to be settled. (46) 
 
 The Hearing and. Relief Granted. The court disposes of 
 the questions arising upon bills of interpleader in various 
 methods, according to the nature of the question and the man- 
 ner in which it is brought before the court, and in disposing 
 of the questions in dispute among the defendants is at liberty 
 to adopt any recognized methoid of trial which will best ac- 
 
 (44) Wakeman v. Kingsland, 46 N. J. Eq., 113. 
 
 (45) Blair v. Porter, 13 N. J. Eq., 267. - 
 
 (46) Chancery rule 221. 
 
Bills in the Nature of Interpleader. 215 
 
 complish justice in the particular case. If, at the hearing, the 
 question between the defendants is ripe for decision, the court 
 may decide it and pronounce a final decree. (47) If it is not, 
 the court directs an action, or an issue, or a reference to a 
 master as may be best suited to the nature of the case. (48) 
 
 The only decree which can be made in a strict interpleader 
 suit, in favor of the complainant and against the defendants, 
 is that the complainant's bill was properly filed, giving him 
 leave to bring the property in dispute intO' court and allowing 
 him costs out of it, and directing the defendants to inter- 
 plead and settle the conflicting claims, which they , set up to 
 the property, among themselves; the case then becomes one 
 between the defendants, as between complainant and defend- 
 ant. (49) 
 
 Where a bill of interpleader is properly filed, the complain- 
 ant is as above stated entitled to have his costs out of the 
 fund. (50) 
 
 Bills in the Nature of Bills of Interpleader. A class of 
 cases exists where bills of interpleader will lie by a party 
 interested in the subject matter to establish his own rights, 
 where there are conflicting claims of third persons ; as where 
 the complainant is entitled to equitable relief against the owner 
 of property, and the legal title thereto is in dispute between 
 two or more persons. Bills of this character are termed bills 
 in the nature of a bill of interpleader. (51) 
 
 In a bill in the nature of a bill of interpleader, the com- 
 plainant always asks for some relief besides mere protection 
 against conflicting claims set up by different persons to the 
 same debt, duty or other thing. Among the illustrations given, 
 in which it is proper for a person to seek relief by a bill in 
 the nature of a bill of interpleader, is that of a mortgagor 
 
 (47) Condit V. King, 13 N. J. Eq., 375-383; Kirtland v. Moore, 
 40 N. J. Eq., 106; Hall v. Baldwin, 45 N. J. Eq., 858; Seyfried v. Stoll, 
 S6 N. J. Eq., 187-188. 
 
 (48) Condit V. King, 13 N. J. Eq., 375-383; Kirtland v. Moore, 40 
 N. J. Eq., 106; Hall v. Baldwin, 45 N. J. Eq., 858. 
 
 (49) Rowe V. Hoagland, 7 N. J. Eq., 131 ; Willison v. Salmon, 45 
 N. J. Eq., 257; Hall v. Baldwin, 45 N. J. Eq.,. 858; Wakeman v. Kings- 
 land, 46 N. J. Eq., 113. 
 
 (50) Rahway Savings Institution v. Drake, 25 N. J. Eq., 220. 
 
 (51) Story's Eq. PI., Sec. 297-b. Bedell v. Hoffman, 2 Paige, 199; 
 Carter v. Cryer, 68 N. J. Eq., 24. 
 
216 Bills of Interpleader. 
 
 who wishes to redeem his land from the lien of a mortgage, 
 but who is unable to do so with safety because different per- 
 sons make conflicting claims to the mortgage debt. In that 
 state of affairs, the mortgagor may bring the hostile claim- 
 ants before the court in order that their rights to the mort- 
 gage debt may be determined, and such direction given as to 
 whom it shall be paid as will enable him to pay with safety. 
 In such case, it will be observed, the relief given extends be- 
 yond mere protection against conflicting claims. Active relief 
 is given to the complainant by permitting him to discharge his 
 land from a burden resting on it. (52) So where complainant 
 on becoming the owner of certain land on which he found a 
 chattel, placed there by one claiming to own it, claimed a 
 lien for storage charges. The chattel had been levied on 
 under judgments in favor of creditors of the alleged owner, 
 and one who claimed ownership of the chattel had demanded 
 possession from complainant, and on being refused had brought 
 replevin, and it was held that though a bill to determine the 
 title of the chattel, alleging such facts, was not maintainable 
 as a bill of strict interpleader because of complainant's claim 
 of lien, it was maintainable as a bill in the nature of a bill of 
 interpleader. (53) Another illustration of this class of cases 
 arises where an insurer issued two policies on the life of a 
 person, which provided that in case he understated his age, 
 the policy should be adjusted to the amount of insurance that 
 he would have been entitled to, according to insurer's tables, 
 at his actual age. Assured died, and his widow claimed both 
 policies, and sued insurer to reform one of them by striking 
 out the name of a third person as beneficiary and substituting 
 her own name. The third person, who was executrix of the 
 will of assured, claimed both policies, and sued insurer at 
 law on the other policy. It was held that the bill by insurer 
 alleging the under-statement by assured of his age, and the 
 rival claims for the policies, and praying that the insurance 
 might be adjusted to the true age of assured, and that the rival 
 claimants should interplead and should be enjoined from prose- 
 cuting their suits, was maintainable as a bill in the nature of 
 a bill of interpleader. (54) The most common of this class 
 
 (52) Wakeman v. Kingsland, 46 N. J. Eq., 113-117; Bedell v. Hoff- 
 man, 2 Paige, 199-200; Illingworth v. Rowe, 52 N. J. Eq., 360. 
 
 (53) Carter v. Cryer, 68 N. J. Eq., 24. 
 
 (54) Metropolitan Life Insurance Co. v. Hamilton, 70 Atl., 677. 
 
Bills in the Nature of Interpleader. 217 
 
 of cases arises out of building contracts as where a house is 
 erected for a landowner under a written contract, which has 
 been filed, and before the payment of the whole contract price 
 a dispute arises between the contractor and a person who has 
 furnished material which has been used in the construction of 
 the house, as to who is entitled to the balance of the contract 
 price, and the material-man threatens to file a lien claim for 
 such debt against the buildings, whereby the owner is placed 
 in a position where he may be compelled to pay the same debt 
 twice ; the owner may file a bill in the nature of a bill of inter- 
 pleader to have it determined to whom he shall pay the balance 
 remaining in his hands, and that on such payment being made, 
 all right of lien against his house and land shall be extinct. (55) 
 In the case of a bill in the nature of a bill of interpleader which 
 states substantial grounds of equitable jurisdiction other than 
 the mere fact that there are conflicting claims set up to a fund 
 in complainant's hands, it is not necessary to allege in the bill 
 or to assert by affidavit that the complainant is indifferent be- 
 tween the contesting parties and does not collude with any 
 of them. (56) 
 
 .(SS) Aleck V. Jackson, 49 N. J. Eq., 507; Illingworth v. Rowe, 52 
 N.' J. Eq., 360; and the right of the owner of a building erected by 
 a contractor, to pay into court money due under the contract for dis- 
 tribution among those who have filed stop notices, is unaffected by his 
 failure to give notice to the contractor of the service of the stop_ notices 
 though he incurred thereby a personal liability; Keupler v. Eisele, 83 
 Atl., 999. 
 
 (56) Van Winkle v. Owen, 54 N. J. Eq., 253. 
 
218 Bills to Quiet Title. 
 
 CHAPTER VIII. 
 BILLS TO QUIET TITLE. 
 
 Jurisdiction. The foundation of the jurisdiction of a 
 court of equity of bills to quiet title, is the inability of the 
 complainant to obtain relief by an action at law, or the in- 
 adequacy of the legal remedy; hence it is the settled law that 
 where the estate is legal in its nature and the remedy at law 
 is adequate, and full and complete justice can be done thereby, 
 the party will be left to his legal remedy. (i) The exception 
 to this rule is, where the case presents some special ground for 
 equitable interposition, such as fraud, accident or mistake, re- 
 quiring the setting aside or reformation of deeds or instruments 
 of conveyance. If these elements be wanting, a bill to estab- 
 lish the complainant's title is an ejectment bill pure and simple 
 and if the situation of the parties be such that the complainant 
 may have an action at law to establish his title, his remedy is 
 in a court of law. (2) 
 
 Statutory Provisions. When any person is in peaceable 
 possession of lands in this state, claiming to own the same and 
 his title thereto or to any part thereof is denied or disputed, 
 or any other person claims or is claimed to own the same 
 or any part thereof, or any interest therein, or to hold any Hen 
 or incumbrance thereon, and no suit shall be pending to en- 
 force or test the validity of such title, claim or incumbrance, it 
 shall be lawful for such person so in possession to bring and 
 maintain a suit in chancery to settle the title of said lands, and 
 to clear up all doubts and disputes concerning the same. (3) 
 
 This statute enlarges the jurisdiction of chancery in this 
 respect, it gives a party who is in peaceable possession, but 
 whose title is disputed, the right to come into chancery in ad- 
 vance of the determination of the title at law, where no suit to 
 enforce or test the validity of the title is' pending, and have 
 the dispute as to his title determined. (4) This statute is 
 
 (i) Sheppard v. Nixon, 43 N. J. Eq., 627 and cases cited at page 
 633; Haley v. Goodheart, 58 N. J. Eq., 368. 
 
 (2) Sheppard v. Nixon, 43 N. J. Eq., 627 and cases cited at page 633. 
 
 (3) Rev. p. 1 189 as amended P. L. igoi, p. 587; 4 Comp. Stat., p. 
 5399, Sec. i. 
 
 (4) Jersey City v. Lembeck, 31 N. J. Eq., 255; American Docks, 
 &c., Co. V. Trustees, 37 N. J. Eq., 266; Monighoff v. Sayre, 41 N. J. 
 
Peaceable Possession. 219 
 
 remedial and highly beneficial. It should therefore be construed 
 liberally. (5) The statute plainly prescribes three things, ist. 
 The qualifications of the suitor — he must have peaceable 
 possession of land under a claim of ownership to which an 
 adverse right or claim is asserted, or is reputed to exist. 2nd. 
 Under what circumstances he may resort to this remedy ; — only 
 when no prior suit is pending to test the adverse right. 3rd. 
 What his bill must contain — it must describe the land clearly 
 and name the person who asserts the adverse right or who is 
 reputed to hold it, and must call upon him to disclose it. (6) 
 
 The main design of the statute is to provide a means by 
 which disputes respecting the title to lands may in certain 
 cases be put in course of judicial determination, in order that' 
 all doubts concerning the same may be removed. The word 
 land has a well settled meaning. It includes the surface of the 
 ground and everything that is on it and under it, but does 
 not comprehend incorporeal hereditaments. A bill under this 
 Act will therefore not lie to settle the right of one who claims 
 the right to have water flow across the lands of another who is 
 the owner of the fee of such lands. (7) So where defendant 
 asserted title to an easement in a water course across com- 
 plainant's premises and had gone on the premises, without com- 
 plainant's consent to repair the stream, every year for many 
 years and had destroyed a gate erected by complainant to lessen 
 the flow of water, equity has no jurisdiction, prior to a settle- 
 ment of the question of defendant's rights at law, to quiet title 
 to the easement, under this Act. (8) 
 
 Peaceable Possession. To enable a complaint to file a 
 bill under this Act, he must be in peaceable possession of the 
 land in question. (9) A bill to quiet, title cannot be filed by 
 persons who claim an interest in lands, but who are not in 
 
 Eq., 113; Sheppard v. Nixon, 43 N. J. Eq., 627; Albro v. Dayton, 50 
 N. J. Eq., 574; Haley v. Goodheart, 58 N. J. Eq., 368; Wall v. Tallman, 
 6s N. J. Eq., 310; Van Houten v. Van Houten, 68 N. J. Eq., 358-360; 
 Fittichauer v. Metropolitan, &c., Co., 70 N. J. Eq., 429; Ocean View 
 Land Co. v. Loudenslager, 78 N. J. Eq., 571. 
 
 (5) Holmes v. Chester, 26 N. J. Eq., 79. 
 
 (6) Southmayd v. Elizabeth, 29 N. J. Eq., 203; aKrmd ib., 650. 
 
 (7) Whitlock V. Greacen, 48 N. J. Eq., 359. 
 
 (8) DeHanne v. Bryant, 61 N. J. Eq., 141. 
 
 (9) Southmayd v. Elizabeth, 29 N. J. Eq., 203; afHrmed ib., 650; 
 Oberon Land Co. v. Dunn, 56 N. J. Eq., 749. 
 
220 Bills to Quiet Title. 
 
 possession of them, either under this statute or under the 
 general equity powers of the court. (lo) By peaceable posses- 
 sion is meant, peaceable as against the defendant, without re- 
 gard to the claim of third persons, and the test of such peace- 
 able possession is whether the defendant setting up a claim of 
 title has interfered with the complainant's possession of the 
 premises or trespassed thereon by acts suable at law and of 
 such a character that suit at law by complainant upon them 
 would, or might, involve the defendant's title. (ii) Where 
 acts of trespass committed under the direction of some or one 
 of the defendants have been enjoined and the only answering 
 defendant does not allege that she is resp>onsible for 
 the trespass and may be sued for it and the bill is taken 
 pro confesso against the other defendants, there appears 
 no such interference with complainant's peaceable posses- 
 sion as would oust the court of jurisdiction under this 
 Act. (12) And so a purchaser in possession of land in New 
 Jersey sold by the assignee of an insolvent debtor residing in 
 Pennsylvania has -such title that he may maintain a bill of 
 equity, under the statute, to quiet his title against a defendant7 
 who claims under a mortgage executed in fraud of the debtor's 
 creditors a few days before the assignment. (13) But the Act 
 does not require that the complainant have title by possession, 
 or even adverse possession. It requires possession merely, the 
 only qualification being that it shall be possession as contra-dis- 
 tinguished from disputed or contested possession and that it 
 shall be under claim of ownership. (14) Actual possession of 
 the principal tract is sufficient possession of adjoining unen- 
 closed pieces of land, held under the same title and used in 
 connection therewith, to confer jurisdiction to quiet title to the 
 latter, (is) 
 
 Possession in fact as distnguished from that constructive 
 possession which arises simply in virtue of a legal title is essen- 
 tial to the jurisdiction of the Court of Chancery under this Act. 
 
 (10) Palmer v. Sinnickson, 59 N. J. Eq., 530. 
 
 (11) Allaire v. Ketcham, 55 N. J. Eq., 168; DeHanne v. Bryant, 
 61 N. J. Eq., 141 ; Bradley v. McPherson, 58 Atl., 105. 
 
 (12) Allaire v. Ketcham, 55 N. J. Eq., 168. 
 
 (13) Pemberton v. Klein, 43 N. J. Eq., 98. 
 
 (14) Powell V. Mayo, 24 N. J. Eq., 178. 
 
 (15) Yard v. Ocean Beach Assn., 49 N. J. Eq., 306. 
 
Peaceable Possession. 221 
 
 (i6) So the fact that the adverse claimant is a tenant in com- 
 mon does not quaHfy the possession or affect complainant's 
 right to file a bill under this Act. (17) And the possession of 
 a tenant in common in actual possession claiming in hostility 
 to the complainant, another tenant in common^ whose title is in 
 part only, denied, is not for the purpose of this Act, the possess- 
 ion of such other tenant. (18) 
 
 Grantor of Subdivided Land May Bring Suit to Quiet 
 Title, Etc., Notwithstanding Conveyances Thereof by Him. 
 
 When any person or corporation shall have her'etofore been 
 or shall hereafter be in peaceable possession of lands in this 
 State, claiming to own the same, and shall have heretofore 
 caused or shall hereafter cause a map to be made and filed 
 according to law, dividing the said lands into lots and laying 
 out and dedicating streets upon said lands, and shall have 
 heretofore sold and conveyed or shall hereafter sell and con- 
 vey said lots, or any of them, then and in such case, and to 
 avoid a multiplicity of suits, it shall be lawful for such grantor 
 as aforesaid, in his or its own name, to bring and maintain 
 the suit in chancery authorized and prescribed in the Act to 
 which this is a supplement, notwithstanding such conveyance 
 or conveyances ; and no suit in chancery which has heretofore 
 been brought or shall hereafter be brought by any such grantor 
 as aforesaid shall be dismissed for the cause that the com- 
 plainant in such suit had aliened the said lots of land, or any 
 of them, before bringing suit ; but for the purpose of such suit, 
 the title and possession of the grantees of the said lots shall 
 be deemed and taken to be the title and possession of the 
 complainant in such suit. (19) 
 
 This section enables a party, who has mapped lands into 
 lots and filed his map, dedicated streets and sold lots, to file 
 a bill to quiet title, not only to the lots retained, but also to 
 the lots sold, and makes the possession of the grantee of the 
 lots sold, the possession of the complainant for the purpose of 
 that suit (20) 
 
 (16) Sheppard v. Nixon, 43 N. J. Eq., 627; Yard v. Ocean Beach 
 Assn., 49 N. J. Eq., 306. 
 
 (17) Powell V. Mayo, 24 N. J. Eq., 178. 
 
 (18) Country Homes Land Co. v. DeGray, 71 N. J. Eq., 283. 
 
 (19) 4 Comp. Stat., p. S403, sec. 8. 
 
 (20) Oberon Land Co. v. Dunn, 56 N. J. Eq., 749. 
 
222 Bills to Quiet Title. 
 
 Suits to Quiet Title to Estate in Remainder in Lands or 
 Remainder Interest in Personalty. (21) 
 
 Possession of Wild Lands. Whenever any lands within 
 this State shall not, by reason of their extent or by reason 
 of such lands being wild or wood or waste or uninclosed or 
 unimproved lands, be in the actual peaceable possession of 
 the owner or person claiming to own the same, the owner or 
 person claiming to own the same in fee under a deed or other 
 instrument, duly recorded within this -State, who shall have 
 paid the taxes upon such lands and to whom or to whose 
 grantors the taxes upon such lands shall have been assessed 
 for five consecutive years immediately prior to the commence- 
 ment of suit, shall be presumed to be in peaceable possession 
 of such lands within the meaning of this Act ; provided, no 
 other person be in possession thereof; and it shall be lawful 
 for such person so presumed to be in possession to bring and 
 maintain a suit in chancery to settle the title of said lands 
 and to clear up all doubts and disputes' concerning the same, 
 and such person so presumed to be in possession shall be en- 
 titled to all the benefits of and subject to all the provisions of 
 this Act. (22) 
 
 Peaceable possession of a large area of wild land is, under 
 ordinary conditions, practically impossible. The statute is in- 
 tended to raise a presumption of peaceable possession of such 
 wild lands in favor of persons who have deeds for such prop- 
 erty, which have been recorded, who for five years have been 
 recognized by the legal taxing officers as owners thereof, and 
 who have manifested the good faith of their claim to ownership 
 of those lands by the payment of taxes, but the statute does 
 not apply in cases where the lands in question are in the 
 possession of any person other than the party who holds the 
 recorded deed therefor and has paid taxes thereon. (23) But 
 where defendant claiming wild unenclosed land entered and con- 
 structed certain stakes along the boundary line, built a small 
 slab house thereon in full view of the public road and with his 
 predecessors in title cut timber therefrom, such acts were held 
 not to constitute possession as against the holder of the record 
 title, so as to preclude her from maintaining a bill to quiet title 
 
 (21) See 4 Comp. Stat., p. 5405, sec. 10, et seq. 
 
 (22) 4 Comp. Stat., p. 5399, sec. i. 
 
 (23) McGrath v. Norcross, 70 N. J. Eq., 364-371. 
 
Peaceable Possession. 223 
 
 under the statute. (24) By this statute the right to file a bill 
 is not limited to actual owners of the disputed possession, but 
 extends to a person who claims to own the land in fee under 
 a deed or other instrument. (25) 
 
 Nature of Adverse Claim. The language of this Act 
 should be construed to give jurisdiction in every case in which 
 any claim or lien upon real estate appears to be asserted or to 
 exist, and to reach every lurking and unsubstantial claim, the 
 mere suspicion of which, however ill founded, affects the value 
 of the property when on sale. (27) A person in the peaceable 
 possession of lands as owner has the right to have anything 
 which casts a suspicion upon his title brought under judicial 
 investigation. (28) So the Act applies to a lien claim. (29) So 
 where defendant's intestate held the right of possession of cer- 
 tain lands for a term, purchased at a sale for delinquent taxes, 
 which right was barred by limitation, complainant is not re- 
 quired to sue at law to establish the title, but is entitled to file 
 a bill under this Act. (30) So where an execution is issued 
 against property not subject thereto, a bill will lie under this 
 Act, and in such case complainant need not wait until after the 
 land is sold and the deed delivered to the purchaser before filing 
 his bill, and the fact that the execution under which claim is 
 made to a lien upon the lands was issued out of the Court of 
 Chancery does not oust the court of its jurisdiction. (31) But 
 mere words denying the right of complainant to possession of 
 real property, which afford complainant no right to test the 
 substance of the adverse claims by an action at law, are in- 
 sufficient to destroy the peaceableness of complainant's posses- 
 
 (24) McGrath v. Norcross, 70 N. J. Eq., 364; affirmed, 71 N. J. Eq., 
 763- 
 
 (25) McGrath v. Norcross, 70 N. J. Eq., 364; affirmed, 71 N. J. Eq., 
 763. 
 
 (27) Bogert V. Elizabeth, 27 N. J. Eq., 568 ; Southmayd v. Elizabeth, 
 29 N. J. Eq., 203; affirmed ib., 650; McClave v. Newark, 31 N. J. Eq., 
 472; Ludington v. Elizabeth, 32 N. J. Eq., 159. 
 
 (28) Southmayd v. Elizabeth, 29 N. J. Eq., 203; affirmed ib., 650; 
 Bishop V. Waldron, 56 N. J. Eq., 484; affirmed, 58 N. J. Eq., 583. 
 
 (29) Raymond v. Post, 25 N. J. Eq., 447. 
 
 (30) Beatty v. Lewis, 68 Atl, 95. 
 
 (31) Holmes v. Chester, 26 N. J. Eq., 79. 
 
224 Bills to Quiet Title. 
 
 sion required to entitle him to maintain a bill under this 
 Act. (32) 
 
 Chancery has no jurisdiction, in the absence of a specific 
 equity, over an assessment made in the course of municipal 
 improvements. This act therefore does not warrant the filing 
 of a bill to contest the legality of such an assessment on the 
 ground of its being an incumbrance on land. (33) Where, 
 however, the pretended lien of such an assessment is an abso- 
 lute nullity in consequence of the law itself, under which it 
 had been made, being unconstitutional, so that the proceeding 
 being ultra vires, it could be fairly said that the keeping on 
 foot of such pretense was per se unconscionable, a bill will 
 lie under this Act. (34) And so sales for taxes to the city for 
 a term of years exceeding that limited by the charter are 
 clouds on the title of such lands within the meaning of this 
 statute. (35) And the statute applies to a case of a sale of 
 land made under a city ordinance conducted by official author- 
 ity, the effect of which would be to detract in a considerable 
 degree from the market value of the land, where the sale was 
 entirely ultra tares and absolutely void. (36) 
 
 Where Remedy Exists at Law. This Act does not apply 
 to cases where a party in possession of land can throw the 
 hostile claim into a court of law and thus get rid of the cloud 
 on his title, or when having had the power to do so he has 
 lost it by his own laches. (37) So where it appears that the 
 defendant entered upon the land in question and plowed it for 
 purposes of cultivation only a few weeks before the bill was 
 filed, and before the bill was filed complainant knew that the 
 plowing had been done and was informed by his neighbors 
 that it had been done by defendant, and by a reasonable effort 
 could have procured the necessary evidence of the act of de- 
 fendant on which to have based an action at law against him, a 
 bill will not lie under the statute. (38) So a bill reciting an 
 agreement between the parties for the sale of real estate and 
 
 (32) Bradley v. McPherson, 58 Atl., 105. 
 
 (33) Jersey City v. Lembeck, 31 N. J. Eq., 255. 
 
 (34) Bogert V. Elizabeth, 27 N. J, Eq., 568. 
 
 (35) Ludington v. Elizabeth, 34 N. J. Eq., 357. 
 
 (36) Bogert V. Elizabeth, 27 N. J. Eq., 568; Carpenter v. Hoboken, 
 33 N. J. Eq., 27. 
 
 (37) Baldwin v. Elizabeth, 42 N. J. Eq., 11. 
 
 (38) Steelman v. Blackman, 65 Atl., 715. 
 
Process. 225 
 
 charging that defendant has failed to comply with his contract 
 of purchase, and that he has by recording the agreement cast 
 a cloud over complainant's title and praying for its removal, 
 does not state a case within the provisions of this Act, as 
 complainant has an adequate remedy either by a suit for 
 specific performance, or for recission.(39) So where com- 
 plainant has an adequate remedy in ejectment, he has no stand- 
 ing to file a bill under this Act. (40) A suit pending to en- 
 force or test the validity of the claim within the meaning of 
 the clause of the Act excluding jurisdiction, is one where the 
 validity of the claim is liable to question in the proceedings to 
 enforce it. (41) 
 
 Parties. The general rules governing parties to proceed- 
 ings in equity govern suits under this statute. (42) All per- 
 sons having any interest in the object of the suit should be 
 joined as parties, but where a bill is filed to put at rest a 
 claim which the defendant makes to a lien upon lands under 
 an execution, the sheriiT restrained by injunction issued on 
 filing the bill, from proceeding against the land under execu- 
 tion, is not a necessary party, as he has no interest in the object 
 of the suit. (43) So where the authority of water commission- 
 ers appointed by a City Council is terminated by their assess- 
 ment and return to the Council, they are not necessary parties 
 to a suit to set aside a sale of lands ordered by the Common 
 Council and predicated upon their proceedings. They claim no 
 lien by virtue of their assessrhent, nor can any decree be niade 
 against them, as they have no interest whatever in the sub- 
 ject of the controversy. (44) 
 
 Process. — Ticket to be Issued with Subpoena. With the 
 subpoena in such suit, there shall be issued a ticket to each 
 defendant, describing the lands with precision, stating the 
 object of the suit, and that if the defendant claims any title 
 or interest to, or incumbrance upon said lands, he is required 
 to answer said bill, but not otherwise. (45) An objection that 
 
 (39) McClave v. McGregor, 72 N. J. Eq., 218. 
 
 (40) Sheppard v. Nixon, 43 N. J. Eq., 627. 
 
 (41) Holmes v. Chester, 26 N. J. Eq., 79. 
 
 (42) See "Parties," page 91, supra. 
 
 (43) Holmes v. Chester, 26 N. J. Eq., 79. 
 
 (44) Carpenter v. Hoboken, 33 N. J. Eq., 27. 
 
 (45) 4 Comp. Stat., p. 5401, sec. 2. 
 
226 Bills to Quiet Title. 
 
 no ticket was issued with the subpoena is not ground for de- 
 murrer. (46) The provisions of section 10 of the Chancery 
 Act providing for publication against unascertained heirs, 
 devisees, or personal representatives, and a decree against them 
 by their class designation only, does not apply to proceed- 
 ings' under this statute. In 191 2, however, a supplement to this 
 act was passed providing for the bringing in of unascertained 
 heirs, devisees, &c., by publication. (47) 
 
 Bill of Complaint. The bill of complaint in a suit under 
 this Act must describe the lands with certainty, and name the 
 
 (46) Ludington v. Elizabeth, 32 N. J. Eq., 159. 
 
 (47) Hill V. Henry, 66 N. J. Eq., 150 & see Chancery Act. sec. 10, 
 page 10, supra. 
 
 Proceedings against unknown Heirs, Devisees, &c. 
 
 In all suits hereafter commenced in the Court of Chancery under 
 the provisions of the act to which this act is a supplement, whenever 
 it shall appear by the allegations of the bill or petition, duly verified by 
 affidavit thereto annexed, that any person mentioned in the bill of 
 complaint, or his heirs, devisees or personal representatives, are proper 
 parties defendant to said bill of complaint; and that the complainant 
 after diligent and careful inquiry therefor, made as in case of absent 
 defendants, has been unable to ascertain whether such person is still 
 alive, or if he is known or believed to be dead, has been unable to 
 ascertain the names and residences of "his heirs, devisees or personal 
 representatives, or such of them as may be proper parties defendant as 
 aforesaid, such action may proceed against snch person by name, and 
 his heirs, devisees and personal representatives, as in the case of absent 
 defendants whose names are known; and such notice as is required 
 by law to be published against absent defendants in default of per- 
 sonal service, addressed to such person by name, and to "his heirs, 
 devisees and personal representatives," and containing such further 
 statements and giving such further time as the Chancellor may by his 
 order direct, shall be first published and mailed in such manner as the 
 Chancellor may, by his order in said action, direct; and in case such 
 person or his heirs, devisees or personal representatives, shall not 
 appear, plead, answer or demur within the time limited in said notice, 
 or further allowed by the Chancellor, if he shall think proper, on proof 
 to the satisfaction of the Chancellor of mailing and publication of said 
 notice as directed, such action may proceed in all respects as if such 
 person, or his heirs, devisees or personal representatives had been duly 
 named and described and served with process of subpoena in said ac- 
 tion, and had failed to plead, answer or demur within the time thereto 
 allowed by law; and such defendants, and all persons falling within 
 the description of "heirs, devisees or personal representatives" of the 
 defendant supposed to be dead as aforesaid, shall thereupon be bound 
 by all orders and decrees in said cause as if they had been duly named 
 and described and served with process in this State, and proofs may 
 be made, costs allowed, security ordered and proceedings for restitu- 
 tion or other relief from said decrees and orders had in like manner 
 as the same are allowed by law in the caSe of absent defendants. 
 
 P. L., 1912 p. 151, sec. 2. 
 
Absent Defendants. 227 
 
 person who claims, or is claimed or reputed to have such title 
 or interest in or incumbrance on said lands, and must call 
 upon such person to set forth and specify his title, claim or 
 incumbrance, and how and by what instrument the same is 
 derived or created. (48) The fact that complainant is in 
 the peaceable possession of the lands to which he asks to have 
 his title settled is a jurisdictional fact which he must not only 
 aver, but in case of contest must prove, or his bill must be 
 dismissed. (49) So the court cannot retain a suit for partition 
 as one to quiet title and partition, where the bill does not show 
 that complainant is in peaceable possession of the land. (50) 
 But an averment in the bill that complainant is the owner of 
 the fee of the land, and is in possession, is a sufficient state- 
 ment of the qualification required by the Act, certainty to a 
 common intent being all that is required in the pleading. (51) 
 Where a bill omits the statutory allegation, but complainant's 
 peaceable possession with claim of ownership is admitted, and 
 
 Proceedings against absent defendants. 
 
 I. In case of a bill filed in accordance with the provisions of the 
 act to which this act is a supplement against any defendant against 
 whom a subpoena or other process shall issue, and such defendant shall 
 not cause his appearance to be entered in such suit, as according to 
 the practice of said court the same ought to be entered, in case such 
 process has been duly served, and it shall be made to appear, by affi- 
 davit or otherwise, to the satisfaction of the Chancellor, that such 
 defendant is out of the State, or cannot, upon due inquiry, be found 
 therein, or that he conceals himself within this State, or that none of 
 the officers or directors of a defendant corporation of this State is resi- 
 dent in this State or can be found therein to be served with process, 
 every such defendant shall be deemed and taken to be an absent de- 
 fendant, and thereupon the Chancellor may, by order, direct such absent 
 defendant to appear and plead, answer or demur to the complainant's 
 bill or petition, at a certain day therein to be named, not less than one 
 nor more than three months from the date of such order, and there- 
 upon the same proceedings shall be taken against said absent defendant 
 as is provided by law in other suits brought in the Court of Chancery, 
 and any defendant upon whom notice of such order is served as pro- 
 vided by law shall be bound by the decree in said suit as if he were 
 served with process in the State as is provided by law in relation to 
 other suits in Chancery. 
 
 P. L., 1912, p. isi, sec. I. 
 
 (48) 4 Compi. Stat., p. 5399, sec. i. 
 
 (49) Whitlock V. Greacen, 48 N. J. Eq., 359 ; Beale v. Blake, 45 N. J. 
 Eq., 668; as to what constitutes peaceable possssion, see "Peaceable 
 Possession," page 219, supra. 
 
 (50) Ellis v. Feist, 6s N. J. Eq., 548. 
 
 (si) Ludington v. EHzabeth, 32 N. J. Eq., 159. 
 
228 Bills to Quiet Title. 
 
 there is no misunderstanding as to the issues, an amendrtierit 
 may be made to bring the case within the statute. (52) 
 
 The language of the statute shows plainly that the bill is 
 not required or expected to enter into the details of the de- 
 fendant's claim. Any allegation in the bill of the particular 
 character of defendant's claim is practically surplusage. The 
 defendant, undoubtedly, has a right to disregard all such 
 allegations and in his answer "set forth and specify" any title, 
 claim or incumbrance which he may wish to endeavor to sus- 
 tain. The bill may say that the defendant claims under a mort- 
 gage or a judgment, but the defendant may in his answer set 
 up an entirely different title by a deed of conveyance. (53) 
 
 Answer. If any defendant answer claiming any estate, 
 or interest in, or incumbrance on said lands or any part thereof, 
 he must in such answer specify and set forth the estate, interest 
 or incumbrance so claimed, and if not claimed in or upon the 
 whole of said lands, he must specify and describe the part in 
 or upon which the same is claimed, and must set out the manner 
 in which, and the sources through which such title or incum- 
 brance is claimed to be derived. (54) If defendant shall suffer 
 a decree pro confesso to be taken against him, or shall answer 
 disclaiming all title to or interest in said lands, he will not be 
 subjected to costs. If he answer under oath denying that he 
 ever claimed an estate in such lands he is entitled to his costs 
 in said suit. (55) 
 
 The defendant is required in his answer to "specify and set 
 forth" his estate or interest, etc., and to also set forth "the 
 manner in which and the sources through which such 
 title or incumbrance is claimed to be derived." (56) So 
 where complainant sought by his bill to qiliet his title to a lot 
 of land and defendant neither disclaimed nor otherwise noticed 
 the matter by allegation in his answer or proof, but qtiestioned 
 the location, it was held that complainant was entitled to a 
 decree establishing his title to his lot by and according to the 
 
 (52) Ward V. Tallman, 65 N. J. Eq., 310. 
 
 (53) Southmayd v. Elizabeth, 2g N. J. Eq., 203; affirmed ib., 650; 
 Ludington v. Elizabeth, 32 N. J. Eq., 159; Bishop v. Waldron, 56 N. J. 
 Eq., 484; affirmed, 58 N. J. Eq., 583; Fittiehatier v. Metropolitan, &c., 
 Co., 70 N. J. Eq., 429. 
 
 (54) 4 Comp. Stat., p. 5402, sec. 4. 
 
 (55) 4 Comp. Stat., p. 5401, see. 3. 
 
 (56) Fittichauer v. Metropolitan, &c., Co., 70 N. j. Eq., 429-432. 
 
Hearing. 229 
 
 4escription set forth in the bill. (57) Objections that the com- 
 plainant has not alleged peaceable possession of the premises 
 in dispute and that no action to test the defendant's title 
 thereto was pending, should be raised by demurrer or answer, 
 they come too late at the hearing. (58) 
 
 In a suit to quiet title, the allegations in the answer setting 
 up defendant's title cannot be struck out on the ground that 
 no title was shown, on a motion under rule 213 allowing 
 objections to pleadings to be rnade by motion, as the rule was 
 intended to substitute the motion for an exception and not to 
 provide for a demurrer to an answer. (59) The fact that 
 so much of the answer as shows defendant's claim of title 
 may be defective, is no reason for striking out the whole 
 answer, where response is correctly made to complainant's 
 allegations as to his own title and possession. (60) 
 
 Further Pleadings of Complainant. Where the defend- 
 ant files an answer setting up a legal claim and no issue is re- 
 quested, the complainant should file a pleading joining issue 
 with the defendant. (61) Where the defendant sets forth an 
 equitable claim, the pleading of the complainant, in reply 
 thereto, would be in effect an answer to a bill in Chancery. (62) 
 
 Hearing. — Issue at Law May be Directed on Application 
 of Either Party. Upon application of either party, an issue 
 at law shall be directed to try the validity of such claim, or 
 to settle the facts, or any specified portion of the facts upon 
 which the same depends, and the Court of Chancery shall be 
 bound by the result of such issue, but may, for sufficient 
 reasons, order a new trial thereof, according to the practice in 
 such cases ; and when such issue is not requested, or as to the 
 facts for which the same is not requested, the Court of 
 Chancery shall proceed to inquire into and determine such 
 claims, interest and estate, according to the course and prac- 
 tice of that court; and shall, upon the finding of such issue, 
 or upon such inquiry and determination, finally settle and 
 
 (57) Kana v. Bolton, 36 N. J. Eq., 21. 
 
 (58) McClave v. Newark, 31 N. J. Eq., 472. 
 
 (59) Cpndict V. Erie R. R. Co., ^^ N. J. Eq., 282; and see "Motion 
 to Strike Out Pleadings," page 287, infra. 
 
 (60) Condict V. Erie R. R. Co., ^^ N. J. Eq., 282. 
 
 (61) Fittichauer v. Metropolitan, &c., Co., 70 N. J. Eq., 429-432. 
 
 (62) Fittichauer v. Metropolitan, &c., Co., 70 N. J. Eq., 429-432. 
 
230 Bills to Quiet Title. 
 
 adjudge whether the defendant has any estate, interest or 
 right in, or incumbrance upon said lands, or any part thereof 
 and what such interest, estate, right or incumbrance is, and 
 in or upon what part of said lands the same exists. (63) 
 
 If the defendant affirmatively pleads a legal title, either 
 party has an absolute right to have an issue at law for the 
 settlement of the legal controversy, and subject to the power 
 to order a new trial, the Court of Chancery is bound by the 
 result of such issue. (64) The legislative intent seems to be 
 clear that the words "issue at law," as used in this section, 
 means such an issue as has always been known and em- 
 ployed in the administration of equity jurisprudence. The 
 only additional force to be given to the verdict in this statu- 
 tory suit is, that so long as it is permitted to stand, the Court 
 of Chancery is bound by it. It is clear that the trial judge's 
 certificate is to be sent to the chancellor, for by the terms of 
 the Act, he, for sufficient reasons, may grant a new trial ac- 
 cording to the practice in such cases. (65) A defendant, in a 
 suit brought under this Act, is not entitled, as a constitutional 
 right, to a trial by a jury in an action at law, as distinguished 
 from a trial of an issue at law directed by the Court of Chan- 
 cery. (66) On a trial of an issue at law, under a bill to quiet 
 title, it is incumbent on the plaintiff (the defendant in the 
 bill) to establish his title as in an action of ejectment, and 
 where the issue permits him to set up either of two different 
 titles, his selection of one of them at the trial is binding on 
 him and he must abide by the result of his selection. (67) 
 
 A defendant is required in his answer to "specify and set 
 forth" his estate, or interest, &c., and to also set forth "the 
 manner in which and the sources through which such title or in- 
 cumbrance is claimed to be derived." If the defendant in this 
 affirmative pleading sets forth a legal title, either party has 
 the absolute right to have an issue at law for the settlement 
 of this legal controversy and subject to the power to order 
 a new trial, the Court of Chancery is "bound by the result of 
 
 (63) 4 Comp. Stat., p. S402, sec. 5. 1 
 
 (64) Havens v. Thompson, 23 N. J. Eq., 321-325; Fittichauer v. 
 Metropolitan, &c., Co., 70 N. J. Eq., 429. 
 
 (6s) Brady v. Carteret Realty Co., 70 N. J. Eq., 748. 
 
 (66) Brady v. Carteret Realty Co., 70 N. J. Eq., 748. 
 
 (67) Powell V. Mayo, 27 N. J. Eq., 440. 
 
New Trial. 231 
 
 such issue." Where, however, the complainant sets forth an 
 equitable claim, that is to say, a claim which he can only 
 assert and have established by a suit in equity, then neither 
 party can compel the Court of Chancery to sumbit finally to 
 the decision of an equitable cause of action by the verdict of 
 a jury in a court of law. (68) If the affirmative pleading of 
 the defendant, which the statute prescribes, sets forth a legal 
 claim and neither party applies for an issue at law, then the 
 Court of Chancery proceeds with the suit on the part of the 
 defendant, which is thus brought. (69) 
 
 Issue Concerning Title to Lands May be Tried in 
 County Other Than That in Which Lands are Situate. 
 When an issue at law has been or shall be directed in any 
 cause arising under the act to which this is a supplement, as 
 provided in the fifth section thereof,' it shall be lawful for 
 such issue to be tried in a county other than that in which the 
 lands in dispute are situate, whenever it is so ordered by the 
 order directing such issue, or by any other order made by the 
 chancellor in such cause. (70) 
 
 Application for New Trial. Issues at law directed under 
 the general jurisdiction of the Court of Chancery, are said to 
 be for the information of the conscience of the court, and 
 the verdict may be disregarded by the chancellor and a de- 
 cree made in opposition to the verdict taken thereon, (71) but 
 by the act under consideration, upon the application of any 
 party, an issue is required to be directed. If such applica- 
 tion" is made, the chancellor can make no decree except upon 
 the finding returned upon such issue. The act further de- 
 clares that the court shall be bound by the result of such 
 issue, but that it may for sufficient reason order a new trial 
 thereof. The issue thus required to be made obviously takes 
 the place of a trial at law upon a contested title. It results 
 that in dealing with applications for new trials of such issues, 
 the Court of Chancery should act in accord with the practice 
 in respect to new trials of actions at law upon contested titles. 
 (72) The jurisdiction conferred by this act upon the Court of 
 
 (68) Fittichauer v. Metropolitan, &c., Co., 70 N. J. Eq., 429-432. 
 
 (69) Fittichauer v. Metropolitan, &c., Co., 70 N. J. Eq., 429-432. 
 
 (70) 4 Comp. Stat., p. 5403, sec. 7. 
 
 (71) See "Submission of Issues to Jury," page 369, infra. 
 
 (72) Brady v. Carteret Realty Co., 68 N. J. Eq., 55; affirmed, 72 
 N. J. Eq., 904- 
 
232 Bills to Quiet Title. 
 
 Chancery is merely an exsention of its function of entertain- 
 ing bills quia timet to remove clouds from the title of persons 
 in possession of real property. For this reason when an issue 
 at law is directed in such suit and the verdict thereon is at- 
 tacked, the Court of Chancery should follow the same prac- 
 tice as when a similar situation arises in proceedings under a 
 bill quia timet, namely, it should consider among other things, 
 alleged trial errors, as well as the evidence reported to it by 
 the law court, in order to determine whether the erroneous 
 rulings (if they appear), are such as destroy the value of the 
 verdict as a means of satisfying the conscience of the chan- 
 cellor. (73) 
 
 On the trial of an issue directed under a bill filed to quiet 
 title, the defendant is bound by the title set up in his answer 
 and if he then claims under a title substantially diflferent and 
 objection is made, a new trial will be granted as a matter of 
 course, if the verdict be in his favor. (74) It may also be a 
 cause for granting a new trial, if the complainant is on the 
 trial of the issue surprised by the claim of defendant to title 
 under an instrument or from a source not stated or referred 
 to in the answer, but if there be no objection 10 the production 
 of the evidence or to the claim at the trial and there be no 
 allegation of surprise, there would seem to be no good reason 
 for ordering a new trial, merely because the title proved differs, 
 though it may be radically from that set up in the answer. (75) 
 It is competent for the court, under such circumstances, to 
 direct an amendment of the answer, if necessary, to conform 
 to the finding of the jury. The court is not restricted to a 
 decree in favor of or against the title set up in the answer. (76) 
 
 The refusal of the chancellor to grant a new trial of an 
 issue at law directed by him under this Act is an appealable 
 order. (77) On an appeal from an order of the Court of 
 Chancery denying a new trial of an issue at law, the question 
 for determination is whether a new trial was properly re- 
 
 (73) McAndrews v. Camden, 78 N. J. Eq., 244; Rowan v. Yarnall, 
 84 Atl., 633. 
 
 (74) Powell V. Mayo, 26 N. J. Eq., 120. 
 
 (75) Powell V. Mayo, 26 N. J. Eq., 120. 
 
 (76) Powell V. Mayo, 26 N. J. Eq., 120. 
 
 (77) Brady v. Carteret Realty Co., 70 N. J. Eq., 748. 
 
Trial of Issue of Jurisdiction. 233 
 
 fused, and not whether the reasons given by the court for 
 denying it were sound. (78) 
 
 Where Defendant Denies Jurisdictional Fact. If the de- 
 fendant denies the jurisdictional facts of peaceable possession 
 by the complainant, non-pendency of any test suit, and in- 
 capacity of complainant to bring a test suit at law or in equity, 
 the Court of Chancery will first try the issue of jurisdiction, 
 on which the question of the respective titles of the parties will 
 not be considered, before sending the question of title to be 
 tried, in the law court. (79) Where the complainant's peacea- 
 ble possession of the premises is disputed, he must establish 
 it or fail, but in a proper case the proceeding may, if he 
 should fail to show possession, be sustained as a suit quia 
 tiinet, irrespective of the statute. (80) 
 
 This peaceable possession required by the act must exist 
 at the time of the filing of the bill, but the evidence of such 
 a possession may be the action of the complainant and of those 
 under whqm he claims at any reasonable time preceding the 
 beginning of the suit. (81) Any acts regarding the premises 
 which would naturally convey to the onlooker the sense that 
 the party doing or directing them was the owner, are evidential 
 of such a possession as the statute contemplates. (82) So acts of 
 improvement and development requiring large expenditures on 
 the land and taking nothing off and indicating future use of 
 the land itself for sale, such as the laying out of streets, 
 grading the trapt, constructing, curbing and paving for streets, 
 mapping and recording maps, dedicating streets and making 
 conveyances with relation thereto, are such as would be done 
 by an owner and are acts of possession. (83) But it is not 
 necessary that the possession of the complainant shall be 
 shown to be adverse, in the sense required of a party who 
 claims title by adverse possession against a proven docu- 
 
 (78) McAndrews y. Pamden, 78 N. J. Eq., 244. 
 
 (79) Beale v. Blake, 45 N. J .Eq., 668; Allaire y. Ketcham, 55 N .J. 
 Eq., 168; Oberon Land Co. v. Dunn, 56 N. J. Eq., 749; McGrath v. 
 Norcross, 70 N. J. Eq., 364; affirmed, 71 N. J. Eq., 763; FitticHauer 
 V. Metropolitan, &c., Co., 70 N. J. Eq., 429. 
 
 (80) Nixon V. Walter, 41 N. J. Eq., 103; Reversed, 43 N. J. Eq., 
 627. 
 
 (81) Oberon Land Co. v. Dunn, 56 N. J. Eq., 749; and see" "Peace- 
 able Possession," page 219, supra. 
 
 (82) Oberon Land Co. v. Dunn, 56 N. J. Eq., 749. 
 
 (83) Oberon Land Co. y. Dunn, 56 N. J. Eq., 749. 
 
234 Bills to Quiet Title. 
 
 mentary title. The complainant's possession is sufficient to 
 meet the jurisdictional requirements, if it ig peaceable under 
 a claim to the ownership of the premises. (84) Where the 
 acts of possession are proven to have been done without dis- 
 pute^ under a belief and claim on the part of complainant that 
 she owned the premises and showed an occupation and use of 
 the property for all of the purposes for which its nature 
 enabled it to be used, it is a sufficient exhibition of peaceable 
 possession under claim of ownership required by the statute. 
 (85) Where the pleadings did not allege that the proceed- 
 ings under which the adverse title was claimed were taken 
 under a void law, but merely that every step of those pro- 
 ceedings was without warrant of law, relief was denied on 
 the ground that it did not appear that complainant had not 
 a complete and adequate remedy at law. (86) 
 
 All that complainant is obliged to show in the first in- 
 stance is that he is in peaceable possession and that no suit 
 is pending in which the defendant's claim, whatever it may 
 be, may be tested, and also that he, the complainant, is un- 
 able to bring an action at law, in which the test can be ap- 
 plied, and also that he, the complainant, is unable, except 
 under the statute, to bring any suit in equity in which such 
 test can be applied. (87) Where the complainant has estab- 
 lished to the satisfaction of the Court of Chancery that he is 
 in peaceable possession of the lands described in his bill of 
 complaint, claiming to own the same, and that his title is 
 denied or disputed and no suit is pending to test the validity 
 of such hostile claim, the burden of establishing such adverse 
 claim is upon the person setting it up, in which case the Court 
 of Chancery may order that in a feigned issue, framed to 
 test the validity of such claim, the defendant, or party setting 
 it up, sustain the issue as plaintiff. (88) 
 
 (84) Blakeman v. Bourgeois, 59 N. J. E^., 473. 
 
 (85) Blakeman v. Bourgeois, 59 N. J. Eq., 473. 
 
 (86) Bellows v. Wilson, 32 N. J. Eq., 481. 
 
 (87) Fittichauer v. Metropolitan, &c., Co., 70 N. J. Eq., 429. 
 
 (88) McCullough V. Absecon Beach, &c., Co., 48 N. J. Eq., 170; 
 Ward V. Tallman, 65 N. J. Eq., 310; Ocean View Land Co. v. Louden- 
 slager, 78 N. J. Eq., 571 ; and so where the bill charged and the answer 
 admitted that complainant was in peaceable possession of the lands in 
 question and defendant contended that there was no adequate considera- 
 tion for the deeds to complainant's grantors, the burden was on him to 
 show this ; Chandley v. Robinson, 75 Atl., 180. 
 
Decree. 235 
 
 Incidental Relief. In the absence of fraud, gross injus- 
 tice, irremediable injury, or other ground of equitable juris- 
 diction, chancery will not restrain a threatened sale under 
 execution against one person of property claimed by another, 
 and such injunction will not be issued in aid of a bill to 
 quiet title under the statute. (89) And an allegation in the 
 bill that the defendant by virtue of a judgment and execution 
 at law against the complainant's grantor has seized upon, and 
 is about to sell lands to which complainant has the legal, title, 
 presents no equitable ground for enjoining such sale. (90) 
 But where on a bill, filed by an executor with power of sale, 
 to quiet title it appeared that a woman claimed dower in 
 testator's lands, and it further appeared that she was not a 
 wife, she was enjoined from setting up further claim, since 
 the executor having no title was unable to test her claim in 
 an action at law. (91) Where a sale of lands under a munici- 
 pal assessment is absolutely void, because made after the 
 time limited by law for the continuance of the lien of the 
 assessment on the premises, the court has no authority, on a 
 bill to quiet title, to order the complainant to pay the assess- 
 ment, neither can it correct it, nor declare 'it a lien on the 
 premises under the statute providing that such assessments 
 shall not be set aside for irregularities, or defects in form 
 
 &C.(92) 
 
 Decree to Settle Rights of All Parties and to be Conclu- 
 sive. The final determination and decree in such suit, shall 
 fix and settle the rights of the parties in said lands and the 
 same shall be binding and conclusive on all parties to the suit ; 
 but if any defendant to such suit, shall, either at the time of 
 the decree pro confesso against him, or at the final decree, be 
 an infant or non compos mentis, such party, his heirs or assigns, 
 at any time within two years after the termination of such 
 disability, may appear in said suit, and apply for a rehearing, 
 and thereupon such decree shall be opened as against such 
 party, and the cause may proceed as if no decree had been 
 
 (89) Dawes v. Taylor, 35 N. J. Eq., 40; West Jersey, &c., Co. 
 V. Smith, 69 N. J. Eq., 429; Alpern v. Behrenburg, yy N. J. Eq., 373. 
 
 (90) Swayze v. Hackettstown National Bank, 44 N. J. Eq., 9; 
 affirmed, 45 N. J. Eq., 368. 
 
 (91) Besson v. Gribble, 39 N. J. Eq., in. 
 
 (92) Field V. West Orange, 39 N. J. Eq., 60. 
 
236 . Bills to Quiet Title. 
 
 made in the same against him. (93) The decree in the suit 
 must fix and settle the rights of the parties. If the defendant's 
 title is found to be superior to that of the complainant, he is 
 entitled to a decree in his favor to that effect. (94) 
 
 Costs. No decree for costs shall be had in such suit 
 against any defendant who suffers a decree pro comfesso against 
 him, or who shall answer disclaiming all title to, interest in, 
 or incumbrance on said lands; but this court shall, in such 
 cases,- without further proof, decree that such defendant has 
 no estate or interest in, or incumbrance on said lands, or any 
 part thereof; and any defendant who shall by answer, duly 
 verified by oath, deny that he claims or ever has claimed, 
 or pretended to have any estate, interest or incumbrance, in 
 or upon said lands, or any part thereof, shall be entitled to his 
 costs in said suit. (95) A defendant may avoid all expenses 
 if he sees fit to abandon his claim and in such a case a decree 
 pro confesso goes against him without costs. So a defendant 
 who wishes to resent being unnecessarily brought into court 
 may file an answer denying that he has ever made any claim 
 to the land in question and thereupon he becomes entitled to 
 costs, the complainant not being allowed to contest the truth 
 of such denial, nor to obtain costs. (96) Where on a bill to 
 quiet title a feigned issue was awarded to try the question of 
 the legal title to the lands, and after judgment in favor of 
 defendants, both complainant and defendants conveyed all 
 their interest in the lands in dispute to a stranger to the suit, 
 the bill should be dismissed, since neither party had any 
 rights in the lands to be bound by any decree. Under such 
 a state of facts, each party should pay his own costs. (97) 
 
 Enforcement of Decree. If title is shown to be in a defend- 
 ant the court has jurisdiction to issue a writ of assistance to 
 put him in possession ; but he must plead and the decfee must 
 show, his right to "immediate possession" as well as title. So 
 where, however, the decree, recognizing the peaceable posses- 
 sion of the complainant adjudges that the complainant has no 
 
 (93) 4 Comp. Stat., p. 5402, sec. 6. 
 
 (94) Blatchford v. Conover, 40 N. J. Ek[., 205; Fittichauer v. 
 Metropolitan, &c., Co., 70 N. J. Eq., 429-436. 
 
 (95) 4 Comp. Stat, p. S40I, sec. 3. 
 
 (96) Fittichauer v. Metropolitan, &c., Co., 70 N. J. Eq., 429. 
 
 (97) Oberon Land Co. v. Dunn, 60 N. J. Eq., 280. 
 
DecreS. 237 
 
 estate or interest in the said lands, an order for possession will 
 not be made, and a writ of assistance will not go in favor of 
 such defendant, unless the decree expressly adjudges that he 
 has a right to immediate possession. (98) 
 
 (98) Brady v. Cartarett Realty Co., 85 Atl., 823. 
 
238 Bills of Revivor. 
 
 CHAPTER IX 
 BILLS OF REVIVOR. 
 
 Nature and Function. A bill of revivor properly so 
 called, lies where a death , intervenes, and it is necessary to 
 bring the proper representatives of the deceased in the realty 
 or personalty before the court. In such case there is no other 
 fact to be ascertained than whether the new party brought 
 before the court as executor or heir-at-law has the character 
 imputed to him. If he has, the revivor is of course.(i) So 
 if the death of a party is attended with such a transmission 
 of his interests that the title to it as well as the person entitled 
 may be litigated in this court, as in the case of a devise of 
 real estate, the suit cannot be continued by a bill of revivor. 
 An original bill in the nature of a bill of revivor, in which the 
 title may be litigated, must be filed. (2) 
 
 The statute of abatements provides, however, that ujX)n the 
 death of one of two complainants it is only necessary to prove 
 the death by affidavit, and the suit may proceed. (3) And 
 where upon the death of a party other parties become inter- 
 ested, the complainant may bring them in by rule or order of 
 revivor, served as the court may direct. (4) And on the death 
 of a sole complainant or defendant, his representatives may on 
 motion and order be substituted. (5) And the death of a re- 
 ceiver or administrator defendant does not abate the action, 
 but the same may by rule be continued against the successor 
 in office. (6) The act further provides that nothing therein 
 shall prevent the filing of a bill of revivor if preferred. (7) 
 
 The statute does not alter the practice, except by providing 
 a more expeditious mode of proceeding by order, instead of 
 resorting to a bill of revivor. (8) The Chancery Rules pro- 
 
 (i) Ross V. Hatfield, 2 N. J. Eq., 363; Peer v. Cookerow, 14 N. J. 
 Eq., 361. 
 
 (2) Peer v. Cookerow, 14 N. J. Eq., 361. 
 
 (3) I Comp. Stat, p. 4, sec. 4. 
 
 (4) I Comp. Stat., p. 4, sec. S- 
 
 (5) I Comp. Stat., p. S. sec. 6; p. 6, sec. 7 & 8. 
 
 (6) I Comp. Stat., p. 7, sec. 12 & 13. 
 
 (7) I Comp. Stat., p. 6, sec. 9. 
 
 (8) Benson v. Wolverton, 16 N. J. Eq., no. 
 
Nature and Function. 239 
 
 vide that where a suit shall abate from whatever cause, or 
 shall become defective by reason of some change or trans- 
 mission of interest or liability, no bill of revivor or supple- 
 mental bill shall be necessary to obtain the usual order to re- 
 vive, or the usual or necessary decree or order to carry on 
 such proceedings, but such order may be obtained as of course 
 upon an allegation supported by affidavit or petition duly veri- 
 fied. (9) 
 
 The abatement of a suit in equity by the death of a party, 
 and its revival against his representatives by bill oi revivor, or 
 by proceedings under the fifth section of the act relating to 
 the abatement of suits, does not make it a new suit. It is still 
 the same suit, in which both parties are entitled to the benefit 
 of all former proceedings. No answer is required if the bill 
 has' already been answered, unless a discovery of assets is 
 required. The depositions of witnesses^ if any have been 
 taken, may be used, and if the cause has proceeded to final de- 
 cree, it will remain in force against the new party. All that 
 is open to litigation is whether the new party brought before 
 the court has the representative character imputed to him. (10) 
 
 (9) Upon any suit in the Court of Chancery becoming abated 
 by death, marriage or otherwise, or defective by reason of some change 
 or transmission of interest or liability, it shall not be necessary to 
 exhibit a bill of revivor or supplemental to obtain the usual order to 
 revive, or the usual or necessary decree or order to carry on such 
 proceedings, but an order to the effect of the usual order to revive, 
 or of the usual supplemental decree, may be obtained as of course 
 upon an allegation supported by affidavit, or petition duly verified of the 
 abatement of such suit or of the same having become defective, or of 
 the change or transmission of interest or liability; which affidavit or 
 petition shall also state the grounds upon which the right to revive is 
 claimed. An order so obtained, when served upon the party or parties 
 who, according to the existing practice, would be defendant or defend- 
 ants to the bill of revivor or supplemental bill, shall from the time of 
 such service, be binding on such party or parties in the same manner, 
 in every respect, as if such order had been regularly obtained accord- 
 ing to the existing practice. And such party or parties will thence- 
 forth become a party or parties to the suit in like manner as if he or 
 they had been duly served with process to appear to a bill of revivor 
 or supplemental bill; provided, however, that he or they may, within 
 fifteen days after such service, apply to the Chancellor to discharge 
 such order; provided also, that if any party so served is under any 
 disability, other than coverture, such order shall be of no force or 
 effect as against such party until four days shall have elapsed after 
 a guardian ad litem shall have been duly appointed for such party. 
 Chancery rule 210. 
 
 (10) Marlatt v. Warwick. 19 N .J. Eq., 439-445; Havens v. Seashore 
 Land Co., 57 N. J. Eq., 142. 
 
240 Bills of Revivor. 
 
 But where a suit abates or becomes defective by the death of 
 the party, and is revived by his heirs, they are not bound by 
 proceedings taken after his death and prior to revival.(ii) 
 
 Under the established practice, independent of statute, the 
 formal proceeding to continue a suit against the executors of 
 a deceased defendant should be by a bill in the nature of a 
 bill of revivor, and not by a bill of revivor, since under the 
 old practice the bill of revivor was applicable only wheii the 
 title of decedent devolved upon his representatives by opera- 
 tion of lawj and not by the act of the decedent himself. (12) 
 So if the complainant in an equity suit brought to set aside a 
 conveyance of lands dies, leaving a will devising the land in 
 controversy, and the devisee seeks to revive the original suit, 
 he can only do it in that mode which will give the heir-at-law 
 of his testator an opportunity to dispute the validity of the 
 will. This cannot be effected by a simple bill of revivor, for 
 the inquiry there is limited to the ascertainment of the person 
 upon whom the law casts the inheritance upon the death of an 
 ancestor; in order, therefore, to bring those facts before the 
 court which are necessary to afford an opportunity to dispute 
 the title of the devisee, an original bill in the nature of a bill 
 of revivor is the proper practice, (13) 
 
 Proceedings Under the Statute and Rule. As has been 
 seen, the statute of abatements provides for the revival, by 
 order of suits where there are two or more defendants, 
 and upon the death of any defendant "against the repre- 
 sentatives of a deceased party, or any other who may become 
 interested by the death of such party," and that in such 
 a case no bill of revivor shall be necessary. This sec- 
 tion would seem td be applicable in a strict sense to 
 a bill of revivor otily, and not to extend to the case 
 where a supplemental bill in the nature of a bill of re- 
 vivor was necessary under the old practice. But chancery rule 
 210, originally adopted by Chancellor Runyon in 1883, is 
 broad enough to include bbth classes, arid provides for such 
 revival, by order, of a suit becoming defective "by reason of 
 
 (11) Havens v. Seashore Land Co., 57 N. J. Eq., 142. 
 
 (12) Ross V. Hatfield, 2 N. J. Eq., 363; Peer v. Cookerow, 14 
 N. J. Eq., 361; Lyons v. Van Riper, 26 N. J. Eq., 337; Ball v. Ward, 
 ^Z N. J. Eq., 440. 
 
 (13) Lyons v. Van Riper, 26 N. J. Eq., 337. 
 
Right to File. 241 
 
 some change or transmission of interest or of liability," which 
 order of revivor when served upon the parties who would, ac- 
 cording to the existing practice, be defendants to a bill of re- 
 vivor or supplemental bill, will be as binding as if obtained 
 under the existing practice. Provision is, however, made for 
 applying to the Chancellor to discharge the order ; and in view 
 of the fact that the order, when served, has under the rule the 
 same effect as if obtained on a bill of revivor or a supplemental 
 bill, it would seem that' on a motion to discharge the order the 
 defendant brought in might avail himself of any objection to 
 the order, appearing upon this record, which would under the 
 previous practice have entitled him to object to a decree of 
 revivor. The want of necessary parties is an objection of this 
 character. Under the English act from which our rule 210 is 
 substantially taken, it is' expressly provided by the act itself 
 that the motion for discharge of the order may be made "on 
 any ground which would have been open to him on a bill of 
 revivor or supplemental bill, stating the previous proceedings 
 and the change or transmission of interest and praying the 
 usual relief." As rule 210 does not restrict or define the 
 ground of objection, it must be held to include reasons for 
 objecting to a decree for revivor if a bill had been filed. (14) 
 
 Time for Filing. The occasion for revivor may arise, and 
 a bill of revivor be proper at any time before or after decree, 
 and such a bill may in general be filed at any time before the 
 statutory period of limitations ; but a revivor will be denied if 
 not sought until after a very long period of inaction. (15) 
 
 Right to File. Irrespective of the provisions of the abate- 
 ment act, where a sole complainant dies before decree, the 
 suit cannot be revived at the, instance of the defendant or of 
 his legal representatives. Where the sole complainant dies, his 
 lawful representatives or any person interested by the death 
 of such complainant may cause himself to be made complain- 
 ant in the suit. Where a sole defendant dies, the complainant 
 may cause the legal representatives of such defendant, or any 
 person who has become interested by his death, to be sub- 
 stituted as defendant, unless he signify his disclaimer of the 
 
 (14) Ball V. 'Ward, 73 N. J. Eq., 440; and see Rule 210, page 238, 
 supra, note 9. 
 
 (15) 16 Cyc, p. 364 and i Cyc, p. 105; Notes 8 & 9 and ib. 106, Note 
 12. 
 
242 Bills of Revivor. 
 
 matter in controversy; and if the legal representative of the 
 deceased complainant, or other person becoming interested by 
 his death, will not cause himself to be made complainant in 
 the room of the deceased complainant, or in the case of the 
 death of the defendant, if the complainant will not make the 
 legal representative of the deceased defendant, or other per- 
 son who may have become interested by his death, a party to 
 the suit, the suit shall be considered at an end, and will not 
 be revived in the manner provided by the act. In either event, 
 the suit will not be revived at the instance of the defendant or 
 of his representatives. Rule 210b promulgated in 1910 pro- 
 vides, however, that a defendant may by motion have a suit 
 revived upon the death of a sole complainant before decree. 
 (16) After decree, the defendants as well as the complain- 
 ants are entitled to a bill of revivor; and although originally 
 the right appears to have been restricted to those cases in 
 which the defendant had or was supposed to have a beneficial 
 interest in the decree, yet it is now well settled that if the de- 
 fendant or his representative have an interest in the further 
 prosecution of the suit, it may be revived at his instance. A 
 defendant's right of appeal cannot be defeated by the com- 
 plainant's death after decree. He has the same interest to re- 
 vive after decree that the complainant had before, viz., the 
 maintenance of his just rights. It was at one time deemed 
 necessary where the suit abated after the appeal was taken, 
 to revive the suit in the court below. The practice now is 
 for the appellate tribunal to make the order. (17) But on a 
 bill of revivor filed to revive a .decree for the purpose of an 
 appeal, it is held that if the right of appeeal is lost the com- 
 plainants can have no right to a decree of revivor, for the court 
 will not do a mere nugatory act. (18) 
 
 Form. Where a bill of revivor, or supplemental bill, or 
 bill in the nature of either or both, for the joinder of addi- 
 
 (16) Benson v. Wolverton, 16 N. J. Eq., no. In cases where 
 a suit abates by the death of a sole complainant before decree, the 
 court, upon motion of any defendant, made upon notice to the lawful 
 representative or representatives of such deceased complainant, and any 
 other person or persons interested by the death of such complainant, 
 may order that such representative or other person do revive the suit 
 within a limited time or that the suit be dismissed. Chancery rule 210b. 
 
 (17) Peer v. Cookerow, 14 N. J. Eq., 361. Benson v. Wolverton, 
 16 N. J. Eq., no. 
 
 (18) Peer v. Cookerow, 14 N. J. Eq., 361. 
 
Costs. 243 
 
 tional parties or for other purposes, is necessary, the requisite 
 allegations and prayers may be made in the form of an addition, 
 separately filed, by way of supplement to the original bill. (19) 
 Parties. In case of abatement by death, the revivor 
 should be by or against the personal representatives or heirs 
 or devisees as the nature of the interest demands. Wherever 
 there has been a devisee of real estate, and the design is to 
 revive the suit either in favor of or against the devisee, the 
 heir and devisee must both be made parties ; but the executors 
 of an original complainant are not necessary parties to a bill 
 of revivor, though by his will he directed them to prosecute 
 the suit, if they have no interest in the subject matter or in 
 the event of the suit. (20) And parties to the original decree, 
 who can neither execute the decree nor be the object of its 
 operation, are not necessary or proper parties to the bill of 
 revivor. (21) 
 
 Process. Where a bill of revivor or supplemental bill, 
 or bill in the nature of either or both, for the joinder of addi- 
 tional or different parties or for other purposes, is necessary, 
 service of process on any new parties shall be made as in case 
 of an original bill, and service of copies of the addition by 
 way of supplement shall be made on all of the defendants to 
 the original bill affected thereby, including all defendants who 
 have appeared to or procured copies of the original bill; and 
 the complainant may thereupon proceed with the cause as if 
 the addition by way of supplement had been made in a supple- 
 mental bill or bill of revivor containing a recital of the alle- 
 gations and prayers of the original bill and the proceedings 
 thereon. (22) 
 
 Costs. No costs are given, either under the statute or 
 by practice irrespective of the statute, if the complainant or 
 his representative elect not to proceed. (23) 
 
 (19) Chancery rule 210- A. 
 
 (20) Peer v. Cookerow, 14 N. J. Eq., 361. 
 
 (21) Peer v. Cookerow, 14 N. J. Eq., 361. 
 
 (22) Chancery rule 210-A. See also Chancery rule 210, page 238, 
 supra. 
 
 {22) Benson v. Wolverton, 16 N. J. Eq., no. 
 
244 Bills of Review. 
 
 CHAPTER X 
 
 BILLS OF REVIEW. 
 
 Nature and Functions. The object of a bill of review is to 
 procure the reversal, alteration or explanation of a decree in 
 a former suit, and must rest on error in law upon the face of 
 the decree, fraud in procuring the decree, or new or newly 
 discovered matter which could not have been used before the 
 decree was made. (i) A bill of review is not a jurisdictional 
 proceeding. It is the technical form whereby the chancellor 
 exercises the prerogative inherent in him of modifying, in the 
 permitted cases, his decrees. (2) If the decree has been signed 
 and enrolled, the practice is to file a bill of review ; if not, a 
 bill in the nature of a bill of review. (3) So an enrolled de- 
 cree may be altered through a bill of review filed by one of 
 the parties' in that suit, where there is a plain mistake of law 
 apparent on the record upon uncontested evidence. (4) The 
 distinction between a bill of review and a bill in the nature 
 of a bill of review, though important in England, is not felt in 
 the practice of the courts of New Jersey, and it appears to 
 be clear that all decrees are matters of record, and are deemed 
 to be enrolled as of the term in which they are passed, so 
 that the appropriate remedy is by bill of review. (5) Where 
 the Court of Errors and Appeals has rendered a decree after 
 a hearing on the merits', and the decree has been entered in 
 the minutes in accordance with the views of the court, and 
 the record has been regularly remitted to the court below, the 
 Court of Errors and Appeals has no further jurisdiction of 
 the case, and therefore will not entertain an application for 
 leave to file a bill of review ; such application must be made 
 
 (i) 'Whittemore v. Coster, 4 N. J. Eq., 438; 'Watkinson v. Watkin- 
 son, 68 N. J. Eq., 632; see also "Proceedings to correct or vacate 
 decrees,'' page 436, infra. 
 
 (2) Jones V. Fayerweather, 46 N. J. Eq., 237. 
 
 (3) Franklin Electric Light Co. v. Fort Wayne Electric Co., 58 
 N. J. Eq., S43; Watkinson v. Watkinson, 68 N. J. Eq., 632; Cook v. 
 Wheigley, 69 N. J. Eq., 836. 
 
 (4) Jones V. Fayerweather, 46 N. J. Eq., 237. 
 
 (5) Watkinson v. Watkinson, 68 N. J. Eq., 632, and see Allgor v. 
 N. J. State Hospital, 84 Atl., 711. 
 
Leave to File. 245 
 
 to the Court of Chancery. (6) And the Court of Chancery 
 has inherent power, without the consent of the appellate tribu- 
 nal, to review, on the ground of newly discovered evidence, its 
 decree, though it has been passed upon on appeal; and no 
 principal or practice requires that it shall refrain from so do- 
 ing until the consent or countenance of the superior court shall 
 have been obtained. (7) A bill of review can only be filed by 
 a person who was a party or privy to the former suit; and 
 where any other person considers himself aggrieved by the 
 decree, he must proceed by original bill. (8) 
 
 Although there is no express statutory limitation as to the 
 time for filing bills of review, the analagous limitation of the 
 right of appeal should govern, and a bill of review cannot be 
 filed after the time limited by the chancery act in which to take 
 appeals, except in case of new or newly discovered matter, or 
 where the complainant has been under a disability. (9) But a 
 delay of about four years in bringing a bill to review a decree 
 of divorce was held not to be fatal where the wife was poor, 
 in ill health and ignorant of her rights, and no copy of the de- 
 cree had been served upon her or other positive information 
 brought home to her until more than a year after the decree 
 was entered. (10) 
 
 Leave to File and Application Therefor. When it is 
 sought to reverse a decree upon the discovery of some new 
 matter, leave of the court must first be obtained by petition, 
 supported by affidavit that the evidence is not only new, but 
 could not have been discovered by reasonable diligence before 
 the hearing. (11) To obtain leave to file a bill of review on the 
 grcpund of newly discovered evidence, the applicant must show : 
 that he has new and competent evidence, so material as to 
 convince the court that its decree is erroneous, or to raise a 
 
 (6) Putnam v. Clark, 35 N. J. Eq., 145. 
 
 (7) Putnam v. Clark, 35 N. J. Eq., 145. 
 
 (8) Jones v. Fayerweather, 46 N. J. Eq., 237. 
 
 (9) Kelsey v. Dilks, 66 Atl., 1086; Watkinson v. Watkinson, 68 
 N. J. Eq., 632; Boyer v. Boyer, "n N. J. Eq., 144; and see Chancery 
 Act, sec. Ill, page 86, supra; see also Appeals, page 763, infra. 
 
 (10) Watkinson v. Watkinson, 67 N. J. Eq., 142. 
 
 (11) Buckingham v. Corning, 29 N. J. Eq., 238; Fort Wayne Electric 
 Co. V. Franklin Electric Light Cv., 57 N. J. Eq., 16; afHrmed, 58 N. J. 
 Eq., S43 ; Watkinson v. Watkinson, 68 N. J. Eq., 632 ; Richards v. Shaw, 
 77 N. J. Eq., 399- 
 
246 Bills of Review. 
 
 question of so much difficulty as to be the fit subject of a judg- 
 ment in the cause. The new matter must be set forth in such 
 form that the court may see that it is admissible. New oral 
 evidence, if weighty enough, will be sufficient. Evidence sim- 
 ply tending to impeach the character or impairing the credi- 
 bility of witnesses will not be sufficient. The applicant must 
 show, by a statement of facts or circumstances, that the nature, 
 situation or condition of the new matter was such that he 
 could not, by the use of reasonable diligence, have discovered 
 it in time to make use of it on the final hearing. The court 
 will not be governed by the opinion of the applicant on this 
 point; he must lay the facts before the court so that it may 
 form its own judgment. (12) To entitle a party to file a bill 
 of review upon the ground of newly discovered evidence, the 
 evidence discovered must be not only new, but material, and 
 such as if unanswered in point of fact would either clearly 
 entitle the party to a decree, or would raise a case of so much 
 nicety and difficulty as to be a fit subject of judgment in the 
 cause. (13) But the court will not before granting leave to 
 file a bill of review inquire whether the petitioner can prove 
 the fact set out in his petition. If the facts and matters set 
 forth in the petition are such as to lay a sufficient foundation 
 for a bill of review, it is all that is required. (14) So leave to 
 file a bill of review, on the ground that the complainant has, 
 since decree, discovered the whereabouts of a material wit- 
 ness of whose existence and materiality she knew when she 
 began her suit, will be denied on the ground of laches and 
 the impolicy of allowing a renewal of the litigation. (15) So 
 condonation of the adultery on which the decree for divorce 
 was based will not justify the granting of leave to file a bill 
 of review. If intended to be interposed, it should have been 
 pleaded and proved in the original suit. (16) And so where 
 defendant made application for leave to file a bill of review 
 six years after the final decree was entered against him, and 
 the application was based upon the ground that he had material 
 
 (12) Van Fleet, V.-C. in Traphagen v. Voorhees, 12 N. J. L. J., 22.' 
 
 (13) Quick V. Lilly, 3 N. J. Eq., 255; Traphagen v. Voorhees, 45 
 N. J. Eq., 41 ; Perkins v. Partridge, 30 N. J. Eq., 559 ; aMrmed, 32 N. J. 
 Eq., 399- 
 
 (14) Quick V. Lilly, 3 N. J. Eq., 255. 
 
 (is) Putnam v. Clark, 36 N. J. Eq., 33; affirmed ih., 647. 
 (16) Watkinson v. Watkinson, 68 N. J. Eq., 632. 
 
Leave to File. 247 
 
 evidence to present in his defense which he did not present 
 during the progress of the suit, which evidence he alleged he 
 knew nothing of until more than five years after the making 
 of the decree, which was a decree pro confesso regularly taken 
 against him as a non-resident, and it appeared that the writ 
 of injunction was served upon him in the beginning of the 
 suit, in which writ the existence of the suit was stated and also 
 that he was a party defendant thereto, it was held that the 
 application must be denied for want of merit. (17) So a de- 
 cree will not be re-opened on the application of the defeated 
 party to permit him to produce an admittedly perjured witness 
 to establish a new basis for the relief, or to procure a witness 
 admittedly not knowing what he was testifying to. (18) The 
 applicant for permission to file a bill of review will be required 
 to file his bill within a limited time, and to deposit with the 
 clerk of the court, at the time of filing the bill, $100 as security 
 for costs. (19) A bill of review is subject to demurrer for 
 failure to allege that it was filed by leave of court. (20) Or 
 it may be ordered to be taken from the files. (21) 
 
 There is a distinction in practice between an application for 
 a bill of review on the ground of error on the face of the 
 decree, and one based on newly discovered evidence. In the 
 former case, no bill of review can be filed after the decree has 
 been passed upon by the appellate tribunal; but in the latter 
 case it is otherwise. (22) 
 
 A bill of review founded upon error on the face of a decree 
 may be filed without leave. (23) 
 
 (17) Bergholz v. Ruckman, 41 N. J. Eq., 134. 
 
 (18) Richards v. Shaw, 77 N. J. Eq., 399. 
 
 (19) Quick V. Lilly, 3 N. J. Eq., 255. 
 
 (20) Kearns v. Kearns, 70 N. J. Eq., 483. 
 
 (21) Buckingham v. Corning, 29 N. J. Eq., 238. 
 
 (22) Buckingham v. Corning, 29 N. J. Eq., 238; Putnam v. Clark, 
 35 N. J. Eq., 14s. 
 
 (23) Buckingham v. Corning, 29 N. J. Eq., 238; Adams v. Adams, 
 79 Atl., 683. 
 
248 Pleas. 
 
 CHAPTER XI. 
 PLEAS. 
 
 Nature and Office of Pleas. When an objection to a bill 
 is not apparent upon its face, if the defendant means to take 
 advantage of it, he ought to show the court the matter which 
 creates the objection, either by answer or by a plea — which has 
 been described as a special answer, showing or relying upon 
 one or more things as a cause why the suit should be dismissed, 
 delayed or barred. The defense proper for a plea is such as 
 reduces the cause or some part of it to a single point, and from 
 thence creates a bar to the suit or to the part thereof to which 
 the plea applies. (i) It is essential and requisite that a plea 
 shall be founded upon new matter not apparent in the bill ; for 
 if the matter is apparent, the defendant must demur. (2) So 
 where a defect of parties is not apparent upon the face of the 
 bill, such defect may be brought before the court by plea ; and 
 a plea for want of proper parties is a plea in bar, and goes 
 to the whole bill. (3) 
 
 It is an established rule that only one plea may be filed to 
 the same part of a bill without leave of the court obtained on 
 notice to complainant. If, however, such irregularity be not 
 objected to it will be considered as having been waived. (4) 
 
 Classification of Pleas. Pleas are usually divided into two 
 sorts : one commonly called pure pleas, which relate wholly to 
 matters dehors the bill, such as a release or a settled account; 
 the other called pleas not pure or anomalous pleas, or some- 
 times negative pleas, which consist mainly of denials of the 
 substantial matters set forth in the bill. (5) 
 
 A pure or affirmative plea — that is, a plea merely stating 
 matters not apparent upon the face of the bill— usually pro- 
 ceeds upon the ground that, admitting the case stated in the 
 bill to be true, the matter set up by the plea affords sufficient 
 
 (i) Mitf. Eq. PI., 257. 
 
 (2) Davis V. Davis, 57 N. J. Eq., 252; Kelly v. Masionis, 82 Atl., 
 329- 
 
 (3) Mackey v. Mackey, 71 N. J. Eq., 686; Moore v. Moore, 74 N. J. 
 Eq., 733- 
 
 (4) Bender v. Dialogue, 84 Atl., 202. 
 
 (5) Story's Eq. PL, sec. 651. 
 
Nature and Function. 249 
 
 reason why the complainant should not have the relief he 
 prays. (6) Pleas not pure or anomalous pleas rely wholly upon 
 matters stated in the bill negativing such facts as are material 
 to the rights of the complainant. They require to be sup- 
 ported by an answer subsidiary to the purposes of the plea. (7) 
 
 A Plea Must be Single Not Double. The proper office 
 of a plea in equity is to reduce the case, or some part of it, 
 to a single point, and from thence to create a bar to the suit, 
 or to the point to which the plea relates. If the defendant in- 
 tends to traverse the facts of the bill and to set up a different 
 state of facts' covering the entire subject matter at issue, it 
 cannot be done by a plea, but should properly be by an answer. 
 (8) Hence a plea, in order to be good, whether it be affirma- 
 tive or negative in its form, must be either an allegation or 
 denial of some leading fact, or of matters which, taken col- 
 lectively, make out some general fact which is a complete 
 defense. Although the defense offered by way of plea may 
 consist of a great variety of facts and circumstances, which 
 may be very voluminous', it must, in the last analysis, be reduc- 
 ible to a single issue. It is a general rule that a plea present- 
 ing two or more distinct issues or points must be held bad, and 
 the defendant be put to his answer and full discovery. (9) 
 
 Pleas Overruled by Answer. A litigant may demur to 
 part, answer to part, and plead to part of the bill. All the 
 modes of defense may be joined, provided each relates to a 
 separate and distinct part of the bill. The general rule is that 
 when the defendant at the same time sets up the same defense, 
 both by answer and plea in bar, the former overrules the latter. 
 The reason is that by interposing the plea he claims that he 
 ought not to be required to answer and yet at the same time 
 does answer. (10) So a defendant, who has answered an alle- 
 gation in a bill, cannot re-state it by way of plea, and challenge 
 
 (6) I Daniel's Ch. Pr., 604; Lyden v. Lawrence, 79 Atl., 615. 
 
 (7) Stor/s Eq. PL, sec. 670 and see page 251, infra. 
 
 (8) Groel V. United Electric Company of N. J., 70 N. J. Eq., 616; 
 Gilson V. Appleby, 78 N. J. Eq., 96. 
 
 (9) Sohege V. Singer Mfg. Co., 73 N. J. Eq., 567. 
 
 (10) Corlies v. Corlies, 23 N, J. Eq., 197; Davis v. Davis, 57 Atl., 
 252; Bennett v. Bennett, 63 N. J. Eq., 306-307; McDevitt v. McDevitt, 
 71 N. J. Eq., 119; but see "Pleas not Pure or Anomalous Pleas," page 
 251, infra. 
 
250 Pleas. 
 
 the jurisdiction of the court over him, to which jurisdiction 
 he has thus already submitted. ( 1 1 ) 
 
 Frame of Pleas. A plea in bar must follow the bill, and 
 not even evade it. If a plea does not go to the whole bill, it 
 must express to what part of the bill .defendant pleads. And, 
 therefore, a plea to such parts of a bill as are not answered 
 must be overruled as too general. (12) 
 
 An important rule, well established, is that a plea must 
 clearly and distinctly aver all facts necessary to render it a 
 complete equitable defense to the case made by the bill, so 
 far as such plea extends, so that the complainant may, if he 
 chooses, take issue upon it. Averments are also necessary to 
 exclude intendments which would otherwise be made against 
 the pleader, and the averments must be sufficient to supfwrt the 
 plea. (13) 
 
 So a plea or answer setting up usury as a defense must state 
 specifically the facts of the bargain. (14) And so the defense 
 of a bona fide purchase may be made by plea in bar of dis- 
 covery and relief, or by answer in bar of relief only. If made 
 by plea, the payment of the whole of the consideration money 
 must be averred. An averment that part was paid, and the 
 balance secured by mortgage, will not be sufficient. Proof of 
 the payment of the whole purchase money is essential to the 
 defense, whether it be made by plea or answer. If the de- 
 fendant has paid in part only, he will be protected pro tanto 
 only. (15) 
 
 There is no principle of law which exempts the citizens of 
 any state of the Union from service of process within this 
 state ; so a plea which sets up the fact that defendant has not 
 been served with process within this state is bad because it 
 does not appear from anything in the plea that complainant 
 has yet sought to serve him with process within this state, nor 
 
 (11) Davis V. Davis, 57 N. J. Eq., 252. 
 
 (12) Story's Eq. PL, sec. 659. 
 
 (13) McEwan v. Broadhead, 11 N. J. Eq., 129; Davison v. Johnson, 
 16 N. J. Eq., 112; Mount v. Manhattan Co., 41 N. J. Eq., 221; Gilson 
 v. Appleby, 78 N. J. Eq., 96; Leyden v. Lawrence, 79 Atl., 615; Story's 
 Eq. PI., sec. 665. 
 
 (14) Crane v. Homeopathic, &c., Co., 27 N. J. Eq., 484. 
 
 (is) Haughwout v. Murphy, 22 N. J. Eq., 531; Chancellor v. 
 Gummere, 39 N. J. Eq., 582; Atlantic City v. "The New Auditorium 
 Pier Co., 67 N. J. Eq., 610. 
 
Anomalous Pleas. 251 
 
 at all, and it does not, therefore, follow that if and when com- 
 plainant so seeks to obtain jurisdiction over the defendant he 
 may not in the first place serve him within this state nor in 
 the second place obtain service by some method of substituted 
 service recognized as efficient by the courts of this state and 
 of the federal government. (i6) 
 
 The averments of fact contained in a plea must be direct 
 averments; inferences arising from the averments are not ef- 
 fective as a part of the plea. ( 17) So a plea, that the complain- 
 ant "is incapable of caring for herself or her property," not 
 specifying the particular incapacity, is insufficient and bad. (18) 
 And so where complainant's legal rights, as disclosed by his 
 bill for discovery, are dependent on his proving (a) defend- 
 ant's contract to compensate him according to the value of his 
 work, (b) that he secured certain business for defendant, and 
 (c) that such business was profitable to defendant, a plea that 
 denied that plaintiff secured the business, or that it was profit- 
 able, was held bad, since it did not deny all the grounds con- 
 stituting the basis of plaintiff's action. (19) 
 
 Pleas Not Pure or Anomalous Pleas. Pleas not pure or 
 anomalous pleas have, as has been seen, twO' pecularities ; in 
 the first place, they rely wholly upon matters stated in the bill 
 negativing such facts as are material to the rights of the com- 
 plainant, and in the next place they require an answer to be 
 filed which is subsidiary to the purposes of the plea. A pure 
 plea never requires any such answer. (20) So while, as we 
 have seen, the general rule is, that when the defendant' at the 
 same time sets up the same defense, both by answer and plea 
 in bar, the former overrules the latter, still where the bill 
 anticipates the bar, and alleges facts to avoid it, an answer is 
 necessary to support fhe plea. In such a case it is proper not 
 only that the plea should contain all necessary averments to 
 overthrow these allegations, but the defendant must also sup- 
 port his plea by an answer denying those allegations. (21) 
 
 (16) Gilson V. Appleby, 78 N. J. Eq., 96. 
 
 (17) Leyden v. Lawrence, 79 At!., 615. 
 
 (18) Corlies v. Corlies, 23 N. J. Eq., 197. 
 
 (19) Miller v. U. S. Casualty Co., 61 N. J. Eq., no. 
 
 (20) Story's Eq. PI., 670; Somerset County Bank v. Veghte, 42 
 N .J. Eq., 39. 
 
 (21) Harrison v. Farrington, 38 N. J. Eq., 358. 
 
252 Pleas. 
 
 Where a bill charges fraud, and alleges that the fraud was 
 not discovered until within six years, a pure plea would not 
 be appropriate, but it must be a plea not pure or an anomalous 
 plea; that is to say, the plea should not only plead the statute 
 of limitations, but it should contain averments denying the 
 fraud, or stating that the fraud, if any, was not first discovered 
 within six years. It should also be accompanied by an answer 
 in support of the plea, answering and denying the circumstances 
 of the fraud and the other circumstances which go to avoid the 
 bar. (22) But where an answer accompanying a plea, expressly 
 denying fraud and being decidedly in support of the plea, is not 
 stated so to be, this formal matter may be supplied if the plea is 
 amended. (23) A plea of release is not void because it is not 
 stated in the plea, or in the answer in support of it, that the 
 release was obtained freely and without fraud, when the bill 
 contains no allegation of fraud. (24) 
 
 Pleas Must Have Annexed Affidavit and Certificate of 
 Counsel. Every plea must have annexed thereto an affi- 
 davit of the defendant filing the same, or his agent in the 
 suit, that the same is not interposed for delay, but in good 
 faith, and also the certificate of counsel that he has perused 
 complainant's bill, and that the plea is well founded in point 
 of law, and every plea filed without such affidavit and cer- 
 tificate may be treated as a nullity. (25) So a plea in equity 
 will be overruled where a certificate and affidavit that the 
 plea is well founded and not interposed for delay is not an- 
 nexed thereto. (26) But a verification of a plea, reciting that 
 it is not interposed for delay, but in good faith, is sufficient, 
 although the defendant does not make oath that the matter is 
 true. (27) 
 
 Pleas to the Jurisdiction. Pleas to. the jurisdiction are 
 those which oppose further continuance of the suit upon the 
 ground that the court has no jurisdiction to entertain it, either 
 because the subject matter of the bill is not within the juris- 
 diction of the court, or because the court has no jurisdiction 
 
 (22) Somerset County Bank v.- Veghte, 42 N. J. Eq., 39. 
 
 (23) Meeker v.-Marsh, i N. J. Eq., 198. 
 
 (24) McCIane v. Shepherd, 21 N. J. Eq., 76. 
 
 (25) Chancery Act, sec. 22, page 26, supra. 
 
 (26) Resnick v. Campbell, 68 N. J. Eq., 348. 
 
 (27) Harrison v. Farrington, 38 N. J. Eq., 358. 
 
Pleas to the Jurisdiction. 253 
 
 over the person of the defendants. The right of a defendant 
 to raise the question of the jurisdiction of the court in limine, 
 and to obtain its judgment whether he should answer the bill, 
 is clear. Care should, however, be taken to distinguish be- 
 tween a substantive objection to the jurisdiction, technically 
 considered, and one for mere irregularity of the service of the 
 process, because much confusion has arisen by treating want 
 of power to enforce jurisdiction as tantamount to want of 
 jurisdiction. (28) A plea to the jurisdiction of the court is 
 undoubtedly proper in those cases in which the court has no 
 jurisdiction over the subject matter; and the distinction to be 
 drawn is between such cases, and those in which it has juris- 
 diction of the subject matter, but cannot enforce it until it 
 obtains jurisdiction over the person. It would appear that in 
 every case in which the court has jurisdiction of the subject 
 matter, which it can enforce, if it obtains jurisdiction of the 
 party, there is no propriety in a plea to the jurisdiction of the 
 court based upon an allegation that the court has not obtained 
 jurisdiction of the person; but in such a case the objection 
 should be made by motion based upon a conditional appear- 
 ance. (29) If the matter showing lack of jurisdiction of the 
 subject matter of the suit appears on the face of the bill, the 
 question should be raised by demurrer; if not, a plea setting 
 forth the matter is the proper course. If such a plea is found 
 to be good, the court may order that defendants are not bound 
 to answer the bill, and should be dismissed. (30) In former 
 times, in England, a plea to the jurisdiction was commonly 
 required to name another court in which the complainant 
 might legally seek the relief desired. Under our practice, 
 however, such a plea need not designate another tribunal in 
 which the defendant may be sued. (31) 
 
 In the case of Wilson vs. American Palace Car Co., (32), 
 the question before the court was, whether non-resident de- 
 
 (28) Ewald V. Ortynsky, 77 N. J. Eq., 76; affirmed, 78 N. J. Eq., 527. 
 
 (29) Ewald V. Ortynsky, "jy N. J. Eq., 76; affirmed, 78 N. J. Eq., 
 527. 
 
 (30) Wilson V. American Palace Car Co., 65 N. J. Eq., 730; Groel 
 V. United Electric Co. of N. J., 68 N. J. Eq., 249; Babbitt v. Fidelity 
 Trust Co., 70 N. J. Eq., 6$! ; Puster v. Parker Mercantile Co., 70 N. J. 
 Eq., 771 ; Lanning v. Twining, 64 Atl., 466. 
 
 (31) Wilson V. American Palace Car Co., 65 N. J. Eq., 730. 
 
 (32) 6s N. J. Eq., 730. 
 
254 Pleas. 
 
 fendants, who had not been brought into court and could not be 
 brought in against their consent, and who declared themselves 
 unwilling to submit to its jurisdiction, were entitled to set 
 these facts up in a plea to the jurisdiction, and, upon establish- 
 ing them, to be dismissed ; and the court held that under these 
 circumstances the bill should be dismissed. In Ewald vs. 
 Ortynsky (33), Chief Justice Gummere, speaking for the 
 Court of Appeals, said, in explanation of the doctrine of 
 Wilson vs. American Palace Car Co., "we of course did not 
 intend to say, and did not say, that the defendant in an equity 
 suit, who was a resident of the state and subject to be brought 
 within the jurisdiction of the court by its compulsory process, 
 could, after bill filed, but before subpoena was served upon him, 
 successfully challenge the jurisdiction and obtain a dismissal 
 by pleading that he had not been served. The mere state- 
 ment of the proposition exposes its absurdity, for if such were 
 the situation, a defendant could always defeat the complain- 
 ant's claim if he could manage to forestall service of sub- 
 poena, by filing such a plea, and this was the identical situa- 
 tion shown by the proofs taken on the issue tried; for service 
 of process upon a person not an officer or agent of the defend- 
 ant corporation was not a service upon the defendant at all, 
 and the case stood in its legal effect as if no subpoena had yet 
 been issued against it. By the filing of the plea setting up 
 facts which were alleged to be a bar to the complainant's right 
 to relief, the joinder of issue thereon, and the sustaining of 
 those facts by proof, the defendant was entitled to a decree 
 dismissing the complainant's bill, notwithstanding the facts 
 set out did not state a valid defense to the suit, provided the 
 plea and replication were permitted to remain upon the rec- 
 ord."(34) 
 
 In the case of Ewald vs. Ortynsky, defendant, a resident 
 corporation, pleaded lack of proper service of process, to which 
 plea replication was filed, and at the hearing the plea was 
 found to be true. The defendant then contended that the 
 court was bound to find for the defendant and dismiss the bill 
 or dismiss the defendant from the suit, as was done by the 
 Court of Appeals in Wilson vs. American Palace Car Co. 
 
 (33) 78 N. J. Eq., 527. 
 
 (34) Ewald V. Ortynsky, 78 N. J. Eq., 527; see, however, rule 209-a, 
 page 265, infra. 
 
Pleas to -the Jurisdiction. 255 
 
 (35) In considering the matter, the court held that the only, 
 theory on which such an order could be entered would be that 
 the defendant had pleaded and proven the matter which barred 
 the complainant from the further prosecution of the suit by 
 showing that the court had not jurisdiction thereon, and Vice- 
 Chancellor Garrison said "I cannot conceive that this court, 
 merely because of an error in the course of pleading, would 
 ever enter what might be termed a self-stultifying order of 
 that nature. I so term it because it would be an order that, 
 with respect to a subject matter cognizable by this court, 
 a party within the jurisdiction of this court could never be 
 made amenable to its compulsory process, so that the juris- 
 diction of the court might be exercised over such party, if 
 that party had been improperly served and had entered a plea 
 to the jurisdiction of the court. The court now finds it is in 
 a position where the defendant has proven that it was not 
 properly served with process, as it pleaded it was not, but 
 cannot, with any proper regard to the due administration of 
 justice, make the order prayed for by the defendant. Under 
 these circumstances, I conceive that there can be no question 
 of the right and power of the court in the premises. I con- 
 ceive that this court has the right and power to permit com- 
 plainant to withdraw the replication upon terms which shall 
 do justice to the defendant, to whom the full benefit of all that 
 has taken place shall be secured." The replication having been 
 withdrawn pursuant to the suggestion of the court, the plea 
 was, therefore, stricken out by the court as a defective and 
 improper plea. (36) 
 
 In a recent case defendant pleaded to the jurisdiction, and 
 founded his plea upon lack of service of process and the plea 
 was found to be good, the court ordered that the plea be over- 
 ruled for the reasons given in the case of Eivald vs. Ortynsky 
 (37) The order also reserved to the defendant the right to 
 use the matter contained in its plea upon a. motion to set 
 aside the service of subpoena upon it, upon the payment of the 
 costs of the plea, provided the motion was made within seven 
 days from the date of the order, and that if defendant failed 
 to make that motion within the time limited, it might answer 
 
 (35) 6s N. J. Eq., 730. 
 
 (36) Ewald V. Ortynsky, 77 N. J. Eq., 76; affirmed, 78 N. J. Eq., 527. 
 
 (37) 77 N. J. Eq., 76; affirmed, 78 N. J. Eq., 527. 
 
256 Pleas. 
 
 the complainant's bill within twenty days from that time, and 
 if it failed to answer within such time, the bill of complaint 
 should be taken as confessed against it. This practice was 
 approved by the Court of Appeals. (38) 
 
 The power of the Court of Chancery to permit complainant 
 to withdraw his replication to the plea of want of jurisdiction 
 exists so long as the issue raised by the replication remains 
 undertermined, and where it clearly appears that unless the 
 replication is withdrawn there will be a miscarriage of justice, 
 such permission should be granted. (39) 
 
 Defendants waive their right to object to the jurisdiction 
 of the court by answering the bill without interposing such 
 objection. (40) So where objection was taken at the hearing 
 that the complainant had a perfect remedy at law, and did not 
 need the aid of equity, it was held that the objection came 
 too late. (41) 
 
 Pleas of Another Suit Pending. The objection that an- 
 other suit is depending for the same matter should generally 
 be made by plea, and not by motion to strike out. (42) In 
 the plea of another suit pending, .there are several matters 
 which are essential to its sufficiency. In the first place, the 
 plea should set forth with certainty the commencement of 
 the former suit, its general nature, character and objects, and 
 the relief prayed. (43) The pendency of an action at law be- 
 tween the same parties constitutes no bar to a suit in equity 
 between the same parties for the same object. (44) Nor is 
 the pendency of a suit between the same parties and for the 
 same cause of action in a foreign state a bar to a subsequent 
 one brought in this state. (45) The plea should set forth that 
 
 (38) Hotovitsky v. Little Russian, Greek, etc., Church, 79 Atl., 340. 
 
 (39) Ewald V. Ortynsky, 78 N. J. Eq., 527; Brown v. Ricketts, 
 2 Johns Ch., 425. 
 
 (40) Morris Canal, &c., Co. v. Jersey City, 12 N. J. Eq., 253 ; Reversed 
 ib., 547. 
 
 (41) Pettit V. Shepherd, s Paige, 501. 
 
 (42) Fulton V. Golden, 25 N. J. Eq., 353; Larter v. Canfield, 59 N. J. 
 Eq., 461 ; Griffing v. Griffing Iron Co., 61 N. J. Eq., 269 ; Van Houten v. 
 Stevenson, 68 N. J. Eq., 490. 
 
 (43) Story's Eq. Pi., 337- 
 
 (44) Fulton V. Golden, 25 N. J. Eq., 353, 
 
 (45) Fulton V. Golden, 25 N. J. Eq., 3t^3; C. R. R. of N. J. v. N. J. 
 West Line R. R. Co., 32 N. J. Eq., 67 ; Fairchild v. Fairchild, 53 N. J. 
 
Another Suit Pending. 257 
 
 another suit is pending in the same or some other court of 
 equity. (46) 
 
 In the next place, it is necessary, in order to make a plea 
 of another suit pending a good plea, that it should appear by 
 the plea that the second suit is for the same subject matter 
 as in the first. (47) So where the complainant and defendant 
 were tenants in common of a piece of land, and the complain- 
 ant held a mortgage on the undivided interest of the defend- 
 ant, the complainant filed a bill to foreclose his mortgage, and 
 the defendant filed a plea thereto, setting up the pendency of 
 a partition suit brought by the defendant against the complain- 
 ant affecting the said premises and other lands, but not making 
 the complainant, as mortgagee, a party; it was held that the 
 record did not show another suit pending for the same mat- 
 ter, and that, therefore, the plea must be overruled. (48) But 
 a plea intended to present, as a defense, the pendency of 
 another suit in a court of equity need not expressly aver that 
 both suits are for the same subject matter; it will be suffi- 
 cient if it states facts from which it clearly appears that they 
 are. (49) 
 
 In the next place, in order that a plea of a former action 
 pending may be sustained, it is necessary that all the relief to 
 which the complainant may be entitled in the second suit should 
 be attainable in the first, and that the remedy there afforded 
 should be equally as beneficial to the complainant as that which 
 he may seek in the second suit. (50) And finally the plea 
 should regularly aver that the former suit is pending, for 
 this seems an essential ingredient to the validity of the plea. 
 (SI) 
 
 Eq., 678; Marsh v. Marsh, 73 N. J. Eq., 99-105; Mumford v. Equador 
 Development Co., 50 Atl., 476. 
 
 (46) Way V. Bragaw, 16 N. J. Eq., 213. 
 
 (47) Carlisle v. Cooper, 18 N. J. Eq., 241 ; McEwan v. Broadhead, 
 II N. J. Eq., 129. 
 
 (48) Van Houten v. Stevenson, 68 N. J. Eq., 490.; aiHrmed, 69 N. J. 
 Eq., 83s. 
 
 (49) McEwan v. Broadhead, 11 N. J. Eq., 129; Griffing v. Griffing 
 Iron Co., 61 N. J. Eq., 269; Van Houten v. Stevenson, 69 N. I. Eq., 
 626; afHrmed, 69 N. J. Eq., 835. 
 
 (so) Way V. Bragaw, 16 N. J. Eq., 213-217; Larter v. Canfield, 59 
 N. J. Eq., 461 ; Griffing v. Griffing Iron Co., 61 N. J. Eq., 269. 
 
 (SI) Story's Eq. PI., 337. 
 
258 Pleas. 
 
 Where a plea of a former suit pending is pleaded, the com- 
 plainant may either take issue upon the facts of the plea, or a 
 reference to a master to ascertain the fact whether both suits 
 are for the same matter. If he does neither, then the defend- 
 ant must set the plea down for argument. (52) But where the 
 proceedings in the former suit are exhibited before the Chan- 
 cellor, either by the averments of the plea or otherwise, he may 
 determine the matter without the delay of a reference to a 
 master. (53) 
 
 Where a suit is pending for the same cause in a court of 
 law of this state, all that the defendant can ask is an order 
 putting the complainant to his election whether he will pro- 
 ceed at law or in equity ; and the complainant will not be put 
 to his election unless the suit at law is for the same cause, and 
 the remedy afforded co-extensive and equally beneficial with 
 the remedy in equity. The granting or refusal of such applica- 
 tion is a matter of discretion in the court to which it is made. 
 (54) 
 
 It has already been shown- that the pendency of a suit be- 
 tween the same parties and for the same cause of action in a 
 foreign state is no bar to a subsequent one brought in this 
 state; the remedy of the defendant in such case is to apply to 
 the court in which the subsequent suit is brought to stay pro- 
 ceedings or to refuse final judgment until the foreign suit is' 
 determined. The granting or refusal of such application is a 
 matter of discretion in the court to which it is made. (55) 
 The Circuit Court of the United States for this district is not 
 a foreign court. (56) 
 
 Plea of Statute of Limitations. The statute of limitations 
 is a good plea in bar to a suit in equity, as it is at law. Where 
 the objection appears upon the face of the bill, it should be 
 
 (52) McEwan v. Broadhead, 11 N. J. Eq., 129; Griffing v. Griffing 
 Iron Co., 61 N. J. Eq., 269. 
 
 (53) Griffing v. Griffin Iron Co,, 61 N. J. Eq., 269; Van Houten v. 
 Stevenson, 68 N. J. Eq., 490; affirmed, 69 N. J. Eq., 835. 
 
 (54) Way V. Bragaw, 16 N. J. Eq., 213; Central R. R., &c. v. N. J. 
 West Line R. R. Co., 32 N. J. Eq., 67. 
 
 (55) Fulton V. Golden, 25 N. J. Eq., 353; Central R. R. Co. of N. J. 
 V. N. J. West Line R. R. Co., 32 N. J. Eq., 67; Mumford v. Equador 
 Development Co., 50 Atl., 476; Marsh v. Marsh's executors, 73 N. J. 
 Eq., 99-los; Fairchild v. Fairchild, 53 N. J. Eq., 678. 
 
 (56) Central R. R. Co. of N. J. v. N. J. West Line R. R. Co., 
 32 N. J. Eq., 67. 
 
Statute of Limitations. 253- 
 
 taken advantage of by demurrer, or it may be set up in the 
 answer. (57) If, however, the facts do not appear upon the 
 face of the bill, it should be taken advantage of by plea. (58) 
 But if the defense of the statute of limitations be not set up 
 in any way in the pleadings, it cannot avail. (59) 
 
 While to all actions covered by the statute the defense given 
 by it is as perfect an answer in equity as at law, it does not 
 embrace all actions; thus actions founded upon certain trusts 
 are not within it. (60) So where the right asserted or the 
 remedy sought is purely equitable, the applicability of the 
 statute depends to some extent upon the special character of 
 the equitable right asserted or remedy sought. If the right 
 claimed rests upon an express or direct and subsisting trust 
 clearly established, such as is not at all cognizable at law, but 
 which falls within the proper peculiar and exclusive jurisdic- 
 tion of the Court of Chancery, the statute of limitations is 
 held not to be a bar; and such trust will be enforced unless 
 there has been an express repudiation thereof and a holding 
 adverse to it, continued for the time fixed by the statute of 
 limitations. (61) 
 
 The reason underlying this rule is, that the possession of the 
 trustee, while the relation of trustee and cestui que trust is 
 admitted to exist, is deemed to be the possession of the cestui 
 que trust and coincident with the title of the latter ; but when 
 the trustee denies' the right of the cestui que trust, his posses- 
 
 (57) Peer v. Cookerow, 13 N. J. Eq., 136; Ruckman v. Decker, 
 23 N. J. Eq., 282; Partridge v. Wells, 30 N. J. Eq., 176; affirmed, 31 
 N. J. Eq., 362; Myers v. Fridenberg, 70 N. J. Eq., 3. 
 
 (58) Partridge v. Wells, 30 N. J. Eq., 176; affirmed, 31 N. J. Eq., 
 362. 
 
 (59) Ruckman v. Decker, 23 N. J. Eq., 283 ; Easton National Bank 
 V. American Brick Co., 70 N. J. Eq., 732 ; French v. Armstrong, 82 Atl., 
 
 lOI. 
 
 (60) Marsh v. Oliver, 14 N. J. Eq., 259; McClane v. Shepherd, 
 21 N. J. Eq., 76; Partridge v. Wells, 31 N. J. Eq., 362; Williams v. 
 Halliard, 38 N. J. Eq., 373; Holzer v. Thomas, 69 N. J. Eq., 515. 
 
 (61) Allen V. Woolley, 2 N. J. Eq., 209; Marsh v. Oliver, 14 N. J. 
 Eq., 259; McClane v. Shepherd, 21 N. J. Eq., 76; Partridge v. Wells, 
 30 N. J. Eq., 176; Comins v. Culver, 35 N. J. Eq., 94; Buckingham v. 
 Ludlum, 37 N. J. Eq., 137 ; Williams v. Halliard, 38 N. J. Eq., 373, 378 ; 
 Gutch V. Fosdick, 48 N. J. Eq., 3S3, 3S6: Smith v. Combs, 49 N. J. Eq., 
 420; Starkey v. Fox, 52 N. J. Eq., 758; affirmed, 53 N. J. Eq., 239; 
 Stimis V. Stiniis, 54 N. J. Eq., 17; Condit v. Bigalow, 64 N. J. Eq., 
 504; Holzer v. Thomas, 69 N. J. Eq., SiS; Campbell v. Perth Amboy, 
 etc.. Association, 76 N. J. Eq., 347. 
 
260 Pleas. 
 
 sion becomes adverse, and lapse of time for the statutory- 
 period may constitute a bar in equity. (62) The extent to 
 which effect is given to the act depends somewhat on the nature 
 of the equitable jurisdiction invoked; where the suit is based 
 on a legal right, and the appeal is to the auxiliary jurisdic- 
 tion of this court, and equitable aid is sought for the purpose 
 of removing the obstructions to complainant's legal right, de- 
 lay in the application for equitable aid will not ordinarily, or 
 in the absence of special equities, bar the equitable right unless 
 the legal right is barred; where the substantive right asserted 
 i's one as to which the jurisdiction of equity is concurrent with 
 that of law, the statute of limitations is a bar in equity as well 
 as at law. (63) And so the statute of limitations is a good plea 
 to a bill for an account of trust funds, where the trust is not 
 direct or express, but arjses merely by implication. (64) So 
 where defendant paid off a mortgage on her mother's land, 
 and the mother promised to execute a new mortgage to de- 
 fendant for the amount advanced, which she failed to do, the 
 defendant had a remedy at law by assumpsit to recover the 
 money so advanced, which was barred after six years, and 
 hence could not maintain a suit in equity to compel specific per- 
 formance of the contract to execute the mortgage and to fore- 
 close a lien on the land therefor, after the expiration of the 
 statutory period. (65) And so where in the case of a bill for 
 an account of profits of an estate received by the defendant 
 while the complainant was an infant it appeared that the de- 
 fendant had possession under an agreement constituting him 
 a trustee for the infant, and that the bill was not filed until 
 more than six years after the infant became of age, it was held 
 that the statute barred the action in equity, as it would have 
 barred a common law action of account, for the complainant 
 might have had his action of account at law, and there was, 
 therefore, no necessity of his seeking relief in equity. (66) In 
 this case Vice Chancellor Van Fleet said "the test then obvi- 
 
 (62) Dyer v. Waters, 46 N. J. Eq., 484; Stimis v. Stimis, 54 N. J. 
 Eq., 17. 
 
 (63) Buckingham v. Ludlum, 37 N. J. Eq., 137; Lindsley v. Dodd, 
 S3 N. J. Eq., 69; Reversed, 57 N. J. Eq., 334; Condit v. Bigalow, 64 
 N. J. Eq., 504 ; Mills v. Hendershott, 70 N. J. Eq., 258. 
 
 (64) McClane v. Sheplierd, 21 N. J. Eq., 76. 
 
 (65) Clark V. Van Cleef, 75 N. J. Eq., 152. 
 
 (66) Partridge v. Wells, 30 N. J. Eq., 176. 
 
Statute of Frauds. 261 
 
 ously prescribed by the rule is, had the suitor a remedy at 
 law, which he had lost? If the complainant, in this case, had 
 a complete remedy at law, which has been lost by lapse of 
 time, he is not entitled to the remedy he seeks here." (67) 
 
 On the other hand, where fifteen years after obtaining a 
 judgment the creditor files a bill to set asi.de a conveyance of 
 land made pending the suit in which the judgment was ob- 
 tained, the delay is no bar to the right to set the conveyance 
 aside, the bill being one for equitable aid to enforce a legal 
 right which is not barred. (68) So where a bill was filed by a 
 surviving partner against the widow of a deceased partner to 
 reach lands which the deceased partner had bought in his 
 wife's name, more than six years before, with partnership 
 funds, the bill was sustained on the ground that there was 
 not an adequate remedy at law, and that the statute of limita- 
 tions did not apply to a claim of exclusively equitable cogni- 
 zance. (69) 
 
 A plea of the statute of limitations need not, as above 
 stated, be accompanied by an answer where the bill does not 
 state any circumstances to take the case out of the statute, 
 such as fraud, etc. ; but if the bill should charge fraud which 
 had not been discovered within the period named by the statute, 
 the plea should be accompanied by an answer, answering and 
 denying the circumstances of fraud alleged in order to avoid 
 the bar. (70) 
 
 Statute of Frauds. Where the bill does not show upon 
 its face that the contract which is the subject of the suit was 
 invalid by the operation of the statute of frauds, the defendant 
 may plead the statute in bar of the suit. (71) The defense of 
 the statute of frauds will be waived, if not pleaded. (72) So 
 in cases of specific performance pf agreements, if the defend- 
 ant should, by his answer, admit the parol agreement, but 
 without insisting on the statute, the court will decree a. specific 
 performance on the ground that the defendant has thereby 
 
 (67) See also Smith v. Krueger, 71 N. J. Eq., 531, 536. 
 
 (68) Burne v. Partridge, 61 N. J. Eq., 434. 
 
 (69) Partridge v. Wells, 30 N. J. Eq., 176. 
 
 (70) Conover v. Wright, 6 N. J. Eq., 613. 
 
 (71) Story's Eq. PI., sec. 761. 
 
 (72) Van Duyne v. Vreeland, 12 N. J. Eq., 142; Force v. Dutcher, 
 18 N. J. Eq., 401 ; Tynan v. Warren, 53 N. J. Eq., 313-31S ; Fee v. Shar- 
 key, 59 N. J. Eq., 284; Gough v. Williamson, 62 N. J. Eq., 526. 
 
262 Pleas. 
 
 renounced the benefit of the statute. (73) So where on a bill 
 to specifically enforce a contract to sell real estate, made at 
 public auction, but not signed by defendant or her agent the 
 auctioneer, defendant's answer makes admissions as to the 
 contract, but fails to set up the statute of frauds, the contract 
 can be enforced against defendant so far as the admissions in 
 the answer extend. (74) 
 
 Practice When Complainant Conceives Plea to be Bad. 
 If the complainant conceives that the facts set up by the plea 
 show no defense and do not constitute a bar to his action, or 
 in other words, deems the plea to be bad, his proper coufse is 
 to set the plea down for hearing. (75) Or he may move to 
 strike it out under Rule 213.(76) So complainant may, by 
 motion to strike out, object to defendant's plea to the jurisdic- 
 tion and praying dismissal of the suit for want of service, and 
 the court may on that motion adjudge the plea to be bad. (77) 
 The Court of Chancery has inherent power to strike out a 
 frivolous plea. (78) 
 
 Where a cause is heard upon a plea, the inquiry is substan- 
 tially the same as if the plaintiff had demurred to- the plea. 
 The question is not whether the plea is true, but whether, if 
 true, it is a good defense. The subject of the inquiry is not the 
 mere technical form of the plea, but the sufficiency of its 
 averments to sustain the defense, whether it is good both in 
 form and substance, whether, assuming all the facts properly 
 set forth in the plea to be true, it presents a valid defense. (79) 
 
 (73) Dean v. Dean, 9 N. J. Eq., 425; Ashmore v. Evans, 11 N. J. 
 Eq., 151; Petrick v. Ashcroft, 20 N. J. Eq., ig8; Walker v. Hill, 21 
 N. J. Eq., 191; Tynan v. Warren, 53 N. J. Eq., 313; Mausert v. Chris- 
 tian Feigenspan, 68 N. J. Eq., 671. 
 
 (74) Gough V. Williamson, 62 N. J. Eq., 526. 
 
 (75) Davison v. Johnson, 16 N. J. Eq., 112; Moore v. Moore, 74 
 N. J. Eq., 733; notices of bringing on the argument of a plea must 
 be served at least iifteen days before such intended argument. Chan- 
 cery rule II. 
 
 (76) Mount V. Manhattan Co., 41 N. J. Eq., 211; Groel v. United 
 Electric Co., 69 N. J. Eq., 397-405; and see "Motion to Strike Out 
 Pleadings," page 28^, infra. 
 
 (77) Ewald V. Ortynsky, 78 N. J. Eq., 527. 
 
 (78) Moore v. Moore, 74 N. J. Eq., 733. 
 
 (79) Flagg V. Bonnel, 10 N. J. Eq., 82; Davison v. Johnson, 16 
 N. J. Eq., 112; Mount v. Manhattan Co., 41 N. J. Eq., 411; Miller 
 v. U. S. Casualty Co., 61 N. J. Eq., no; Griifing v. Griffing Iron Co., 
 61 N. J. Eq., 269; Hotovitsky v. Little Russian Greek, &c., Church, 
 78 N. J. Eq., 576. 
 
Hearing. 263 
 
 And so upon a hearing upon bill and plea the complainant, on 
 the hearing, is bound by all the facts pleaded, and the court 
 takes the uncontradicted part of the bill and the allegations 
 of the plea as true, and decides according to the right upon 
 the case thus presented. (80) When all the allegations of the 
 plea, being taken as true, do not make out a full defense, or 
 when necessary facts are to be gathered by inference alone, 
 the plea cannot be sustained. (81) 
 
 Practice When Complainant Conceives the Plea to be 
 Good, But Not True. If complainant conceives the plea to 
 be good if the facts therein alleged were true, but wishes to 
 deny the truth of such allegations, his pr'oper course is to 
 reply to and take issue upon the plea, and proceed to take 
 testimony as in case of an answer. (82) Where the corhplain- 
 ant has taken issue upon a plea by filing a replication thereto, 
 either party may enter the plea for argument at. the next or 
 any subsequent term of court. (83) When issue shall be joined 
 upon a plea, the defendant shall begin the taking of testimony, 
 and the same shall then proceed in the manner prescribed for 
 taking testimony in other cases. (84) But the time for com- 
 mencing and taking the same shall be one-third of the time 
 prescribed in the above rule. (85) 
 
 Hearing. The proceedings for bringing on a plea for 
 hearing including notice of hearing and proceedings at the, 
 hearing are the same as in the hearing of other causes and will 
 be considered in the chapter on hearing. (86) 
 
 Burden of Proof. The rule that the burden of proving 
 the facts alleged in the plea rests on the defendant is without 
 exception in the case of pleas purely affirmative. (87) The 
 
 (80) Groel V. United Electric Co. of N. J., 69 N. J. Eq., 397; S. C. 
 70 N. J. Eq., 616-620. 
 
 (81) Meeker v. Marsh, i N. J. Eq., ig8; Flagg v. Bonnel, 10 N. J. 
 Eq., 82. 
 
 (82) Chancery Act, sec. 24, page 27, supra; Davison v. Johnson, 16 
 N. J. Eq., 112; Moore v. Moore, 74 N. J. Eq., 733; for circumstances 
 under which the court will permit a complainant to withdraw his repli- 
 cation see "Pleas to the Jurisdiction," page 252, supra. 
 
 (83) Chancery rule 13. 
 
 (84) See rules 78, et seq., page 36, supra. 
 
 (85) Chancery rule 91, and see note 3 to sec,. 33, page 36, supra. 
 
 (86) See "Hearing," page 380, infra. 
 
 (87) Swayze v. Swayze, 37 N. J. Eq., 180; Babcock v. Standish, 
 S3 N. J. Eq., 376; Miller v. U. S. Casualty Co., 61 N. J. Eq., 110-115. 
 
264 Pleas. 
 
 principle that the burden is on the defendant to establish the 
 subject matter of his plea, does not, however, apply in case 
 of pleas styled negative, in which the burden is upon the com- 
 plainant. These latter pleas are, as we have seen, (88) in 
 some respects founded on allegations in the bill, and are some- 
 times called anomalous pleas, they consist mainly of denials of 
 substantial matters set forth in the bill. So where a supple- 
 mental bill was filed alleging that a settlement and release had 
 been obtained from complainant during his mental incapacity 
 to transact business, to which bill a plea was filed setting up 
 the release, the burden of proving complainant's incapacity 
 rested upon him. (89) Where a plea contains several distinct 
 averments, or allegations of fact, all the allegations must be 
 supported by the proofs, or the plea will be overruled as 
 false. (90) 
 
 Result of. Plea Allowed. Prior to the promulgation of 
 Chancery Rule 209-3,(91) it was a settled rule of equity plead- 
 ing, that when a complainant replied to a plea, joining issue 
 upon it, he admitted the sufficiency of the facts stated as a 
 defense, if they were proven to be true, as fully as if the plea 
 had been allowed upon argument, and it was held that the 
 determination of that issue was as a final disposition of the suit 
 as between the party filing the plea and the complainant who 
 joined issue thereon. The court would not inquire into the 
 materiality of the facts set up in the plea. If their truth were 
 established by the proofs, the complainant's bill would be dis- 
 missed as to the defendant who filed the plea, although the 
 matter stated in the plea contained in fact no valid defense to 
 the suit. If the defendant failed to prove the truth of the 
 plea at the hearing, the plea would be overruled as false, and 
 the complainant would be entitled to a decree according to his 
 case as stated in the bill. (92) 
 
 (88) See page 251, supra. 
 
 (89) Swayze v. Swayze, 37 N. J. Eq., 180; Babcock v. Standish, 
 53 N. J. Eq., 376-379. 
 
 (90) Flagg V. Bonnel, 10 N. J. Eq., 82-85 ; Miller v. U. S. Casualty 
 Co., 61 N. J. Eq., iio-iis; Hunt v. West Jersey Traction Co., 62 N. J. 
 Eq., 225; Fennimore v. Wagner, 73 N. J. Eq., 367. 
 
 (91) See page 265, infra. 
 
 (92) Meeker v. Marsh, i N. J. Eq., 198; Flagg v. Bonnel, 10 N. J. 
 Eq., 82-84; Miller v. U. S. Casualty Co., 61 N. J. Eq., no; Hunt v. 
 West Jersey Traction Co., 62 N. J. Eq., 225 ; Schoettle v. Henegen, 
 
Result if Plea Overruled. 265 
 
 By Rule 209-a of the Court of Giancery, promulgated Feb- 
 ruary I, 1910, it was provided that if issue be joined upon a 
 plea, its validity shall not be thereby admitted. Neither shall 
 the plea be overruled as false for failure of the defendant to 
 prove immaterial averments thereof. Upon the hearing of such 
 issue, the question shall be whether upon the material facts 
 pleaded, so far as substantiated by the proof, the complainant 
 ought to be precluded from having the discovery or relief 
 prayed for in the bill. If the facts pleaded be determined in 
 favor of the defendant, they shall avail him only so far as in 
 law and in equity they ought to avail him ; if they be determined 
 against the defendant, such determination shall avail the com- 
 plainant only so far as in law and in equity it ought to avail 
 him, and . shall not, as heretofore, entitle the complainant as 
 of course and without proof to the discovery or relief prayed 
 for by the bill. Nor shall the defendant be debarred as of 
 course from the privilege of answering the bill. (93) 
 
 If a plea is allowed, the complainant must pay the costs. (94) 
 
 Where a defendant files a plea which goes to the whole 
 equity of the bill, and a motion is afterwards made in the 
 cause which confesses the truth of the plea, the court may 
 deal with the cause as though an order had been made allow- 
 ing the plea. (95) 
 
 Result if Plea is Overruled. If the plea be overruled, no 
 other plea shall be thereafter received; but in such case the 
 defendant shall file his answer to the complainant's bill in 
 twenty days after such overruling, and if he fail to do so, the 
 said bill shall be taken as confessed. (96) When complainant 
 replies and takes issue upon the plea, the determination of that 
 issue is final, and if the plea is not well founded in fact, com- 
 plainant is entitled, without further proof to a final decree to 
 the extent of the court's jurisdiction to grant relief upon his 
 bill. (97) This was the rule prior to the promulgation of Rule 
 
 66 Atl., 922; Van Houten v. Stevenson, 68 N. J. Eq., 490; Fennimore 
 V. Wagner, 73 N. J. Eq., 367; Mackey v. Mackey, 63 Atl., 984. 
 
 (93) Chancery rule 209-a. 
 
 (94) Chancery Act, sec. 24, page 27, supra. 
 
 (95) Fulton V. Greacen, 44 N. J. Eq., 443. 
 
 (96) Chancery Act, sec. 24, page 27, supra. 
 
 (97) Miller v. U. S. Casualty Co., 61 N. J. Eq., no; Flagg v. 
 Bonnel, 10 N. J. Eq., 82-84; McEwan v. Broadhead, 11 N. J. Eq., 129; 
 
266 Pleas. 
 
 209a in 1910,(98) which rule as has been seen provides that 
 when a plea is overruled such determination shall avail the 
 complainant only so far as in law and in equity it ought to avail 
 him and shall not as heretofore entitle him without proof to 
 the discovery and relief prayed for by the bill. 
 
 If a plea be overruled, the defendant shall pay costs. (99) 
 
 Fennimore v. Wagner, 73 N. J. Eq., 367; Hunt v. West Jersey Traction 
 Co., 62 N. J. Eq., 225. 
 
 (g8) See page 265, supra. 
 
 (99) Chancery Act, sec. 24, page 27, supra; Hotovitsky v. Greek 
 Catholic Church, 78 N. J. Eq., 576. 
 
Demurrers. 267 
 
 CHAPTER XII 
 DEMURRERS. 
 
 Nature and Functions. A demurrer is an allegation by 
 the defendant which, admitting the matters of fact alleged by 
 the bill to be true, shows that, as they are therein set forth, 
 they are insufficient for the complainant to proceed upon, or to 
 oblige the defendant to answer ; or that for some reason appar- 
 ent on the face of the bill, or because of the omission of some 
 matter which ought to be contained therein, or for want of 
 some circumstance which, ought to be attendant thereon, the de- 
 fendant ought not to be compelled to answer. It therefore de- 
 mands the judgment of the court whether the defendant shall 
 be compelled to make answer to the plaintiff's bill or to some 
 certain part thereof.(i) A demurrer is, consequently, an an- 
 swer in law to the case made out by the bill, although not in a 
 technical sense an answer. (2) 
 
 A demurrer is a mode of defense to the bill only. It can 
 never be resorted to to settle the validity of a plea or an- 
 swer. (3) 
 
 Time to Demur. If a defendant wishes to demur to a 
 bill he must file his demurrer within twenty days from the re- 
 turn day of the subpoena, unless further time be granted. (4) 
 
 Affidavit and Certificate to be Annexed to Demurrer. 
 Every plea or demurrer in Chancery shall have annexed there- 
 to the affidavit of the defendant or defendants filing the same, 
 or of his or their agent in the suit, that the same is not inter- 
 posed for delay, but in good faith; and also the certificate of 
 counsel that he has perused the complainant's bill, and that 
 such plea or demurrer is well founded in point of law; and 
 
 (i) Mitford Eq. PI., 128; Davis v. Davis, 57 N. J. Eq., 252; if 
 the facts relied on as a defense appear on the face of the bill the ques- 
 tion should be raised by Demurrer ; Kelly v. Masionis, 82 Atl., 329. 
 
 (2) Van Dyne v. Vreeland, 11 N. J. Eq., 370. 
 
 (3) Flagg V. Bonnel, 10 N. J. Eq., 82 ; Travers v. Ross, 14 N. J. Eq., 
 254; Doane & Jones Lumber Co. v. Essex Building & Loan Co., 59 
 N. J. Eq., 142 ; Haberman v. Kaufer, 60 N. J. Eq., 271 ; Hanneman v. 
 Richter, 63 N. J. Eq., 753; Wilson v. American Palace Car Co., 63 
 N. J. Eq., 557- 
 
 (4) Chancery Act, sec. 20, page 24, supra, as amended by P. L., 1913. 
 
268 Demurrers. 
 
 every plea or demurrer filed without such affidavit and certifi- 
 cate may be treated as a nullity. (5) 
 
 Grounds of Demurrer. — Want of Jurisdiction. A want 
 of jurisdiction appearing on the face of a bill is ground of 
 demurrer. So a bill is demurrable on the ground that there is 
 an adequate remedy at law. (6) But a bill is not demurrable 
 simply because a court of law has concurrent jurisdiction; 
 while the Court of Chancery is reluctant to interfere in such 
 cases, and will not do so unless the administration of justice 
 will be thereby plainly facilitated, still where the case pre- 
 sented discloses a fraud by a fiduciary agent upon his principal, 
 and there is a question as to whether the principal may be re- 
 lieved in a court of law, a demurrer to the bill will be over- 
 ruled. (7) 
 
 An objection to the jurisdiction of the court, on the ground 
 that there is a perfect remedy at law, comes too late if pre- 
 sented for the first time at the hearing. The court, of its own 
 motion, may dismiss a bill at any stage of the cause on the 
 ground that the complainant has a remedy at law ; but where 
 the defendant has not raised the objection until after testimony 
 on the merits has been taken, the court in its discretion will 
 retain the cause if it is competent to grant the relief prayed, 
 and has jurisdiction of the subject matter. The defendant, 
 by refraining from raising at the first opportunity, the objec- 
 tion to the exercise of jurisdiction by the court, which objec- 
 tion, if sustained, would compel the complainant to commence 
 his litigation over again in another court, may well be deemed 
 to be stipulating or assenting to the proposition that the remedy 
 at law is not adequate and that,, therefore, the complainant's 
 case should be disposed of by the exercise of the jurisdiction 
 of this court. (8) 
 
 (5) Chancery Act, sec. 22, page 26, silpra. 
 
 (6) Gifford v. Thorn, 7 N. J. Eq., 90; Feigenspan v. Nizolek, 71 
 N. J. Eq., 382. 
 
 (7) Dawson v. Leschziner, 65 Atl., 449. 
 
 (8) Seymour v. Long Dock Co., 20 N. J. Eq., 396; ]|.ehigh Zinc & 
 Iron Co. V. Trotter, 43 N. J. Eq., 185 ; Coast Company v. Spring Lake, 
 S6 N. J. Eq., 615; aMrmed, 58 N. J. Eq., 586; Varrick v. Hkt, 66 N. J. 
 Eq., 442 ; Mertens v. Schlemme, 68 N. J. Eq., S44 ; Hoagland v. Supreme 
 Council, 70 N. J. Eq., 607; Feigenspan v. Nizolek, 71 N. J. Eq., 382; 
 Knikel v. Spitz, 74 N. J. Eq., 581 ; Van Horn v. Demarest, 76 N. J. Eq., 
 386. 
 
Want of Equity. 269 
 
 Want of Equity. It is a settled doctrine that whenever 
 there is no sufficient ground shown in the bill for the inter- 
 ference of a court of equity, the defendant may demur to the 
 .bill for want of equity. A demurrer for want of equity will 
 lie whenever it is clear that, taking the charges in the bill to 
 be true, it would be dismissed at the hearing; but it must be 
 founded on this, that it is an absolute, certain and clear proposi- 
 tion that it would be so dismissed. (9) So where it appears on 
 the face of a bill that defendants were non-residents at the 
 time the suit was commenced, and that the action does not 
 relate to any of the subjects in respect to which the court 
 is warranted in exercising jurisdiction over non-residents, a 
 demurrer for want of equity will be allowed. (10) So where 
 a bill -vyas filed by a customer against a stockbroker for an 
 accounting of gambling transactions in the purchase of stock 
 on margin, a demurrer thereto was sustained. ( 1 1 ) And de- 
 murrer lies for want of the allegation, when material, that 
 complainant is a bona fide purchaser. (12) But a bill to set 
 aside a deed, alleging that it was not intended to pass title 
 unless the purchase price was paid, and that such price was 
 not paid, and in the event that such relief should not be granted 
 seeking to enforce a vendor's lien on the land, is not demurrable 
 for want of equity. (13) And so where a bill charged that the 
 officers of a corporation were drawing excessive salaries, the 
 failure to state their names and their specific official designa- 
 tions would not affect the sufficiency of the bill as against an 
 objection of vagueness, no relief being sought on such allega- 
 tions. ( 14) 
 
 When a bill is insufficient on its face to support equitable 
 jurisdiction or relief, it should be demurred to, though defend- 
 
 (9) Vail V. C. R. R. Co., 23 N. J. Eq., 466; Redrow v. Sparks, 
 75 N. J. Eq., 396; a bill whicli fails to make a case, which, if admitted 
 or proved, will entitle the complainant to a decree, must be held bad 
 on demurrer; Kip v. Kip, 33 N. J. Eq., 213; where the averments of 
 a bill are ambiguous or capable of two constructions, the one favorable 
 to the defendant must be adopted because a pleading must be construed 
 most strongly against the pleader; Schuler v. Southern Iron & Steel 
 Co., 75 Atl., SS2. 
 
 (10) Edwards v. McClave, 55 N. J. Eq., 151; aMrtned ib., 822. 
 
 (11) Blessing v. Smith, 74 N. J. Eq., 593. 
 
 (12) Baldwin v. Richman, 9 N. J. Eq., 394. 
 
 (13) Holmes v. Holmes, 59 N. J. Eq., 449. 
 
 (14) O'Connor v. International Silver Co., 68 N. J. Eq., 67; affirmed 
 ib., 680. 
 
270 Demurrers. 
 
 ant may answer instead ; but if on final hearing the bill is found 
 insufficient, costs may be denied him through his failure to 
 demur and in that manner avoid the necessity of a hearing. (15) 
 
 Statute of Limitations and Laches. When the facts 
 stated in the bill show that the claim upon which it is founded 
 is barred by the statute of limitations or by the equitable pre- 
 sumption of payment in analogy to such statute, advantage of 
 the statute may be taken by demurrer. (16) So a presump- 
 tion of payment of a mortgage from lapse of time may be 
 raised by demurrer, and such a demurrer does not admit the 
 allegations of the bill that both the principal and interest of 
 the mortgage are now due and owing; for such allegations are 
 conclusions rather than averments. Any existing circum- 
 stances which would repel such presumption must be averred 
 in the bill. (17) When a bill of equity shows on its face that 
 complainant, by reason of lapse of time and of his own laches, 
 is not entitled to relief, the objection may be taken by de- 
 murrer. (18) But when the remedy is necessarily to be sought 
 in equity, while laches will be deemed a bar to the mainte- 
 nance of the suit, the circumstances set up in the bill may 
 so explain the delay as to deprive a defendant of that object- 
 ion on demurrer. (19) 
 
 Multifariousness. A demurrer will lie for multifarious- 
 ness. (20) 
 
 Objections Relating to Parties. If the want of proper 
 parties appears on the face of the bill, this constitutes good 
 
 (is) Redrew v. Sparks, 75 N. J. Eq., 396; so an objection to the 
 jurisdiction of the court on the ground that the remedy at law was 
 complete raised by the answer will be sustained at the hearing; Barka- 
 low V. Totten, 53 N. J. Eq., 573 ; and see "Want of Equity," page 273, 
 infra. 
 
 (16) Bird V. Inslee, 23 N. J. Eq., 363; Myers v. Fridenberg, 70 N. J. 
 Eq., 3 ; aifirmed, yi N. J. Eq., 776 ; Wallace v. Coward, 81 Atl., 739. 
 
 (17) Olden V. Hubbard, 34 N. J. Eq., 85; Stimis v. Stimis, 54 N. J. 
 Eq., 17. 
 
 (18) Dringer v. Jewett, 43 N. J. Eq., 701; Van Houten v. Van 
 Winkle, 46 N. J. Eq., 380; Quaivoli v. Italian Beneficial Society, 64 
 N. J. Eq., 205-209; Holzer v. Thomas, 69 N. J. Eq., 515. 
 
 (19) Gutch V. Fosdick, 48 N. J. Eq., 353; Farr v. Hauenstein, 69 
 N. J. Eq., 740 ; Lundy v. Seymour, 55 N. J. Eq., i ; Holzer v. Thomas, 
 69 N. J. Eq., SIS- 
 
 (20) See "Multifariousness," page 163, supra. 
 
Frivolous Demurrers. 271 
 
 grounds for demurrer. (21) So also where the non-joinder of 
 parties defendant appears upon the face of the bill. (22) 
 
 Defects in the Form of the Bill. Objections to the form 
 of the bill may be taken by demurrer ; so the want of a proper 
 affidavit to a bill required to be sworn to is a ground of de- 
 murrer, but it may also be taken advantage of at the hear- 
 ing. (23) So whether the executor of a deceased co-obligee 
 should be joined with the surviving obligee as complainant or 
 be made a party defendant to the suit, is a question of form 
 which should be raised upon demurrer. (24) So an objection 
 to a bill filed by a corporation that it does not aver that the 
 complainants are a corporation is a question of form which 
 cannot be raised under a general demurrer for want of 
 equity. (25) And so a charge in a bill of want of power by a 
 stockholder to contest the validity of an agreement made by 
 the directors, contained in a separate and distinct paragraph of 
 the bill, unconnected with the incidents and conditions of fact 
 under which the agreement was entered into, is demurrable 
 as presenting to the court for decision an abstract question of 
 law without reference to the particular facts of the case. (26) 
 
 Frivolous Demurrer. When a demurrer shall have been 
 filed which shall not be actually argued, or which upon argu- 
 ment appears to the Chancellor to be frivolous or intended 
 for the purpose of delay, the same shall be overruled as frivo- 
 lous, and the Chancellor shall not grant any order extending 
 the time to answer, unless upon full examination of the cir- 
 cumstances of the case it shall be made to appear to him that 
 evident injustice would be done without such extension ; and he 
 shall grant such extension only as may be absolutely necessary 
 with proper diligence to prepare an answer. (27) 
 
 (21) See "Multifariousness," page 163, supra. 
 
 (22) See "Objection for non-joinder of parties," page 134, supra. 
 
 (23) Mt. Holly, &c. Turnpike Co. v. Ferree, 17 N. J. Eq., 117, 
 and cases cited on page 122. 
 
 (24) Freeman v. Scofield, 16 N. J. Eq., 28. 
 
 (25) German Reformed Church v. Von Puechelstein, 27 N. J. 
 Eq., 30- 
 
 (26) Thompson v. Moxey, 57 N. J. Eq., 358. 
 
 (27) Chancery Act, sec. 21, page 25, supra. This right of the 
 Court of Chancery to overrule and suppress pleadings as sham and 
 frivolous would seem to be necessary for the due administration of 
 justice; such right to strike out sham and frivolous p'leas and demurrers 
 has been expressly affirmed by the Court of Errors and Appeals which 
 
272 Demurrers. 
 
 Classification of Demurrers. Demurrers are classified as 
 General and Special. A general demurrer goes to the sub- 
 stance of the bill, and in general terms assigns as ground of 
 demurrer that the bill contains no matter of equity whereon 
 the court can give complainant relief. (28) A special de- 
 murrer points out particularly the cause of demurrer, and is 
 used to reach any defect of form. (29) 
 
 Specifications of Causes of Demurrer. The Chancery 
 Rules provide that every demurrer, whether general or spe- 
 cial shall specify the ground or several grounds of demurrer. 
 (30) The practice of' requiring the statement of grounds for 
 demurrer appears to have arisen as early as 1585.(31) In 
 1654 the Court oi Kings Bench formulated in an order the 
 substantial provisions of that statute, and later (1705) it was 
 made more specific by the statute of 4 and 5 Anne. c. 16. In 
 1833 by Reg. Gen. Hil. Term, 4 William IV, the practice of 
 specifying causes or grounds was extended to every demurrer, 
 and the party filing it was required to state in the margin 
 thereof the matter of law intended to be argued thereunder. 
 This order of 1833 was embodied in the common law proced- 
 ure act of 1852, which in turn was followed by the judicature 
 act of 1875 ; and Order 28, Rule 2 of that act is the source 
 of our Chancery Rule 209.(32) The specification of grounds 
 of demurrer, as prescribed by the rule, is in effect a statement 
 in advance of the points of law intended to be argued there- 
 under; and a motion to strike out such assigned causes of 
 demurrer is unwarranted. (33) 
 
 The design of this rule is to secure greater fairness and 
 clearness in discussing questions arising on general demurrer 
 than could be had under the old practice, by making it the 
 duty of a defendant when he files his demurrer to make such 
 
 has moreover held that an order striking out a demurrer as frivolous 
 is not reviewable. Stanbury v. Baker, 55 N. J. Eq., 270; Brown v. 
 Warden, 44 N. J. L., 176; Mershon v. Castree, 57 N. J. L., 484, and see 
 also "Motion to strike out Pleadings," page 287, infra. 
 
 (28) 16 Cyc, 271. 
 
 (29) 16 Cyc., 272, and see "Defects in form of bill," page 271, supra. 
 
 (30) Chancery rule, 209. 
 
 (31) St. 27 Eliz. c, S- 
 
 (32) Board of Railroad Commissioners v. United N. J. R. R. & 
 Canal Company, 74 Atl., 315. 
 
 (33) McCarter v. United N. J. R. R. Co., 76 N. J. Eq., 323. 
 
Specification of Causes. 273- 
 
 a disclosure of the ground of his demurrer as will give reason- 
 able notice to the complainant of the grounds upon which the 
 sufficiency of his bill is to be called in question, to the end 
 that he . may prepare 'to meet the attack which is made, and 
 not waste his time in preparing tO' meet attacks which are not 
 made. (34) So objections of form for want of certainty come 
 within the operation of the rule requiring specifications. (35) 
 And the grounds of demurrer must be specified even where 
 the defect in the bill is plain, if that defect be collateral to the 
 main issue ; as where defendant under a general demurrer 
 relies upon laches as' a cause appearing upon the face of the 
 bill. (36) So where the existence of an adequate remedy at 
 law is made the ground of demurrer to a bill in Chancery, the 
 objection must be specified as a cause of demurrer, and it 
 cannot be made use of under a general demurrer for want of 
 equity. (37) 
 
 A defendant demurring to an original bill, but failing to 
 present any existing grounds for demurrer, thereby waives any 
 right of objection based thereon against the bill as amended, 
 to the same extent as if he had pleaded over. (38) 
 
 A cause of demurrer based upon a mis-statement of the 
 effect of the bill will be overruled. (39) So an averment that 
 the statements contained in the bill are made upon information 
 and belief does not constitute ground of ^demurrer. (40) And 
 so a demurrer on the ground that the bill does not present a 
 case sufficient for answer or relief is insufficient, and will be 
 stricken out on motion. (41) 
 
 Demurrers for Want of Equity. We have seen that the 
 object of the rule is to give reasonable notice to the complain- 
 
 (34) Essex Paper Co. v. Greacen, 45 N. J. Eq., 504; Van Hoiiten 
 V. Van Winkle, 46 N. J. Eq., 380; Demarest v. Terhune, 62 N. J. 
 Eq., 336. 
 
 (35) Goldengay v. Smith, 52 Atl., 11 16. 
 
 (36) Van Houten v. Van Winkle, 46 N. J. Eq., 380; Gutch v. 
 Fosdick, 48 N. J. Eq., 353 ; Holmes v. Holmes, 59 N. J. Eq., 449 ; 
 Attorney General v. C. R. R. of N. J., 61 N. J. Eq., 259-268; Safford 
 V. Barber, 74 N. J. Eq., 352. 
 
 (37) Sai5ford v. Barber, 74 N. J. Eq., 352. 
 
 (38) Pryor v. Gray, 70 N. J. Eq., 413; aMrmed, 72 N. J. Eq., 436. 
 
 (39) Larter v. Canfield, 59 N. J. Eq., 461. 
 
 (40) Marsh v. Marsh, 16 N. J. Eq., 391. 
 
 (41) Bishop V. Waldron, 56 N. J. Eq., 484; affirmed, 58 N. J. Eq., 
 583. 
 
274 Demurrers. 
 
 ant on the grounds upon which the sufficiency of his bill is 
 to be called in question, to the end that he may prepare to 
 meet the attack which is made, and that he may not waste 
 his time in preparing to meet attacks which are not made. It 
 follows that under the old form of demurrer "for want of 
 equity," demurrant may raise all objections to the complain- 
 ant's case, on the merits' as presented in the bill of complaint, 
 which are reasonably apparent upon the bill and demurrer. 
 No exact and rigid rule can, from the nature of the case, be 
 laid down on this subject. 
 
 It was not the intention of the rule to compel the demurrant 
 to submit to his adversary his brief, or any particulars of his 
 argument; the purpose was to notify the complainant only of 
 the general subject matter of the argument. (42) It follows, 
 therefore, that a single statement of want of equity, in the 
 usual language of a general demurrer, will constitute a suffi- 
 cient specification of the ground of demurrer in cases where 
 the court finds, on looking at the complainant's bill, that 
 his right to relief is doubtful or uncertain, or, in the words 
 of Sir George Jessel "If the complainant's equity is not obvious 
 at first sight." Where, however, the .defect is obscure or lat- 
 ent to such an extent that the court on inspecting the bill can- 
 not readily discern it, the demurrant will be required to make 
 a more explicit statement of the ground on which his de- 
 murrer is founded. (43) 
 
 In other words where all the facts alleged in the bill taken 
 together make a case in which it is doubtful if the complain- 
 ant is entitled to relief, the bill may be assailed for want of 
 equity under a general demurrer; but where the want of 
 equity springs out of some cause which can be distinctly stated 
 
 (42) Demarest v. Terhune, 62 N. J. Eq., 663, and see "Want of 
 Equity," supra. 
 
 (43) Vail V. C. R. R. Co., 23 N. J. Eq., 466; Essex Paper Com- 
 pany V. Greacen, 45 N. J. Eq., 504; Van Houten v. Van Winkle, 46 
 N. J. Eq., 380; Johnes v. Cutwater, 55 N. J. Eq., 398-408; Bishop v. 
 Waldron, 56 N. J. Eq., 484; afHrmed, 58 N. J. Eq., 583; Latter v. 
 Canfield, 59 N. J. Eq., 461 ; Holmes v. Holmes, 59 N. J. Eq., 449 ; 
 Parker v. Stevens, 61 N. J. Eq., 163 ; Goldengay v. Smith, 62 N. J. Eq., 
 354 ; Demarest v. Terhune, 62 N. J. Eq., 663 ; Travellers Ins. Co. v. 
 Moses, 63 N. J. Eq., 260; Attorney General v. C. R. R. of N. J., 61 
 N. J. Eq., 259; Waker v. Booraem, 68 N. J. Eq., 34s; Steelman v. 
 Wheaton, 72 N. J. Eq., 626, Safford v. Barber, 74 N. J Eq., 352; 
 McCarter v. United N. J. R. R. Co., 76 N. J. Eq., 323; Couse v. Col- 
 umbia Powder' Mfg. Co., 33 Atl., 297. 
 
Want of Equity. 275 
 
 in the demurrer as an intelligible proposition, whether it is 
 collateral to the bill, strictly speaking, or whether involved in 
 the main case, then the cause of demurrer must be specified. 
 (44) But where on the statements of a bill it cannot be sat- 
 isfactorily determined whether complainants have lost, by 
 acquiesence, their right to claim relief, and a general de- 
 murrer is filed, it must be overruled. (45) 
 
 On general demurrer to a bill for want of equity and for 
 the reason that complainant has an adequate remedy at law 
 for the injuries complained of, if a cause of action cognizable 
 in a court of equity, and for which there is no adequate remedy 
 at law, is presented to the mind by the perusal of the bill, 
 then the demurrer must be overruled, even though the bill 
 may contain a large number of defects, any one of which 
 would have been fatal had it been pointed out specifically in 
 the demurrer. (46) 
 
 Where the pertinent fact alleged in the bill of complaint as 
 ground for relief raises a doubt as to the complainant's right 
 thereto, a general specification of want of equity is sufficient. 
 (47) So where a bill was filed by the equitable assignee of 
 a contract to recover money payable to the assignor upon the 
 completion of such contract, and the bill did not show that 
 such contract had been completed, it was held that such defect 
 in the bill was sufficiently pointed out by a general demurrer 
 for want of equity. (48) And the same rule was applied to 
 a bill filed by an administrator c. t. a. against the original 
 executor of his testator for negligence in failing to gather in 
 the assets of said testator. (49) And so alsO' where the bill 
 on its face shows that necessary parties have not been joined 
 in the suit. (50) 
 
 It has already been seen that where the defect or infirmity 
 on which the demurrer is founded is obscure or latent to such 
 an extent that the court cannot on inspecting the bill readily 
 
 (44) Safford v. Barber, 74 N. J. Eq., 352. 
 
 (45) Hoxsey v. N. J. Midland R. R. Co., 33 N. J. Eq., 119. 
 
 (46) Stevenson v. Morgan, 63 N. J. Eq., 707. 
 
 (47) Essex Paper Co. v. Greacen, 45 N. J. Eq., 504; Steelman v. 
 Wheaton, 72 N. J. Eq^, 626. 
 
 (48) Goldengay v. Smith, 62 N. J. Eq., 354. 
 
 (49) Parker v. Stevens, 61 N. J. Eq., 163. 
 (so) Johnes v. Cutwater, 55 N. J. Eq., 398. 
 
276 Demurrers. 
 
 discern it, then the rule requires the demurrant to point out 
 by a plain statement the specific ground on which his demurrer 
 is founded. (51) Therefore, where to a bill filed to enjoin 
 defendant from trespassing upon his lands the defendant ob- 
 jects that the allegation of title is insufficient, such objection 
 cannot be made upon a general demurrer to the bill for want 
 of equity. (52) So where a bill is filed under a statute, and 
 the objection of demurrant is that the bill does not make cer- 
 tain allegations required by the statute, such objection must 
 be specified in the demurrer. (53) So a demurrer to a bill,, 
 the subject matter of which is within the jurisdiction of equity, 
 on the ground of want of equity, is too indefinite to raise the 
 objection that the remedy at law is' adequate. (54) 
 
 Under a general demurrer for want of equity, no objection 
 for want of form can properly be raised. An objection of 
 form must be made by special demurrer, and must specify 
 the defect with reasonable certainty and clearness. (55) So 
 where the general subject matter of the complainant is mani- 
 festly of equitable cognizance, if the demurrant stands on 
 sharp points relating to the form of language used to convey 
 the complainant, rather than on the substance of the com- 
 plaint itself, he should be required to specify distinctly all 
 the imperfections of that class upon which he intends to rely. 
 
 (56) So the omission of defendants' names from the prayer 
 for answer cannot be taken advantage of by general demurrer. 
 
 (57) So it has been seen where a bill is defective because it 
 does not set out the facts on which complainant's claim of 
 title rests, it cannot be attacked by a general demurrer. (58) 
 Advantage of defendant's failure properly to state the particu- 
 
 (51) See page 272, supra. 
 
 (52) Wilson V. Hill, 46 N. J. Eq., 367. 
 
 (53) Bishop V. Waldron, 56 N. J. Eq., 484; aMrtwd, 58 N. J.. 
 Eq., 583. 
 
 (54) Knikel v. Spitz, 74 N. J. Eq., 581. 
 
 (55) Marsh v. Marsh, 16 N. J. Eq., 391; Miller v. Jamison, 24, 
 N. J. Eq., A-^;' Reversed, 27 N. J. Eq., 581; Wilson v. Hill, 46 N. J. 
 Eq., 367. 
 
 (56) Stevenson v. Morgan, 63 N. J. Eq., 707. 
 (.57) Boon V. Pierpont, 28 N. J. Eq., 7. 
 
 (58) Wilson V. Hill, 46 N. J. Eq., 367. 
 
Speaking Demurrers. 277 
 
 lar grounds of demurrer may be taken advantage of by motion 
 to strike out the demurrer. (59) 
 
 Demurrer Ore Tenus. The rigor requiring the grounds 
 of demurrer to be accurately stated is moderated in modern 
 practice by permitting a defendant who has filed a demurrer 
 sufficient in form to point out and argue on the hearing 
 grounds of demurrer in addition to those formally assigned. 
 This is termed assigning causes of demurrer ore tenus. (60) 
 So where a demurrer is put in to the whole bill for causes 
 assigned on the record, if those causes are overruled, the de- 
 fendant will be allowed to assign other causes ore tenus at 
 the argument ; but the demurrer ore tenus must be for the 
 same cause which covers the whole extent O'f the demurrer. 
 (61) So misjoinder may be assigned as a cause for demurrer 
 ore tenus at the argument, though a general demurrer for 
 want of equity be overruled. (62) And so under a general 
 demurrer for want of equity, a demurrer ore tenus may be 
 made for want of parties. (63) 
 
 Speaking Demurrers. A demurrer can only be founded 
 on a fact or omission appearing in the bill. It cannot set 
 up a fact or omission not appearing in the bill, and thereupon 
 demur. (64) Matters of defense not affirmatively appearing 
 on the face of the bill must be brought into the record by plea 
 or answer; a demurrer will not lie. (65) A demurrer which 
 states facts which do not appear upon the face of the bill is 
 what has been emphatically called a speaking demurrer; that 
 is, a demurrer where a new fact is introduced to support it. 
 (66) A demurrer which sets up new facts not contained in 
 the bill must be overruled as a speaking demurrer. (67) So 
 when the demurrant, by a mis-statement of the allegations of 
 
 (59) Essex Paper Co. v. Greacen, 45 N. J. Eq., 504; Bishop v. 
 Waldron, 56 N. J. Eq., 484-486; see also McCarter v. United N. J. 
 R. R. Co., 76 N. J. Eq., 323- 
 
 (60) Action V. Shultz, 69 N. J. Eq., 6. 
 
 (61) Barrett v. Doughty, 25 N. J. Eq., 379. 
 
 (62) Barrett v. Doughty, 25 N. J. Eq., 379. 
 
 (63) Stillwell V. McNeely, 2 N. J. Eq., 305; Johnes v. Cutwater, 
 55 N. J. Eq., 398-408; Van Orden v. Van Orden, 41 AtL, 671. 
 
 (64) Black V. Shreeve, 7 N. J. Eq., 440. 
 
 (65) Riley V. Hodgkins, 57 N. J. Eq., 278. 
 
 (66) Story's Eq. PI., sec. 448. 
 
 (67) McDevitt V. Connell, 71 N. J. Eq., 119. 
 
278 Demurrers. 
 
 the bill demurred to introduces a new statement of facts into 
 the record, and on the facts thus brought in by himself demurs 
 to the bill, his pleading is a speaking demurrer and cannot be 
 sustained. (68) If, however, the statements of new 'facts in- 
 corporated into a speaking demurrer can be rejected as' sur- 
 plusage, and the demurrer sustained without regard to such 
 new facts the court will sometimes pursue this course. (69) 
 So on a demurrer to a bill by a judgment creditor to set aside 
 a conveyance by the debtor as fraudulent, the sufficiency of 
 the bill must be determined on the facts set up therein as 
 to the judgment, and a statement of the demurrer as to other 
 facts alleged to be the foundation of the judgment cannot be 
 considered. (70) 
 
 Joint Demurrers. A demurrer joined in by two defend- 
 ants may be good as to one of the defendants demurring, and 
 bad as to the other. (71) But where a demurrer is joined in 
 by two defendants jointly, and is not specified to be "joint 
 and several," and the demurrer is found to be bad as to one 
 of the demurrants', the other demurrant stands in the same 
 position with him; and the demurrer must, therefore, fail, 
 unless good as to both. (72) 
 
 Demurrer Incorporated in Answer. A defendant cannot 
 answer and demur to the same part of a bill. Under special 
 circumstances, however, he may answer a bill and pray for 
 the benefit of a demurrer for want of equity jurisdiction ; as 
 where the answer and final hearing are necessary to accurately 
 determine the question of jurisdiction. (73) 
 
 A paragraph in an answer, praying for the benefit of a 
 demurner, may or may not be regarded as material by reason 
 of special circumstances which may or may not enter 
 into individual cases. When a bill is insufficient on its face to 
 
 (68) Larter v. Canfield, S9 N. J. Eq., 461 ; Teeter v. Veitch, 66 N. J. 
 Eq., 162; Ivins v. Jacob, 69 N. J. Eq., 643; Grahatn v. Spence, 71 N. J. 
 Eq., 183. 
 
 (69) McDevitt V. Connell, 71 N. J. Eq., 119; Graham \. Spence, 
 71 N. J. Eq., 183. 
 
 (70) McDevitt V. Connell, 71 N. J. Eq., 119. 
 
 (71) I Daniel's Ch. Pr., page 585. 
 
 (72) I Daniel's Ch. Pr., 584, and cases cited in note 7. Bro'wn v. 
 Tallman. S4 Atl., 457. 
 
 (73) Redro-w v. Sparks, 75 N. J. Eq., 396; but see Bird v. Magowan, 
 43 Atl., 278. 
 
Demurrer and Answer. 279 
 
 support equitable jurisdiotion or relief, it should be demurred 
 to. Defendant may, in such case, answer, but if on final hear- 
 ing the bill is found insufficient, costs as has been seen may be 
 denied to defendant by reason of his failure to demur, and 
 in that manner avoid the necessity of a hearing. Cases may 
 arise, however, in which the jurisdiction of a court of equity 
 can only be accurately measured by the ascertainment of 
 matters which may be appropriately contained in an answer. 
 Thus, a court of equity has jurisdiction to enforce a legal 
 right, the existence of which is clear and not in substantial 
 dispute. But the jurisdiction fails when it is made to appear 
 that the legal right is not clear, either by reason of substantial 
 dispuit^ touching the fact on which it is based, or uncertainty 
 touching the legal rules on which the right is claimed. In 
 cases of this class, an answer and final hearing may be neces- 
 sary to accurately determine the question of jurisdiction. The 
 propriety of a prayer, in an answer in a case of this nature, 
 for the benefit of a demurrer for want of equitable jurisdic- 
 tion, is manifest, and has been recognized by our court of 
 errors and appeals. (74) So the defendant may claim, by 
 the answer, the same benefit that he would have been entitled 
 to if he had demurred to the bill or pleaded in his answer in 
 bar to the matter alleged ; but in suth case it is only at the 
 hearing of the cause that such benefit can be insisted upon. 
 He will then, however, in general be entitled to the same, 
 advantage by this mode of defense that he would have had if 
 he had adopted the more concise mode of demurring or plead- 
 ing- (75) 
 
 (74) Todd V. Staats, 60 N. J. Eq., 507-513; Outcalt v. Helme Co., 
 42 N. J. Eq., 665-667; Redrow v. Sparks, 75 N. J. Eq., 396; but where 
 in a suit to compel the removal of obstructions from an alleged street 
 and to construct a railroad crossing defendant by answer denied com- 
 plainant's right to equitable relief and claimed the benefit of a demurrer, 
 it did not thereby deny the court's jurisdiction to grant relief before 
 the establishment of a disputed title at law, so that the bill would not 
 be dismissed but would be permitted to stand until the establishment 
 of complainant's title at law; Trustees v. West Shore R. R. Co., 82 
 Atl., 319. 
 
 (75) Giiiford V. Thorn, 7 N. J. Eq., 90; Veghte v. Raritan Water 
 Power Co., 19 N. J. Eq., 142; Reversed, 21 N. J. Eq., 463; Reed v. 
 Cumberland Ins. Co., 36 N. J. Eq., 146-152; Todd v. Staats, 60 N. J. 
 Eq., 507 ; Outcalt v. Helm Co., 42 N. J. Eq., 665 ; Bennett v. Bennett, 
 63 N. J. Eq., 306; where defendant fully answered the bill and claimed 
 the benefit of the facts as if demurred to the demurrer, so far as it 
 relies on facts stated in the bill which have been answered, must be 
 
280 Demurrers. 
 
 And so an answer to a bill in equity, admitting its sub- 
 stantial allegations, but denying complainant's right to equit- 
 able relief, and claiming the benefit of such objection as though 
 raised by demurrer, is in effect a demurrer to the bill; (76) 
 and a bill filed for the recovery of definitely ascertained sums 
 of money, and showing no occasion for an accounting, nor 
 any breach of trust, fraud, or other element of equity juris- 
 diction, will be dismissed on the ground that adequate remedy 
 exists at law, where the answer of the defendant prays on 
 this ground the same relief as though he had demurred. (77) 
 But a paragraph in an answer to a cross bill, praying the 
 benefit of a demurrer, cannot be treated as a demurrer to the 
 sufficiency of the cross bill, where it fails to comply wiih the 
 provisions of the act requiring a demurrer to have annexed 
 thereto an affidavit that it is not interposed for the purpose 
 of delay, and a certificate that it is well founded. (78) 
 
 If a paragraph in an answer praying the benefit of a de- 
 murrer is immaterial to the case, it will be deemed impertinent, 
 and may be stricken out on motion. (79) 
 
 Setting Down Demurrer for Hearing. A demurrer must 
 be noticed and set down for argument for the next term, by 
 the party demurring, within ten days after the expiration of 
 the time limited for demurring. (80) Notice of argument of 
 a demurrer must be served at least fifteen days before such 
 intended argument. (81) 
 
 What is Considered on the Hearing. On the hearing the 
 court looks only to the facts stated in the bill, and for defects 
 appearing on the face thereof. (82) The case must be de- 
 considered as overruled by the answer and the questions of law raised, 
 by it must be determined at the final hearing, on the facts disclosed 
 by the evidence in support of the answer ; Goodbody v. Delaney, 83 
 Atl., 988. 
 
 (76) Bennett v. Bennett, 63 N. J. Eq., 306. 
 
 {■]■]) Thiefes v. Mason, 55 N. J. Eq., 457. 
 
 (78) Redrow v. Sparks, 75 N. J. Eq., 396. 
 
 (79) Redrow v. Sparks, 75 N. J. Eq., 396. 
 
 (80) Chancery Act, sec. 20, page 24, supra. 
 
 (81) Chancery Rule No. 11; the proceedings at the hearing are 
 the same as in other causes and are fully considered in the chapter on 
 "Hearing," page 380, infra. 
 
 (82) See "Nature and function of Demurrer," page 267, supra-. 
 
Admissions. 281 
 
 cided on the issue thus raised. (83) So where defendant de- 
 murs to a bill to enforce a parol agreemenit within the statute 
 of frauds, but which alleges -part performance to avoid the 
 same, the court must determine whether the facts relied oh to 
 establish part performance, and which are admitted by the 
 demurrer, do in fact constitute part performance. (84) At 
 the argument demurrant will be confined to the grounds of 
 demurrer as stated by him. (85) A demurrer cannot be de- 
 feated by interpolating suggested amendments into the bill 
 at the time of the hearing. (86) And the filing of a cross bill 
 after demurrer to a bill of complaint does not prevent the 
 court from considering whether the bill is demurrable. (87) 
 
 Admissions by Demurrer. A general demurrer admits 
 the truth of all the material allegations of the complainant's 
 bill that are well pleaded. (88) And if a fact is stated any- 
 where in the stating part of the bill with legal certainty, and 
 is material, it is well pleaded, and is, therefore, admitted by 
 the demurrer. (89) A demurrer containing a protestation of 
 the truth of the facts, while thus qualifiedly admitting them, 
 is not bad as a denial, but is good in form. (90) 
 
 A demurrer does not admit an assertion in the nature of 
 an argument or inference based on facts pleaded, nor in gen- 
 eral any allegations in the nature of legal conclusions ; so 
 where a bill alleges as a fact that a check was paid, and then 
 proceeds to detail the manner of payment, if the circumstances 
 appealed to to show its payment do not establish that fact, 
 the allegation amounts to nothing. (91) And so where in a bill 
 filed to foreclose a mortgage it appears from the express alle- 
 
 (83) Mutual Reserve Fund Life Association v. Bradbury, 53 N. J. 
 Eq., 643 ; see also "Nature and function of Demurrer," page 267, supra. 
 
 (84) Van Dyne v. Vreeland, 11 N. J. Eq., 370. 
 (8s) Yard v. Ocean Beach, 48 N. J. L., 375. 
 
 (86) Mutual Reserve Fund Life Association v. Bradbury, 53 N. J. 
 Eq., 643. 
 
 (87) Bennett v. Bennett, 63 N. J. Eq., 306-307. 
 
 (88) Smith v. Allen, i N. J. Eq., 43; Goble v. Andruss, 2 N. J. 
 Eq., 66; Force v. Duteher, 17 N. J. Eq., 165; McCarter v. United 
 N. J. R. R. Co., 75 N. J. Eq., 158; Reversed, 76 N. J. Eq., 323. 
 
 (89) Paterson & H. R. R. Co. v. Jersey City, 9 N. J. Eq., 434. 
 
 (90) McCarter v. United N. J. R. R. Co., 75 N. J. Eq., 158; 
 Reversed, 76 N. J. Eq., 323. 
 
 (91) Redmond v. Dickerson, 9 N. J. Eq., 507. 
 
282 Demurrers. 
 
 gation of the bill that no payment had been made on the mort- 
 gage for more than twenty-three years, but the bill alleges that 
 both the principal and interest. of such mortgage are due, a 
 demurrer to the bill on the ground that a presumption of pay- 
 ment has arisen by lapse of time does not admit the allegations 
 of the bill thait both principal and interest are due ; such an 
 allegation is a conclusion, rather than an allegation of fact. 
 (92) Upon the same principle as already seen, it has been 
 held that where a bill filed to enforce a parol agreement void 
 under die statute of frauds sets up facts which it alleges con- 
 stitute a part performance sufficient to remove the bar of the 
 statute, a demurrer to such bill does not admit the part per- 
 formance, but only the facts alleged, and the court must deter- 
 mine whether the facts alleged constitute such a part perform- 
 ance as will remove the bar of the statute. (93) And so 
 although ordinarily an allegation in a bill that a roadway is a 
 private right of way and not a public street would be deemed 
 an allegation of fact, yet where a bill alleges facts which show 
 that the roadway is a public highway subjected to a public 
 easement of travel, an averment in the bill that it is not a 
 public highway may be taken as a mere statement of an erron- 
 eous legal conclusion, not admitted by demurrer. (94) And 
 where the allegations of a bill in equity are based on informa- 
 tion and belief, a demurrer thereto is not an admission of 
 the facts so pleaded. (95) 
 
 Demurrer Too Broad. When a demurrer is too exten- 
 sive, or bad in part, it must be wholly overruled. So a de- 
 murrer to a whole bill must be overruled if all the facts stated 
 in the bill, considered together, entitle the complainant to some 
 kind of relief. (96) So a demurrer to several parts of a bill 
 
 (92) Olden V. Hubbard, 34 N. J. Eq., 85; Stimis v. Stimis, 54 
 N. J. Eq., 17. 
 
 (93) Van Dyne v. Vreeland, 11 N. J. Eq., 370. 
 
 (94) Sullivan v. Browning, 67 N. J. Eq., 391. 
 
 (95) Trimble v. American Sugar Refining Co., 61 N. J. Eq., 340; 
 Schuler v. Southern Iron & Steel Co., 75 Atl., 552; Huselton & Co. v. 
 Durie, ^^ N. J. Eq., 437. 
 
 (g6) Cutwater v. Berry, 6 N. J. Eq., 63 ; Vandeveer v. Stryker, 
 8 N. J. Eq., 17s; Banta v. Moore, 15 N. J. Eq., 97; Metier v. Metier, 
 18 N. J. Eq., 270 ; affirmed, 19 N. J. Eq., 457 ; Brownlee v. Lockwood, 
 20 N. J. Eq., 239; Durling v. Hammar' 20 N. J. Eq., 220; Davison v. 
 Perrine, 22 N. J. Eq., 87 ; Vail v. Central R. R. Co., 23 N. J. Eq., 466 ; 
 Garrison v. Technic Electrical Works, 55 N. J. Eq., 708-722; Larter v. 
 
Demurrer too Broad. 283 
 
 will not be sustained if, upon any of the parts to which the 
 demurrer is addressed, the complainant is' entitled to relief. 
 (97) So where a bill sets up a sufficient ground of equitable, 
 relief as to title of part of certain premises, and none as to 
 another part, and would be demurrable if the demurrer had 
 been confined to the latter part, S general demurrer will not 
 lie. (98) 
 
 A general demurrer will not lie to a bill which presents a 
 case in which the ligitimate proof may be such as to call for 
 a decree in favor of the complainant. (99) And so where the 
 demurrer is general to the whole bill, and there is any part, 
 either as to the relief or the discovery, to which the defend- 
 ant ought to put in an answer, the demurrer, being entire, 
 must be overruled. ( 100) And sO' where the bill exhibits a 
 right to equitable relief and a prayer for a decree accordingly, 
 a demurrer will not be sustained because relief may not be 
 given in one or more special modes suggested by the prayer. ( i ) 
 So a general demurrer to a bill on the ground of multifarious- 
 ness, which is not sustained as to the only part which makes 
 it multifarious,' will be overruled. (2) So a demurrer not con- 
 fined to a part of the bill on which no relief can be decreed, 
 but covering the whole bill, is too btoad ; and if the bill shows 
 one sufficient ground for relief, the demurrer must be over- 
 ruled. (3) And so on a general demurrer to the whole bill 
 for want of parties defendant, if any one of the several claims 
 on which the bill is based appears in the bill to be a claim 
 
 Canfield, 59 N. J. Eq., 461 ; Cole v. Cole, 69 N. J. Eq., 3 ; Meyers v. 
 Schuman, 31 Atl., 460. 
 
 (97) Black V. Black, 27 N. J. Eq., 664-666; Larter v. Canfield, 59 
 N. J. Eq., 461. 
 
 (98) Durling v. Hatntnar, 20 N. J. Eq., 220'. 
 
 (99) Vail V. Central R. R. Co., 23 N. J. Eq., 466; Drummond v. 
 Westervelt, 24 N. J. Eq., 30. 
 
 (100) Miller v. Ford, I N. J. Eq., 358; Cutwater v. Berry, 6 N. J. 
 Eq., 63 ; Vandeveer v. Stryker, 8 N. J. Eq., 175 ; Davison v. Perrine, 
 22 N. J. Eq., 87; Vail V. Central R. R. Co., 23 N. J. Eq., 466; Drum- 
 mond V. Westervelt, 24 N. J. Eq., 30 ; Romaine v. Hendrickson, 24 N. J. 
 Eq., 231 ; Reading v. Stover, 32 N. J. Eq., 326 ; Larter v. Canfield, 
 59 N. J. Eq., 461 ; Holmes v. Holmes, 59 N. J. Eq., 449. 
 
 (i) Garrison v. Technic Electrical Works, 55 N. J. Eq., 708-721. 
 
 (2) Brownlee v. Lockwood, 20 N. J. Eq., 239. 
 
 (3) Cole V. Cole, 69 N. J. Eq., 3- 
 
284 Demurrers. 
 
 against the defendant alone, the demurrer must be over- 
 ruled. (4) 
 
 The only exception to the rule that a general demurrer 
 which is too extensive or bad in part must be wholly over- 
 ruled, is where a bill for discovery also prays relief, and a 
 general demurrer is held good to the relief, but not to the 
 discovery. In such cases the former English decisions and 
 the decisions in America hold that the demurrer will not be 
 a bar to the discovery. It was not until the days of Lord 
 Thurlow that the present practice was established. In Mor- 
 gan V. H arris, (^), that Judge says "You cannot demur to a 
 discovery, unless you demur to the relief, for then you do not 
 demur to the thing required, but you demur to the means by 
 which it is to be obtained." The court in Miller V. Ford, (6) 
 adopted the more recent English rule, that when a complain- 
 ant on a bill praying relief is not entitled to relief, he is not 
 entitled to discovery; but this doubtful excejrtion does not 
 affect the converse proposition, that where on demurrer to 
 the whole bill the complainant is held entitled to relief, the 
 demurrer cannot be sustained as to the discovery, even if 
 the demurrer to the discovery alone would be good. The ex- 
 pression in Miller v. Ford, "that when a party is not entitled 
 to relief, he is not entitled to a discovery" is strictly correct 
 when applied, as it was in that case, to a bill for discovery and 
 relief, but is not correct when applied to a bill for discovery 
 only, and not praying relief. The general rule is, that in all 
 cases where the complainant is entitled to relief, he is entitled 
 to discovery. But to this there are exceptions, as in cases 
 where the discovery would subject the defendant to indict- 
 ment, forfeiture or penalty, when it would be a breach of pro- 
 fessional confidence, or would be of matters irrelevant and 
 immaterial to the relief sought; in all which and similar 
 cases, a demurrer may be taken to the discovery only. (7) 
 
 (4) Trenton R. R. Co. v. Wilson, S3 N. J. Eq., 577. 
 
 (5) 2 Bro. Ch., 124. 
 
 (6) I N. J. Eq., 36s. 
 
 (7) Metier v. Metier, 18 N. J. Eq., 270; aMrmed, 19 N. J. Eq., 457; 
 DeBevoise v. H. & W. Co., 67 N. J. Eq., 472-478. 
 
Disposition of Demurrer. 285 
 
 Demurrer Overruled by Plea or Answer. If defendants 
 demur to the whole bill, and then answer the whole or any 
 part of it, their answer will overrule their demurrer. (8) 
 
 Disposition of Case on Demurrer. Where a demurrer is 
 sustained as to a part of the bill for a cause specifically as- 
 signed, all that portion of the bill not covered by that ground 
 of demurrer remains in court, and the complainant, as to that 
 part of his case, may proceed as if there had been no de- 
 murrer. (9) So when a general demurrer to a bill on the 
 ground of multifariousness is sustained as to a part of the bill,, 
 all that portion of the bill not objectionable on that ground 
 remains in court, and complainant may proceed on it as if no 
 demurrer had been interposed. (10) And so where a bill 
 prays for special relief on several groimds, and also for gen- 
 eral relief, a general demurrer must be overruled if any claim 
 of the bill is sustained. (11) And so where a bill contains sev- 
 eral prayers and a demurrer to the part of the bill seeking im- 
 proper relief is sustained, the bill will be retained for the 
 administration of the relief properly sought. (12) When a 
 general demurrer is good as to part, but not as to> the whole 
 bill, and must, therefore, be overruled, leave will sometimes 
 be given to amend the demurrer so as to confine it to the 
 objectionable part of the bill. In such cases leave should be 
 given, if desired, to the complainant also, to amend his bill,, 
 which would avoid the necessity of amending the demurrer. 
 (13) So where the names of the defendants were omitted 
 from, the prayer for answer in the bill, and a general demurrer 
 was filed, such demurrer was overruled, but leave given to. 
 amend it unless complainant should within ten days from 
 the date of the order amended his bill by inserting the names. 
 
 (8) Droste v. Hall, 2g Atl., 437; Corlies v. Corlies, 23 N. J. Eq., 
 197; McDevitt V. Connell, 71 N. J. Eq., 119; Goodbody v. Delaney, 83- 
 Atl., 988. 
 
 (9) Emans v. Emans, 14 N. J. Eq., 114; Durling v. Hammar, 2a 
 N. J. Eq., 220; Lindsley v. Personette, 35 N. J. Eq., 355. 
 
 (10) Durling v. Hammar, 20 N. J. Eq., 220; Ferry v. Laible, 27 
 N. J. Eq., 146. 
 
 (11) Junior Order Building, etc. Association v. Sharpe, 63 N. J. 
 Eq., SCO. 
 
 (12) Cole V. Cole, 69 N. J. Eq., 3. 
 
 (13) Marsh v. Marsh, 16 N. J. Eq., 391; Kirkpatrick v. Corning,. 
 39 N. J. Eq., 22. 
 
286 Demurrers. 
 
 of the omitted defendants in the prayer for answer. (14) If 
 the defendant demurs to the bill for want of parties or other 
 defect which does not go to the equity of the whole bill, the 
 complainant may amend of course at any time before the next 
 term after filing the demurrer, upon payment of costs to be 
 taxed. (15) 
 
 On the sustaining of a demurrer to a sworn bill, the court 
 may, in its discretion, provide in the order sustaining the de- 
 murrer that the same is done without prejudice to the com- 
 plainant's right to file a new bill, under which permission he 
 may file a new bill not sworn to. (16) 
 
 Practice After Demurrer Overruled. If a demurrer be 
 overruled, no other demurrer will be thereafter received, but 
 in such case the defendant must file his answer to the com- 
 plainant's bill within twenty lays a'fter such overruling, and if 
 he fails to do so, the bill shall be taken as confessed. (17) 
 Where a demurrer to a bill was overruled, the complainant 
 thereupon took an order to amend his bill, which order re- 
 quired the service of the amended bill on the defendant. The 
 order was never served. No answer was at any time filed by 
 the demurring defendant and a decree pro confesso was taken 
 against him. On petition to open the decree it was held that 
 the demurring defendant was bound by the statute to answer 
 without an order to that effect, in twenty days after the over- 
 ruling of the demurrer and that his duty in this respect was 
 not affected by the existence of the first order which was never 
 served. (18) 
 
 Costs of Demurrer. If a demurrer be allowed, the com- 
 plainant must pay the costs; and if overruled, the defendant 
 must pay them. (19) 
 
 (14) Boon V. Pierpont, 28 N. J. Eq., 7. 
 
 (is) Chancery Rule No. 70. 
 
 (16) Schuler v. Southern Iron & Steel Company, 76 Atl., 239. 
 
 (17) Chancery Act, sec. 24, page 27, supra. 
 
 (18) Vanderbeck v. Perry, 30 N. J. Eq., 78. 
 
 (19) Chancery Act, sec. 24, page 27, supra. 
 
Motion to Strike Out. 287 
 
 CHAPTER XIII. 
 MOTION TO STRIKE OUT PLEADINGS. 
 
 Pleadings May be Stricken Out on Motion. The 213th rule 
 provides that any objections to any pleadings, or any part there- 
 of, may be made and adjudicated upon, on motion, without set- 
 ting the cause down for hearing, but the notice of such motion 
 (which shall be an eight days' notice) must state the particular 
 ground or grounds of objection. The making of a motion 
 under this rule shall be deemed a waiver of the right to demur 
 to a bill or except to an answer, and the motion, if made in 
 reference to a bill, must be made within the time limited by 
 law for demurring, unless the court, on application, shall 
 grant further time, and in case of an answer, the objection 
 thereto shall be taken before a replication has been filed.(i) 
 
 Nature of Motion to Strike Out. A motion under this 
 rule is one which is made in lieu of a demurrer or exception, 
 and is a waiver of demurrer or exception by the express pro- 
 vision of the rule. The rule, therefore, does not authorize a 
 motion to strike out a demurrer or plea. The Court of Chan- 
 cery has, however, the power inherent in all Superior Courts 
 of striking out a demurrer or plea clearly frivolous or clearly 
 ■ intended for the sole purpose of delay. This right of ■ the 
 Court of Chancery to overrule and suppress pleadings as sham 
 and frivolous would seem to be necessary for the due ad- 
 ministration of justice. The court will not, however, resort 
 to the summary relief of striking out a demurrer as frivolous 
 unless the circumstances of the case are such that the com- 
 plainant will be prejudiced by the delay necessary to bring the 
 case on regularly for hearing. (2) So the court may, even after 
 decree on general demurrer, on motion strike out all matter in 
 pleadings that is irrelevant and calculates to hinder, delay and 
 embarrass the cause. (3) 
 
 The right to object to a pleading given by the rule is a 
 privilege or choice given to a party who otherwise could only 
 
 (i) Chancery Rule 213. 
 
 (2) Stanbery v. Baker, 55 N. J. Eq., 270; Moore v. Moore, 74 
 N. J. Eq., 733; Ewald v. Ortynsky, 75 Atl., S77-S83; Chancery Act, sec. 
 21, page 25, supra; see also "Demurrer cannot be stricken out on 
 motion," page 289, infra. 
 
 (3) Kirkpatrick v. Corning, 40 N. J. Eq., 241. 
 
288 Motion to Strike Out. 
 
 dernur or except, and is in lieu of a demurrer or exception. 
 It was not intended to introduce for the benefit of the adverse 
 party a new right of demurrer or exception, where no such 
 previous right of demurrer or exception existed. (4) So where 
 a general demurrer has been filed to a bill and has been over- 
 ruled, a motion to strike out the whole or part of the same 
 bill cannot be entertained unless special leave therefor be first 
 obtained from the court. (5) As the motion to strike out a 
 pleading takes the place of a demurrer or exception, such a 
 motion must be made within the time limited for demurring 
 or excepting. A defendant, therefore, who has answered com- 
 plainant's bill, cannot afterwards move to strike out the bill. 
 The rule substitutes a rapid remedy in place of a slow one, 
 but does not enable parties who have recognized the efficacy 
 of a pleading to move to strike it out. (6) 
 
 Notice of Motion. A notice of a motion to strike out 
 must state the particular grounds of objection, failing which 
 it will be denied with costs. (7) But the reasons to be stated 
 in the notice of a motion to strike out under this rule need 
 not be more particular, where the objection is to a bill or to 
 an answer by way of cross bill, than would be required on 
 demurrer, or where it is to 'an answer, than would be required 
 on exception. (8) And so where the pertinent facts alleged in 
 a bill of complaint, as ground for relief, raise a doubt as to ' 
 complainant's right thereto, a general specification of want of 
 equity in a motion to strike the bill of complaint from the files 
 is sufficient. (9) 
 
 Motion to Strike Out Bill. A motion to strike out and 
 dismiss a bill of complaint on the ground of want of equity is 
 in effect a demurrer to the bill, and affords a proper opportu- 
 nity for the court deliberately to determine its merits. Like a 
 demurrer, the motion admits the facts well pleaded in 
 
 (4) Wilson V. American Palace Car Co., 63 N. J, Eq., 557 ; reversed, 
 6s N. J. Eq., 730. 
 
 (5) Stevenson v. Morgan, 63 N. J. Eq., 707; aMrined ib., 805. 
 
 (6) Ireland v. Kelley, 60 N. J. Eq., 308. 
 
 (7) Carpenter v. Gray, 38 N. J. Eq., 135 ; Doan v. Essex Building 
 & Land Co., 59 N. J. Eq., 140. 
 
 (8) Westervelt v. Ackerson, 35 N. J. Eq., 43. 
 
 (9) Steelman v. Wheaton, 72 N. J. Eq., 627, and see "Specification 
 of causes of demurrer," page 272, supra. 
 
Bill, 289 
 
 the bill.(io) So a motion to dismiss a bill under this rule as- 
 sumes that all the material averments of the bill are true.(ii)' 
 And so this rule is limited to motions against defects apparent 
 on the record, and does not give a defendant the right to move 
 against a bill on matters appearing only by affidavits accom- 
 panying the notice. (12) So a motion to strike out a bill of 
 complaint for the reason that it shows no ground for the inter- 
 position of a court of equity and states nothing which requires 
 the defendant to answer, is, in effect, a general demurrer, and 
 must fail if there is any ground on which the bill can be re- 
 tained. (13) Whether a court will strike out a bill on an 
 allegation of laches is a matter of discretion ; but the court 
 will generally permit the proving of the facts excusing laches, 
 and determine whether such facts excuse. (14) 
 
 Motion to Strike Out Cross Bill. A motion to strike out 
 a cross bill because it does not allege ground for equitable 
 relief is equivalent to a demurrer. (15) And so a motion to 
 strike out a cross bill on the ground that the matters therein 
 stated are irrelevant to the case made out by the bill raises 
 the question of the legal sufficiency of the allegations of the 
 cross bill as the basis for the relief therein prayed. (16) 
 
 Demurrer Cannot be Striken Out on Motion. The mo- 
 tion to strike out being, as has been seen, a substitute for a 
 demurrer or exception to an answer, it follows that a motion 
 
 (10) Albert v. Clarendon Land Company, S3 N. J. Eq., 623; Grey 
 V. Greenville & Hudson R. R. Co., 59 N. J. Eq., 372 ; Reversed, 62 N. J. 
 Eq., 768; Ireland v. Kelley, 60 N. J. Eq., 308; Hanneman v. Richter, 
 63 N. J. Eq., 753; Stevenson v. Morgan, 63 N. J. Eq., 707; VanDyke v. 
 VanDyke, 72 N. J. Eq., 300; Helton v. Holton, 72 N. J. Eq., 312; Bige- 
 low V. Old Dominion Copper Mining, etc., Co., 74 N. J. Eq., 457; Allen 
 v. Allen, 76 N. J. Eq., 245-249, and see "Demurrerp," page 267, supra; 
 and a motion to strike out a bill for uncertainty has the same force, 
 and is governed by the same rules controlling demurrers for a like 
 cause; Muller v. Muller, 79 Atl., 429. 
 
 (11) Schwoebel v. Storrie, 74 Atl., 969. 
 
 (12) Brown v. Gaskill, 74 N. J. Eq., 620; so' a motion to strike out 
 a bill because "It does not set forth an equitable cause of action," is 
 insufficient where the defect of the bill is obscure or latent or does 
 not appear on the face of the bill; Morristown v. Morris & Somerset, 
 83 Atl., 178. 
 
 (13) Meyers v. Schuman, 31 Atl., 460. 
 
 (14) Stevenson v. Markley, 66 Atl., 185; and see "Demurrers," 
 page 270, supra. 
 
 (is) Clark v. VanCleef, 75 N. J. Eq., 152. 
 (16) Hanneman v. Richter, 63 N. J. Eq., 753. 
 
290 Motion to Strike Out. 
 
 to strike out a demurrer cannot be made under this rule. (17) 
 The Chancery Act provides that when a demurrer is filed 
 which is not actually argued or which upon argument appears 
 to be frivolous or intended for the purpose of delay the same 
 shall be overruled as frivolous. (18) But irrespective of this 
 statute the court has inherent power to strike out a demurrer 
 or plea clearly frivolous or insufficient or clearly intended for 
 the purpose of delay (19), where, however, pursuant to the 
 statute, a demurrer is accompanied by defendant's affidavit 
 that it is interposed in good faith, and the certificate of counsel 
 that it is well founded, such demurrer will not be stricken out 
 on motion as frivolous unless it appears that complainant will 
 be prejudiced by the delay necessary to bring the case on for 
 hearing. (20) 
 
 A motion to strike out an assigned cause of demurrer is un- 
 warranted. There is nothing in the statute, in the rules of the 
 court or in the history of the law, and there is no precedent 
 to be found, which would warrant the striking out of causes 
 specified on demurrer. A motion to strike out one or more 
 assigned causes of demurrer, viz, the statement of the points 
 of law intended to be argued in support of the demurrer, is 
 asking the court in advance of the regular trial of the issues 
 of law to hear the case in piecemeal, and to limit the scope of 
 the argument upon the trial by eliminating in advance the dis- 
 cussion upon certain points of law. This the court may not 
 do.. A demurrer is wholly good or wholly bad, and it is not 
 necessary that all the causes of demurrer specified should hold 
 good. If any of the assigned grounds are valid, the demurrer 
 should be entertained. To sanction motions tD strike out, either 
 wholly or in part, assigned grounds of demurrer, would pro- 
 long litigation indefinitely, and such practice should not be 
 allowed. (21) 
 
 (17) Stanbery v. Baker, 55 N. J. Eq., 270; Wilson v. American 
 Palace Car Co., 63 N. J. Eq., 557; Reversed, 65 N. J. Eq., 730; and see 
 page 287, supra. 
 
 (18) Chancery Act, sec. 21, page 25, supra. 
 
 (19) Stanbery v. Baker, 55 N. J. Eq., 270; Bishop v. Waldron. 
 56 N. J. Eq., 484; Moore v. Moore, 74 Eq., 73.1; McCarter v. United, 
 N. J. R. R. Co., 7S N. J. Eq., 158; Board of R. R. Commissioners v. 
 United N. J. R. R. & Canal Co., 74 N. J. Atl., 315. 
 
 (20) Stanbery v. Baker, 55 N. J. Eq., 270; see also "Nature of 
 motion to strike out," page 287, supra. 
 
 (21) McCarter v. United N. J. R. R. &c. Co., 76 N. J. Eq., 323. 
 
Answer. 291 
 
 A Plea Cannot be Stricken Out on Motion. A motion to 
 strike out an insufficient plea is not correct practice. The 
 plea should be set down for argument. (22) 
 
 Motion to Strike Out Answer. A motion to strike out 
 an answer takes the place of exceptions, and the question 
 whether the motion shall be granted must be determined by 
 the application of the same rules which would be apphed in 
 deciding whether exceptions to an answer are well taken or 
 not. (23) The rule does not introduce a new practice whereby 
 the legal sufficiency of a defense presented in an answer may 
 be tested by moving to strike it out; that is, under the form 
 of a motion to strike out, the complainant cannot in substance 
 demur to the answer. (24) Nor does the rule by providing 
 that a motion made thereunder "if made in reference to a 
 bill, must be made within the time limited by law for demurr- 
 ing" and by making no declaration as to the time in other 
 cases, have the effect of extending indefinitely the time to 
 make the motion as to an answer; the motion being a substi- 
 tute for exceptions under the former practice, it must be 
 made within the time limited by statute in which exceptions 
 could he filed. (25) So a motion to strike out allegations 
 of an answer in equity, on the ground that the matter set up 
 does not disclose any equitable defense, is a mere demurrer, 
 and inasmuch as a demurrer to an answer is not recognized, 
 such motion will be denied with costs. (26) Although the 
 court in the exercise of its inherent powers will remove from 
 its files any document which purports to be an answer but is 
 
 (22) Corlies v. Corlies, 23 N. J. Eq., 197; Wilson v. American 
 Palace Car Co., 63 N. J. Eq., 557; Reversed, 65 N. J. Eq., 730; and see 
 "Demurrer cannot be stricken out on motion," page 289, supra. 
 
 (23) Leslie v. Leslie, 50 N. J. Eq., 155 ; Doane v. Essex Building 
 & Land Co., 59 N. J. Eq., 142 ; Haberman v. Kaufer, 60 N. J. Eq., 271 ; 
 Norton v. Sinkhorn, 61 N. J. Eq., 508-511; Reversed, 63 N. J. Eq., 313; 
 Hanneman v. Ricbter, 63 N. J. Eq., 753 ; Board of Home Missions v. 
 Davis, 55 At!., 466; Synnott v. Kobbe, 83 Atl., 193; and see "Answer," 
 page 306, infra. 
 
 (24) Haberman v. Kaufer, 60 N. J. Eq., 271 ; Hanneman v. Richter, 
 63 N. J. Eq., 753; Synnott v. Kobbe, 83 Atl., 193. 
 
 (25) Meredith v. N. J. Zinc Co., 41 Atl., 229. 
 
 (26) Leslie v. Leslie, 5a. N. J. Eq., 155 ; affirmed 52 N. J. Eq., 332 ; 
 Doane v. Essex Building & Land Co., 59 N. J. Eq., 142; Haberman v. 
 Kaufer, 60 N. J. Eq., 271; Brill v. Riddle Co., 47 Atl., 223; Condit v. 
 Erie R. R. Co., 76 Atl., 452. 
 
292 Motion to Strike Out. 
 
 not so in reality, yet if any part of such document does entitle 
 it to fill the character which it assumes, although it is an 
 answer to only one fact, the court will not order it taken from 
 the files. (27) 
 
 Since an application to strike out under this rule takes the 
 place of exceptions, it must be determined by the rules which 
 govern in cases of exceptions taken to an answer; and as ex- 
 ceptions to an answer may only be taken for scandal, im- 
 pertinence and insufficiency, a motion to strike out an answer 
 under this section will only lie on these grounds. (28) So a 
 motion to strike out a defense in an answer as impertinent or 
 immaterial will be refused unless the matter criticised is so 
 unrelated to the complainant's claim as to be unworthy of any 
 consideration as a defense either of fact or of law. (29) And 
 so on motion to strike out an answer where the language of 
 the notice recited that the answer was not responsive to the 
 bill and set up no defense thereto, and admitted all the equity 
 of the bill, it was held that 'the motion was too broad and was 
 properly overruled. (30) So an answer will not be stricken 
 out on motion on the ground that it admits all the equity 
 claimed in the bill. (31) But a formal beginning and ending 
 of an answer in violation of a rule oi this court, will be 
 stricken out. (32) The fact that an answer is inconsistent 
 with itself and contains irrelevant matter is not sufficient 
 ground tO' strike it out. (33) But where defendants ob- 
 tained an extension of tipie to answer on an ex parte applica- 
 tion after the expiration of the time limited by law, and in 
 their answer set up usury, it was ordered that so much of the 
 answer as set up usury be struck out, or that the defendants 
 introduce an offer to pay the principal actually received with 
 
 (27) Travers v. Ross, 14 N. J. Ea., 254; Sauire v. Shaw, 24 N. J. 
 Eq., 74 ; Feuchtwanger v. McCooI, 29 N. J. Eq., 151 ; and see "Nature- 
 of motion to strike out," page 287, supra. 
 
 (28) Brill V. Riddle Co., 47 Atl., 223; Leslie v. Leslie, 50 N. J. 
 Eq., I5S- 
 
 (29) Haberman v. Kaufer, 60 N. J. Eq., 271. 
 
 (30) Conway v. Wilson, 44 N. J. Eq., 457. 
 
 (31) Conway v. Wilson, 44 N. J. Eq., 457. 
 
 (32) Raelble v. Goebbel, 6 Atl., 21. 
 
 (33) Carpenter v. Gray, 38 N. J. Eq., 135. 
 
Answer. 293 
 
 lawful interest. (34) Objections to an answer to a bill as it 
 stood before amendment cannot be made after amendment, 
 unless the defendant after being duly called upon to file his 
 answer to the bill as amended, or voluntarily waiving such 
 call, chooses to let it stand as the answer to the amended 
 bill. (35) 
 
 (34) Reraer v. Shaw, 8 N. J. Eq., 3^5 ; Vandeveer v. Holcomb, 
 22 N. J. Eq., SS5 ; Hill v. Colie, 25 N. J. Eq!, 469 ; and see "Extension 
 of time to file pleadings," page 25, supra. 
 
 (35) Angel v. P. R. R. Co., 37 N. J. Eq., 92. 
 
294 Answers. 
 
 CHAPTER XIV 
 
 ANSWERS. 
 
 Nature and Function. A defendant, besides answering 
 the complainant's case, must, in his answer, set up all the cir- 
 cumstances of which he» intends to avail himself by way of 
 defense, for a defendant ought to apprise the complainant, by 
 his answer, of the nature of the case he intends to set up, and 
 that, too, in a clear and unambiguous manner; and, in strict- 
 ness, he cannot avail himself of any matter of defense not 
 stated in his answer, even though it appear in his proof.(i) 
 So a defendant who sets up certain facts in his answer and 
 states that the consequence of such facts is to exhibit a par- 
 ticular defense, cannot, on final hearing, use the same facts to 
 support a different ground of defense, to which the attention 
 of the complainant has not been called. (2) A defense based 
 upon an event which has happened since the filing of the bill 
 may be interposed by answer, unless there be something in the 
 relation of the parties or the subject matter of the suit which 
 should exclude it. (3) So a defense of payment made after 
 the bill was filed is properly made by answer to the bill. (4) 
 
 A defendant cannot in his answer pray anything but to be 
 dismissed by the court. If he has any relief to pray or dis- 
 covery to seek against the complainant, he must do so by cross- 
 bill. (5) So defendant cannot, by answer alone, avail him- 
 self of the defense of fraud in the consideration of a mort- 
 gage, which fraud does not go to the extent of a complete 
 nullification of the instrument, but merely reduces the amount 
 recoverable upon it; to have the benefit of such defense he 
 must hav^e recourse to a cross-bill. (6) So on a bill filed by a 
 
 (i) Moores v. Moores, 16 N. J. Eq., 275; N. J. Building, &c. Co. 
 V. Lord, 66 N. J. Eq., 344-352. 
 
 (2) Bannister v. Miller, 54 N. J. Eq., 121 ; afHrmed ib., 701 ; Potts 
 V. Potts, 42 Atl., 105s. 
 
 (3) Hall V. Home Building Co., 56 N. J. Eq., 304. 
 
 (4) Raelble v. Goebbel, 6 Atl., 21. 
 
 (5) Miller v. Gregory, 16 N. J. Eq., 274; and see Cross Bill, 
 page 19s, supra. 
 
 (6) Parker v. Jameson, 32 N. J. Eq., 222; Parker v. Hartt, 32 
 N. J. Eq., 225; afHrmed ih., 844; and see "Foreclosure of Mortgages," 
 page 580, infra. 
 
Nature and Function. 295 
 
 mortgagee to enforce the assumption of the mortgage debt by 
 the grantee of the mortgagor, the defense that the assump- 
 tion clause was improperly inserted in the deed should be 
 made by cross-bill. (7) A defendant, in denying a charge 
 against him, has the right to state the whole transaction. (8) 
 So when the bill omits certain parts of a contract, the answer 
 may well set out fully the negotiations, by way of defense. (9) 
 And where facts which might be made the ground of a suit 
 against complainant constitute also an equitable defense 
 against complainant's demand, they may be pleaded defensively 
 in the answer. So upon the foreclosure of a purchase money 
 mortgage, the mortgagor may, by answer, claim a reduction 
 from the mortgage debt, if the quantity of the land which was 
 the subject of the purchase or sale had been falsely and fraudu- 
 lently represented to be greater than that which was actually 
 conveyed, and such fraudulent misrepresentation induced the 
 purchase. (10) So the defense that there is a gross mistake 
 between the actual and established quantity of lands and the 
 quantity represented, so great as clearly to warrant the con- 
 clusion that the parties would not have contracted had they 
 known the truth, may be made by answer. (11) And so where 
 a second mortgagee paid certain taxes and assessments, imposed 
 on the premises after a sale to the city for their non-payment, 
 and took an assignment of the certificates of sale, such taxes 
 and assessments being, by the city charter a lien prior to other 
 encumbrances, on foreclosure of the first mortgage it was held 
 that he was entitled, by equitable subrogation, to the city's lien 
 and to reimbursement for whatever sums he had paid for legal 
 and 'valid claims of the city, and that he could obtain such 
 relief by answej. (12) So want of capacity, as a defense to the 
 enforcement of a contract, may be set up in the answer. (13) 
 But where an answer to a bill to enforce a vendor's lien for 
 purchase money sets up that the complainant was not, when he 
 
 (7) Green v. Stone, S4 N. J. Eq., 387. 
 
 (8) Youle V. Richards, i N. J. Eq., 534. 
 
 (9) Grey v. Bowman, 13 At!., 226. 
 
 (10) McMichael v. Webster, 57 N. J. Eq., 295. 
 
 (11) Melick V. Dayton, 34 N. J. Eq., 245. 
 
 (12) Fiacre v. Chapman, 32 N. J. Eq., 463; and see "Foreclosure of 
 Mortgages," page 580, infra. 
 
 (13) Miller v. Miller, 25 N. J. Eq., 354; Reversed, 27 N. J. Eq., 514. 
 
296 Answers. 
 
 made the conveyance, seized of the property, and was not the 
 owner of part of it, and further, that it was understood that 
 an account between one of the grantees and the complainant 
 should be set off against so much of the purchase money, on 
 objection to those points of the answer it was ordered that 
 they be stricken out, because the answer did not allege fraud 
 or mistake, nor that the deed contained covenants of title, nor 
 that it was agreed that the specified claims should be a set- 
 off. (14) If a defendant answers fully on the merits, he there- 
 by submits himself to the jurisdiction of the court, notwith- 
 standing any objection to its jurisdiction over him reserved in 
 his answer. (15) 
 
 Time for Filing Answer. The Chancery Act provides 
 that the answer to any bill in Chancery shall be filed within 
 twenty days from the return day of the subpoena, in case no 
 plea or demurrer be filed, unless further time be granted. (16) 
 Where a demurrer has been filed which has not been actually 
 argued, or which is stricken out as frivolous, or intended for 
 the purpose of delay, no order extending the time to answer 
 will be granted unless upon full examination of the case it 
 shall be made to appear to the court that evident injustice 
 would be done without such extension ; and then the court 
 will grant such extension only as may be absolutely necessary 
 with proper diligence to prepare such answer. (17) If a plea 
 or demurrer be overruled, the defendant must file his answer 
 to the complainant's bill in twenty days after such overruling, 
 and if he fails to do so, the said bill shall be taken as con- 
 fessed. (18) 
 
 Form of Answer. The Chancery Rules provide that the 
 clause reserving exceptions, the general clause dery^ing com- 
 bination, the general traverse and the general profert or proof 
 in answers shall be omitted. (19) And so a general clause in 
 an answer in equity reserving exceptions and denying combina- 
 
 (14) Lewis V. Cranmer, 36 N. J. Eq., 124. 
 
 (is) Polhemus v. Holland Trust Co., 61 N. J. Eq., 654; McGuin- 
 
 ness V. McGuinness, 71 N. J. Eq., i Reversed, 72 N. J. Eq., 381. 
 
 (16) Chancery Act, sec. 20, page 24, supra, as amended by P. L., 
 1913- 
 
 (17) Qiancery Act, sec 21, page 25, supra. 
 
 (18) Chancery Act, sec. 24, page 27, supra. 
 
 (19) Chancery Rule 208. 
 
Form. 297 
 
 tion will be stricken out on motion as in contravention of this 
 rule. (20) 
 
 Answers must be sworn to, unless answer under oath is 
 waived. The answer of a corporation should be put in under 
 its seal, and not under oath. (21) A municipal corporation may 
 answer under seal, with the oath of its presiding officer on be- 
 lief. (22) 
 
 Where a bill requires an answer under oath, an answer with 
 a draft of an affidavit appended to it, signed by the defendant, 
 but without authentication oif the jurat by an officer authorized 
 to administer an oath, may be treated as no answer to the 
 bill. (23) In an earlier case an answer sworn to before a per- 
 son who was' not authorized by the law of this state or the 
 rules of the court to administer an oath was not received as 
 evidence, but was treated as a pleading. (24) It is not neces- 
 sary that affidavits annexed to answers should be taken upon 
 notice, or that copies should be served upon the adverse 
 party. (25) 
 
 The practice requires that where the verification of an answer 
 is in the form of an affidavit, the name of the deponent be 
 subscribed at the foot of the affidavit, and where the verification 
 is in the form of a certificate of the officer who^ administered 
 the oath, the name of the deponent should be subscribed to 
 the answer; the object is to facilitate identification of the affi- 
 ant in case of prosecution for perjury. (26) If complainant in 
 his bill does not waive the requirement of an answer under 
 oath, and an answer is filed which is not verified as the prac- 
 tice of the court requires, such answer will be suppressed. (27) 
 
 Where an answer shall be sworn to by a defendant out of 
 this state, the oath may be taken before a master in chancery 
 of this state, or a notary public certified under his seal and 
 
 (20) Fairchild v. Fairchild, 43 N. J. Eq., 473 ; Plum v. Smith, 56 
 N. J. Eq., 468. 
 
 (21) Daniel's Ch. Pr., 744. 
 
 (22) Champlin v. New York, 3 Paige, 573. 
 
 (23) Westerfield v. Bried, 26 N. J. Eq., 357. 
 
 (24) Freitag v. Hoeland, 23 N. J. Eq., 36. 
 
 (25) Gariss v. Gariss, 13 N. J. Eq., 320; Stotesbury v. Vail, 13 N. J. 
 Eq., 390. 
 
 (26) Pincers v. Robertson, 24 N. J. Eq^ 348. 
 
 (27) Pincers v. Robertson, 24 N. J. Eq., 348. 
 
298 Answers. 
 
 otherwise in compliance with the requirements of statute, or 
 before any person who shall be authorized by the law of this 
 state to take acknowledgment of the execution of a deed of 
 lands in this state at the place where such answer shall be 
 sworn to, and the authority of such person shall be certified 
 in the same manner as required for the recording of a deed 
 acknowledged before him. (28) 
 
 The English practice of requiring defendant to sign his 
 answer does not obtain in this state, the signature of his solic- 
 itor only being required. (29) 
 
 An answer need not be signed by counsel; and an answer 
 signed by a solicitor will not be taken from the files because 
 not signed by counsel. (30) 
 
 Answers by Several Defendants. The complainant is en- 
 titled to an answer from every defendant, and each must 
 answer fully. (31) And so an answer of a co-defendant simply 
 averring that the facts stated in a paper purporting to be, the 
 answer of another defendant in the cause "are substantially 
 correct, as far as these defendants are concerned," is formally 
 arid substantially defective. (32) Where two or more defend- 
 ants are similarly interested, and appear by the same solicitor, 
 they ought to answer jointly. (33) And so where three de- 
 fendants employed the same solicitor, who filed separate an- 
 swers, the only effect of which was to swell the costs, the 
 practice was declared unwarranted and vexatious, and the 
 defendants allowed no costs upon their answers, and were held 
 personally liable for all extra costs thereby incurred by com- 
 plainants. (34) 
 
 Where husband and wife are properly made defendants to a 
 bill, the complainant is entitled to a joint answer under the 
 oath oi each, and the answer of the husband alone is irregular 
 
 (28) Chancery Rule 62. 
 
 (29) Dickerson v. Hodges, 43 N. J. Eq., 45; Tynan v. Warren, S3 
 N. J. Eq., 313-315. 
 
 (30) Freehold Mutual, &c. Ass'n. v. Brown, 28 N. J. Eq., 42; 
 Dickerson v. Hodges, 43 N. J. Eq., 45. 
 
 (31) I Daniel's Ch. Pr., 730, et seq. 
 
 (32) Carr v. Weld, 18 N. J. Eq., 41. 
 
 (33) I Daniel's Ch. Pr.,_729. 
 
 (34) Danbury v. Robinson, 14 N. J. Eq., 324. 
 
Sufficiency. 299 
 
 and will be suppressed. (35) An answer filed in time by one 
 of several co-defendants and sworn to by him alone will be 
 permitted to stand as his answer, though it purports to be the 
 answer of his co-defendants also, whose time for answering 
 has expired. (36) 
 
 Sufficiency of Answer. A defendant must answer fully 
 all the material allegations and charges in the bill and all the 
 interrogatories founded upon and incidental to all the material 
 allegations of the bill. (37) So where defendants were called 
 upon by the interrogating portion of a bill to set aside a deed 
 as fraudulent to show whether there was any valuable con- 
 sideration paid therefor, and if so, what the same was worth, 
 when paid and who we're present, and the answer stated that 
 there was a valuable consideration paid, consisting of the can- 
 cellation of a debt due from the grantor to the grantee of 
 $1,500 for five years unpaid rent, and actual payment of about 
 $1,000, paid from time to time in cash and check as the unsuc- 
 cessful business of the grantor required, it was held that the 
 response was lacking in the precision and detail required by 
 the interrogatory. (38) 
 
 Upon the same principle where the bill charged that assignees 
 of an insolvent debtor sold property without giving any infor- 
 mation, at the sale, what the interest of the debtor in the prop- 
 erty was, etc., and the answer affirmed that one of the assignees 
 did give such information, the answer was held unsatisfactory, 
 as it should have stated what the information given was. (39) 
 And so where transactions are charged involving fraud, either 
 actual or constructive, and especially where direct interroga- 
 tories are put in relation to particular facts, the court cannot 
 be satisfied with a general answer or with one in any way 
 evasive. (40) , > 
 
 Where there are particular charges, they must be answered 
 particularly and precisely, and not in a general manner, 
 
 (35) Collard V. Smith, 13 N. J. Eq., 43; Vandeveer v. Holcomb, 22 
 N. J. Eq., SSS- 
 
 (36) Young V. Clarksville Mfg. Co., 27 N. J. Eq., 67. 
 
 (37) Vreeland v. N. J. Stone Co., 25 N. J. Eq., 140; Manley v. 
 Mickle, 55 N. J. Eq., 563; N. J. Building, &c., Co. v. Lord, 66 N. J. 
 Eq-. 344-352- 
 
 (38) O'Connor v. Williams, 53 Atl., 550. 
 
 (39) Hays V. Doane, 11 N. J. Eq., 84. 
 
 (40) Scull V. Reeves, 3 N. J. Eq., 84. 
 
300 . Answers. 
 
 ■though the general answer may amount to a full denial of the 
 charges. (41) And where a matter is charged in the bill which 
 must, if true, be within the knowledge of the defendant, the 
 substance of the charge should be answered directly and not 
 evasively. (42) So averments, in the stating part of a bill, 
 evidently intended as statements of facts, must be answered 
 by the defendant if he intends to deny them, although the 
 complainant "charges" the facts, instead of "shows" or "al- 
 leges" them. (43) And a denial of two allegations conjunct- 
 ively is not a denial of each. (44) 
 
 It is a requisite of pleading that if a fact be laid to be 
 done with divers circumstances, the defendant must not deny 
 or traverse it literally, as it is laid in the bill, but must answer 
 the point and substance positively and certainly. (45) And a 
 denial, in an answer, of the existence of fraud will not avail 
 to disprove it where the answer admits facts from which fraud 
 follows as a natural and legal, if not a necessary and Unavoid- 
 able conclusion. (46). But where a bill asks for a discovery 
 of the contents of a lost policy of insurance, an answer refer- 
 ring to a copy of said policy as annexed thereto, and having 
 such copy annexed, is sufficient. (47) 
 
 If an answer is so evasive that it is obviously a mere delu- 
 sion and does not answer any of the material facts stated in 
 the bill, and no reason is assigned for not answering them, it 
 will be considered as no answer, and the court will order it 
 taken from the files; if, on the other hand, it be an answer, 
 however defective, the complainant must either file exceptions 
 or a replication, or set the cause down for hearing upon bill 
 and answer. (48) And if some of the denials in an answer, 
 though direct, are by reason of the manner in which they are 
 made evasive, and would not be sustained on exceptions, yet 
 if other parts of the answer allege facts responsive to the bill, 
 and which are inconsistent with and thus deny the material 
 
 (41) Everly v. Rice, 4 N. J. Eq., 553. 
 
 (42) Smith V. Loomis, S N. J. Eq., 60. 
 
 (43) Halsey v. Ball, 36 N. J. Eq., 161. 
 
 (44) Pierson v. Ryerson, 5 N. J. Eq., 196. 
 
 (45) Reed v. Cumberland Ins. Co., 36 N. J. Eq., 146-153. 
 
 (46) Sayre v. Fredericks, 16 N. J. Eq., 205. 
 
 (47) Reed v. Cumberland Ins. Co., 36 N. J. Eq., 146. 
 
 (48) Travers v. Ross, 14 N. J. Eq., 254; Squier v. Shaw, 24 N. J. 
 Eq., 74; Feuchtwanger v. McCool, 29 N. J. Eq., 151. 
 
Sufficiency. 301 
 
 allegations of the bill, such parts may be taken in connection 
 with the evasive denials, and render the answer sufficient. (49) 
 
 The rule regarding a statement of a defense must, in order 
 to enable the court to get at all the facts of the case and to 
 discover the whole truth, be quite as liberal as those regulating 
 the statement of his case by a complainant. (50) But it is not 
 necessary that the same degree of accuracy should be observed 
 in an answer as is required in a bill.'(5i) Where, however, 
 the circumstances charged by the bill are suspicious, or have 
 the appearance of collusion and fraud, a defendant will be held 
 to a strict rule in answering. (52) 
 
 If a person is made defendant in a representative capacity, 
 it is not proper or necessary for him to answer in his individual 
 capacity. (53) 
 
 What Need Not be Answered. The rule requiring a full 
 answer is generally deemed not to require an answer to imma- 
 terial allegations'. ( 54) Nor can a defendant be required to 
 answer allegations as to the legal construction of a will ; and a 
 defendant, in a bill in Chancery, cannot be required to answer 
 an allegation merely stating complainant's view of the law. (55) 
 
 Answering According to Knowledge, Information and 
 Belief. A defendant must answer each material allegation 
 charged in the bill, and he must answer not only as to his 
 knowledge of each fact so charged, but also, if he have no 
 knowledge, as to his information and belief regarding it. It 
 will not be sufficient for him to answer merely as to his infor- 
 mation; he must also state his belief. Of course, if he has 
 no information outside of the statements of the bill, he is not 
 required to state his belief of those statements. If, however, 
 he has' information from any other source than the bill, and 
 
 (49) McMahon v. O'Donnel, 20 N. J. Ea.. 306. 
 (so) Leslie v. Leslie, 50 N. J. Eq., IS5-IS7; and see "Bill of Com- 
 plaint" — "stating part," page 140, supra. 
 (si) King V. King, 9 N. J. Eq., 44. 
 
 (52) Smith V. Loomis, s N. J. Eq., 60; Vreeland v. N. J. Stone Co., 
 25 N. J. Eq., 140. 
 
 (53) Wade v. Miller, 32 N. J. L., 296; Freehold & N. Y. R. R. Co. 
 V. Hodgson, 39 N. J. Eq., 518; Kirkpatrick v. Corning, 38 N. J. Eq., 234. 
 
 (54) Vreeland v. N. J. Stone Co., 25 N. J. Eq., 140; and see Hogen- 
 camp V. Ackerson, 10 N. J. Eq., 267. 
 
 (55) Thompson v. North, 67 N. J. Eq., 278; but an answer may 
 submit legal propositions arising on facts admitted by the bill or on 
 facts which it states; McGuckin v. Kline, 31 N. J. Eq., 454. 
 
302 Answers. 
 
 has any belief grounded thereon, he must state such informa- 
 tion and beHef.(56) It is not sufficient for the defendant, in 
 his answer, to say that he does not know it, or does not believe 
 it, as that may all be true and yet the fact charged be uncon- 
 tradicted. (57) Nor is an express denial, in an answer, of a 
 fact of which the defendants' admit themselves to be ignorant . 
 a satisfactory denial of the complainant's equity. (58) But a 
 defendant is not, in answering, required to obtain information 
 not in his own or in his agent's possession, nor is he bound, 
 with respect to transactions which are not his own, to seek 
 for information for the purpose of communicating it to com- 
 plainant. (59) 
 
 Impertinence and Scandal. A defendant must not in his 
 answer go outside of the bill to state that which is not material 
 or relevant to the case made out by it. Long recitals, digres- 
 sions, stories, conversations and insinuations' tending to scan- 
 dal are of this nature. Facts not material to the decision are 
 impertinent and, if reproachful, scandalous; and perhaps the 
 best test by which to ascertain whether the matter be imperti- 
 nent is to try whether the subject of the allegation could be 
 put in issue and woiild be matter proper to be given in evi- 
 dence between the parties. (60) So portions of an answer that 
 are merely amplifications or enlargements of what has already 
 been sufficiently stated, or are statements that do not pertain 
 to the issue between the parties, will be stricken out. (61) And 
 so when defendant in his answer has made all the usual and 
 proper allegations, and then proceeds to give in detail many 
 statements which, when proved, may have some bearing on 
 the case, but which are not within the limits of good pleading, 
 exceptions to such statements will be sustained. (62) 
 
 (56) Kinnaman v. Henry, 6 N. J. Eq., 90; Reversed ib., 626; Reed 
 V. Cumberland Ins. Co., 36 N. J. Eq., 146; Thompson v. North, 67 
 N. J. Eq., 278; Salem v. State, 76 N. J. Eq., 264; Ryan v. Anglesea 
 R. R. Co., 12 Atl., 539 ; Somerville Water Co. v. Borough of Somerville, 
 78 Atl., 793. 
 
 (57) Quackenbush v. Van Riper, i N. J. Eq., 476. 
 
 (58) Bailey v. Stiles, 3 N. J. Eq., 245. 
 (SP) Thompson v. North, 67 N. J. Eq., 278. 
 
 (60) Hutchinson v. Van Voorhis, 54 N. J. Eq., 439; Haberman v. 
 Kaufer, 60 N. J. Eq., 271. 
 
 (61) Hecksher v. Trotter, 41 N. J. Eq., 502; Combs v. Combs, 3 
 Atl., 3S4- 
 
 (62) Combs V. Combs, 3 Atl., 354, 
 
Impertinence and Scandal. 303 
 
 So where complainant filed a bill to restrain defendant from 
 continuing a nuisance of nauseous' and noisome odors from 
 its gas works; causing injury and discomfort to him and hi'S 
 family dwelling in his house opposite the defendant's works, 
 and defendant answered, stating the origin of the company and 
 its acts under its' corporate power, its acquisition of the lands 
 whereon its works were erected, the natural condition and 
 improvement of that land, the former condition of complain- 
 ant's property, the great cost of constructing its works, and 
 the irreparable infury that would result from an injunction 
 preventing its manufacturing gas, it was held that these aver- 
 ments were not responsive, but impertinent and irrelevant, and 
 must be stricken out. (63) So where a set-off is claimed by 
 answer, under circumstances which would preclude its being 
 granted even though it were sought by cross bill, so much of 
 the answer must be stricken out. (64) 
 
 So the repetition, in a further answer or in an answer to 
 an amended bill, of anything contained in a former _ answer 
 which is not necessary or expedient, is impertinent. (65) A 
 defect of title to mortgaged premises conveyed by the mort- 
 gagee is no defense in a suit for the foreclosure of a mortgage 
 for part of the consideration money, without eviction in a 
 suit pending by an adverse claimant; such defense is a proper 
 subject of exception for impertinence. (66) 
 
 The rule which should be applied in deciding the questions 
 raised by an application to strike out portions, O'f an answer as 
 impertinent is that all substantial doubts as to whether the 
 matters objected to are impertinent or not are to be resolved 
 in favor of their pertinency; and that nothing should be 
 expunged from the answer which the defendant has a right to 
 prove, and which, if proved, can have any influence on the 
 judgment of the court, either in deciding whether the com- 
 plainant is entitled to any relief whatever, or the nature, char- 
 acter or extent of the relief to which he may be entitled, even 
 down to the question of whether he shall have relief with or 
 
 (63) Crammer v. Atlantic City Gas Co., 39 N. J. Eq., 76. 
 
 (64) Crane v. Ely, 40 N. J. Eq., 79. 
 
 (65) Garr v. Hill, 6 N. J. Eq., 457- 
 
 (66) Hulfish V. O'Brien; 20 N. J. Eq., 230; affirmed, 22 N. J. Eq., 
 471; Hile V. Davison, 20 N. J. Eq., 228; Price v. Lawton, 27 N. J. Eq., 
 32S ; and see "Foreclosure of Mortgages," page 560, infra. 
 
304 Answers. 
 
 without costs. (67) So it is not impertinence, in an answer by 
 a second mortgagee to a bill for foreclosure, to aver that his 
 rtiortgage is for a larger amount than is alleged in the bill; 
 nor in an answer thereto by the mortgagor, to aver that he had 
 paid a specified sum on the complainant's mortgage, for which 
 he claims credit. (68) 
 
 And so where the bill avers that the premises destroyed 
 were worth $4,500.00, a declaration in an answer that the com- 
 plainant adjusted his claim against the other insurance com- 
 panies which held risks thereon on a basis that fixed the value 
 of the insured premises at $2,500.00, is not impertinent. (69) 
 So when complainant, who is the holder of title to land by de- 
 vise and the executor of the will devising it, files a bill to en- 
 force the specific performance of a contract for the sale of the 
 devised land, which contract he claims operates antecedently to 
 the will, and makes sole defendants the holders of legacies 
 charged by the will upon the lands, for the purpose of divesting 
 the charge, a cross bill filed by. the defendant legatees, with an 
 answer denying the contract and praying sale of the lands to 
 pay their legacies, will not be stricken out as impertinent nor 
 because not germane to the subject matter of the original 
 suit. (70) 
 
 If the complainant calls for an answer to impertinent matter 
 he must take the answer though it be impertinent, (71) so 
 where a bill alleged that a defendant was concluded by a 
 decree in a former suit, and also insisted on such defendant 
 answering the whole bill, including matters settled by that 
 decree, and the answer set up a denial to some of those mat- 
 ters, it was held that such answer was not therefore imperti- 
 nent, since it complied with the prayer of the bill. (72) One 
 defendant may file exceptions for scandal in a co-defendant's 
 answer. (73) 
 
 (67) Leslie v. Leslie, 50 N. J. Eq., 155. ^ 
 
 (68) Squier v. Shaw, 24 N. J. Eq., 74. 
 
 (69) Reed v. Cumberland Ins. Co., 36 N. J. Eq., 146. 
 
 (70) Haberman v. Kaufer, 60 N. J. Eq., 271. 
 
 (71} McGuckin v. Kline, 31 N. J. Eq., 454; and see "Exceptions 
 for impertinence and scandal," page 308, infi-a. 
 
 (72) McGuckin v. Kline, 31 N. J. Eq., 454; Woods v. Morrill, i 
 Johns, Ch., 103. 
 
 (73) I Dan. Ch. Pr., 351 ; Coffin v. Cooper, 6 Ves., 514. 
 
Admissions. 305 
 
 Admissions by Answer. When a fact is alleged in a bill, 
 and admitted in the answer, the admission is conclusive. (74) 
 And the rule as to answers not under oath, where such an 
 answer has been invited by the bill, is the same. (75) An 
 admission or allegation of fact in the answer will not, how- 
 ever, avail the complainant, unless put in issue by the bill. If 
 he desires to avail himself of such fact, he must amend the 
 bill. (76) A material and controlling fact, which is clearly and 
 fully averred in the bill, and not denied or alluded tO' in the 
 answer, must be taken as confessed. (77) ; and the defendant 
 will be precluded from setting up any defense inconsistent with 
 such allegation. (78) So where there is a distinct charge in the 
 bill of a matter within the personal knowledge of the defend- 
 ants, and they are asked to answer, a failure to answer such 
 charge is an admission O'f the truth of the allegations. (79) 
 
 Whatever allegations of fact the defendant does not choose 
 directly to deny, but states his belief thereof, amount to an 
 admission that they are true, or that he does not put them in 
 issue as a matter oi controversy in the cause ; as is tersely said 
 in some of the cases, "what the defendants believe, the court 
 will believe." An unqualified admission on information and 
 belief will in general dispense with proof of the fact 
 alleged. (80) 
 
 But where a bill alleged that a deed was given merely to 
 secure a debt, and the answers admitted that the grantors made 
 a certain deed in writing, of such date and of such purport and 
 
 (74) Peshine v. Binns, il N. J. Eq., lOi ; Voorhees v. Voorhees, 
 18 N. J. Eq., 223 ; Sanbron v. Adair, 29 N. J. Eq., 338; Corporation 
 for Relief v. Eden, 62 N, J. Eq., 542; see also '"Answer as Evidence," 
 page 388, infra. 
 
 (75) Hyer v. Little, 20 N. J. Eq., 443; Craft v. Schlag, 61 N. J. Eq., 
 567; see also "Answer as Evidence," page 388, infra. 
 
 (76) Hoflf v. Burd, 17 N. J. Eq., 201. 
 
 (77) Heyde v. Ehlers, 10 N. J. Eq., 283 ; Sanborn v. Adair, 29 N. J. 
 Eq., 338; Lee v. Stiger, 30 N. J. Eq., 610; Jones v. Knjiuss, 31 N. J. 
 Eq., 609; Pinnell v. Boyd, 33 N. J. Eq., 190; Reversed, ib., 600; Morris 
 V. Kettle, 56 N. J. Eq., 826, 828; Van Riper v. Wickersham, 77 N. J. 
 Eq., 232. 
 
 (78) Pinnell v. Boyd,' 33 N. J. Eq., 190; Reversed ib., 600; Lee v. 
 Stiger, 30 N. J. Eq., 610. 
 
 (79) Tate V. Field, 56 N. J. Eq., 35; Vulcan Detinning Co. v. Ameri- 
 can Can Co., 6g Atl., 1103; Van Riper v. Wickersham, 77 N. J. Eq., 232. 
 
 (80) Thompson v. North, 67 N. J. Eq., 278; and see also "Answer 
 as Evidence," page 388, infra. 
 
306 Answers. 
 
 effect as in the bill mentioned and set forth, it was held that 
 the answer was not such an admission of the nature and effect 
 of the deed as to preclude all inquiry on the subject. (8i) 
 
 Withdrawing Answer. The court may always, in its dis- 
 cretion, permit a defendant to withdraw his answer to avoid 
 admissions inadvertently made ; but an application to withdraw 
 an answer represented to have been impropeily and inad- 
 verdently filed will be denied, unless it be shown that the 
 answer was filed through mistake or under a misapprehension 
 of the defendant's right. (82) Where a cross bill is filed by 
 two of the defendants, who put in their answers disclaiming 
 any interest in the original suit, and the cross bill alleges that 
 the answers were filed through mistake, the pleadings are 
 irregular, and the proper course is to apply for leave to with- 
 draw the answers. (83) 
 
 Exceptions to Answer. If an answer is insufficient, or 
 contains scandalous or impertinent matter, the remedy is to 
 file exceptions to it. (84) Or complainant may move to strike 
 out the answer under the provisions of Rule 213.(85) But the 
 legal sufficiency of a defense cannot be tested by exceptions to 
 an answer, or by moving to strike it out; that is, under an 
 exception or motion to strike out, the complainant cannot in 
 substance demur to the answer. (86) 
 
 An answer, any part of which entitles it to fill the character 
 it assumes, will not be stricken out on exceptions. (87) And 
 when a portion of an answer asked to be stricken out contains 
 blemishes, but the whole answer is not so affected, the court 
 will refuse a motion to strike out such answer. (88) So on ex- 
 
 •(81) Brown v. Balen, 33 N. J. Eq., 469. 
 
 (82) Salem v. Board of Health, 76 N. J. Eq., 264. 
 
 (83) Williams v. Carley, 10 N. J. Eq., S43. 
 
 (84) For Practice on Exceptions see Chancery Act, sees. 25 and 26, 
 page 29, supra; see also "References," page 354, infra. 
 
 (85) See "Motion to Strike Out," page 291, infra; defects in an 
 answer are not cured by the failure of complainant to except to it but 
 its defectiveness will have its influence on the decision of the cause 
 though exceptions to it were not taken; Doughty v. Doughty, 7 N. J. 
 Eq., 222. 
 
 (86) Haberman v. Kaufer, 60 N. J. Eq., 271 ; Hanneman v. Richter, 
 63 N. J. Eq., 753 ; Synnott v. Kobbe, 83 Atl., 193 ; and see "Motion to 
 Strike Out," page 291, supra. 
 
 (87) Squier v. Shaw, 24 N. J. Eq., 74. 
 
 (88) Grey v. Bowman, 13 Atl., 226. 
 
Exceptions. 307 
 
 ceptions or motion to strike out an entire paragraph for im- 
 pertinence or irrelevancy, the exceptions or motion must fail 
 if any portion of the paragraph excepted to is either relevant 
 or responsive. (89) 
 
 Each exception to an answer should be confined to a dis- 
 tinct question, although the interrogatory, as numbered, may 
 contain several questions ; at least it ought to be so confined if 
 there is any ground for the defendant to contend that he has 
 answered any part of the interrogatory. (90) So an objection 
 to an answer on the ground that it is without fullness and 
 particularity and not according to the best of defendant's 
 knowledge, information and belief, is too general. (91) But the 
 court may, in its discretion, permit complainant to amend an 
 exception after hearing thereon, and require defendant to 
 answer the matters contained in the exceptions as amended. 
 (92) O'bjections on account of unimportant or immaterial 
 statements or omissions in an answer should be discounte- 
 nanced. (93) 
 
 The rules of the Court of Chancery are silent as to whether 
 exceptions shall be signed by counsel. The English practice 
 requires such signature ; and the rule being that in the absence 
 of any decision or statute to the contrary, the English practice 
 must be followed, exceptions to an answer must be signed by 
 counsel. (94) 
 
 Exceptions for Insufficiency. Insufficiency means that a 
 portion of the bill, to which complainant is entitled to an 
 answer has not been answered, it does not mean that the answer 
 is insufficient in the sense that it presents no equitable defense. 
 (95) Exceptions for insufficiency will lie to the answer of a 
 corporation. (96) And they may be taken to an answer, oath 
 
 (89) Thompson v. Williamson, 54 Atl., 453. 
 
 (90) Bennett v. Hamlin, 47 N. J. Eq., 326. 
 
 (gi) Mutual Life Insurance Company v. Cokefair, 41 N. J. Eq., 142. 
 
 (92) Bennett v. Hamlin, 47 N. J. Eq., 326. 
 
 (93) Reed v. Cumberland Mutual Fire Insurance Co., 36 N. J. Eq., 
 393- 
 
 (94) HitcTicock V. Rhodes, 42 N. J. Eq., 495. 
 
 (gS) Doane & Jones Lumber Co. v. Essex Building & Land Co., 
 59 N. J.' Eq., 142; Steepy v. Public Service Corporation of N. J., 65 
 N. J. Eq., 529; Synnott v. Kobbe, 83 Atl., 193; and see "Sufficiency of 
 Answer," page 2g9, supra. 
 
 (g6) Reed v. Cumberland Mutual Fire Insurance Co., 36 N. J. Eq., 
 3g3 ; Flitcroft v. Allenhurst Club, 69 N. J. Eq., 13. 
 
308 Answers. 
 
 to which has been waived. (97) An exception for insufficiency 
 may be allowed as to part and overruled as to part. (98) 
 
 Exceptions for Impertinence and Scandal. Exceptions or 
 a motion to strike out the answer are the proper methods of 
 objecting to impertinent or scandalous matter in an answer. (99) 
 Portions of an answer that are merely amplifications or enlarge- 
 ments of what has already been sufficiently stated, or are 
 statements that do not pertain to the issue between the parties, 
 will be stricken out as impertinent. (100) And so where a 
 bill was filed to prevent the continuance of an alleged nuisance 
 by a railroad company, which nuisance consisted in drilling 
 cars and allowing cars loaded with cattle to stand for an 
 unreasonable time on defendant's tracks in the public street 
 whereon complainant's dwelling was located, and defendant's 
 answer denied the commission of the nuisance and set out 
 defendant's rights and privileges in occupying the streets, it 
 was held that the statement of rights and privileges would not 
 be stricken out as immaterial, but that the averment in the 
 answer that complainant's house was built after defendant's 
 tracks had been laid in the street was objectionable, and would 
 be stricken out, for the reason that the bill alleged that the 
 nuisance was not from the proper, but from the improper use 
 of the railroad tracks, and that it was of no importance whether 
 the tracks were there and in use when complainant's house 
 was built or not. ( i ) And so the repetition in a further answer, 
 or in an answer to an amended bill, of anything contained 
 in a former answer which is not necessary or expedient, is im- 
 pertinent. (2) When an answer is impertinent in part only, 
 the remedy is by exception. (3) The court in cases of imperti- 
 nence ought, before expunging the matter alleged to be imperti- 
 nent, to be especially clear that it is such as ought to be stricken 
 
 (97) Reed v. Cumberland Mut. Fire Ins, Co., 36 N. J. Eq., 393 ; 
 Hegeman v. Brown, 76 N. J. Eq., 126; Ryan v. Anglegea R. Co., 12- 
 Atl, 539- 
 
 (98) Bennett v. Hamlin, 47 N. J. Eq., 326; Thompson v. Williamson, 
 54 AtL, 453- 
 
 (99) See "Motion to Strike Out," page 291, supra; see also "Imperti- 
 nence and Scandal," page 181, supra. 
 
 (100) Heckscher v. Trotter, 41 N. J. Eq., 502. 
 (i) Angel V. P. R. R. Co., 38 N. J. Eq., 58. 
 
 (2) Garr v. Hill, 6 N. J. Eq., 457. 
 
 (3) Squier v. Shaw, 24 N. J. Eq., 74; Feuchtwanger v. McCool,. 
 29 N. J. Eq., 151. 
 
Exceptions. 309 
 
 out of the record, for the reason that the error on the one 
 side is irremediable, on the other, not. (4) 
 
 An appeal lies from an order of the Chancellor sustaining 
 exceptions to a bill for impertinence. (5) Defects in an answer 
 are not cured by a failure to except to it; its defectiveness 
 will have an influence on the decision of the cause, though 
 exceptions to it were not taken. (6) And the same rule will be 
 applied to a defective bill. (7) 
 
 (4) Dodd V. Wilkinson, 42 N. J. Eq., 234; aMrmed ib., 647; Leslie 
 V. Leslie, 50 N. J. Eq., iSS; Doremus v. Paterson, 70 N. J. Eq., 296. 
 
 (5) Camden & Amboy R. R. v. Stewart, 21 N. J. Eq., 484. 
 
 (6) Dougherty v. Dougherty, 7 N. J. Eq., 227. 
 
 (7) Moores v. Moores, 16 N. J. Eq., 275 ; and see "Impertinence 
 and Scandal," page 181, supra. 
 
310 Supplemental Answer. 
 
 CHAPTER XV 
 SUPPLEMENTAL ANSWER. 
 
 In General. If defendant, after filing his answer, finds 
 that he has omitted essential matters therefrom, he may apply 
 to the court, upon notice to complainant, for permission to 
 file a supplemental answer.(i) An application for permission 
 to file a supplemental answer is addressed to the sound dis- 
 cretion of the court. In mere matters of form, clerical mis- 
 takes, or verbal inaccuracies, great indulgence is shown in 
 allowing amendments, even in sworn answers. But applica- 
 tions to amend in material facts, or to change essentially the 
 ground taken in the original answer, are granted with caution, 
 and only where it is manifest that the purposes of substantial 
 justice require it. (2) As a general rule, the court will not 
 permit an answer to be amended by adding material facts 
 prejudicial to the complainant, if they were known to the 
 defendant at the time the original answer was sworn to. (3) 
 
 Newly Discovered Matter of Defense. A supplemental 
 answer is the proper course where new matter of defense is 
 discovered after the filing of the answer, but which existed 
 before the answer was put in. (4) And upon an application 
 for leave to file a supplemental answer, it should appear that 
 the matter of the proposed supplemental answer is new, or a 
 sufficient reason be given for not having it in the original 
 answer. (5) The court will not refuse leave to file a supple- 
 mental answer setting up a defense based upon an event which 
 has happened since the filing of the bill unless there be some- 
 thing in the relation of the parties or in subject matter of the 
 suit which should exclude the proposed defense. (6j 
 
 (i) Small wood v. Lewin, 13 N. J. Eq., 123. 
 
 '(2) Huffman v. Hummer, 17 N. J. Eq., 269; Third Avenue Savings 
 Bank v. Dimock, 24 N. J. Eq., 26; Mechanics National Bank v. Burnet 
 Mfg. Co., 32 N. J. Eq., 236; Welch v. Arnett, 46 N. J. Eq., S48. 
 
 (3) March v. Mitchell, 26 N. J. Eq., 497; aMrmed, 27, N. J. Eq., 
 631 ; and see "Amendment of Pleadings," page 326, infra. 
 
 (4) Talmage v. Pell, 9 Paige, 410; Vandevere v. Reading, 9 N. J. 
 Eq., 446. 
 
 (5) Bell V. Hall, 5 N. J. Eq., 49; Smallwood'v. Lewin, 13 N. J. 
 Eq., 123 ; Wilson v. Wintermute, 27 N. J. Eq., 63. 
 
 (6) Hall V. Home Building Co., 56 N. J. Eq., 304. 
 
Nature and Function. 311 
 
 Mistake in Original Answer. As a general rule, leave 
 will be given to file a supplemental answer to supply an omis- 
 sion arising from oversight of the solicitor who drew the 
 answer, and which was not discovered until the cause was 
 ready for hearing. (7) So leave will be granted to file a sup- 
 plemental answer for the purpose of stating a matter which 
 defendant had been told . by counsel would constitute no 
 defense and which he, therefore, did not mention to his 
 solicitor, who prepared the answer in ignorance of the exist- 
 ence of such defense ; but it will be granted only on such terms 
 as will do complainant no injury, and will create no serious 
 delay. (8) And so where defendant handed to his solicitor 
 a schedule which was to be annexed to the answer, but which 
 was not so annexed, and this omission was not discovered 
 until after the answer was filed, an amendment to the answer 
 was allowed. (9) So leave will be granted where a mistake in 
 names is rnade, or in cases' of surprise. ( 10) 
 
 Inequitable Defenses. Leave will not be granted to file 
 a supplemental answer, by wiay of amendment, to set up a 
 defense which will not tend to promote the ends of justice. 
 (it), So where the defendant intended to rely upon the fact 
 that the contract was usurious tinder the laws of the state of 
 Pennsylvania, and neglected to set up the foreign statute in 
 his answer, he will not, upon an application made at the hear- 
 ing, be permitted to supply the defect by amending the answer 
 or by filing a supplemental answer. (12) And so where in 
 a suit of foreclose a mortgage the answer of a married woman 
 defendant sets up fraudulent representations as a defense, an 
 aniendment to the answer alleging that the defendant did not 
 acknowledge the mortgage on a private examination apart 
 from her husband and that the said mortgage was, therefore, 
 invalid, will not be permitted. (13) And thus a defense to 
 a bill for foreclosure, that the complainants in making the loan 
 
 (7) Vandevere v. Reading, 9 N. J. Eq., 446; Arnaud v. Griggs, 29 
 N. J. Eq., I. 
 
 (8) United Box Board & Paper Co. v. McEwen, ^(i Atl., 550; Burgin' 
 V. Giberson, 23 N. J. Eq., 403. 
 
 (g) Bowen v. Cross, 4 Johns Ch., 375. 
 
 (10) Vandevere v. Reading, 9 N. J. Eq., 446. 
 
 (11) Third Avenue Savings Bank v. Dimock, 24 N. J. Eq., 26. 
 
 (12) Campion v. Kille, 14 N. J. Eq., 229; affirmed, 15; N. J. Eq., 500. 
 
 (13) Marsh v. Mitchell, 26 N. J. Eq., 497; affirmed, 27; N. J. Eq., 631. 
 
312 Supplemental Answer. 
 
 to secure which their mortgage was given were acting ultra 
 vires, is an unconscionable one, which the court will not 
 extend its indulgence to admit. (14) 
 
 Time to File Supplemental Answer. Subject to the lim- 
 itation that an applicant for leave to file a supplemental answer 
 must not have been guilty of laches, such leave may be granted 
 at any time and should not be denied because of the length of 
 time the action has been pending; and if it is manifest that 
 the purposes of substantial justice require it, leave will be 
 granted to file a supplemental answer by way of amendment 
 even after hearing. (15) But after the testimony has been 
 closed, and the cause regularly set down for final hearing, 
 the court should listen to an application for permission to 
 put in a supplemental answer with distrust, and such per- 
 mission will not be granted unless the delay is satisfactorily 
 accounted for. (16) And as a general rule the court will not 
 permit a defendant to change his answer after the cause has 
 been heard upon the evidence, and there has been any expres- 
 sion of opinion from the court. (17) 
 
 Practice. An application for leave to file a supplemental 
 answer must be made by petition setting out particularly the 
 amendment which it is desired to make to the answer. The 
 petition must be supported by affidavits, and the application 
 must be upon notice. (18) 
 
 Costs. Upon an application for leave to file a supple- 
 mental answer, costs will be allowed to the complainant, 
 irrespective of whether the application is granted or not. (19) 
 
 (1.4) Coursen v. Canfield, 21 N. J. Eq., 92; Third Avenue Savings 
 Bank v. Diraock, 24 N. J. Eq., 26; Sternberg v. Sternberg, 69 Atl., 492. 
 
 (is) Powell V. Mayo, 26 N. J. Eq., 120-125; Welch v. Arnett, 46 
 N. J. Eq., 548. 
 
 (16) Bell V. Hall, S N. J. Eq., 49; Small wood v. Lewip, 13 N. J. Eq., 
 123- 
 
 (17) Campion v. Kille, 14 N. J. Eq., 229; affirmed, 15; N. J. Eq., 500. 
 
 (18) Bell v. Hall, S N. J. Eq., 49; Vandevere v. Reading, 9 N. J. 
 Eq., 446; Huffman v. Hummer, 17 N. J. Eq., 269. 
 
 ' (19) Smallwood v. Lewin, 13 N. J. Eq., 123; Welch v. Arnett, 46 
 N. J. Eq., 548-551 ; Bowen v. Cross, 4 Johns, Ch., 375. 
 
Disclaimer. 313 
 
 CHAPTER XVI 
 DISCLAIMER. 
 
 A disclaimer is a mode of defense, and if it prevails, the 
 defendant must be dismissed ; and, as a general rule, he will 
 have a right to be dismissed with costs to be paid by the com- 
 plainant. If, however, a defendant attempts to disclaim in 
 a case where his disclaimer does not entitle him to a dismissal, 
 and where he must, notwithstanding his disclaimer, still be 
 retained as a party defendant, in order that the relief to which 
 the facts alleged in the bill show the complainant to be entitled 
 may be decreed to him, the pleading being useless to the 
 defendant, and without effect in the cause except as an 
 obstruction, will be ordered to be dismissed from the files. 
 Judge Story states the rule on this subject as follows: "A 
 defendant cannot, by a disclaimer, deprive the plaintiff of the 
 right of requiring a full answer from him, unless it is evident 
 that the defendant ought not, after such disclaimer, to be 
 retained as a party to the suit. Cases sometimes arise where a 
 plaintiff may have a right to answer notwithstanding a dis- 
 claimer, and in such a case the defendant cannot shelter him- 
 self from answering by alleging that he has no interest. (i) 
 A disclaimer is regarded as in the nature of an answer and is, 
 therefore, to be put in under oath when the defendant is 
 required to answer under oath, but not otherwise. But a 
 pleading of this kind is manifestly intended to have an effect 
 which an answer does not ordinarily have. It is intended to 
 operate as a release. Under the authority conferred by a 
 retainer, a solicitor has no authority to surrender any sub- 
 stantial right of his client. A disclaimer, being intended to 
 operate as a release, must be signed by the defendant himself, 
 and his signature attested by some person competent to be a 
 witness, but need not be signed by counsel. (2) 
 
 It may be laid down as a general rule that in no case can 
 a party get rid of his liability to answer a suit by a mere 
 disclaimer, if his answer may properly under all the circum- 
 stances be required. (3) Generally speaking, therefore, a mere 
 
 (i) Story's Eq. PI., sec. 840; Isham v. Miller, 44 N. J. Eq., 61. 
 (2) Dickerson v. Hodges, 43 N. J. Eq., 45. 
 (.3) Ellsworth V. Curtis, 10 Paige, 105. 
 
314 Disclaimer. 
 
 disclaimer is scarcely to be deemed sufficient or proper, except 
 where the bill simply alleges that the defendant claims an 
 interest in the property in dispute, without more; for, under 
 such circumstances, if he claims no interest that is a sufficient 
 answer to the allegation. (4) 
 
 A defendant may demur to one part of the bill, plead to 
 another, answer to a third and disclaim to a fourth ; but all 
 these defences must clearly refer to separate and distinct parts 
 of the bill. (5) 
 
 (4) Story's Eq. PI., sec. 838. 
 
 (5) Cooper Eq. PI., 309, 310; Story's Eq. PI., sec. 839. 
 
Replication. . 315 
 
 CHAPTER XVII 
 REPLICATION. 
 
 Nature and Function. After the defendant has put in his 
 answer, the complainant is to judge whether the ansAver is 
 sufficient, and also whether he will amend his bill. If he 
 neither excepts to the answer for insufficiency nor amends his 
 bill, the usual step next taken by him is to file a replication, 
 (i) A replication is the plaintiff's answer or reply to the 
 defendant's plea or answer. By the interposition of a gen- 
 eral replication, every allegation in the answer not directly 
 responsive to the bill but which sets up matter in avoidance 
 or bar is denied and must be proved before it can be used by the 
 party making it. (2) Where a replication is filed without 
 objecting, to the answer it will be assumed that defendant 
 answered fully all of the allegations of the bill in accordance 
 with the couse and practice of the court. (3) 
 
 Where the defendant by his' answer admits the complain- 
 ant's case, or sufficient of it to enable him to go to a hearing 
 without the examination of witnesses, complainant may with- 
 out filing a replication set down the case for hearing on bill 
 and answer; but if no replication to an answer is filed, the 
 answer is taken as true in all points and no evidence will be 
 received unless it be matter of record to which the answer 
 relates, and is provable by the same record. (4) But where 
 no replication has been filed, and counsel on both sides have 
 acted under the same misapprehension in supposing that it 
 has been filed, and the evidence in the cause has been taken, 
 the filing of the replication should be regarded as a mere form, 
 and should be permitted at the hearing as a matter of 
 course. (5) 
 
 Classification of Replications. Formerly replications 
 were either general or special. A general replication, which 
 alone is now used in equity, is a general denial of the truth of 
 
 (i) Story's Eq. PI., sec. 877. 
 
 (3) Mitf. Eq. PL, 2SS; Lovett v. Demarest, 5 N. J. Eq., 113. 
 
 (3) Goodbody v. Delaney, 83 Atl., 988. • 
 
 (4) Chancery Act, sec. 31, page 34, supra; Gaskill v. Sine, 13 N. J. 
 Eq., 130; Thomas v. DeBaum, n(, N. J. Eq., 37; and see "Rules of 
 Evidence," "Hearing on Bill and Answer," page 388, infra. 
 
 (5) Gaskill V. Sine, 13 N. J. Eq., 130. 
 
316 , Replication. 
 
 the defendant's plea or answer and of the sufificiency of the 
 matter alleged therein as a bar to the complainant's suit. A 
 special replication was occasioned by the defendant's intro- 
 ducing new matter into his plea or answer which made it 
 necessary for the complainant to put in issue some additional 
 fact on his part in avoidance of such new matter introduced 
 by the defendant. (6) 
 
 The special replication formerly allowed has been long dis- 
 used, and is no longer permitted. The practice is now to 
 permit the complainant to amend the bill by inserting alle- 
 gations which will raise the issue, and to require the defend- 
 ant to answer them. So where the complainant omits to state 
 that a release was obtained without fraud, which would for- 
 merly have been taken advantage of by special replication, he 
 must now present his issue by amendment to the bill. (7) 
 
 Time to Reply. The complainant must file his replica- 
 tion to a bill or plea within thirty days after the expiration 
 of the time limited or granted for filing the plea or answer, 
 or on failure thereof his bill will be dismissed with costs, 
 unless good cause be shown to the contrary. On filing a repli- 
 cation, the cause will be deemed to be at issue. (8) 
 
 Form of Replication. The general replication to an an- 
 swer, or plea, shall be in form as follows: 
 
 The complainant joins issue on the answer or plea of the 
 defendant. 
 
 The replication to an answer, part of which is in the nature 
 of a cross-bill, shall be in the form following: 
 
 The complainant joins issue on so much of the defendant's 
 answer as is not in the nature of a cross-bill, and as to that 
 part of said answer which is in the nature of a cross-bill, he 
 says (proceeding to answer the cross-matter). (9) 
 
 Withdrawal of Replication. After issue joined, and be- 
 fore the taking of testimony, the complainant will sometimes 
 be permitted to withdraw his replication and amend his bill 
 as his case may require. (10) 
 
 (6) Story's Eq. PI., sec. 878. 
 
 (7) McClane v. Shepherd, 21 N. J. Eq., 76. 
 
 (8) Chancery Act, sec. 24 and 25, page 27, supra. 
 
 (9) Chancery Rule 207: 
 
 (10) Seymour v. Long Dock Co., 17 N. J. Eq., 169; see also Ewald 
 V. Ortynsky, 77 N. J. Eq., 76; afHrmed, 78: N. J. Eq., 527; as to with- 
 drawal of pleas to the jurisdiction see "Pleas to the Jurisdiction," 
 page 252, supra. 
 
Amendments. 317 
 
 CHAPTER XVIII. 
 
 AMENDMENT OF PLEADINGS. 
 
 In General. Courts of Equity have always exercised a 
 very liberal discretion in allowing pleadings to be amended. 
 In deciding whether leave shall be granted to amend they dis- 
 regard mere matters of form, and simply consider whether the 
 amendment is necessary or not to reach the real and substan- 
 tial merits of the case. The duty of the court in such cases 
 is to see to it that the pleadings are put in such form that 
 the real matter in controversy may be fairly tried and justly 
 decided.(i) In Hardin v. Boyd, (2) Mr. Justice Harlan said: 
 "In reference to amendments of equity pleadings the courts 
 have found it impracticable to law down a rule that would 
 govern all cases. Their allowance mvist at every stage of the 
 cause rest in the discretion of the court ; and that discretion 
 must depend largely on the special circumstances of each 
 case. It may be said generally, that in passing upon an appli- 
 cation to amend, the ends of justice should' never be sacrificed 
 to mere form or by too rigid an adherence to technical rules 
 of practice. Undoubtedly great caution should be exercised 
 where the application comes after the litigation has continued 
 for some time, or where the granting of it would cause serious 
 inconvenience or expense to the opposite side ; and an afnend- 
 ment should rarely, if ever, be permitted where it would 
 materially change the very substance of the case made by the 
 bill, and to which the parties have directed their proof." In 
 Cmpper v. Smith{^) Bowen, L. J., said: "I know of no kind 
 of error or mistake which, if not fraudulent or intended to 
 overreach, the court ought not to correct, if it can be done 
 without injustice to the other party. Courts do not exist for 
 the sake of discipline, but for the sake of deciding matters in 
 controversy, and I do not regard such an amendment as a 
 matter of favor or grace." 
 
 (i) Codington v. Mott, 14 N. J. Eq., 430; Fearey v. Hayes, 44 N. J. 
 Eq., 425; Allen v. Allen, 76 N. J. Eq., 245. 
 
 (2) 113 U. S., 756, 761. 
 
 (3) 26 Ch. D., 700, 710. 
 
318 Amendments. 
 
 AMENDING BILLS. 
 
 General Rules. Any imperfection in the frame of a bill 
 may be remedied as often as the cause may require it. Thus, 
 to enable the court to do complete justice, new matter existing 
 at the time of the filing of the bill may be inserted, new par- 
 ties added, irrelevent matter stricken out and unnecessary par- 
 ties omitted. (4) But while a bill may be amended a second 
 time, such applications are only allowed upon the most satis- 
 factory proof. (5) And the court will permit a mere clerical 
 mistake to be corrected instanter, upon suggestion, unless by 
 any possibility the defendant has been misled by it. (6) Sn 
 if the bill is defective for want of parties, the complainant 
 will be permitted to amend by adding the proper parties. (7) 
 And a party may be transposed by amendment from one side 
 of the record to the other ; as where an administratrix is made 
 a party complainant in a bill with her co-administrator with-, 
 out her consent, and claims adversely to the prayer of the bill, 
 the court may order the bill amended by directing her name 
 to be stricken therefrom as complainant and inserted as defend- 
 ant. (8) 
 
 A complainant will not be permitted to amend his bill by 
 inserting therein matter which would change the issue, intro- 
 duce new issues, materially vary the grounds of relief or 
 entirely change the purpose of the suit. (9) And thus where 
 a bill eontain's only a special prayer for relief, no other relief 
 can be granted ; and if the facts set forth in the bill would not 
 authorize other rehef, the prayer will not be amended. (10) 
 So complainant will not be permitted to amend his bill, by 
 inserting therein matters intended to strengthen the case made 
 by the original bill, under an order granting him leave to 
 amend by inserting in the bill an allegation excusing the delay 
 in the bringing of the suit. (11) Amendments which seek to 
 
 (4) Buckley v. Corse, i N. J. Eq., 504; Codington v. Mott, 14 N. J. 
 .Eq., 430. 
 
 (5) Buckley v. Corse,.! N. J. Eq., 504. 
 
 (6) Howell V. Ashraore, 9 N. J. Eq., 82. 
 
 (7) Allen V. Allen, 76 N. J. Eq., 24S-:?49; Seymour v. Long Dock 
 Co., 17 N. J. Eq., 169. 
 
 (8) Dare v. Allen, 2 N. J. Eq., 288. 
 
 (9) Allen V. Allen, 76 N. J. Eq., 245. 
 
 (10) Halstead v. Meeker, 18 N. J. Eq., 136. 
 
 (11) Stevenson v. Markley, 66 Atl., 185. 
 
Bills. 319 
 
 make a new case inconsistent with that originally made, wlien 
 allowable to all, should be applied for and made before the 
 case is at issue. (12) 
 
 A complainant may amend his bill to adapt his case to a 
 state of facts first appearing in the answer and differing in 
 detail from those assumed in drawing the bill. So wnere a 
 bill charged fraud as to certain conveyances, and the answer 
 totally denied the charge of fraud and set up an agreement 
 between the parties, and the complainant asked to ameud the 
 bill, striking out the charge of fraud and inserting the agree- 
 ment, and asked for a discovery and accounting between the 
 parties, it was held that such amendment should be allowed. 
 (13) And so a complainant will be allowed, after the filing of 
 an answer and cross bill by the defendant, to file an amended 
 bill to enable him to present his case in the light of facts dis- 
 closed 'by the answer and cross-bill, notwithstanding an objec- 
 tion that the amended bill proposed to be filed does not com- 
 prehend the whole case or issue between the parties, and that 
 such issue will be made and heard by proceeding on the orig- 
 inal bill, answer and cross-bill. (14) 
 
 An admission or allegation of fact in an answer will not 
 avail the complainant unless put in issue by the bill. If he 
 desires to avail himself of such fact, he must amend the bill. 
 (15) But when a complainant obtains leave to amend his 
 bill after answer, such amendment, however trivial and unim- 
 portant," authorizes the defendant to put in an answer making 
 an entirely new defense even to the extent of contradicting 
 his former answer. (16) And a complainant cannot dismiss 
 his own bill as to part of the relief prayed and proceed with 
 the residue. The settled practice in Chancery is to allow, by 
 way of amendment of the bill, what is here sought to be 
 attained by a dismissal of part. (17) 
 
 At What Time Bill May be Amended. Amendments are 
 allowed in equity with great liberality. They are, in fact, made 
 
 (12) Codington v. Mott, 14 N. J. Eq., 430. 
 
 (13) Redstrake v. Surron, 3 Atl., 693. 
 
 (14) Van Riper v. Claxton, 9 N. J. Eq.,'302!; Horn v. Clements, 8 
 Atl., S30. 
 
 (15) Hoff V. Burd, 17 N. J. Eq., 201. 
 
 (16) United Box Board & Paper Company v. McEwan Bros. Co., 
 76 Atl., SSO. 
 
 (17) Camden & Amboy R. R. v. Stewart, 19 N. J. Eq., 69. 
 
320 Amendments. 
 
 at every stage of the proceedings wherever the substantial ends 
 of justice will be thereby promoted; but the indulgence has its 
 limitations, although from the very nature of the case it is 
 difficult to fix the precise line beyond which the court, in the 
 exercise of its discretion, will not go. (i8) Before issue joined, 
 where the pleadings on file have not been sworn to, amendments 
 to the bill are permitted with the utmost liberality. (19) And 
 even an appellate tribunal will sometimes reverse a decree and 
 send a cause back to the original jurisdiction in order that an 
 amendment may be made so that the real merits of the con- 
 troversy may be settled. (20) So the bill may be amended 
 even after the trial of an issue at law. (21) And so a bill 
 may be amended after an injunction granted. (22) But where 
 A and B exchanged lands in 1857 and their respective deeds 
 were executed therefor, and in 1888 a bill was filed to have 
 the exchange set aside, merely alleging fraud in that no such 
 land as that conveyed by B existed, it was held that an amend- 
 ment of the bill so as to allege fraudulent representations by 
 B must be refused on the ground of laches, where A's own 
 testimony showed that he learned of the fraudulent repre- 
 sentations 10 years before he filed his bill. (23) 
 
 Amendment of Bill Before Hearing. Before subpoena 
 issued, the complainant may amend his bill of course, without 
 motion or rule, and without cost ; after subpoena issued, the 
 complainant may, without notice, unless upon application for 
 the order notice is directed to be given, obtain an order to 
 amend his bill at any time before answer, plea or demurrer 
 filed, and upon such terms as are imposed by the order. (24) 
 If the defendant demur to the bill for want of parties, or for 
 some other defect which does not go to the equity of the whole 
 bill, the complainant may amend of course at any time before 
 the next term after filing the demurrer, upon payment of 
 
 (18) Codington v. Mott, 14 N. J. Eq., 430. 
 
 (19) Seymour v. Long Dock Company, 17 N. J. Eq., 169. 
 
 (20) McLaughlin v. VanKeuren, 21 N. J. Eq., 379; Ogden v. Thorn- 
 ton. 30 N. J. Eq., 569; Reversed, 32 N. J. Eq., 723; Stevens v. U. S. 
 Steel Corp., 68 N. J. Eq., 373-377; Allen v. Allen, 76 N. J. Eq., 245. 
 
 (21) Powell v. Mayo, 26 N. J. Eq., 120. 
 
 (22) Johnson v. Vail, 14 N. J. Eq,, 423. 
 
 (23) Barton v. Long, 45 N. J. Eq., 841. 
 
 (24) Chancery Rule 66. 
 
Bills. 321 
 
 costs to be taxed. (25) After general demurrer to a bill for 
 want of equity, the pleadings may not be amended unless there 
 is a defect of parties, or some omission or mistake of fact 
 or circumstances, connected with the substance of the case, but 
 not forming the substance itself. (26) 
 
 . If the defendant put in an answer, which is excepted to as 
 insufficient, and the defendant submit to answer further, or the 
 answer shall, on reference be reported insufficient, in either 
 case the complainant may amend his bill of course and without 
 costs and the defendant shall answer the amended billand the 
 exceptions together ; if the defendant shall plead or demur and 
 the plea or demurrer shall be overruled, the complainant may, 
 before the filing of an answer, amend his bill of course and 
 without costs. (27) So where defendant demurred to com- 
 plainant's bill on the ground that the allegations therein as to 
 time, place, etc., were insufficient, and the demurrer itself was 
 overruled because it did not sufficiently express the causes of 
 demurrer, leave was given to the complainant to amend his bill 
 by supplying the necessary allegations. (28) 
 
 After issue joined and before the taking of testimony, the 
 complainant will be permitted to withdraw his replication and 
 amend his bill as the case may require ; but after witnesses 
 have been examined, the time for allowing an arhendment, 
 except the addition of defendants, or such as do not sub- 
 stantially alter the case, has passed. (29) The allowance of 
 amendment after issue joined is a matter of indulgence, to be 
 granted in the discretion oi the court. (30) 
 
 Amendments at the Hearing. The court has power to 
 order an amendment on final hearing; but this power is never 
 exercised except where the ends of justice render it necessary, 
 and where it can be done without substantially abridging the 
 right of defense. (31) But where complainant's bill to have 
 his judgment declared a lien on lands conveyed away by the 
 
 (25) Chancery Rule 70. 
 
 (26) Seymour v. Long Dock Company, 17 N. J. Eq., 169. 
 
 (27) Chancery Rule 67. 
 
 (28) Marsh v. Marsh, 16 N. J. Eq., 391. 
 
 (29) Seymour v. Long Dock Company, 17 N. J. Eq., 169. 
 
 (30) Allen V. Allen, 76 N. J. Eq., 245. 
 
 (31) Midmer v. Midmer, 26 N. J. Eq., 299; afHrmed, 27 N. J. Eq., 
 548; Ogden V. Thornton, 30 N. J. Eq., 569; Reversed, 32 N. J. Eq., 
 723; M. E. Church of Gloucester v. Hammell, 73 N. J. Eq., 293. 
 
322 Amendments. 
 
 judgment debtor does not aver that such conveyance "hindered, 
 delayed and embarrassed him in collecting the money due on 
 his judgment," he may amend his bill by inserting such aver- 
 ments at the final hearing, if he shows that such conveyances 
 were fraudulent as to him. (32) And so where a cestui que 
 trust was made a defendant, an amendment was ordered at 
 the hearing striking him out as defendant, and making him 
 complainant. (33) And so where complainant pleads imper- 
 fectly the statute of a foreign state, he will be granted leave, 
 on request made during the trial, to amend his bill by properly 
 pleading such statute so as to render the matter admissible in 
 evidence. (34) 
 
 So where on a bill to charge a legacy upon devisees' land 
 no objection was made until all the testimony was taken 
 upon final hearing that the executor was not made a party, 
 complainant will be allowed to amend the bill by adding the 
 executor as a party defendant, it appearing that the amend- 
 ment is necessary to the ends of justice and will in no way 
 embarrass defendant's right of defense. (35) And so where 
 complainant, being a corporation, sues by a wrong name, the 
 bill may be amended in this respect at the hearing. (36) So 
 leave was- granted, at the hearing on a rule to show cause 
 why an" injunction should not issue, to amend the bill by 
 supplying an omission which had been made the ground of 
 objection in defendant's answer. (37) So where in an injunc- 
 tion bill an injunction was prayed for in the prayer of the 
 bill, but was omitted in the prayer for process, the bill will 
 be amended even at the hearing by adding the prayer for 
 process of injunction. (38) 
 
 A complainant will not, however, be allowed to amend his 
 bill at the final hearing so as to make a new or inconsistent 
 case, or to state a new and additional claim to relief. (39) And 
 
 (32) Eoster V. Knowles, 42 N. J. Eq., 226. 
 
 (33) Elmer v. Loper, 25 N. J. Eq., 475. 
 
 (34) Boehme v. Rail, 51 N. J. Eq., 541. 
 
 (35) M. E. Church of Gloucester v. Hammel, 73 N. J. Eq., 293. 
 
 (36) Hoboken Building Association v. Martin, 13 N. J. Eq., 427. 
 
 (37) Delaware & Raritan Canal Co. v. Raritan, etc., R. R. Co., 
 14 N. J. Eq., 445. 
 
 (38) Bailey v. Styles, 3 N. J. Eq., 245. 
 
 (39) Pasman v. Montague, 30 N. J. Eq., 385-393; Jones v. Daven- 
 
Bills. 323 
 
 so where the object of a suit is not of a character to commend 
 it to the favorable consideration of the court, and the proofs 
 fail to convince the judgment of the court that the plaintiff is 
 entitled to any relief, leave to amend at the final hearing will 
 be refused. (40) 
 
 It is sufficient excuse for laches in not applying for leave 
 to amend an original bill so as to bring into court .a necessary 
 party until the hearing upon bill, answers and supplemental 
 bill filed for the purpose of bringing in all parties then thought 
 necessary, that counsel supposed no amendment was necessary 
 and the court will not, as of course, dismiss such original bill, 
 but may permit the complainant to proceed thereon. (41) 
 
 Amending to Conform to Proofs. It is a general rule 
 that amendments may be made at the hearing, if necessary 
 and proper in order that issues which have been in fact tried 
 by the parties, and upon which both parties have been practi- 
 cally and fully heard, may be formally set out in the pleadings 
 so that the pleadings may conform to the proofs. (42) And 
 the court may permit an amendment of the bill where the 
 real truth was not disclosed by the answer, and was' not, dis- 
 covered until the evidence was nearly closed, if it be necessary 
 to the ends of justice, and can be done without substantially 
 abridging the right of defense. (43) And so where the whole 
 case is before the Chancellor upon proofs' made by the defend- 
 ant himself, and complainant's bill does not conform to such 
 proofs, and the questions arising upon such state of facts have 
 been fully discovered, the court will permit the bill to be 
 amended so as to correspond with the case even after the proofs 
 are closed. (44) 
 
 prort, 45 N. J. Eq., yy ; Reversed, 46 N. J. Eq., 237 ; Dittman v Distilling 
 Co., 64 N. J. Eq., S37-SS4- 
 
 (40) Midmer v. Midmer, 26 N. J. Eq., 299; aMrmed, 27 N. J. Eq., 
 54®; Ogden V. Thornton, 30 N. J. Eq., 569; Reversed, 32 N. J. Eq., 723. 
 
 (41) Stover V. Wood, 26 N. J. Eq., 56; affirmed, 28 N. J. Eq., 248. 
 
 (42) Hampton v. Nicholson, 23 N. J. Eq., 423; Dittman v. Distilling 
 Co. of America, 64 N. J. Bq., 537; Ogden v. Thornton, 30 N. J. Eq., 
 569-573 ; Reversed, 32 N. J. Eq., 723. 
 
 (43) Hoboken Building Ass'n. v. Martin, 13 N. J. Eq., 427; Coding- 
 ton V. Mott, 14 N. J. Eq., 430; Reed v. Reed, 16 N. J. Eq., 248; Cowart 
 V. Perrine, 21 N. J. Eq., loi ; Midmer v. Midmer, 26 N. J. Eq., 299; 
 aMrmed, 27 N. J. Eq., 548; Feary v. Hayes, 44 N. J. Eq., 425; Stevens 
 V. Shaw, 66 N. J. Eq., 116. 
 
 (44) VanRiper Claxton, 9 N. J. Eq., 302 ; Qiambers V. Tulane, 
 9 N. J. Eq., 146-152; Wilson v. Brown, 13 N. J. Eq., 277-280; Lokerson 
 
324 Amendments. 
 
 A bill to require a reconveyance of property on the ground 
 of actual fraud may be amended on final hearing to meet the 
 proof furnished by defendant, namely: that other fraudulent 
 acts were committed not inconsistent with those pleaded. (45) 
 So where a bill set forth an agreement to convey both real and 
 personal estate, and the evidence showed an agreement for the 
 conveyance of real .estate only, the bill was permitted to be 
 amended after final hearing so as to make the contract alleged 
 agree with that proved. (46) And so where a bill was filed 
 by a judgment creditor of one defendant to set aside as fraudu- 
 lent a conveyance of his lands to his co-defendant, and the 
 proofs showed that the latter held the lands in trust for the 
 judgment debtor, it was held that the bill might be amended 
 to correspond with these proofs, and relief granted accord- 
 ingly. (47) 
 
 So where special relief is sought in a bill and not specifically 
 mentioned in the prayer, and the proofs make a strong case for 
 the granting of such relief, equity will order an amendment of 
 the prayer, and make a decree in accordance with such amend- 
 ment. (48) So where a bill introduces a distinct question not 
 related to the main issue, and no evidence is produced to enable 
 the court to determine the question, the court may conclude 
 not to decide that part of the case, and order that the pleadings 
 be amended by striking it out. (49) Where, however, the 
 evidence fails to convince the judgment of the court that the 
 complainants are entitled tO' any relief, an application to amend 
 will be denied. (50) 
 
 If after the taking of testimony there be an imperfection in 
 the frame of the bill, if the case as stated is insufficient to war- 
 rant the relief prayed for, or to grant a complete decree, or if 
 some other point seems necessary to be made or some addi- 
 
 V. Stillwell, 13 N. J. Eq., 357-359; Howell v. Sebring, 14 N. J. Eq., 84; 
 M. E. Church of Gloucester v. Hammel, 73 N. J. Eq., 293 ; Allen v.. 
 Allen, 76 N. J. Eq., 245. 
 
 (45) Stevens v. Shaw, 66 N. J. Eq., 116. 
 
 (46) Davison v. Davison, 13 N. J. Eq., 246; Ogden v. Thornton, 
 30, N. J. Eq., 569; Reversed, 32 N. J. Eq., 723. 
 
 (47) Redstrake v. Surron, 3 Atl., 693. 
 
 (48) N. Y. Fire Ins. Co.. v. Tooker, 35 N. J. Eq., 408; aiKrmed, 36 
 N. J. Eq., 646. 
 
 (49) Weyman v. Thompson, 50 N. J. Eq., 8-24; Reversed, 52 N. J- 
 Eq., 263. • 
 
 (50) Midmer v. Midmer, 27 N. J. Eq., 548. 
 
Bills. 325 
 
 tional discovery is found requisite, the complainant must resort 
 to a supplemental bill. (51) If complainant intends to rely on 
 the case made by his proofs which vary from the bill, applica- 
 tion for leave to amend should be made promptly. (52) 
 
 When Pleadings Are Verified. When the application is to 
 amend a pleading that has been verified the court will exercise 
 greater caution in allowing the amendment ; and if the facts 
 proposed by the amendment are not consistent with the orig- 
 inal bill, as a general rule it will not be allowed, unless it can 
 be clearly shown to the satisfaction of the court that the facts 
 as alleged in the original bill were the result of mistake or 
 surprise, or unless the facts proposed by the amendment are 
 in addition to the facts alleged in the original bill, and con- 
 sistent therewith. One important reason for holding a strict 
 hand over the privilege of amending sworn pleadings is to 
 check all temptation to falsehood or perjury, by not permitting 
 a party who has once made his allegations or statements under 
 oath to come in at any time and expunge the same or substitute 
 other and different matter. (53) So it is held that a sworn 
 bill cannot be amended by striking out except under very spe- 
 cial circumstances, which must be shown to the court. (54) 
 
 Practice. The affidavit to a petition for amendment 
 should state the ignorance of the applicant at the time he filed 
 the original pleading, and the nature of the proposed amend- 
 ment. (55) And application to amend should be made promptly 
 after the necessity for amendment has been discovered. (56) 
 
 Where a complainant shall amend his bill which has been 
 sworn to, no interlineation, erasure or other alteration shall be 
 made in the original bill on file ; but the amended bill shall be 
 engrossed anew, sworn to and filed and annexed to the original 
 bill^ unless the court shall otherwise order. (57) 
 
 Where complainant has filed a sworn bill for an injunction, 
 and a temporary injunction has been denied because of an 
 
 (51) Seymour v. Long Dock Company, 17 N. J. Eq., 169. 
 
 ('52) Midmer v. Midmer, 26 N. J. Eq., 299; affirmed, 27 N. J. Eq., 
 548. 
 
 (53) Verplanck v. Insurance Co., i Edw. Ch., 46-53. 
 
 (54) Swift V. Eckford, 6 Paige, 22. 
 
 (55) Buckley v. Corse, i N. J. Eq., 504; Bell v. Hall, s N. J. Eq., 49. 
 
 (56) Codington v. Mott, 14 N. J. Eq., 430; Midmer v. Midmer, 26 
 N. j. Eq., 299; affirmed, 27 N. J. Eq., S48. 
 
 (57) Chancery Rule 71. 
 
326 Amendments. 
 
 alleged defect in the bill and proof, with the suggestion that 
 the bill be amended, complainant will not be entitled to alter 
 the character of the bill by making unsworn additions 
 thereto. (58) 
 
 In all cases where the defendant's appearance has been 
 entered, and the complainant is allowed to amend, he shall be 
 required to furnish the defendant with a certified copy of the 
 amended bill, or to issue a new subpoena. (59) And where a 
 bill to foreclose is amended without service of a copy of the 
 amendment upon defendant, and complainant afterwards asks 
 for the appointment of a receiver, an appearance to that motion 
 will not waive defendant's right to a copy of the amend- 
 ment. (60) 
 
 AMENDMENT OF ANSWERS. 
 
 General Rules. An application to amend an answer is 
 addressed to the discretion of the court. In mere matters of 
 form:, clerical mistakes or verbal inaccuracies, great indul- 
 gence is shown in allowing amendments, even in sworn answers ; 
 but applications to amend any material facts, or to change essen- 
 tially the ground taken in the original answer, are granted 
 with great caution, and only where it is manifest that the pur- 
 poses of substantial justice require it. (61) The discretion of 
 the court in allowing answers to be amended should always 
 be exercised cautiously, and leave should never be granted 
 except when necessary to the doing of justice. (62) 
 
 The defendant knows by the bill what he is called upon to 
 answer, and he must answer not only fully, but truthfully 
 and conscientiously, and that whether under oath or not ; every 
 consideration of private interest and public welfare requires 
 
 (58) Schuler v. Southern Iron & Steel Co., 76 Atl., 239. 
 
 (59) Chancery Rule 69. 
 
 (60) Myers v. Morris, 11 Atl., 859. 
 
 (61) Huffman v. Hummer, 17 N. J. Eq., 269; Third Avenue Savings 
 Bank v. Dimock, 24 N. J. Eq., 26; Marsh v. M'itchell, 26 N. J. Eq., 
 4517; affirmed, 27 N. J. Eq., 631; Price v. Lawton, 27 N. J. Eq., 325-328; 
 Arnaud v. Grigg, 29 N. J. Eq., i ; Wekh v. Arnett, 46 N. J. Eq., 548. 
 
 (62) Burgin v. Giberson, 23 N. J. Eq., 403 ; Mechanics National 
 Bank of Newark v. Burnet Mfg. Co., 32 N. J. Eq., 236. 
 
Answers. 327 
 
 this. (63) So where a defendant appHed for leave to file an 
 amended answer by way of cross-bill against certain defend- 
 ants, and his proposed answer did not seek to litigate matter 
 necessary to his defense, but sought an opportunity by that 
 means to supplement and reinforce the bill in aid of the com- 
 plainant, the application was denied. (64) 
 
 With regard to reforming answers, the better practice is 
 not to permit an amendment of the answer filed, but to allow 
 the defendant, upon a special application setting out particu- 
 larly the amendments, to file a supplemental answer. The 
 court has never gone further than to permit a defendant to 
 correct or add some single fact which had been rnisstated of 
 omitted through mistake, fraud or accident. (65) 
 
 Correcting Mistakes. A mistake in the original answer 
 may be corrected by amendment; so the court will order an 
 answer amended by inserting omitted matter which might con- 
 stitute a defense, but which was omitted for the reason that 
 the defendant had been told by his former counsel that it 
 would constitute no defense, and did" not, therefore, mention 
 it to the solicitor who prepared the answer. (66) But the 
 court refused a petition of defendant to amend which showed 
 that the answer was false in all its facts, and alleged as an 
 excuse that the answer was drawn by a solicitor who assured 
 defendant that it was all right, and that the facts were such 
 as did not reflect on his character, it not being pretended that 
 the answer was not read to him, or that the petitioner did not 
 understand the facts as set forth. (67) And where defendant 
 intentionally, and after a full disclosure to his counsel and 
 careful consideration whether he should plead them, omitted 
 certain facts from his answer on which his co-defendant based 
 his defense, and which, if good, would defeat plaintiff's 
 recovery against him and he was guilty of laches in making 
 his application to amend the answer, such application was 
 
 (63) Welch V. Arnett, 46 N. J. Eq., 548, 549. 
 
 (64) Kirkpatrick v. Corning, 39 N. J. Eq., 136; affirmed, 40 N. J. 
 Eq., 343- 
 
 (6s) Vandervere v. Reading, 9 N. J. Eq., 446; Huffman v. Hummer, 
 17 N. J. Eq., 263; Burgin v. Giberson, 23 N. J. Eq., 403. 
 
 (66) Burgin v. Giberson, 23 N. J. Eq., 403 ; United Box Board 
 Paper Company v. McEwan, 76 Atl., S50-SS4- 
 
 {6y) Vandervere v. Reading, 9 N. J. Eq., 446. 
 
328 Amendments. 
 
 denied as a matter of discretion. (68) So it is said to be 
 doubtful whether defendant in a foreclosure suit would be 
 permitted to amend an answer by adding thereto an allegation 
 of eviction from the mortgaged premises. (69) 
 
 The court will not permit defendant to amend where he 
 has been in default, except by putting him on terms not to 
 take advantage of certain defenses which are called uncon- 
 scionable. (70) So a defendant will not be permitted to amend 
 his answer for the purpose of enabling him to avail himself 
 of the defense of usury. (71) In the case of Glading v. Cub- 
 berly usury was set up as a defense in the ordinary form 
 appropriate to pleading usury taken in this state, and it 
 appeared that the agreement was not made in this state, and 
 it also appeared that a premium had been taken for the loan 
 of the money. Chancellor Runyon said : "The answer is not 
 sustained. I am not satisfied, however, to give to the com- 
 plainant the benefit of the premiums he has received, and unless 
 he is willing to take a decree for the amount of the mortgage, 
 after making proper deductions for the premiums, I will allow 
 the defendants to amend their answers so as tO' set up the fact 
 that the taking of the premiums was contrary to the law of 
 Pennsylvania." (72) In a more recent case, where the facts 
 were similar to those in Glading v. Cuhberly, except that the 
 usury was taken in the state of New York, where the statute 
 provides that in case of usury the entire debt is forfeited. 
 Vice Chancellor Stevens held that it was doubtful whether 
 on principle the court ought, in any case, to allow an amend- 
 ment which would result in the forfeiture of the debt, and 
 disposed of the question by holding that if the complainant 
 would consent to forego the usurious interest, he would advise 
 a decree in his favor, and that in default of such consent he 
 would hear an application to amend. (73) Where defendant 
 
 (68) Mechanics National Bank of Newark v. Burnet Mfg. Co., 32 
 N. J. Eq., 236. 
 
 (69) Price's Executors v. Lawton, 27 N. J. Eq., 325 ; affirmed, 28 
 N. J. Eq., 274. . 
 
 (70) See "Extending Time for Pleading," sec. 20, page 25, supra. 
 
 (71) Marsh v. Lasher, 13 N. J. Eq., 253; Vanderveer v. Holcomb, 
 22 N. J, Eq., S5S. 
 
 (72) Glading v. Cubberly, 29 N. J. Eq., 104; affirmed, 30 N. J. Eq., 
 339- 
 
 C73) Richards \-. Weingarten, 58 N. J. Eq., 206. 
 
Answers. 329 
 
 designed to rely upon the fact that the contract mentioned 
 in complainant's bill was usurious under the laws of Pennsyl- 
 vania, but failed to plead the Pennsylvania statute, or to pre- 
 sent any proof of the same, and made an application at the 
 hearing of the cause to supply the defect by amending the 
 answer, or by filing a supplemental answer, the application 
 was denied, for the reason that the design of the amendment 
 was not to correct any mistake or misstatement in the original 
 answer, but to set up substantially a new ground of defense. 
 The court, with great difficulty, permits an amendment or sup- 
 plemental answer when an addition is to be put upon the record 
 prejudicial to the plaintiff; nor will it, as a general practice, 
 permit the defendant to change his answer when the cause has 
 been heard upon the evidence and there has been any expres- 
 sion of opinion from the court. (74) 
 
 Setting Up New Defenses. It is doubtful whether a party 
 will be authorized to set up, by amendment, new facts which 
 are a falsification of the facts originally stated. (75) And a 
 defendant will not be permitted by amendment to set up a 
 defense not consistent with the ends of justice. (76) 
 
 So where, in a suit by a trustee to foreclose a mortgage 
 under an assignment thereof, the judgment creditors of the 
 owner of the equity in the land intervened, and pleaded that 
 the assignment of the mortgage was fraudulent as against them 
 as creditors of the owner, such creditors could not amend their 
 cross bill by also alleging that the assignment was fraudulent 
 as against them as creditors of the trustee, the proposed amend- 
 ment constituting a distinct cause of action. (77) But facts, 
 alleged by way of cross-bill, which are proper matters of 
 defense, will be stricken out, and the answer so amended as 
 to include such facts. (78) 
 
 Sworn Answers. The court will not lend a willing ear 
 to applications to permit sworn answers to be amended or 
 taken from its files. Where it is some mere matter of form 
 
 (74) Campion v. Kille, 14 N. J. Eq., 229; aifirmed, 15 N. J. Eq., 500. 
 
 (75) Thornton v. Ogden, 32 N. J. Eq., 723; but see Barnegat Beach 
 Assn. V. Busby, 20 Atl., 214. 
 
 (76) Third Ave. Savings Bank v. Dimock, 24 N. J. Eq., 26; and 
 see "Correcting mistakes," page 327, supra. 
 
 (77) Carter v. Carter, 63 N. J. Eq., 726; aiKnned. 65 N. J. Eq.. 766. 
 
 (78) Van Winkle \. Armstrong, 41 N. J. Eq., 402. 
 
330 Amendments. 
 
 sought to be corrected — a mistake apparent upon the face of 
 the paper, which can be corrected without prejudice to the 
 complainant — the objection will not be so serious, but even in 
 such case the court always acts with caution, never allowing 
 the amendment except upon the condition that the defendant 
 shall, immediately upon the corrections being made, reswear 
 the answer ; and it will never make such an order where the 
 complainant can be at all prejudiced by it. (79) As a general 
 rule, an amendment will not be permitted to an answer after 
 it has been sworn to and filed, except to correct a verbal or 
 clerical mistake, or to amend or supply a formal defect. A 
 supplemental answer must in such a case be filed, and this will 
 be permitted even after replication and after the complainant 
 has commenced taking evidence. (80) So auv application to 
 amend a sworn answer on the ground of mistake discovered at 
 the time the answer was read to the party making it, which 
 application was made more than two years after the discovery 
 and filing of the answer, without excuse for the delay, and upon 
 feeble and unsatisfactory proof of the alleged mistake, was 
 refused. (81) An application to amend a sworn answer in a 
 material matter must be made upon notice. (82) 
 
 At What Time Answer May be Amended. Where an 
 application is made for leave to amend an answer or to file 
 a supplemental answer in a matter which is material and pre- 
 judicial to the complainant, and the application is not made 
 until after depositions have been taken, it should be listened 
 to with distrust. It is an application to the discretion of the 
 court; omission by plain mistake might, under favorable cir- 
 cumstances, be allowed to be supplied, but in general the 
 defendant should state by affidavit that when he put in his 
 answer he did not know the circumstances on which he makes 
 the application, or any other circumstances on which he ought 
 to have stated the facts otherwise. (83) But as a general rule, 
 in case of a plain mistake as to facts, though not discovered 
 
 (79) Vandervere v. Reading, 9 N. J. Eq., 446; Campion v. Kille, 
 14 N. J. Eq. 229; aMrmed, 15 N. J. Eq., 500; Burgin v. Giberson, 23 
 N. J. Eq., 403. 
 
 (80) Burgin v. Giberson, 23 N. J. Eq., 403 ; Huflfnian v. Hummer, 
 17 N. J. Eq., 269. 
 
 (81) Wilson V. Wintermute, 27 N. J. Eq., 63. 
 
 (82) Huffman v. Hummer, 17 N. J. Eq., 269. 
 
 (83) Bell V. Hall, S N. J. Eq., 49. 
 
Answers. 331 
 
 by the defendant until after argument, an amendment to the 
 answer will be allowed, whether sw'orn to or not. (84) 
 
 So where the ends of justice render it necessary and the 
 answer did not abridge the right of defense, and the case was 
 fully presented at the hearing in all itsi details, and the' answer 
 set up facts upon which defendants could only have relief by 
 way of cross-bill, it was amended by way of cross-bill so as 
 to give defendants a right to the relief which they sought. (85) 
 And so an omission of the names of the parties from an 
 unsworn answer, made by mistake of the solicitor, is amend- 
 able after replication and testimony in behalf of the parties 
 for whom the answer was put in, as a mere pleading, when 
 attention to the mistake Was not called until after the hearing, 
 the evidence in support of the answer having been admitted 
 without objection. (86) So leave may be granted to amend 
 an answer by supplying an omission arising from the oversight 
 of the solicitor who drafted it, and not discovered until the 
 cause was ready for hearing, without postponing the hearing 
 to await a formal motion to amend, unless complainant objects 
 on the ground of surprise. (87) And is not too late iot defend- 
 ant to move to amend his answer by setting up the statute of 
 frauds, after the complainant has closed his testimony. (88) 
 
 The Court of Chancery may permit an answer to be 
 amended to correct a plain mistake of fact even after the 
 announcement of the decision of the cause, where the applica- 
 tion is made promptly upon discovery of the mistake. (89) 
 So leave will be granted to file a supplemental answer by way 
 of amendment even after hearing, where it is manifest that the 
 purposes of substantial justice require it. (90) And an answer 
 setting up usury may be amended to give defendant the benefit 
 of facts admitted, where complainant voluntarily confesses the 
 taking of usury, and there is a variance between the allega- 
 tions and .proof, as to the contract. (91) But where defendant 
 
 (84) Welch V. Arnett, 17 Atl., 289; afHrmed, 46 N. J. Eq., 548. 
 
 (8s) Brands v. DeWitt, 44 N. J. Eq., 545. 
 
 (86) McMichael v. Brennan, 31 N. J. Eq., 496. 
 
 (87) Arnaud v. Grigg, 29 N. J. Eq., i. 
 
 (88) Hann v. Barnegat, etc., Imp. Co., 8 Atl., 531. 
 
 (89) Welch V. Arnett, 46 N. J. Eq., S4«. 
 
 (90) Welch V. Arnett, 46 N. J. Eq., 548. 
 
 (91) Cox V. Westcoat, 29 N. J. Eq., 551. 
 
332 Amendments. 
 
 pleads usury, and there is a variance between the contract as 
 set up in the answer and as proven by the evidence, unless com- 
 plainant consists to forego the usury, defendant may be al- 
 lowed to amend his answer to conform to the proofs. (92) 
 
 An amendment to a sworn answer by a defendant, consisting 
 of material facts known to the defendant at the time the 
 original answer was sworn to, will not be permitted on final 
 hearing. (93) So where a final decree has been entered in a 
 cause, the court will not reopen it, upon motion, to permit a 
 defendant to amend an answer by setting up a former suit 
 and a decree that was made therein. (94) And the court dis- 
 missed, for want of equity, a petition to amend an answer 
 so as to set up in defense matters well known when the answdr 
 was filed, where the application was made after the cause had 
 gone to final decree in the Court of Chancery and that decree 
 had been affirmed by the Court of Errors and Appeals, and 
 the testimony under the reference ordered by the latter decree 
 had been closed and the case partly summed up before the 
 master, the only ground presented for the allowance of the 
 amendment being that the defendants were advised when 
 they filed their answer that the suit could not be success- 
 ful.(9S) 
 
 AMENDING PLEAS. 
 
 General Rules. Liberty to amend a plea will only be 
 granted in cases where there is an apparently good ground 
 of defense disclosed by it, but owing to some accident or 
 mistake it has been informally pleaded. (96) A plea may be 
 amended where, in matters of account material averments 
 have been omitted. (97) But where the plea shows no sub- 
 stantial ground of defense, permission to amend will not be 
 given. (98) Where permission to amend a plea is given, a 
 
 (92) Richards v. Weingarten, 58 N. J. Eq., 206. 
 
 (93) Marsh v. Mitchell, 26 N. J. Eq., 497; affirmed, 27 N. J. Eq., 631. 
 
 (94) Vail V. C. R. R. of N. J., 4 Atl., 663. 
 
 (95) United R. R., etc., Co.'s v. Long Dock Co., 41 N. J. Eq., 407. 
 
 (96) I Daniel's Ch. Pr,, 704. 
 
 (97) Meeker v. Marsh, i N. J. Eq., 198. 
 (q8) I Daniel's Ch. Pr., 704. 
 
Costs. 333 
 
 short time is generally given in which the amendment must 
 be made. (99) 
 
 AMENDING DEMURRERS. 
 
 In General. If a general demurrer made to the whole 
 bill is bad, though it might have been good if filed to part 
 only, leave will sometimes be given to amend the demurrer so 
 as' to confine it to the objectionable part of the bill. (loo) 
 
 AGREEMENTS FOR AMENDMENT. 
 
 In G^eneral. An agreement for the amendment of a plead- 
 ing amounts to nothing at all unless it has been executed by 
 an actual change in the pleading. Courts can only hear and 
 determine causes on the pleadings actually filed, and not on 
 what parties may agree they shall be. (loi) So an agree- 
 ment between solicitors to amend a bill so as to conform to 
 the facts, there being no amendment actually made, cannot 
 avail on hearing for final decree ; neither an agreement to 
 amend nor an order giving leave to amend amounts to an 
 amendment, even if filed. (102) 
 
 COSTS AND TERMS OF AMENDMENT. 
 
 In General. All amendments shall be made with or with- 
 out costs, and on such equitable terms as the court shall direct. 
 (103) In all cases not before mentioned in which the defend- 
 ant shall have answered the complainant's bill and the com- 
 plainant shall obtain leave to amend, if such amendment 
 require a new or further answer, then the complainant shall 
 pay costs to be taxed. (104) 
 
 (99) I Daniel's Ch. Pr., 703. 
 
 (100) Vandeveer v. Stryker, 8 N. J. Eq., 175-186; Marsh v. Marsh, 
 16 N. J. Eq., 391 ; Kirkpatrick v. Corning, 39 N. J. Eq., 22 ; Reversed, 
 40 N. J. Eq., 241. 
 
 (loi) Jones V. Davenport, 45 N. J. Eq., 77; Reversed, 46 N. J. 
 Eq., 237. 
 
 (102) Wilson V. King, 23 N. J. Eq., 150. 
 
 (103) Chancery Act, sec. 77, page 68, supra. 
 
 (104) Chancery Rule 68. 
 
334 Lis Pendens. 
 
 CHAPTER XIX 
 LIS PENDENS. 
 
 General Consideration. A suit in chancery, duly prose- 
 cuted in good faith, and followed by a decree, is construc- 
 tive notice to every person who acquires from a defendant 
 pendente lite an interest in the subject matter of the litiga- 
 tion, of the legal and equitable rights of the complainant, as 
 charged in the bill and established by the decree. This doc- 
 trine of courts of equity is of ancient origin, and rests not 
 upon the principles of the court with regard to notice, but on 
 the ground that it is necessary to the administration of justice 
 that the decision of the court in a suit should be binding not 
 only on the litigant parties, but also upon those who acquire 
 title from them during the pendency of the suit.(i) 
 
 The manifest hardship of applying this necessary jnaxim 
 to all cases of conveyances in good faith to parties without 
 notice, led to the enactment of the statutory provision for 
 a pubhc registry of the notice, which provides that neither 
 the issuing of a summons or subpoena, or other process or 
 writ, nor the filing of a declaration or bill in any suit relating 
 to or affecting the possession of or title to lands or real estate, 
 nor any proceedings had, or to be had thereon, either at law 
 or in equity, before a final judgment or decree, shall be deemed 
 or taken to be construction notice to any bona fide purchaser 
 or mortgagee of any lands or real estate to be affected thereby, 
 until the plaintiff or complainant in such action, or his attor- 
 ney, or solicitor, shall have first filed in the office of the clerk 
 of the Court of Common Pleas, expept in counties where there 
 is a register of deeds and mortgages, then in the office of the 
 register of deeds and mortgages, of the county in which such 
 lands or real estate lie, a written notice of the pendency of 
 such suit, setting forth the title of the cause and the general 
 object thereof, together with a description of the lands or 
 real estate to be affected thereby; provided, nothing in this 
 act contained shall be construed or taken to apply to any bill 
 filed, or to be filed for the satisfaction or foreclosure of any 
 
 (i) Haughwout V. Murphy, 22 N. J. Eq., 531; Turner v. Houpt, 
 S3 N. J. Eq., 526; Reversed, 55 N. J. Eq., 593; Wood v. Price, 81 Atl., 
 983. 
 
Nature and Function. 335 
 
 duly registered or recorded mortgage; provided further in 
 case the plaintiff in any suit at law or the complainant named 
 in any bill in Chancery does not take steps to prosecute the 
 suit diligently within three years after the filing of such 
 notice, then the court in which such suit at law is brought, 
 or the Chancellor, may, upon application by any interested 
 party, and upon notice to the plaintiff or his attorney, or to 
 the complainant or his solicitor, declare the filing of such 
 notice to be null and void and of no effect. (2) 
 
 The statutory notice is not an extension or amplification of 
 the operation of the maxim "pendente lite nihil innovatur: 
 It is not declared by the statute to act as notice of anything 
 to anybody. It acquires from the statute none of the quali- 
 ties of the record of a title deed, nor is it a part of the chain 
 of title of any person claiming through any of the defend- 
 ants in the suit ; on the contrary, its object is to act as a 
 limitation and restraint upon, the operation and effect of the 
 maxim in question by way of ameliorating its admitted hard- 
 ship as originally applied ; and the maxim itself is not founded 
 upon the idea of notice, but of the necessity, for the efficient 
 administration of justice, that the result of a suit shall bind 
 all parties who acquired an interest in its subject matter 
 pending its progress. (3) So notice of the pendency of a bill 
 in equity for relief against a conveyance in fraud of creditors 
 having been filed in the clerk's office of the county in pursu- 
 ance to the statute, a conveyance of the property made since 
 the filing of the bill cannot affect the complainant's rights. (4) 
 And so where a suit was successfully brought by a firm to have 
 real estate standing in the name of one of the partners declared 
 to be partnership property, notice of lis pendens being duly 
 filed, and pending this suit, the real estate was sold on execu- 
 tion against the partner in whose name it stood and brought 
 by the defendant, it was held that defendant was properly 
 enjoined against maintaining ejectment against the firm, he 
 having had constructive notice of the firm's claims. (5) 
 
 Effect of Amendment of Pleadings. The essence of the 
 continuance of a lis pendens is that the object, subject matter, 
 
 (2) P. L. 1902, p. 477, sec. I ; 3 Comp. Stat., p. 3175, sec. i. 
 
 (3) Turner v. Houpt, S3 N. J. Eq., 526-553; Reversed, 55 N. J. Eq., 
 593; Geisliaker v. Pancoast, 57 N. J. Eq., 60; Wood v. Price, 81 Atl., 983. 
 
 (4) Beeckman v. Montgomery, 14 N. J. Eq., 106. 
 
 (5) Ettenborough v. Bishop, 26 N. J. Eq., 262. 
 
* 336 Lis Pendens. 
 
 ground of relief and parties should remain unchanged, except 
 upon a devolution of the title from the complainant. An 
 amendment of the pleadings which does not change any of 
 these, but is a mere specification of additional matters of 
 proof of the ground of recovery e. g. fraud, does not make 
 a new suit, even though the matter so set up becomes in the 
 end the ground of recovery. (6) So a lis pendens, in an action 
 to rescind an exchange of lands for fraud, is not dissolved by 
 an amendment of the bill, adding other specifications of fraud 
 of the same character. (7) 
 
 Only Bona Fide Purchasers Bound. The act requiring 
 written notice of the pendency of suit to be filed in order 
 to constitute constructive notice, applies only to bona fide pur- 
 chasers and mortgagees. (8) But the filing of a bill and issu- 
 ing and service of subpoena upon a defendant, is notice to 
 him of the pendency of a suit, so that whatever defendant 
 does thereafter he does at his peril notwithstanding no lis 
 pendens was filed. (9) So where one who was a party to a 
 proceeding for the construction of a will acquired a lien upon 
 the interest of a devisee's land involved in the proceeding, he 
 will be bound by the decree, because he was a party to the 
 bill and a decree pro canfesso was taken against him, even 
 though no notice of lis pendens was filed, and so creditors 
 under an attachment who- acquire their rights pendente lite, 
 are chargeable with notice although no lis pendens was 
 filed. (10) 
 
 Effect of Not Filing Lis Pendens. The result of omitting 
 to file a lis pendens leaves the parties free to deal with the 
 subject matter of the litigation untrammeled; and one acquir- 
 ing an interest therein pendente lite is' affected by it, provided 
 his acquisition is made bona ftde and without notice of equi- 
 ties. (11) So in the absence of any lis pendens, a suit brought 
 by a prior owner of the property in question against a water 
 company to restrain it from cutting off the supply for a par- 
 
 (6) Turner v. Hoiipt, 53 N. J. Eq., 526; Reversed, 55 N. J. Eq., 593. 
 
 (7) Turner v. Houpt, 53 N. J. Eq., 526; Reversed, 55 N. J. Eq., 593. 
 
 (8) Dunning v. Crane, 61 N. J. Eq., 634; Wood v. Price, 81 Atl., 
 983. 
 
 (9) Haughwout V. Murphy, 22 N. J. Eq., 531 ; Sanford v. Kerr, 74 
 Atl., 291. 
 
 (10) Dunning v. Crane, 61 N. J. Eq., 634. 
 (li) Wood V. Price, 81 Atl., 983. 
 
Discharge. 337 
 
 ticular year to such owner's tenants, does not constitute con- 
 structive notice to such owner's grantees, of the water com- 
 pany's claim against complainant's grantor for water rents 
 in arrears. (12) But a lis pendens merely disclosing an inter- 
 est held by complainant will not give a purchaser constructive 
 notice of an interest of another disclosed by complainant's 
 bill, which is referred to by the lis pendens. (i^) And a lis 
 pendens filed in a purely personal action at law gives no 
 notice of a claim against property. (14) 
 
 When Lis Pendens Becomes Effective. Bill filed and sub- 
 poena served are necessary before a lis pendens becomes con- 
 structive notice to persons who shall acquire title from the 
 parties to the suit pendente ^^.(15) 
 
 Effect of Filing Lis Pendens. As against purchasers pen 
 dente lite claiming under the parties to the suit, a lis pendens 
 is notice only when the suit is prosecuted in good faith, with 
 all reasonable diligence, and without unnecessary delay ; and 
 while a judgment or decree in a lower court against the right 
 claimed does not necessarily and at once ' terminate the lis 
 pendens, and the notice continues during a reasonable time 
 for taking an appeal, yet in order to retain the benefit of lis 
 pendens an appeal must be taken and prosecuted without 
 delay, and with such diligence as is required by the circum- 
 stances of the case. Circumstances may render the full limit 
 of the time for appeal an unreasonable delay; and a delay 
 for a less time may be such indication of a waiver or aband- 
 onment of appeal as to justify a third person in considering 
 the 'suit at .an end. (16) 
 
 Discharge of Lis Pendens. Whenever a final decree or 
 judgment shall be made in favor of the defendant or defend- 
 ants in any cause notice of the pendency of which has been 
 filed in the office of any County Clerk or Register it shall 
 be the duty of the said clerk or register to enter upon the 
 
 (12) McDowell V. Avon-By-The-Sea, 63 Atl., 13. 
 
 (13) Geishaker v. Pancoast, 57 N. J. Eq., 60. 
 
 (14) Bayley v. Bayley, 66 N. J. Eq., 84. 
 
 (is) Haughwout v. Murphy, 22 N. J. Eq., 531 ; Walker v. Hill, 
 22 N. J. Eq., 513; O'Neill v. Clark, 33 N. J. Eq., 444-447; Vineland 
 National Bank v. Shinn, 55 N. J. Eq., 415-422; affirmed ib., 825; Na- 
 tional Building- & Loan Assn. v. Strauss, 49 Atl., 137. 
 
 (16) Boice V. Conover, 69 N. J. Eq., 580-597; affirmed, 71 N. J. Eq., 
 269; and see "Limitation of time for taking appeal," page 339, infra. 
 
338 Lis Pendens. 
 
 margin of the record of such notice a statement of the' sub- 
 stance of such decree or judgment, upon a copy thereof cer- 
 tified under seal of the court in which such decree or judg- 
 ment shall have been obtained, being filed in his office, and 
 thereafter the lands and real estate mentioned in the said 
 notice shall be and remain discharged of all equities or claims 
 set up in the bill of complaint or declaration in said suit not- 
 withstanding the said suit be thereafter revied.(i7) 
 
 Order Discharging Lands made Upon Defendant Giving 
 Security. In all suits for the enforcement of any claim for 
 the payment of money upon any lands and real estate, except 
 for the foreclosure of a mortgage, and notice of the pendency of 
 which shall be filed in the office of any county clerk or reg- 
 ister, it shall be lawful for the Chancellor or any Justice of 
 the Supreme Court of this state, and they are hereby empow- 
 ered to make an order discharging the said lands and real 
 ■estate from such claim, upon the defendant giving sufficient 
 and satisfactory security, in such sums and manner as such 
 Chancellor or Justice may direct, for the payment of such 
 sum or sums of money as may, by the final determination of 
 the said cause, be ascertained to be chargeable upon the said 
 lands and real estate ; and upon filing a copy of the said order, 
 certified under the seal of the court out of which such order 
 may issue, with the said county clerk, such clerk or register 
 shall make entry of said discharg'e, by reason of said order, 
 on the margin of the record of said notice, and the lands and 
 real estate shall be thereafter discharged from any claim which 
 may be made in the said suit, except such as may be covered 
 by the security given for the payment of such claim. (i8) 
 
 Entry of Statement on Payment of Decree or Settlement 
 of Suit. When any decree or judgment made in any suit, 
 of the pending of which notice shall have been or shall be 
 filed as provided in this act, shall have been paid, satisfied or 
 performed, or when pending such suit the matters' in differ; 
 ence shall be or shall have been settled by the' parties, or 
 such suit shall have been or shall be abandoned by the plain- 
 tiff or complainant therein, a statement of such payment, 
 performance, satisfaction, settlement or abandonment of such 
 suit may be entered by the attorney or solicitor of the party 
 
 (17) P. L. 1902, p. 479, sec. 4; 3 Cowip. Stat., p. 3176, sec. 4. 
 
 (18) P. L. 1902, p. 479, sec. s; 3 Comp. Stat., p. 3176, sec. 5. 
 
Appeal. ■ 339 
 
 who filed such notice, or by the said clerk or register upon 
 his receiving and filing a warrant for the purpose, executed 
 by said party or his attorney or solicitbr in the manner pro- 
 vided by law for the execution of warrants to satisfy judg- 
 ments, and thereupon the land and real estate affected by 
 said suit and described in said notice oiilis pendens shall be 
 discharged of all claims or equities set up in the declaration 
 or bill of complaint in said suit, and the same fees shall 
 be paid for services rendered under this section as are 
 allowed in the supreme court upon satisfaction of a judgment 
 therein. (19) 
 
 Limitation of Time for Taking Appeal; Disabilities. All 
 
 appeals from the final judgment or decree in any cause 
 wherein a lis pendeins has- been filed, must be taken within 
 three months after the recovery of such judgment or decree ; 
 provided, in cases where the person entitled to such writ of 
 error, or appeal, be an infant, feme covert, or insane, such 
 writ of error or appeal shall be taken within three months 
 after such disability is removed. (20) Nothing in the statute 
 requires the notice to be filed within any specified time after 
 the filing of the bill and service of subpoena, it may therefore 
 be filed at any time before final decree and the time of appeal 
 thereby abridged to three months. (21) 
 
 (19) P. L. 1902, p. 480, sec. 7; 3 Comp. Stat., p. 3176, sec. 7. 
 
 (20) P. L. 1902, p. 480, sec. 8; 3 Comp. Stat., p. 3177, sec. 8. 
 
 (21) White V. White, 61 N. J. Eq., 629; see also "Appeals," page 763, 
 infra. 
 
340 . Dismissals. 
 
 CHAPTER XX 
 DISMISSALS. 
 
 Voluntary Dismissals. A suit until decree is under the 
 control of the complainant and as a general rule, the com- 
 plainant has the right before answer filed to dismiss his bill 
 without prejudice at any time^ without payment of costs. (i) 
 And so where complainant filed his bill for his proportion 
 of the interest of a surplus in the hands of an executor and 
 made his brothers and sisters, who were entitled to equal 
 portions of the interest, defendants, and they answered the 
 bill submitting their rights to the protection and judgment 
 of the court, and pending the suit, the person, at whose 
 death the principal was to be distributed among the com- 
 plainant and his brothers and sLsters, died, and thereupon 
 the complainant settled with the executor ; no decree had been 
 made in the case and the complainant was permitted to dis- 
 miss the suit (2) 
 
 After answer filed the bill can only be dismissed upon notice 
 and payment of costs ; a complainant cannot be permitted to 
 have his bill dismissed without costs unless by the consent 
 of the defendant in open court, or by agreement in writing. 
 (3) Nor may complainant dismiss his own bill as to part 
 of the relief prayed, and proceed with the residue. His proper 
 course is to apply to amend. (4) 
 
 When a replication has been filed and the taking of proofs 
 begun by either party the complainant shall not be at liberty to 
 dismiss the bill except upon special motion and notice to the 
 defendants. (4a) 
 
 The general rule is, however, subject to certain limitations - 
 thus, when there has been any proceeding in the case which 
 has given the defendant a right against the complainant, the 
 
 (i) Codington v. Mott, 14 N. J. Eq., 430; Dawson v. Amey, 40 N. J.. 
 Eq., 494; Hudson Trust Co. v. Boyd, 84 Atl., 715. 
 
 (2) Bullock V. Zilley, 5 N. J. Eq., ^^. 
 
 (3) Fisher v. Quick, 9 N. J. Eq., 312 ; Hudson Trust Co. v. Boyd, 
 84 Atl., 715- 
 
 (4) Camden & Amboy R. R. Co. v. Stewart, 19 N. J. Eq., 69; see also 
 19 L. N. S., 124. 
 
 (4a) Chancery Rule 15. 
 
Voluntary Dismissals. 341 
 
 complainant cannot dismiss his bill as of course. (5) So 
 where a bill has been filed by one of several legatees for his 
 share of a legacy, against the executors and the other legatees, 
 and an interlocutory decree has been made, establishing the 
 right of the legatee to recover, the complainant cannot after 
 such decree dismiss his bill to the prejudice of the legatees 
 who are defendants, without their consent, and if such order 
 of dismissal be made^ it will be vacated and set aside except 
 so far as respects the complainant ; and the interlocutory 
 decree and the Master's report thereon will be deemed valid 
 and efifectual so far as respects the other legatees. (6) 
 
 So a complainant who has filed a bill on behalf 'of himself 
 and all others in the same interest who may choose to come 
 in and claim relief by and contribute to the expense of the 
 suit, cannot after decree dismiss his bill, for the reason that 
 such decree provides for the rights, not only of the complain- 
 ant, but of all others who come in and take the benefit of it. 
 (7) And so where a complainant, who had been in possession 
 for more than twenty years of certain premises under a mort- 
 gage, desiring to make his title merchantable, filed a bill in 
 equity against the heirs of the mortgagor in which he set 
 out the mortgage and his possession under it, alleged that a 
 certain amount was still due and owing upon it, prayed that 
 an account might be taken of the amount so due, and that 
 the defendants be decreed to pay the same within a day to 
 be fixed or be forever foreclosed, etc., and one of the defend- 
 ants appeared and answered, and prayed that an account 
 might be taken of what, if anything, was due complainant, 
 and defendant be permitted to redeem, etc., and complain- 
 ant then moved to dismiss his bill upon payment of costs ; 
 it was held that such dismissal must be upon terms that it 
 be without prejudice to the defendant's right to the benefit 
 of the admission and waiver contained in the bill, in any pro- 
 ceedings defendant might take for the redemption of the 
 premises. (8) And a bill for injunction which contains no 
 admissions, waiver or other matter which could in the future 
 operate to the advantage of defendant against complainant, 
 
 (5) McCarren v. Coogan, 50 N. J. Eq., 268. 
 
 (6) Collins V. Taylor, 4 N. J. Eq., 163. 
 
 (7) Bullock V. Zilley, S N. J. Eq., ^^. 
 
 (8) McCarren v. Coogan, 50 N. J. Eq., 268; S. C. ib., 611. 
 
342 Dismissals. 
 
 may, by leave of court after a refusal of a preliminary writ, 
 be dismissed on payment of defendant's costs, though defend- 
 ant has filed a cross bill. (9) 
 
 When a hearing has been commenced before a vice chancellor 
 or advisory master and the taking of proofs upon such hearing 
 has been begun by complainant upon his bill or defendant 
 upon his cross bill, neither the complainant nor the defend- 
 ant shall be allowed to dismiss his bill or cross bill except 
 upon good cause sh'own and by special order. (10) 
 
 Involuntary Dismissals for Want of Prosecution. If a 
 suit be suffered to lie without substantial prosecution for 
 one year, it shall be considered as abandoned, and the bill may 
 be dismissed; five days' notice shall be given of a motion 
 for that purpose to complainant or his solicitor. ( 1 1 ) A com- 
 plainant is bound to exercise reasonable diligence in the prose- 
 cution of his suit; and if he fails for a year after filing his 
 bill to bring the defendant into court, his laches may be 
 regarded as an abandonment of the suit, and his bill may for 
 that reason be dismissed. (12) And the neglect of the defend- 
 ants for six years to take advantage of the complainant's 
 delay, by not moving sooner to dismiss' the bill, furnishes no 
 excuse to the complainant, and the bill will be dismissed. (13) 
 But this rule can only be taken advantage of by application 
 to the court while as yet the cause sleeps, or at least before 
 the defendant has taken steps in the case which are tantamount 
 to a waiver of the benefit of the rule. (14) 
 
 If complainant fails to set down his cause for hearing 
 at the next term after the filing of the replication, unless the 
 court allow further time for such hearing, or if the hearing 
 be not had within the time so limited or allowed, the court 
 may dismiss the bill. (15) When a cause is set down for 
 hearing on the first day of the term, and the defendant gives 
 notice of hearing of exceptions to the Master's report at a 
 
 (9) N. y. & N. J. Water Co. v. N. Arlington, 75 Atl., 177. 
 
 (10) Chancery act, sec. 37, see page 40, supra; see also" Chancery 
 rule isa, page 343, infra. 
 
 (11) Chancery Rule 30. 
 
 (12) Day V. Hathaway Printing, etc., Co., 41 N. J. Eq., 419. 
 
 (13) Sebring v. Sebring, 43 N. J. Eq., S9; Lang v. Bellhoff, 53 
 N .J. Eq., 298. 
 
 (14) Home Insurance Co. v. Howell, 24 N. J. Eq., 239. 
 (is) Chancery Act, sec. 35 and see page 40, supra. 
 
Involuntary Dismissals. 343 
 
 later day in the term, but enters no rule to set down the 
 hearing, nor places the exceptions on the calendar, and upon 
 the call of the calendar the complainant's counsel tenders 
 himself ready to move the cause, but cannot proceed until 
 the exceptions are disposed of, he is entitled to move at once 
 upon the overruling of the exceptions for final decree. (i6) 
 And so where defendant took an order on the complainant 
 to speed his cause, and the order was duly served, and com- 
 plainant filed his replication, and took no further step in 
 the cause, it was held that defendant was entitled to have the 
 bill dismissed at the next stated term, because the complain- 
 ant had not, in compliance with the statute, brought his cause 
 to a hearing at that term. (17) 
 
 Where a hearing has been commenced before a Vice Chan- 
 cellor and the taking of proofs upon such hearing has been 
 begun by complainant upon his bill, or defendant upon his 
 cross-bill, neither the complainant- nor the defendant shall be 
 allowed to dismiss his bill or cross-bill, except upon good cause 
 shown and by a special order ; and in case of the failure of 
 complainant or defendant to further prosecute his bill or cross- 
 bill after the taking of proofs therunder has been begun by 
 him, the defendant to the bill or cross-bill, instead of applying 
 to dismiss the bill or cross-bill for want of prosecution, may 
 apply to proceed to final decree upon the hearing, notwithstand- 
 ing the failure of the complainant to the bill or cross-bill to 
 take further proofs, or to further appear regularly at the hear- 
 ing, and upon such application being granted, may so proceed 
 to final decree. (18) 
 
 Failure of Proofs. It is not the practice of the Court 
 of Chancery to entertain at the conclusion of the complain- 
 ant's evidence a motion on the part of the defendant to dis- 
 miss the bill for want of sufficient evidence to support a 
 decree. A defendant is privileged to rest his case upon the 
 evidence ofifered by complainant or to introduce evidence 
 in his own behalf at his election. But where a defendant 
 claimed that he knew nothing of the facts relating to com- 
 plainant's claim until he had heard the evidence introduced 
 by him and that it would be necessary to grant him time to 
 
 (16) Morris v. Taylor, 23 N. J. Eq., 131. 
 
 (17) West V. Paige, 9 N. J. Eq., 203. 
 
 (18) Chancery rule 15a. 
 
344 Dismissals. 
 
 enable him to procure evidence, to disprove complainant's 
 claim, and he asserted his ability to obtain such evidence 
 although at the same time claiming that complainant's evi- 
 dence was insufficient to sustain a decree for the relief sought, 
 the court under the circumstances gave complainant's coun- 
 sel time to urge the sufficiency of the evidence by brief and 
 held that if it then appeared that relief could be granted on 
 his evidence a date would be fixed for defendants to /present 
 their proof and if it did not so appear decree would be ren- 
 dered for defendants. (19) 
 
 Want of Equity. A bill seeking equitable relief must be 
 dismissed when its allegations are denied by the answer and 
 unsupported by the proofs. (20) So if the answer to a bill 
 for discovery and for injunction against proceedings at law 
 denies the matters for which discovery is sought, and there 
 is no other ground of equity jurisdiction in the case, the 
 injunction will be dissolved and the bill dismissed. (21) But 
 a bill will not be dismissed upon motion of the defendant 
 for want of equity where the court cannot adjudge that, under 
 the bill, the complainant will not be entitled to relief at the 
 hearing upon any evidence that he can offer. (22) And 
 where, beside the prayer for general relief, a part of the 
 prayer of the bill is substantially that a deed may be set aside, 
 the bill will not. because part of the prayer is that the defend- 
 ant may be decreed to give the complainant possession of the 
 land, be treated as a bill for possession and dismissed on the 
 ground that ejectment is the proper remedy. (23) 
 
 Triviality of Subject Matter. Lord Bacon's ordinance, 
 declaring that all suits under the value of ten pounds shall 
 be dismissed, is in force in this state. In order to justify a 
 dismissal on the ground that the matter in dispute is beneath 
 the jurisdiction of the court, the matter in dispute must be 
 less than $50.00.(24) The rule, that the court will dismiss a 
 
 (19) Sawyer v. Piatt, 77 Atl., 1043. 
 
 (20) C. R. R. Co. V. Hetfield, 18 N. J. Eq., 323. 
 
 (21) Jones V. Sherwood, 6 N. J. Eq., 210. 
 
 (22) Carlisle v. Cooper, 18 N. J. Eq., 241, 
 
 (23) Miller v. Jamison, 24 N. J. Eq., 41. 
 
 (24) Allen V. Demarest, 41 N. J. Eq., 162; Brokaw v. Brokaw, 
 41 N. J. Eq., 215-222; Frenche v. Chancellor, 51 N. J. Eq., 624; 
 Thiefes v. Mason, 55 N. J. Eq., 456; Kelaher v. English, 62 N. J. Eq., 
 674. 
 
Involuntary Dismissals. 345 
 
 suit where the amount involved is too trivial to justify the court 
 in taking cognizance of it, is founded in reason and policy. 
 Its design is to prevent expensive and mischievous litigation, 
 which can result in no real benefit to the complainant, but 
 which may occasion delay and injury to other suitors. Courts 
 of Equity sit to administer justice in matters of substantial 
 interest to the parties, not to gratify their passions or to foster 
 a spirit of vexatious litigation. (25) So if the suit have no 
 other object than the mere recovery of a sum of $i.75> the 
 bill will be dismissed; but if it seeks to establish a right of 
 a permanent and valuable nature, it falls within the recog- 
 nized exceptions to the general principle, and the court will 
 maintain jurisdiction. (26) And so it is held to be beneath 
 the dignity of the court to entertain a suit by a land owner 
 to enjoin the construction of a railroad, the land not being 
 worth more than $5.00.(27) 
 
 An objection to a suit, that the amount involved is too 
 trivial to justify the court in taking cognizance of it, may be 
 taken advantage of by special motion to dismiss the bill, or 
 the court may, of its own motion, at the hearing order that 
 the bill be dismissed. (28) The question of the value of the 
 subject matter of a suit must be determined as at the com- 
 mencement of the suit. (29) 
 
 Want of Necessary Parties. An objection for want of 
 parties, where the defect is so Radical that the court would 
 dismiss the suit, may be taken at the hearing and the court 
 may of its own motion dismiss the bill. (30) And a bill will 
 be dismissed at the hearing as to such complainants as are 
 decided to have no cause of complaint. (31) A motion to 
 dismiss a bill because of the absence of a party without whom 
 a decree cannot be made amounts to no more than a direction 
 of the attention of the court to the defect, and cannot be 
 
 (25) Swedesborough Qitirch v. Shivers, 16 N. J. Eq., 453; Allen v. 
 Demarest, 41 N. J. Eq., 162. 
 
 (26) Swedesborough Church v. Shivers, 16 N. J, Eq., 453. 
 
 (27) Ocean City R. R. Co. v. Bray, S5 N. J. Eq., loi. 
 
 (28) Swedesborough Church v. Shivers, 16 N. J. Eq.. 453; Allen 
 V. Demarest, 41 N. J. Eq., 162. 
 
 (29) Beach v. Sterling Zinc & Iron Co., 54 N. J. Eq., 65-81 ', aiflrmed. 
 55 N. J. Eq., 824; McMaster v. Drew, 68 Atl., 771. 
 
 (30) Wilson V. American Palace Car Co., 67 N. J. Eq., 262. 
 
 (31) Veghte \. Raritan Water Power Co., 19 N. J. Eq., 142. 
 
346 Dismissals. 
 
 granted unless the defect is so radical that the court of its 
 own motion would hold the suit until it could be remedied, 
 or, if irremedial, dismiss, the suit. (32) 
 
 Dismissal on Court's Own Motion. A court of equity, 
 having jurisdiction of the case made by the bill of complaint, 
 may, notwithstanding its capacity to grant the relief prayed 
 for, of its own motion dismiss the bill at any stage of the 
 cause upon the ground that the complainant has an adequate 
 remedy at law. When, however, no objection on this ground 
 is raised by the defendant, the court may, in the exercise of 
 a sound discretion, retain the cause. (33) Although the court 
 may of its own accord dismiss the bill where it ap^pears on 
 the hearing that the complainant has a complete and adequate 
 remedy at law, notwithstanding the fact that the objection 
 was not taken in the pleadings of the defendant nor noticed 
 in the argument, yet, under such circumstances, it is the duty 
 of the court to retain the cause, provided it be competent to 
 grant reHef, and has jurisdiction of the subject matter. (34) 
 Where the decree of the court, on its face, will be within its 
 jurisdiction, it is generally safe for the court to retain the bill 
 and proceed to decree, even though the whole case has turned 
 out to be strictly cognizable at law, provided no objection is 
 made by the parties to the litigation and any right of trial by 
 jury has been waived, and provided further that the court for 
 its own protection does not feel called upon to dismiss the bill 
 at the end of the hearing. (35) 
 
 Effect Upon Cross Bill of Dismissing Original Bill. The 
 "rule is, that ordinarily the dismissal of an original bill carries 
 with it a failure of the cross bill. There is, however, an excep- 
 tion to this, which arises in the case in which affirmative relief 
 is sought by the cross bill against the complainant in the orig- 
 inal bill. When such relief is sought, the cross bill may be 
 retained for the purpose of affording the necessary relief, 
 but it mu.st exhibit a cause of action, otherwise the court would 
 
 (32) Wilson V. American Palace Car Co., 67 N. J. Eq., 262. 
 
 (33) Varrick v. Hitt, 66 N. J. Eq., 442; Hoaglaiid v. Supreme 
 Coiuicil, 70 N. J. Eq., 607 ; Knikel v. Spitz, 74 N. J. Eq., 381 ; Salem 
 V. State, 76 N. J. Eq., 264-273; Van Horn v. Demarest, 76 N. J. Eq., 
 386. 
 
 (34) Cutting V. Dana, 25 N. J. Eq., 26s; Lehigh Zinc & Iron Co. 
 V. Trotter, 43 N. J. Eq., 185-204. 
 
 (35) Van Horn v. Demarest, 76 N. J. Eq., 386. 
 
Effect of Dismissal. 347 
 
 not be justified in retaining it. (36) So where defendant files 
 a cross bill praying affirmative relief, and afterwards com- 
 plainant in the original bill procures his own bill to be dis- 
 missed, such dismissal does not render the cross bill abortive, 
 if it states facts sufficient to entitle the complainant therein 
 to the relief prayed ; such bill may properly be termed an orig- 
 inal bill in the nature of a cross bill. (37) 
 
 Dismissal Without Prejudice. When a bill is tdismissed 
 and the court intends to protect the complainant against an 
 estoppel, it usually adds to its decree that it shall be without 
 prejudice; but the absence of these words is not a bar to all 
 future consideration of the equitable rights of the parties. (38) 
 
 Effect of Decree Dismissing Bill. The dismissal of a 
 bill in equity for failure ■ of proofs has never been treated 
 as similar in effect to a voluntary non-suit at law but on the 
 contrary a decree dismissing a bill of complaint after a full 
 hearing upon the merits has always been treated as an effectual 
 bar to the complainant and to all who claim under him, 
 from bringing a new suit so long as such decree is unreversed. 
 (39) So where a cause in equity carne on for trial, and after 
 two witnesses had been examined in behalf of complainants, a 
 dismissal without prejudice was asked for by them and denied, 
 and final decree entered stating such facts', and that complain- 
 ants were not entitled to relief, and dismissing the bill, such 
 decree was a bar to a subsequent action, identical as to subject 
 matter and relief sought, brought by one of the former com- 
 plainants against two of the defendants. (39a) But in order 
 that a judgment may constitute a bar to another suit, it must 
 be rendered in the proceeding between the same parties, or 
 their privies, and the point of controversy must be the same 
 in both cases, and must be determined on its merits. If the 
 first suit was dismissed for defect of pleadings, or parties, 
 or a misconception of the form of the proceedings, or the 
 want of jurisdiction, or was di.sposed of on any groCmd which 
 
 (36) Dawson v. Amey, 40 N. J. Eq., 494 ; P. R. R. v. National Docks 
 R. R. Co., S2 N. J. Eq., 555 ; N. Y. & N. J. Water Co. v. N. Arlington, 
 75 Atl., 177. 
 
 (37) Coogan V. McCarren, 50 N. J. Eq., 611. 
 
 (38) Henninger v. HeaJd, 51 N. J. Eq., 74. 
 
 (39) Henninger v. Heald, 52 N. J. Eq., 431 ; afHrmed, 53 N. J. Eq., 
 694. 
 
 (39a) Kelsey v. Dilks, 74 N. J. Eq., 270. 
 
348 Dismissals. 
 
 did not go to the merits of the action, the judgment rendered 
 will prove no bar to another suit. (40) And so a decree of 
 dismissal in a prior suit will not bar a second between the 
 same parties founded on a cause of action which was neither 
 tried nor triable in the first. (41) 
 
 (40) Henninger v. Heald, 51 N. J. Eq., 74; Hughes v. United States, 
 4 Wallace, ^32. 
 
 (41) Dixon V. Dixon, 23 N. J. Eq., 316; Standish v. Babcock, 52 
 N. J. Eq., 628 ; Reversed, 53 N. J. Eq., 376. 
 
Ne Exeat. 349 
 
 CHAPTER XXI 
 
 NE EXEAT. 
 
 Nature of Writ. The writ of ne exeat is employed to pre- 
 vent a party who owes to his fellow citizen an act of justice 
 to enforce which a suit has been already, or is about to be 
 instituted, from withdrawing from the jurisdiction of the 
 court, so that he cannot be compelled by its process to abide 
 its decree. It is, in other words, merely equitable bail, and 
 leads to results almost identical with common bail upon a 
 capias in a suit at law. The English idea that 2i ne exeat 
 is a prerogative writ is inapplicable in this country. This writ 
 has now become ordinary process of courts of equity ; it is 
 as much a writ of right as any other process used in the admin- 
 istration of justice, and must be granted when a proper cause 
 is presented. ( I ) 
 
 Application for Writ. The method of obtaining a writ 
 of ne exeat is by an application to the court upon the filing of 
 the bill. It may contain a prayer for the writ, and must be 
 verified by sufficient affidavits. (2) If after bill filed the com- 
 plainant has reason to believe that the defendant will leave the 
 state, he may, at any stage of the suit, move to amend his bill 
 by inserting a prayer for the writ, and may thereupon apply 
 ex parte upon affidavits for an order directing that the writ 
 issue. (3) No writ of ne exeat will be granted unless satisfac- 
 tory proof be made that the defendant designs quickly to 
 depart from the state. (4) 
 
 The affidavits upon an application for a writ of ne exeat 
 need not state in so many words that the defendant is about 
 to leave the state to avoid the jurisdiction of the court; it is 
 sufficient if the facts show that the defendant's departure will 
 defeat complainant's claim, or that defendant is leaving the 
 
 (i) Gilbert v. Colt. Hopk. Ch., 496; Gleason v. Bisby, Clarke Ch., 
 550. 
 
 (2) Clark V. Clark, 51 N. J. Eq., 404. 
 
 (3) Daniels Ch. Pr., 6 Ed., 1706; Dunham v. Johnson, i Paige Ch., 
 628. 
 
 (4) Chancery Act, sec. 7, page 8, supra. 
 
350 Ne Exeat. 
 
 state for that purpose. (5) But the affidavits should show th^t 
 the defendant intends going abroad. They must be positive 
 as to this, or as to the defendant's threats or declarations to 
 that effect, or as to facts evincing it or circumstances amount- 
 ing to it. If the affidavit is sufficiently precise in the particu- 
 lars required, it will be sufficient if defendant's intention to 
 go abroad is sworn to upon information and belief. (6) 
 
 It must also appear, by positive proof, that there is a certain 
 sum actually due complainant, except in cases of account, 
 where the proof must show some sum due, the amount of 
 which may be sworn to according to belief. (7) The affidavit 
 must also state the facts on which the debt arises and on which 
 it is grounded, and that it will be endangered by the party's 
 going abroad. (8) 
 
 When Writ Will Issue. To warrant the issuing of a 
 ne exeat, there must be a debt or duty existing at the time, 
 and so far matured that present payment or performance can 
 rightfully be demanded. This too must be an equitable debt. 
 If the complainant has an adequate remedy at law, so that 
 he can hold the defendant to bail by suit at law, the writ will 
 not issue. There are some exceptions to this rule in cases 
 where the jurisdiction of law and equity is concurrent, as in 
 cases of account. (9) Threats on part of defendant to go 
 abroad to prevent complainant from enforcing his claim, 
 coupled with proof that he had put his property out of his 
 hands, will be held sufficient to warrant issuing a writ of ne 
 exeat. {10) 
 
 The writ will issue against a non-resident temporarily here, 
 even if he be not in the state at the time, and it is not neces- 
 sary that it should appear that he is about to depart to avoid 
 the jurisdiction, if his departure will defeat the object of the 
 
 (5) Yule V. Yule, 10 N. J. Eq., 138; Gary v. Gary, 39 N. J. Eq., 
 20. 
 
 (6) Yule V. Yule, 10 N. J. Eq., 138. 
 
 (7) Williams v. Williams, 3 N. J. Eq., 130; Yule v. Yule, 10 N. J. 
 Eq., 138; MacDonough v. Gaynor, 18 N. J. Eq., 249. 
 
 (8) Haddocks Ch. Pr., 228; Anonymous, 2 Ves. Sr., 489. 
 
 (9) Williams v. Williams, 3 N. J. Eq., 130; MacDonough v. Gaynor, 
 18 N. J. Eq., 249 ; Seymour v. Hazard, i John. Gh., i ; Porter v. 
 Spencer, 2 John. Ch., 169; Smedberg v. Mark, 6 John. Gh., 138. 
 
 (10) Gary v. Gary, 39 N. J. Eq., 20. 
 
Bond. 351 
 
 suit. ( 1 1 ) The court should exercise a sound discretion in 
 ordering the writ. It should never be issued in a doubtful 
 case. (12) 
 
 Form of Writ. The writ is usually directed to the Sher- 
 iflf to rnake the defendant give sufificient security that he will 
 not depart from the state without the order of the court, and 
 on his refusal to give such security, to commit him to prison. 
 (13) When a writ of ne exeat is granted the Chancellor, 
 Vice Oiancellor or an Injunction Master shall direct to be 
 endorsed thereon the sum in which the party shall give bond, 
 with satisfactory surety or sureties. (13a) 
 
 Service of Writ. A writ of ne exeat served on Sunday 
 will be declared void, and the bond given thereon will be 
 ordered to be cancelled. (14) 
 
 Subpoena Unnecessary. If the 'writ is served, no sub- 
 poena is necessary, and the party cannot be discharged upon 
 affidavit, but must make answer. (15) 
 
 Bond for Appearance. When a defendant shall be ar- 
 rested on a writ of ne exeat, the Sheriff may, in lieu of the 
 bond heretofore used and required, take a bond in the sum 
 endorsed on the writ, with securities as required by law, with 
 condition that the defendant shall cause his appearance to be 
 entered in the suit, and continue such appearance by a solicitor 
 of this court, residing in the state, and shall at all times ren- 
 der himself amenable to the orders and process of this court 
 pending the suit, and to such process as shall be issued to com- 
 pel the performance of the final decree therein, and shall appear 
 before this court, or any officer thereof, when so required by 
 the order of this court. (16) A ne ^xeat bond with condition 
 conforming to Rule 192 of the Court of Chancery is not super- 
 seded by an order of the court for the payment of the main- 
 
 (11) Parker v. Parker, 12 N. J. Eq., 105; MacDonough v. Gaynor, 
 18 N. J. Eq., 249. 
 
 (12) Yule V. Yule, 10 N. J. Eq., 138; DeCarriere v. DeCallone, 4 
 Ves. Jr., 578- 
 
 (13) Mad. Ch. Pr., 228. 
 
 (13a) Chancery Act, sec. 7, page 8, supra. 
 
 (14) Jewett V. Bowman, 27 N. J. Eq., 275. 
 (is) MacDonough v. Gaynor, 18 N. J. Eq., 249. 
 (16) Chancery Rule 192. 
 
352 Ne Exeat. 
 
 tenance provided by the final decree. (17) If a defendant who 
 has already given a bond to remain within the state should 
 desire to be released from the necessity of remaining within 
 it, the court may, upon application for that purpose, order the 
 writ discharged on his entering into a bond to the Sheriff 
 with the condition prescribed in Rule 192.(18) 
 
 Condition of Bond. The condition of the bond giv'en 
 upon a writ of ne exeat is that defendant will neither go, nor 
 attempt to go out of this state without the leave of the 
 court. (19) 
 
 Prosecution of Bond. When sureties have been induced 
 to sign a bond substituted after a ne exeat, which is not only 
 more stringent than each supposes, but also more stringent 
 than the order or rules of the court required, it is the province 
 of the court to say whether there has been a breach of the 
 condition, and whether the bond shall be prosecuted. (20) 
 The Court of Chancery has power to determine both the fact 
 and the extent of liability of a ne exeat bond given to that 
 court, in pursuance of its rules. (21) 
 
 Discharge of Writ. Wlien the defendant has given the 
 prescribed security, or is in the custody of the Sheriff, he may 
 move to discharge the ne exeat, giving the usual notice of a 
 special motion. Such motion may be either upon defendant's 
 answer or before answer on affidavits. Everything which 
 shows that the writ should not have been granted is a reason 
 to discharge it. Thus, the defendant may attack the want of 
 equity of the bill, the insufficiency of the affidavit or the alle- 
 gation as to the parties going abroad. Upon such motion 
 affidavits may be read both in support of and against the 
 motion. (22) Upon an application to discharge a writ of 
 ne exeat, a defendant is entitled to the benefit of his sworn 
 
 (17) Elliott V. Elliott, 36 All., 951. 
 
 (18) Wauters v. Van Vorst, 28 N. J. Eq., 103. 
 
 (19) Wauters v. Van Vorst, 28 N. J. Eq., 103. 
 
 (20) Wauters v. Van Vorst, 28 N. J. Eq., 103. 
 
 (21) Wauters v. Van Vorst, 28 N. J. Eq., 103; Easton v. Long 
 Branch R. R., 30 N. J. Eq., 236; Reversed, ib., 725; Elliott v. Elliott, 
 36 Atl., 951. 
 
 (22) Cary v. Cary, 39 N. J. Eq., 3 ; Elmendorf v. Elmendorf, 58 
 N. J. Eq., 113; Dithmar v. Dithmar, 68 N. J. Eq., 533. 
 
Discharge. 353 
 
 answer to the charges of the bill upon which the writ 
 issued. (23) 
 
 Where complainant showed that defendant, restrained by a 
 writ of lie exeat, had expressed an intention of leaving the 
 jurisdiction, and disclosed such home conditions as would 
 naturally impel defendant to go away, a motion to discharge 
 the writ was overruled, though defendant denied that he ever 
 had had or expressed a purpose to leave the state. (24) 
 And the court will not discharge a ne exeat obtained upon affi- 
 davits substantiating declarations and acts of the defendant as 
 evidence of his intention to go abroad, upon a counter affidavit 
 by the defendant denying the intention. (25) 
 
 The court may order a writ of ne exeat discharged, and the 
 bond given under it cancelled, upon the defendant giving bonds 
 with proper security in the sum for which bail was ordered 
 conditioned to abide the decree of the court. (26) So where 
 the writ of ne exeat interferes with the freedom of defendant's 
 movements in meeting pressing business engagements out of 
 the state, the court will entertain a motion for the substitution 
 of a bond to answer the decree. (27) 
 
 (23) Myer v. Myer, 25 N. J. Eq., 28; Jewett v. Bowman, 27 N. J. 
 Eq., 275. 
 
 (24) Chew V. Chew, 74 N. J. Eq., 285. 
 
 (25) Houseworth's Admr. v. Hendrickson, 27 N. J. Eq., 60. 
 
 (26) Parker v. Parker, 12 N. J. Eq., 105 ; MacDonough v. Gaynor, 
 18 N. J. Eq., 249; Houseworth's Admr. v. Hendrickson, 27 N. J. Eq., 
 60. 
 
 (27) Chew V. Chew, 74 N. J. Eq., 285. 
 
354 References. 
 
 CHAPTER XXII 
 
 REFERENCES. 
 
 Masters — Nature of Office. A Master of the Court of 
 Chancery is an assistant of the court, acting sometimes in a 
 judicial, and sometimes in an executive capacity, and is in 
 that way a part of the machinery of the Court. He is respon- 
 sible to the court, and, in a sense, to the court alone, for his 
 conduct. Thus money in the hands of a Master is in the cus- 
 tody of the court quite as much as if it were in the hands of 
 the clerk.(i) So where a Master, who is ordered to deposit 
 a fund which is in his hands as Master, deposits it to his own 
 individual account with his own funds, and draws on it from 
 time to time as his own funds, he is chargeable as a trustee 
 for its earnings while in his custody. (2) 
 
 The duties of a Master, under an Order of Reference, must 
 be performed by him in person ; he cannot delegate his charge 
 to or perform his duties by a substitute. (3) The object of a 
 reference to a Master is for the convenience of the court; to 
 make computations and to ascertain disputed facts which, if 
 done by the court, would take up too much time. (4) Every 
 person who shall be appointed a master or examiner of this 
 court shall, before he enters upon the excution of his office, 
 subscribe and take, before the Chancellor or clerk or in the 
 absence of the Chancellor or clerk, before such Vice Chan- 
 cellor or advisory master as shall attend at the clerk's office 
 for that purpose, an oath of affirmation, faithfully, impartially 
 and justly to perform all duties of the office, according to the 
 best of his abilities and understanding. ( 5 ) 
 
 Subjects of Reference. Where the subject is one proper 
 for reference, it is generally within the power of the court in 
 its discretion either to refer the cause (even without the con- 
 sent of the parties) or to determine the questions involved 
 without a reference, but in the absence of some special rule 
 
 (i) Van Doren v. Van Doren, 45 N. J. Eq., 580. 
 
 (2) Van Doren v. Van Doren, 45 N. J. Eq., 580. 
 
 (3) Stone V. Stone, 28 N. J. Eq., 409. 
 
 (4) Taylor v. Read, 4 Paige, 561-567- ' 
 
 (5) Chancery Rule 42. 
 
Subjects of References. 355 
 
 of practice, a reference is not a matter of course, and carinot 
 be entered by a party of course, but only on a special applica- 
 tion. (6) And when exceptions are filed to an answer, either 
 party may move on notice, for a decision upon them, and the 
 chancellor may hear the motion or refer it to a Master to 
 report within such time as the chancellor may fix. (7) So 
 where a controversy arises as to what are the usual covenants 
 in a lease or deed in a given locality, it may be referred to a 
 Master to imquire what are the usual- covenants. (8) -And so 
 in a partition suit, the court may refer the matter to a Master, 
 with specific instructions to ascertain and report whether parti- 
 tion cannot be made by payment of owelty. (9) 
 
 On bill for an account the court will not at the original hear- 
 ing examine or decide whether particular items of the account 
 should be allowed. The only material evidence upon the orig- 
 inal hearing is that which tends to prove the complainant's 
 right to an account; and the ordinary decree is that an ac- 
 count be taken. The decree should direct to what matters 
 the account shall extend ; and in decreeing a general account, 
 special directions may be given to the Master as to the man- 
 ner of taking it, and the principles by which he should be 
 governed in doing so. (10) But where the account consists 
 of but a few iteijis and they are all fully and satisfactorily 
 proved by the evidence submitted on the principal questions, 
 there is no reason either of justice or of correct prfictice why 
 the court should not in such a case decide by the same decree 
 that the complainant is entitled to an account, and also the 
 amount to which he is entitled. ( 1 1 ) An Order of Reference 
 must be founded on the pleadings and proofs, and cannot be 
 made more extensive than the allegations of the parties'; the 
 court has no power to refer matters not thus put in issue. (12) 
 
 (6) Faitoute v. Haycock, 2 N. J. Eq., 105; Wright v. McKean, 
 13 N. J. Eq., 259. 
 
 (7) Chancery Act, sec. 26, page 30, supra. 
 
 (8) Wilson V. Wood, 17 N, J. Eq., 216. 
 
 (9) Hall V. Piddock, 21 N. J. Eq., 311. 
 
 (10) Hudson^v. Trenton Locomotive, &c., Co., 16 N. J. Eq., 475; 
 Phillips V. Hulsizen, 20 N. J. Eq., 308; Bradshaw v. Clark, 31 N. J. Eq., 
 39 ; Sharp v. Hibbins, 42 N. J. Eq., 543. 
 
 (11) Standish v. Babcock, 48 N. J. Eq., 386. 
 
 (12) AVyckoff V. Comibs, 28 N. J, Eq., 40. 
 
356 References. 
 
 When Reference Must be to Special Master. All refer- 
 ences in divorce, partition, applications for sales and mort- 
 gages of lands of infants, idiots, lunatics and habitual drunk- 
 ards', and to ascertain the value of dower or curtesy in moneys 
 in court, as to surplus of money on foreclosure sales, and on 
 application for proceeds of sales in partition suits for payment 
 of debts, shall be to Special Masters. All references in divorce 
 and partition, and all executions and orders for the sale of 
 lands by Masters, shall be made to Special Masters, designated 
 by the Chancellor, and who are not to be nominated by the par- 
 ties or their solicitors. (13) Where a bill is filed for partition, 
 and a decree pro confesso is taken, there shall be a reference to 
 a Special Master to report the rights of the respective parties 
 in the premises, and to ascertain and report whether in his 
 opinion a partition of the land or real estate can be made 
 without great prejudice to the owners. Such report shall be 
 made at the time and place named in the Order of Reference 
 or order extending the time for making such report. (14) No 
 sale shall be ordered made by any Master who is connected 
 in business with, or who is clerk of or employed in the busi- 
 ness of the solicitor of any of the parties to the suit. (15) 
 
 Proceedings Before Master. As a general rule, the prose- 
 cution of a decree devolves upon the complainant, he being 
 considered to be in most cases the person principally interested 
 in forwarding it ; and a reference upon an interlocutory order 
 is, for the same reason, usually prosecuted by the party obtain- 
 ing it. (16) And where exceptions to an answer are referred 
 to a Master, and a party is in laches in not procuring the Mas- 
 ter's Report, the proper remedy is to obtain an order that he 
 procure the report in a time stated, or that the exceptions be 
 dismissed. (17) 
 
 (13) Chancery Rule 45. Where the judge in open court asked the 
 parties for suggestions as to the name of a Master, and made his, own 
 selection without objection by any party, the right to object thereto was 
 waived. Knickerbocker Trust Co. v. Carteret Steel Co., 86 Atl., 55. 
 The objection that a Master appointed to make a judicial sale was nomi- 
 nated by complainant's counsel cannot be urged against the purchaser. 
 Knickerbocker Trust Co. v. Carteret Steel Co., 86 Atl., SS. 
 
 (14) Chancery Rule 166. • 
 (is) Chancery Rule 46. 
 
 (16) 2 Daniels Ch. Pr., p. 1169. 
 
 (17) Camden & Amboy R. R. Co. v. Stewart, 19 N. J. Eq., 343. 
 
Hearing.' 357 
 
 Attendance of Witnesses. Where a matter is referred to 
 a Master he shall, if notice be necessary, assign a day and 
 place to hear the parties, and the party obtaining a reference, 
 or who shall be ordered to procure the Master's report, shall 
 serve the adverse party at least four days exclusive before 
 the day assigned for the hearing with a summons issued by 
 the Master, requiring his attendance at such time and place, 
 and make proof thereof before the Master ; and thereupon 
 if the party summoned shall not appear, or good cause shall 
 not be shown why he does not, the Master may proceed 
 ex parte; and if the party serving the summons shall not 
 appear at the time and place, or show Qause why he does not, 
 the Master may either proceed ex parte, or the party obtaining 
 the summons and not appearing shall lose the benefit of the 
 reference, at the election of the other party. (i8) Summons 
 to attend a Master shall be served on the solicitor of the ad- 
 verse party, if there be any. If there be no solicitor, the 
 service may be on the p3.rty, or at his usual place of resi- 
 dence ; or if not a resident of this State, or not found therein 
 after reasonable inquiry, by setting up the same in the office 
 of the clerk of the court. (19) 
 
 Hearing. A Master's authority as to the subject and ex- 
 tent of his examination and report is limited and controlled 
 by the Order of Reference. (20) So unless special directions 
 are given to a Master in the Order of Reference, he will not 
 be allowed to go behind the order to consider equities existing 
 between the parties which would entitle the complainant to 
 any but the ordinary rule in taking the account. (21) Under 
 a general Order of Reference, all issues raised by the plead- 
 ings are submitted to the Master, but beyond these he cannot 
 go unless by special direction of the court. (22) So the Master 
 cannot inquire into the validity of a defense not set up in the 
 answer, any more than he can inquire into usury or fraud in 
 
 (18) Chancery Rule 43. 
 
 (19) Chancery Rule 20; after a defendant has lost all interest in 
 the subject matter of ihe. suit he need not be notified or summoned to 
 appear before the Master on a reference; Ward v. Montclair R. R. Co., 
 26 N. J. Eq., 260. 
 
 (20) Stonington Savings Bank v. Davis, 15 N. J. Eq., 31 ; Wyckoff 
 V. Combs, 28 N. J. Eq., 40. 
 
 (21) Izard V. Bodine, 9 N. J .Eq., 309. 
 
 (22) Wyckoff V. Combs, 28 N. J. Eq., 40. 
 
358 References. 
 
 the consideration in a cause wherein the only defense set up 
 is infancy. (23) 
 
 Where a reference to a Master was made by consent of com- 
 plainant and the answering defendants, and the Order of Ref- 
 erence directed that notice of the reference be given to all the 
 defendants in the suit, it was held that the Order did not give 
 leave to a defendant against whom there was a decree pro 
 confesso to come in before the Master and set up under the 
 reference a claim which should have been set up by answer. 
 (24) So where the defense to a bill for foreclosure is that 
 the amount for which the mortgage was given was not ad- 
 vanced, and the court upon the evidence adjudges that the 
 defense is not sustained, and refers the case to a Master to 
 compute the amount due upon the mortgage, evidence before 
 the Master to show that the amount had not been advanced is 
 inadmissible. (25) So where a bill was filed, for a partner- 
 ship accounting, which was silent as to any settlement, and 
 the answer set up a settlement at a certain date and stated 
 an account from that date, and a reference was taken to a 
 Master to state the account, and it was contended on behalf 
 of the complainant that the Master should state the account 
 from the beginning of the partnership, while on behalf of 
 the defendant it was contended that the Master should take 
 the account from the date of the settlement, the court sus- 
 tained the latter contention on the grounds that the Master 
 had no power under the pleadings to disregard the settle- 
 ment. (26) 
 
 Where a matter is referred to a Master, and the examination 
 of witnesses shall be necessary to obtain proper information, 
 such examination at the expense of the party requiring 
 it be reduced to writing by the Master in the form of deposi- 
 tions, and returned and filed with the report. The Master 
 may permit the examination to be reduced to writing by an- 
 other person selected by him; but in such case the Master's 
 certificate that the testimony was written in his immediate 
 
 (23) Morris v. Taylor, 23 N. J. Eq., 131-133 ; but on reference 
 in partition under rules 166 and 29, the Master is not concluded by the 
 admissions of the bill and answer as to the answering defendants 
 rights in the premises ; Buzby v. Roberts, 53 N. J. Eq., 566. 
 
 (24) Kuhl V. Martin, 28 N. J. Eq., 370; Reversed, 29 N. J. Eq., 586. 
 
 (25) Morris v. Taylor, 23 N. J. Eq., 131. 
 
 (26) Merselis v. Merselis, 7 N. J. Eq., 557. 
 
Master's Report. 359 
 
 presence and hearing and was' accurately taken from the -lips 
 of the witness must accompany the examination. Testimony 
 before a Master may be taken by a stenographer selected by 
 the Master, who shall be sworn by him faithfully and truth- 
 fully to take stenographically and to produce in manuscript 
 or typewriting the testimony given, and the depositions shall 
 be accompanied with the Master's certificate that they were 
 taken in his immediate presence and hearing by a stenographer 
 sworn as above required and that he believes that they accu- 
 rately state the evidence given. (27) 
 
 The deposition of a witness before a Master must be signed 
 by the witness. If not signed, it is improper, and cannot be 
 read at the hearing. (28) And the deposition of a witnes.^ 
 who, after his direct examination, secretes himself so that he 
 cannot be cross-examined, will be suppressed. (29) 
 
 A Master taking testimony in a suit in Chancery has no 
 power to order a person who has appeared as a witness and 
 has taken the stand, but who remains as a spectator, to re- 
 move her veil so that she may be identified by a witness' who 
 is under examination. (30) The court cannot approve of sus- 
 pending the examination of witnesses before a Master in order 
 to have it settled whether or not portions of testimony offered 
 are irrelevant. (31) 
 
 The Master's Report. The practice is, on a reference to 
 a Master, for such officer to take the testimony and hear the 
 arguments of counsel, and thereupon to make up and file his 
 report without notice to the respective counsel. (32) 
 
 A Master's report should show in what way he arrived at 
 his conclusion, so as to enable the court to ascertain from' the 
 report itself whether his method was right or not, especially 
 
 (27) Chancery Rule 44. 
 
 (28) Flavell V. Flavell, 20 N. J. Eq., 211 ; iiMnned, 22 N. J. Eq., 
 599; but where a special order was made in 'a case in regard to the 
 signing of testimony on reference to a Master, and that order has 
 not been appealed from, exception to the testimony on the ground that 
 it has not been read over or signed by the witnesses, cannot be con- 
 sidered as well founded on exceptions to the master's report; Leech 
 V. Leech, 72 N. J. Eq., S7i- 
 
 (29) Flavell V. Flavell, 22 N. J. Eq., 599- 
 
 (30) Rice V. Rice, 47 N. J. Eq., 559. 
 
 (31) Rusling V. Bray, 37 N. J. Eq., 174. 
 
 (32) Van Ness v. Van Ness, 32 N. J. Eq., 729. 
 
3G0 References. 
 
 in ai case where more than a simple computation of the amount 
 due is necessary. (33) So upon a reference to examine and 
 report whether the interest of infants' requires, and will be 
 promoted by a sale of their lands, the Master must report his 
 own opinion formed from facts, and not the opinion of others, 
 nor an opinion founded upon that of others without facts. (34) 
 
 But the fact that a Master's report contains surplusage is 
 not sufficient to warrant the setting aside other portions of 
 the report, or sustain an exception ; and where the Master 
 has ascertained and reported upon matters which are in them- 
 selves mere surplusage, as a means of arriving at the conclu- 
 sions which he was required to report as such, they are proper 
 to be stated in his report. (35) It is improper for a Master 
 in his report to argue the case upon its merits ; the province 
 of the Master is to report facts, and not arguments, for the 
 information of the court. (36) A Master may erase from his 
 record of the evidence his note of the nature of the objection 
 to the competency of a witness, and insert it elsewhere, so 
 as to make a true record of the time when the objection was 
 interposed. (37) 
 
 Where the Master to whom a Reference for an account is 
 made- reports generally adversely to the complainant, recom- 
 mending that the bill be dismissed for want of equity, although 
 this subject was not referred to him or considered a proj>er 
 subject of reference, such an order will not be made, but the 
 cause will be referred anew. (38) And so where in a suit 
 for the foreclosure of a mortgage which contained an agfree- 
 ment that the mortgagor should keep the buildings insured 
 and assign the policy to the mortgagee, and that in default of so 
 doing the mortgagee might effect such insurance and the 
 premium paid thereon should be a lien on the mortgaged prem- 
 ises and added to the amount secured by the mortgage, an 
 Order of Reference was made to a Master to take an account 
 of the amount due 'the complainants upon their bond and 
 
 (33) Frazier v. Swain, 36 N. J. Eq., 156; Reversed, 38 N. J. Eq., 
 281. 
 
 (34) In re Heaton, 21 N. J. Eq., 221. 
 
 (35) National Bank v. Sprague, 23 N. J. Eq., 81. 
 
 (36) Jackson v. Jackson, 3 N. J. Eq., 96. 
 
 (37) Laing v. Byrne, 34 N. J. Eq., 52. 
 
 (38) Blauvelt v. Ackerman, 20 N. J. Eq., 141. 
 
Exceptions to Report. 361 
 
 mortgage, it was held that the sum paid for insurance was 
 strictly no part of the amount due on the bond and mortgage, 
 and the Master's Report allowing, in addition to the amount 
 due upon the mortgage, a sum of money due for premiums 
 paid by the mortgagee in effecting insurance on the buildings, 
 was held bad on exceptions, on the ground that any inquiry in 
 regard to the payment of such insurance premiums was not 
 within the scope of the Order of Reference. (39) 
 
 Objections to Master's Report. — In General. Irregulari- 
 ties of the Master in his proceedings, or neglect to report on 
 the matters referred, are properly brought before the coiirt 
 on motion to set aside the report or to refer it back to be per- 
 fected. (40) So objection to a report on the ground that the 
 Master has sent up no evidence of his findings as to certain 
 matters of fact, should be brought before the court by motion 
 to refer the report back to the Master on those points or that 
 he send up the evidence on which his report in those respects 
 is based. Such objection is not the subject of exception. (41) 
 
 Where a contested case is referred to a Master, his refusal 
 to allow defendant to produce evidence not then obtainable 
 is not the subject of an exception to the Master's report, the 
 proper course being to apply to set aside the report. (42) So 
 a refusal by a Master to adjourn an examination at request 
 of counsel of some of the defendants to afford him an op- 
 portunity to produce witnesses in behalf of those whom he 
 represents, should he conclude to do so, is good cause for a 
 motion to set aside the report. Exceptions to the report in 
 such case is not correct practice. (43) So if a party has had 
 no notice, or an insufficient notice, of proceedings before the 
 Master, and desires to raise the question, he should not do it 
 by exceptions, but by a motion to set aside the report and re- 
 commit it to the Master. (44) And an objection that an Order 
 
 (39) Stonington Savings Bank v. Davis, 15 N. J. Eq., 30. 
 
 (40) Douglas V. Merceles, 24 N. J. Eq., 25; Tucker v. Tucker, 
 28 N. J. Eq., 223. 
 
 (41) Miller v. Miller, 26 N. J. Eq., 423. 
 
 (42) Davis V. Flag, 6 N. J. L, J., 53. 
 
 (43) Douglas V. Merceles, 24 N. J. Eq., 25 : Tucker v. Tucker, 28 
 N. J. Eq.. 22,-;. 
 
 (44) Douglas \ . Merceles, 24 N. J. Eq., 25. 
 
362 References. 
 
 of Reference was irregularly entered is not a ground of excep- 
 tion to the Master's Report. (45) 
 
 Exceptions to Master's Report. The dividing line between 
 matters which must be reached by exception and those which 
 can only be raised by motion to set aside the report is not 
 sharply defined but the general rule is that if a party desires 
 to contest a finding of the Master upon matters submitted to 
 him he must do so by exception ; but if he desires to question 
 a ruling of the Master in a matter which if wrong amounts 
 only to an irregularity or an error in procedure, he must do so 
 by motion to set aside the report. (45a) 
 
 By the English practice, exceptions to the account of a 
 Receiver as stated by a Master should be taken before the 
 Master while the account is in his possession, and before he 
 makes his report. In this State there has been no actual recog- 
 nition of this rule, except in cases where a draft of an account 
 was served, and the party omitted to make any exceptions or 
 suggest any alterations to the Master. (46) No exceptions will 
 lie to the report of a Master in a partition suit, where a decree 
 pro confesso is taken ; but any party interested may appear 
 and make objections to the report. (47) But the report of a 
 Master upon the accounts of Receivers requires confirmation, 
 and may be excepted to, and the several items of such accounts 
 may be investigated. (48) And a defendant, who has per- 
 mitted a bill for account against himself and his partner to be 
 taken as confessed against him, cannot question his liability 
 to account by exception to a Master's report, which, pursuing 
 the Order of Reference, holds him liable. (49) 
 
 In suits for the foreclosure of mortgages, or for partition, 
 where the answer shall not appear to set up any defense or 
 to present any question except such as in the opinion of the 
 court may be propertly referred to a Master, an Order of 
 Reference may be obtained on notice to the answering defend- 
 ants, and the Master's report shall be filed of course; and 
 unless exceptions be filed within 4 days, a decree may be 
 
 (45). Smith V. Frenche, 28 N. J. Eq., 115. 
 
 (4Sa) Tyler v. Simmons, 6 Paige, 127, 130. 
 
 (46) Mechanics Bank v. Bank of New Brunswick, 3 N. J. Eq., 437. 
 
 , (47) Chancery Rule 166. 
 
 (48) Richards v. Morris Canal &c. Co., 4 N. J. Eq., 428. 
 
 (49) Miller v. Woodruff, 26 N. J. Eq., 166. 
 
Exceptions to Report '363 
 
 made accordingly. (50) But where, after a decree pro con- 
 fesso, a party defendant, who has appeared before the Master, 
 fails to file exceptions to the Master's report within the 4 
 days required by the 29th rule because of an agreement be- 
 tween his solicitor and the solicitor of the complainant, such 
 exceptions may in the discretion of the court be afterwards 
 filed, and argument thereon heard, notwithstanding his laches. 
 (51) 
 
 The object of an exception to a Master's report is to specify 
 the objections' which the exceptant makes either to the whole 
 report or to specific parts thereof, with some statement of the 
 grounds on which the exception is based. Exceptions which 
 state no reason for criticism of the whole report, specify no 
 items on which the exceptant claims, and no particulars where- 
 in the Master is alleged to have erred, cannot be entertained. 
 (52) So an exception to a Master's report which merely 
 challenges the report as erroneous is too general to be of any 
 avail. (53) And it must appear from the Master's report, and 
 the proofs and documents accompanying it, that exceptions, 
 which would be vaHd if true, are founded on fact. (54) But 
 it is a proper ground of exception that the Master in his con- 
 clusions as to matters of fact has made a report contrary to 
 the evidence. (55) 
 
 Exceptions must be set down for hearing and placed upon 
 the calendar, like the hearing of other causes, and notice there- 
 of must be served fifteen days before the hearing, or the report 
 will be confirmed as a matter of course. (56) The order set- 
 ting down exceptions to a Master's report for argument must 
 be both entered and served before the expiration of the time 
 in the rule nisi, or the report may be confirmed. Either party 
 may set the exceptions down for argument. (57) 
 
 (so) Chancery Rule 29. 
 
 (51) Hoppock V. Ramsey, 28 N. J. Eq., 166. 
 
 (52) Merritt v. Jordan, 65 N. J. Eq., 772. 
 
 (53) Hoagland v. Saul, S3 Atl., 704. 
 
 (54) Bunnell v. Henderson, 23 N. J. Eq., 174. 
 
 (55) Haulenbeck v. Cronkright, 23 N. J. Eq., 407-412; affirmed, 25 
 N. J. Eq., 513. 
 
 (56) Morris v. Taylor, 23 N. J. Eq., 131. 
 
 (57) Morris v. Taylor, 23 N. J. Eq., 131 ; Miller v. Miller, 26 N. J. 
 Eq., 423- 
 
364 References. 
 
 If an Order of Reference is irregularly entered, an appear- 
 ance before the Master and participation in the hearing cures 
 the irregularity. (58) So where an answering defendant to a 
 bill for partition made no objection to an Order of Reference, 
 and took part in the proceedings under it, he was held to have 
 waived the irregularity; he was, however, permitted to be 
 heard on the merits of the report on exceptions thereto. (59) 
 
 Action of Court on Report. The conclusions of a Master, 
 who has examined and seen the witnesses, are always regarded 
 in equity as entitled to great respect ; and where they are 
 clearly supported by competent witnesses, who are unim- 
 peached, his report will not be set aside because there is con- 
 flicting testimony, unless it clearly appears from the nature 
 and weight of such testimony that the Master has erred. (60) 
 The rule of the court is' that the report of a Master on matters 
 referred to him will be taken as correct until some error is 
 shown. The burden of showing an error is upon the exceptant. 
 (61) And his conclusions upon the facts will be considered 
 justified by the evidence until the contrary is made to appear. 
 (62) 
 
 When from the whole case the result at which the Master 
 has arrived is as consonant with the evidence as a whole and 
 as probably just, with reference to the fixed and known data 
 of the case, as any that could have been reached, although 
 the court is unable to see by what precise view of the evi- 
 dence the Master reached this result, his report will not be 
 set aside. (63) So the court will not interfere with the re- 
 port of a Master on a question submitted to him depending 
 upon the credibility of witnesses, unless the error of the 
 Master is satisfactorily and clearly made to appear. (64) So 
 
 (58) Smith V. Frenche, 28 N. J. Eq., 115. 
 
 (59) Wain v. Miers, 27 N. J. Eq., "jy. 
 
 (60) Izard V. Bodine, 9 N. J. Eq., 309; Haulenbeck v. Cronkright, 
 23 N. J. Eq., 407 ; afHrm-ed, 2% N. J. Eq., 513 ; Eckerson v. McCulIoh, 
 I Atl., 700. 
 
 (61) National Bank v. Sprague, 23 N. J. Eq.. 81; Christopher v. 
 Mattlage, 60 Atl., 1124; Mayer v. West Side Development Co., 79 
 Atl., 620. 
 
 (62) VanNess v. VanNfcss, 32 N. J. Eq., 669; Reversed, ib., 72^. 
 
 (63) Blauvelt v. Ackerman, 23 N. J. Eq., 495 ; atHrmed, 25 N. J. 
 Eq., S70. 
 
 (64) Sinnickson v. Bruere, 9 N. J. Eq., 659. 
 
Exceptions to Report. 365 
 
 where the evidence taken before a Master is evenly balanced, 
 his conclusions thereon will not be set aside unless clearly 
 wrong. (65) But upon exceptions to a Master's report on a 
 question of fact, the court will come to a conclusion upon the 
 evidence irrespective of the Master's opinion. The report 
 is not entitled to the same weight as is the verdict of a jury 
 upon a motion for a new trial in a court of law. (66) The 
 report of a Master upon a question of fact will not, however, 
 be overruled, although the evidence on which it is founded is 
 vague and not altogether satisfactory, if it does not appear 
 that his conclusion was unwarranted by the evidence. (67) 
 
 The only matter that can be considered upon exceptions 
 to a Master's report is the validity of the exceptions. The 
 question whether there should have been a reference having 
 been considered and determined when the order was made, 
 it cannot be reviewed on the argument on the exceptions. (68) 
 Errors of a Master in permitting the cross-examination of a 
 party to be extended to improper matters do not necessarily 
 vitiate the whole report; if the same result is fairly obtainable 
 from a view of the evidence without the aid of the erroneous 
 examination, the report will be confirmed. (69) , 
 
 A new reference will not be ordered, in a matter of account, 
 simply because the exceptant believes that a more thorough 
 and careful examination of the account than has been made 
 may result in showing a mistake in the Master's report. (70) 
 But where a conveyance of lands was made by a grantor upon 
 the same day that the judgment was recovered against him, 
 and there were no allegations in the pleadings nor any proof 
 in the cause to show that the recovery of the judgment pre- 
 ceded the conveyance by a fractional part of a day or vice 
 versa, a Master's report that the judgment is entitled to prior- 
 ity will be sent back for further proof. (71) So where the 
 Master in his report, in foreclosure proceedings, does not 
 certify the evidence on which he determined that certain judg- 
 
 (65) Qark v. Condit, 21 N. J. Eq., 322. 
 
 (66) Holmes v. Holmes, 18 N. J. Eq., 141. 
 
 (67) Holmes v. Holmes, 18 N. J. E^., 141. 
 
 (68) National Bank v. Sprague, 23 N. J. Eq., 81. 
 
 (69) Jackson v. Jackson, 3 N. J. Eq., 96. 
 
 (70) VanNess v. VanNess, 32 N. J. Eq., 669; Reversed, ib., 720 
 
 (71) Hoppock V. Ramsey, 28 N. J. Eq., 413. 
 
366 References. 
 
 merits existed in favor of one of the defendants, the report 
 will be sent back in order that he ascertain whether there were 
 such docketed judgments by certified copies from the record. 
 (72) 
 
 Where the Master expresses no opinion on a material point, 
 supposing that it was not referred to him, if either party have 
 further evidence and desire it, a further reference will be 
 ordered. (73) Where a Master's report had been duly and 
 regularly confirmed, and a party against whom it was obtained 
 applied to set aside the order of confirmation to the end that 
 he might except, and the opposite party asked, if the motion 
 were granted, to be allowed to take further testimony on the 
 subject matter of the exception, the order was set aside on 
 those terms. (74) 
 
 In case of a plain mistake of the Master, evident upon the 
 face of the account, which is not included in the exceptions 
 or considered in the hearing of them, the court will, in its dis- 
 cretion, correct the mistake, or defer the final decree until it 
 can be examined into and corrected. (75) So where the de- 
 cree directing an account to be taken was a final decree with 
 no equity reserved, and when no further directions need be 
 given consequent upon the Master's report, an error by the 
 Master as to the value of the- property can be corrected by 
 the court without referring the account back to the Master 
 for a re-statement or setting down the cause for further hear- 
 ing. (76) And so where the Master has reported the amounnt 
 due upon several mortgages, and also their order of priority, 
 and upon exceptions taken to the report the order of priority 
 is changed, a final decree may be taken at once without a refer- 
 ence back to the Master. (77) And so where an exception to 
 an item in an account stated by a Master was sustained, and 
 the account was sent to the Master for modification, and he 
 again reported the item as at first stated, but reported the facts 
 
 (72) Schenck v. Sedam, 51 Atl. Rep., 492. 
 
 (73) Dutch Church v. Smock, i N. J. Eq., 148; but where exceptant 
 was not aggrieved by reason of the failure of the Master to report 
 on a matter as directed his exceptions on account thereof will be over- 
 ruled ; Leech v. Leech, 72 N. J. Eq., 571. 
 
 (74) Seigle V. Seigle, 36 N. J. Eq., 397. 
 
 (75) Morris v. Taylor, 23 N. J. Eq., 131. 
 (76'Ji Huston V. Cassidy, 14 N. J. Eq., 320. 
 (77) Chance v. Teeple, 4 N. J. Eq., 173. 
 
Confirmation of Report. 367 
 
 on which the modification could be made, it was held that the 
 item might be corrected by the court without further formal 
 exception. (78) Where an order was made to re-refer an 
 account stated and filed by a Master "for the purposes and 
 with the powers mentioned in the original Order of Refer- 
 ence to state an account between the parties with particularity, 
 and that the said Master have power to take further evidence," 
 it was held that such Order gave authority to the parties to 
 introduce such evidence as they respectively deemed requisite. 
 (79) 
 
 Confirmation of Master's Report. It is the practice, upon 
 filing a report on exceptions to an answer, to take an order 
 called an order nisi that the same shall be confirmed unless 
 cause be shown in eight days after the service of the same. 
 (80) Orders nisi, when necessary to confirm reports of Mas- 
 ters, need not be served upon a defendant who has been notified 
 to attend the Master respecting the matter referred but has re- 
 fused or neglected to attend, but shall become absolute of 
 course as to such defendant unless cause be shown to the con- 
 trary. (81) Filing exceptions to a report is a sufficient, and 
 the usual showing of cause against its confirmation. (82) 
 Where a defendant is entitled to notice of proceedings before 
 a Master under an Order of Reference, a rule nisi to confirm 
 the Master's report should be taken. (83) So where an Order 
 of Reference on a decree pro confesso directs that notice of 
 proceedings before the Master be given to the defendant, an 
 order nisi to confirm the report of the Master should be entered 
 on the part of the complainant. (84) When the merits of the 
 cause have been determined in the interlocutory decree, and 
 the Refence is to compute amounts due or to settle facts, and 
 the Master's report is confirmed upon exceptions taken, noth- 
 ing further is to be done, upon the cause being moved when 
 set down for further directions or final decree, than to decree 
 
 (78) Lippincott v. Becktold, 54 N. J. Eq., 407. 
 
 (79) VanNess y. VanNess, 32 N. J. Eq., 729. 
 
 (80) Weber v. Weitling, 18 N. J. Eq., 39- 
 ■(81) Chancery Rule 25. 
 
 (82) Weber v. Weitling, 18 N. J. Eq., 39. 
 
 (83) Miller v. Miller, 26 N. J. Eq., 423. 
 
 (84) Brundage v. Goodfellow, 8 N. J. Eq., 513. 
 
368 References. 
 
 the relief adjudged on the interlocutory decree, for the amounts 
 or upon the facts set upon the facts set up by the Master's re- 
 port thus confirmed. The merits' of the case determined by 
 the interlocutory decree cannot be again gone into. (85) 
 
 Master's Fees. On all reports made by Masters upon 
 special references in pursuance of any order or decree, the 
 Master shall be entitled to $4.00 for making the report and 
 $.30 per folio for drawing the same, and $.10 per folio for all 
 schedules annexed thereto, provided, however, that the fees 
 for drawing the report in a divorce case shall not exceed $4.50. 
 (86) 
 
 (85) Morris v. Taylor, 23 N. J. Eq., 131. 
 
 (86) Chancery Rule 47. 
 
Submission of Issues to Jury. 3(59 
 
 CHAPTER XXIII 
 
 SUBMISSION OF ISSUES TO JURY. 
 
 General Principles. It is the province and duty of the 
 Court of Chancery to decide upon the facts and the law, ex- 
 cept in cases of real difficulty growing out of contradictory 
 testimony or opposing facts and circumstances which it is im- 
 possible for the court to reconcile, in which cases an issue 
 may be directed for the trial of the same in the Supreme 
 Court, to inform the conscience of the court.(i) Where the 
 truth of facts can be satisfactorily ascertained by the court 
 without the aid of a jury, it is its duty to decide as to the 
 facts and not subject the parties to the expense and delay of 
 a trial at law. But in cases where the evidence is so contra- 
 dictory as to leave the decision of a question of fact in serious 
 doubt, and superior advantages may be obtained by means 
 of a trial before a jury, it is proper that an issue should be 
 awarded. (2) 
 
 Award of Issue Discretionary. The awarding of an issue 
 to try a question of fact rests in the discretion of the court; (3) 
 and the practice has always been, if the court thinks the rights 
 of the parties can thereby be more certainly and satisfactorily 
 settled, to direct a strongly controverted matter of fact to be 
 tried in the court of common law by a jury. In some instances 
 this has been done on the application of a party, and in others 
 on the mere motion of the court, in order to relieve its own 
 conscience and to be satisfied by the veridct of a jury of the 
 truth or falsehood of the facts controverted. (4) 
 
 Purpose of Issue. The purpose of directing an issue tp 
 be tried by a jury is to assist the Chancellor in the formation 
 of an opinion. On all occasions of doubt and real difficulty, 
 the Chancellor has the right to the advice of a verdict, and 
 this privilege at such time could not be properly refused. But 
 it is also apparent that the parties to a suit, in Chancery should 
 
 (i) Miller v. Wack, i N. J. Eq., 204. 
 
 (2) Carlisle v. Cooper, 21 N. J. Eq., 576-590. 
 
 (3) Trenton Banking Co. v. Woodruff, 2 N. J. Eq., 117; Carlisle 
 V. Cooper, 21 N. J. Eq., 576-590. 
 
 (4) Black V. Shreve, 13 N. J. Eq., 455-478. 
 
370 Submission of Issues to Jury. 
 
 not be put to the delay and expense of a trial at law unless 
 the result of said trial is likely to have a weighty influence in 
 the decision of the controversy ; (5) an issue should be directed 
 only where there is such a conflict of evidence as to make it 
 doubtful on which side the preponderance lies. (6) 
 
 When Issue Will be Awrarded. The practice of sending 
 ordinary matters to a jury for their decision should be dis- 
 couraged ; but in important cases where the evidence is so 
 contradictory as to raise serious doubts in the mind of the 
 court as to matters of fact, it is proper to direct an issue or 
 order a suit at law. (7) So if the issue is a single one and 
 the evidence is defective, the case should not be referred to a 
 jury, but the taking of further evidence ordered. (8) And so 
 where the facts can be satisfactorily ascertained by the court, 
 and the proof is clear, an issue will not he directed. (9) And 
 so, while it is a general principle that damages will not be ad- 
 measured by a court of equity when they are of an intangible 
 character, still where the right to damages is established, and 
 the amount thereof is admitted and undisputed, the deter- 
 mination of such damages by a jury would be useless. (10) 
 But where the fact as to whether an assignment was intended 
 to be absolute or a mere authority to enable the defendant to 
 collect was' doubtful upon the evidence, the court directed an 
 issue. (11) And an issue may be awarded to determine the 
 question of damages a land owner sustains, where the court 
 is dissatisfied with the report of the commissioner.s. (12) So 
 in a controversy between the owner of certain lots of land, 
 and a corporation which had condemned them for a raceway, 
 an issue was ordered to ascertain their value. (13) 
 
 ,(S') Newark & N. Y. R. R. Co. v. Newark, 23 N. J. Eq., 515-324; 
 Comfort's Case, 66 N. J. Eq., 6-8. 
 
 (6) Holcomb v. New Hope Delaware Bridge Co., 9 N.. J. Eq., 457; 
 Hildreth v. Schillinger, 10 N. J. Eq., 196 ; Fisler v. Porch, to N. J. 
 Eq., 243. 
 
 (7) Trenton Banking Co. v. Woodruff, 2 N. J. Eq.. 1 17-132; Bassett 
 V. Johnson, 3 N. J. Eq., 417; Black v. Shreve, 13 N. J. Eq., 455-478. 
 
 (8) Newark & N. Y. R. Co. v. Newark, 23 N. J. Eq., 515-524- 
 
 (9) Garwood v. Eldridge, 2 N. J. Eq., 290. 
 
 (10) Schmid V. Lisiewski, 53 N. J. Eq., 670. 
 
 (11) Fisler v. Porch, 10 N. J. Eq,, 243. 
 
 (12) Carpenter v. Easton & Amboy R. R. Co., 24 N. J. Eq., 408. 
 
 (13) Trenton Banking Co. v. McKelway, 8 N. J. Eq., 84. 
 
Form of Issue. 371 
 
 Where, however, a question is one proper to be tried on an 
 issue directed, if such issue had been applied for, but both 
 parties have proceeded to take testimony at great length and 
 allowed the hearing to be brought on without applying for 
 an issue, it is the province and duty of the court to decide it, 
 if the evidence is such that the court can arrive at a satisfac- 
 tory conclusion. (14) 
 
 Appeal From Order Directing Issue. An appeal will lie 
 from an order directing an issue, but the Court of Appeals 
 will not interefere with the discretion of the Chancellor as to 
 the form of tlxe issue, if such form be appropriate to secure 
 a fair presentation of the issue at the trial. (15) 
 
 Nature and Form of Issue. An issue, or as it is com- 
 monly called, a feigned issue, is a mode of procedure adopted 
 from the Civil Law by courts of law as well as by Courts of 
 Equity, as a means of having some question of fact arising 
 incidentally, and to be made the foundation of some order or 
 decree, determined by the verdict of a jury. It is called a 
 feigned issue for the reason that its object is not the establish- 
 ment of a legal right on which a judgment regularly follows, 
 but the ascertainment by a formal trial of some issue of fact 
 arising in another cause and materia} to the decision of the 
 same. For convenience of trial, the issue must be given the 
 form of a common law action, with af>propriate pleadings and 
 an issue thereon ; but, nevertheless, it is the nature and pur- 
 pose of the issue that give it character as a feigned issue or 
 •otherwise, and not the form in which the issue is expressed. 
 (16) ' 
 
 The issue may be in any form adapted for a trial in a court 
 of law before a jury. Where convenience requires it, the 
 issue may be framed as if upon a wager, or, if practicable, 
 formal pleadings in an ordinary action at law may be resorted 
 to, and the issue may be in such form as to present the real 
 subject matter in controversy, without losing its character as a 
 feigned issue. In Barrow v. Bispham,{iy), the question, 
 -whether a bond on which judgment by confession was entered 
 
 (14) Denton v. Leddell, 23 N. J. Eq., 64; aKrmed, 24 N. J. Eq., 567. 
 (is) Newark & N. Y. R. R. Co. v. Newark, 23 N. J. Eq., 515; 
 American Dock, &c. Co. v. Trustees, 37 N. J. Eq., 266. 
 (16") American Dock Co. v. Trustees, 37 N. J. Eq., 266. 
 (17) Barrow v. Bispham, 11 N, J. L., no. 
 
','>TZ Submission of Issues to Jury. 
 
 had been obtained by fraud, was tried upon a feigned issue 
 in the form of an action of assumpsit on promises. In 
 Decker v. Caskey, {i8), on a bill filed for the discovery and 
 production of a deed of conveyance alleged to have been lost 
 or destroyed and the foreclosure of a mortgage upon the 
 premises made by a grantee named in the conveyance, — it 
 being alleged in the answer that the deed was never delivered 
 and that the grantor was not competent to make the convey- 
 ance — an issue as to the existence and validity of the deed 
 was ordered to be tried at law, under the direction of the 
 Chancellor, in an action of ejectment. (19) So an issue di- 
 rected to be tried by the jury may consist of a' series of specific 
 questions. (20) And so an issue may be awarded with special 
 directions touching the conduct of the rial and leave given 
 for a special jury. (21) 
 
 Mode of Trial Under Control of Court of Chancery. The 
 mode of trial before the jury is entirely under the control of 
 the court of equity. It will often by its order suspend certain 
 of the rules of evidence for the purpose of affording facilities', 
 for the trial of the issue. It may direct that the parties be at 
 liberty to read the depositions taken in the cause of such of 
 the witnesses as upon the trial shall be proved to be dead or 
 unable to attend' to be examined. As' the whole proceeding 
 takes place for the purpose of informing the conscience of the 
 court, it is not bound strictly to the forms and incidents of a 
 regular common law trial. (22) 
 
 Trial in Court of Law. The rules of law in regard to 
 evidence govern the proceedings, except in so far as they 
 have been otherwise regulated by the terms of the order grant- 
 ing the issue. (23) So the answer of the defendant cannot 
 be read as evidence in the trial at law unless the Chancellor 
 so orders. (24) And it is proper for the trial court to direct 
 a verdict if the evidence justifies the peremptory instruction 
 
 (18) Decker •.•. Caskey, i N. J. Eq., 427. 
 
 (19) American Dock & Improvement Co. v. Trustees, 37 N. J. 
 Eq., 266. 
 
 (20) Black V. Lamb, 12 N. J. Eq., 108; affirmed, 13 N. J. Eq., 455.- 
 
 (21) Bassett v. Johnson, 3 N. J. Eq., 417. 
 
 (22) Black V. Shreve, 13 N. J. Eq., 4S=;-479; Comfort's Case, 66- 
 N. J. Eq., 6; McAndrews & Forbes Co. v. Camden, 78 Atl., 232. 
 
 (23) Black V. Lamb, 12 N. J. Eq., 108; affirmed, 13 N. J. Ekj., 455. 
 
 (24) Black V. Lamb, 12 N. J. Eq., 108; affirmed, 13 N. J. Eq., 455^ 
 
Trial at Law. 373 
 
 given. (25) Objections to the form of the issue must be made 
 before trial. (26) In the trial at law of an issue out of chan- 
 cery, no bill of exceptions can be taken and no judgment 
 entered ; the circuit record and postea are sent to the Court 
 of Chancery, and the result of the trial is subject to review 
 in that court only. (27) And it is not necessary that the 
 judgment at law should be brought before the court by supple- 
 mental bill. The action at law is only the method of trial by 
 which the issue in the cause is finally settled for the purpose 
 of the equitable relief to be asked thereon. (28) The judge 
 before whom the issue is tried should not only return the 
 postea, but go further, and furnish the Court of Chancery 
 with a fair statement of the trial. His certificate always has 
 its weight; (29) and the Court of Chancery will not usually 
 set aside a verdict on an issue at law where the judge before 
 whom such issue was tried certifies that he is satisfied with 
 the verdict and that it ought to be regarded as conclusive on 
 the question submitted to the jury. (30) It is not necessary, 
 however, that the report of the judge should state the evidence 
 and give a minute history of the trial ; all that can be required 
 of him is that he state the general character of the evidence 
 offered, the parts objected to and the decisions made upon 
 those objections, with his charge to the jury. (31) If any 
 difficulty exists in relation to the report of the judge, the 
 Court will not for this cause alone grant a new trial, but will 
 call on the judge for an additional report of the case. (32) 
 
 Court of Chancery Not Bound by Result of Trial at Law. 
 
 The office of a jury in the Court of Chancery is not definitely 
 and finally, as in a court of law, to settle questions of fact, 
 but simply to inform the conscience of the Chancellor where 
 he has a doubt. (33). The Court is not, therefore, bound by 
 
 (25) Sparks v. Ross, 72 N. J. Eq., 762; affirmed, 73 N. J. Eq., 735. 
 
 (26) Black V. Lamb, 12 N. J. Eq., 108; affirmed, 13 N. J. Eq., 455. 
 
 (27) Trenton Banking Co. v. Rossell, 2 N. J. Eq., 492 ; American 
 Dock, &c. Co. V. Trustees, 37 N. J. Eq., 266; Comfort's Case, 66 N. J. 
 Eq., 6-8. 
 
 (28) D. L. & W. R. R. Co. V. Breckenridge, 56 N. J. Eq., 595. 
 
 (29) Bassett v. Johnson, 2 N. J. Eq., IS4- 
 
 (30) Prudden v. Lindsley, 31 N. J. Eq., 436. 
 
 (31) Bassett v. Johnson, 2 N. J. Eq., 154. 
 
 (32) Bassett v. Johnson, 2 N. J. Eq., 154. 
 
 (33) Freeman v. Staats, 9 N. J. Eq., 816. 
 
374 Submission of Issues to Jury. 
 
 the result of the trial at law, but after the postea has been 
 returned may, if it thinks fit, make no use whatever of the 
 verdict, and treat it as a mere nullity. (34) So where an issue 
 is framed by order of the Court to submit the question as to 
 the amount of damages to a jury, the verdict will be disre- 
 garded if deemed unwarranted, and the amount of compensa- 
 tion determined by the Court of Chancery in its discretion,(35) 
 But the Court does not proceed to final decree on the verdict 
 without affording an opportunity to the party defeated on the 
 issue at law to be heard as to errors of fact or law occurring 
 at the trial. (36) 
 
 Application for a New Trial. Application for a new trial 
 of an issue at law out of the Court of Chancery is made to 
 the Chancellor; and upon an application for a new trial, the 
 court ought to exercise its discretion in such a manner and 
 upon such principles as will result in the administration of 
 justice. If, therefore, the Court gives any weight to the 
 verdict in the decision of the cause, it ought not to allow a 
 verdict to stand as a guide to its judgment and an excuse to its 
 conscience, where important evidence, which is entitled to 
 material weight with the jury, has been improperly admitted 
 or rejected, or where the judge has charged the jury in a 
 manner calculated to mislead them on an important point. 
 The court ought not to listen to mere technical objections, 
 and may very properly, and often does, refuse a new trial 
 upon grounds which would prevail as a matter of course in a 
 court of law, provided it is satisfied from the evidence as it 
 exists and from the record in equity that the means of form- 
 ing a correct judgment are .before it. (37) So a new, trial 
 of an issue out of Chancery will not be granted merely 
 because on the former trial the judge misdirected the jury, 
 if upon the whole evidence the court is satisfied that the 
 verdict is right. (38) So upon a motion for a new trial of an 
 issue at law it can not be objected that the issue framed is not 
 
 (34) Black V. Slireve, 13 N. J. Eq., 455-479; Comfort's Case, 66 
 N. J. Eq., 6; McAndrews & Forbes Co. v. Camden, 78 Atl., 232. 
 
 (35) Carpenter v. Easton & Amboy R. R. Co., 26 N. J. Eq., 168. 
 
 (36) D. L. & W. R. R. Co. V. Breckenridge, 56 N. J. Eq., 595-601. 
 
 (37) Bassett v. Johnson, 2 N. J. Eq., 154; Newark Plank Road v. 
 Elmer, 9 N. J. Eq, 754; Black v. Lamb, 12 N. J. Eq., 108; aMrmed, 
 13 N. J. Eq., 455- 
 
 (38) Trenton Banking Co. v. Rossell, 2 N. J. Eq., 511. 
 
New Trial. 375 
 
 broad enough, and that other inquiries ought to have been 
 involved in it. (39) 
 
 It may be perfectly clear that competent testimony' has been 
 rejected and incompetent testimony admitted, or that the trial 
 judge has misdirected the jury, and yet the Court of Chancery 
 is not bound to grant a new trial for any of these reasons. (40) 
 And the Court of Chancery will not, as a general rule, set 
 aside a verdict on an issue at law where the Judge before 
 whom such issue was tried certifies that he is satisfied with 
 the verdict and that it ought to be regarded as conclusive on 
 the questions submitted to the jury. (41) But a new trial will 
 be ordered if the verdict is clearly against the weight of evi- 
 dence. (42) 
 
 When the verdict of a jury upon an issue framed in Chan- 
 cery is set aside, the cause cannot be finally decided upon the 
 proofs offered at the jury trial. Ordinarily such evidence is 
 before the Chancellor only for the purpose of determining what 
 weight should be given to the verdict. (43) 
 
 In the case of Black v. Lamb (44), Chancellor Williamson 
 remarked that no appeal will lie from a decision of the court 
 upon an application for a new trial. This remark was, how- 
 ever, pure dictum, and the Chancellor based it upon the fact 
 that no appeal would lie from an order of the Court of Chan- 
 cery directing an issue. It was held, however, in a recent (iase, 
 that in such case an appeal will lie ; and by parity of reason, it . 
 would seem that an appeal would also lie from an order made 
 upon an application for a new trial. (45) 
 
 Costs. The costs of an issue at law directed by the Court 
 of Chancery do not follow the verfdict as of course, but are in 
 the discretion of the court, so a mortgagee upon a bill to fore- 
 close was allowed his taxed costs on an issue at law directed 
 by the court to try the mortgagor's title to a part of the mort- 
 
 (39) Bassett v. Johnson, 2 N. J. Eq., 154. 
 
 (40) Black V. Lamb, 12 N. J. Eq., 108; affirmed, 13 N. J. Eq., 455. 
 
 (41) Prudden v. Lindsley, 31 N. J. Eq., 436. 
 
 (42) Powell V. Mayo, 26 N. J. Eq., 120. 
 
 (43) Prudden v. Lindsley, 29 N. J. Eq., 615 ; American Dock, &c. 
 Co. V. Trustees, 39 N. J. Eq., 409-451. 
 
 (44) Black V. Lamb, 12 N. J. Eq., 108; affirmed, 13 N. J. Eq., 455. 
 
 (45) See page 371, supra; and see also Brady v. Carteret Realty Co., 
 70 N. J. Eq., 748- 
 
376 Submission of Issues to Jury. 
 
 gaged premises although the verdict at law was adverse to 
 the claims of the mortgagee, such costs being in the opinion 
 of the court expenses properly incurred in the recovery of the 
 mortgage money. (46) 
 
 Appeal. The fact that an issue has been awarded, and 
 a verdict by a jury rendered in the cause upon which the decree 
 of the Chancellor is based does not take away or limit the con- 
 trol of the Court of Appeals over the decree. (46a) And on an 
 appeal from such an order that court, in its discretion, will 
 decide the entire controversy or send the case back with in- 
 structions. (47) 
 
 Direction of Action at Law. The general rule is that a 
 court of equity has no jurisdiction to try, or establish by its 
 decree, the legal title to lands. When, therefore, the exist- 
 ence of such a title is put in issue in an equity cause, various 
 modes of dealing with it have been adopted. Sometimes when 
 the complainant's right to the relief sought depends upon his 
 having the legal title, and there is no obstacle to his assertion 
 of that title in an action at law, the Court of Chancery has 
 dismissed his bill because it was filed before he had so asserted 
 and maintained his title. The modern practice, however, leans 
 much more toward the retention of the bill (except in some 
 sorts of bills of peace) until an opportunity is afforded to the 
 complainant to bring a legal action upon his title, or until an 
 issue out of Chancery can be tried at law. This practice 
 seems to be necessary when the complainant relies upon an 
 'equity only, and the defendant sets up a legal right in defense. 
 (48) Where an action at law is directed at the hearing, 
 
 (46) Decker v. Caskey, 3 N. J. Eq., 446. 
 (46a) Freeman v. Staats, 9 N. J. Eq., 816. 
 
 (47) Newark & N. Y. R. R. Co. v. Newark, 23 N. J. Eq., 515-524..^ 
 
 (48) Decker v. Caskey, i N. J. Eq., 427 ; Tomlinson v. Sheppard, 
 7 N. J. Eq., 80; Freichnecht v. Meyer, 39 N. J. Eq., 551. 
 
 Transfer of Causes Act of 1912. 
 
 An Act to provide for the transfer of causes by and between the Court 
 of Chancery and the Supreme Court, or Circuit Courts, or Courts of 
 Common Pleas. 
 
 I. No civil cause or matter, hereafter pending in any court mentioned 
 in the above title, which has not jurisdiction of the subject matter, 
 shall be dismissed for that cause onjy, but the cause or matter shall 
 be transferred with the record thereof and all papers filed in the 
 cause, for hearing and determination to the proper court, which shall 
 
Direction of Action at Law. 377 
 
 the practice is to direct the cause in Chancery to stand over 
 until a day fixed in the order. If the action at law be not 
 determined by the day fixed the time may be extended on 
 application. (49) 
 
 So where litigation concerning lands is pending in the Court 
 of Chancery, and the complainant apprehends' that his rights 
 may be embarrassed, if not defeated, by the running of the 
 statute of limitations if the bill should ultimately be dismissed, 
 he may ,be allowed for his protection to try the title to the 
 lands in controversy by an action of ejectment. Such pro- 
 ceedings, however, must be under the control of the Court 
 of Chancery. (50) So where on an application for accounting 
 defendant introduces a counter-claim for unliquidated damages 
 which could not be tried in equity, a decree for the sum due 
 complainant will be stayed until defendant has an opportunity 
 for testing his counter-claim at law. (51) So in a suit in Chan- 
 cery, if a question arises as to the validity of a devise in a 
 will, and the reading of the clause in queston does not settle 
 the matter, the court may hold the bill until an action at law is 
 brought to establish the title, or it may refer the question to 
 a court of law for an opinion thereon under the provisions 
 of the 79th Section of the Chancery Act. (52) 
 
 The distinction between the suspension of proceedings in 
 an equity suit with leave to a party to bring a suit at law, or 
 the direction of an action at law, and an issue out of Chancery, 
 is well settled. If a cause is allowed to stand over with leave 
 
 thereupon proceed therein, as if the cause or matter had been originally 
 commenced in that court. The record shall, when necessary, include 
 a transcript of all entries and proceedings in the cause. 
 
 2. Such transfer may be made at any stage of the proceedings 
 and upon, or without, application, and subject to rules, or the special 
 orders, of court. 
 
 3. Rules for such transfers from the Court of Chancery shall be 
 made by that court; rules for such transfers from the other courts 
 shall be made by the Supeme Court. 
 
 4. This act may be referred to as "The Transfer of Causes Act 
 (1912)." P. L., 1912, p. 417. 
 
 (49) D. L. & W. R. R. Co. V. Breckenridge, 56 N. J. Eq., 595. 
 
 (to) American Dock, &c. Co. v. Trustees, 36 N. J. Ilq,, 16; afHrmed, 
 37 iSr. J. Eq., 266. 
 
 (51) Alpaugh V. Wood, 45 N. J. Eq., 153; McCracken v. Harned, 
 59 N. J. Eq., 190; Norton v. Sinkhorn, 63 N. J. Eq., 313. 
 
 (52")" Gillen v. Hadley. 72 N. J. Eq., 505; and see Chancery Act, 
 section 79, page 68, supra. 
 
378 Submission of Issues to Jury. 
 
 to bring an action at law, or if an action at law is directed, 
 the action is prosecuted in compliance with the practice and 
 proceedings in ordinary actions at law. Bills of exceptions 
 may be taken at the trial, and the proceedings are reviewable 
 by rule to show cause in the usual manner and judginent at 
 law will be entered which will be accepted in the Equity Court 
 as a finality. But as has already been seen where an issue is 
 sent out of Chancery, the whole proceeding is under the con- 
 trol of the Chancellor. No bill of exceptions can be taken and 
 no judgment entered; the circuit record and postea are sent 
 to the Court of Chancery, and the conduct and result of the 
 trial are subject to review in that court only. (53) 
 
 Where an action at law is directed, the Court of Chancery, 
 in declining to review , any alleged errors in the proceeding 
 in this action, does so, not- because the party is not" entitled to 
 any review before a final decree is made, but because the 
 right of review is given by the proceedings at law, and should 
 be there pursued. For it must be observed that the sole pur- 
 pose of directing the action at law is that the contested legal 
 title may be settled by a court of law in such a manner that a 
 court of equity should treat it as final between the parties', 
 as a basis for settling the ultimate equities of the cause arising 
 on the settlement of the legal title. (54) 
 
 Where the court has directed complainant to bring an action 
 at law to try title to land, and at the time fixed for further 
 hearing in equity an application for a new trial in the court 
 of law or proceedings to review alleged errors in law by writ 
 of error are pending, the court will direct the hearing in 
 equity to stand over pending the disposition of the proceed- 
 ings at law, at least where such proceedings are not manifestly 
 taken for delay. (55) 
 
 When Judgment has been entered in the action at law the 
 practice is to apply by petition to set the cause down for 
 further hearing, the petition should set out the proceedings in 
 the action at law for the purpose of bringing the cause again 
 before the Court of Chancery after the trial of the action at 
 
 (53) American Dock & Improvement Company v. Trustees, 37 
 N. J. Eq., 266; D. L. & W. R. R. Co. v. Breckenridge, 56 N. J. Eq., 
 S9S-60I. 
 
 (S,4) D. L. & W. R. R, Co. v. Breckenridge, 56 N. J. Eq., S9S-601. 
 
 (SS) D. L. & W R. R. Co. V. Breckenridge, 56 N. J. Eq., S9S-6oi. 
 
Direction of Action at Law. 379 
 
 law, the formal proceedings are usually the same as when an 
 issue at law is directed and the postea is returned into Chan- 
 cery, the cause in either form of proceeding being set down 
 for further direction in Chancery. (56) 
 
 (56) D. L. & W. R. R. Co. V. Bi-eckenridge, 56 N. J. Eq., 595. 
 
380 Hearing. 
 
 CHAPTER XXIV. 
 HEARING. 
 
 In General. By the earlier practice of the Court of Chan- 
 cery, the testimony of the witnesses was taken in writing by 
 an ofificer called an examiner ; after the parties had completed 
 taking their testimony the cause was noticed for argument 
 before the chancellor upon an abbreviated statement of the 
 pleadings and proofs, no oral testimony was taken. 
 
 The introduction of vice-chancellors and our present system 
 of taking testimony orally before them has resulted in the 
 practical abolition of the former method of proceeding. The 
 older method is, however, resorted to in taking testimony in 
 support of pleas and perhaps in some other matters. The 
 method of taking testimony before an examiner will be found 
 in the notes to Section 33 of the Chancery Act, (i) while pro- 
 ceedings before vice-chancellors are treated in a note to sec- 
 tions 96 et seq. of the same act. (2) 
 
 Terms of Court. Each regular term of the court shall 
 continue for the setting down of causes and arguments until 
 the tenth day thereof, and for all other purposes until the next 
 regular term; but no arguments or contested motions' shall 
 be heard between the sixteenth day of July and the first day 
 of September, except in injunction cases, unless by the special 
 order of the chancellor, or a vice-chancellor. (3) 
 
 Cause to be Noticed for Hearing at Next Term after 
 Evidence Closed. Every cause shall be noticed for hearing 
 at the next term after the evidence therein is closed provided 
 there shall be sufficient time to notice it at or in such term ; and 
 no cause shall be set down for hearing on any day in any term 
 after the tenth day. (4) 
 
 Causes to be Set Down for Hearing on First Day of Term. 
 All causes, including pleas and demurrers, shall be set down 
 for hearing for the first day of the term, provided there is 
 time sufficient to give the notice required ; if not time, then 
 
 (i) See Chancery Act, sec. 33, page 35, supra. 
 
 (2) See Chancery Act, sec. 96, et seq., page 78, suprm 
 
 (3) Chancery Rule 1. 
 
 (4) Chancery Rule 10. 
 
Practice. 381 
 
 at a subsequent day in the term, not later than the tenth -jf^y, 
 and shall have priority according to the date of issue. ( CgijBQ 
 
 Hearing where Equities' Settled by Interlocutory Deore^ 
 In all suits where the equities between the parties shall AaWiJ 
 been settled by an interlocutory decree, the cause may tsi^'ai 
 once set down for final hearing, and a final decree mayib^sai 
 tered at the same term after such hearing upon notice tdn^B 
 opposite party. (6) "laJ 
 
 Notice of Hearing — Service. Notices of bringing caus3i 
 to a hearing, including the bringing on the argument of a pled| 
 demurrer and of exceptions to a master's report, shall be served 
 at least fifteen days before such intended hearing or argu- 
 ment. (7) 
 
 Exceptions to Master's Report Heard Any Day in Term. 
 Exceptions to a master's report may be set down to be heard 
 at any day in the term, on the application of either party; 
 but five days' notice shall be given of such application. (8) 
 
 Order Setting Down Exceptions to Master's Report to 
 be Served and Filed. The order setting down exceptions 
 to a master's report for argument must be both entered and 
 served before the expiration of the time limited by the rule 
 nisi, or the report may be confirmed. (9) 
 
 Either Party May Enter Plea for Argument. Where the 
 complainant has taken issue upon a plea, by filing a replica- 
 tion thereto, either party may enter the plea for argument 
 at the next or any subsequent term. (10) 
 
 Date of Issue Joined to be Furnished Clerk. The party 
 setting down a cause for hearing, or his solicitor, shall, at 
 least six days before the first day of the term for which the 
 cause is noticed, furnish the clerk with a note of the time issue 
 was joined, which shall be entered on the calendar; and in 
 default thereof, the cause set down without such note shall 
 lose its priority. ( 1 1 ) 
 
 (5) Chancery Rule 3. 
 
 (6) Chancery Rule 16. 
 
 (7) Chancery Rule 11. 
 
 (8) Chancery Rule 12. 
 
 (9) Chancery Rule 11. 
 
 (10) Chancery Rule 13. 
 
 (11) Chancery Rule 3. 
 
382 Hearing. 
 
 'Y^emedy of Defendant If Complainant Fails to Notice 
 Caiise. If the complainant shall fail within ten days after 
 tfasiejcpiration of the time to take testimony, to notice the cause 
 folEArgument, the defendant shall be entitled of course to an 
 wdsiif directing the complainant to show cause why the de- 
 feectelit should not be permitted to notice the cause for argu- 
 Sifent, and bring on the hearing thereof at the next stated 
 term; and if cause be not shown to the contrary the defend- 
 ant may be permitted to give notice, and bring on the hear- 
 mg of the cause. (12) 
 
 Causes to be Heard in Their Order. The chancellor and 
 the vice-chancellor will attend at the opening of each regular 
 term of the court, and all causes set down and noticed for 
 hearing on the first day of the term shall then be heard in 
 their order by the chancellor or the vice-chancellor to whom 
 they are then respectively referred. (13) 
 
 Disposition of Cause If Hearing be not Brought On. If 
 the hearing is not so brought on, the cause will be marked "not 
 moved," and will be off the list for the term. Causes noticed 
 for a subsequent day in term under the rules shall be heard on 
 a day to be fixed on the first day of the term. No contest or 
 agreement of counsel shall be allowed to make any other dis- 
 position of causes down on the list for hearing. (14) 
 
 Only Causes Set Down to be Heard. No causes will be 
 heard, except such as are set down at a regular term, unless 
 ordered by the chancellor, upon consent of parties. (15) 
 
 Day for Hearing Not Assigned until Testimony Closed. 
 
 No day shall be assigned by the court for the final hearing of 
 any cause oh the list until after the evidence shall have been 
 closed, unless the cause be set down for hearing on bill and 
 answer. (16) 
 
 State of Case and Briefs to be Delivered to Chancellor. 
 
 The party who sets down any cause, plea, or demurrer for 
 hearing or argument, shall deliver to the chancellor, before the 
 commencement of the hearing or argument, an abbreviation 
 
 (12) Chancery Rule 15. 
 
 (13) Chancery Rule la. 
 
 (14) Chancery Rule la. 
 (is) Chancery Rule 9. 
 (16) Chancery Rule 2. 
 
Practice. 383 
 
 of the pleadings, or a state of the case as contained in the 
 pleadings; and each pai'ty shall also furnish him with a con- 
 cise statement of the material points of the case on which he 
 intends to rely under each of which the authorities relied up- 
 on to sustain the point shall be cited. (17) 
 
 Consolidation of Causes. Where the chief matter in con- 
 troversy, in two suits between the same parties, is the same 
 and if that was settled there would be no substantial differ- 
 ence between the parties, and no possible injury can result, it 
 is proper to order that the testimony taken in either suit may 
 be used in the other and that the hearing of both shall come 
 on together. (18) For many purposes an original and cross 
 cause in chancery are considered as one suit and are ordinarily 
 heard together and the rights of all the parties in respect to 
 the matters litigated are settled by one decree. (19) 
 
 Argument of Cause. On all hearings and arguments be- 
 fore the court after reading the pleadings, one of the counsel 
 for the complainant, or party holding the affirmative, and hav- 
 ing the right of opening, shall open the cause or matter in 
 question ; then two counsel for the adverse party may be heard 
 in answer, after which one counsel only for the party having 
 the opening may be heard in reply ; but in case there be several 
 defendants, who have separate and distinct interests, and dif- 
 ferent counsel concerned for them, then the counsel for the 
 respective defendants shall be heard in such order as the court 
 may direct, but in no case shall more than two counsel be 
 heard for one defendant ; and if more than two counsel be 
 heard in answer for the defendants, in that case two coun- 
 sel may be heard in reply. (20) Upon hearing on bill, cross 
 bill, answers and depositions, where both causes come on to 
 be heard together and both parties have material allegations to 
 sustain under their respective bills, the complainant in the 
 original bill is entitled to the opening and reply. (21) 
 
 Cause May Be Submitted on Briefs. Where cases are 
 submitted to the chancellor without argument, such submis- 
 
 (17) 
 
 Chancery Rule 8. 
 
 (18) 
 
 Evans v. Evans, 23 N. J. Eq., 180. 
 
 (19) 
 
 Whyte V. Arthur. 17 N. T. Eq., 521 ; Reed v. Benzine-ated Soap 
 
 Co., 72 
 
 N. J. Eq., 622-624. 
 
 (20) 
 
 Chancery Rule 7. 
 
 (21) 
 
 Murphy v. Stults, I N. J. Eq., 560. 
 
384 Hearing. 
 
 sion shall be made by agreement in writing, signed by the 
 solicitors of the respective parties, and shall be accompanied 
 by briefs or notes of the points and cases upon which the 
 said parties respectively rely. (22) 
 
 Printing Pleadings and Evidence. This matter has been 
 considered in the notes to section thirty-four of the Chancery 
 Act. (23) 
 
 Papers used at Hearing. The bill, answer, pleadings, 
 papers, documents, examinations and proofs filed in the cause 
 shall be used at the argument or hearing for which no charge 
 shall be made by the clerk. (24) 
 
 (22) Chancery Rule 17. 
 
 (23) See Chancery Act, section 34, page 37, supra. 
 
 (24) Chancery Act, section 38, page 41, supra. 
 
Evidence. 385 
 
 CHAPTER XXV. 
 
 EVIDENCE. 
 
 General Rules. The rules of evidence in equity are, in 
 general, the same as at law, and questions of the competency 
 and incompetency of witnesses and of other proofs are the 
 same in both courts. (i) The principle that parol evidence may 
 be admitted, even in defense, to vary or contradict a written 
 agreement has never been established by authority, although it 
 seems that courts of equity are more liberal in admitting it to 
 resist than to enforce a specific performance. (2) Where the 
 bill alleges a parol contract to purchase land at a sheriff's sale 
 for the benefit of the defendant in execution an answer deny- 
 ing the contract will be good without setting up the statute of 
 fraud^. The bar to the complainant's suit is complete because 
 no proof of the parol contract can be admitted, such proof 
 being illegal by the statute. (3) But where the defendant uses 
 a parol agreement respecting land to defraud the complainant 
 out of the land, the complainant may prove such agreement for 
 the purpose of showing the fraud. (4) 
 
 The competency of a witness in a suit in equity depends en- 
 tirely upon his qualifications at the time he is examined. If 
 the condition of the suit as to parties at the time he is examined 
 is such as to render him competent, his testimony may be read 
 at the hearing, though in the interval between his examination 
 and the hearing the suit may be so changed as to parties that 
 he could not be called as a witness at the time the hearing oc- 
 curs.(5) So where a witness was competent to testify to a 
 transaction with or statement by a decedent when his testi- 
 mony was given, his subsequent introduction as a party will 
 
 (1) Runyon v. Farmers, etc., Bank, 4 N. J. Eq., 480. 
 
 (2) Stoutenburg v. Tompkins, 9 N. J. Eq., 332 ; O'Brien v. Pater- 
 son Brewing Co., 69 N. J. Eq., 117. 
 
 (3) Wakeman v. Dodd, 27 N. J. Eq., 564; McElroy v. Ludlum, 
 32 N. J. Eq., 828, 831; Busick v. VanNess, 44 N. J. Eq., 82; Tynan 
 V. Warren, 53 N. J. Eq., 313; Lozier v. Hill, 68 N. J. Eq., 300; Van 
 Horn V. Demarest, 76 N. J. Eq., 386-388. 
 
 (4) Wakeman v. Dodd, 27 N. J. Eq., 564; Busick v. VanNess, 44 
 N. J. Eq., 82. 
 
 (5) Walker v. Hill, 22 N. J. Eq., 513; Williams v. Vreeland, 
 30 N. J. Eq., 576; Beckhaus v. Ladner, 48 N. J. Eq., 152. 
 
386 Evidence. 
 
 not make it inadmissible, though he might thereafter have been 
 incompetent. (6) So if a defendant in a suit dies after the 
 complainant has been examined as a witness, and his adminis- 
 trator is made defendant in his place, the complainant's evi- 
 dence will be admitted at the hearing. He was competent at 
 the time when it was taken, and that is the test of admissibility ; 
 it cannot be rejected because the defendant was prevented from 
 testifying by death. (7) But where complainant was sworn 
 and examined as a witness in his own behalf, and died before 
 the defendant was sworn, but after she had the time and op- 
 portunity to be sworn, and the action was revived by complain- 
 ant's executors, and then the defendant was sworn in her own 
 behalf and gave evidence before the Master, subject to objec- 
 tion to transactions with and statemicnts by the decedent, such 
 evidence was held incompetent. (8) And if a person be not 
 made a party to the suit in order that he may prove a trans- 
 action with a decedent which he could not prove if he were a 
 party, and his secret interest only appears in his cross examina- 
 tion, his testimony is seriously discredited, and his conduct is 
 an imposition upon the court. (9) Evidence taken on a pre- 
 liminary matter, especially before issue joined, cannot be read 
 on final hearing, except under an order of the court. (10) 
 
 As a general rule, testimony which is merely incompetent or 
 irrelevant will not be suppressed before hearing, but if it has 
 been elicited by leading interrogatories, it njust be suppressed 
 before, so that the witness may be re-examined. ( 1 1 ) And 
 evidence which is scandalous, or has been taken irregularly, 
 or imperfectly, or in violation of the privileges of either of 
 the parties, may be suppressed. (12) The court will not stop 
 to consider how papers, material to the issue, were obtained 
 by the party offering them, whether lawfully or unlawfully; 
 if they tend to elucidate the point in dispute, the court is bound 
 to receive the light they give. (13) 
 
 (6) Snyder v. Harris, 61 N. J. Eq., 480. 
 
 (7) Marlatt v. Warwick. 18 N. J. Eq., ii§; afhrmed, 19 N. J. Rq., 
 439- 
 
 (8) Beckhaus v. Ladner, 48 N. J. Eq., 152. 
 
 (9) Snyder v. Harris, 61 N. J. Eq., 480. 
 
 (10) Warner v. Warner, 31 N. J. Eq., 225. 
 
 (11) Wood V. Chetwood, 27 N. J. Eq., 311. 
 
 (12) Williams v. Vreeland, 30 N. J. Eq., 576. 
 
 (13) Wood V. Chetwood, 27 N. J. Eq., 311. 
 
The Bill as Evidence. 387 
 
 Pleadings as Evidence — the Bill or Petition. A bill in 
 Chancery is not evidence against the party filing it, unless his 
 privity to it is shown. The bill is admissible to prove the fact 
 that such a suit was instituted and what the subject of it was, 
 but it is not evidence, by way of admission, against the party 
 by whom it was filed, of the truth of the fact or facts alleged 
 or stated in it. This rule was applied to a case where the bill 
 was filed by the counsel of a corporation. (14) And a bill is 
 not evidence in another suit against the party filing it, unless 
 privity is shown, and cannot be so regarded when filed by the 
 counsel of corporation. ( 1 5 ) .But upon the final hearing ma- 
 terial charges of a bill which are not denied by the answer 
 must be taken as true. (16) 
 
 A petition, though sworn to, is no evidence of the facts con- 
 tained in it, and is not, standing by itself, sufficient proof upon 
 which to found a decree. Its truth must be established by affi- 
 davits and other evidence taken according to the rules and 
 practice of the court. (17) Affidavits upon petition duly sworn 
 to, on which orders to show cause may be granted, if served 
 as affidavits may be used on the hearing of the order to show 
 cause. (18) But a petition verified by affidavit and served un- 
 der Chancery Rule 139, is not sufficient proof to establish 
 jurisdictional facts as to which the oath of the affiant is not 
 competent evidence. (19) 
 
 Affidavits upon which are founded applications to extend 
 the time for taking testimony or for filing pleadings or other 
 papers shall, unless otherwise ordered, be served three days, 
 before such application, but counter-affidavits may be read 
 without notice. (20) 
 
 Where an answer duly sworn to is filed to a petition, and it 
 appears by the decree appealed from that the answer was read 
 
 (14) Vanneman v. Swedesboro Loan, etc., Assn., 42 N. J. Eq., 263. 
 (is) Vanneman v. Swedesboro Loan, etc., Assn., 42 N. J. Eq., 263. 
 
 (16) Merwin v. Smith, 2 N. J. Eq., 182; Force v. Dutcher, 17 N. J. 
 Eq., 165 ; Sanborn v. Adair, 29 N. J. Eq., 338. 
 
 (17) Coxe V. Halsted, 2 N. J. Eq., 311; Crane v. Brigham, II N. J. 
 Eq., 29; Carpenter v. Muchmore, IS N. J. Eq., 123; Dinsmore v. West- 
 cott, 25 N. J, Eq., 302; Chancellor v. Traphagen, 41 N. J. Eq., 369; 
 in re Trenton Street Railway Co., 58 N. J. Eq., S33- 
 
 (18) Chancery Rule 139. 
 
 (19) In re Trenton Street Railway Co., s8 N. J. Eq., 533. 
 
 (20) Chancery Rule 140. 
 
388 Evidence. 
 
 at the hearing, no objection appearing to have been made there- 
 to, it will be presumed that the answer was regularly served 
 as an affidavit, or that service was waived. (21) 
 
 Answer as Evidence — Hearing on Bill and Answer. The 
 
 Chancery Act provides, that if the complainant proceed to a 
 hearing on bill and answer only, the answer will be taken as 
 true in all points, and no evidence will be received unless it be 
 matter of record to which the answer relates, and is provable 
 by the same record. (22). So where a final hearing is had 
 upon bill and answer only, by statute, the answer must be tak- 
 en as true, and where there is no contradiction, the allegations 
 of an answer that sets up usury must be taken as true, (23) 
 And so if to a petition for a writ of assistance by a purchaser 
 after a sale under a decree of the Court of Chancery the ten- 
 ant puts in an answer setting up a defense to the petition, and 
 no replication is filed, the facts set up by way of defense to 
 the claim of the petition must be taken as true. (24) So where 
 every allegation of fraud in a bill filed to set aside a Sheriff's 
 sale as fraudulent is met and denied by the answer, and the 
 cause is heard on bill and answer, the bill will be dismissed. (25) 
 This rule, however, applies only to the facts which the an- 
 swer sets up by way of defense ; intentions and motives are not 
 facts touching upon which the answer is conclusive. (26) So 
 on a hearing on bill and answer, a mere averment in the an- 
 swer that the defendants "claim and charge" that the rents, 
 issues and profits received by the complainant as a mortgagee 
 in possession were more than suificient to satisfy the mortgage 
 in suit is not conclusive on the complainant as a statement of a 
 fact, but amounts at most only to an assertion that the answer- 
 ing defendants believe that, if an account were taken, it would 
 appear that complainant has received or is chargeable with 
 
 (21) Philadelphia & Reading R. R. Co. v. Little, 41 N. J. Eq., 
 519- 
 
 (22) Chancery Act, sec. 31, page 34, infra; Gaskill v. Sine, 13 N. J. 
 Eq., 130; Reed v. Reed, 16 N. J. Eq., 248; Belford v. Crane, 16 N. J. 
 Eq., 26s ; Hoff V. Burd, 17 N. J. Eiq., 201 ; Vandeveer v. Holcomb, 
 17 N. J. Eq., 201 ; Booraem v. Wells, 19 N. J. Eq., 87 ; Winslow v. 
 Hudson, 21 N. J. Eq., 172; Bunker v.' Anderson, 32 N. J. Eq., 
 35; McCulIy V. Peel, 42 N. J. Eq., 493. 
 
 (23) Vandeveer v. Holcomb, 17 N. J. Eq., 547. 
 
 (24) Thomas v. DeBaura, 14 N. J. Eq., 37. 
 
 (25) Allen V. Cole, 9 N. J. Eq., 286. 
 
 (26) Belford v. Crane, 16 N. J. Eq., 265. 
 
Pleadings as Evidence. 389 
 
 rents sufficient to satisfy the mortgage. It is mere pleading, 
 and not conclusive against complainants. (27) The rule applies 
 as well to such parts of the answer as are not responsive to 
 the bill as to those that are; any new matter set up as a de- 
 fense must be taken as true. (28) It is a settled rule in equity 
 that the answer of one defendant cannot be evidence against a 
 co-defendant (29), but where the cause is heard upon bill and 
 answer, the rule will not apply, and the answer will be con- 
 sidered as true in all points. (30) 
 
 Hearing on Bill, Answer and Replication. A sworn an- 
 swer directly responsive to the charge on which the equity of 
 the bill depends, of a fact within the personal knowledge of 
 the defendant, must prevail against all uncorroborated testi- 
 mony of the complainant. (31) So where every allegation of 
 fraud charged in a bill to set aside a Sheriff's sale, upon 
 several judgments and executions by one of the judgment 
 creditors, is met and denied by the answer and the complainant 
 has made no effort by proof to sustain the fraud*, the defend- 
 ants are entitled to the full benefit of their answer so far as it 
 is responsive to the bill. (32) And so where a complainant, 
 by his bill, admits that he has no means of establishing his 
 case except by a discovery from the defendant, and the defend- 
 ant answers and denies the facts of which discovery is sought, 
 the bill should be dismissed. (33) And so on a bill to set aside 
 a sale where there were allegations of fraud, all of which 
 were denied, and complainant offered no proof, defendants 
 
 (27) Denman v. Nelson, 31 N. J. Eq., 452. 
 
 (28) Vandeveer v. Holcomib, 17 N. J. Eq., 547 ; Doremus v. Cameron, 
 49 N. J. Eq., I ; but see Society, &c., v. Low., 17 N. J. Eq., ig. 
 
 (29) See page 298, supra. 
 
 (30) Vandeveer v. Holcomb, 17 N. J. Eq., 547 ; but see Hoff v. 
 Burd, ib. 201. 
 
 (31) M. & E. R. R. Co. V. Blair, 9 N. J. Eq., 635; Brown v. Bulkley, 
 14 N. J. Eq., 294: Voorhees v. Voorhees, 18 N. J. Eq., 223; Neldon v. 
 Roof, 55 N. J. Eq., 608; Graham v. Berryman, 19 N. J. Eq., 29; 
 Reversed, ib., 574; Winslow v. Hudson, 21 N. J. Eq., 172; Bent v. Smith, 
 22 N. J. Eq., 560; Wilson v. Cobb, 28 N. J. Eq., 177; Reversed, 29 
 N. J. Eq., .361: Van Dyke v. Van Dyke, 26 N. J. Eq., 180; Morris v. 
 White, 36 N. J. Eq., .324; Frink v. Adams, 36 N. J. Eq., 485; afHrmed, 
 38 N. J. Eq., 287; Wilkinson v. Bauerle, 41 N. J. Eq., 63S ; Beckhaus 
 V. Ladner, 48 N. J. Eq., 152; affirmed, 50 N. J. Eq., 487; Grier v. 
 Flitcraft, 57 N. J. Eq., 556; C.,R. R. v. Hetfield, 18 Eq., 323- 
 
 (32) Allen V. Cole, 9 N. J. Eq., 286. 
 
 (33) Fowler v. Rowe, 11 N. J. Eq., 367. 
 
Ji90 Evidence. 
 
 were allowed the full benefit of their responsive answer. (34) 
 And so in a suit upon a parol agreement void by the statute of 
 frauds, the defendant is bound by the agreement as stated in 
 his answer. (35) 
 
 Answers to interrogatories by a party to a suit, sworn to in 
 response to the prayer of complainant's bill, are evidence on 
 the trial of the cause as made by an amended bill to which 
 the interrogatee is not made a party, within the meaning of a 
 stipulation providing that evidence in the original suit might 
 be used by either party under the amended bill. (36) And so 
 if a cross bill praying answer under oath be filed by defendant, 
 the sworn answer of the complainant to the original suit is 
 evidence so far as responsive to the cross bill. (37) That an 
 answer is insufficient in some parts does not destroy its effect 
 upon the points which it answers directly, and where the com- 
 plainant has accepted it, he is bound by it. (38) And a defend- 
 ant cannot question or deny by his proofs a fact admitted by 
 his answer. (39) 
 
 Answer Must Be Responsive. The answer, in order to 
 be considered as evidence for the defendant, must be respon- 
 sive to the allegations contained in the bill. Allegations of an 
 answer not directly responsive to the charges or interrogatories 
 contained in the^ bill, but which affirmatively assert a right in 
 opposition to the equity of complaint's bill, by way of confes- 
 sion and avoidance or in bar to the relief therein prayed, must 
 be sustained by proof. The answer will be of no avail without 
 it. (40) Thus an allegation by defendant in his answer that 
 
 (34) Allen V. Cole, 9 N. J. Eq., 286. 
 
 (35) Petrick v. Ashcroft, 20 N. J. Eq., 198. 
 
 (36) Reeves v. McCracken, 73 N. J. Eq., 729. 
 
 (37) Graham v. Berryman, 19 N. J. Eq., 29. 
 
 (38) Whitney v. Robbins, 17 N. J. Eq., 360. 
 
 (39) Evans v. Huffman, 5 N. J. Eq., 354; VanHook v. Somerville 
 Mfg. Co., s N. J. Eq., 633; Lippincott v. Ridgway, 11 N. J. Eq., 526. 
 
 (40) Miller v. Wack, i N. J. Eq., 205; Neville v. Demeritt, 2 N. J. 
 Eq., 321 ; Dickey v. Allen, 2 N, J. Eq., 40 ; Trenton Banking Co. v. 
 Woodruff, 2 N. J. Eq., 117; Hutchinson v. Tindall, 3 N. J. Eq., 357; 
 Bray v, Hartough, 4 N. J. Eq., 46; Lovett v. Demarest, s N. J. Eq., 
 113; Vanderhoof v. Clayton, 6 N. J. Eq., 192; Fisler v. Porch, 10 N. J. 
 Eq., 243 ; Stevens v. Post, 12 N. J. Eq., 408 ; Miller v. Gregory, 16 
 N. J. Eq., 274; Voorhees v. Voorhees, 18 N. J. Eq., 223; Roberts v. 
 Birgess, 20 N. J. Eq., 139; VanDyke v. VanDyke, 26 N. J. Eq., 180; 
 Fay V. Fay, 27 N. J. Eq., 213; Brown v. Kahnweiler, 28 N. J. Eq., 311 ; 
 Dickerson v. Wenman, 35 N. J. Eq., 368; Wilkinson v. Bauerle, 41 N. J. 
 
Answer as Evidence. 3!)1 
 
 certain notes given by him for money had and received were 
 given with the understanding that they were never to be paid, 
 is an attempt to vary a written contract by oral testimony. In 
 such case defendant's answer will not be considered as proof 
 of such an agreement, but he will be obliged to prove it by 
 competent testimony. (41) 
 
 An injunction will not be dissolved upon new matter in 
 avoidance alleged in the answer and not responsive to the 
 bill. (42) So where complainant's bill was founded on a bond 
 and mortgage executed by the defendants to the complainant's 
 testator, and alleged the execution and delivery thereof on the 
 day of their date, and prayed answer under oath without any 
 interrogatories, and defendants by their answer admitted the 
 execution, but denied the delivery on the day of execution, 
 and alleged that over three years afterwards complainant pro- 
 cured their delivery by fraud, it was held that this allegation 
 was new, by way of confession and avoidance, not in response 
 to the allegation of the bill, and was not proved by the affi- 
 davits annexed to the answer. (43) So where a bill alleges a 
 prior partnership between the parties, and prays an account, 
 and the answer sets up an agreement on the dissolution of the 
 partnership that the complainant should pay all the debts of 
 the concern, the answer is not responsive, and must be proved. 
 (44) And so where the defendant is called upon to disclose 
 what consideration he paid for the assignment of a mortgage, 
 and answers that he paid no consideration at the time, but 
 merely promised that he would make certain payments and 
 perform certain duties at a future time, his allegation that he 
 has performed his promise cannot avail him, but he must estab- 
 lish the fact by proof. (45) 
 
 Eq., 635; Beckhaus v. Ladner, 48 N. J. Eq., 152; affirmed, 50 N. J. Eq., 
 487; Flemington Natl. Bank v. Jones, 50 N. J. Eq., 244; affirmed ib., 
 486; Moores v. Moores, 16 N. J. Eq., 275. 
 
 (41) Stevens v. Post, 12 N. J. Eq., 408. 
 
 (42) Huflfman v. Hummer, 17 N. J. Eq., 263; West Jersey Rail- 
 road Company v. Thomas, 21 N. J. Eq., 205 ; Vreeland v. N. J. Stone 
 Co., 25 N. J. Eq., 140. 
 
 (43) Beckhaus v. Ladner, 48 N. J. Eq., 152 ; affirmed, 50 N. J. Eq., 
 487; Flemington Natl. Bank v. Jones, 50 N. J. Eq., 244-247. 
 
 (44) Dickey v. Allen, 2 N. J. Eq., 40. 
 
 (45 ) Fisler v. Porch, 10 N. J. Eq., 243. 
 
392 Evidence. 
 
 Matters relied on to impeach the consideration of a mort- 
 gage must be affirmatively proved ; mere averments thereof in 
 the answer, which are supported by no evidence, are insuffi- 
 cient, and even though the indebtedness for which the mort- 
 gage was given is needlessly averred in the bill, this does not 
 make the answer evidence of matter alleged to impeach it. (46) 
 So a mortgage, absolute on its face, assigned by the mortgagee 
 to the holder as collateral security, may be shown on fore- 
 closure to have been originally given as a collateral mortgage ; 
 but this defense, not being responsive to the bill must be estab- 
 lished by other evidence than the answer on oath of the mort- 
 gagor. (47) 
 
 On the other hand, an answer stating the particulars of a 
 transaction charged and inquired into by the bill is responsive. 
 (48) So where a bill stated the agreement and delivery of 
 the bond sued on and the answer set up that the respondent 
 signed upon an agreement that the bond should not be delivered 
 until others had signed, and that they did not sign, it was held 
 that these allegations were responsive. (49) But upon a bill 
 between partners for an account of the partnership transac- 
 tion, an allegation of the answer that a third party is a joint 
 partner with the complainant and defendant and, therefore, a 
 necessary party to the suit, cannot be assumed to be true at 
 the hearing upon exceptions to the answer. (50) 
 
 If a bill of complaint charges the existence of a partnership, 
 without stating its character, an answer by the defendants that 
 the partnership is dormant and unknown to them is responsive 
 to the bill, and need not be sustained by proof. (51) And so 
 if a vendor fraudulently represents the number of acres to be 
 greater than the actual number conveyed, and thereby induces 
 the vendee to giye more for the tract than he otherwise would, 
 the defendant is, under his answer setting forth these facts, 
 entitled to an abatement. (52) 
 
 (46) Brown v. Kahnweiler, 28 N. J. Eq., 311. 
 
 (47) Dickerson v. Wenman, 35 N. J. Eq., 368. 
 
 (48) Merritt v. Brown, 19 N. J. Eq., 286. 
 
 (49) Black V. Lamb, 12 N. J. Eq., 108 ; afHrmcd, 13 N, J. Eq., 455. 
 
 (50) Brewer v, Norcross, 17 N. J. Eq., 219. 
 
 (51) Cammack v. Johnson, 2 N. J. Eq., 163. 
 
 (52) Melick V. Dayton, 34 N. J. Eq., 24S. 
 
Answer as Evidence. 393 
 
 Answers on Information and Belief. A sworn answer, 
 though responsive, has not the effect of evidence where the 
 facts are not within the personal knowledge of the defendant ; 
 there must be a test of defendant's conscience. Such an 
 answer throws the burden of proof on the complainant, but 
 has no further weight. (53) So a denial by the defendant upon 
 information and belief will not avail to dissolve an injunction ; 
 he must answer upon his own knowledge. (54) So an answer 
 by a grantee of the mortgagor that he is now informed, and 
 believes it to be true, that the mortgagees agreed with the 
 mortgagor at the time such grantee's deed was given to release 
 the premises from the lien of their mortgage, without any proof 
 of such agreement, is not available as a defense to the fore- 
 closure of such mortgage, although the cause was heard on 
 bill and answer. (55) But an unqualified admission in an 
 answer on information and belief will dispense with proof of 
 the fact alleged. (56) 
 
 Truth and Veracity of Defendant Cannot be Impeached. 
 So far as the answer operates as evidence, it is to be regarded 
 as the testimony of a witness called by complaintant, and as 
 a party in whose favor a witness is examined is never per- 
 mitted to impeach his testimony by assailing his character for 
 truth and veracity, so it is not competent for complainant to 
 discredit the answer of the defendant by testimony impeaching 
 his general character for truth and veracity. (57) 
 
 Credibility of Answer May be Impeached by Internal 
 Evidence. It is a recognized and familiar principle, and 
 will be found adopted in many cases, that the credibility of the 
 answer may be impeached by internal evidence, and may be 
 
 (53) Kinna v. Smith, 3 N. J. Eq., 14; Stevens v. Post, 12 N. J. Eq., 
 408: Brown v. Bulkley, 14 N. J. Eq., 294-299; Ireland v. Kelly, 60 N. J. 
 Eq., 308; Benson v. Wolverton, 15 N. J. Eq., 158; Lawrence v. Law- 
 rence, 21 N. J. Eq., 317; Bent v. Smith, 22 N. J. Eq., 560; Morris v. 
 White, 36 N. J. Eq., 324 ; Prink v. Adams, 36 N. J. Eq., 485 ; affirmed, 
 38 N. J. Eq., 287; Flemington National Bank v. Jones, 50 N. J. Eq., 
 244; affirmed ib., 486; Corporation for Relief, &c. v. Eden, 62 N. J. 
 Eq., 542. 
 
 (54) Irick V. Black, 17 N. J. Eq., 189; and see "Injunctions," page 
 532, infra. 
 
 (55) Bunker v. Anderson, 32 N. J. Eq., 35. , 
 
 (56) Thompson v. North, 67 N. J. Eq., 278. 
 
 (57) Vandegrift v. Herbert, 18 N. J. Eq., 466; Bent v. Smith, 
 22 N. J. Eq., 560 ; Morris v. White, 36 N. J. Eq., 324 : Frink v. Adams, 
 36 N. J. Eq., 485 ; affirmed, 38 N. J. Eq., 287. 
 
394 Evidence. 
 
 within itself so inconsistent and contradictory as to deprive it 
 of the character of a fair answer and of the effect to which it 
 would otherwise be entitled. It is open to all the tests of truth 
 to which other oral testimony may be subjected, save that the 
 general character of the defendant for truth and veracity can- 
 not be called in question. (58) The rule of evidence which 
 makes responsive answers proof for the defendant applies" only 
 to fair answers, and not to those which upon their face are in- 
 credible. (59) So a denial by the answer of the existence of 
 fraud will not avail to disprove it, where the answer admits facts 
 from which constructive fraud follows as a natural and legal, 
 if not a necessary and unavoidable conclusion. (60) And an 
 answer of' a defendant denying notice will avail nothing against 
 the knowledge of such facts as should have put him on inquiry, 
 (61) An answer, though responsive on the point in contro- 
 versy, sworn to before an officer in another state not authorized 
 by the statutes of this state or the rules of this court to take 
 an oath to an answer, has' no weight as evidence; it must be 
 treated as a pleading only. (62) 
 
 Amount of Evidence Required to Overcome Sworn An- 
 swer. For two centuries at least the rule has been estab- 
 lished that the direct and positive answer of the defendant, 
 responsive to the charges of the bill, must prevail, unless over- 
 come by two witnesses, or by one witness supported by cir- 
 cumstances, or by equivalent evidence. (63) But where a bill 
 was filed to avoid a deed on the ground that it was never deliv- 
 ered to the grantee, but was fraudulently and clandestinely 
 taken from the grantor's possession, and .the defendants (the 
 heirs of the grantee") have no personal knowledge of the deliv- 
 ery of the deed and can only answer as to their information 
 and belief, and the answer contains no positive denial of the 
 
 (58) Commercial Bank v. Reckless, 5 N. J. Eq., 650; Brown v. 
 Bulkley, 14 N. J. Eq., 294; Bent v. Smith, 22 N. J. Eq., 560; Morris 
 V. White, 36 N. J. Eq., 324; Prink v. Adams, 36 N. J. Eq., 485; 
 afHrmed, 38 N. J. Eq., 287. 
 
 (59) Stevens v. Post, 12 N. J. Eq., 408. 
 
 (60) Sayre v. Fredericks, 16 N. J. Eq., 205. 
 
 (61) Smallwood v. Lewin, 15 N. J. Eq., 60. 
 
 (62) Freytag v. Hoeland, 23 N. J. Eq., 36. 
 
 (63) Kinna v. Smith, 3 N. J. Eq., 14; Chance v. Teeple, 4 N. J. 
 Eq., 173; Commercial Bank v. Reckless, S N. J. Eq., 430; Brown 
 V. Bulkley, 14 N. J. Eq., 294; Force v. Dutcher, 18 N. J. Eq., 401; 
 Bird V. Styles, 18 N. J. Eq., 297; Vandegrift v. Herbert, 18 N. J. Eq., 
 
Answer as Evidence. 395 
 
 facts wHich is distinctly alleged and charged in the bill and is, 
 therefore, not evidence in the defendant's favor, upon that 
 point the complainant will not be required to increase the 
 weight of his evidence to overcome the answer. (64) 
 
 The principle upon which the general rule requiring two 
 witnesses or one witness with supporting circumstances to out- 
 weigh an answer is founded, is that the averments of the 
 answer are regarded as the testimony of a witness called by 
 the complainant. The complainant calls upon the defendant 
 to answer an allegation of fact which he makes, and thereby 
 admits the answer to be evidence of that fact. If testimony, 
 it is equal to the testimony of any other witness. (65) 
 
 To overcome a direct answer under oath, there must be 
 more evidence than the oath of one witness ; but the amount is 
 not measured, and must depend upon the facts and circum- 
 stances of each case. It is' sufficient if the evidence is enough 
 to turn the balance against the oath of the defendant, regard- 
 ing it as the oath of any other witness and not merely as that 
 of an interested defendant; and in searching for the truth 
 involved, just so much or so little additional to the counter- 
 balancing oath is required as will produce conviction to the 
 mind. (66) So the uncorroborated testimony of the complain- 
 ant is insufficient to overcome a responsive answer. (67) And 
 thus where the two witnesses offered to contradict the answer 
 are the two complainants in the cause, the fact of the interest 
 of these witnesses as parties to the suit must be taken into 
 consideration. (68) 
 
 In applying the rule it is not necessary that the corroboration 
 should be by additional express proof on the particular fact in 
 
 466; DeHart v. Baird, 19 N. J. Eq., 423; Bent v. Smith, 20 N. J. Eq., 
 199; Zane v. Cawley, 21 N. J. Eq., 130; Calkins v. Landis, 21 N. J. Eq., 
 133; Stearns v. Stearns, 23 N. J. Eq., 167; Wilson v. Cobb, 28 N. J. 
 Eq., 177 ; Reversed, 29 N. J. Eq., 361 ; Morris v. White, 36 N. J. Eq., 
 324; Frink v. Adams, 36 N. J. Eq., 485; aMrmed, 38 N. J. Eq., 287; 
 Evans v. Evans, 59 Atl., 564. 
 
 (64) Benson v. Wolverton, 15 N. J. Eq., 158; Importers and 
 Traders Natl. Bank v. Littell, 41 N. J. Eq., 29. 
 
 (65) Brown v. Bulkley, 14 N. J. Eq., 294. 
 
 (66) Bent v. Smith, 22 N. J. Eq., 560. 
 
 (67) DeHart v. Baird, 19 N. JT. Eq., 423; Calkins v. Landis, 21 
 N. J. Eq., 133; Stearns v. Stearns, 23 N. J. Eq., 167; Abbott v. Case, 
 26 N. J. Eq., 187. 
 
 (68) Vandegrift v. Herbert, 18 N. J. Eq., 466. ' 
 
396 Evidence. 
 
 question. If that were required, it would be equivalent to 
 another witness. The preponderance may be effected by a 
 contradiction of other material parts of the answer, or by facts 
 stated in the answer, or by any other evidence legally bearing 
 upon the subject matter of the cause tending to give proba- 
 bility to the statement of the one witness rather than to that 
 of the defendant, and thereby producing conviction of its 
 truth. (69) So as has been seen, although an answer under 
 oath denying fraud be not overcome by the testimony of two 
 witnesses, or what is equivalent thereto, yet such answer, if it 
 contain admissions of fact from which fraud follows as a 
 natural and legal, if not a necessary and unavoidable conclu- 
 sion, does not dispove such fraud. (70) And so where the 
 defendant does not rely on his answer alone, but offers himself 
 as a witness, he may refute himself by his own evidence and 
 circumstances added may overcome the answer. (71) 
 
 Circumstances' alone may, without the testimony of a single 
 witness, overthrow an answer. The answer itself may be so 
 obviously contradictory, inconsistent and incredible, may con- 
 tain within itself such circumstances, as will alone suffice to 
 deprive it of all efficacy and vitality. The rule, obviously, 
 ex necessitate applies only to a fair and untainted answer — 
 not to an answer in itself inconsistent, contradictory or incred- 
 ible. (72) But the denial jn the answer of a material allega- 
 tion of a bill, which denial is supported by a witness for the 
 defendants, cannot be overcome by a single witness in support 
 of the allegation of the bill, though there be discrepancies in 
 other matters between the answer and the witness for the 
 defendant. (73) 
 
 It is a settled rule in equity that the answer of one defend- 
 ant cannot be evidence against a co-defendant. (74) And the 
 answer of a defendant that he has seen the answer of another 
 
 (69) Bent V. Smith, 22 N. J. Eq., 560. 
 
 (70) Hoboken Bank v. Beckman, 33 N. J. Eq., 53; Rek/ersed, 37 
 N. J. Eq., 331. 
 
 (71) Morris v. White, 36 N. J. Eq., 324. 
 
 (72) Commercial Bank v. Reckless, S N. J. Eq., 650; Frink v. 
 Adams, 36 N. J. Eq., 485; Bailey v. Stiles, 3 N. J. Eq., 245. 
 
 (73) Commercial Bank v. Reckless, 5 N. J. Eq., 430; Reversed ib., 
 650. 
 
 (74) Vandeveer v. Holcomb, 17 N. J. Eq., $47; Hoff v. Hurd, i? 
 N. J. Eq., 201 ; McElroy v. Ludlum, 32 N. J. Eq., 828. 
 
Answer as Evidence. 397 
 
 defendant in the cause, and that the same is true, cannot avail 
 to make such answer evidence for himself, when the answer 
 referred to was not then filed, and there is nothing to identify 
 it with the answer afterwards filed by such co-defendant. (75) 
 But admissions contained in the answer of one defendant will 
 be received in evidence against a co-defendant where the par- 
 ties stand to each other in such relation that the admissions 
 of the one would be competent evidence against the other : 
 but a co-defendant having filed a separate answer is entitled 
 to every defense which his answer will allow to be made under 
 it. (76) An answer purporting to be an answer by two defend- 
 ants, and signed by solicitors and counsel as solicitor and coun- 
 sel of the defendants, but sworn to by one only, is not what it 
 purports to be. It is not the answer of the defendants, but of 
 one of them only, and cannot without the consent of the 
 opposite party be read as the answer even of the defendant 
 who has sworn to it. (77) 
 
 Waiver of. Oath by Complainant. The Nineteenth Sec- 
 tion of the Chancery Act provides that complainant may in 
 his bill waive an answer under oath, in which case the answer 
 need not be sworn to, and the allegations therein shall not be 
 evidence against the complainant. This Section provides that 
 complainant may annex to his bill- interrogatories addressed 
 to the defendant, and that the defendant shall answer them 
 under oath and annex them to his answer, and that such 
 answers shall have the same effect as the responsive allegations 
 in answers required to be sworn to. (78) 
 
 The effect of this Section is to give the complainant the 
 option of obtaining from his adversary a pleading which has 
 no force as evidence except so far as the defendant may see 
 fit to make admissions. The statute, however, expressly pro- 
 vides that the complainant, while calling for an answer with- 
 out oath, may annex such interrogatories to his bill to be 
 answered under oath, with the same effect as evidence "as 
 the responsive allegations in answers required to be sworn to." 
 The statute plainly permits the complainant to procure an 
 answer which is a mere pleading, and also to force the defend- 
 
 (75) Carr v. Weld, 19 N. J. Eq., 319. 
 
 (76) McElroy v. Ludluni, 32 N. J. Eq., 8128. 
 
 (77) Vaughn v. Johnson, 9 N. J. Eq., 173. 
 
 (78) Chancery Act, section 19, page 32, supra.. 
 
398 Evidence. • 
 
 ant to make discovery under oath in regard to any parts of 
 the case concerning which he sees fit to call for such discovery. 
 Notwithstanding this special provision for interrogatories to 
 be answered under oath, the practice is established of permit- 
 ting the c6mplainant to submit interrogatories in his bill to be 
 answered without oath, and this preceedure is considered a 
 mode of obtaining discovery. (79) 
 
 The complainant's object in waiving an answer under oath 
 is merely to deprive the defendant of the advantage of his 
 answer as evidence for himself. (80) So statements in an 
 answer not under oath in the interest of the answering defend- 
 ant cannot be considered as evidence for such defendant. (81) 
 And where the defendants have no joint and common interest, 
 so that the answer of one would not be evidence for or against 
 the other upon the hearing of the cause, there can be no valid 
 objection to a waiver of the sworn answer as to one defendant 
 and not as to the other. In such case the complainant may 
 waive an answer under oath as to some of the defendants, 
 and may call for a sworn answer and discovery from the 
 others. (82) Where a bill prays an answer without oath, the 
 answer, though sworn to, is treated as if it were not, and is 
 not evidence for defendant. (83) 
 
 Where a bill prays an answer without oath, such answer, 
 though not evidence for the defendants, is' evidence against 
 them. (84) And a complainant may avail himself of any alle- 
 gations in an answer not sworn to that tend to establish his 
 case. (85) So a defendant is bound by his admissions in his 
 answer, although put in without oath, and such admissions may 
 
 (79) Manley v. Mickle, SS N. J. Eq., 563 ; Dabb v. N. Y. C. & H. 
 R. R. Co., 62 Atl., 449- 
 
 (80) Reed v. Cumberland Ins. Co., 36 N. J. Eq., 393; Hageman v. 
 Brown, 73 Atl, 862. 
 
 (81) Craft V. Schlag, 49 Atl., 431. 
 
 (82) Morse v. Harvey, i Barb. Ch., 402. 
 
 (83) Hyer v. Little, 20 N. J. Eq., 443 ; Walker v. Hill, 21 N. J. Eq., 
 191; afHrmed, 22 N. J. Eq., 513; Sweet v. Parker, 22 N. J. Blq., 453; 
 Pence v. Force, 46 N. J. Eq., 348; Thiefes v. Mason, 55 N. J. Eq., 456; 
 Craft V. Schlag, 61 N. J. Eq., 567. 
 
 (84) Hyer v. Little, 20 N. J. Eq., 443; Symmes v. Strong, 28 
 N. J. Eq., 131; Manley v. Mickle, 55 N. jf. Eq., 563; Craft v. Schlag, 
 49 Atl., 431- 
 
 (8s) Reed v. Cumberland Ins. Co., 36 N. J. Eq., 393. 
 
Testimony de Bene Esse. 399 
 
 be used by the complainant as evidence. (86) The case of 
 Walker v. Hill (87), apparently holds' that where a bill prays 
 for an answer without oath, the answer, though sworn to, is 
 not evidence on the hearing of the cause. The Chancellor, 
 however, in using the language he did, evidently alluded to 
 the answer as evidence for the defendant, and could not have 
 intended to hold that admissions in such answer would not be 
 evidence for the complainant. 
 
 Where a complainant by his bill prays for an answer with- 
 out oath, and at the same time in the body of the bill addresses 
 to the defendant certain interrogatories which the defendant 
 answers under oath, such answers have not the effect either 
 of a sworn answer to the complainant's bill or of answers to 
 interrogatories annexed to the bill and propounded under the 
 statute. At most, such answers, as to matters of fact so sworn 
 to, constitute an ex parte affidavit, which, if read without 
 objection, may be treated- as evidence in the case. (88) The 
 rule that a preliminary injunction will be dissolved when a 
 responsive answer under oath by a defendant having knowledge 
 of the transactions denies the facts on which the equity of the 
 bill depends, is unaffected by the fact that complainant in his 
 bill waives an answer under oath (89) 
 
 TESTIMONY DE BENE ESSE. 
 
 OF WITNESSES WITHIN THE STATE. 
 
 Depositions De Bene Esse; Notice. If any material wit- 
 ness in an action or suit of a civil nature, or any material wit- 
 ness for any defendant in any indictment pending in any of 
 
 (86) Hyer v. Little, 20 N. J. Eq., 443; Walker v. Hill, 21 N. J. 
 Eq., 191; afHrmed, 22 N. J. Eq., 513; Sweet v. Parker, 22 N. J.,Eq., 453; 
 affirmed, 23 N. J. Eq., 509; Symmes v. Strong, 28 N. J. Eq., 131; 
 Reed v. Cumberland Mutual Fire Ins. Co., 36 N. J. Eq., 393; Chester 
 Iron Co. V. Beach, 40 N. J, Eq., 63; Craft v. Schlag, 61 N. J. Eq., 567; 
 Pence v. Force, 46 N. J. Eq., 348-3SI I Thiefes v. Mason, SS N. J. 
 Eq., 456-462 ; Manley v. Mickle, 55 N. J. Eq., 563 ; Hageman v. Brown, 
 73 Atl., 862. 
 
 (87)' 21 N. J. Eq., 191; a-fHrmed, 22 N. J. Eq., 513. 
 
 (88) Marvel v. Fralinger, 67 N. J. Eq., 622; Reeves v. McCracken, 
 y:i N. J. Eq., 729- 
 
 (8g) Ireland v. Kelly, 60 N. J. Eq., 308; and see "Injunctions," 
 page 526, infra. 
 
iOO Testimony de Bene Esse. 
 
 the courts of this state, be in this state, but is ancient or very 
 infirm, or is sick, or is about to go out of this state, then the 
 deposition of such witness may, at the option of either party 
 in such civil suit, or at the option of the defendant in such 
 indictment, be taken de bene esse before any justice of the 
 supreme court, or judge of the court of common pleas, or 
 supreme court commissioner, or master in chancery ; provided, 
 that the officer before whom the deposition is to be taken shall 
 cause notice to be given to the adverse party immediately, or 
 at such short day as the case in the opinion of the said officer 
 may require, to attend and be present at the taking thereof, 
 and to put questions and cross-examine, if he shall think 
 fit.(i) 
 
 The deposition of a witness, who is in this state but is 
 ancient or infirm, or sick, or is about to go out of the state, 
 may be taken on notice during the trial of the cause, under 
 this section. (2) Where a deposition is taken before a master 
 in chancery in this state, in the presence of the counsel of the 
 parties, the court will infer from his' certificate that the wit- 
 ness was duly sworn — that he was sworn in accordance with 
 the requirements of the statute authorizing the taking of the 
 deposition. (3) 
 
 The chancery rules provide that either party, after a cause 
 is at issue, may, upon filing an affidavit that a material witness 
 is very old, infirm or about to leave the state, and that he is 
 in danger by reason thereof of loosing the benefit of his testi- 
 mony, take the deposition of such witness before ^ny examiner, 
 upon like notice and in like manner as such evidence has here- 
 tofore been taken ; and such deposition shall be filed, with the 
 clerk in chancery by the examiner before whom it was taken, 
 within six days after it is concluded, and may be read as 
 evidence, subject to all exceptions, at the hearing of the cause, 
 unless 'some party to the cause shall produce such witness at 
 the hearing, in which case he shall be examined orally. (4) 
 
 Compelling Attendance of Witnesses; Compensation. 
 Any material witness of the description aforesaid, being in 
 this state, may be compelled to appear and be examined before 
 
 (i) P. L. 1900, p. 371; 2 Comp. Stat, p. 2230, sec. 31. 
 
 (2) Johnson v. Arnwine, 42 N. J. L,, 451. 
 
 (3) New Jersey Express Co. v. Nichols, 33 N. J. L., 434 
 
 (4) Chancery Rule 200. 
 
Resident Witness. 401 
 
 any of the said officers, in the same manner and under the 
 same penalties as if subpoenaed to appear and testify in the 
 court wherein the said action or indictment is pending; and 
 shall be allowed compensation for his time and attendance at 
 the same rate as if he had personally appeared and given 
 testimony in the cause before the court in which it is pend- 
 ing- (S) 
 
 Oath ; Reduction of Testimony to Writing ; Subscription ; 
 Transmission and Filing. Every person deposing as afore- 
 said shall be sworn or affirmed to testify the whole truth, and 
 shall subscribe the testimony by him given, after the same shall 
 be reduced to writing, which shall be done only by the officer 
 taking the deposition, or by the deponent in his presence ; and 
 the deposition so taken shall be retained by such officer until 
 he deliver the same, together with a certificate of the reasons 
 of its being taken, and of the notice, if any was given, to the 
 adverse party, with his own hand to a judge or the clerk of 
 the court for which it is taken, or the said deposition and 
 certificate shall be the said officer sealed up, directed and trans- 
 mitted either by mail or private messenger, to such judge or 
 clerk, who shall open and immediately file the same, in the 
 office of the said clerk, there to remain as of record. (6) 
 
 The consensus of judicial opinion favors that construction 
 of this statute which gives to the language employed its plain 
 and unmistakable meaning. The act says that there shall be a 
 certificate by the officer who took the affidavits of the reasons 
 for their being taken and of the notice given to the adverse 
 party. These reasons for the taking of the testimony and the 
 requirement of the commissioner in respect to the notice, 
 together with a copy of the notice itself, must appear by the 
 certificate of the commissioner. Oral proofs of such facts will 
 be rejected by the trial court. (7) 
 
 Sworn Statement by Person Transmitting Deposition. 
 The person by whom such deposition shall be transmitted to 
 the judge or clerk, as authorized in the preceding section, shall 
 make oath or affirmation that he received the same, sealed 
 up, from the hands of the officer by whom it was taken, 
 designating the time and place when and where received, and 
 
 (5) P. L. 1900, p. 372; 2 Comp. Stat, 2230, sec. 32. 
 
 (6) P. L. 1900, p. 372 ; 2 Comp. Stat., 2230, sec. 33. 
 
 (7) Case V. Garretson, 54 N. J. L., 42. 
 
402 Testimony De Bene Esse. 
 
 that the same has not been opened or altered since he so 
 received it. (8) 
 
 Deposition of Party in His Own Behalf. No party to 
 any civil cause shall be examined in his own behalf de bene 
 esse under the provisions of this act, except upon the written 
 consent of the attorneys of all the parties thereto, unless the 
 court in which the action shall be pending or any judge thereof 
 at chambers, shall upon the petition of the party applying 
 therefor, upon notice to the other side, order in his discretion 
 the examination of such party, nor shall any testimony of 
 such party taken or to be taken de bene esse be used or read 
 at the trial of said cause unless taken upon such order, except 
 as hereinafter provided. (9) 
 
 f 
 
 OF WITNESSES RESIDING OUT OF THE STATE. 
 
 Grounds for Commission. If a material witness in any 
 action or proceeding of a civil nature, or a material witness 
 for any defendant in any indictment pending in any of the 
 courts of this state reside out of this' state, it shall be lawful 
 for the court in which such action or proceeding or indictment 
 is pending, or for any judge thereof, in term or vacation, on 
 affidavit or proof thereof to the satisfaction of the said court 
 or judge, and on such terms as the court or judge may direct, 
 to award and issue, under the seal of the court, a commission 
 to such person or persons, as the court or judge may think 
 fit, authorizing such person or persons, or any two or more of 
 such persons, to examine de bene esse the said witness on oath 
 ■or affirmation. ( 10) 
 
 The non-residence of a material witness is sufficient ground 
 for a commission. (11) The affidavit to show that a witness 
 resides' out of the state, for use upon an application for a 
 commission for the examination of such witness, need not be 
 taken on notice. (12) 
 
 (8) P. L. 1900, p. 372; 2 Comp. Stat., 2231, sec. 34. 
 
 (g) P. L. 1900, p. 372; 2 Comp. Stat., 2231, sec. 35. 
 
 (10) P. L. 1900, p. 373; 2 Comp. Stat, p. 2231, sec. 36. 
 
 (11) Leonard v. Sutphen, 7 N. J. Eq., 545. 
 
 (12) Den V. Wood, 10 N. J. Eq., 62. 
 
Non-Resident Witnesses. 403 
 
 Deposition of Party to Action Who Resides Out of State. 
 
 The deposition of any party to any action in any of the courts 
 of this state, who resides out of the state while such action 
 is pending, may be taken by a commission or upon notice in 
 the same manner and upon the same terms as provided in case 
 of witness residing out of the state; and such deposition may 
 be read and used upon the trial of such cause; it being the 
 intention of this section to give the parties to actions who 
 reside out of the state the same privilege to have their deposi- 
 tions taken out of the state as to other witnesses in such 
 actions residing out of the state. (13) 
 
 Deposition of Party or Witness Absent from State 
 whether Non-Resident or Not. If a material witness in 
 any action or proceeding of a civil nature pending in any of 
 the courts of this state, or a party thereto, be absent from the 
 state, whether the residence of such witness or party be within, 
 or without the state, it shall be lawful for a court in which 
 such action or proceeding is pending, in its discretion, or for 
 any judge of such court in term or vacation, in his discretion, 
 on affidavit or proof thereof, to the satisfaction of said court 
 or judge, and on such terms as the court or judge may direct, 
 to award and issue, under the seal of the court, a commission 
 to such person or persons, as the court or judge may think 
 fit, authorizing such person or persons, or any two or more of 
 such persons, to examine de bene esse the said witness or 
 party on oath or affirmation, in the same manner and with the 
 same force and effect as in the case of a material witness who 
 resides out of the state. (14) 
 
 Courts to Which Act Applies. The provisions of this 
 act in relation to the examination of witnesses by depositions 
 shall apply to any proceeding in the court of chancery, supreme 
 court, circuit court, court of common pleas, or orphans' court, 
 wherein the testimony of witnesses may be required as the 
 basis of judicial action by virtue of any statute or other law 
 of this state. (15) 
 
 Construction of Act. The power of granting commissions 
 to take the testimony of absent witnesses' is a power unknown 
 to the common law and created by statute. The rule is there- 
 
 ( 13) ?. L. 1900, p. 376 ; 2 Comp. Stat., p. 2235 ; sec. 46. 
 
 (14) P. L. 1902, p. 459; 2 Comp Stat., p. 2236, sec. s6-b. 
 (is) p. L., 1900, p. 376. Comp. Stat., p. 2235, sec. 47. 
 
404 Testimony De Bene Esse. 
 
 fore, that it must be strictly pursued. It is necessary to show- 
 that all the requirements of the statute have been complied 
 with or the testimony is not admissible. (i6) While special 
 statutory provisions in derogation of the common law must be 
 strictly pursued, still what is a strict observance of them is a 
 question of construction, and in giving that construction (espe- 
 cially in the case of" remedial statutes, of which this is one) 
 the court must not adhere so rigidly to the letter as to defeat 
 the beneficial intent of the statute. So far as the legislature 
 has thrown guards and restrictions around the proceedings, 
 they must be observed; the court should not break down the 
 one, nor overleap the other. Nothing is to be left to inference, 
 but if everything has been done and done in the manner sub- 
 stantially required by the statute, it is sufficient. (17) The 
 statute as to the acts to be done by the judge or clerk is to be 
 considered directory and any omission on their part to comply 
 "with these directions^ if the integrity of the commission is pre- 
 served, will not deprive the party of the benefit of it. (18) 
 
 This act, in terms, extends to the court of chancery and its 
 requirements as to the mode of executing the commission are 
 equally as imperative and binding upon that court as upon the 
 courts of common law. (19) So the court of chancery may, 
 in proceedings for contempt, order the evidence of witnesses 
 resident in foreign jurisdictions to be taken by commission or 
 otherwise, and use the evidence so taken on the hearing. (20) 
 
 Application for Commission; Notice; Service; Service of 
 Copy of Interrogatories. A party intending to apply for a 
 commission to examine a witness or witnesses in any cause 
 shall give eight days' notice of such application, and of the 
 name or names of the witness or witnesses to be examined, 
 and of the place of his or their residence, and also of the name 
 or names of the person or persons whom the party applying 
 intends to nominate as commissioner or commissioners, and 
 shall serve therewith a copy of the interrogatories intended to 
 
 (16) Hendricks v. Craig, S N. J. L., 668; Lawrence v. Finch, 
 17 N. J. Eq., 234; Moran v. Green, 21 N. J. L., 562; Graham v. 
 Whitely, 26 N. J. Eq., 254; Case v. Garretson, 54 N. J. L., 42. 
 
 (17) Ludlam v. Broderick, 15 N. J. L., 269. 
 
 (18) Moran v. Green, 21 N. J. L,, 562. 
 
 (19) Lawrence v. Finch, 17 N. J. Eq., 234. 
 
 (20) Una V. Dodd, 38 N. J. Eq., 460. 
 
Non-Resident Witnesses. 405 
 
 be annexed to the said commission, in order that the adverse 
 party may examine the same and submit cross interrogatories' 
 if he think proper; the notice mentioned in this section shall 
 be served on the attorney or solicitor, when the party appears 
 by attorney or solicitor. (21) 
 
 The chancery rules provide that when a cause is at issue, 
 a commission for the examination of a witness out of this 
 state may be applied for, either in vacation or in term-time, 
 upon affidavit stating that the witness is material and that the 
 party applying cannot safely proceed to a hearing of the cause 
 without his testimony ; and upon giving five days' notice of the 
 intended application, with the name or names of the witnesses, 
 their residence, and the name or names, additions and resi- 
 dences of such person or persons as the party applying intends 
 to nominate as commissioner or commissioners. (22) 
 
 Notice of the application for a commission to take testimony 
 of witnesses is always necessary. (23) And a commission to 
 take depositions issued without notice of the motion as pro- 
 vided by the statute is properly rejected when offered in evi- 
 dence. (24) 
 
 Issuing Commission on Consent to or Order for Shorter 
 Notice. The issuing of the commission may be ordered 
 and the interrogatories may be approved upon shorter notice 
 than is directed by the foregoing section, by consent of parties, 
 or upon matter being made to appear to the said court or 
 judge to excuse the want of full notice, and that shorter notice 
 is necessary to prevent delay. (25) 
 
 Commission ; Names of Witnesses ; Interrogatories. The 
 name of every witness to be examined by virtue of such com- 
 mission shall be inserted in the said commission ; and the inter- 
 rogatories for the examination of such witness shall be drawn 
 and signed by the parties' or their attorneys or counsel in the 
 cause in which the testimony is to be used, or such of them 
 
 (21) P. L. 1900, p. 373; 2 Comp. Stat, p. 2232, sec. 38. 
 
 (22) Chancery Rule g6. 
 
 (23) 'Wilson V. Cornell, 4 N. J. L., 117; Den v. Farley, 4 N. J. L., 
 124; Ogden V. Robertson, 15 N. J. L., 124; Ludlam v. Boderick, 15 
 N. J. L., 269. 
 
 (24) Den V. Farley, 4 N. J. L,, 124; Hendricks v. Craig, 5 N. J. L., 
 S68. 
 
 (25) P. L. 1900, p. 373; 2 Comp. Stat., p. 2232, sec. 39. 
 
40(i Testimony De Bene Esse. 
 
 as shall request the said commission, and be approved of by 
 the court or one of the judges thereof, and shall be annexed 
 to the commission ; and each party shall be at liberty, with the 
 approbation of the said court or judge, to insert in the said 
 interrogatories such questions as he may think proper or neces- 
 sary. (26) 
 
 The chancery rules provide that if the party to whom notice 
 is so given intend to join in the commission, and to name any 
 other commissioner or commissioners', he shall give notice to 
 the adverse party two days before the intended application, of 
 the name or names, additions and residences of the person or 
 persons whom he proposes for a commissioner or commis- 
 sioners, and the chancellor shall appoint the commissioner or 
 commissioners to execute the commission, and the party, who 
 shall first give notice of his intention to move for the commis- 
 sion, shall sue out and forward the same ; but if he shall unrea- 
 sonably delay so to do, the other party may forward, and cause 
 it to be executed and returned ; and every order for a commis- 
 sion shall fix a tirne for its return, and it shall not be used if 
 not returned within said time, unless the time be extended by 
 an order for that purpose. (27) 
 
 The name of every witness to be examined by virtue of such 
 commission shall be inserted therein, and the interrogatories 
 to be administered to the witnesses annexed to the commission, 
 and copies of the interrogatories shall be furnished to the 
 opposite party — ^that is to say, copies of all direct interroga- 
 tories shall be furnished six days and copies of the cross-inter- 
 rogatories two days before the; time of submitting the same to 
 the chancellor for his approval; and notice of the time and 
 place of such submission shall be served with the interroga- 
 tories, at which time and place the cross-interrogatories shall 
 also be submitted. (28) 
 
 The requirement of the statute that interrogatories for the 
 examination of witnesses shall be signed by the parties, or 
 their counsel in the cause, or such of them as shall request the 
 
 (26) P. L. 1900, p. 373; 2 Comp. Stat, p. 2232, sec. 37; see also 
 Chancery rule, 96, page 405, supra. 
 
 (27) Chancery Rule 97. 
 
 (28) Chancery Rule 98. 
 
Non-Resident Witnesses. 407 
 
 said commission, is strictly enforced and answers to interroga- 
 tories not so signed will not be received in evidence. (29) 
 
 Objections to Interrogatories. Upon the application to 
 the court for the approval of the interrogatories annexed to 
 the commission, the couri settles the legality and admissibility 
 of the interrogatories. (30) When a witness is to be examined 
 by commission, the proper time to object to a question as too 
 leading is on the settlement of the interrogatories and not at 
 the trial. (31) But it is entirely in the discretion of the court 
 whether to permit leading interrogatories in direct examina- 
 tion. (32) 
 
 Stay of Proceedings. The taking out of a commission for 
 the examination of witnesses is not a stay of proceedings in 
 the action. (33) So a commission to take deposition is not a 
 suspension of the cause so as to prevent a notice of trial thereof 
 before the return of the commission or without leave of the 
 court. (34) And if a commission be sued out by a defendant, 
 the plaintiff may notice his cause for trial whenever he thinks 
 there has been sufficient time for the return of the commission. 
 If the judge thinks there has been ample time for the return, 
 he will order on the trial, unless good cause is shown for the 
 delay, but if there be not sufficient time, the cause will be 
 ordered off without costs. (35) 
 
 Oath of Commissioner. The commissioner or commis- 
 sioners appointed under this act, or under the general power 
 or authority of the court of chancery, or such of them as shall 
 act, shall, before they enter upon their duties, take an oath 
 or affirmation faithfully, fairly and impartially to execute the 
 said commission, which oath or affirmation may be taken 
 before any person lawfully authorized to administer an oath 
 or affirmation in the state, territory or kingdom, where the said 
 commissioner or commissioners reside or may be at the 
 time. (36) 
 
 (29) Graham v. Whitely, 26 N. J. L., 254. 
 
 (30) Wilson V. Cornell, 4 N. J. L., 117. 
 
 (31) Chambers v. Hvtnt, 22 N. J. L., 552. 
 
 (32) Chambers v. Hunt, 22 N. J. L., 52. 
 
 (33) P. L. 1900, p. 378; 2 Comp. Stat., 2236, sec. 55. 
 
 (34) Stokes V. Garr, 17 N. J. L., 451. 
 
 (35) Stokes V. Garr, 17 N. J. L.* 451. 
 
 (36) P. L. 1900, p. 374; 2 Comp Stat, p. 2232, sec. 40. 
 
408 Testimony De Bene Esse. 
 
 Commissioners to take depositions in a foreign state must be 
 sworn or aifirmed faithfully, fairly and impartially to execute 
 the commission. Their oath faithfully to execute, &c., omitting 
 the other terms, is insufficient. (37) An oath by a commissioner 
 to take depositions in a foreign state "truly, faithfully and 
 without partially to take the examinations and depositions, 
 &c.," is a material departure from the oath required by the 
 statute and the testimony taken before such commissioner is 
 inadmissible. (38) So where the oath of the commissioner 
 omitted the word "faithfully," it was held" that the testimony 
 was inadmissible. (39) 
 
 In executing a commission to take the depositions of wit- 
 nesses residing out of this state, the certificate of the officer 
 before whom the oath of the commissioner was taken that he 
 was lawfully authorized to administer an oath in the state 
 where the commissioner resides, or may be at the time, is 
 sufficient evidence that the officer has such authority. (40) It 
 is not necessary that the return should show that the officer 
 before whom the commissioner was sworn was duly authorized 
 to administer an oath in the state where the commission was 
 executed. All that the court requires is competent evidence of 
 the authority of the officer to administer the oath. (41) 
 
 If the commissioner certifies in his return that previous to 
 entering upon the duties of his office he had taken the oath 
 prescribed by our law before a person authorized to administer 
 an oath in the place of his residence, it is sufficient. (42) But 
 it should appear on the face of the return that the officer before 
 whom the commissioners were sworn was lawfully authorized 
 to administer an oath. His styling himself a Justice of the 
 Peace of the County, &c., is not sufficient evidence of his 
 authority. (43) But if the jurat to the official oath of the com- 
 
 (37) Perry v. Thompson, 16 N. J. Eq., 72. 
 
 (38) Lawrence v. Finch, 17 N. J, Eq., 234. 
 
 (39) Brennan Mfg. Co. v. Adams, 76 N. J. L., 61. 
 
 (40) Ludiani v. Broderick, 15 N. J. L., 269 ; Den v. Thompson, 16 
 
 N. J. L., 72; Lawrence v. Finch, 17 N. J. Eq., 234; McNeal v. Braun, 
 S3 N. J. L., 617. 
 
 (41) Lawrence v. Finch, 17 N. J. Eq., 234; Crowther v. Lloyd, 31 
 N. J. L., 395. 
 
 (42) Ludlam v. Broderick, 15 N. J. L., 269. 
 (43) Perry v. Thompson, 16 N. J. Eq., 72. 
 
Non-Resident Witnesses. 409 
 
 missioners, in a commission to take the depositions of foreign 
 witnesses, be signed "A. B., Justice of the Supreme Court of 
 Nova Scotia," the court will intend that he had power to 
 administer an oath, though it be nowhere averred in the pro- 
 ceeding. (44) 
 
 Examination of Witness; Oath; Subscription of Testi- 
 mony. The said commissioner or commissioners shall and 
 may examine every witnesss named in the said commission, or 
 such as can be met with, upon the interrogatories annexed to 
 the said commission, on oath or affirmation, to be administered 
 to each and every witness by the said commissioner or com- 
 missioners, and cause the examination of each witness to be 
 reduced to writing and signed by such witness ; and the said 
 commissioner or commissioners shall also sign the same. (45) 
 
 Documentary Evidence. Documentary evidence exhibit- 
 ed before any officer, commissioner or commissioners taking 
 any deposition, or exhibits proved by any witness, may be 
 annexed, to and returned with the depositions of the witnesses 
 so taken ; or the said officer, commissioner or commissioners 
 shall, if requested by the party exhibiting such documentary 
 evidence or producing such exhibit, mark it as an exhibit in the 
 suit, and return it to the party offering the same, and the same 
 shall be received in evidence in all respects as if annexed to and 
 returned with the said depositions. (46) 
 
 A commissioner to whom a commission t,o take testimony 
 has been directed has no power to adjourn the examination, 
 but only to continue it, whence once commenced, from day to 
 day, while actually proceeding with the examination of wit- 
 nesses. (47) A witness examined under a commission must be 
 sworn by the commissioners, their commission being a dedimus 
 potestatem and a personal trust. A Justice of the Peace has 
 no authority to administer the oath to the witnesses. (48) But 
 the certificate of a commission is taken prima facie at least as 
 true. (49) 
 
 (44) Salter v. Applegate, 23 N. J. L., 115. 
 
 (45) P. L., 1900; p. 374; 2 Comp. Stat., p. 2233, Sec. 41. 
 
 (46) P. L., 1900, p. 377; 2 Coinp. Stat., p. 2235, sec. 49. 
 
 (47) Parker v. Hayes, 23 N. J. Eq., 186; S. C, 39 N, J. Eq.. 469. 
 
 (48) Perry v. Thompson, 16 N. J. L., 72. 
 
 (49) Ludlam v. Broderick, 15 N. J. L., 269. 
 
410 Testimony De Bene Esse. 
 
 Typewritten Copy. Wherever it is provided in this act 
 that a transcript of testimony taken de bene es^e or by consent 
 shall be made, such transcript may be made upon a type- 
 writer. (50) 
 
 Annexation of Examination to Commission, Transmis- 
 sion by Mail. The said commissioner or commissioners 
 shall annex such examination to the said commission, and 
 close the same up under the hand and seal of the said com- 
 missioner, or under the hands and seals of the said com- 
 missioners, or any two of them, and direct the same to the 
 chancellor or judges of the court out of which the same 
 issued, at the place of holding the said court ; and may place 
 the same in any postoffice, certifying thereon the time when, 
 and the postoffice in which the same may be so placed. (51) 
 
 Though the statute provides that the commissioner shall 
 sign the deposition, close it up under his hand and seal, and 
 direct it, &c., it is not necessary that his certificate shall state 
 that he has done these things. (52) But a deposition handed 
 by the magistrate to A and by A to B by whom it is kept for 
 some time and then returned to the magistrate and by him 
 transmitted to the court, with his affidavit that it did not appear 
 to have been tampered with, cannot be read. (53) 
 
 Opening and Filing Return. The chancellor or any one 
 of the judges of the court out of which the said commission 
 issued, or the clerk of the said court, may take the same out 
 of the postoffice in which it may be found in this state, and 
 open the same, and endorse thereon when and how he received 
 it; and the said chancellor, judge or clerk shall immediately 
 file the said cornmission and return in the office of the clerk 
 of the court out of which the said commission issued, there to 
 remain as a record. (54) 
 
 Where a commission was received from the postoffice by 
 a judge of the court, the fact that he failed to deposit it with 
 the clerk, or the clerk failed to file it, will not prejudice the 
 right of the party to use it. (5 5) 
 
 (50) P. L., 1900, p. 378; 2 Comp. Stat., 2236, sec. 56. 
 
 (51) P. L., 1900, p. 374; 2 Comp. Stat., 2233, sec. 42. 
 
 (52) Moran v. Green, 21 N. J. L., 562. 
 
 (53) Sayre v. Sayre, 14 N. J. L., 487. 
 
 (54) P. L., 1900, p. 374; 2 Comp. Stat., p. 2233, sec. 42. 
 
 (55) Moran v. Green, 21 N. J. L., 562. 
 
Non-Resident Witnesses. 411 
 
 Transmission in Person; Oath; Filing. If it shall be 
 more convenient for the party in the said commission, his attor- 
 ney or agent to receive the said commission and return closed 
 up and directed as aforesaid, from the hands of the said com- 
 missioner or commissioners, it shall be lawful for him so to 
 do, and he shall thereupon deliver the same to the chancellor, 
 or one of the judges or the clerk of the court, out of which 
 the same issued, making oath of affirmation that he received 
 the same sealed up from the hands' of the said commissioner or 
 commissioners, designating the time and place when and where 
 received, and that the same has not been opened or altered since 
 he received it; and the said chancellor, judge or clerk shall 
 thereupon endorse and file the said commission and return and 
 the said affidavit, as directed in the preceding section of this 
 act. (56) 
 
 The requirements of this section are substantially complied 
 with when, upon the commission being produced by the clerk 
 and appeai-ing to have been duly filed, it appears that the 
 justice has certified thereon from whom and by whom and 
 when he received it, with an affidavit of even date, before the 
 same justice in the terms of the statute, although the justice 
 does not certify that he had opened it and delivered it to the 
 clerk of the court. (57) 
 
 Commission to be Executed Outside United States. 
 Where a commission issued by virtue of this act shall be exe- 
 cuted in any foreign state^ nation or kingdom, such commis- 
 sion and the return thereto, closed up and directed as afore- 
 said, may be transmitted to the party on whose application such 
 commission issued, his agent or attorney in the United States ; 
 and the person to whom the packet containing the said com- 
 mission and return shall be transmitted as aforesaid, may 
 deliver the same to the chancellor, or one of the judges, or the 
 clerk of the court out of which the commission issued, making 
 oath or affirmation when and how he received it, and that the 
 same has not been opened or altered since he received it, and 
 that he verily believes that it has not been opened or altered 
 since it was closed up and sealed as aforesaid; and the said 
 chancellor, judge or clerk, being satisfied that it has not been 
 
 (56) P. L., 1900, p. 374; 2 Comp. Stat., p. 2233, sec. 43. 
 
 (57) Hildreth v. Overseers of the Poor, 13 N. J. L., s; Moran v. 
 Green, 21 N. J. L., 562. 
 
412 Testimony De Bene Esse. 
 
 opened or altered since it was closed up and sealed as aforesaid, 
 shall open the same, and endorse thereon when and how he 
 received it, and shall immediately file the said commission and 
 return and the said affidavit in the office of the clerk of the 
 court out of which the said commission issued, there to remain 
 as a record. (58) 
 
 TESTIMONY OTHERWISE THAN BY COMMISSION 
 
 Notice; Oaths; Reduction to Writing; Subscription; 
 Transmission and Filing. Any party in a civil cause or 
 any defendant in any indictment desiring the testimony of any 
 witness who resides out of this state may, instead of taking 
 his testimony by commission, take the testimony of such wit- 
 ness de bene esse before any judge of any supreme, circuit or 
 district court, or court of common pleas, of the state where 
 such witness is, or before any commissioner of deeds appointed 
 by the governor of this state, resident in the state where such 
 witness is, or before a commissioner specially appointed for 
 that purpose by the court in which such action is pending, or 
 any judge thereof, or before a master in chancery of this state ; 
 provided, that notice in writing of the time and place of such 
 examination and of the names of the witnesses to be examined 
 shall be given to the adverse party, his attorney or solicitor, 
 that he may be present and put interrogatories if he shall see 
 fit, which notice shall be served, allowing time for attendance 
 after service not less than at the rate of one day (Sundays 
 excluded) for every fifty miles of travel; provided also, that 
 in all cases at least ten days' notice, exclusive of Sundays, 
 shall be given ; and provided further, that in cases where such 
 testimony is' desired to be taken of witnesses residing in any 
 foreign state or kingdom, or in any state or territory of the 
 United States, situate west of the Mississippi river, so many 
 days' notice shall be given as shall be directed by the court in 
 which said cause shall be pending, or any judge thereof, at 
 chambers ; the officer taking such testimony shall first take an 
 oath or affirmation fairly and impartially to take the same, 
 before some person authorized to administer an oath in the 
 state, territory or kingdom where he shall reside; the testi- 
 mony of such witness shall be taken on oath or affirmation, 
 
 (58) P. L., 1900, p. 375 ; 2 Comp. Stat., 2234, sec. 44. 
 
Testimony on Notice. 413 
 
 administered according to the law of this state, upon inter- 
 ■ rogatories to be then and there put by the parties, or any of 
 them, or any person authorized in their behalf, and such inter- 
 rogatories and the answers thereto shall be reduced to writing 
 by the officer taking such testimony, and shall be subscribed in 
 his presence by the deponent ; and thereupon the same shall 
 be certified, sealed up, endorsed, directed and forwarded, as is 
 required in case of depositions taken under the thirty-sixth 
 section of this act, or if the testimony of such witness be taken 
 before a master in chancery, such testimony may be certified 
 and delivered by the master taking the same to the clerk of 
 the court in which such action is pending, or to any judge 
 thereof. (59) 
 
 A deposition taken under this section and returned and filed 
 with the court in which the action is pending, or with the clerk 
 thereof, is, so long as it remains a file of such court, to be 
 treated as testimony delivered in the cause, which either party 
 may read at the hearing and is not to be regarded as merely 
 information obtainable by a party in aid of his line of action 
 or defense. (60) 
 
 Notice of Taking Deposition. The want of notice of the 
 time and place of taking a deposition excludes the deposition, 
 unless waived by the adverse party. (61) And where notice 
 was given of the time and place of taking a deposition, the 
 want thereof was not supplied by the commissioners adjoining 
 the examination for a time sufficient for notice. (62) But a 
 complainant cannot acquiesce in the taking of testimony and 
 afterwards object to it for want of notice. (63) 
 
 If depositions be taken under the provisions of this section 
 of the Evidence Act, and notice is given for two consecutive 
 days, the taking of the te'Stimony must be begun on the first 
 day. (64) If the second day be the only day for which notice 
 could be legally given quaere, may the testimony taken on the 
 second day stand. (65) 
 
 (59) P. L., 1900, p. 375 ; 2 Comp. Stat, p. 2234, sec. 45. 
 
 (60) Wallace, &c. Co. v. Leber, 69 N. J. L., 312; Bowler v. Osborne, 
 75 N. J. L., 903. 
 
 (61) Wilson V. Cornell, 4 N. J. L., 117. 
 
 (62) Parker v. Hayes, 23 N. J. Eq., 186. 
 
 (63) Lock V. P. R. R. Co., I N. J. L., J. 227. 
 
 (64) Stoll V. Wellborn, 25 N. J. L., J. 198. 
 
 (65) Stoll V. Wellborn, 25 N. J. L., J. 198. 
 
4:14 Testimony De Bene Esse. 
 
 The legislative scheme with respect to the propriety of admit- 
 ting evidence taken under depositions seems to have permitted 
 it to be taken upon the notice required under this section and 
 to be admitted on the trial, only upon proof to the satisfaction 
 of the court that the witness resided or is out of the state and 
 that notice of the taking thereof was given as prescribed by 
 this section. While the legislature might perhaps properly 
 have required the notice to include a statement of the residence 
 and materiality, it is not for the court to add what it deemed 
 proper to require. (66) So a deposition taken under this sec- 
 tion of the Evidence Act is admissible to be read in evidence, 
 although the notice of taking the same did not assert that the 
 person proposed to be examined was a material witness and a 
 non-resident. (67) 
 
 Depositions taken on a legal holiday, upon notice to, but 
 against the objection of the opposing counsel, cannot be 
 used. (68) 
 
 Testimony Taken Stenographically. In all cases where 
 the testimony of a witness de bene esse is taken upon notice, 
 pursuant to the forty-fifth section of the Evidence Act, (69) 
 it shall be lawful for the same to be taken stenographically by 
 or in the presence of the judge, commissioner or other officer 
 named in the notice; provided, that before the taking of the 
 same the stenographer (other than such judge, commissioner 
 or other officer named in such notice) shall be sworn by the 
 said judge, commissioner or other officer designated in such 
 notice to carefully, faithfully and impartially take said evidence 
 and to take a true and correct transcript thereof, which oath 
 shall be in writing, and shall be attached to and be a part of the 
 return of the judge, commissioner or other officer named in 
 such notice. (70) 
 
 Copies. The parties to the action shall at their respec- 
 tive costs and charges be entitled to copies of such deposition 
 as soon as it is filed in the clerk's office. (71) Although the 
 
 (66) Ferguson v. Central R. R. Co., 74 N. J. L., 691. 
 
 (67) Ferguson v. Central R. R. Co., 74 N. J. L., 691. 
 
 (68) Wilson v. Bayley, 42 N. J. L., 132. 
 (6g) See page 413, supra. 
 
 (70) P. L., 1900, p. 377, as amended P. L., 1903, p. 219; 2 Comp. 
 Stat., p. 223s, sec. 48. 
 
 (71) P. L., igoo, p. 378; 2 Comp. Stat., p. 2236, sec. 54. 
 
Testimony on Notice. 415 
 
 statute prescribes that the deposition must be filed in the clerk's 
 office, there to remain "on record," it may be removed there- 
 from to be used in the case. It is not necessary to procure 
 copies to. use as evidence. (72) 
 
 Competency as Evidence; Preliminary Proof. The ex- 
 amination of any witness by commission or deposition taken, 
 returned and filed, as provided for in this act, or a duly certi- 
 fied copy thereof, shall be as competent evidence in the cause 
 in which it shall be taken as if such witness has been examined 
 in open court, on the hearing or trial thereof, proof being first 
 made to the satisfaction of the court that such witness resides, 
 or is out of this state, or is dead, or by reason of age, sickness, 
 or bodily infirmity is unable to attend the said court, and if the 
 testimony be taken under the forty-fifth section of this act, 
 proof being made that notice of the taking thereof was given 
 as therein prescribed. (73) 
 
 A deposition taken on a preliminary matter, on notice after 
 the bill filed and prior to the answer, may be read on the 
 trial or hearing, so far as relevant to matters in issue involved 
 in the preliminary matter. (74) But extracts from depositions 
 are inadmissible in evidence, unless the whole deposition is 
 before the court. (75) 
 
 In oflfering depositions of witnesses taken under a foreign 
 commission, it is not necessary to prove that the commission 
 was regularly issued. (76) 
 
 Exclusion; Irregularities in Taking. Any deposition or 
 examination taken under this act shall be subject to be excluded 
 or overruled, wholly or in part, according to the opinion of the 
 court, upon any objection taken to the competency of the wit- 
 ness, the materiality or competency of the evidence given, or 
 the regularity of the questions put; but shall not be excluded 
 for any regularity or informality in taking or returning the 
 same, if the court in which the same is offered shall be satis- 
 fied that the testimony of the witness has been fairly and truly 
 taken and returned ; and if such deposition or examination 
 
 (72) Moran v. Green, 21 N. J. L., 562. 
 
 (73) P. L., 1900, p. 377; 2 Comp. Stat., p. 2235, sec. 51; Wallace 
 &c. Co. v. Leber, 69 N. J. L., 312 ; Bowler v. Osborne, 75 N. J. L., 903. 
 
 (74) Holcombe v. Holcombe, 10 N. J. Eq., 284. 
 
 (75) Lanahan v. Lawton, 50 N. J. Eq., 276; aMrmed ib., 796. 
 
 (76) Moran v. Green, 21 N. J. L., 562. 
 
416 Testimony De Bene Esse. 
 
 shall be admitted in evidence by the court, no exception shall 
 be taken to the admission thereof, on the ground of any irregu- 
 larity or informality in taking or returning the same. (77) 
 
 Construction of Section. This section does not authorize 
 the court to receive in evidence a deposition taken on short 
 notice, under section 31 of the Act, (78) and in the absence 
 of the adverse party, where the commissioner's certificate to 
 the deposition fails, to state the reasons for its taking and 
 for the giving of only short notice. (79) And this section 
 applies as well to testimony taken by consent under section 57, 
 (80) as to depositions taken under order of the court. (81) 
 Depositions taken when no suit is pending are inadmissible, 
 without consent of the parties expressly given. (82) 
 
 Competency of Testimony. In offering the deposition 
 of a witness taken under a foreign commission, it is not neces- 
 sary for the party to pfove that the commission was lawfully 
 issued by showing that proper notices had been given, the 
 necessary rules entered and all the requisite incipient steps 
 taken to procure a commission to be duly issiied.(83) So it 
 is not sufficient reason for excluding a deposition taken under 
 a foreign commission that it has not been filed, or marked as 
 filed, in the clerk's office. (84) So where a paper purporting 
 to be the certified copy of an order and of the signature of the 
 chancellor thereto for the examination of a defendant in the 
 suit was sent by the clerk to the solicitor of the defendant, 
 but by some oversight the original copy of the order had not 
 been presented to the chancellor for his signature, it was held 
 that the^court might receive the testimony; that orders of this 
 character are very much of course and that a party examined 
 as a witness between other parties is examined subject to all 
 exceptions and may be objected to at the hearing if inter- 
 ested, though the objection had not previously been made. (85) 
 
 (,^^') P. L., 1900, p. 377; 2 Conip. Stat., p. 2236, sec. 52. 
 
 (78) See page 399, supra. 
 
 (79) Chase v. Garretson, 22 Atl., 785 ; affirmed, 54 N. J. L., 42. 
 
 (80) See page 419, injra. 
 
 (81) Hite V. Dell, 78 N. J. L., 239. 
 
 (82) Lummis v. Strattoii, 2 N. J. L., 245-246; Layton v. Cooper, 
 2 N. J. L., 6s. 
 
 (83) Moran v. Green, 21 N. J. L., 562. 
 
 (84) Moran v. Green, 21 N. J. L., 562. 
 
 (85) Cummins v. Wire, 6 N. J. Eq., TZ- 
 
Testimony on Notice. 417 
 
 Depositions will be received in evidence, though the inter- 
 rogatories annexed to the commission are signed by the attor- 
 ney and not by the party, or his counsel in the cause and 
 though the commissioner took his oath of office before a person 
 who called himself "one of the Peace of the county" and 
 though there is a misnomer in the direction of the commis- 
 sioner, if his return reaches its proper destination. (86) So 
 where a witness was examined in Ohio on interrogatories, and as 
 interrogatory propounded to him was, whether he had received 
 from the defendant any letter with relation to the termination 
 of a lease in controversy, dated May 28th, 1904, or thereabouts. 
 As propounded to the witness by the commissioner the inter- 
 rogatory asked him: whether he had received from the defend- 
 ant any letter with relation to such lease dated May 24th, 
 1904, or thereabouts. The witness answered no, and it was' 
 held that the words "or. thereabouts" and the reference in the 
 interrogatory to the subject maitter of the letter sufficiently 
 identified it so as to make the answer admissible, although the 
 weight of the denial may have been less than if the interroga- 
 tory had correctly specified the date of the alleged letter. (87) 
 But the fact that a witness, who was the plaintiff, during his 
 cross examination conferred with his counsel privately, not- 
 withstanding the objections of the opposite counsel, will not 
 make his deposition incompetent evidence. It is a matter that 
 goes only to his credibility. (88). It is no objection to the evi- 
 dence of a non-resident witness, taken by virtue of a commis- 
 sion, that the witness has died since the evidence was 
 taken. (89) 
 
 Suppression of Testimony. Irregularities in issuing or 
 executing the commission, or in taking or returning the deposi- 
 tion, may be taken advantage of by a motion to suppress the 
 testimony, so where upon the taking of a deposition of the 
 defendant in another state, on behalf of the complainant, the 
 defendant refused to answer some material questions and 
 answered others evasively and introduced scandalous and 
 impertinent matter in his testimony, and he also refused to pro- 
 duce or furnish copies of papers referred to by him and to 
 
 (86) Ludlam v. Broderick, 15 N. J. L., 269. 
 
 (87) Crawford v. Kline, 65 Atl., 441. 
 
 (88) New Jersey Express Co. v. Nichols, 33 N. J. L., 434. 
 
 (89) Lawrence v. Finch, 17 N. J. Eq., 234. 
 
418 Testimony De Bene Esse. 
 
 produce books which were very material to the examination, 
 although such books and papers were in his possession it was 
 held that upon these grounds the deposition should be sup- 
 pressed on motion of the complainant. (90) A motion to 
 strike out a deposition of a non-resident witness, on the ground 
 that the witness attended the hearing of the cause, should be 
 made as soon after the ability of the witness to attend and 
 give evidence is discovered, as the proper and orderly con- 
 duct of the cause will permit, otherwise the right to make the 
 motion to strike out will be deemed to be waived; (91) and 
 where the deposition of a party to a suit is taken by consent 
 and the party afterwards appears in court during the progress 
 of the trial and a motion is made to strike out a deposition 
 which had previously been admitted as. testimony without 
 objection, some reason must be given alleging surprise at the 
 ability of the witness to attend and showing that the failure to 
 object to the introduction of the deposition was due to misin- 
 formation or lack of knowledge as to the ability of the witness 
 to appear in court and give oral evidence. (92) 
 
 The deposition of a witness, who after his direct examina- 
 tion, which he did not sign, secretes himself so that he cannot 
 be cross examined, will be suppressed, both upon the ground 
 that it was not signed and upon the ground that where a wit- 
 ness secretes himself before his cross examination is complete, 
 he is not worthy of credit. (93) 
 
 Expense of Taking; Taxation of Costs. The party re- 
 quiring such examination or deposition shall in the first instance 
 be at the sole expense thereof, and said expense may be made 
 a part of the taxed bill of costs of the prevailing party, if so 
 ordered by the court. (94) 
 
 The power to order that the expense of depositions taken 
 under this act be made a part of the taxed bill of costs of the 
 prevailing party is a discretionary power. (95) 
 
 (90) Fulton V. Golden, 28 N. J. Eq., 37. 
 
 (91) Flannery v. Brewing Co., 70 N. J. L., 715. 
 
 (92) Flannery v. Central Brewing Co., 70 N. J. L., 715. 
 
 (93) Flavell V. Flavell, 20 N. J. Eq., 211 ; afHrmed, 22 N. J. Eq., 599. 
 
 (94) P. L., 1900, p. 378, as amended, P. L., 1909, p. 277; 2 Comp. 
 Stat., p. 2236, sec. S3. 
 
 (95) Hite V. Dell, 78 N. J. L., 239. 
 
Depositions by Consent. 419 
 
 DEPOSITIONS BY CONSENT. 
 
 Stipulations; Stenographic Transcript; Filing. It shall 
 be lawful for the attorneys or solicitors of record in any civil 
 action to stipulate in writing to take de bene esse, without 
 order of the court in which such action is pending, the testi- 
 mony of any party to such action, or of any witness therein, 
 whether such a party or witness reside or be within or without 
 this state ; such stipulation shall state the name and residence of 
 the party or witness whose testimony is to be so taken, the time 
 when and the place where the officer before whom such testi- 
 mony is to be taken, and whether such testimony may be taken 
 stenographically ; such stipulation may designate as the officer 
 before whom such testimony shall be taken, any officer \yhom it 
 would have been lawful for the court to designate for the pur- 
 pose in a commission duly issued by the court on application 
 therefor made as hereinbefore provided, to take de heyve esse 
 the testimony of such party or witness ; and if it is stipulated to 
 take such testimony stenographically, the name of the stenog- 
 rapher may be designated in such stipulation, or, if not so 
 designated, he shall be designated by said officer; such stipu- 
 lation shall be filed with the clerk of the court in which such 
 action is pending before such testimony is taken ; said stenog- 
 rapher shall make two transcripts o^ such testimony which 
 shall be subscribed and sworn to before the officer designated 
 to take such testimony, and one transcript of such testimony 
 so subscribed and sworn to shall be delivered to each party; 
 either party may file the transcript of said testimony with the 
 clerk of the court in which such action is pending, and there- 
 upon either party may use the testimony so taken on the trial 
 of said action in the same manner, and with the same force 
 and efifect as if said testimony had been taken under a com- 
 mission duly issued by the court on application therefor made 
 as hereinbefore provided to take de bene esse the testimony of 
 such party or witness. (96) 
 
 Where the deposition of plaintiff was taken by consent, its 
 contents known to the defendant's attorney, and it was 
 admitted in evidence after formal offer in open court and with- 
 out objection, good reason must be assigned on a motion to 
 strike it out. The fact that the plaintilif was carried into court 
 
 (96) P. L., 1900, p. 378; 2 Comp. Stat., p. 2237, sec. 57. 
 
420 Testimony De Bene Esse. 
 
 during the progress of the trial was not of itself such a reason 
 as would prevent the court in its discretion from refusing to 
 strike out the deposition previously legally admitted. (97) 
 
 OF INSPECTION OF BOOKS AND PAPERS. 
 
 The Chancellor May Order an Inspection of Books and 
 Papers. An order may be made on such terms as may be 
 imposed by the chancellor or vice-chancellor, on the applica- 
 tion of either party to a suit in this court, for an inspection 
 and copy, or permission to take a copy, of any books, papers 
 or documents relating to the merits of such suit or of the 
 defence thereto; such application, of which five days' notice 
 shall be given, shall be by petition stating the grounds thereof, 
 and verified by the oath of the party, or his or her solicitor. ( i ) 
 
 The power to direct either party to a suit to give to the 
 other an inspection and copy or permission to take a copy of 
 any books, papers and documents in his possession or under his 
 control is inherent in a Court of Equity and can be exercised 
 in the absence of any statute conferring such right (2) and 
 the circumstance of the documents being abroad is no answer 
 to an application for their production ; but in such a case a 
 reasonable time will be given the party to bring them into the 
 state, and refusal to comply with such order will be considered 
 the same as if the documents were here and the party refused 
 to produce them. (3) 
 
 But the Jurisdiction of the Court of Chancery to compel the 
 production for inspection of books and papers whether of an 
 individual or cqrporation, is confined to cases where the same 
 are evidentfal in a cause pending in the court(4) and the 
 
 (97) Flannery v. Central Brewing Co., 70 N. J. L., 715. 
 (i) Chancery Rule 31. 
 
 (2) Lawless v. Fleming, 56 N. J. Eq., 815; Copper King v. Robert, 
 76 N. J. Eq., 251 ; Singer Mfg. Co. v. Bowne, 85 Atl., 449. 
 
 (3) Copper King v. Robert, 76 N. J. Eq., 251. The Corporation 
 Act, P. L., i8g6, p. 292, sec. 44, provides, that the chancellor may upon 
 proper cause shown summarily order any or all the books of a com- 
 pany of this state to be forthwith brought into the state and kept as- 
 the chancellor may direct. 
 
 (4) Fuller V. Hollander, &c. Co., 61 N. J. Eq., 648. 
 
Inspection of Books^ &c. 421 
 
 right is limited to an inspection necessary to the merits and 
 defenses set up in the pleadings in which the suit is brought on 
 for hearing. (s) One of two defendants' cannot be compelled 
 upon motion to submit documents in his possession to the 
 inspection of his co-defendant to enable the latter to answer 
 the bill and make his defense in the suit. Such purpose can 
 only be accomplished by cross-bill. (5a) 
 
 Evidence on Hearing. On the hearing of the petition, 
 the affidavit of the opposite party, or his or her solicitor, may 
 be read without notice of the taking of the same, or either 
 party or any witness may be examined on such hearing in rela- 
 tion thereto; compliance with the order provided for by the 
 preceding rule may be compelled by proceedings as for a con- 
 tempt of this court. (6) 
 
 EXAMINATION OF PARTY DE BENE ESSE UPON 
 HIS OWN MOTION. 
 
 In iny civil suit, action or proceeding in any court, any 
 party thereto, at any time after commencement thereof may, 
 at his option, be examined as a witness de bene esse on oath 
 or affirmation. If any other party to such suit, action or pro- 
 ceeding shall thereafter die, and if such suit, action or pro- 
 ceeding shall be cotinued after the death of such other party, 
 the examination so taken may be read in evidence notwith- 
 standing it shall relate to transactions with or statements by 
 such decedent. 
 
 The deposition of any such party may, at his option, be taken 
 before any justice of the Supreme Court, or judge of a Court 
 of Common Pleas, or Supreme Court commissioner, or Master 
 in Chancery of this State; provided, that the judge or officer 
 before whom the deposition is taken shall cause notice to be 
 given to the adverse party, or to his attorney or solicitor, imme- 
 diately, or at such short day, and in such manner as the case, 
 in the opinion of such judge or officer may require, to attend 
 
 (5) Jones V. Youngstown, &c., R. R., 84 Atl., 200; Copper King v. 
 Robert, 76 N. J. Eq., 251. 
 
 (Sa) Evans v. Staples, 42 N. J. Eq., 584. 
 
 (6) Chancery Rule 32. 
 
422 Testimony De Bene Esse. 
 
 at the taking thereof, and to put questions and cross examine 
 if he shall see fit. 
 
 Any such party deposing as aforesaid shall be sworn or 
 affirmed to testify the whole truth, and shall, in the presence 
 of the judge or officer taking the deposition, subscribe the 
 testimony by him given, after the same shall have been reduced 
 to writing or typewriting; and the deposition so taken shall 
 be retained by such judge or officer until he delivers the same, 
 together with a certificate stating what notice, if any, was given 
 to the adverse party, with his own hand to the clerk of the 
 court in which it was taken, or such deposition and certificate 
 shall be, by such judge or officer, sealed up, directed and trans- 
 mitted, either by mail or private messenger, to such clerk, who 
 shall immediately open and file the same. 
 
 The person by whom such deposition shall be transmitted 
 to such clerk, as authorized in the preceding section, shall 
 make oath or affirmation that he received the same, sealed up, 
 from the hands of the judge or officer by whom it was taken, 
 designating the time and place when and where received, and 
 that the same has not been opened or altered since it has 
 received it. 
 
 Any such deposition may be taken by a stenographer or 
 stenographers, in the presence of the judge or other officer, 
 before whom such deposition is taken; provided, that before 
 the taking of the sariie such stenographer shall be sworn by 
 such judge or officer to carefully, faithfully and impartially 
 take said evidence and to make a true and correct transcript 
 thereof, which oath shall be in writing and shall be attached 
 to and be a part of the return of such judge or officer. 
 
 Documentary evidence exhibited before any such judge or 
 officer, or exhibits proved or identified by any such witness 
 may be annexed to and returned with the deposition of such 
 witness; or such judge or officer shall, if requested by the 
 party exhibiting such documentary evidence or producing such 
 exhibit, mark it as an exhibit in the case and return it to the 
 party offering it, and the same shall be received in evidence 
 in all respects as if annexed to and returned with such deposi- 
 tion. (7) 
 
 (7) P. L., 1913- 
 
Evidence under Pleadings. 423 
 
 CHAPTER XXVI. 
 EVIDENCE ADMISSIBLE UNDER PLEADINGS. 
 
 In General. The good sense of pleading and the language 
 of the books both require that every material allegation should 
 be put in issue by the pleadings, so that the parties may be 
 duly appraised of the essential inquiry and may be enabled 
 to collect testimony and form interrogatories in order to meet 
 the question. Without the observance of this rule, the use 
 of pleadings becomes lost, and parties may be taken by sur- 
 prise at the hearing. ( i ) The rule is settled that in a court of 
 equity the parties are confined to the issues made by their 
 pleadings, as much as in a court of law. Evidence must be 
 confined to the issue made by the pleadings, and all evidence 
 in support of totally distinct facts from those relied upon in 
 the bill or answer is irrelevant, impertinent 'and inadmissi- 
 ble. (2) 
 
 So upon replication filed to a plea that there was no promise 
 within six years, an agreement not to take advantage of the 
 statute of limitations cannot be given in evidence. It is not 
 within the issue. The only question is whether there was any 
 promise made within six years. (3) So in a suit in equity, 
 testimony in disproof of a fact confessed by the pleadings 
 cannot be considered. (4) 
 
 Courts will not ex-officio take notice of foreign laws, and 
 consequently they must, when material, be stated in plead- 
 ing. (5) And where an answer to a bill alleges generally that 
 the contract was usurious, and no statement is made of the 
 place where the contract was made, the defense must be con- 
 
 (i) Foster v. Dey, 27 N. J. Eq., 599-601. 
 
 (2) Evans v. Huffman, 5 N. J. Eq., 354; Brantingham v. Branting- 
 ham, 12 N. J. Eq., 160; Vansciver v. Bryan, 13 N. J. Eq., 434; Moores 
 V. Moores, 16 N. J. Eq., 275; Marshman v. Conklin, 21 N. jf. Eq., 546; 
 Marsh v. Mitchell, 26 N. J. Eq., 497; Hoyt v. Hoyt, 27 N. J. Eq., 399; 
 Schenck v. Hart, 32 N. J. Eq., 774-789; Hill v. Howell, 36 N. J. Eq., 
 25; Wright V. Wright, 51 N. J. Eq., 475; Chadwick v. Chadwick, 52 
 N. J. Eq., 539; Bradbury v. Bradbury, 74 Atl., 150. 
 
 (3) Cowart V. Perrine, 21 N. J. Eq., loi. 
 
 (4) Lippincott v. Ridgway, 11 N. J. Eq., 526; Evans v. Huffman, 
 5 N. J. Eq., 354. 
 
 (5) Campion v. Kille, 14 N. J. Eq., 229; affirmed, 15 N. J. Eq., 500; 
 Andrews v. Torrey, 14 N. J. Eq., 355. 
 
424 Evidence under Pleadings. 
 
 fined to showing that it was usurious by the laws of this state, 
 and a defense that it was usurious by the laws of another 
 state where the contract was made must be averred specially 
 before evidence can be introduced to sustain it. (6) But under 
 general allegations, particular instances may be proved. Thus, 
 under a charge of insanity, drunkenness or lewdness, particu- 
 lar acts may be shown, for in such cases the general charge 
 must be of such precise and definite character as to apprise 
 the adverse party of the nature of the evidence to be intro- 
 duced. (7) 
 
 The general rule in equity is that the substance only of the 
 issue need be proved. (8) 
 
 Bill of Complaint. Evidence relative to matters not stated 
 in the bill, nor fairly within its general allegations, is im- 
 pertinent, and cannot be made the foundation of a decree. 
 This rule should be strictly enforced wherever the matter 
 offered in evidence is not fairly within the general allegations 
 of the bill, and where its production will operate as a surprise 
 upon the adverse party. (9) 
 
 The allegations and proofs in suits in equity must agree with 
 reasonable certainty. It is as important that this rule should 
 be adhered to in this court as it is in a court of law. (10) So 
 a complainant, who by his pleadings and issues joined thereon 
 and proofs submitted in support of those issues has presented 
 certain and definite grounds for relief, cannot after the case 
 has closed, without suggestion by amendment, present, by 
 argument only, entirely different and new grounds for relief, 
 
 (6) Dolman v. Cook, 14 N. J. Eq., 56; Campion v. Kille, 14 N. J. 
 Eq., 229; affirmed, 15 N. J. Eq., 500; Andrews v. Torrey, 14 N. J. Eq., 
 3SS; Atwater v. Walker, 16 N. J. Eq., 42; Leake v. Burgen, 27 N. J. 
 Eq., 360. 
 
 (7) Moores v. Moores, 16 N. J. Eq., 275. 
 
 (8) King V. King, 9 N. J. Eq., 44. 
 
 (9) Hopper V. Sisco, 5 N. J. Eq., 343; Andrews v. Farnham, 10 
 N. J. Eq., 91 ; Vansciver v. Bryan, 13 N. J. Eq., 434 ; Howell v. Sebring, 
 14 N. J. Eq., 84; Marshman v. Conklin, 21 N. J. Eq., 546; Jacobus v. 
 Mutual Benefit Life Ins. Co., 27 N. J. Eq., 604; Wilson v. Cobb, 28 
 N. J. Eq., 177; reversed, 29 N. J., 361; Stucky v. Stucky, 30 N. J. Eq., 
 546; Parker v. Snyder, 31 N. J. Eq., 164; affirmed, 32 N. J. Eq., 827; 
 Hart V. Schenck, 32 N. J. Eq., 148-154; reversed, 32 N. J. Eq., 774; 
 Watkins v. Milligan, 37 N. J. Eq., 43s ; Riddle v. Keller, 61 N. J. Eq., 
 5x3-520; Dittman v. Distilling Co., 64 N. J. Eq., 537. 
 
 (10) Smith V. Axtell, i N. J. Eq.,:494; Parsons v. Heston, 11 N. J. 
 Eq., iss; Marsh v. Mitchell, 26 N. J. Eq., 497. 
 
Bill. 425 
 
 and have a decree made on those grounds.(ii) So a new 
 complainant who has filed a bill against his attorney to set 
 aside securities on the ground that they were obtained from 
 him by fraudulent representations as to their character and 
 by false reading, and has failed to prove the case made by 
 his bill, cannot obtain relief on such a bill by claiming that 
 the securities are fraudulent because of the relation of attor- 
 ney and client existing between him and the defendant. Such 
 a claim is inconsistent with the case made by the bill. (12) 
 
 Even clear proof of matters not alleged as ground for 
 relief in the pleadings will not be noticed by the court. (13) 
 And so where a bill alleged that complainant was induced to 
 execute certain deeds by the false representations of the 
 defendant, and the evidence failed to substantiate his bill, he 
 was not permitted to change his position and place his claim 
 to relief upon the grotind that he executed the deeds under a 
 mistake as to the extent of his interest in the lands conveyed. 
 (14) So where a bill filed to set aside a sale on the ground 
 of fraud charges that there was collusion at an administra- 
 tor's sale between the administrator and the purchaser where- 
 by the latter obtained an unfair advantage over other bidders, 
 and the evidence disclosed that the purchaser had bid in the 
 premises, not through collusion, but for the benefit of the 
 administrator, it was held that complainant was not entitled 
 to relief upon the ground that the administrator had pur- 
 chased at his own sale, because it was not within the issue 
 made by the bill. (15) 
 
 Where a bill set up a case of fraud and nothing else, and 
 sought to have defendant's title to a large amount of prop- 
 erty dieclared void, and complainant failed to prove fraud, 
 it was held that he could not turn his bill into a bill for an 
 account and succeed in the action as a collection suit. (16) 
 So upon a bill filed to recover the interest of a legacy, a decree 
 
 (11) Humphreys v. Eastlack, 63 N. J. Eq., 136. 
 
 (12) Brown v. Bulkley, 14 N. J. Eq., 451. 
 
 (13) Humphreys v. Eastlack, 63 N. J. Eq., 136. 
 
 (14) Pasman v. Montague, 30 N. J. Eq., 385; Humphreys v. East- 
 lack, 63 N. J. Eq., 136; Bradbury v. Bradbury, 74 Atl., 150. 
 
 (15) Howell V. Sebring, 14 N. J. Eq., 84; Midmer v. Midmer, 26 
 N. J. Eq., 299; affirmed, 27 N. J. Eq., 548. 
 
 (16) Jewett V. Bowman, 29 N. J. Eq., 174; reversed, 30 N. J. Eq., 
 291. 
 
426 Evidence Under Pleadings. 
 
 cannot be made for the payment of the principle which the 
 evidence shows has fallen due since the filing of the bill. (17) 
 So where the allegation of the bill is that the undertaking was 
 a stipulation contained in a certain deed, and that the grantee 
 became bound by the acceptance of the deed, while the proof 
 is that it was not contained in the deed, but was a parol 
 promise at the making of the deed, the variance is fatal. (18) 
 
 Where the whole frame of a bill of complaint is based upon 
 charges of fraud and the defendants are brought in solely on 
 such charges and the proofs fail to show any fraud, the bill 
 must be dismissed, even if there be some evidence of an 
 injury because of mistake. (19) And so evidence going to 
 show that a deed might have been obtained by fraud, mis- 
 representation or deception is not sufficient to support a bill 
 charging that the deed is fraudulent, forged or counter- 
 feited. (20) 
 
 Where there is no substantial variance between the trust 
 alleged in the bill and that proved, the trust as proved will be 
 established and enforced.(2i) And a decree will be sus- 
 tained, if warranted by the charges and prayer of the bill and 
 sustained by the evidence, though the proof is broader and 
 stronger than that stated in the bill, and establishes grounds 
 of relief not contained in the bill. (22) And on a bill filed to 
 establish a will under a charge of spoliation, it is not neces- 
 sary to prove that the spoliation was committed by the indi- 
 vidual charged in the bill, or to show by whom it was com- 
 mitted ; it is enough if the fact of the spoliation be established. 
 (23) Evidence of fraud taken under an original bill is inad- 
 missible as to defendants brought in by supplemental bill 
 only; they should have a knowledge of the pendency of the 
 original suit. (24) 
 
 Answer. It is a well established principle that no defense 
 can be allowed that is not set up in the answer, and no evi- 
 
 (17) Jordan v. Clark, 16 N. J. Eq., 243. 
 
 (18) Wilson V. King, 23 N. J. Eq., 150. 
 
 (19) Keen v. Maple Shade Land, &c. Co., 61 N. J, Eq., 497; re- 
 versed, 63 N. J. Eq., 321. 
 
 (20) Stafford v. Stafford, i N. J. Eq., 525- 
 
 (21) Hooper v. Holmes, 11 N. J. Eq., 122. 
 
 (22) Ryerson v. Adams, 6 N. J. Eq., 618. 
 
 (23) Bailey v. Stiles, 2 N. J. Eq., 220. 
 
 (24) Stover V. Wood, 26 N. J. Eq., 56. 
 
Answer. 427 
 
 dence can be received on any issue not raised by the plead- 
 ings. (25) The defense must stand on the issues made by the 
 pleadings. Matters not set up in the pleadings as a defense, 
 but introduced only in argument on the testimony, cannot be 
 made the basis of a decision in the cause. (26) So a defend- 
 ant cannot come into court claiming to be the absolute owner 
 of a mortgage and then, when the mortgage is shown to be in 
 the hands of somebody else by his assignment, set up an 
 equitable interest in himself contrary to the terms of that 
 assignment ; such a claim is not consistent with the plead- 
 ings. (27) So where an answer to a foreclosure suit stating 
 that the complainants for the consideration of $500 stipulated 
 "to agree to the conditions of the mortgage" it was held that 
 the allegation was not sustained by proof that the complain- 
 ants in consideration of $500 agreed to take the mortgage in 
 suit in substitution of another of the same amount on their 
 property. (28) 
 
 A defendant may avail himself of the defense of the stat- 
 ute of limitations by answer; but if not set up in any way 
 in the pleadings, he cannot avail himself of it. (29) And so 
 where an answer discloses the equities, the complainant will 
 not be allowed to abandon the case made in his bill and ask 
 a new remedy at the hearing, or claim it on motion to dis- 
 solve an injunction to restrain an action at law upon a record 
 
 (25) Mann v. Bruce, S N. J. Eq., 413; Evans v. Huffman, 5 N. J. 
 Eq., 354; Rawnsley v. Trenton Mut. Life Ins. Co., g N. J. Eq., 95; 
 Brantingham v. Brantingham, 12 N. J. Eq., 160; Moores v. Moores, 16 
 N. J. Eq., 27s; Burnham v. Bailing, 18 N. J. Eq., 132; N. J. Building 
 Co. V. Lord, 66 N. J. Eq., 344-352. 
 
 (26) Chandler v. Herrick, 11 N. J. Eq., 497; Vansciver v. Bryan, 13 
 N. J. Eq., 434; Howell v. Sebring, 14 N. J. Eq., 84; Marshman V. 
 Conklin, 21 N. J. Eq., 546; Mead v. Combs, 26 N. J. Eq., 173; Midmer 
 v. Midmer, 27 N. J. Eq., 548; Jacobus v. Mutual Benefit Life Ins. 
 Co., 27 N. J. Eq., 604; Wilson v. Cobb, 28 N. J. Eq., 177; reversed, 29 
 N. J. Eq., 361; Zinsgem v. Kidd, 29 N. J. Eq., 516; Pasman v. Mon- 
 tague, 30 N. J. Eq., 385; Stucky v. Stucky, 30 N. J. Eq., 546; Leihigh 
 Valley R. R. Co. v. McFarland, 30 N. J. Eq., 180; reversed, 31 N. J. 
 Eq., 707 ; Hart v. Schenck, 32 N. J. Eq., 148 ; aMrmed, 32 N. J. Eq., 774 ; 
 Holmdel Co. v. Conover, 34 N. J. E^., 364; Soden v. Soden, 34 N. J. 
 Eq., 115; Myers v. Steel Machine Co., 67 N. J. Eq., 300; aMrmed, 68 
 N. J. Eq., 795; Rottenburgh v. Fowl, 26 Atl., 338-341 1 Bradbury v. 
 Bradbury, 74 Atl., 150. 
 
 (27) Gilbert v. Gilpan, 11 N. J. Eq., 445. 
 
 (28) Naar v. Union & Essex Land Co., 34 N. J. Eq., in. 
 
 (29) Ruckman v. Decker, 23 N. J. Eq., 283. 
 
428 Evidence Under Pleadings. 
 
 framed with a different aspect. (30) So an allegation in an 
 answer that the defendants, as executors, received a certain 
 sum usuriously, is not sustained by proof that one of them 
 individually received a part of such sum from defendant's 
 agent. (31) So to avoid a deed of a married woman for 
 want of acknowledgment of the statutory facts, the defense 
 must be set up in the answer. (32) 
 
 A defendant who sets up certain facts in his answer and 
 states that the consequences of such facts is to exhibit a par- 
 ticular defense, cannot, on 'final hearing, use the same facts 
 to support a different ground of defense, to which the atten- 
 tion of complainant is not called. (33) 
 
 A court of equity will not deprive a defendant of his 
 defense upon a mere technicality of pleading, when its admis- 
 sion affects prejudicially no right of the complainant. (34) 
 And in a suit to foreclose a mortgage against the widow and 
 heirs of a deceased obligor, where they claimed, as a pay- 
 ment of the bond, an account of the obligor against the 
 obligee for board furnished him under an agreement that 
 it should be applied in reduction of the bond, it was held 
 that such agreement need, not be proved expressly as set out 
 in the answer. (35) 
 
 Amendment to Conform to Proofs. Where the case pre- 
 sented by the proofs differs from that set up by the pleadings, 
 the court has power to, and will sometimes, even upon the 
 final hearing, order that the pleadings be amended so as to 
 conform to the proofs. This power is, however, never exer- 
 cised except where the ends of justice render it necessary, 
 and it can be done without substantially abridging the right 
 of defense. It is obvious that leave to amend under such cir- 
 cumstances should be refused unless the refusal will work great 
 and manifest injustice. (36) So where the defendant's case 
 
 (30) Crane v. Ely, 37 N. J. Eq., 564. 
 
 (31) Cleveland v. O'Neil, 29 N. J. Eq., 457; reversed, 30 N. J. Eq., 
 273- 
 
 (32) Marsh v. Mitchell, 26 N. J. Eq., 497. 
 
 (33) Bannister v. Miller, 54 N. J. Eq., 121 ; affirmed, ib, 701 ; Polts 
 V. Potts, 42 At!., 1055-1058. 
 
 (34) Moores v. Moores, 16 N. J. Eq., 275. 
 
 (35) King V. King, 9 N. J. Eq., 44. 
 
 (36) Midmer v. Midmer, 26 N. J. Eq., 299-303; affirmed, 27 N. J. 
 Eq., 548; and see "Amendment of Pleadings," page 323, supra. 
 
Amendment to Conform to Proofs. 429 
 
 is fully before the court, and the bill, as originally framed, 
 compelled him to put in evidence every fact and resort to 
 every means of proof that he could possibly have deemed 
 necessary if the bill had been framed to establish the case 
 made out by the proofs, and he has been fully heard, and it 
 appears, that giving the defendant the utmost benefit of 
 every consideration that can^ with any show of reason or 
 fairness, be urged on his behalf, he stands utterly defenseless 
 against the case as made out by the proofs, the complainant 
 will be permitted to amend his bill to accord with the 
 proofs. (37) And where a bill alleged that an execution had 
 been issued on complainant's judgment, but did not allege 
 what was done thereunder, nor that the judgment debtor was 
 not possessed of other property than that subject to the suit, 
 but these facts were supplied by the evidence given by the 
 defendant, it was held that the defects in complainant's bill 
 were cured by the evidence. (38) 
 
 If the case proved differs essentially from that alleged by 
 the bill, the bill will be dismissed with costs, but without 
 prejudice to the right of the complainant to file a new bill 
 if he thinks he can maintain a suit on a case differently 
 stated. (39) 
 
 (37) Ogden V. Thornton, 30 N. J. Eq., 569. 
 
 (38) Thorp v. Leibrecht, 56 N. J. Eq., 499; and see "Amendments," 
 page 323, supra. 
 
 (39) Hopper V. Sisco, 5 N. J. Eq., 345; Stover v. Reading, 29 N. J. 
 Eq., 152. 
 
430 Decrees. 
 
 CHAPTER XXVII. 
 
 DECREES. 
 
 General Nature of Decrees. A decree is a sentence or 
 order of the court, pronounced on hearing and understanding 
 all the points in issue and determining the rights of all the 
 parties to the suit according to equity and good conscience. 
 Decrees are either interlocutory or final.(i) 
 
 An interlocutory decree is one where the consideration of 
 the particular question or the further consideration of the 
 cause generally is reserved for a future hearing. The further 
 hearing is then termed a hearing upon the equity reserved. 
 An order merely overruling or sustaining a demurrer is not a 
 final decree (2) ; nor is' an order that a decree be taken pro 
 confesso.(2) 
 
 It has also frequently been held that a decree which, 
 although it declares the rights of the parties and directs an 
 account in conformity therewith, but reserves the consequential 
 directions and the question of costs until the coming in of the 
 report, is interlocutory. (4) So an order of the Court of Chan- 
 cery sustaining exceptions to an answer for insufificiency is 
 not a final decree within the meaning of the Chancery Act. 
 Furthermore, it is not carried into a final decree subsequently 
 made in the cause so as to become part of it and appealable 
 with it. (5) And a decree which does not dispose of the whole 
 merits of the cause, but leaves important questions for further 
 examination and the future judgment of the court, is not a 
 final decree within the meaning of the iiith section of the Chan- 
 cery Act, which requires that all appeals except from final 
 decrees shall be made within forty days after filing the order 
 and decree appealed from. (6) 
 
 (i) 2 Daniel's Cr. Pr., 986. 
 
 (2) Forbes v. Tuckerman, 115 Mass., 115; Barker v. Flagg, 127 
 Mass. 
 
 (3) Russell V. Lathrop, 122 Mass., 300. 
 
 (4) Johnson v. Everett, 9 Paige, 636; Kane v. Whittick, 8 Wend., 219. 
 
 (5) N. J. Building & Loan &c. Co. v. Lord, 66 N. J. Eq., 344. 
 
 (6) Newark Plank Road v. Elmer, 9 N. J. Eq., 754 ; and see Chan- 
 cery Act, sec. Ill, page 86, supra; also "Appeals," page 763, infra. 
 
Entry Nunc Pro Tunc. 431 
 
 A decree is final when it decides and disposes of all the 
 merits of the case, reserving no further questions or directions 
 for the future judgment of the court. The great purpose 
 intended to be accomplished by a final decree in an equity 
 suit is to settle and determine justly and finally the rights 
 of all persons having a material interest in the subject matter 
 put forward by the complainant as the foundation of his 
 right to relief. (7) But an order which finally disposes of all 
 matters involved in the cause will not ordinarily be made until 
 final hearing had upon pleadings and proofs taken upon due 
 notice, in accordance with the rules and practice of the court. 
 (8) 
 
 When a final decree in Chancery is complete in itself, its 
 language being intelligible, the bill and answer cannot be 
 read for the purpose of limiting its force and controlling its 
 legal effect. (9) And it is not material to the conclusiveness 
 of a decree whether it was obtained by consent, or by decision 
 of the court upon the legal principles involved in the con- 
 troversy. (10) 
 
 Entry Nunc Pro Tunc. The power of the chancellor to 
 order a decree to be signed nunc pro tunc even after a very 
 long interval has elapsed after pronouncing it, is beyond 
 question. The court will enter a decree nm^c pro tunc if satis- 
 fied from its own official documents that it is only doing now 
 what it would have done then.(ii) So where a sole com- 
 plainant or defendant dies after the final argument, but before 
 decree, the court may order the decree to be signed and 
 filed as of the date of the argument. (12) And where one of 
 the complainants dies subsequent to a decision on a bill for 
 partition, the decree is dated as of the date of the argument. 
 (13) In entering decrees nunc pro tunc, the usual practice is 
 
 (7) Jones V. Davenport, 4s N. J. Eq., 77; reversed, 46 N. J. Eq., 
 237. 
 
 (8) National Docks R. R. Co. v. P. R. R. Co., 54 N. J. Eq., 10; 
 S. C, 53 N. J. Eq., 178. 
 
 (9) Weehawken Ferry Co. v. Sisson, 17 N. J. Eq., 475; Kelsey v. 
 Dilks, 74 N. J. Eq., 270-273. 
 
 (10) Gifford V. Thorn, 9 N. J. Eq., 702-703 n. 
 
 (11) Ruckman v. Decker, 27 N. J. Eq., 244. 
 
 (12) Benson v. Wolverton, 16 N. J. Eq., no; Burnham v. Dalling, 
 16 N. J. Eq., 310; Clark v. Van Cleef, 75 N. J. Eq., 152. 
 
 (13) Havens v. Seashore Land Co., $7 N. J. Eq., 142. 
 
432 , Decrees. 
 
 to date the decree of the day it is made, and to provide by a 
 separate order that it shall have effect now as if it had been 
 entered/then.(i4) 
 
 Certainty Required. A decree must be specific in its 
 directions, but need not be more so than the circumstances of 
 the case require ; and so a decree confirming a Master's report, 
 reporting a sum due from defendants to complainants, and 
 ordering execution to make the money, constitutes an adjudi- 
 cation that the amount reported was due from the defendants 
 to the complainants. (15) So a decree obliging a railroad corn- 
 pany to provide a bridge for certain purposes need not 
 specify more particularly what sort of bridge must be built 
 than that it shall be proper and safe for the purposes intended 
 to be accomplished. (16) 
 
 Relief in Relation to Parties. A decree cannot be made 
 as to any persons who are not parties to the suit. (17) But 
 all persons who are parties or privies to a decree are bound 
 by it ; so where one of two tort-feasors upon being sued pleaded 
 settlement by plaintiff with his defendant companion, and the 
 plaintiff replied that such settlement had been obtained by 
 fraud, and the rejoinder was that upon bill filed by the plain- 
 tiff to set aside the settlement for fraud, such settlement had 
 been established by decree, it was held that such decree was 
 conclusive between the plaintiff and the defendant, who was 
 not a party to the Chancery suit. (18) 
 
 It is the policy and duty of the Court of Chancery to settle 
 all claims between the parties in one suit, if possible ; and upon 
 a question arising between co-defendants in which the com- 
 plainant has no interest, where the matter is distinctly before 
 the court upon the pleadings and proof between the com- 
 plainant and the defendants in the case, the coiirt will decide 
 the rights of the defendants between themselves. (19) But 
 no positive relief in adjusting equities between defendants 
 can be decreed or granted to one defendant against another 
 
 (14) Pennington v. Rutherford, 9 N. J. L., J., 305. 
 (is) Ruckman v. Decker, 28 N. J. Eq., 5. 
 
 (16) Carpenter v. Easton, &c. R. R. Co., 28 N. J. Eq., 390. 
 
 (17) A/mstrong v. Armstrong, 19 N. J. Eq., 357; and see "Parties,"' 
 page 91, supra. 
 
 (18) Spurr V. North Hudson R. R. Co., 56 N. J. L., 346. 
 
 (19) Shannon v. Marselis, i N. J. Eq., 413; Vandeveer v. Hol- 
 comb, 17 N. J. Eq., 547; Symmes v. Strong, 28 N. J. Eq., 131. 
 
Relief in Relation to Pleadings. 433 
 
 except such as can be granted incidentally to the relief sought 
 by the complainant. (20) 
 
 Relifef in Relation to Pleadings. The principle is au- 
 thoritatively settled that a decree or judgment on a matter out- 
 side of the issue raised by the pleadings is a nullity, and is 
 nowhere entitled to the least respect as a judicial sentence. 
 The relief accorded by the decree must conform to the case 
 made out by the pleadings, as well as to the proofs. (21) And 
 the court cannot act upon a distinct ground of relief made by 
 the proofs, if it be not set up in the bill. (22) Hence matters 
 not set up in the pleadings as a defense, but introduced only 
 in argument, cannot be made the basis of a decree. (23) And 
 a decree of a New York court, which adjudicates a matter 
 not presented by the pleadings nor within the issue, can have 
 no higher effect than "a judgment rendered in our own courts 
 under like conditions, and must be treated as a nullity. (24) 
 
 Relief not embraced in the prayer of the bill cannot be 
 decreed, nor can relief asked for be granted upon grounds not 
 disclosed by the bill. It is, however, no objection that the case 
 established by the proof is broader and stronger than that 
 stated in the bill, or that grounds of relief not contained in 
 the bill are established in evidence, provided the decree is 
 warranted by the charges and the prayer of the bill, and the 
 bill is sustained by the evidence. (25) So if complainant has 
 framed his bill to adapt it to a certain theory on which he 
 bases his right to recover, the proof must be such as to war- 
 
 (20) Mount V. Potts, 23 N. J. Eq., 188. 
 
 (21) Hopper V. Sisco, 5 N. J. Eq., 343; Howell v. Sebring, 14 N. J. 
 Eq., 84; Marshman v. Conklin, 21 N. J. Eq., 546; National Bank v. 
 Sprague, 21 N. J. Eq., 530; Hoyt v. Hoyt, 27 N. J. Eq., 399; Watkins 
 V. Milligan, 37 N. J. Eq., 435 ; Jones v. Davenport, 45 N. J. Eq., 77-81 ; 
 reversed, 46 N. J. Eq., 237 ; Hill v. Henry, 66 N' J. Eq., 150, 161 ; Van 
 Houten v. Stevenson, 69 N. J. Eq., 626; Reynolds v. Stockton, 43 N. J. 
 Eq., 211; and see "Bill of Cdmplaint," page 140, supra. 
 
 (22) Plume v. Small, S N. J. Eq., 460; affirmed, ib., 650; Chandler 
 V. Herrick, 11 N. J. Eq., 497; and see "Bill of Complaint," page — , 
 supra. 
 
 (23) Chandler v. Herrick, 11 N. J. Eq., 497; Myers v. The Steel 
 Machine Co., 67 N. J. Eq., 300; affirmed, 68 N. J. Eq., 795; and see. 
 Evidence admissible under pleadings, page 140, supra. 
 
 (24) Reynolds v. Stockton, 43 N. J. Eq., 211. 
 
 (25) Ryerson v. Adams, 6 N. J. Eq., 618; and see "Bill of Com- 
 plaint, "Prayer for Relief," page 151, supra; also evidence admissible 
 under pleadings, page 423, supra. 
 
434 Decrees. 
 
 rant a decree in conformity with this theory ; it is not enough 
 that the proofs are sufficient to justify a decree in conformity 
 with some other theory. (26) 
 
 Decrees Pro Confesso. The only right to make a decree 
 against a defendant who does not appear is derived from the 
 twenty-third section of the Chancery Act, originally enacted 
 in 1846 (Rev. 909, Section 21). Before the statute, the party 
 could be compelled to appear and answer, but until he did 
 appear, no decree could be made that would affect his rights. 
 (27) The power to make a decree pro confesso, conferred by 
 this section, is subject to the limitation thdt when such decree 
 is authorized it shall be equitable and just upon the facts 
 stated in the bill. (28) 
 
 A decree pro confesso may be taken at any time after the 
 time limited for the defendant to plead, answer or demur has 
 expired. It may be taken without notice and as of course, 
 unless it appear that some prejudice will thereby accrue to 
 ■the adverse party. (29) And a decree pro confesso, signed 
 after the time for answering has expired, is regular, though an 
 order for further time to answer be signed and filed on the 
 same day with the signing of the decree. (30) When a cause 
 is set down for hearing on the first day of the term, and the 
 defendant gives notice of hearing of exceptions to the Master's 
 report at a later day in the term, but enters no rule to set 
 down the hearing, and the exceptions are not placed on the 
 calendar and upon the call of the calendar the complainant's 
 counsel tenders himself ready to move the cause, but cannof 
 proceed until the exceptions are disposed of, the complainant 
 is entitled to move at once at the same term, upon the over- 
 ruling of the exceptions, for final decree. (31) But where an 
 
 (26) Marshman v. Conklin, 21 N. J. Eq., 546. 
 
 (27) BrinkerhofF v. Franklin, 21 N. J. Eq., 334-336; Consolidated 
 Electric Company v. Atlantic Trust Co., 50 N. J. Eq., 93; and see 
 Chancery Act, sec. 23, page 26, supra. 
 
 (28) Brinkerhoff v. Franklin, 21 N. J. Eq., 334; Mutual Insurance 
 Company v. Sturges, 32 N. J. Eq., 678; reversed, 33 N. J. Eq., 328; 
 Consolidated Electric Co. v. Atlantic Trust Co., so N. J. Eq., 93. 
 
 (29) Oakley v. O'Neill, 2 N. J. Eq., 287. 
 
 (30) Emery v. Downing, 13 N. J. Eq., 59; Rigley v. Jolley, 36 N. J. 
 Eq., 168. 
 
 (31) Morris v. Taylor, 23 N. J. Eq., 131; Ruckman v. Decker, 28 
 N. J. Eq.. S. 
 
Decrees Pro Confesso. 435 
 
 answer is filed to which there is neither exception nor replica- 
 tion, the cause should be set down for hearing upon bill and 
 answer, and a decree pro confgsso and order of reference can- 
 not be taken except by consent of the defendant. (32) 
 
 Where the cause is conducted and the decree taken at the 
 instance of the defendant, who has answered, his entering the 
 decree is a waiver of his rights, and a consent to such decree. 
 (33) And where complainant takes a rule overruling a 
 demurrer, at a term subsequent to that in which the default 
 in appearing for hearing therof occurs, he must, before he will 
 be entitled to a decree pro confesso, serve a rule on defendant 
 to file his answer. (34) A city made a party to a foreclosure 
 suit, whose lien for taxes is alleged by the bill to be subse- 
 quentjo the mortgage, is concluded by a decree pro confesso 
 taken against it. upon its failure to answer, although the decree 
 was not so taken until after a reference to a Master and report 
 thereon, and the city was not summoned to appear before the 
 Master. (35) 
 
 Enrollment of Decrees. (36) 
 
 Opening and Vacating Decrees. (37) 
 
 Time for taking objections to form of Decree. (38) 
 
 Objiections to costs awarded by Decree. (39) 
 
 When decrees bind lands. (40) 
 
 Effect of decree to convey lands. (41) 
 
 Validity of decree where defendant served by publication. 
 (42) 
 
 (32)' Young V. Young, 17 N. J. Eq., 161. 
 
 (33) Young V. Young, 17 N. J. Eq., 161. 
 
 (34) Nesbit V. St. Patrick's Church, 9 N. J. Eq., 76. 
 
 (35) Newell V. Camden, 40 N. J. Eq., 499; affirmed, ib., 728. 
 
 (36) See Chancery Act, sec. 39 to 43, page 41, supra. 
 
 (37) See "Proceedings to Correct or Vacate Decrees," page 436, 
 infra. 
 
 (38) See Note i to sec. 39 of Chancery Act, page 41, supra. 
 
 (39) See Note i to sec. 39 of Chancery Act, page 41, supra. 
 
 (40) See Chancery Act, sec. 44 and notes, page 43, supra. 
 
 (41) See Chancery Act, sec. 45 and notes, page 45, supra. 
 
 (42) See Chancery Act, sees. 12 and 14, and notes, page 11, supra. 
 
436 Correction and Vacation of Decrees. 
 
 CHAPTER XXVIII. 
 
 PROCEEDINGS TO CORRECT OR VACATE 
 DECREES. 
 
 Amendment of Decrees. It may be laid down as a gen- 
 eral rule that the power of changing and correcting orders and 
 decrees exists in the court, unimpaired by any limitation, so 
 long as the cause remains open and within its jurisdiction.(i) 
 After the case is closed, and even after the decree has been 
 enrolled, mere clerical errors of form or mistakes in the draft- 
 ing of a decree, as distinguished from judicial errors, may be 
 corrected on petition or motion ; this may be done without the 
 formality of a re-hearing, by a correction of the original decree 
 or its enrollment, and without entering a new decree. (2) A 
 final decree may be amended in a material point, after enroll- 
 ment, where the amendment is not a matter as to which there 
 could have been a doubt of the complainant's right to have it 
 made part of the decree if it had been asked for when the 
 decree was entered and the omission to insert it in the decree 
 as a part thereof arose from inadvertance ; but such amend- 
 ment must be made on petition and notice. (3) 
 
 The exercise of the power to amend a decree depends upon 
 whether the amendment is necessary or proper to exprss or 
 effectuate the intention of the court in its decree, and whether 
 the addition or omission asked for is one which the court 
 would have made of course when the decree was signed. (4) 
 So a final decree may be amended even after enrollment by 
 the addition of a clause, necessary to effect the remedy of the 
 complainant under it, which was inadvertently omitted in 
 drawing it. (5) So a decree and execution may be amended 
 by an order directing that the mortgaged premises be sold in 
 
 (i) Lyie V. Staten Island, &c. Co., 62 N. J. Eq., 797. 
 
 (2) Day V. Argus Printing Co., 47 N. J. Eq., 594; Clark v. Hall, 7 
 Paige, 382. 
 
 (3) Jarmon v. Wiswall, 24 N. J. Eq., 68; Dorsheimer v. Rorback, 
 24 N. J. Eq., 33; Jones v. Davenport, 45 N. J. Eq., 77-83; reversed, 
 46 N. J. Eq., 237 ; Lynde v. Lynde, 54 N. J. Eq., 473 ; afHrmed, 55 N. J. 
 Eq., S9I. 
 
 (4) Dorsheimer v. Rorback, 24 N. J. Eq., 33. 
 
 (5) Dorsheimer v. Rorback, 24 N. J. Eq., 33. 
 
Amendment. 437 
 
 a different manner from that directed by such decree and 
 execution, where such amendment cannot in}uriously affect the 
 title acquired by the purchaser at the Sheriff's sale. (6) So 
 an error in the name of a paper (i. e., Long Branch "Times" 
 where it should have been Long Branch "News") in which 
 notice to an absent defendant was directed to be published is 
 amendable after sale under execution. (7) So when a decree 
 made by the Chancellor upon consent of the parties bears 
 date of the day on which his attention was first called to it, 
 but not of the day on which it was actually presented for his 
 signature, it is within the power of the Chancellor to amend 
 the decree so as to state truly the date on which it was actu- 
 ally signed. (8) 
 
 The court will on motion amend a decree so as to conform 
 to its own decision as evidenced by the Chancellor's opinion 
 on file in such court, without a re-hearing. (9) So a decree 
 dated February 13, 1873, and filed on that day, not being in 
 accordance with the opinion of the court, it was ordered that 
 it be taken from the files, and a new one was drawn under 
 specific directions of the then Chancellor. The new decree 
 was presented, not to him, but to his successor in office, by 
 him signed and then filed, and a motion to take the latter 
 decree from the files as improvidently signed was refused. 
 The court, however, indicated that the proper practice would 
 have been to have taken an order directing the latter decree to 
 be filed nunc pro tunc. (10) But provisions in a final decree 
 authorizing either party to appeal to the court for further 
 directions necessary to effectuate the decree or protect the 
 rights of either party does not authorize the striking out of 
 material words in such decree deliberately placed there by the 
 court after due consideration. ( 1 1 ) The Court of Appeals 
 
 (6) The Equitable Life, &c., Co. v. Laird, 24 N. J. Eq., 319; aMrmed, 
 26 N. J. Eq., S3I. 
 
 (7) The Equitable Life &c. Co. v. Laird, 24 N. J. Eq., 319; aMrm^ed, 
 26 N. J. Eq., 531. 
 
 (8) Day v. Argus Printing Co., 47 N. J. Eq., 594. 
 
 (9) Dorsheimer v. Rorback, 24 N. J. Eq., 33 ; but in exercising 
 its power to amend decrees the court will not go beyond making its 
 recorded judgment conform to the judgment which it actually pro- 
 nounced; Jones V. Davenport, 45 N. J. Eq., 77; reversed, 46 N. J. Eq., 
 237- 
 
 (10) Ruckman v. Decker, 27 N. J. Eq., 244. 
 
 (11) Eureka Fire Hose Co. v. Eureka Rubber Manufacturing Co., 
 63 Atl., 870. 
 
438 Correction and Vacation of Decrees. 
 
 cannot amend the recitals of a decree of the court below. 
 If such recitals are not true, appHcation should have been 
 made to the Chancellor to amend the decree according to the 
 facts. (12) 
 
 It is a fundamental rule that although a decree may have 
 been founded upon a misconception of fact, it cannot be 
 challenged collaterally; it must be attacked, if at all, by direct 
 application to the court that made it, or in due course of 
 appellate procedure. (13) 
 
 Proceedings to Open Decrees. Formerly the general rule 
 was that a decree regularly entered and enrolled could not be 
 altered except by bill of review. (14) Where, however, the 
 application to open a final decree is made before the period 
 for appeal has expired, the modern practice of the court is to 
 proceed by petition and order to show cause why a re-hearing 
 should not be granted, and not by bill of review. This pro- 
 cedure simplifies the practice and procures an earlier determi- 
 nation. (15) And the practice of proceeding by petition for the 
 opening of a decree is being more and more favored by the 
 courts. In the case of Kearns v. Kewrns (16), the opinion is 
 expressed that the practice of proceeding in such cases by 
 petition should be encouraged, if not exclusively prescribed. 
 The same view is sanctioned in White v. Smith (17), and in 
 Kelsey v. Dilks.{ 18) 
 
 The principles which control the' court in granting or with- 
 holding relief, however, remain unchanged. So where a bill 
 was filed by the complainant praying that the defendant com- 
 pany be declared insolvent, and that a receiver be appointed, 
 and after the receiver was appointed, the defendant filed a 
 petition setting up new facts and praying that the appoint- 
 ment of the receiver be vacated, it was held that it was not 
 
 (12) Whyte V. Arthur, 17 N. J. Eq., 521-524. 
 
 (13) Cannon v. Wright, 49 N. J. Eq., 17. 
 
 (14) Carpenter v. Muchmore, 15 N. J. Eq., 123; and see "Bill of 
 Review,'' page 238, supra; as to enrollment of decree see Chancery act, 
 sec. 39, et seq., and notes page 41, supra. 
 
 (is) Mutual Life Ins. Co. v. Sturges, 32 N. J. Eq., 678; Jones v. 
 Fayerweather, 46 N. J. Eq., 237; Kearns v. Kearns, 70 N. J, Eq., 483; 
 White V. Smith, 72 N. J. Eq., 697; Boyer v. Boyer, 77 N. J. Eq., 144. 
 
 (16) 70 N. J. Eq., 483-487- 
 
 (17) 72 N. J. Eq., 697-700. 
 
 (18) 72 N. J. Eq., 8134. 
 
Rehearing. ^^39 
 
 necessary to file a bill in the nature of a bill of review to obtain 
 the relief asked for in the petition. (19) And a decree of 
 foreclosure was opened after enrollment, and on motion, on 
 the application of a subsequent mortgagee, for the purpose of 
 charging complainant with a reasonable rent, the prior mort- 
 gage having been assigned to complainant when he was tenant 
 of the premises under the mortgagor, and he having filed his 
 bill to foreclose such prior mortgage, and remained in posses- 
 sion in the meantime. (20) But after the period for appeal has 
 expired, or after an appeal has been taken and the decree 
 affirmed, the Court of Chancery cannot entertain a petition 
 to open a decree pro confesso. Such a decree can be chal- 
 lenged only by a bill of review. (21) 
 
 When Rehearing Allowed — in General. A rehearing in 
 equity rests in the discretion of the court. It is not regarded 
 so much a matter of course by the courts of this country as it 
 is in the English practice, and will not be granted unless the 
 court is ■satisfied from the matter stated in the petition that 
 there is apparent ground for apprehending that an error has 
 been committed or injustice done by the decree, or that there 
 is reason for believing that a further and fuller argument 
 will shed new light upon the controversy or advance the ends 
 of justice. (22) Where an order of the Court of Chancery 
 refusing to open a decree was neither an abuse of discretion 
 nor the result of any imposition practiced upon that court the 
 Court of Errors and Appeals will not review such order for the 
 purpose of substituting its discretion for that of the Court of 
 Chancery. (22a) So where a decree has been taken against a 
 party who had interposed an answer which did not set up the 
 subject matter contained in the petition for opening the decree, 
 it is within the discretion of the Chancellor to open the decree 
 and permit a defense on the merits of such question. ( 23 ) 
 
 (19) Franklin Electric Light Co. v. Fort Wayne Electric Co., 58 
 N. J. Eq., 543; Pierce v. Old Dominion Smelting Co., 67 N. J. Eq., 
 399-416; Townsend v. Smith, 12 N. J. Eq., 350. 
 
 (20) Moore v. DeGraw, 5 N. J. Eq., 346. 
 
 (21) Kelsey v. Dilks, 72 N. J. Eq., 835; Boyer v. Boyer, 77 N. J. 
 Eq., 144. 
 
 (22) N. J. Zinc Co. V. N. J. Franklinite Co., 14 N. J. Eq., 308; Easton 
 V. N. Y. &c. R. R. Co., 24 N. J. Eq., 59; Mulock v. Mulock, 28 N. J. 
 Eq., IS ; Perrine v. White, 36 N. J. Eq., i ; affirmed, ib., 632 ; Williams 
 V. Lowe, 81 Atl., 760. 
 
 (22a) Williams v. Lowe, 81 Atl., 760. 
 
 (23) White V, Smith, 72 N. J. Eq., 697. 
 
440 Correction and Vacation of Decrees. 
 
 A re-hearing will always be granted when it is plain a mis- 
 take either of law or of fact has been made, or injustice has 
 been done ; and even if the order or decree has been partly 
 acted upon or partly executed, this will not constitute an insur- 
 mountable objection to a re-hearing, if manifest error has been 
 committed. (24) But when the ground on which the petition 
 for a re-hearing rests does not affect the merits of the contro- 
 versy, and is not a matter by which the petitioners are or can 
 be aggrieved, and when its only effect, if maintained, would be, 
 not to decide the matter in controversy, but to turn the com- 
 plainants out of court as improper parties, leaving the contro- 
 versy undecided, the application will be denied. (25) 
 
 A final decree will not be opened to let in a defense where 
 from the affidavit submitted it appears that the evidence to 
 sustain such defense would be insufficient to overcome that 
 on which the decree was founded. (26) So a re-hearing will 
 not be ordered unless some special reason therefor be shown, 
 other than the desire of the defeated party to try the cause 
 over again. (27) A litigant who has had a fair trial with the 
 aid of counsel of his own selection, and a full opportunity to 
 prove his claim or defense, should, as a general rule, be 
 required to accept the result as final, unless he can show in 
 appellate proceedings that on the case as made injustice has 
 been done or error committed. (28) 
 
 Errors and Mistakes of Counsel. Error of judgment or 
 mistake of law by counsel has never been esteemed sufficient 
 reason for granting a new trial. More than 150 years ago a 
 judge of the Queen's Bench said, "The mistake of the judge 
 or jury is good cause for a new trial, but I never yet heard 
 that the mistake of counsel was so," and Lord Ellenborough, 
 in Hall v. Stothard (29), said, "The client must be bound by 
 the conduct of his counsel, otherwise there would be no end 
 
 (24) Brumagin v. Chew, 19 N. J. Eq., 337; Easton v. N. Y. &c. 
 R. R. Co., 30 N. J. Eq., 236; reversed, ib., 725. 
 
 (25) N. J. Zinc Co. V. N. J. Franklinite Co., 14 N. J. Eq., 308. 
 
 (26) Hoagland v. Titus, 16 N. J. Eq., 44; Morris v. Hinchman, 32 
 N. J. Eq., 204. 
 
 (27) Richardson v. Hatch, 68 N. J. Eq., 788. 
 
 (28) Warner v. Warner, 31 N. J. Eq., S49-SSI- 
 
 (29) 2 Chit., 268. 
 
Rehearing. 441 
 
 of applications to the court for new trials. Where the parties 
 wish one course to be adopted, and counsel take another, the 
 parties must nevertheless abide by the acts of their counsel, 
 however contrary to their wishes." (30) Hence if a solicitor, 
 in the exercise of his judgment and in good faith, does not 
 offer evidence which his client urged him to put in tlie case, 
 his failure to do so is not ground for a re-hearing. (31) 
 
 A court of equity will not grant a re-hearing because of an 
 error of judgment or mistake of law by counsel as to the 
 pertinency or force of certain evidence. (32) So on a credi- 
 tor's bill to set aside a conveyance as fraudulent, the grantor 
 and grantee answered, but only the former testified, and there 
 was a decree for complainant; on application for a re-hearing, 
 the grantor alleged that she could not remember the facts of 
 the transaction, and that her counsel told her it would not be 
 of any use to send for the grantee, and it was held not to be 
 ground for a re-hearing. (33) But a decree rendered against 
 the complainant was opened upon its appearing that the cause 
 had been submitted to the court by the counsel of the com- 
 plainant under the misapprehension that a replication had been 
 filed. (34) 
 
 In Day v. Allaire (35), the court distinguished between a 
 case where the solicitor erred in judgment merely in conduct- 
 ing the cause and one where cumulative evidence only was 
 excluded, and the refusal and neglect on the part of a solici- 
 tor to present to the court most important testimony, both 
 oral and written, which might have had a controlling weight 
 in the mind of the court ; and held that in such case the with- 
 holding of such testimony was a surprise and fraud upon the 
 rights of the defendants! and that they were, therefore, under 
 such circumstances entitled to a re-hearing. So where the 
 insufficiency of proof is due to the inadvertence of counsel, a 
 
 (30) Warner v. Warner, 31 N. J. Eq., S49-SSI; McDowell v. Per- 
 rine, 36 N. J. Eq., 632. 
 
 (31) Patterson v. Read, 43 N. J. Eq., 18; reversed, 44 N. J. Eq., 211. 
 
 (32) Warner v. Warner, 31 N. J. Eq., S49. SSi ; McDowell v. Per- 
 rine, 36 N. J. Eq., 632; White v. Smith, 72 N. J. Eq., 697. 
 
 (33) Perrine v. White, 36 N. J. Eq., i ; affirmed, ib., 632. 
 
 (34) Gaskill V. Sine, 13 N. J. Eq., 130. 
 
 (35) 31 N. J: Eq., 303. 
 
442 Correction and Vacation of Decrees. 
 
 cause may be ordered to stand over after final hearing for the 
 purpose of supplying the additional proof. (36) 
 
 Newly Discovered Evidence. By the long established 
 practice of the Court of Chancery the introduction of new 
 testimony as to matters in issue would not be permitted after 
 publication passed, except to prove an exhibit or the like. 
 This rule was founded on the public policy of suppressing 
 perjury and preventing the fabrication of evidence in a 
 cause after the full bearing and weight of the testimony was 
 understood by the parties; but by the methods of modern 
 practice in equity, the testimony is fully known to the parties 
 as it is put in, and they are apprised of its qualities and 
 character, its weakness or its strength, and its bearing on the 
 case before publication quite as completely as they would be 
 in a trial at law. This consideration deprives the rule itself 
 of much of its force in modern application; and again, when 
 the nisi prius character of the trial of causes before a Vicei- 
 Chancellor is considered, there is absolutely no ground for 
 the application to the subject in connection with such trials of 
 a different rule from that which would govern it at law. (37) 
 
 In determining whether the proofs should be opened, in a 
 cause tried before a Vice-Chancellor by the oral examination 
 of witnesses, the court is governed by the same rules that the 
 law courts apply to applications for new trials. The court 
 will open the proofs before argument upon the discovery of 
 new and material evidence, provided it is shown that the 
 appHcant could not have discovered the new matter by the 
 exercise of reasonable diligence before the proofs were 
 closed. (38) There is no universal and absolute rule which 
 prohibits the court from allowing the introduction of newly 
 discovered evidence of witnesses to facts in issue in the cause, 
 even after the hearing; but the allowance of it is not a matter 
 of right in the party, but of sound discretion in the court, to 
 be exercised cautiously and sparingly, and only under circum- 
 
 < 
 
 (36J) Sharp V.' Wyckoff, 39 N. J. Eq., 95 ; and see "Grounds for 
 opening decree pro confesso," page 444, infra. 
 
 (37) Mulock V. Mulock, 28 N. J. Eq., 15; Main v. Main, 50 N. J. 
 Eq., 712. 
 
 (38) Mulock V. Mulock, 28 N. J. Eq., 15; Warner v. Warner, 31 
 N. J. Eq., 549-551; Main v. Main, 50 N. J. Eq., 712; Feinberg v. 
 Feinberg, 70 N. J. Eq., 420; affirmed, 65 Atl., 1117. 
 
Decrees Pro Confesso. 443 
 
 stances which demonstrate it to be indispensable to the merits 
 and justice of the cause. (39) 
 
 In order to justify a re-hearing on the ground of newly dis- 
 covered evidence, the new matter must be of such a character 
 that, if it had been heard, it would probably have altered the 
 result. (40) A rehearing will not be granted to enable the 
 applicant to introduce testimony impeaching the credibility of 
 witnesses who testified on the original hearing. (41) So after 
 proofs have been taken before a Vice-Chancellor in open court, 
 and the case has been duly considered and his opinion ren- 
 dered, it will not be re-opened upon the application of peti- 
 tioner to introduce additional evidence corroborating his wit- 
 nesses and contradicting defendants as to collateral facts. (42) 
 A re-hearing will not be granted if the evidence to be offered 
 is merely cumulative. (43) 
 
 But the rule, that neither a court of law nor of equity will 
 relieve, where the newly discovered facts are merely cumula- 
 tive or corroborative, admits of exception where such evi- 
 dence will make plain and certain that which before was 
 mysterious and doubtful. (44) And if the newly discovered 
 evidence is of a kind and character different from that adduced 
 on .the trial, it will not be liable to the objection that it is 
 cumulative. (45) A petition to open a final decree must be 
 brought within the time allowed for an appeal where the com- 
 plainant has been under no disability during that period. (46) 
 
 Power of Court to Vacate; Decrees Pro Confesso. It is 
 well settled that the Court of Chancery has discretionary 
 power, even after enrollment, to open a regular decree obtained 
 by default, for the purpose of giving the defendant an opportu- 
 nity to make a defense, where such defense is meritorious, 
 
 (39) Mulock V. Mulock, 28 N. J. Eq., 15. 
 
 (40) Richardson v. Hatch, 68 N. J. Eq., 788; Feinberg v. Feinberg, 
 70 N. J. Eq., 420; affirmed, 65 At!., 1117. 
 
 (41) Feinberg v. Feinberg, 70 N. J. Eq., 420; affirmed, 6$ At!., 1117. 
 
 (42) Main v. Main, 50 N. J. Eq., 712. 
 
 (43) Mulock V. Mulock, 28 N. J. Eq., 15; McDowell v. Perrine, 
 36 N. J. Eq., 632; Main v. Main, 50 N. J. Eq., 712. 
 
 (44) Mulock V. Mulock, 28 N. J. Eq., 15. 
 
 (45) Mulock V. Mulock, 28 N. J. Eq., 15; Corkery v. C. R. R. of 
 N. J., 43 Atl., 6ss. 
 
 (46) Cook V. Weigley, 69 N. J. Eq., 837; Kelsey v. Dilks, 72 N. 
 J. Eq., 834; Sparks v. Fortescue, 75 N. J. Eq., 586; Boyer v. Boyer, 
 n N. J. Eq., 144. 
 
444 Correction and Vacation of Decrees. 
 
 and such defendant has been deprived of it either by fraud, 
 mistake, accident or surprise. (47) The opening of such a 
 decree rests in the sound discretion of the court, and mere 
 lapse of time will not prevent such action where there are no 
 intervening rights, or where such rights, if any, will be pro- 
 tected. (48) 
 
 Grounds for Opening Decrees ; Pro Confesso. Great lib- 
 eifality has been exercised in the opening and correcting of 
 decrees before enrollment, and even afterwards where the 
 decree has been taken pro confesso, for the purpose of rectify- 
 ing a mistake apparent upon the face of the proceeding, or 
 where there is a clear case of surprise and merits. (49) So a 
 final decree, though enrolled and execution issued thereon, 
 will be opened for the purpose of correcting a plain and gross 
 mistake in the Master's report, although the defendant demurr- 
 ed to the bill and, after demurrer overruled, suffered the bill 
 to be taken as pro confesso, and an ex parte report to be made 
 against him. (50) So where the report of the Master is for a 
 larger sum than seems to be equitably due, a decree taken pro 
 confesso will be opened, though defendant, a trustee, had 
 repeatedly, during a period of over two years, refused or 
 neglected to comply with an order of the court directing him 
 to answer. (51) 
 
 To justify the court in opening a decree pro confesso, it is 
 not necessary that defendants satisfy the court that their 
 defense will be successful. It is suflScient if they show that 
 
 (47) Emery v. Downing, 13 N. J. Eq., 59; Williamson v. Sykes, 13 
 N. J. Eq., 82; Carpenter v. Muchmore, 15 N. J. Eq., 123; Brinkerhoff 
 V. Franklin, 21 N. J. Eq., 334; Embury v. Bergamini, 24 N. J. Eq., 227; 
 Van Deventer v. Stiger, 25 N. J. Eq., 224; Miller v. Wright, 25 N. J. 
 Eq., 340; Cawley v. Leonard, 28 N. J. Eq., 467; Day v. Allaire, 31 
 N. J. Eq., 303; Mutual Life Ins. Co. v. Sturges, 32 N. J. Eq., 678; 
 reversed, 33 N. J. Eq., 328; Consolidated Elec. &c. Co. v. Atlantic Trust 
 Co., so N. J. Eq., 93; Richardson v. Richardson, 67 N. J. Eq., 437; 
 Kearns v. Kearns, 70 N. J. Eq., 483; White v. Smith, 72 N. J. Eq., 
 697; Boyer v. Boyer, 77 N. J. Eq., 144. 
 
 (48) Crawley v. Leonard, 28 N. J. Eq., 467; White v. Smith, 72 
 N. J. Eq., 697. 
 
 (49) Emery v. Downing, 13 N. J. Eq., 59; Carpenter v. Muchmore, 
 IS N. J. Eq., 123; Chancery act, sec. 23, and notes, page 26, supra, as 
 to opening decree pro confesso taken against an absent defendant, 
 see Chancery act, sec. 18, page 21, supra, as to enrollment of decree, see 
 Chancery act, sec. 39, and notes page 41, supra. 
 
 (so) Miller v. Rushforth, 4 N. J. Eq., 174. 
 (51) Williamson v. Sykes, 13 N. J. Eq., 182. 
 
Decrees Pro Confesso. 445 
 
 there is sufficient doubt respecting the justice of the present 
 decree to make the facts upon which the defense rests the fit 
 subject of judicial investigation. (52) So an interlocutory- 
 decree in foreclosure, and all proceedings subsequent thereto, 
 may be set aside, even after deed delivered, by an order made 
 in the original cause, either for impropriety in the sale or for 
 the purpose of letting in a defense to the action. (53) So an 
 enrollment will be vacated and a decree opened when the 
 decree has been made unjustly against a right or interest that 
 has not been heard or protected, and when this has been done 
 without the laches or fault of the party who applies. (54) So 
 a decree founded on a bill which shows no right of action in 
 the complainant against the defendant in respect to the sub- 
 ject matter of the suit is invalid, and may be opened at any 
 subsequent time in order to prevent fraud or mistake. (55) 
 
 Where, however, a defendant intentionally neglects to make 
 a defense within the time prescribed by law, his appHcation to 
 set aside a final decree in order to let him in to defend is 
 addressed to the extreme favor of the court, and will not be 
 granted unless he shows that he has an equitable defense rest- 
 ing in the clearest equity. (56) So where a party has had 
 notice of the suit, has consulted counsel, and has had an 
 opportunity of making his defense, and has neglected to do 
 so, the decree against him will not be opened on the ground of 
 surprise. (57) And so where a Sheriff returns, a subpoena 
 "served," an affidavit of a defendant not denying that he was 
 served with a ticket, but merely asserting that he believes that 
 he was served with an ordinary subpoena only, and that he had 
 no knowledge or information that the bill prayed a decree for 
 deficiency against him, is not sufficient to set aside such decree 
 regularly entered on a decree pro confesso. (^8) 
 
 (52) Day V. Allaire, 31 N. J. Eq., 303, 317; Mutual Life Ins. Co. v. 
 Sturges, 32 N. J. Eq., 678; reversed, 33 N. J. Eq., 328. 
 
 (53) Mutual Life Insurance Co. v. Sturges, 33 N. J. Eq., 328. 
 
 (54) Brinkerhoff v. Franklin, 21 N. J. Eq., 334-336; Cawley v. 
 Leonard, 28 N. J. Eq., 467; Mutual Life Ins. Co. v. Sturges, 33 N. J. 
 Eq., 328. 
 
 (55) Consolidated Electric Storage Co. v. Atlantic Trust Co., Jo 
 N. J. Eq., 93- 
 
 (56) Boynton v. Sanford, 28 N. J. Eq., 184; affirmed, ib., 592; Warn- 
 er V. Warner, 31 N. J. Eq., 549. , 
 
 (57) Miller v. Hild, 11 N. J. Eq., 25. 
 
 (58) Mulford V. Reilly, 32 N. J. Eq., 419. 
 
446 Correction and Vacation of Decrees. 
 
 In order to open a decree regularly entered, it is necessary 
 that it appear that the defendant has some good defense, and 
 what that defense is. (59) So a decree will not be opened on 
 the unsupported affidavit of a defendant reciting that the com- 
 plainant verbally agreed not to prosecute the action. (60) So 
 on an application by a married woman to open a decree fore- 
 closing a mortgage given by her to permit the defense that 
 the mortgage was made to secure a loan to her husband to 
 carry on an illegal business, a mere statement in her affidavit 
 that the money was advanced to fix up premises for gambling 
 purposes, without any explicit allegation by any affiant that 
 the gambling business was ever carried on, is an insufficient 
 showing. (61) So a decree suffered by default, without valid 
 excuse, should not be opened, even though strictly there may 
 be a defense, if to permit the decree to stand will work no 
 injustice. (62) 
 
 An application to open a final decree and to be heard upon 
 the merits will be refused, when it does not appear that the 
 enforcement of the decree would work injustice, and the 
 defendant has wilfully ignored the proceedings in the cause 
 and the obligations resting upon him as defendant therein. (63) 
 So where the defendant's solicitor in a foreclosure suit obtained 
 an order extending the time for answering, and filed his answer 
 (setting up usury) within the time limit, but did not serve 
 the order on complainant's solicitor, who entered a decree pro 
 confesso after the original time for answering had expired, 
 and all the subsequent proceedings in the case were had with- 
 out his knowledge of the existence of such order or answer, 
 and it appeared that the purchaser of the property had expended 
 on it for necessary repairs and taxes over $100.00 since he 
 bought it at the Sheriff's sale, it was held that under the cir- 
 cumstances it would not be a proper exercise of discretion 
 to set aside the sale and open the decree. (64) 
 
 A decree and execution regularly obtained will not set aside 
 unless upon satisfactory proof, not merely of vague under- 
 
 (59) Disbrow v. Johnson, 18 N. J. Eq., 36; Hudson Trust Co. v. 
 Boyd, 84 All., 715. 
 
 (60) Marsh v. Lasher, 13 N. J. Eq., 253. 
 
 (61) Hallowell v. Daly, 56 At!., 234. 
 
 (62) Avon Land &c. Co. v. Finn, 56 N. J. Eq., 805. 
 
 (63) Freese v. Swayze, 26 N. J. Eq., 437. 
 
 (64) Wrigley v. Jolley, 36 N. J. Eq., 168. 
 
Decrees Pro Confesso. 447 
 
 standings and of reasonable inferences, but of facts and cir- 
 cumstances which make it clearly inequitable and unjust that 
 they should be enforced. (65) So a decree of foreclosure will 
 be opened, and a petitioner, who is the equitable owner of the 
 mortgaged premises, will be let in to defend, where it appears 
 that the complainant is attempting to foreclose the mortgage 
 against the holder of the legal title only, with the knowledge 
 at the time the bill of complaint was filed that the petitioner 
 was 'the equitable owner, and with the further knowledge 
 that the mortgage itself had been assigned to the complainant 
 in breach of the purpose for which it was created 'and held 
 by the mortgagee. (66) But upon an application to open a 
 default decree to permit a defendant to answer, if it appears 
 upon an examination of the proposed answer that it contains 
 no valid ground of defense, the decree will not be opened. (67) 
 
 Where the only allegation of surprise is that the defendant 
 is unacquainted with the proceedings ef the Court of Chahcery, 
 but in some way got the impression that he would have a 
 longer period in which to file his answer than that allowed by 
 law, this is not a sufficient case of siirprise. It was his duty 
 to inquire as to his rights; if he negligently relied on his mis- 
 taken impression, he incurred the hazard of his default in not 
 answering. (68) So a decree will not be opened to permit a 
 defendant to show that he is not personally liable in the suit 
 when no personal liability attaches to him by the decree as 
 made and none can attach without amending the decree. (69) 
 But the equitable owner of mortgaged premises, who is non- 
 resident and was not' served with process, and who applies to 
 open the final decree of foreclosure, is not in the attitude of a 
 party served with process against whom a decree has inad- 
 vertently been permitted to be entered. There is as to him 
 no need of proving surprise and merits. (70) 
 
 (6s) Terhune v. Colton, 12 N. J. Eq., 312. 
 
 (66) Consolidated National Bank v Larkins, 66 N. J. Eq., 226. 
 
 {(fj) Emery v. Downing, 13 N. J. Eq., 59. 
 
 (68) Carpenter v. Muchmore, 15 N. J. Eq., 123. 
 
 {d^') Embury v. Bergamini, 24 N. J. Eq., 227. 
 
 (70) Consolidated National Bank v. Larkins, 66 N. J. Eq., 226. 
 
448 Opening and Vacating Decrees. 
 
 Mistake or error of judgment of counsel is no ground for 
 opening a decree pro confesso.(yi) But where the solicitor 
 for defendant abandoned the case without the knowledge or 
 consent of the defendant, omitting and refusing to take the 
 testimony of several material witnesses, and did not present the 
 evidence taken or argue the cause before the Chancellor, 
 although his fees, costs and charges were paid, and by such 
 neglect the complainant's case alone was heard, the decree 
 was opened to permit a meritorioits defense. (72) 
 
 The misapprehension of defendant's solicitor as to his duty 
 to file an* answer, is, in itself, no ground for relief. (73) But 
 a decree for divorce for desertion will be opened and the 
 defendant allowed to answer, where the complainant's case 
 was weak, and the defendant's failure to answer was due to 
 the negligence or misfortune of her counsel, even if the defend- 
 ant was in laches and was willing for a price, to allow the 
 complainant to obtain a decree to which she believed he was 
 not entitled, (74) 
 
 Where the defendant asks that a decree be opened in order 
 to enable him to defend, neither a court of law nor of equity 
 will grant the request if the defense rests on the ground of 
 usury. (75) And when a defendant has failed to file his 
 pleadings within the time required by law and by the rules 
 and practice of the Court of Chancery, and a decree pro 
 confesso has been entered, he cannot, under an order opening 
 the decree to permit him to answer, file a demurrer to the bill 
 of complaint. (76) 
 
 Effect of Laches. Laches, although not always fatal to 
 an application to open a chancery decree or to an appeal from 
 a refusal to open such a decree, are nevertheless to be con- 
 sidered. (77) So a decree will not be opened on the applica- 
 tion of the defendant five and one-half years after the decree 
 
 (71) McDowell V. Perrine, 36 N. J. Eq., 632; and see "Errors 
 and Mistakes of Counsel," page 440, supra. 
 
 (72) Day V. Allaire, 31 N. J. Eq., 303. 
 
 (73) Vanderbeck v. Perry, 30 N. J. Eq., 78; but see "Errors and 
 mistakes of counsel," page 440, supra. 
 
 (74) Richardson v. Richardson, 67 N. J. Eq., 437. 
 
 (75) Marsh v. Lasher, 13 N. J. Eq., 253; Roberts v. Birgess, 20 
 N. J. Eq., 139. 
 
 (76) Hand v. Hand, 60 N. J. Eq., 519. 
 
 (77) Avon-by-the-Sea Land Co. v. Finn, 56 N. J. Eq., 805. 
 
Practice. -449 
 
 was made and four and one-half years after it came to the 
 knowledge of the defendant, upon the ground of the pecuni- 
 ary inability of the defendant to make the application at an 
 earlier day. (78) So a defendant's application to open a 
 decree after he had known of it for at least nine months, on 
 the ground that he had been inveigled into signing a request 
 to a solicitor to enter his appearance to the suit, was held to 
 be barred by laches. (79) And a party who has been served 
 with process in a suit and failed to appear, and afterwards 
 was present at the sale made under the decree, will not, in the 
 absence of a sufficient excuse for such conduct, be entitled to 
 have the decree opened. (80) 
 
 Practice. Application to open a decree for the purpose 
 of amending the same or for a re-hearing should be by petition, 
 which should set forth the grounds relied on for amending 
 the decree or the new facts or newly discovered evidence of 
 facts which at the hearing were unknown to the party, and 
 which could not have been known by the exercise of ordinary 
 diligence prior to the closing of the defense upon which the 
 application for a re-hearing is based. A decree will not be 
 opened if the evidence to be offered is merely cumulative. (81) 
 The chancery rules provide that every petition for a re-hearing 
 shall set out concisely the special matter or cause on which 
 such re-hearing is applied for, and shall be signed by two 
 counsel, except in cases submitted without argument, when it 
 shall be sufficient if signed by one counsel ; and if a re-hearing 
 is ordered, the party who complains of the decree or order and 
 applies to have it corrected shall be entitled to open and close 
 the argument. (82) A copy of every petition for a re-hearing 
 shall be served on the opposite party, with a notice of present- 
 ing the same. (83) If a petition for re-hearing shall be pre- 
 sented to the Chancellor before a final decree shall have been 
 settled upon application, or within ten days after filing any 
 
 (78) Robertson v. Miller, 3 N. J. Eq., 451. 
 
 (79) Embury v. Klemm, 30 N. J. Eq., 517; affirmed, 31 N. J. Eq., 
 797. 
 
 (80) Hall V. Urquhart, ii N. J. Eq., 318. 
 
 (81) McDowell V. Perrine, 36 N. J. Eq., 632; Jarmon v. Wiswall, 
 24 N. J. Eq., 68; Lynde v. Lynde, 54 N. J. Eq., 473; affirmed, 55 N. J. 
 Eq., 591. 
 
 (82) Chancery Rule, 143. 
 
 (83) Chancery Rule, 144. 
 
450 Opening and Vacating Decrees. 
 
 final decree not settled on application, and a caveat against 
 enrolling and signing the same shall be filed with the clerk 
 of the court, such final decree shall not be enrolled and signed, 
 or any process issued thereon, until the said application shall 
 be finally disposed of. (84) In all cases submitted by the con- 
 sent of parties without argument, a re-hearing shall be granted 
 of course, if either party is dissatisfied with a decree or order 
 made in such case, and shall apply therefor within ten days 
 after such decree or order shall be made. (85) A petition 
 to vacate a default decree should be accompanied by specific 
 affidavit setting forth in detail all the evidence on which the 
 petitioner relies, and on the return of the Order to Show 
 Cause counter affidavits may be read. (86) No order for a re- 
 hearing shall stay proceedings on any interlocutory decree Or 
 order unless by the special direction of the court. (87) 
 
 A re-hearing of a decree signed upon the advice of a Vice- 
 Chancellor may be had in the same manner and upon the 
 same terms as in cases heard by the Chancellor; but no 
 re-hearing shall be ordered as to conclusions of fact, unless 
 the Vice-Chancellor who advised the decree (unless otherwise 
 ordered) shall certify that, in his opinion, the questions 
 involved, or some of them, should be again heard upon the 
 evidence. (88) Before the introduction of Vice-Chancellors, 
 an application for a re-hearing was made directly to the 
 Chancellor, and was dealt with by him on equitable princi- 
 ples, and the practice was regulated by rules . of the court. 
 Since Vice-Chancellors have been made trial judges, the prac- 
 tice, on application for a re-hearing of causes in which decrees 
 have been signed on the advice of a Vice-Chancellor, is, in 
 ordinary cases, to apply for a re-hearing to the Vice-Chan- 
 cellor who has advised the decree. Such an application will 
 be entertained by the Chancellor only in exceptional cases. 
 In Swallow v. Szmllow (89), the Chancellor heard an applica- 
 tion in a cause in which the decree had been advised by Vice- 
 Chancellor Dodd, who had resigned; and in Rusling v. Brav 
 
 (84) Chancery Rule, 145. 
 
 (83) Chancery Rule, 146. 
 
 (86) Boyer v. Boyer, 77 N. J. Eq., 144. 
 
 (87) Chancery Rule, 147. 
 
 (88) Chancery Rule, 148. 
 
 (89) 27 N. J. Eq., 278. 
 
Practice. 451 
 
 (90), special reasons were held to justify the Chancellor in 
 hearing the appHcation.(9i) A qyestion of fact is not review- 
 able on the re-hearing before the Chancellor of a decree 
 advised by a Vice-Chancellor, unless the latter certify that it 
 should be re-heard upon the evidence. (92) 
 
 Proceedings on Re-Hearing. An application for a re- 
 hearing before a Vice-Chancellor is governed by principles 
 applicable to motions for new trials after verdict in cases at 
 law. (93) On a petition and order for re-hearing generally 
 the whole case is open, and the party supposing himself 
 aggrieved has a right to insist on a re-consideration of any 
 part of it. (94) 
 
 Costs. Where complainant's proceedings in obtaining a 
 decree pro confesso are regular, an order opening the decree 
 is only granted on the payment of costs. (95) But where a 
 sole defendant resided out of the state, and no foreign publi- 
 cation was ordered or notice given to the defendant, costs 
 on opening the decree were ordered to abide the event of the 
 suit. (96) 
 
 Appeal. An appeal will lie from an order granting or 
 denying a petition to open a decree, either by the parties to 
 the suit, or by the purchaser at a sale pursuant to the terms 
 of' such decree. (97) So an order denying an application to 
 open a decree for the purpose of permitting defendant to 
 interpose a defense is an appealable order. (98) 
 
 (90) 38 N. J. Eq., 398. 
 
 (91) PuIIen V. Pullen, 41 N. J. Eq., 417; Gregory v. Gregory, 67 
 N. J. Eq., 7-12; and see "Vice-Chancellors," page yj, supra. 
 
 (92) Swallow V. Swallow, 27 N. J. Eq., 278. 
 
 (93) Feinberg v. Feinberg, 70 N. J. Eq., 420; affirmed, 65 Atl, 1117. 
 
 (94) Glover V. Hedges, I N. J. Eq., 113. 
 
 (95) Oram v. Dennison, 13 N. J. Eq., 438. 
 
 (96) Oram v. Dennison, 13 N. J. Eq., 438. 
 
 (97) Mutual Life Ins. Co. v. Sturges, 33 N. J. Eq., 328. 
 
 (98) Day V. Allaire, 31 N. J. Eq., 303; Mutual Life Insurance Co. 
 V. Sturges, 33 N. J. Eq., 328; Read v. Paterson, 44 N. J. Eq., 211. 
 
452 Contempts. 
 
 CHAPTER XXIX. 
 CONTEMPTS. 
 
 Nature of Contempt Proceedings. Proceedings for con- 
 tempt are of two kinds: First, to punish contemptuous con- 
 duct committed in the presence of, or with respect to the 
 authority or dignity of the court. Second, as a method of 
 affording rehef inter partes. The first is a proceeding of a 
 criminal nature instituted by the ' court of its own motion, 
 heard by it in a summary manner, and punishable by imprison- 
 ment until the contempt be purged or by a fine payable to the 
 state. The second is set on foot at the instance of parties 
 aggrieved. Such a proceeding is remedial in its nature, and 
 the relief afforded is by imprisonment until the party adjudged 
 in contempt does justice to his adversary. An adjudication 
 of the class first mentioned is not appealable or reviewable 
 upon the merits. If the court in its discretion has power to 
 punish for contempt, its decision is final and conclusive. But 
 where the proceeding is taken in the name of and at the 
 instance of parties, the adjudication of contempt is appealable. 
 
 The decisions establishing this distinction between the two 
 classes of contempt proceedings may be summarized in these 
 propositions : First, where the proceeding for contempt is 
 remedial in its nature, either party aggrieved by the order of 
 the court may appeal. Second, where the proceeding for con- 
 tempt is remedial in its nature and also involves punitory 
 consequences, the party aggrieved may appeal. Third, where 
 the proceeding for contempt is purely for the purpose of 
 punishing the contemnor, no appeal therefrom lies by either 
 party.(i) This was the rule as established by the decisions 
 prior to the enactment in 1909 of the act providing that when- 
 ever any person or corporation has been found guilty of a 
 contempt for acts done elsewhere than in the presence of 
 the court, an appeal will lie from such adjudication. (2) 
 
 Disobedience to Order or Decree. Disobedience of or 
 an attempt to prevent the execution of an order or decree of 
 
 (i) Dodd V. Una, 40 N. J. Eq., 672; Thompson v. Pa. R. R., 48 
 _ N. J. Eq., 105 ; Frank v. Herold, 64 N. J. Eq., 371. 
 
 (2) P. L., igog, p. 270; I Comp. Stat, p. 452, sec. 113a, and see 
 "Appeal" page 470, infra. 
 
Disobedience of Order. 453 
 
 the court is an interference with or an attempt to obstruct 
 the due administration of justice, and is, therefore, a con- 
 tempt. Thus where a partner agreed to a division of partner- 
 ship property and afterwards refused to execute such agree- 
 ment, and was enjoined from disposing of the partnership 
 property, the mere separation of the property and his having 
 it in his possession did not relieve him from an attachment 
 for contempt in selling it and taking the proceeds to his own 
 use. (3) So where a County Collector was enjoined from pay- 
 ing and the County Clerk from receiving any salary claimed 
 under an act alleged to be unconstitutional, and thereupon the 
 Board of Freeholders passed a resolution that the Clerk should 
 be paid a sum the precise equivalent of his claim under the act, 
 this was held to be an evasion, and therefore, a violation of 
 the injunction, for which an attachment for contempt would 
 issue. (4) Where the president of a bank violates the order 
 of the court directing what securities should be taken for 
 loans of the bank funds, he will be punished for contempt even 
 though the bank sustained .no pecuniary loss from such viola- 
 tion. (5) So where one in possession of a mill is restrained 
 from removing fixtures therefrom, and it is shown that he 
 has removed several of the fixtures from the building and 
 moved others from their accustomed places and rendered the 
 mill unusable, he is in contempt. (6) And service of a notice 
 of trial is a breach of an injunction staying proceedings in an 
 action at law. (7) It is no sufficient reason for disregarding 
 an injunction to restrain a suit that in the writ of injunction 
 served the suit restrained is described as one in which E. M. 
 alone is a party, when in reality E. M. and wife are concerned, 
 there being sufficient identification of the suit. (8) 
 
 The provisions of Sections 44 and 46 of the Chancery Act 
 (9), have given to decrees of the Court of Chancery directing 
 the payment of a sum of money by one person to another the 
 force, operation and effect of a judgment at law in the Supreme 
 
 (3) Fitzgerald v. Christl, 20 N. J. Eq., 90. 
 
 (4) Gibbs V. Morgan, 39 N. J. Eq., 79. 
 
 (5) Una V. Dodd, 39 N. J. Eq., 173; reversed, 40 N. J. Eq., 672. 
 
 (6) Ashby V. Ashby, 62 N. J. Eq., 618. 
 
 (7) Clark V. Wood, 6 N. J. Eq., 458. 
 
 (8) Endicott v. Mathis, 9 N. J. Eq., no. 
 
 (9) See pages 43 and 46, supra. 
 
454 Contempts. 
 
 Court. The effect of this legislation is to do away with the 
 process of contempt as a method of enforcing decrees for 
 the payment of moneys due upon contracts between the parties 
 in cases where no special equities exist, and to substitute 
 therefore sequestration of the defendant's estate, the writ of 
 ■fieri facias against his real and personal property, and, in cases 
 of fraud, the writ of capias against his person. (lo) So a 
 final decree solely for payment of money declared to be due 
 on contract will not be enforced by attachment for contempt 
 unless special equities of fraudulent conduct requiring the use 
 of this remedy be shown to exist.(ii) And so a decree 
 of the Court of Chancery for the enforcement of a contract 
 by the defendant to pay a certain sum weekly to his wife can- 
 not be enforced by an attachment for contempt. (12) 
 
 Service of Order. The regular way to serve an order of 
 the Court of Chancery is by leaving with the party a copy 
 thereof certified by the Clerk. A party will not be in con- 
 tempt by reason of a refusal to obey an order not so served, 
 unless it has beeen served in accordance with a special order 
 of the court. (13) So to effect a regular service of an injunc- 
 tion, the writ itself under the seal of the court must be shown 
 to the party against whom it issues, and a true copy thereof 
 delivered to him. (14) But personal service of an injunction 
 will be dispensed with where the party is out of the state, or 
 cannot be found. The modern practice is for the court by 
 special order to dispense with personal service, where the 
 defendant avoids the service of the writ, or where other 
 circumstances render such order necessary or proper. (15) 
 So where an order requiring defendant to pay alimony and 
 counsel fee cannot be served upon him personally because he 
 absents himself from the state, service upon his solicitor is 
 sufficient to make him guilty of contempt if he disobey the 
 order. (16) 
 
 It seems to be well settled that it is a matter of no conse- 
 quence how the fact of the issuing of an injunction is brought 
 
 (10) Aspinwall v. Aspinwall, 53 N. J. Eq., 684. 
 
 (11) Walton V. Walton, 54 N. J. Eq., 607. 
 
 (12) Aspinwall v. Aspinwall, 53 N. J. Eq., 684. 
 
 (13) Perrine v. Broadway Bank, S3 N. J. Eq., 221. 
 
 (14) Haring v. Kauffman, 13 N. J. Eq., 397. 
 
 (15) Haring v. Kauffman, 13 N. J. Eq., 397. 
 
 (16) Fairchild v. Fairchild, 13 Atl., 599. 
 
Misconduct of Witnesses. 455 
 
 to the knowledge or notice of the defendant. If he has notice 
 or knowledge of it, his conscience is bound, and he is liable to 
 the consequences of its breach to the same extent as if it had 
 been actually served upon him iu writing. (17) So a notice by 
 telegraph of the granting of an injunction is sufficient to 
 place the party disregarding such notification in contempt, 
 provided such notice proceeded from a source entitled to 
 credit, and informed the defendant clearly and plainly of the 
 act from which he must abstain. (18) 
 
 Interference with Property in Custody of Law. Any in- 
 terference with property or persons in the custody of the 
 law is contempt. As a receiver is an officer of the court, and 
 his possession is the possession of the court, taking property 
 from the possession of a receiver without leave of the court 
 is contempt of court, and punishable as such. (19) 
 
 Misconduct of Witnesses. Every person, whatever his 
 office or dignity, is bound to appear and testify in courts of 
 justice when required by proper process to do so unless he has 
 a lawful excuse. The dignity of the office or the mere fact 
 of official position is not of itself an excuse, and whether the 
 official engagements are sufficient excuse must be determined 
 by the circumstances of each case. (20) So it is contempt of 
 court for a witness to disobey a subpoena regularly served upon 
 him. (21) While the court will not allow its process to be 
 evaded on mere technical grounds (22), still to justify it in 
 granting an attachment against a witness for contempt for 
 disobeying its process the facts must be clear and strong. It 
 must be proved that the process was strictly and legally served, 
 and that the disobedience was of such a nature as to indicate 
 a design to contemn the process and authority of the court. {23) 
 So a subpoena duces tecum commanding a party to appear at 
 
 (17) Corey v. Voorhies, 2 N. J. Eq., S; Endicott v. Mathis, 9 N. J. 
 Eq., no; Haring v. Kaiiffman, 13 N. J. Eq., 397; State v. Dwyer, 41 
 N. J. L., 93 ; Kempson v. Kempson, 61 N. J. Eq., 303 ; reversed, 63 N. J. 
 Eq., 783. 
 
 (18) Cape May &c. R. R. Co. v. Johnson, 35 N. J. Eq.. 422. 
 
 (19) Davis V. Gray, 83 U. S., 203; Moore v. Mercer Wire Co., 15 
 Atl., 757- 
 
 (20) Thompson v. German Valley R. R. Co., 22 N. J. Eq., in. 
 
 (21) State V. Trumbull, 4 N. J. L., 161; State v. Doty, 32 N. J. L., 
 403- 
 
 (22) Endicott v. Mathis, 9 N. J. Eq., no. 
 
 (23) State V. Trumbull, 4 N. J. L., 161. 
 
456 Contempts. 
 
 a certain place and time named, in the writ to bring with him 
 a certain book, but omitting the direction to testify, is invahd, 
 and the party refusing to obey it cannot be attached for con- 
 tempt. (24) 
 
 Unlawfully hindering, delaying or interfering, or attempt- 
 ing so to do with the proper execution of legal process is 
 contempt ; so to solicit a witness to disobey -a subpoena is a 
 contempt of court. (25) So an employer who tells his employ- 
 ee, who has been subpoenaed as a witness, that he would lose 
 his situation if he attended the trial, may be attached as for 
 a contempt. (26) And the fact that one accused of contempt in 
 attempting improperly to influence the administration of justice 
 was not an attorney, and possibly ignorant of the legal effect 
 of his acts, does not excuse him or purge him of the charge 
 of contempt, although it is a mitigating circumstance to be 
 considered in determining the degree of his culpability. (27) 
 
 Publications. To publish anything relating to a cause pend- 
 ing in court which has a tendency to prejudice the public mind 
 upon the subject or which contains improper strictures on the 
 conduct of counsel, witnesses or parties, is contempt of court. 
 (28) When it comes in any manner to the knowledge of the 
 court that articles are published in a newspaper circulated in 
 the place where the court is held which are calculated to pre- 
 vent a fair trial of a cause then on trial before the court, it can 
 of its own motion, institute proceedings for contempt. Such 
 a power in the court is necessary for its own protection against 
 improper interference with the due administration of justice, 
 and is not dependent upon the complaint of any of the parties 
 litigant (29), but before the court, of its own motion, may 
 punish for a contempt not committed in its presence, the offend- 
 ing party must be given an opportunity to be heard. So where 
 defendant was charged with libeling the court through a news- 
 paper publication, and the court, acting on its own knowledge 
 and without proof of any kind, issued an attachment against 
 
 (24) Murray v. Elston, 23 N. J. Eq., 212. 
 
 (25) State V. Doty, 32 N. J. L., 403. 
 
 (26) Campbell v. Fort, 3 N. J. L., J., 157. 
 
 (27) Seastream v. N. J. Exhibition Co., 61 Atl., 1041. 
 
 (28) State V. Doty, 32 N. J. L., 403; in re Cheeseman, 49 N. J. L., 
 115- 
 
 (29) Telegram Co. v. Commonwealth, 172 Mass., 294. 
 
Persons Liable. 457 
 
 the defendant and, still without proof, convicted and fined 
 him, the conviction was set aside. (30) Comments, however 
 stringent, which have relation to judicial proceedings which 
 are" past and ended are not contempt of the authority of the 
 court in the sense in which that expression is here used. (31) 
 
 Persons Liable. The power of the court to punish for 
 contempt extends to all persons who injuriously interfere with 
 the proper exercise of its judicial functions, whether such per- 
 sons be officers of the court, or parties, or strangers. (32) And 
 when an injunction has been duly served on the defendants, 
 they are personally responsible for the violation of an order 
 of the court, in whatever capacity or with whatever view they 
 act. (33) So if a railroad company is enjoined to abate a nui- 
 sance, the Court of Chancery will not entertain an excuse that 
 the railroad's agents and servants have disobeyed the instruc- 
 tions given them to remove such nuisance. The company must 
 obey the order of the court, even if it has to discontinue the 
 running of trains upon its road. Until the injunction is modi- 
 fied or removed the company must conform to it. (34) So 
 where an injunction has been granted to restrain blasting in a 
 stone quarry adjacent to complainant's property, the owner 
 of the quarry is liable for contempt for the acts of his employ- 
 ees in violation of the injunction. (35) 
 
 Proceedings by way of contempt will lie against corpora- 
 tions as well as against individuals. In the case of individuals, 
 the process is by attachment, followed by a fine or imprison- 
 ment, or both. In the case of a corporation, the process in 
 equity courts is by writ of sequestration. (36) But where an 
 injunction is issued against a corporation, the officers who 
 neither do anything in violation of such injunction, nor by 
 concealment of the fact that it has been issued conduce to such 
 violation, cannot be held liable for a breach of it. (37) 
 
 (30) Holt's case, 55 N. J. L., 384. 
 
 (31) Cheadle v. State, no Ind., 301. 
 
 (32) State V. Doty, 32 N. J. L., 403. 
 
 (33) Quackenbush v. Van Riper, 3 N. J. Eq., 350. 
 
 (34) Pa. R. R. Co. V. Thompson, 49 N. J. Eq., 318. 
 
 (35) Reed v. Philadelphia &c. R. R. Co., 24 Atl., 922. 
 
 (36) National Docks &c. R. R. v. P. R. R., 54 N. J. Eq., 167; re- 
 versed, ib., 647; West Jersey Traction Co. v. Camden, 58 N. J. L., 536. 
 
 (37) Trimmer v. Pa. R. R. Co., 36 N. J. Eq., 411. 
 
458 Contempts. 
 
 J)efenses — Advice of Counsel. A party enjoined violates 
 the plain and positive mandate of the court at his peril. Advice 
 of counsel that he may safely pursue the course prohibited 
 without conforming to limitations prescribed by the injunction, 
 will not excuse his misconduct. (38) And so it is no defense 
 to a proceeding for contempt, in disobeying an order of the 
 court, that the act was done upon the advice of counsel. (39) 
 
 Intention and Good Faith. Proceedings in contempt are 
 as has been seen of two classes, viz. First — those instituted 
 solely for the purpose of vindicating the dignity and preserv- 
 ing the power of the court. These are criminal and punitive 
 in their nature and are usually instituted by the court in the 
 interest of the general public, and not for any particular indi- 
 vidual or suitor. Second — those instituted by private individ- 
 uals for the purpose mainly, if not wholly, of protecting or 
 enforcing private rights and in which the public have no 
 special interest. These are remedial or civil in their nature, 
 rather than criminal or punitive. (40) 
 
 In proceedings of the second class, above mentioned, the 
 state of mind toward the court of the offending party is 
 immaterial, and it is no answer to the complaint of the injured 
 party that the offender did not intend- in what he did to contemn 
 the authority of the court. (41) So a common rumor that an 
 injunction has been dissolved will not excuse the breach of 
 it. (42) So the fact that the injury complained of was done 
 before the service of the injunction upon the defendant, and 
 that his acts since the service of the injunction have done the 
 complainant no further injury, will not, when those acts were 
 intended to make the injury complete, and the obvious inten- 
 tion of the interdict was to prohibit him from continuing the 
 injury, relieve the defendant from the effects of his violation 
 of the injunction. (43) 
 
 (38) McKillopp V. Taylor, 25 N. J. Eq., 139. 
 
 (39) Fitzgerald v. Christl, 20 N. J. Eq., 90; Cape May &c. R. R. 
 Co. V. Johnson, 35 N. J. Eq., 422; West Jersey Traction Co. v. Camden, 
 58 N. J. L., 536. 
 
 (40) Thompson v. Pa. R. R. Co., 48 N. J. Eq., 105; reversed, 49 
 N. J. Eq., 318. 
 
 (41) Thompson v. Pa. R. R. Co., 48 N. J. Eq., 105; reversed, 49 
 N. J. Eq., 318. 
 
 (42) Morris v. Hill, 28 N. J. Eq., 33. 
 
 (43) Thropp V. Field, 25 N. J. Eq., 166. 
 
Defenses. 459 
 
 On the other hand, where the conduct of a party sought to 
 be attached for a violation of an injunction is Uterally a breach 
 of an injunction, but not so in spirit, and it clearly appears 
 that there was not only no intention to disregard the injunc- 
 tion, but a supposition on his part that his action would receive 
 the approbation of the court, he will not be adjudged guilty of 
 contempt. (44) So the fact that defendant, while the action 
 in which the decree was rendered was pending, mortgaged his 
 property and expended money for counsel fees to secure a 
 modification of the decree, does not constitute contempt, the 
 mortgage being given in good faith to secure a pre-existing 
 debt. (45) So where certain township officers were enjoined in 
 their individual capacity from interfering with the laying of 
 gas pipes by complainant, and subsequently certain constables 
 attempted to arrest those laying the pipes, and copies of the 
 injunction were thrust upon the constables when they were 
 making the arrests, and they took the papers and put them in 
 their pockets without reading them, they were not held guilty 
 of contempt of court, it appearing that they acted in good 
 faith. (46) 
 
 If an employee of a company exercises the authority with 
 which he is clothed by it, in good faith, with an intention and 
 purpose to the best of his ability to enforce obedience to the 
 order of the court, he will not be in contempt. (47) And a 
 defendant will not be attached for contempt for laying its 
 tracks across a certain street in violation of an injunction, 
 when it sets up by affidavit that another company has law- 
 fully built and owned such tracks, since such questions should 
 be determined on formal issues in the proceeding in which 
 such other road is a party, and not in summary contempt pro- 
 ceedings. (48) 
 
 Validity of Order. A party accused of contempt cannot 
 excuse or exculpate himself by alleging, or even by showing, 
 that the judgment or order which he has violated is erroneous 
 
 (44) Magennis v. Parkhurst, 4 N. J. Eq., 433; Fraas v. Barlement, 
 25 N. J. Eq., 84. 
 
 (45 ) Walton v. Walton, 54 N. J. Eq., 607. 
 
 (46) Public Service Corporation v. DeGrote, 70 N. J. Eq., 454. 
 
 (47) Pennsylvania Railroad Company v. Thompson, 49 N. J. Eq., 318. 
 
 (48) Grey v. Greenville & Hudson R. R. Co., 60 N. J. Eq., 153; 
 reversed, 62 N. J. Eq., 768. 
 
460 Contempts. 
 
 in point of law. The method of correcting such error is by 
 appeal, and not by disobedience. If the court had power to 
 pronounce the judgment or to make the order, then, whether 
 correct or erroneous, it is the established law of the case until 
 reversed ; and on proceedings for contempt, its validity in point 
 of law can neither be examined nor disputed. (49) So while 
 an injunction is in force it must be obeyed, although broader 
 than is authorized by the bill. The remedy of the defendant 
 is to apply for a modification of it according to the case made 
 out by the bill. (50) But on a rule to show cause why a 
 counsellor at law should not be adjudged guilty of contempt 
 for refusal to produce a letter copy book for the inspection of 
 the Grand Jury, it was held not to constitute contempt, for 
 the reason that the copies of the letters in question came 
 within the rule of privileged communications between attor- 
 ney and client. (51) 
 
 If the disobeyed order was one wholly without the jurisdic- 
 tion of the court which made it, so that it was when made 
 coram non judice and void, such lack of jurisdiction will be 
 fatal to the proceedings for contempt, and an order adjudging 
 contempt will be reviewable. (52) So a contemner of an order 
 of a court may show in defense that the court was without 
 jurisdiction to make the order disobeyed, and that hence there 
 was in legal effect no order. (53) 
 
 Inability to Comply. Where the court orders a party to 
 do a certain thing and he afterwards satisfies the court that he 
 has not the power to do it, the court will ordinarily relieve him 
 from such order and not hold him in contempt for disobeying 
 it. The essence of a contempt is that being able to perform the 
 decree the defendant wilfully refuses or omits to obey. (54) 
 
 (49) Cape May &c. R. R. v. Johnson, 35 N. J. Eq., 422; Una v. 
 Dodd, 39 N. J. Eq., 173-180; reversed, 40 N. J. Eq., 672; Forrest v. 
 Price, 52 N. J. Eq., 16; affirmed, 53 N. J. Eq., 693. 
 
 (50) Richards v. West, 3 N. J. Eq., 456; Cape May &c. R. R. Co. 
 V. Johnson, 3S N. J. Eq., 422 ; Una v. Dodd, 30 N. J. Eq., 173 ; reversed, 
 40 N. J. Eq., 672 ; Forrest v. Price, 52 N. J. Eq., 16 ; affirmed, S3 N. J. 
 Eq., 693. 
 
 (si) In re Bleakly, 21 N. J. L. J., s8. 
 
 (52) Dodd V. Una, 40 N. J. Eq., 672. 
 
 (53) Dodd V. Una, 40 N. J. Eq., 672; Forrest v. Price, 52 N. J. Eq., 
 16; affirmed, S3 N. J. Eq., 693. 
 
 (54) Walton v. Walton, S4 N. J. Eq., 607; Grand Lodge v. Jansen, 
 62 N. J. Eq., 737; Kempson v. Kempson, 63 N. J. Eq., 783; and see 
 "Punishment," page 467, infra. 
 
Power to Punish. 461 
 
 So on an application to the Court of Chancery to obtain, in 
 proceedings for contempt, a remedial order directing the im- 
 prisonment of the defendant until he shall pay a money decree, 
 it is proper for the defendant to show his inability to pay, and, 
 if that be shown, an order for such imprisonment ought not 
 to be made. ( 55 ) So where the decree only directs the payment 
 of money, it is a sufficient answer, to an application to hold 
 the defendant in contempt for non-performance, to show that 
 he is in good faith unable to perform the command of the 
 decree. (56) 
 
 Where on an Order to Show Cause for an attachment for 
 contempt against defendant for not producing certain papers 
 which he had been decreed to deliver over to the complain- 
 ants, defendant showed cause that the papers were not in his 
 possession and that he thought they were in the possession of 
 his former solicitor, that he had asked said solicitor to look 
 for said papers, and that the solicitor had failed to find them, 
 it was held that the court would not release its hold on defend- 
 ant until satisfied that his solicitor had made an effort to find 
 the papers, and that it would continue the matter for one 
 week and suggest to, or if necessary cite the solicitor to make 
 a thorough search for the papers. (57) And where defendant 
 was required to cause the decree of a court of another state 
 to be set aside, the Court of Errors and Appeals held that while 
 it was apparent at the outset that the thing to be done was 
 not within the control of the party, still his effort might induce 
 its accomplishment, and that the proper course for the Court 
 of Chancery to pursue was to have required the defendant to 
 present the truth to the court of the foreign state and in good 
 faith to urge that its decree be set aside. (58) 
 
 Power to Punish. The 69th Section of the Chancery Act 
 provides that the Chancellor may, on motion supported by 
 proof, order an attachment for contempt to be issued against 
 any person charged with disobedience to any injunction; and 
 if the person so offending shall be brought before the Chan- 
 cellor, by virtue of the said attachment, and if upon a hearing 
 
 (55 ) Grand Lodge v. Jansen, 62 N. J. Eq., 737. 
 
 (56) Walton V. Walton, 54 N. J. Eq,, 607. 
 
 (57) Esterbrook v. Ahern, 2 N. J. L; J., 175. 
 
 (58) Kempson v. Kempson, 63 N. J. Eq., 783, and see "Punishment," 
 page 467, infra. 
 
462 Contempts. 
 
 such disobedience shall appear, the Chancellor may, in his 
 discretion, order such offender to be committed and kept in 
 close custody until he shall give further order therein. (59) 
 
 The 82nd. Section of the Chancery Act provides that to 
 enforce obedience to the process, rules and orders of the Court 
 of Chancery, where any person shall be in contempt according 
 to the law, practice or course of the said court, he shall, for 
 every such contempt, and before he be released or discharged 
 from the same, pay to the Clerk in Chancery, for the use of 
 this State, a sum not exceeding fifty dollars, as a fine for the 
 said contempt, and the said person being in court, upon pro- 
 cess of contempt or otherwise, shall stand committed and 
 remain in close custody until the said process, rule or order 
 shall be obeyed and performed, and until the fine so imposed 
 for such contempt, with the costs, be fully paid. (60) 
 
 The 82nd. Section of the Chancery Act does not curtail or 
 interfere in any way with the power of the court of Chancery 
 of punishing contemptuous conduct in its presence or with 
 respect to its authority or dignity. The last clause of the 
 statute, which provides that the person committed for con- 
 tempt shall "remain in close custody until said process, rule or 
 order shall be obeyed and performed" makes it manifest that 
 the section is limited in its application to contempt proceed- 
 ings taken for the purpose of affording relief inter partes. {61) 
 So where a party has disobeyed an injunction of the Court of 
 Chancery to the injury of another party, the court has the 
 power to commit the offending party until he shall compen- 
 sate the injured party. (62) 
 
 Vice-ChaiiGellors May Punish for Contempt. The 102nd 
 Section of the Chancery Act provides that the Vice-Chancellors, 
 when sitting as judges of the Court of Chancery for the trans- 
 action of the business of said court, shall have power to adjudi- 
 cate upon and punish any and all contempts committed by 
 any person or persons in the presence of the court so held 
 by such Vice-Chancellor, in the same manner as the Chancellor 
 
 (59) See Chancery Act, section 69, page — , supra. 
 
 (60) See Chancery Act, section 82, page — , supra. 
 
 (61) Frank v. Herold, 64 N. J. Eq., 371. 
 
 (62) Forrest v. Price,_S2 N. J. Eq^ 16; affirmed, ^,3 N. J. Eq., 693; 
 Thompson v. Pennsylvania Railroad Company, 48 N. J. Eq., loj; re- 
 versed in part, 49 N. J. Eq., 318; Kempson v. Kempson, 61 N. J. Eq., 
 303 ; S. C, 63 N. J. Eq., 783. 
 
Proceedings to Punish. 463 
 
 may now do, and the several sheriffs and keepers of the com- 
 mon jails of the several counties of this state shall respect 
 and execute all orders and commitments made and signed by 
 any of the Vice-Chancellors in any matters of contempt in all 
 respects the same as if made and signed by the Chancellor, 
 provided that any person adjudicated guilty of contempt under 
 this act shall have the right of immediate appeal to the Chan- 
 cellor, which appeal shall operate as a stay of proceedings, and 
 the Chancellor shall provide by rule for the manner and method 
 of such appeals, and shall hear them on the merits. (63) 
 
 A Vice-Chancellor to whom a complaint for an injunction 
 is presented, and who issues a preliminary injunction, has juris- 
 diction to entertain contempt proceedings against parties at- 
 tempting improperly to influence the administration of justice 
 in the injunction suit by coercing complainant to make affi- 
 davits contrary to his original affidavit and destructive of the 
 effect thereof. (64) But a proceeding for contempt not com- 
 mitted in open court, being punitive in character, and hence 
 not the subject of appeal, and liable to affect property and 
 liberty, ought not to depend upon the judgment of a Vice- 
 Chancellor or Master in Chancery, but is a matter for the 
 personal attention of the Chancellor. (65) 
 
 Proceedings to Punish. There are two methods of pro- 
 ceeding in contempt cases ; First, by attachment, and Second, 
 by an order committing defendant to prison. These two meth- 
 ods of proceeding have subsisted side by side in our equity 
 practice for many years. Generally speaking, the proceeding 
 has been by way of order to show cause and order of commit- 
 ment to such an ^tent that proceedings by way of attachment 
 are very little resorted to, and the old proceeding by way of 
 committal almost entirely forgotten. In certain cases it may 
 be very important to differentiate between attachment and 
 committal, for the reason that there is an inherent difference 
 in the preliminary and other proceedings. In the case of an 
 attachment out of Chancery, the writ may issue on proper 
 proofs without notice to the respondent (provided he has 
 been served with subpoena), although the court may,, in its 
 
 (63) See Chancery Act, section 102, page — , supra. 
 
 (64) Seastream v. N. J. Exhibition Co., 61 At!., 1041. 
 
 (65) Seastream v. New Jersey Exhibition Company, 69 N. J. Eq., 
 15; affirmed, 72 N. J. Eq., 377. 
 
464 Contempts. 
 
 discretion, require notice. The writ is bailable, is always 
 executed by the Sheriff, and is directed to the sheriff of that 
 county in which respondent is, and must include all parties 
 liable to the attachment who are in that same county. The 
 subsequent proceedings are set forth by Rule 133 et seq. They 
 end in a warrant for commitment. (66) 
 
 The ordinary proceeding by committal has none of these 
 formalities. It began under the old practice by taking an 
 order upon proper affidavits directing that the respondent stand 
 committed for his contempt, specifying the nature of it, unless 
 he should at a time and place named appear before the court 
 and purge himself of the charge. This order was served per- 
 sonally on the alleged contemner, and when at the return day 
 he did not make sufficient answer, the order was merely made 
 absolute, and the respondent was imprisoned or fined, accord- 
 ing to its terms. If the accused appeared, he was heard in 
 any way that suited the convenience of the court by an exami- 
 nation ore terms, upon affidavits, or by propounding interroga- 
 tories. If he denied the contempt, the court, either for itself 
 or by reference to a Master, ascertained the facts upon the 
 proof, either by examining witnesses, by affidavit, or otherwise. 
 The order of committal was a final order, and was not bailable. 
 It might be executed by the Sheriff of the County, or by the 
 Sergeant-at-Arms, or by one of the ushers of the court who 
 might be appointed pro hac vice. Latterly the greater portion 
 of contempt proceedings in Chancery in this state have been 
 commenced by entering an order to show cause why the 
 respondent should not be adjudged guilty of contempt, and 
 upon this simple proceeding all questions are adjudicated. (67) 
 
 The statute does not affect the practice or point out any 
 particular course which must be taken at all events. Section 
 69 authorizes the Chancellor ("he may"), on motion sup- 
 ported by proof, to issue an attachment against any person 
 charged with disobedience to any injunction, and prescribes the. 
 penalty. Section 82, which has remained in the statute 
 unchanged since 1779 (68), gives the court power to enforce 
 obedience to its process, rules and orders by the imposition of 
 a fine of not over $50.00, or imprisonment until the mandate 
 
 (66) See "Proceedings by Attachment," page 466, infra. 
 
 (67) In i-e Haines, 67 N. J. L., 442. 
 
 (68) Pat. Laws, 1768-18CX), p. 434, sec. 53. 
 
Proceedings to Punish. 465 
 
 be obeyed and the fine paid. These statutes leave the compul- 
 sory procedure untouched. The difference between the order 
 of committal under the old practice, and the order to show 
 cause under the more modern methods, is merely one of form. 
 The order of committal was in form an order for the incarce- 
 ration of the respondent unless he showed cause against it 
 at a future time and at a specified place. The modern order to 
 show cause calls upon the respondent to appear at a future 
 time and at a specified place, then and there to show cause 
 why he should not be adjudged guilty of contempt. The hear- 
 ing in either case is the same, the final result is the same, and 
 it would thus appear that there is no substantial difference 
 between them. (69) 
 
 Where a proceeding to punish for contempt was begun by an 
 order directing the accused persons to appear in court at a 
 time specified and show cause why they should not be adjudged 
 guilty, the order was based on affidavits setting forth the acts 
 charged as contempt, consisting of an attempt improperly to 
 influence the administration of justice in such court, which 
 order and affidavits were served on them. On the return day, 
 proofs were taken of the charges, and in defense thereof, and 
 it was held that as the persons were informed of the charges 
 and were afforded an opportunity to meet them, the court 
 had jurisdiction of the proceeding. (70) The use of ex parte 
 affidavits in procuring an order to show cause why residents 
 should not be guilty of contempt of court, is proper when 
 affiants are present at the hearing on the return and opportu- 
 nity was offered for cross examination to the persons named 
 in the order. (71) If a contempt is in the face of the court, a 
 rule to show cause is unnecessary, and the offender may be 
 instantly apprehended and imprisoned at the court's direc- 
 tion. (72) 
 
 Who May Institute. A complainant cannot successfully 
 prosecute proceedings against a defendant for his contempt 
 for not obeying a decree of the court for the specific perform- 
 ance of an agreement to purchase lands, where it appears that 
 
 (69) Rodberg v. Lamachinsky, 74 Atl., 44. 
 
 (70) Seastream v.- New Jersey Exhibition Co., 72 N. J. Eq., 377. 
 
 (71) Seastream v. New Jersey Exhibition Co., 69 N. J. Eq., 15; 
 affirmed, 72 N. J. Eq., 377- 
 
 (72) State V. Keeper of Jail &c., s N. J. L. J., 
 
466 Contempts. 
 
 he himself has not performed the acts required by him by 
 such decree. (73) 
 
 Proceedings by Attachment — Return Day of Writs of 
 Attachment. All attachments for contempt shall have at 
 least fifteen days, exclusive between the teste and return, 
 unless the Chancellor, upon motion or petition, ■shall order 
 otherwise. And all persons in contempt in the same cause 
 and in the same county shall be included in one writ of attach- 
 ment. (74) 
 
 Bond on Attachment. When an attachment for a con- 
 tempt shall be served, the defendant shall be retained in custody 
 thereon, to answer the exigency of the writ, until the return 
 day thereof, unless he shall, with one sufficient surety at least, 
 give bond in the penal sum of five hundred dollars, unless the 
 Chancellor shall require a bond in some other sum to be 
 named in the order, to the complainant, conditioned for his 
 appearance on the return day of the attachment, according to 
 the command of such writ, and that he will not depart thence 
 without leave of the court. (75) 
 
 Appearance and Notice. When a defendant in attach- 
 ment shall have given bond for his appearance, he shall enter 
 his appearance with the clerk on the return day of the writ, 
 and give notice thereof to the adverse party. (76) 
 
 Interrogatories — Service. The complainant shall, within 
 eight days after such notice, enter a rule of course for the 
 defendant's examination upon interrogatories touching his con- 
 tempt, before one of the masters of this court, and serve a copy 
 thereof, with a copy of the interrogatories, on the defendant 
 in attachment, or on his solicitor ; and in case of his neglect 
 so to do, the court may order the party to be discharged from 
 the attachment with costs. (77) An attachment for contempt 
 will be discharged where the complainant has failed to exhibit 
 interrogatories within the time limited by the rule, and a long 
 time has elapsed since the expiration of the period within 
 which, according to the rule, the interrogatories should have 
 
 (73) Dowden v. Junker, 48 N. J. Eq., 554. 
 
 (74) Chancery Rule, 133. 
 
 (75) Chancery Rule, 134. 
 
 (76) Chancery Rule, 135. 
 
 (77) Chancery Rule, 136. 
 
Proceedings to Punish. 467 
 
 been filed. (78) An application for further time to exhibit 
 interrogatories, not made until the making of a motion to 
 discharge for non-observance of the rule, will be refused. (79) 
 
 Examination before Master. When a party attached shall 
 attend before a Master upon the interrogatories, if any ques- 
 tions arise in respect to the interrogatories, they shall be set- 
 tled by the master, and the party attached shall, within four 
 days after they are submitted to or settled as aforesaid, put 
 in his examination in writing ; and the master shall, if required 
 by the adverse party so to do, report with the interrogatories 
 and examination whether, in his opinion, the examination is 
 full and satisfactory or not. (80) 
 
 Answer. On application to hold a party for contempt, 
 any facts, existing when the application i-s made, which would 
 support a motion to release from custody, should be shown 
 in answer to the application. (81) But a party under attach- 
 ment for contempt for an alleged breach of an injunction is 
 not confined to his answers to the interrogatories exhibited to 
 him, but may examine witnesses to exculpate himself from 
 the charge. (82) 
 
 Evidence. In proceedings for contempt for the breach of 
 an injunction, the court will not punish unless the guilt of the 
 defendant be clearly established. (83) The Court of Chancery 
 may, in proceedings for contempt, order the evidence of wit- 
 nesses resident in a foreign jurisdiction taken by commission 
 or otherwise, and use the evidence so taken on the hearing. (84) 
 
 Commitment. Where a party is committed by an order 
 of the court for the non-payment of alimony and of a fine and 
 costs, the amounts must be specified in the commitment. (85) 
 
 Punishment. The exercise of the court's power to punish 
 for contempt has a two-fold aspect; First, the proper punish- 
 
 (78) Jewett V. Dringer, 27 N. J. Eq., 271. 
 
 (79) Jewett V. Dringer, 27 N. J. Eq., 271. 
 
 (80) Chancery Rule, 137. 
 
 (81) Walton V. Walton, 54 N. J. Eq., 607. 
 
 (82) Magennis v. Parkhurst, 4 N. J. Eq., 433; Una v. Dodd, 38 
 N. J. Eq., 460; reversed, 40 N. J. Eq., 672. 
 
 (83) Probasco v. Probasco, 30 N. J. Eq., 61 ; Jonas Glass Co. y. 
 Glass Blowers Ass'n., 64 N. J. Eq., 644. 
 
 (84) Una V. Dodd, 38 N. J. Eq., 460; reversed, 40 N. J. Eq., 672. 
 (8s) Jernee v. Jernee, 54 N. J. Eq., 657. 
 
468 Contempts. 
 
 ment of the guilty party for his disrespect of the court or its 
 order, and Second, to compel performance of some act or duty 
 required of him by the court, which he refuses to perform. 
 In the former case the court, having regard to the gravity 
 of the offense, will itself determine the nature and extent of 
 the punishment ; in the latter case, the party refusing to obey 
 should be fined and imprisoned until he performs the acts 
 required of him or shows it is not within his power to do 
 so. (86) 
 
 To justify punishment for contempt, it must appear that the 
 disobedience was of such a nature as to indicate a design to 
 contemn the authority of the court — an intention to disregard 
 its process and authority. (87) Where the sole purpose of an 
 order directing the imprisonment of the defendant in con- 
 tempt proceedings is to obtain payment for the complainant, 
 or to compel defendant to perform for the benefit of com- 
 plainant, the court should consider whether the imprisonment 
 is likely to secure the result. To this end the financial ability 
 of the defendant or his ability to perform the order is a proper 
 subject of inquiry, for if he has not the means wherewith to 
 pay, the imprisonment can afford no remedy. (88) 
 
 Where one commits a contempt of court by removing fix- 
 tures from a mill of which he is in possession while under an 
 injunction forbidding such removal, he will not only be com- 
 pelled to restore the fixtures and make reparation for damage 
 done to the injured party, but punishment will be imposed 
 because of the offense to the dignity of the court, and the 
 punishment to be inflicted for the offense to its dignity will 
 depend on the conduct of the defendant in regard to the repara- 
 tion of the injury. (89) And when on decree for specific per- 
 formance the defendant is in contempt for refusal to perform, 
 
 (86) Forrest v. Price, 52 N. J. Eq., 16; affirmed, 53 N. J. Eq., 693; 
 S. C, 54 N. J. Eq., 669. 
 
 (87) State V. Trumbull, 4 N, J. L., 161 ; Fraas v. Barlement, 25 
 N. J. Eq., 84 ; Dodd v. Una, 40 N. J. Eq., 672 ; Forrest v. Price, 52 N. J. 
 Eq., 16-30; Walton v. Walton, 54 N. J. Eq., 607. 
 
 (88) Pennsylvania R. R. Co. v. Thompson, 49 N. J. Eq., 318; Wal- 
 ton V. Walton, 54 N. J. Eq., 607; Haggerty v. Badkin, 72 N. J. Eq., 
 473; Grand Lodge Knights of Pythias v. Jansen, 62 N. J. Eq., 737; 
 Kempson v. Kempson, 63 N. J. Eq., 783; Hershenstein v. Hahn, 71 
 Atl., 105 ; and see "Inatsility to Comply," page 460, supra. 
 
 (89) Pages V. McLaren, 7 N. J. L. J., 309; Ashby v. Ashby, 62 
 N. J. Eq., 618. 
 
Proceedings to Punish. 469 
 
 the court may, without notice, make a substituted decree 
 establishing the contract as if it had been executed ; but the 
 ■defendant has a right of appeal from such substituted decree. 
 (90) 
 
 A party in contempt may in the discretion of the court be 
 required to pay the costs of proceedings against him for con- 
 tempt; payment of a counsel fee cannot, however, be imposed 
 as a part of the punishment for contempt. (91 ) And a party 
 in contempt cannot be adjudged to pay costs and counsel fee, 
 and then to await further punishment to be imposed at a 
 future period, if the court shall think proper. (92) 
 
 While a party is in contempt for disobedience to an injunc- 
 tion, he cannot properly have a hearing on a motion for its 
 dissolution ; but when the nature and extent of the punishment 
 to be inflicted for such contempt depend on the determination 
 of the question whether the injunction shall be continued or 
 not, the hearing may be allowed. (93) But where the con- 
 tempt was the non-performance of a final decree for the pay- 
 ment of money and the contemner appeared before the court 
 on an order to show cause why an attachment for contempt 
 should not issue against him, declaring his readiness to comply 
 with the directions of the decree at once and to answer for his 
 contempt as the court should direct, he was heard on an appli- 
 cation to open the decree and to be let in to answer on the 
 ground of surprise. (94) 
 
 Purging Contempt. The court may, at the instance of 
 one, who has contemtied its decree, order him to perform 
 certain acts deemed requisite to annul his contemptuous con- 
 duct and ^essential to procuring the operation of the decree, as 
 a condition upon which the contemner shall purchase his 
 relief from contempt and discharge from punishment. (95) 
 A railroad company will not be punished for contempt for 
 failure to comply with an order to construct a bridge over 
 its tracks, if after filing of a motion to punish for con- 
 
 (90) Wharton v. Stoutenburgh, 39 N. J. Eq., 299. 
 
 (91) O'Rourke v. Cleveland, 49 N. J. Eq., S77- 
 
 (92) O'Rourke v. Cleveland, 49 N. J. Eq., 577. 
 
 (93) Endicott v. Mathis, 9 N. J. Eq., no; Freese v. Swayze, 26 
 N. J. Eq., 437; State v. Ackerson, 25 N. J. L., 209. 
 
 (94) Freese v. Swayze, 26 N. J. Eq., 437. 
 
 (95) Krauss v. Krauss, 74 N. J. Eq., 417. 
 
470 ' Contempts. 
 
 tempt, but before hearing thereon, it purges itself of the con- 
 tempt by the construction of the bridge. (96) 
 
 Discharge. A defendant may be discharged from impri- 
 sonment for contempt in disobeying an order, although he has 
 not cleared the contempt, if the Chancellor is of the opinion 
 that the authority of the court has been vindicated by the 
 imprisonment which the defendant has undergone. (97) 
 
 Appeal. A decree of the Court of Chancery adjudging 
 one guilty of contempt in that court in attempting improperly 
 to influence the due administration of justice therein, ren- 
 dered in proceedings instituted solely for the purpose of vindi- 
 cating the dignity and authority of the court, is not review- 
 able except for want of jurisdiction of the court. (98) And so 
 an order made in the progress of a cause, finding a party in 
 contempt and compelling him to give a bond securing the 
 return of certain moneys received by him, such bond having 
 been given, is not appealable. (99) So a punitive order of the 
 Court of Chancery, fining or imprisoning a party for contempt 
 for conduct derogatory to the dignity of the court, is not 
 appealable if the matter and party be within the jurisdiction 
 of the court. (100) No appeal will lie from an order of the 
 Court of Chancery directing process to bring in the 
 parties to answer for the alleged contempt; such an order 
 is not to carry into effect or execute an order or decree of 
 the court, but operates as a rule to show cause why such 
 order should not be executed, and it cannot be said that the 
 party is aggrieved by such an order; and unless aggrieved, he 
 is not entitled to an appeal. (,ioi) The foregoing was the 
 rule in force prior to the enactment of the Act of 1909, which 
 provides that an appeal will lie from all adjudications for 
 
 (96) East New Brunswick &c. Co. v. Raritan River R. R. Co., 18 
 All., 670. 
 
 (97) McClung V. McCIung, 33 N. J. Eq., 463. 
 
 (98) Dodd V. Una, 40 N. J. Eq., 672; Frank v. Herold, 64 N. J. 
 Eq., 371; Grand Lodge v. Jansen, 62 N. J. Eq., 737; Seastream v. New 
 Jersey Exhibition Co., 72 N. J. Eq., 377. 
 
 (gg) Knauss v. Jones, 32 N. J. Eq., 323. 
 
 (100) Grand Lodge v. Jansen, 62 N. J. Eq., 737; Frank v. Herold, 
 64 N. J. Eq., 371. 
 
 (loi) Coryell v. Holcombe, g N. J. Eq., 650; Adams v. Adams, 83 
 Atl., I go. 
 
Appeal. 471 
 
 contempt for acts done elsewhere than in the presence of 
 the court. (102) 
 
 Where the proceedmg for contempt is remedial in its nature, 
 either party aggrieved by the order may appeal. (103) So 
 a remedial order of the Court of Chancery for contempt by 
 reason of the failure to pay a sum due to complainant as 
 directed by said court, is appealable. ( 104) 
 
 A conviction for contempt will not be reversed for failure 
 of the complaining party to file an afifidavit preliminary to the 
 rule to show cause and because no writ of attachment was 
 issued, nor interrogatories presented, if in the contempt pro- 
 ceedings defendant submitted himself to the jurisdiction of 
 the court, and made no objection on that ground. (105) And 
 on appeal from a conviction for contempt for publishing an 
 article casting discredit on the court, the appellate court will 
 not consider the general policy of punishment for the con- 
 tempt, but will affirm the judgment, if it is in accordance with 
 the law and the facts. (106) 
 
 (102) Whenever any person or corporation shall be adjudged in 
 contempt by the Court of Chancery of the State of New Jersey for 
 acts done or omitted elsewhere than in the presence of the court, and 
 such court shall in consequence impose upon such person or corpora- 
 tion any fine or imprisonment or other punishment, such person or 
 corporation may appeal from such adjudication to the Court of Errors 
 and Appeals, which appeal shall be taken and prosecuted, in all re- 
 spects, as other appeals are taken and prosecuted from said Court of 
 Chancery. P. L., 1909, p. 270; i Comp. Stat., p. 452, sec. 113a. 
 
 (103) Dodd V. Una, 40 N. J. Eq., 672; Grand Lodge Knights of 
 Pythias v. Jansen, 62 N. J. Eq., 737. 
 
 (104) Grand Lodge v. Jansen, 62 N. J. Eq., Tn. 
 (los) In re Cheeseman, 49 N. J. L., 115. 
 (106) In re Cheeseman, 49 N. J. L., 115. 
 
472 Motions. 
 
 CHAPTER XXX. 
 MOTIONS. 
 
 Who May Make. No one but a party to a suit can make 
 any motion in it except for the purpose of being made a 
 party.(i) But purchasers at a foreclosure sale if not already 
 parties to the suit are regarded to a certain extent as parties 
 and may apply by motion on petition for any relief to which 
 they may be entitled by reason of the conduct of such sale. (la) 
 
 The general rule is that one who is in contempt will not 
 be heard by motion until he has purged his contempt. (2) The 
 rule that a party cannot move until he has cleared his con- 
 tempt is confined to proceedings in the same cause and a 
 party in cdntempt for non-obedience to an order in one 
 cause will not be thereby prevented from making an applica- 
 tion to the court in another cause relating to a distinct matter, 
 although the parties to such other cause may be the same. (3) 
 
 While a party in contempt will not be permitted to ask for 
 the favor of the courts nor take any aggressive proceeding 
 against his adversary until he has purged his contempt, it is 
 still his right to take measures to protect himself and to make 
 any motion designed to show that the order adjudging him 
 in contempt was erroneous. He may move to discharge an 
 order though in contempt for not obeying it and may take 
 any other course which the law allows to a party to establish 
 that it is erroneous. (4) Where the contempt was the non- 
 performance of a final decree for the payment of money and 
 the contemnor appeared before the court on an order to show 
 cause why an attachment for contempt should not issue, 
 declaring his readiness to comply with the directions of the 
 decree at once and to answer to his contempt as the court 
 
 (1) Lynn v. Wheeler, 21 N. J. Eq., 231; Esterbrook Co. v. 
 Ahern, 31 N. J. Eq., 3 ; Ross v. Titsworth, 37 N. J. Eq., 333. 
 
 (la) See "Foreclosure of Mortgages," "Enforcement of Sale 
 Against Purchaser," page 611, infra; and "Who May Object to Sale," 
 page 618, infra. 
 
 (2) Freese v. Swayze, 26 N. J. Eq., 437. 
 
 (3) Clark V. Dew, i R. & M., 103-107; Gompertz v. Best, _i Y. & 
 C, 619; Taylor v. Taylor, i McN. & G., 397-409; 12 Bev., 220. 
 
 (4) Endicott v. Mathis, 9 N. J. Eq., no; State v. Ackerson. 25 
 N. J. L., 209. 
 
Motion Days. 473 
 
 ■should direct, he was heard on an application to open the 
 decree and to be let in to answer on the ground of surprise. ( 5 ) 
 
 Motions Must Be Noticed for a Motion Day. All motions 
 in causes shall be made on motion days, and notice of a motion 
 at any other time shall be of no avail, unless specially directed 
 by the Chancellor (or the Vice-Chancellor to whom the cause 
 is referred), and unless the fact of such special direction hav- 
 ing been made be expressed in the notice. (6) 
 
 Motion Days. Every Monday and Tuesday, except those 
 in the month of August, shall be motion days ; Mondays at the 
 Chancery Chambers in Camden and Jersey City ; Tuesdays at 
 the State House in Trenton and Chancery Chambers in New- 
 ark, except that no motions will be heard in Newark on the 
 Tuesdays whereon the regular term opens. The Chancellor 
 will hear motions at Trenton on the second Tuesday in Janu- 
 ary and every Tuesday thereafter and at Jersey City on the 
 first Monday of every month, and at Newark on the third 
 Monday of every month, except during the sittings of the 
 Court of Errors and Appeals and during vacation. When a 
 regular motion day shall fall upon a legal holiday, the day 
 following shall be the motion day. Motions may be heard on 
 any of the days designated', by a Vice-Chancellor sitting for 
 the Chancellor, without previous special reference of the 
 matter involved therein to him. Notices of motions shall 
 designate the place of hearing, either as "the Chancery 
 
 Chambers at ; . . ." (naming a place other than 
 
 Trenton, assigned by the calendar) or the "State House at 
 Trenton," accordingly as the motion shall be intended to be 
 made and they shall also state that the motion will be made 
 before "the Chancellor," unless the case in which the motion 
 is to be made shall theretofore have been specially referred 
 to a Vice-Chancellor in which the notice shall state that the 
 motion will be made before the Vice-Chancellor to whom 
 such reference shall have been made. (7) 
 
 Motion to Have Precedence Over List-Seniority of Coun- 
 sel Moving. On the morning of the first day of every stated 
 term motions and petitions shall have preference of all causes 
 set down for hearing or argument, the unlitigated motions and 
 
 (5) Freese v. Swayze, 26 N, J. Eq., 437. 
 
 (6) Chancery Rule, 5. 
 
 (7) Chancery Rule, 4. 
 
474 Motions. 
 
 petitions having preference over those which are htigated, and 
 moving counsel being recognized in order of seniority. (8) 
 
 Service of Notice of Motion, Etc. All notices of motions, 
 all notices of taking testimony, all summonses to attend a 
 master, orders to confirm reports unless good cause shown, 
 and all orders nisi, shall be served on the solicitor of the 
 adverse party, if a solicitor is concerned for him; but if no 
 solicitor be concerned for him, the service may be on the 
 party, or left at his usual place of residence, or, if not a resi- 
 dent of this State or not found therein after reasonable inquiry, 
 by setting up the same in the office of the clerk of this court. 
 (9) Notices of motions to dissolve injunctions shall be 
 served eight days ; of motions to extend the time for filing 
 pleadings and other papers, if notice is required by the Chan- 
 cellor (or Vice-Chancellor), three days, and of all other spec- 
 ial motions, five days, and such notices of said motions 
 respectively shall be sufficient. (10) Residence under this rule 
 means "dwelling house or usual place of abode" at which, 
 under Section 5 of the Chancery Act, process for appearance 
 is to be served.(ii) 
 
 Unless otherwise required by statute, general rule or special 
 order, it shall be sufficient service of any paper in the cause 
 to leave it at the address of the solicitor or party endorsed 
 upon the first paper filed in the cause, between the hours of 
 ID A. M. and 4 P. M. until notice of removal to another 
 office, or residence is received. (12) 
 
 Service of Notice of Application to be Made a Party. If 
 
 the party shall be dead on whom the petition or notice of 
 application is required to be served by the twenty-ninth sec- 
 tion of "An act respecting the Court of Chancery" (P. L. 
 1902, p. 520), such notice of petition may be served either on 
 the executor or administrator of such deceased party or on 
 the solicitor who appeared for him in his lifetime; or, in case 
 there be no such executor, administrator or solicitor, it may 
 
 (8) Chancery Rule, 6. 
 
 (9) Chancery Rule, 20. 
 
 (10) Chancery Rule, 141. 
 
 (11) Hervey v. Hervey, 56 N. J. Eq., 166-173, snd see notes to sec. 
 5 of Chancery Act, page 4, supra. 
 
 (12) Chancery Rule, 50a. 
 
Affidavits. 475 
 
 be served by putting up the same in the office of the clerk of 
 this court, and such service shall be lawful service. (13) 
 
 Acknowledgment of Service of Notice. An acknowledg- 
 ment of "due service" by a solicitor means service made in 
 proper time and proper manner, and the defendant having 
 formally admitted such service will be bound by his acknowl- 
 edgment, unless obtained through fraud or made by mis- 
 take. (14) 
 
 Practice. Where a petition is presented and an adverse 
 party has a right to be heard in opposition, the usual proceed- 
 ing is to take a rule or order, fixing a day for the hearing, 
 copies of the petition and order are served on the opposite 
 party and the parties are heard on affidavits. The petition 
 itself is no evidence of. the facts stated in it, they must all 
 be proved aliunde. No answer to the petition is required. (15) 
 
 Service of Affidavits. A copy of every affidavit intended 
 to be used on the argument of any special motion, or of any 
 other special matter before the court, of which notice shall 
 be necessary, shall be served on the adverse party at least 
 four days before the day of argument, or shall be taken on 
 two days' notice at least of the time and place of taking the 
 same, unless other notice may have been ordered ; and all 
 affidavits made use of in court shall be first filed with the 
 clerk, or marked filed by the Chancellor or Vice-Chancellor ; 
 and no writ, order or other proceeding, grounded upon an 
 affidavit or affidavits, shall be issued, filed or entered by the 
 clerk, unless the affidavit or affidavits upon which it shall be 
 grounded shall have been previously filed. (16) 
 
 Service of Affidavits on Motion to Extend Time for Plead- 
 ing, Etc. Affidavits upon which are founded applications 
 to extend the time for taking testimony or for filing pleadings 
 or other papers shall, unless otherwise ordered, be served 
 three days, but counter-affidavits may be read without 
 notice. (17) 
 
 (13) Chancery Rule, 142; and see Chancery Act, sec. 29, page 31, 
 supra. 
 
 (14) Woolsey v. Abbott, 65 N. J. L., 253. 
 
 (is) Crane v. Brigham, 11 N. J. Eq., 29; Carpenter v. Muchmore, 
 IS N. J. Eq., 123 ; Dinsmore v. Wescott, 2S N. J. Eq., 302 ; in re Trenton 
 Street R. R. Co., s8 N. J. Eq., S33. 
 
 (16) Chancery Rule, 138. 
 
 (17) Chancery Rule, 140. 
 
476 Motions. 
 
 Use of Affidavits on Hearing of Rule to Show Cause. 
 
 Affidavits upon petitions duly sworn to, on which orders to 
 show cause may be granted, if served as affidavits, may be 
 used on the hearing of the order to show cause. (i8) 
 
 Motions to Strike Out Pleadings. Motions to strike out 
 pleadings under Rule 213 are considered in a chapter devoted 
 to that subject.(ig) 
 
 Common Rules and Special Rules Defined. Every rule 
 for a reference to a master of exceptions to a bill, answer or to 
 interrogatories to a complainant to be answered ; every rule 
 for setting down for argument a plea, demurrer or exceptions 
 to a master's report of a cause fo rhearing; every rule to con- 
 firm a master's report nisi or for an injunction where a master 
 shall report that it is proper for an injunction to issue and 
 every order to show cause, every ad interim restraining order 
 and every rule or order for an injunction, ne exeat or habeas 
 corpus, advised by a Vice Chancellor under Rule 204a, and 
 every rule to which a party would, according to the practice 
 of this court, be entitled of course without showing a special 
 cause, shall be denominated a common rule, and every other 
 rule shall be denominated a special rule ; all common rules, 
 other than those advised under Rule 204a, and all rules, 
 whether common or special, by consent of parties' (such con- 
 sent being in writing and signed by the parties or their solicitor 
 or counsel, and filed), may be entered, either in term-time or 
 vacation with the clerk of the court, in a book to be by him 
 procured and kept for that purpose ; but every such rule shall 
 be considered as entered at the peril of the party at whose 
 instance it is entered, and the day of entering thereof shall be 
 noted in the said book. (20) 
 
 dS) Chancery Rule, 139. 
 
 (19) See "Motions to Strike Out Pleadings," page 287, supra. 
 
 (20) Chancery Rule 19. 
 
Injunctions. 477 
 
 CHAPTER XXXI. 
 
 INJUNCTIONS. 
 
 Definition. A writ of injunction may be described as a 
 judicial process whereby a party is required to do or to refrain 
 from doing a particular thing, according, to the terms' of the 
 writ. The most common form: of injunction is that which 
 operates as a restraint upon the party in the exercise of his real 
 or supposed rights. The other form commanding an act to be 
 done is sometimes called a mandatory injunction.(i) 
 
 Classification of Injunctions. With reference to their 
 duration, injunctions are known as preliminary or interlocu- 
 tory, and perpetual. Preliminary injunctions are ordinarily 
 granted- for the necessary protection of property and rights 
 to or connected with property, pending the final hearing, for 
 the purpose of preserving the status quo, in order that. the 
 decree on final hearing may be effective. (2) To restrain an 
 assertion of doubtful rights in a manner, productive of irre- 
 parable damage, and to prevent injury to a person from the 
 doubtful title of others, are among the legitimate functions of 
 a court of equity. (3) 
 
 There is a material distinction between a restraining order 
 and a preliminary injunction. The preliminary injunction runs, 
 to use its language, until the defendant "shall have fully an- 
 swered the bill of complaint, and our said court shall make 
 other order to the contrary." An ad interim restraining order 
 is usually issued ex parte, and always commands the defendant 
 to show cause on a certain day why an injunction should not 
 issue. The defendant is thereby brought into court for the 
 purpose of that motion only, and is thus afforded an oppor- 
 tunity to litigate with the complainant as to the propriety of 
 the issuance of an interlocutory injunction, without the filing 
 of an answer and without appearing generally in the cause. .(4) 
 
 (i) Rogers Locomotive Works v. Erie R. R. Co., 20 N. J. Eq., 379, 
 388. 
 
 (2) Board of Health v. EHipont, &c., Powder Co., 80 Atl., 998. 
 Meyer v. Somerville Water Co., 82 Atl., 915. 
 
 (3) Henwood v. Jarvis, 27 N. J. Eq., 247. 
 
 (4) Allman v. United Brotherhood, etc., 81 Atl., 116. 
 
478 Injunctions. 
 
 Perpetual injunctions are granted only at the final hearing 
 upon the merits, and usually form a part of the final decree. 
 A perpetual injunction is in fact a decree of the court whereby 
 defendant is perpetually inhibited from the assertion of an 
 assumed right, or perpetually restrained from the commission 
 of an act which would be contrary to equity and good con- 
 science. While, therefore, a preliminary or interlocutory 
 injunction, being merely provisional in its nature, does not 
 conclude a right, a perpetual injunction, being a final decree 
 upon a full hearing, is conclusive upon all parties in inter- 
 est. (5) 
 
 Another classification of injunctions is into mandatory and 
 preventative, according as they command defendant to do or 
 to refrain from doing a particular thing. The most usual 
 exercise of the jurisdiction of equity is by way of preventative 
 injunction, the use of the mandatory being comparatively 
 rare. (6) 
 
 MANDATORY INJUNCTIONS. 
 
 General Principles. A mandatory injunction, to accom- 
 plish its purpose, must command or coerce the defendant to 
 do some affirmative act, and not merely to remain inactive or 
 to refrain from acting. (7) An injunction is not mandatory 
 which does not require the delivery of an article, but restrains 
 the defendants from permitting any other than the complain- 
 ant to take such article. (8) And it is not an objection to an 
 interlocutory injunction which is not mandatory in form that 
 obedience to its directions may indirectly require some act to 
 be done. (9) But an injunction to prevent the discontinuance 
 of a railroad station is so far mandatory that it should not issue 
 upon a preliminary application except under such circum- 
 stances as would justify the issuance of a mandatory injunc- 
 tion. (10) 
 
 (5) High on Injunctions, sec. 3. , 
 
 (6) High on Injunctions, sec. 2. 
 
 (7) Bailey v. Schnitzius, 45 N. J. Eq., 178. 
 
 (8) Manhattan Mfg., etc., Co. v. N. T. Stock Yards, etc., Co., 23 
 N. J. Eq., 161. 
 
 (9) McKirgan v. Layton, 18 N. J. K J., 366. 
 
 ( 10) Jacquelin v. E. R. R. Co., 69 N. J. Eq., 432. 
 
Mandatory Injunctions. 479 
 
 Preliminary Mandatory Injunctions — ^Jurisdiction. The 
 
 right of a court of equity in a proper case to grant a mandatory 
 injunction after a preliminary hearing has always been recog- 
 nized by the Court of Chancery, even though that be the whole 
 relief sought in such case. (ii) Mandatory injunctions are, 
 however, rarely granted before iiiial hearing, or before the * 
 parties have had a full opportunity to present all the facts of 
 the case in such manner as will enable the court to see and 
 judge what the truth is. They are always granted cautiously, 
 and are, as a rule, confined strictly to cases where a remedy 
 at law is plainly inadequate. (12) 
 
 To this may be further added the requirement that the inva- 
 sion of the right must be a material and substantial one, or 
 the damage irreparable. The right of the complainant must 
 be clear and unmistakable on the law and the facts, and there 
 must exist an urgent and paramount necessity for the issuance 
 of the writ in order to prevent extreme or other serious damage 
 which would ensue from withholding it. (13) So a mandatory 
 writ will issue where there is a deliberate, unlawful and inex- 
 cusable invasion by one man of another's land for the purpose 
 of continuing a trespass for the trespasser's gain or profit, 
 and there has been neither acquiescence nor delay in applying 
 for relief. (14) 
 
 Legal Rights Must Be Undisputed. A mandatory injunc- 
 tion will not be granted where the legal rights of the com- 
 plainants are disputed and unsettled, and where the acts com- 
 plained of are adequately remediable in the courts of law. (15) 
 
 (11) Stanford v. Lyon, 37 N. J. Eq., 94; Nat'I. Docks R. R. Co. 
 V. P. R. R. Co., 54 N. J. Eq., 10, and cases cited on page 16. 
 
 (12) Rogers Locomotivd Works v. Erie R. R. Co., 20 N. J. Eq., 
 379 ; Wakeman v. Erie R. R. Co., 35 N. J. Eq., 496 ; Whitecar v. 
 Michenor, 37 N. J. Eq., 6, 14; Stanford v. Lyon, 37 N. J. Eq., 94; 
 S. C, 42 N. J. Eq., IS7; Lord v. Carbon Iron Mfg. Co., 38 N. J. Eq., 
 452; Herbert v. P. R. R. Co., 43 N. J. Eq., 21; Delaware, &c., R. R. 
 Co. V. Central Stock Yard Co., 43 N. J. Eq., ^^_ ; affirmed, ib, 605 ; Hodge 
 V. Giese, 43 N. J. Eq., 342; Bailey v. Schnitzius, 45 N. J. Eq., 178; 
 affirmed, 53 N. J. Eq., 235 ; Savage v. Port Reading R. R. Co., 
 73 N. J. Eq., 308; P. R. R. Co. v. Kelley, 77 N. J. Eq, 129; Allman 
 V. United Brotherhood, &c., 81 Atl., 116. 
 
 (13) Longwood Valley R. R. Co. v. Baker, 27 N. J. Eq., 166; Savage 
 V. Port Reading R. R. Co., 73 N. J. Eq., 308. 
 
 (14) Broome v. N. Y. & N. J. Telephone Co., 42 N. J. Eq., 141. 
 (is) National Docks R. R. Co. v. P. R. R. Co., S4 N. J. Eq., 10; 
 
 Budd V. Camden, etc., R. R. Co., 61 N. J. Eq., 543 ; affirmed, 63 N. J. 
 Eq., 804; Savage v. Port Reading R. R. Co., 73 N. J. Eq., 308. 
 
480 Injunctions. 
 
 So an interlocutory mandatory injunction to compel defend- 
 ant, who was under covenant to repair a building to make 
 repairs, was refused where it appeared that the building was 
 not in any danger from the alleged non repair, that there was 
 a dispute as to the liability, and that the lessor, who was com- 
 ' plainant, had > liberty to make the repairs himself and had an 
 adequate remedy at law. (i6) 
 
 The rule is subject to this exception: A mandatory injunc- 
 tion may be ordered on motion upon an interlocutory applica- 
 tion to protect a person in the enjoyment of an easement or a 
 right of a like nature; but to justify its issuance even in such 
 cases the complainant's legal right must be clear and his injury 
 recent. (17) 
 
 When Mandatory Injunction Will Issue. A mandatory 
 injunction is awarded as of course whenever it is the neces- 
 sary and appropriate process for carrying the decree of the 
 court into effect. (18) So where adjoining owners held under 
 a common grantor, by deeds imposing a restriction as to the 
 building line, and one of them gave the other notice as soon 
 as it appeared that the latter's building would violate the 
 restriction, and the building was completed after a suit for an 
 injunction had been commenced, complainant was held entitled 
 to a mandatory injunction. (19) So where the trustees of a 
 church closed the church building against the duly appointed 
 preacher, on the ground that it was not for the interest of the 
 church that he should be its pastor and that he had been ap- 
 pointed against the wishes of the majority of its members, it 
 was held that they had no right to do so, and after answering, 
 a mandatory injunction was issued requiring them to open 
 the building to the preacher and the church. (20) 
 
 Where a public corporation is authorized by statute to per- 
 form certain acts upon obtaining the consent of private par- 
 ties or of municipal authorities, a preliminary mandatory in- 
 junction is necessary for the full protection of the statutory 
 
 (16) Jarvis v. Henwood, 25 N. J. Eq., 460. 
 
 (17) Rogers Locomotive Works v. Erie R. R. Co., 20 N. J. Eq., 
 379; Wakeman v. Erie R. R. Co., 35 N. J. Eq., 496; Hodge v. Giese, 
 43 N. J. Eq., 342. 
 
 (18) Stanford v. Lyon, 37 N. J. Eq., 94; S. C, 42 N. J. Eq., 411. 
 
 (19) Morrow v. Hasselman, 69 N. J. Eq., 612. 
 
 (20) Whitecar v. Michenor, 37 N. J. Eq., 6. 
 
Preliminary Injunctions. 481 
 
 rights of such parties, and will always be allowed where neces- 
 sary for the complete protection to which they are entitled 
 on undisputed facts. (21) The form of preliminary injunction 
 in such cases is that an injunction issue against the proposed 
 construction without the consent of the parties whose consent 
 is made by statute the condition precedent to such construc- 
 tion. (22) 
 
 The court upon a preliminary hearing where the facts are 
 practically undisputed and where a final hearing would be but 
 a repetition of the preliminary hearing, will grant relief even in 
 cases requiring a mandatory injunction. (23) 
 
 GENERAL PRINCIPLES GOVERNING ISSUANCE 
 OF PRELIMINARY INJUNCTION. 
 
 Discretion of Court. An application for a preliminary 
 injunction is addressed to the sound discretion of the court, 
 to be exercised according to the circumstances of each par- 
 ticular case. This discretionary power, however, is not arbi- 
 trary and unlimited, but must be exercised reasonably and in 
 harmony with well established principles. (24) There is no 
 power the exercise of which is more delicate, or which requires 
 greater caution, deliberation and sound discretion than the 
 issuance of an injunction. It is the strong arm of equity, that 
 should never be extended unless in cases of great injury, 
 where the courts of law cannot afford an adequate or commen- 
 surate remedy in damages. (25) The power of injunction 
 should always be exercised with caution ; to prevent, and not 
 to do mischief; to protect and sustain, not to render the enjoy- 
 
 (21) Franklin v. Nutley Water Co., 53 N. J. Eq., 601; "Grey v. 
 N. Y. & Phila. Traction Co., 56 N. J. Eq., 463; Summit v. N. Y. & 
 N. J. Telephone Co., 57 N. J. Eq., 123. 
 
 (22) Stockton V. Norfli Jersey Street R. R. Co., S4 N. J. Eq., 263, 
 267. 
 
 ■ (23) National Dock R. R. Co. v. P. R. R. Co., 54 N. J. Eq., 10; 
 O'Hara v. Nelson, 71 N. J. Eq., 161, 173. 
 
 (24) High on Injunctions, sec. 3. 
 
 (25) Bonaparte v. Camden & Amboy R. R. Co., i Bald. C. C, 205, 
 217 ; see also Sternberg v. O'Brien, 48 N. J. Eq., 370. 
 
4:82 Injunctions. 
 
 ment of rights and property uncertain; to put an end to, not 
 to encourage litigation. (26) 
 
 The same principles control the court, upon an application 
 for an injunction upon an order to show cause, when the 
 answer of the defendants and affidavits are presented by way 
 of resistance, as are applied to the decision of a motion to dis- 
 solve an injunction. (27) 
 
 Injunctions to Stay Proceedings at Law before Verdict. 
 
 No- injunction shall be granted to stay proceedings at law 
 before a verdict or judgment unless the Chancellor be satis- 
 fied of the complainant's equity either by affidavit certified at 
 the foot or back of the bill that the allegations thereof are true 
 or by other means. (27a) 
 
 Whenever a cause shall be at issue in any court of common 
 law, no injunction shall issue before answer filed, to stay the 
 trial of the cause, unless applied for and actually taken out 
 twenty days previous to the sitting of the court, in the county 
 in which the trial is to be had, except some special cause shall 
 be shown by affidavit to the Chancellor or to a Vice-Chancellor, 
 or to the Master authorized to report upon the propriety of 
 issuing the injunction prayed for, and it shall be made to 
 appear as aforesaid, that the injunction is applied for within 
 a reasonable time after the complainant became appraised of 
 the circumstances on which his application is' founded ; and 
 whenever an injunction shall be granted to stay proceedings 
 at law within twenty days previous to the sitting of the court 
 as aforesaid, it shall be upon condition that the party pay the 
 cost at law of the term at which the cause was noticed, which 
 have accrued up to the time of the service of the injunc- 
 tion. (28) 
 
 Complainant's Legal Right Must Be Clear. A complain- 
 ant who asks a -preliminary injunction must show a clear 
 right in himself, free from reasonable doubt or dispute. If 
 the complainant has no equity, or the showing of it is doubtful, 
 
 (26) Cornelius v. Post, 9 N. J. Eq., 196; Mullen v. Jennings, 9 
 N. J. Eq., 192. 
 
 (27) Stanton Mfg. Co. v. McFarland, 52 N. J. Eq., 85, 87; and see- 
 Dissolution of Injunctions, page 518', infra, where this subject is more 
 fully discussed. 
 
 (27a) Chancery Act, section 68, page 61, supra. 
 
 (28) Chancery Rule 125. 
 
Preliminary Injunctions. 483 
 
 it is of no significance how defective the title upon which the 
 defendant relies may be. (29) To justify the interference of 
 a court of equity on the ground that its interference is neces- 
 sary to prevent irreparable damage, the complainant's legal 
 right must be clear. There can be no damage, irreparable or 
 otherwise, where there is no violation of a right. (30) It is 
 impossible to emphasize too strongly the rule so often enforced 
 by the Court of Chancery, that a preliminary injunction will 
 not be allowed either where the complainant's right which he 
 seeks to have protected in limine by an interlocutory injunc- 
 tion is in doubt, or where the injury which may result from 
 the invasion of that right is not irreparable. (31) 
 
 It is a general rule that a person seeking to be protected in 
 the enjoyment of real property by injunction must not only 
 show that he has a good title to the property, but also that 
 he can have adequate protection only by the exercise of the 
 prohibitory power of the court. He must show a good title to 
 the property and a clear right to the remedy he asks. This 
 rule, however, is subject to exceptions. There are cases in 
 which it is the duty of a court of equity to interpose for the 
 
 (29) Morris Canal, &c., Co. v. Society, &c., S N. J. Eq., 203; Atty. 
 General v. Paterson, 9 N. J. Eq., 624; Morris Canal, &c., Co. v. C. R. R. 
 Co., 16 N. J. Eq., 419; Hinchman v. Paterson, &c., R. R. Co., 17 N. J. 
 Eq., 75 ; Hackensack, &c., Comm. v. N. J. Midland R. R. Co., 22 N. J. 
 Eq., 94; Black v. Delaware & Raritan Canal Co., 22 N. J. Eq., 130; 
 reversed, 24 N J. Eq., 465 ; Trustees v. Gray, 27 N. J. Eq., 278 ; Wake- 
 man V. N. Y. & Lake Erie R. R. Co., 35 N. J. Eq., 496; Albright v. 
 Teas, 37 N. J. Eq., 171 ; Halsey v. Rapid Transit R. R. Co., 47 N. J. Eq., 
 380; National Docks, &c., Co. v. P. R. R. Co., 54 N. J. Eq., 10; 
 Dobleman v. Gately, 64 N. J. Eq., 223 ; Amos v. Norcross, 58 N. J. Eq., 
 256; Roberts v. Scull, 58 N. J. Eq., 396; Swift v. D. L. & W. R. R. 
 Co., 66 N. J. Eq., 34; Oliphant v. Richman, 67 N. J. Eq., 280; 
 Jacquelin v. Erie R. R. Co., 69 N. J. Eq., 432; Somerville Water Co. 
 V. Somerville, 78 N. J. Eq., 199; Millville Gas Co. v. Vineland, 
 6s Atl., S04; Burrell v. Middleton, 65 Atl., 978. 
 
 (30) D. L. & W. R. R. Co. V. Central Stock Yards Co., 45 N. J. 
 Eq., so; affirmed, 46 N. J. Eq., 280. 
 
 (31) Citizens' Coach Co. v. Camden Horse R. R. Co., 29 N. J. Eq., 
 299; C. R. R. of N. J. V. Standard Oil Co., 33 N. J. Eq., 127; West 
 Jersey R. R. Co. v. Cape May, &c., R. R. Co., 34 N. J. Eq., 164 ; Booraem 
 V. North Hudson R. R. Co., 40 N. J. Eq., 557; Hagerty v. Lee, 45 N. J. 
 Eq., 255; Newark Aqueduct Board v. Passaic, 45 N. J. Eq., 393; 
 affirmed, 46 N. J, Eq., 552; Halsey v. Rapid Transit, etc., R. R. Co., 
 47 N. J. Eq., 380; Ivins v. Jacob, 67 N. J. Eq., 387; Lehigh Valley 
 R. R. Co. V. N. Y. & N. J. Water Co., 76 N. J. Eq., 504; McMillan 
 V. Kuehnle, 78 N. J. Eq., 251 ; Grand Castle of the Golden Eagle v. 
 Bridgeton Castle, 40 Atl., 849; Holmes v. Trustees, 41 Atl., 102; 
 Becker v. Gilbert, 60 Atl., 29. 
 
484 Injunctions. 
 
 protection of the property in dispute pending the determina- 
 tion of htigation concerning the legal title. In such cases the 
 court does not take jurisdiction for the purpose of settling the 
 rights of the parties, but simply to preserve the property until 
 the legal title to it is established. When a complainant invokes 
 judicial aid for such purpose he is not required to show an 
 incontestable legal title; he makes out a sufficient case when 
 he satisfies the court that his claim is a substantial one and 
 that there is a reasonable ground for doubting the validity 
 of the title of his adversary. He must also, of course, show 
 a case of danger. (32) 
 
 Disputed Questions of Law and Fact. An injunction will 
 not issue where the right of the complainant which it is designed 
 to protect depends upon a disputed question of law, about 
 which there may be a doubt, and which has not been settled 
 by the courts of law of this state. (33) So where complain- 
 ant's right, as an abutting lot owner, to prevent defendant 
 from stretching its wires over the land in the street in front 
 of his lot, defendant claiming to act under statutory and muni- 
 cipal authority, is debatable, a preliminary injunction to re- 
 strain defendant's proceeding will not be allowed. (34) And 
 so a doubt as to the authority of a corporation to do an act 
 is fatal to an application for an injunction to restrain such act 
 on the ground of want of authority. (35) So in a suit by 
 
 (32) Fulton V. Greacen, 36 N. J. Eq., 216, 219; Dodge v. P. R. R. Co.,. 
 43 N. J. Eq., 351; aMrmed, 45 N. J. Eq., 366; Brunson v. Board of 
 Freeholders, 76 N. J. Eq., 48D ; and see "Parties," page — , infra. 
 
 (33) Atty. Gen'l. v. Paterson, g N. J. Eq,, 624; Stevens v. Paterson, 
 &c., R. R. Co., 20 N. J. Eq., 126; Citizens' Coach Co. v. Camden 
 Horse R. R. Co., 29 N. J. Eq., 299; Long Branch v. West 
 End R. R. Co., 29 N. J. Eq., 566; National Docks R. R. Co. 
 V. Central R. R. Co., 32 N. J. Eq., 755 ; West Jersey R. R. Co. v. Cape 
 May, &c., R. R. Co, 34 N. J. Eq., 164; Muir v. Howell, 37 N. J. 
 Eq., 39; N. J. Gaslight Co. v. Consumers Gas Co., 40 N. J. Eq., 427; 
 Booraem v. North, Hudson R. R. Co., 40 N. J. Eq., 557; Mandeville- 
 V. Harman, 42 N. J. Eq., 185 ; N. Y. & N. J, Tel. Co. v. East Orange, 
 
 42 N. J. Eq., 490; Delaware, &c., R. R. Co. v. Central Stock Yard Co.,. 
 
 43 N. J. Eq., 77; affirmed, ib., 60S; Atlantic City Water Works Co.- 
 V. Consumers Water Co., 44 N. J. Eq., 427 ; Hagerty v. Lee, 45 N. J. Eq., 
 I ; afRrmed, 45 N. J. Eq., 255 ; P. R. R, Co. v. National Docks R. R. Co., 
 S3 N. J. Eq., 178; Stockton v. North Jersey S. R. R. Co., 54 N. J. Eq.,. 
 263; Ehret v. Camden, etc., R. R. Co., 60 N. J. Eq., 247; Sperry v. 
 Hertzberg, 69 N. J. Eq., 264. 
 
 (34) Roake v. American Telephone Co., 41 N. J. Eq., 35. 
 
 (35) Attorney General v. Delaware, etc., R. R. Co., 27 N. J. Eq., i. 
 
Preliminary Injunctions. 485 
 
 some of the stockholders to restrain a corporation from the 
 expenditure of further money on the ground that the object 
 for which it was organized has become impossible of attain- 
 ment, a -preliminary injunction will be denied where the fact 
 of such impossibility is not clearly made to appear. (36) But 
 the court will protect, by preliminary injunction, a dweUing 
 house against a nuisance which renders it uncomfortable, 
 though the existence of such nuisance is disputed. (37) 
 
 It is settled law in this state that where the fundamental 
 right under which the complainant prays equitable relief is the 
 legal title to an easement in lands of the defendant, and that 
 right is in substantial dispute, its establishment at law is 
 necessary to justify the interference of a court of equity. (38) 
 So when the title to the lands the use of which the complain- 
 ants seek to enjoin is in dispute, the court has no jurisdiction. 
 In such cases an injunction is never granted to prevent the 
 enjoyment of the property in dispute by the party in 
 possession. (39) 
 
 The court will not grant a preliminary injunction on a 
 questionable point of the constitutionality of a statute or of 
 its applicability to a party. (40) And where the right of the 
 complainants to an injunction depends upon the construction 
 of conflicting provisions of a statute, and the construction of 
 such provisions has never been settled by the courts of law, 
 the Court of Chancery will not interfere. (41) 
 
 When the principles of law on which the right to an injunc- 
 tion rests are disputed and will admit of doubt, a court of 
 equity, although satisfied as to what is the correct conclusion 
 of law upon the facts, may not, upon the opinion of the equity 
 judge, without a decision of the court of law establishing 
 such principles, grant the injunction. (42) 
 
 (36) Benedict v .Columbus Construction Co., 49 N. J. Eq., 23. 
 
 (37) Cronin v. Bloemecke, 58 N. J. Eq., 313. 
 
 (38) Imperial Realty Co. v. West Jersey, &c., Co., 81 At!., 837. 
 
 (39) Erie R. R. Co. v. D., L. & W. R. R. Co., 21 N. J. Eq., 283; 
 CoUoty V. Stein, 84 Atl., 193. 
 
 (40) Paterson R. R. Co. v. Grundy, 51 N. J. Eq., 213 ; and cases 
 cited at page 232. 
 
 (41.) Hackensack, etc., Coram, v. N. J. Midland R. R. Co., 22 
 N. J. Eq., 94- 
 
 (42) Higbee v. Camden, &c., R. R. Co., 20 N. J. Eq., 43s ; Hacken- 
 sack, etc.. Coram, v. N. J. Midland R. R. Co., 22 N. J. Eq., 94; Black v. 
 
486 Injunctions. 
 
 Violation of Right. A complainant seeking an injunction 
 must show not only the existence of his right, but must 
 aifirmatively show that the acts sought to be restrained will be 
 a violation thereof. There must be what the law regards as a 
 legal injury, and not a mere inconvenience. (43) So the asser- 
 tion of a right the existence or non-existence of which is prop- 
 erly determinable at law, and the exercise of which will do no 
 injury to the party denying it, is not ground for an injunc- 
 tion. (44) And so the mere fact 'that the constitution of an 
 Association of Undertakers and Liverymen contains clauses 
 obedience to which would result in a boycotting of the com- 
 plainant, will not entitle him to an injunction restraining such 
 boycott. (45) 
 
 Existence and Nature of the Injury — Threatened Injury. 
 
 The remedy by preliminary injunction being preventative in 
 its nature, it is not necessary that a wrong should have been 
 committed before a court of equity will interfere, since if 
 this were required, it would in most cases defeat the very 
 purpose for which the relief is sought by allowing the com- 
 mission of the act which complainant seeks to restrain. (46) 
 So if a threatened act of a defendant must from its character 
 necessarily be a nuisance to the complainant, and his legal 
 remedy is not adequate, the court will enjoin it even though 
 the act has not as yet been committed. (47) But a preliminary 
 injunction will not be granted merely to allay the fears and 
 apprehensions of individuals; they must show the court that 
 the acts against which they ask protection are not only 
 threatened, but that there is a reasonable probability, and not 
 a mere possibility, that they will be committed, to the 
 injury of the complainants. (48) 
 
 Delaware & Raritan Canal Co., 22 N. J. Eq., 130; Muir v. Howell, 37 
 N. J. Eq., 39- 
 
 (43) Miller v. Craig, 11 N. J. Eq., 175. 
 
 (44) Doughty V. Somerville, etc., R. R. Co., 7 N. J. Eq., 51. 
 
 (45) Van der Plaat v. Undertakers, etc., Assn., 70 N. J. Eq., 116. 
 
 (46) High on Injunctions, sec. 18. 
 
 (47) Wolcott V. Melick, 11 N. J. Eq., 204; Sayre v. Newark, 58 
 N. J. Eq., 136; reversed, 60 N. J. Eq., 361. 
 
 (48) Kean v. Colt, s N. J. Eq., 365 ; Butler v. Rogers, 9 N. J. Eq., 
 487; Lutheran Church v. Maschop, 10 N. J. Eq., 57; Vander Plaai 
 V. Undertakers, &c., Assn., 70 N. J. Eq., 116; Meyer v. Somerville 
 Water Co., 82 Atl., 915. 
 
Preliminary Injunctions. 487 
 
 A preliminary injunction will be refused where there exists 
 no reasonable ground for apprehending that the injury against 
 which the injunction is sought will be attempted. (49) So 
 where, upon a bill filed to restrain the construction of public 
 sewers, by the operation of which it was alleged the water 
 supplied by complainant to the inhabitants of another city 
 would be injuriously polluted, the defendant's answer and 
 acct)mpanying affidavits rendered it doubtful whether the 
 apprehended nuisance would arise, it was held that a prelimi- 
 nary injunction was properly refused. (50) So apprehensions 
 of irreparable injury founded upon theories which rest in 
 conflicting and indeterminate evidence will not justify the 
 issuance of a preliminary injunction, especially where it appears 
 that by the denial of such injunction adequate relief upon 
 final hearing will not be defeated. (51) 
 
 Injury Wholly Past. An injunction being a preventative 
 remedy, it follows that if the injury be already done, the writ 
 can have no operation, for it cannot be applied correctively 
 so as to remove it. It is not used for the purpose of punish- 
 ment or to compel persons to do right, but simply to prevent 
 them from doing wrong. (52) So where a trespass has been 
 committed more than one year before the bill was filed, and 
 there is no allegation that the defendants are preparing or have 
 threatened to commit similar depredations, there is nothing to 
 authorize an injunction. (53) 
 
 Character of Injury. It is not in every case of infringe- 
 ment of private rights that a court of equity will interfere by 
 injunction. In a court of law the inquiry is whether a wrong 
 has been committed, and if it has been, reparation must be 
 awarded. In equity the inquiry is, whether the injury about to 
 be committed is bf a serious, permanent, and irreparable charac- 
 ter, such as cannot *well be compensated in damages, and 
 
 (49) National Docks, &c., R. R. Co. v. P. R. R. Co., 52 N. J. Eq., 
 SSS; Oldin v. Bingham Copper, &c., Co., 64 N. J. Eq., 363. 
 (so) Newark Aqueduct Board v. Passaic, 46 N. J. Eq., 532. 
 (si) Helmsley v. Bew, S3 N. J. Eq., 241. 
 
 (52) Attorney General v. N. J. R. R., etc., Co., 3 N. J. Eq., 136; 
 United N. J. R. R. Co. v. Standard Oil Co., 33 N. J. Eq., 123. 
 
 (53) gouthard v. The Morris Canal, &c., Co., i N. J. Eq., 518. 
 
488 Injunctions. 
 
 which, therefore, requires the extraordinary power of Chancery 
 to prevent its commission. (54) 
 
 The court will not interfere by injunction to prevent injury 
 unless the harm will be great or the loss irreparable. (55) So 
 where it does not appear that irreparable mischief is liable to 
 ensue from permitting a party to go on exercising a right 
 which he claims, the court will not stop him before it has 
 examined the question of the right. (56) And the court will 
 not restrain defendant from trespassing upon or occupying 
 land claimed by complainants until determination of the title 
 to such land in a pending action of ejectment, where no irre- 
 parable injury will result and it is not claimed that defendants 
 are unable to respond in damages. (57) But injunction is the 
 proper remedy to restrain a railroad company from taking 
 complainant's property without compensation, not because an 
 injunction will issue to restrain an ordinary trespass, but to 
 protect the property Owner's constitutional right against aggres- 
 sion. (58) So a wrong which is a mere technical invasion of 
 complainant's rights and does not threaten serious injury will 
 not lay the ground for a preliminary injunction. (59) 
 
 Since the object of a preliminary injunction is to prevent 
 some threatening irreparable mischief which should be averted 
 until opportunity is afforded for a full and deliberate investi- 
 gation (60), it will not be ordered unless from the pressure 
 of an urgent necessity, and where the damage threatened dur- 
 ing the pendency of a suit is of an irreparable character. (61) 
 So where at a single point defendant's gas pipes were laid so 
 
 (54) Van Winkle v. Curtis, 3 N. J. Eq., 422, 426; Morris" Canal, 
 &c., Co. V. Society, &c., 5 N. J. Eq., 203 ; Atty. General v. Paterson, 
 9 N. J. Eq., 624; National Docks, &c., Co. v.. P. R. R. Co., 54 N. J. 
 Eq., 10. 
 
 (55) Quackenbush v. Van Riper, 3 N. J. Eq., 350; West v. Walker, 
 3 N. J. Eq.," 279 ; Delaware, &c., Canal Co. v. Camden, &c., R. R. Co., 
 15 N. J. Eq., 13; Lewis v. Elizabeth, 25 N. J. Eq., 298; Pnidden v. 
 Lindsley, 28 N. J. Eq., 378 ; reversed, 29 N. J. Eq., 615 ; Ballantine v. 
 Harrison, 37 N. J. Eq., 560; N. J. Junction R. R. v. Woodward, 
 61 N. J. Eq., I ; Bayliss v. Newark, &c., Traction Co., 63 N. J. Eq., 
 310; Willcox V. The Trenton Potteries Co., 64 N. J. Eq., 173. 
 
 (56) Thompson v. Paterson, 9 N. J. Eq., 624. 
 
 (57) Colloty V. Stein, 84 Atl., 193. 
 
 (58) Menge v. M. & E. R. R. Co., yz N. J. Eq., 177. 
 
 (59) Wakeman v. Erie R. R. Co., 35 N. J. Eq., 496. 
 
 (60) Thompson v. Paterson, g N. J. Eq., 624. 
 
 (61) Meyer v. Somerville Water Co., 82 Atl., 915.. 
 
Preliminary Injunctions. 489 
 
 close to complainant's pipes as to warrant an inference that 
 there might be some interference with the repair of complain- 
 ant's pipes, it was held that such fact did not constitute such 
 irreparable injury as to justify an injunction restraining the 
 continuance of defendant's improvement. (62) 
 
 Irreparable damage does not mean that the complainant must 
 show that all his financial transactions will be ruined unless the 
 relief sought is granted, but that with reference to a particular 
 right or property referred to in the bill of complaint he will be 
 irreparably injured unless such relief is granted. (63) The 
 injury may be irreparable either from the nature of the injury 
 itself or from the want of responsibility of the person commit- 
 ting it. (64) An injury is irreparable which is material and 
 cannot be adequately redressed by pecuniary damages. (65) 
 
 Existence and Adequacy of Remedy at Law. The rule 
 is well settled that an injunction will not lie where there is an 
 adequate remedy at law. The sole question always is as to the 
 adequacy of the legal remedy. (66) An injunction will only be 
 issued in cases where courts of law cannot afford an adequate 
 or commensurate remedy in damages. The right must be 
 clear, and the injury be impending or threatened so as to be 
 averted only by the protecting, preventive process of injunction. 
 (67) So an injunction will not be allowed where an action 
 of ejectment will restore the complainant to all his rights. (68) 
 Nor will injunction lie when there has been an adequate remedy 
 at law by certiorari, notwithstanding that during the period 
 that such remedy was open the decision of the Supreme Court 
 on the question involved stood adverse to complainant's claim, 
 whereas subsequently the ruling as it then stood was not sus- 
 
 (62) Atlantic City Gas, etc., Co. v. Consumers Gas, etc., Co., 70 
 N. J. Eq., S36. 
 
 (63) Oliphant v. Richman, 67 N. J. Eq., 280. 
 
 (64) Kerlin v. West, 4 N. J. Eq., 449. 
 
 (65) Hodge V. Giese, 43 N. J. Eq., 432. 
 
 (66) Wooden v. Wooden, 3 N. J. Eq., 429; Kerlin v. West,, 4 N. J. 
 Eq., 449; Hoagland v. Delaware Township, 17 N. J. Eq., 106; Higbee 
 V. Camden, etc., Transportation Co., 20 N. J. Eq., 43s ; Attorney 
 General v. Brown, 24 N. J. E^., 89; Pickert v. Ridgefield Park R. R. Co., 
 25 N. J. Eq., 316; Jersey City v. Gardner, 33 N. J. Eq., 622; Pronick 
 V. Spirits Distilling Co., 58 N. J. Eq., 97 ; Fox v. Lynch, 64 Atl., 439. 
 
 (67) Morris Canal, &c., Co. v. C. R. R. Co., 16 N. J. Eq., 419. 
 
 (68) Morris Canal, etc., Co.. v. Fagin, 22 N. J. Eq., 430; Colloty 
 V. Stein, 84 Atl, 193. 
 
490 Injunctions. 
 
 tained, since the remedy at law included recourse to ihe court 
 of final resort. (69) 
 
 Jurisdiction by injunction, mandatory or otherwise, merely 
 to compel public officers to perform their duties in relation to 
 the enforcement of the criminal law, has never been exercised 
 by the Court of Chancery. For any such willful violation of 
 merely public duties the remedies are exclusively in other 
 courts. Courts of equity, on proper occasion, interfere to pro- 
 tect property rights, and for this purpose sometimes interfere 
 where the acts complained of are crimes ; but they never exer- 
 cise a jurisdiction based solely on the right of a suitor or citi- 
 zen to prevent the commission of a crime or its continu- 
 ance. (70) 
 
 The remedy by indictment is so efficacious that courts of 
 equity entertain jurisdiction to redress a grievance of a public 
 nuisance by injunction with great reluctance, whether their 
 intervention is invoked at the instance of the Attorney General 
 or of a private individual who suffers some injury therefrom 
 distinct from that of the public ; and they will only do so where 
 there appears to be a necessity for the interference. (71) So 
 it has been held that the remedy at law by indictment is ade- 
 quate to remove an encroachment upon a public street con- 
 sisting of a building extending into it. The courts of law are 
 the proper tribunals to settle the facts of encroachment ; a 
 court of equity will not interfere by injunction, unless under 
 peculiar circumstances of pressing and irreparable injury. (72) 
 
 Damages as a Remedy. Injunction will not lie where 
 there is an adequate remedy by an action at law for damages, 
 and there is nothing to show that the damages which might 
 be awarded at law could not be realized, and nothing of the 
 character of irreparable injury is present. (73) So where 
 
 (69) Dusenbury v. Newark, 25 N. J. Eq., 295. 
 
 (70) GilboTough V. West Side Amusement Co., 64 N. J. Eq., 27, 36; 
 Ocean City Ass'n. v. Schurch, 57 N. J. Eq., 268; McMillan v. Kuehnle, 
 76 N. J. Eq., 256, 263 ; S. C, 78 N. J. Eq., 251 ; Green v. Piper, 84 Atl., 
 194. 
 
 (71) Attorney General v. Brown, 24 N. J. Eq., 89; Morris & Essex 
 R. R. Co. V. Prudden, 20 N. J. Eq., 530. 
 
 (72) Attorney General v. Heislion, 18 N. J. Eq., 410. 
 
 (73) Warne v. Morris Canal, &c., Co., s N. J. Eq., 410; Quacken- 
 bush V. Van Riper, 3 N. J. Eq., 350; Wooden v. Wooden, 3 N. J. Eq., 
 429; Tichenor v. Wilson, 8 N. J. Eq., 197; Morris Canal, &c., Co. v. 
 C. R. R. Co., 16 N. J. Eq., 419; Herbert v. P. R. R. Co., 43 N. J. Eq., 
 21. 
 
Preliminary Injunctions. 491 
 
 defendants agreed with complainant not to use any trading 
 stamps except those of complainant pending a contract, but in 
 breach thereof used the stamps of complainant's competitors, 
 it was held that his remedy at law was adequate, and a bill 
 for an injunction was properly dismissed. (74) But when 
 complainant's damages are uncertain, he has no adequate rem- 
 edy at law, and is entitled to an injunction. (75) So where, 
 in an action to enjoin defendants from using complainant's 
 private court as an access to defendant's property, there is no 
 substantial evidence of any right in defendants to use the 
 court, and damages at law would not be an adequate remedy, 
 complainant will be granted an injunction without being sent 
 to law to establish his legal rights. (76) 
 
 Defense to Action at Law as Remedy. Where complain- 
 ant has an adequate remedy by way of defense to an action 
 at law, an injunction will not lie. So equity will not restrain 
 an action for rent and cancel the lease on the ground that the 
 same is void because the property was leased for a gambling 
 house, since there is an adequate remedy at law by defense 
 to the action. (77) So where a complainant sought to enjoin 
 a sale of mortgaged chattels, and the issue was the validity 
 of a chattel mortgage alleged to be invalid under the registry 
 laws', it was held that complainant had a full and complete 
 remedy at law by way of defense to the action, and that the 
 injunction would not be granted. (78) 
 
 Remedy in Equity More Efficacious than at Law. Equity 
 will not refuse to interpose when the remedy is more complete 
 and perfect in equity than at law. (79) Difficulty of ascer- 
 taining complainant's damages, defendant's solvency, multi- 
 plicity of suits and the continuing character of the injury are 
 all to be considered in determining the question of the adequacy 
 of complainant's remedy at law. (80) So where defendant vio- 
 lated an agreement to sell complainant's beer exclusively for 
 five years, it was held that he had no adequate remedy at law, 
 
 (74) Sperry, etc., Co. v. Vine, 66 N. J. Eq., 339. 
 
 (75) Hoboken, &c., R. R. Co. v. Jersey City R. R. Co., 70 N. J. Eq., 
 123. 
 
 (76) Robertson v. Meyer, 59 N. J. Eq., 366. 
 
 (77) Slater v. Schweigler, 54 Atl., 937. 
 
 (78) Jersey City Milling Co. v. Blackwell, 58 N. J. Eq., 122. 
 
 (79) Henwood v. Jarvis, 27 N. J. Eq., 247. 
 
 (80) Peoples' Brewing Co. v. Levin, 81 Atl., 1114. 
 
4:92 Injunctions. 
 
 because of the difficulty of ascertaining and proving at law the 
 amount of beer defendant had sold in violation of the agree- 
 ment, the difficulty of showing the profits complainant would 
 have made, the necessity of a multiplicity of suits, and the 
 uncertainty of the pecuniary responsibility of the defendant. 
 (8i) Although the Court of Chancery will respect the inten- 
 tion of the legislature in providing for the institution of sum- 
 mary proceedings for the trial of rights, and will in all proper 
 cases leave parties' to their remedy at law, yet it will not, in a 
 proper case, refuse equitable relief merely because the legisla- 
 ture has, in its wisdom, made these proceedings sum- 
 mary. (82) 
 
 Multiplicity of Suits. Even when there is a legal remedy, 
 equity will interfere by injunction to prevent an injury which 
 threatens irreparable damage, or a continuing injury when the 
 legal remedy therefor may involve a multiplicity of suits. The 
 criterion of the application of this jurisdiction is the inadequacy 
 of the legal remedy, depending on whether, first, the injury 
 done or threatened is of such a nature that, when accomplished, 
 the property cannot be restored to its original condition or 
 cannot be replaced by means of compensation in money, and 
 second, whether compensation for the entire wrong can be 
 obtained without resort to a number of suits. (83) 
 
 In considering what is an adequate remedy at law, the courts 
 will take into consideration not only the question of the multi- 
 plicity of suits, but also the pecuniary responsibility of the 
 defendant. (84) In such cases, incidentally to the award of 
 relief, the complainant's rights must and properly will be deter- 
 mined and declared by the court. (85) 
 
 (81) Feigenspan v. Nizolek, 65 Atl., 703. 
 
 (82) Heiiwood V. Jarvis, 27 N. J. Eq., 247. 
 
 (83) Kerlin v. West, 4 N. J. Eq., 449; Rogers Locomotive, &c., 
 Works V. Erie R. R. Co., 20 N. J. Eq., 379; Manhattan Mfg. Co. v. 
 N. J. Stock Yard Co., 23 N. J. Eq., 161-166; Shinier v. Morris Canal, 
 &c, Co., 27 N. J. Eq., 364; Gawtry v. Leland, 40 N. J. Eq., 323; White 
 V. Tidewater Oil Co., 50 N. J. Eij., i ; Barr v. Essex Trades Council, 
 S3 N. J. Eq., 102; Point Pleasant Electric Light Co. v. Bay Head, 
 62 N. J. Eq., 296; Sked v. Pennington Spring Water Co., 73 N. J. Eq., 
 676. 
 
 (84) Britton v. Hill, 27 N. J. Eq., 389; Feigenspan v. Nizolek, 
 6s Atl., 703. 
 
 (8s) White v. Tidewater Oil Co., so N. J. Eq., i. 
 
Preliminary Injunctions. 493 
 
 Conduct, of Complainant as Affecting Right. The power 
 to restrain by injunction is purely equitable and must be gov- 
 erned by equitable principles. One of these is that parties 
 coming into equity must do equity, and must affirmatively show 
 that they are equitably entitled to the relief which they seek. 
 The court will refuse its aid to one who remains' silent when 
 duty, candor and fair dealing require him to speak out. (86) 
 A court of equity will never lend its active 'aid to a party who 
 by superior knowledge and artful silence has gained an unfair 
 advantage over another. (87) 
 
 Laches in Seeking Relief. It is a rule of courts of equity 
 and a dictate of sound reason that when a party desires extra- 
 ordinary aid he must be prompt in his application. (88) If 
 the cornplainant has slept over his rights and has seen defend- 
 ants making contracts and expending large sums of money in 
 the prosecution of their works, and has taken no steps to 
 restrain them, it is fatal to his application. (89) So when land 
 owners stand by and permit street improvements to be made 
 by a contractor in violation of his contract, and permit the 
 authorities to pay for such improvements, equity will not enjoin 
 the authorities from enforcing payments of assessments made 
 therefor. (90) So where a corporation, acting bona fide and 
 upon its not unreasonable construction of a public grant, has 
 been permitted to expend a large sum of money in the con- 
 struction of a public work, in the confidence that it possessed 
 requisite legislative authority, without a word of protest or 
 remonstrance until the work is practically completed, equity 
 
 (86) Ross V. Elizabethtown, &c., R. R. Co., 2 N. J. Eq., 422; and 
 see "Grounds for Dissolving," page 518, infra. 
 
 (87) Erie R. R. Co. v. D., L. & W. R. R Co., 21 N. J. Eq., 283; 
 Traphagen v. Jersey City, 29 N. J. Eq., 206; affirmed, ib., 650. 
 
 (88) Scudder v. Trenton Dela. Falls Co., i N. J. Eq., 694; Southard 
 V. Morris Canal, etc., Co., i N. J. Eq., 518; Trustees v. Gilbert, 12 N. J. 
 Eq., 78; Pickert v. Ridgefield Park R. R. Co., 25 N. J. Eq., 316; 
 Trout V. Lucas, 54 N. J. Eq., 361 ; Ocean City Assn. v. Schurch, 57 
 N. J. Eq., 268; Lutjen v. Lutjen, 64 N. J. Eq., 773; Ocean City 
 Ass'n. V. Chalfant, 65 N. J. Eq., 156; Bell v. P. R. R. Co., 10 Atl., 
 741; Hyde v. French, 21 Atl., 1069; Roebling v. Bd. of Public Works, 
 29 Atl., 149; Mumford v. Ecuador Develop Co., so Atl., 476; Schoenfeld 
 V. American Can Co., 55 Atl., 1044; Island Heights Assn., v. Island 
 Heights Water Power Co., 62 Atl., 773. 
 
 (89) Scudder v. Trenton Dela. Falls Co., i N. J. Eq., 694. 
 
 (90) Dusenbury v. Newark, 25 N. J. Eq., 295 ; Liebstein v. Newark, 
 24 N. J. Eq., 200. 
 
494 Injunctions. 
 
 will refuse its aid even to the state, leaving it to it§ remedy at 
 law. (91) 
 
 It will not relieve a party from the consequences of his delay 
 in bringing suit for an injunction that he was at liberty to 
 look for protection to legal proceedings instituted by another 
 party who had a far greater interest in the matter, when the 
 injunction sought was denied in a former suit brought in the 
 virtual interest of such other party. (92) Nor are laches of 
 a covenantee in seeking to enjoin breaches of the covenant 
 excused on the ground that the injunction sought is to prevent 
 the doing of business on Sunday. (93) But where a party 
 seeks an injunction to restrain a violation of a covenant under 
 a lease, and such covenant is a continuing covenant running 
 with the land, and its violation is of constant occurrence, his 
 title to relief is not forfeited by long delay in making his 
 application. (94) As a general rule, where the jurisdiction of 
 courts of equity and law are concurrent, if a recovery at law 
 is barred by delay, no recovery can be had in equity. (95) 
 
 As a general rule whether the defendant has been prejudiced 
 by delay in commencing suit against him enters into the 
 question whether the complainant has by his delay forfeited 
 his claim to the consideration of equity. (96) And so a suitor 
 who by laches has made it impossible for the court to enjoin 
 his adversary without inflicting great injury upon him will be 
 refused the aid he seeks, and left to pursue his ordinary legal 
 remedy. (97) 
 
 Relative Convenience and Injury. The consideration of 
 relative convenience and inconvenience to the parties is one of 
 the principal guides which govern courts of equity in the mat- 
 ter of granting or v^ithholding relief by interlocutory injunc- 
 tion. (98) Where the legal right is not sufficiently clear to 
 
 (91) Scudder v. Trenton Delaware Falls Co., i N. J. Eq., 694; 
 Attorney General v. Delaware, etc., R. R. Co., 27 N. J. Eq., i ; affirmed, 
 ih., 631. 
 
 (92) Easton v. N. Y. & L. B. R. R. Co., 24 N. J. Eq., 49. 
 
 (93) Ocean City Ass'n. v. Schurch, 57 N. J. Eq., 268. 
 
 (94) Society, etc. v. Low, 17 N. J. Eq., 19. 
 
 (95) Tooker v. National Sugar, &c., Co., 84 Atl., 10. 
 
 (96) Henwood v. Jarvis, 27 N. J. Eq., 247. 
 
 (97) Traphagen v. Jersey City, 29 N. J. Eq., 206; aMrmed, ib., 650. 
 
 (98) High on Injunctions, sec. 13 ; Fulton v. Greacen, 36 N. J. 
 Eq., 216, 220; and see "Grounds for Dissolving," page 518, infra. 
 
Preliminary Injunctions. 495 
 
 enable a court of equity to form an opinion in deciding an 
 application for a preliminary injunction, it will generally be 
 governed by considerations of relative convenience and incon- 
 venience which may result to the parties from granting or 
 withholding the writ ; and where, upon balancing such con- 
 siderations, it is apparent that the act complained of is likely 
 to result in irreparable injury to complainant, and the balance 
 of convenience preponderates in his favor, the injunction will 
 be granted. (99) 
 
 Where the preliminary restraint asked for by complainant 
 is not injurious to the defendants, but its denial may work 
 great harm to the complainant, a preliminary injunction will 
 be granted until the final hearing gives an opportunity to pass 
 upon the whole case by a single judgment. (100) So when- 
 ever the court is satisfied that if it does not enjoin the defend- 
 ant it is probable that the subject matter of the -suit, so far as 
 the complainant is concerned, will be destroyed, it will not 
 hesitate to exercise its power.(i) 
 
 So in determining whether or not a receiver should be 
 appointed, the court considers the consequences of the pro- 
 posed action. If complainant shows a probability that he will 
 succeed in establishing his case at the hearing, and the appoint- 
 ment of the receiver will do little injury to the defendant, 
 while if the appointment is not made the subject of the liti- 
 gation will be removed beyond the reach of the court, a 
 receiver should be appointed. (2) And so where upon a bill 
 to restrain proceedings at law the question is one of fraud, 
 and the interests involved are of great magnitude, and the 
 answers do not satisfy the mind of the court that injustice 
 would not be done the complainant if he were not permitted ■ 
 to pursue his application for relief in the Court of Chancery, 
 that court will not remit him to a court of law when the 
 matter can be better examined in equity, especially when the 
 proceeding in the law court is of a summary character, and 
 
 (99) High on Injunctions, sec. 13. 
 
 (100) Johnston v. Corey, 25 N. J. Eq., 311 ; Camden and Atlantic 
 R. R. Co. V. Atlantic, &c., R. R. Co., ^6 N. J. Eq., 69; Connelly Mfg. 
 Co. V. Wattles, 49 N. J. Eq., 92; Jonas Glass Co. v. Glass Blowers 
 Assn., 64 N. J. Eq., 640; Jackson v. Miller, 69 N. J. Eq., 182. 
 
 (i) Fulton V. Greacen, 36 N. J. Eq., 216, 220; and see "Evidence, 
 Weight and Sufficiency," page 513, infra. 
 
 {2)' Sobenheiraer v. Wheeler, 45 N. J. Eq., 614. 
 
496 Injunctions. 
 
 the injury which may be inflicted upon him, if fraud be per- 
 mitted to prevail, will be irreparable. (3) 
 
 A preliminary injunction to restrain a nuisance affecting a 
 property right is sometimes granted to protect that right pend- 
 ing hearing, though the answer and affidavits question or 
 deny the nuisance, if the right to be protected is not disputed, 
 and satisfactory proof by affidavit is made of specific instan- 
 ces of the violation of such right; but unless irreparable injury 
 will result, injunction will usually be denied until final hear- 
 ing, and sometimes until after determination of the questions 
 of law involved. (4) 
 
 Where on the other hand it appears that greater danger is 
 likely to result from granting than from withholding the relief, 
 or where the inconvenience seems to be equally divided as 
 between the parties, the injunction will be refused, and the 
 parties left as they are until their legal rights can be determined 
 at law or upon final hearing. (5) An injunction will not issue 
 when the benefit secured by it is of little importance, while it 
 will operate oppressively and to the great annoyance and injury 
 of the defendant, unless the wrong complained of is so wanton 
 and unprovoked in its character as properly to deprive the 
 wrongdoer of any consideration as to the injurious conse- 
 quences of an injunction. (6) So a preliminary injunction will 
 not issue at the suit of a municipal corporation to restrain the 
 running of an electric wire across a street at a height of twenty- 
 five or thirty feet from the ground, where the maintenance of 
 such wire is not prohibited by ■ any ordinance and will not 
 interfere with the use of the street by the public for -street 
 purposes. (7) 
 
 (3) Henwood v. Jarvis, 27 N. J. Eq., 247. 
 
 (4) Board of Health v. Dupont, &c., Powder Co., 80 Atl., 998. 
 
 (5) High on Injunctions, sec. 13. 
 
 (6) Shreve v. Voorhees, 3 N. J. Eq., 25 ; Quackenbush v. Van 
 Riper, 3 N. J. Eq., 350; Torrey v. Camden & Amboy R. R. Co., 18 
 N. J. Eq., 293 ; Morris Canal, &c., Co. v. C. R. R. of N. J., 16 N. J. Eq., 
 419; Stevens v. Paterson, &c., R. R., 20 N. J. Eq., 126; Higbee v. 
 Camden, &c., R. R. Co., 20 N. J. Eq., 435; M. & E. R. R. Co. v. 
 Prudden, 20 N. J. Eq., 530; Hackensack, etc., Comm. v. N. J. Midland 
 R. R. Co., 22 N. J. Eq., 94; Scanlan v. Howe, 24 N. J. Eq., 273; Hugg 
 V. Fath, 37 N. J. Eq., 46 ; Simmons v. Paterson, 60 N. J. Eq., 385 ; 
 Atlantic City, &c., Co. v. Consumers, &c., Co., 70 N. J. Eq., 536; 
 affirmed, 61 Atl., 750. 
 
 (7) Borough of Brigantine v. Holland Trust Co., 35 Atl., ZAA- 
 
Preliminary Injunctions. 497 
 
 So where a railroad company has irregularly taken lands, but 
 has capacity to acquire title, equity will not interpose to stay 
 the operation of the railroad, where the advantage to the 
 complainants would be small and the injury to the company 
 incalculably great. (8) So an injunction will not be ordered 
 which will continue a dangerous condition in a highway, where 
 the damage to the applicant is largely conjectural. (9) Where 
 the complainants' right depends upon the construction of a 
 doubtful contract, and the injunction would give them an 
 unconscionable advantage, they will be left to their remedy at 
 law. (10) 
 
 Injury and Inconvenience to the Public. No injunction 
 will be allowed against an incorporated company, nor against 
 any individual, the result of which is to stay the progress of 
 any public work authorized by the law of this state, without 
 an order first made to show cause as provided in Rule 122 (11), 
 and this rule will not be dispensed with in any case, except by 
 an order of the Chancellor first obtained and filed, unless such 
 injunction be granted by the Chancellor himself. (12) As a 
 general rule, a restraining order will not issue to restrain the 
 construction of any public work authorized by a law of the 
 state until after hearing upon the rule to show cause ; but the 
 power of the court to control the operation of the rule and to 
 grant such a restraining order before or during the progress of 
 the hearing is not questioned. (13) 
 
 Nothing short of a threatened destruction of property of 
 great value by acts of wanton lawlessness inflicting injuries 
 which must result in irreparable damage will justify the grant- 
 ing of an injunction staying an important public work. (14) 
 So when a bridge company setting up an exclusive right within 
 certain limits ask an injunction to prohibit the building of a 
 
 (8) Erie R. R. Co. v. D., L. & W. R. R. Co., 21 N. J. Eq., 283. 
 
 (9) Scharr v. Camden, 49 Atl., 817. 
 
 (10) Society, &c. v. Butler, 12 N. J. Eq., 498-503. 
 
 (11) See page 504. infra. 1 
 
 (12) Chancery Rule 120. 
 
 (13) Society &c. v. Butler, 12 N. J. Eq., 498; Delaware, etc., Canal 
 Co. V. Raritan, etc., R. R. Co., 14 N. J. Eq., 445; Sugar Refining Co. 
 V. Jersey City, 26 N. J. Eq., 247 ; Easton v. N. Y. & L. B. R. R. Co., 24 
 N. J. Eq., 49- 
 
 (14) Dodge V. P. R. R. Co., 43 N. J. Eq., 351 ; affirmed, 45 N. J. Eq., 
 366; Grey v. Greenville, &c., R. R. Co., 60 N. J. Eq., 153; reversed, 
 62 N. J. Eq., 768; and see "Grounds for Dissolving," page 518, infra. 
 
498 Preliminary Injunctions. 
 
 bridge within such limits, a court of equity will not lend its 
 assistance when it appears from the answer that the bridge of 
 the complainants has been so far appropriated to the use of 
 a railroad as to render it inconvenient and dangerous for ordi- 
 nary travel, and that a public necessity for a new bridge 
 exists. (15) 
 
 A suitor who seeks to have a pubHc improvement enjoined 
 must apply promptly, show an invasion of a clear right, and 
 prove that he has no other adequate remedy. (16) And the 
 extent of .the expenditure in the execution and construction of 
 a public work is to a certain degree the measure of the acqui- 
 escence. (17) Thus delay on the part of an adjoining owner 
 until the work has been done, before remonstrating or trying 
 •to prevent the occupation of a street by a railroad company 
 with its tracks, etc., involving an immense outlay of money, 
 will be fatal to his application for relief.(i8) So where a 
 party stands by and encourages another in the construction of 
 a puplic work at great cost, the court will not interfere with 
 it at his instance, such conduct stopping him from calling in 
 question the legality of defendant's acts. (19) 
 
 A mere objection or protest or threat to take proceedings is 
 not sufficient to exclude the consequences of laches or acqui- 
 escence in an important public work which has been permit- 
 ted to proceed alm(3st to completion, and on account of which 
 expenditures and liabilities have been incurred. (20) 
 
 SUITS FOR INJUNCTIONS. 
 
 Jurisdiction. The power to issue injunctions is vested in 
 the Court of Chancery, which consists of a Chancellor (i), 
 and not more than eight Vice-Chancellors, appointed by the 
 Chancellor and commissioned by the Governor. (2) Injunc- 
 
 (iS) President, &c. v. Trenton City Bridge Co., 13 N. J. Eq., 46. 
 
 (16) Traphagen v. Jersey City, 29 N. J. Eq., 206; afRrmed, ib., 650; 
 Scanlan v. Howe, 24 N. J. Eq., 273. 
 
 (17) Easton v. New York & L. B. R. R. Co., 24 N. J. Eq., 49. 
 
 (18) Meredith v. Sayre, 32 N. J. Eq., 557. 
 
 (19) E. R. R. Co. V. D., L. & W. R. R. Co., 21 N. J. Eq., 283. 
 
 (20) Easton v. N. Y. & L. B. R. R. Co., 24 N. J. Eq., 49. 
 (i) Constitution, Art VI, sec. IV, par. i. « 
 
 (2) Chancery Act, sec. 95, page 77, supra. '. ; 
 
Parties Complainant. 41)!J 
 
 tions issue upon the determination of a Vice-Chancellor advis- 
 ing the same. (3) 
 
 In case of the sickness of the Chancellor or his temporary 
 absence from the state, he may by order filed with the clerk 
 authorize such Master in Chancery as may be therein named 
 for that purpose to grant and 'dissolve injunGtions; and all acts 
 of such Master shall have the same force and effect as if made 
 and done by the Chancellor in person. (4) 
 
 In the absence of the Chancellor from the city of Trenton, 
 a petition addressed to him for an injunction may be presented 
 to such Master of this Court, residing in the city of Trenton, as 
 the Chancellor shall for that purpose, by order, designate ; and 
 the Master shall exercise the power of reporting upon the 
 propriety of issuing the injunction prayed for ; and in case the 
 Master shall report that an injunction ought to issue, it shall 
 be issued by the clerk on filing with him the said petition and 
 report. Applications for the dissolution of such injunctions 
 are to be made, as in other cases, to the Chancellor or to a 
 Vice-Chancellor, who shall, upon a regular motion day, sit 
 instead of the Chancellor. (5) 
 
 Parties — In General. The general principles as to the 
 joinder of parties complainant and defendant in proceedings 
 in courts of equity 'apply to the case of an injunction bill, and 
 by these principles the court is guided in determining whether 
 proper parties have been brought before it. (6) 
 
 Parties Complainant. Any number of persons severally 
 owning or possessing distinct tenements injuriously affected 
 by a common nuisance or other common grievance may join 
 in a bill for injunction or relief; provided, that it shall be in 
 the discretion of the Chancellor to strike out of the bill any 
 of such complainants when, in his opinion, the justice of the 
 case or convenience of proceeding shall require it. (7) So on 
 the division of a farm to which is attached the right to drain 
 through the lands of another, the owners of the several por- 
 tions may join in a suit to enjoin the obstruction of the drain- 
 
 (3) Chancery Rule 131. 
 
 (4) Chancery Act, sec. 89, page 72, supra. 
 
 (5) Chancery Rule 121. 
 
 (6) See "Parties,"' page 91, supra. 
 
 (7) Chancery Rule 132; and see "Multifariousness," page 163, supra. 
 
500 Injunctions. 
 
 age. (8) So where the owner of a dam and water power 
 executed leases, granting to such lessees the right to draw a 
 specified quantity of water from the nearest raceway or canal, 
 so long as the water in the main reservoir should stand at a 
 specified height, and providing that if the water should fall 
 below such height the gates of, the lessees should be shut 
 off in the reverse order of their numbers until the height of the 
 water was restored, it was held that the lessor and lessees were 
 properly joined as parties complainant on a bill filed against the 
 city fouling the stream by discharging its sewage into it. (9) 
 
 A suit for an injunction can be maintained only by one 
 whose special or personal interest is affected by the wrongful 
 act ; and hence where an interest is neither greater than nor of 
 a different character from that of every other citizen of the 
 same class, it is insufficient to maintain the injunction. So a 
 bill seeking relief by way of injunction can be maintained by 
 a private person only on the groimd of apprehended damage 
 peculiar to himself, and distinct from that done to the pubhc 
 at large. (10) 
 
 Where the owner of land abutting on a street, the roadbed 
 of which is being paved in an imperfect manner, files his bill 
 to restrain the Common Council from paying for such work, 
 the bill should be for the benefit of the other land owners 
 similarly situated, as well as for that of the complainant. (11) 
 A misjoinder in a suit for an injunction against Sunday ball 
 games as a nuisance, because some of the complainants alleged 
 injury from the noise on the ball grounds and others from the 
 noise of persons in the street, may not be urged against a 
 preliminary injunction, as this may be remedied later by requir- 
 ing an election, and striking from the record the names of 
 complainants not affected by the kind of injury on which it is 
 elected to rely. (12) 
 
 (8) Springer v. Lawrence, 47 N. J. Eq., 461 ; rez'ersed, 49 N. J. Eq., 
 289. 
 
 (9) Doremus v. Mayor, etc., of Paterson, 63 N. J. Eq., 606. 
 
 (10) Allen V. Board of Chosen Freeholders, 13 N. J. Eq., 68; 
 Van Wagenen v. Cooney, 45 N. J. Eq., 25 ; Halsey v. Rapid Transit 
 Co., 47 N. J.. Eq., 380; Township of Raritan v. Port Reading, 49 
 N. J. Eq., 12; H. B. Anthony Shoe Co. v. West Jersey R. R. Co., 
 57 N J. Eq, 607. 
 
 (11) Lodor V. McGovern, 48 N. J. Eq., 275. 
 
 (12) Seastream v. N. J. Exhibition Co., 67 N. J. Eq., 178; and see 
 "Multifariousness," page 163, supra. 
 
Parties Defendant. 501 
 
 Parties' Defendant. The rule is well settled that the 
 court has no power to grant an injunction against a person 
 who is not a party to the suit. (13) Purchasers, mortgagees, 
 judgment creditors, and others having an interest in the mort- 
 gaged premises and whose rights are to be affected by the 
 decree, are necessary parties to an injunction bill seeking to 
 restrain the sale of the mortgaged premises under judgments 
 and executions against' the mortgagor. (14) So to a bill in 
 Chancery seeking to enjoin an executor in his administration 
 of an estate, and praying for a decree that will take from hi>m 
 the title to all personal property of which the testator was 
 possessed at the time of his death, the executor conomine is a 
 necessary party. (15) 
 
 A corporation must be joined where injunctive relief against 
 it is sought. So where the question is whether certain acts done 
 by trustees of a rehgious society are within or without their 
 powers, the corporation is a proper and necessary party. (16) 
 And where a stockholder applied for an injunction to prevent 
 the execution of a contract between connecting railroads for 
 the division of earnings of freight and passengers carried 
 over such roads, making only the company of which he was a 
 stockholder the defendant, it was held that the other railroad 
 company with which the proposed contract was to be executed 
 was a necessary party. (17) 
 
 An officer of a fire department, deprived of his office and 
 salary for the unexpired term by an ordinance abolishing the 
 office and the entire existing system of extinguishing fires in 
 the city, is a necessary party to a bill to enjoin the city from 
 paying his claim for salary. (18) So election officers are 
 necessary parties to a suit to enjoin the city from paying such 
 officers compensation for their services in conducting a munici- 
 
 (13) Van Derveer v. Tallman, i N. J. Eq., 9; Schalk v. Schmidt, 
 14 N. J. Eq., 268; Butcher v. Camden, 29 N. J. Eq., 478; Mather's 
 case, 52 N. J. Eq., 607; Maher v. Mutual Electric, Sc, Co.,' 17 Atl., 
 968. 
 
 (14) Schalk V. Schmidt, 14 N. J. Eq., 268; and see "Foreclosure of 
 Mortgages," page 565, supra. 
 
 (is) Kempton v. Bartine, 60 N. J. Eq., 411; and see "Parties," 
 page 106, supra. 
 
 (16) Morgan v. Rose, 22 N. J. Eq., 583. 
 
 (17) Elkins V. Camden & Atlantic R. R. Co., 36 N. J. Eq., 241; 
 and see "Parties," page 91, supra. 
 
 (18) Butcher v. Camden, 29 N. J. Eq., 478. 
 
502 Injunctions. 
 
 pal election, and the failure to make them parties necessitates 
 the dismissal of the bill. (19) But if the complainant presents 
 a case for a preliminary injunction against those who are 
 parties and have answered, and such injunction in no respect 
 affects those who may be necessary parties, but have not been 
 included, the discretion of the court would be properly exer- 
 cised in allowing such an injunction. (20) 
 
 On bills to restrain the execution of process in the perform- 
 ance of his official acts, the sheriff is a proper party, as the 
 olbject of the injunction is to restrain him from acting. (21) 
 But usually no relief is prayed and no decree asked against 
 the officer; though he is at liberty to answer, and it may in 
 some cases be proper for him to do so, yet it is not necessary 
 nor usually expedient. (22) 
 
 There are exceptions to the general rule that the court is 
 without power to grant an injunction against a person who is 
 not a party to the suit, but they will be found to consist either 
 of cases where the party enjoined is a mere solicitor, agent or 
 tenant of the party to the suit, having no rights involved in 
 such suit, or where the rights have been already deter- 
 mined. (23) 
 
 Process. On a rule to show cause why an injunction 
 should not be issued, even though a restraining order is granted, 
 service of the rule is sufficient to bring defendant before the 
 court without subpcena, but he is not obliged to file his answer 
 until compelled by subpoena so to do, nor to serve it on com- 
 plainant before" hearing on the order. (24) But where a pre- 
 liminary writ of injunction issues after hearing on a rule to 
 show cause, a subpcena must be taken out with it and returned 
 into court within the time prescribed by rule for the return 
 of service of the injunction, or, in default, the injunction will 
 
 (19) Bingham v. Camden, 29 N. J. Eq., 464. 
 
 (20) Kreissl v. Distilling Co., 61 N. J. Eq., 5, 10; see also "Dis- 
 missal of Preliminary Injunction," "Non-joinder of Parties," page 522, 
 infra. 
 
 (21) Brooks V. Lewis, 13 N. J. Eq., 214; Hassell v. Houten, 39 N. J. 
 Eq., 113. 
 
 (22) Brooks V. Lewis, 13 N. J. Eq., 214. 
 
 (23) Schalk V. Schmidt, 14 N. J. Eq., 268. 
 
 (24) Dean v. Bonnell, 4 N. J. L. J., 348. 
 
Notice of Application. 503 
 
 be dissolved on defendant's motion. (25) Where the defend- 
 ant and his wife were non-residents, and the injunction was 
 ■served on the husband out of the state, and proof was made 
 that the wife could not be found, an order was made that 
 such service should be deemed valid and that a copy of such 
 order should be served at the dwelling house of the defend- 
 ants. (26) 
 
 Notice of Application for Preliminary Injunction. A 
 preliminary injunction will -generally not be granted until 
 after an order to show cause or notice of the application has 
 been given to the defendant, so that he may oppose the appli- 
 cation by answer or otherwise. (27) If, however, it is made 
 to appear to the satisfaction of the court that an irreparable 
 injury will probably occur if a restraining order is delayed 
 until notice of the application can be given, the order will 
 usually be granted ex parte, to remain in force until a pre- 
 liminary hearing can be had. This power should be exercised 
 with caution, the granting of such an order resting in the sound 
 discretion of the court, whether a temporary injunction should 
 be granted in a given case without notice depends on the spec- 
 ial facts of that case; the complainant must make out a clear 
 case as to the propriety of such an ex parte remedy. (28) 
 
 As has already been seen the Chancery Rules provide 
 that no injunction shall be allowed against an incorporated 
 company or against any individual, the effect of which is to 
 stay the progress of any public work authorized by the law 
 of this state without an order first made to show cause, as pro- 
 vided in Rule 122 (29) ; and this rule cannot be dispensed with 
 in any case, except by order of the Chancellor, first obtained 
 and filed, unless such injunction be granted by the Chancellor 
 himself. (30) The operation of large companies should not 
 
 (25) West V. Smith, 2 N. J. Eq., 309; Lee v. Cargill, 10 N. J. Eq., 
 331 ; Brown v. Fuller, 13 N. J. Eq., 271 ; Allman v. United Brother- 
 hood, etc., 81 Atl., 116. 
 
 (26) Haring v. Kauffman, 13 N. J. Eq., 397. 
 
 (27) Thomas Iron Co. v. Allentown Mining Co., 28 N. J. Eq., ^^. 
 
 (28) Buckley v. Corse, i N. J. Eq., 504; Perkins v. Collins, 3 
 N. J. Eq., 482; Capner v. Flemington Mining Co., 3 N. J. Eq., 467; 
 Thomas Iron Co. v. Allentown Mining Co., 28 N. J. Eq., yT, 22 Cyc, 
 919 and cases cited. 
 
 (29) See page 504, infra. 
 
 (30) Chancery Rule 120; and see "Injury and Inconvenience to the 
 Public," page 497, S'wpra. 
 
504 Injunctions. 
 
 be arrested by injunction without notice, except in very plain 
 cases, or where there is a pressing necessity for immediate 
 action. (31) 
 
 No injunction shall issue after answer filed, without giving 
 five days' notice of the application therefor, unless it shall be 
 made to appear to the Chancellor, or Vice-Chancellor, that the 
 circumstances of the case are such as to make it proper to 
 dispense with notice. (32) Where application for an injunc- 
 tion is made after answer filed,- notice is necessary according 
 to this rule, but even then it may in a proper case be dis- 
 pensed with. (33) 
 
 Where an application is made for an injunction, and the 
 Chancellor makes, or the Vice-Chancellor advises an order 
 requiring the defendant to show cause, on a particular day, 
 why the injunction should not be granted, it shall be the duty 
 of the complainant to serve such order on the defendant, 
 together with a copy of the bill and affidavits annexed, at least 
 six days previous to the day fixed for the hearing, unless the 
 order shall otherwise direct; such order shall specify the man- 
 ner of service, and on which of the defendants, if there shall 
 be more than one. (34) 
 
 Security Required on Granting of Ex Parte Injunction. 
 Where an injunction or restraining order is granted ex parte, 
 the Chancellor, or Vice-Chantellor, or Master may, at his 
 discretion, take from the complainant a bond to the party 
 enjoined, in such sum as may be deemed sufficient, either with 
 or without sureties, conditioned to pay to the parties enjoined 
 such damages as he may sustain by reason of the injunction, 
 if the court shall eventually decide that the complainant was 
 not equitably entitled to such injunction, the damages to be 
 ascertained in such manner as the Chancellor shall direct. (35) 
 The power to require a bond rests in the sound dircretion of 
 the court, to be exercised under the peculiar circumstances of 
 each particular case. (36) Where, upon the case made by the 
 
 (31) Capner v. Flemington Mining Co., 3 N. J. Eq., 467; Perkins 
 V. Collins, 3 N. J. Eq., 482. 
 
 (32) Chancery Rule 128. 
 
 (33) Buckley v. Corse, i N. J. Eq., 504. 
 
 (34) Chancery Rule 122. 
 
 (35) Chancery Rule 127; see also "Writ of Injunction," page 512, 
 infra. 
 
 (36) Ely V. Crane, 37 N. J. Eq., 157. 
 
Security. ' 505 
 
 bill, the right of the complainant is clear, and the infraction 
 of that right established, the fact that the injunction occasion- 
 ed a serious loss to defendant affords no just ground why such 
 complainant should be required to give security. (37) 
 
 The question of liability on a bond given under the 127th 
 rule of the Court of Chancery on the granting of an injunction 
 ex parte is purely a matter of common law cognizance, and a 
 court of equity cannot acquire jurisdiction of it, except by the 
 consent of the obligors expressed in the bond or in some other 
 appropriate words. (38) So a bond given under this rule 
 should provide in its condition that "such damages shall be 
 ascertained in such manner as the Chancellor shall direct" ; 
 in the absence of this provision in the condition, the Court of 
 Chancery has no power over the surety, and the suit must be 
 brought at law. (39) 
 
 Where for any reason it becomes necessary to sue at law 
 upon a bond given under this rule, the proper practice is to 
 apply to the Court of Chancery for an order permitting such 
 suit. Upon such an application, the court may consider the 
 equity of the case ; and if such equity requires the order to be 
 withheld, it is within the discretion of the court to take such 
 .action. (40) 
 
 The bond given under this rule is security for damages only 
 in case the complainant shall prove not to have been equitably 
 entitled to the injunction when he applied for it. That the 
 injunction was dissolved is not, of itself, evidence that he was 
 not equitably entitled to damages, and though it may have been 
 improvidently granted, and for that cause be dissolved before 
 answer, that will not, if the case is fairly presented by the bill 
 and verification, entitle the defendant to whom the bond is 
 given to look to it for damages. But if the application be 
 actually or presumably mala Me as, for example, if the bill pre- 
 sents grounds for relief by injunction which have no existence, 
 or distorts or falsely colors or omits facts in the knowledge of 
 the complainant, or of which he might, and in fairness ought 
 to have informed himself, and which would have had an 
 
 (37) Dodd V. Flavell, 17 N. J. Eq., 255. 
 
 (38) Easlon v. N. Y. & Long Branch R. R., 26 N. J. Eq., 359. 
 
 (39) Easton v. N. Y., etc., R. R. Co., 26 N. J. Eq., 359. 
 
 (40) Brown v. Easton, 30 N. J. Eq., 725 ; Easton v. New York, 
 etc., R. R. Co., 30 N. J. Eq., 236. 
 
506 Injunctions. 
 
 important bearing against granting the injunction if stated in 
 the bill — in other words, if the application be disingenuous, 
 mala fide, or made without due regard to the rights of the 
 court or of the defendant — the complainant is to be regarded 
 as not having been equitably entitled to the injunction. In 
 short, the object of the rule is to secure the bona fides of the 
 application, and to provide indemnity to the party enjoined 
 against the effects of an injunction unfairly obtained. (41) So 
 where the complainant, with full knowledge of the facts, by 
 false representation of them obtained an ex parte injunction, he 
 is to be regarded as not equitably entitled thereto and as being 
 liable to the defendants in damages recoverable on the bond 
 given under this rule. (42) 
 
 Upon a bond given under this rule a defendant is entitled to 
 recover a reasonable amount for counsel fees necessarily 
 expended in dissolving the injunction. But defendant is not 
 entitled to recover compensation for the time and service he 
 may have devoted to the case, nor for the mental strain and 
 anxiety he may have suffered in consequence of the injunc- 
 tion. (43) 
 
 Security Required on Application for Injunction to Stay 
 Proceedings at Law. (44) 
 
 Security Required on Application for Injunction to Stay 
 Ejectment Suit. No injunction shall be allowed to stay the 
 proceedings in an ejectment suit, after issue joined thereon, 
 unless the complainant shall give a bond, with sufficient sure- 
 ties, in the penalty of at least double the rent of the premises 
 for two years, if the premises are leased at a fixed rent, or if 
 not leased, then in such sum as the Chancellor, Vice-Chancellor 
 or Master shall direct, conditioned for the payment to the party 
 against whom such injunction is granted of all such damages 
 and costs as may be awarded to him, either at law or in this 
 court, in case of a decision against the party obtaining such 
 injunction. (45) 
 
 (41) Smith V. Kuhl, 26 N. J. Eq., 97; Easton v. New York, etc., 
 R. R. Co., 26 N. J. Eq., 359; Cook v. Chapman, 30 N. J. Eq., 114. 
 
 (42) Green v. Pliila., Freestone, etc., Co., 26 N. J. Eq,, 443; 
 Cook V. Chapman, 30 N. J. Eq., 115. 
 
 (43) Cook V. Chapman, 41 N. J. Eq., 152. 
 
 (44) Chancery Act, sections 64 to 67, page 58, supra. 
 
 (45) Chancery Rule 126. 
 
Bill. 507 
 
 Bill of Complaint. As has been seen, the granting of an 
 injunction rests largely in the discretion of the court. It fol- 
 lows, therefore, that the allegations of the bill should show 
 candor and frankness. (46) The omission of material facts 
 known to the complainant will preclude the granting of relief. 
 (47) The right to an injunction must affirmatively appear 
 from the allegations of the bill. (48) And they must not be 
 left to inference (49) ; the bill must set forth fully the facts 
 and circumstances of the case. Affidavits and proofs may be 
 read, but for no other purpose than to sustain the case made 
 by the bill, and by the opposite party in his disproofs and 
 denial. (50) So a bill for injunction to restrain enforcement 
 of a note against a surety because of an extension granted to 
 the principal should state facts from which the court can 
 determine whether the alleged extension was a violation of the 
 surety's rights ; hence an averment which fails to give the 
 time, circumstances and consideration of the extension agree- 
 ment is insufficient. (51) 
 
 Where the complainant in an injunction bill relies on his 
 own oathj the charges in the bill and the affidavits to verify 
 them must be direct and positive ; they must not be such as 
 can only be made sufficient by the aid of presumption. (52) 
 And in all cases of waste or nuisance, it must clearly appear 
 that the complainant has personal knowledge of the material 
 facts charged, or he must produce supplemental proof. (53) 
 Where complainant seeks to restrain proceedings upon an 
 action at law, in addition to facts showing that the remedy 
 
 (46) Edison Storage Battery Co. v. Edison Automobile Co., 67 
 N. J. Eq., 44- 
 
 (47) Smith V. Kuhl, 26 N. J. Eq., 97; Easton v. N. Y., &c., R. R. Co., 
 26 N. J. Eq., 359; Cook v. Chapman, 30 N. J. Eq., 114. 
 
 (48) Van Syckel v. Emery, 18 N. J. Eq., 387; Hewett v. Kuhl, 
 25 N. J. Eq., 24; Anglesey v. Colgan, 44 N. J. Eq., 203; Buck v. 
 Backarack, 45 N. J. Eq,, 557. 
 
 (49) Philhower v. Todd, 11 N. J. Eq., 54, and see in general "Bill 
 of Complaint," page 140, supra. 
 
 (50) Rawnsley v. Trenton, etc., Ins. Co., 9 N. J. Eq., 95; New- 
 foundland Railroad Co. v. Schack, 40 N. J. Eq., 222. 
 
 (51) Grier v. Flitcraft, 57 N. J. Eq., 556. 
 
 (52) Perkins v. Collins, 3 N. J. Eq., 482. 
 
 (53) Perkins v. Collins, 3 N. J. Eq., 482; and see generally "Bill 
 of Complaint," page 140, supra. 
 
508 Injunctions. 
 
 at law is inadequate, it must appear from the averments of the 
 bill that the action at law is still pending. (54) 
 
 The bill must show the title or right of complaint, although 
 as a general rule a statement of ownership in a complainant 
 of the property for the injury to which relief is sought is suffi- 
 cient, it is not necessary to set out complainant's title at 
 length. (55) And in cases of trespass and nuisance, the title 
 and estate of the complainant are set out with sufficient cer- 
 tainty in a bill for an injunction if he alleges himself to be the 
 owner of the premises in fee simple by purchase and to be in 
 possession. (56) 
 
 In order to support an application for an injunction, it is 
 necessary not only to aver the right, but also that the defend- 
 ant has violated or intends to violate such right. (57) And 
 if fraud is relied upon, the facts constituting the fraud must 
 be set out in full. (58) 
 
 Prayer for Relief. Ordinarily an injunction will not be 
 granted under a prayer for general relief, but must be the sub- 
 ject of a special prayer. This omission is, however, a formal 
 matter, and cannot be permitted to defeat justice; and the 
 bill may be amended so as to embrace a suitable prayer for 
 injunction. (59) 
 
 Verification. It is an established principle of the Court 
 of Chancery that all the facts necessary to sustain an injunc- 
 tion must be verified by positive proof, or the injunction will 
 be dissolved. (60) There should be a special affidavit of the 
 
 (54) Heckscher v. Trotter, 41 N. J. Eq., 502. 
 
 (55) Miller v. Rushford, 4 N. J. Eq., 177; Vulcan Detinning Co. 
 V. American Can Co., 58 Atl., 290; and see generally "Bill of Com- 
 plaint," page 140, supra. 
 
 (56) Van Winkle v. Curtis, 3 N. J. Eq., 422. 
 
 (57) McGovern v. Loder, 20 Atl., 209; Green v. Wilson, 21 N. J. 
 Eq., 211. 
 
 (58) Dobbins v. Cragin, 50 N. J. Eq., 640, and see "Bill of Com- 
 plaint," page 140, supra. 
 
 (59) Bailey v. Stiles, 3 N. J. Eq., 245; African M. E. Church 
 V. Conover, 27 N. J. Eq., 157; Newark v. Erie R. R. Co., 76 N. J. 
 Eq., 317, 321, and see "Bill of Complaint," "Prayer for General 
 Relief," page 153, supra. 
 
 (60) Perkins v. Collins, 3 N. J. Eq., 482; Capner v. Flemington 
 Mining Co., 3 N. J. Eq., 467; Youngblood v. Schamp, 15 N. J. Eq., 42; 
 Holdrege v. Gwynne, 18 N. J. Eq., 26; Thompson v. Ocean City R. R. 
 Co., 37 Atl., 129. 
 
Bill. 509 
 
 truth of all the material facts upon which the application is 
 founded. An injunction issued upon a common affidavit in 
 the form ordinarily annexed to an answer will be dissolved 
 very much as a matter of course. (6i) 
 
 Where an injunction is prayed, and the facts which are 
 relied upon for. the injunction are not within the knowledge of 
 the complainant, such facts shall be verified by the oath or 
 affirmation of some person who has knowledge of the facts, 
 unless under the peculiar circumstances of the case the Chan- 
 cellor or a Vice-Chancellor shall dispense with such additional 
 verification. (62) So duly verified copies of private instru- 
 ments or of records may be annexed to the bill when such are 
 an appropriate mode of proof. (63) 
 
 The only legitimate proof of the testimony of a foreign 
 or deceased witness taken in another suit between the same 
 parties is by a compared or duly certified copy. (64) But the 
 deposition of a deceased or foreign witness appended to an 
 injunction bill is not competent in the absence of proof that 
 the suit in which it was taken was between the same parties 
 and related to the same subject matter. (65) 
 
 Where an injunction bill is filed by a corporation, the offi- 
 cer or other person who has the principal personal knowledge 
 of the facts should swear to them. (66) 
 
 The verification must be definite and positive, and the injury 
 complained of must be verified and so pointed out that the 
 court can see that it must be an inevitable consequence of the 
 act threatened and complained of. (67) Another statement of 
 the rule is that the affidavit must be such as to submit the 
 party to the penalty of perjury if the facts sworn to appear to 
 be otherwise. (68) 
 
 (61) Youngblood V. Scliamp, 15 N. J. Eq., 42. 
 
 (62) Chancery Rule 119; Youngblood v. Schanip, 15 N. J. Eq., 
 42. 
 
 (63) Youngblood v. Schamp, 15 N. J. Eq., 42. 
 
 (64) Camden & Almboy R. R. Co. v. Stewart, 21 N. J. Eq., 484. 
 
 (65) Camden & Amboy R. R. Co. v. Stewart, 21 N. J. Eq., 484. 
 
 (66) Youngblood v. Schamp, is N. J. Eq., 42. 
 
 {fi}) Kearney v. Andrews, 10 N. J. Eq., 70; Brick v. Burr, 47 
 N. J. Eq., 189. 
 
 (68) Thompson v. Ocean City R. R. Co., 37 Atl., 129. 
 
510 Injunctions. 
 
 The general rules of evidence apply with respect to affi- 
 davits annexed to injunction bills. (69) And a preliminary 
 injunction will not be allowed where complainant's proofs, 
 denied by defendant, state the conclusions of the witnesses 
 without setting forth the circumstances from which the facts 
 testified to by them can be deduced. (70) But although a 
 rule to show cause why an injunction should not issue may be 
 granted in emergency cases on a bill not sworn to as to all 
 the facts and supported by affidavits which do not contain 
 strictly legal evidence as to some of the facts, the complainant 
 cannot on the return of the rule stand on them alone. (71) 
 
 If an injunction has been actually sworn to, the injunc- 
 tion will not be dismissed because the Master has omitted to 
 sign the jurat. (72) It is expedient but not essential to the 
 validity of an affidavit that the place where the affidavit is 
 taken be inserted in the jurat. (73) 
 
 Filing Bill. In all cases where an application is made 
 for an injunction to the Chancellor, or to a Vice-Chancellor, 
 or Master, and the same is denied, an endorsement of the denial 
 shall be made on the bill or petition, and the said bill or peti- 
 tion shall be put on the files of the court. (74) When the 
 Chancellor or Vice-Chancellor has endorsed upon a bill the 
 usual order for an injunction to issue on filing the bill, the bill 
 should be filed immediately, whether the injunction has been 
 issued or not. If complainant neglects to file his bill promptly, 
 it will be dismissed with costs. (75) 
 
 Answer. The answer must be responsive to the material 
 allegations of the bill; the substance of each charge must be 
 admitted or denied {76), and must be verified by the oath of 
 the defendant. (77) It should be free from uncertainty, 
 
 (69) Camden & Amboy R. R. Co. v. Stewart, 21 N. J. Eq., 484. 
 
 (70) Grier v. Flitcraft, 57 N. J. Eq., 556. 
 
 (71) Thompson v. Ocean City R. R. Co., 37 At!., 129. 
 
 (72) Capner v. Flemington Mining Co., 3 N. J. Eq., 467; White- 
 head V. Hamilton Rubber Co., 53 N. J. Eq., 454. 
 
 (73) Perkins v. Collins. 3 N. J. Eq., 482. 
 
 (74) Chancery Rule 129. 
 
 (75) Stirason v. Bacon, 9 N. J. Eq., 144. 
 
 (76) Smith V. Loomis, 5 N. J. Eq., 60, and see "Answer," page 299, 
 supra. 
 
 (77) See "Dissolution" — Use and "Effect of Answer,'' page 526, 
 infra; see also "Answer," page 299, supra. 
 
Amendments. 511 
 
 ambiguity or evasion ; an answer in which the denial is made 
 in such form as to leave it in doubt whether the denial is of the 
 facts alleged or only of the facts in the form and manner and 
 at the time alleged in the bill, is evasive, and will not avail to 
 dissolve an injunction. (78) And where a bill contains any par- 
 ticular charges, they must be answered particularly and pre- 
 cisely, and not in a general manner, although a general answer 
 may amount to a full denial of the charges. (79) 
 
 The answer must be complete within itself ; an answer to a 
 bill for an injunction which simply avers that the facts stated 
 in a paper purporting to be the answer of another defendant 
 in the cause "are substantially correct as far as these defend- 
 ants are concerned" is both formally and substantially defect- 
 ive. (80) The defendant must answer upon his own knowledge, 
 and not upon information and belief, otherwise the injunction 
 must be retained till the final hearing. (81) 
 
 Amendments. The pleadings may be amended to correct 
 a formal defect or mistake, or to add necessary allegations. 
 Thus, as has been seen a prayer for an injunction may be added 
 by amendment. (82) So a bill specifically to enforce a con- 
 tract between defendants and complainants for the purchase 
 and exchange of property, and to enjoin defendants from 
 selling or otherwise disposing of the property which they 
 agreed to transfer to the compainants will be permitted to be 
 amended so as to set forth that the written contract sued on 
 does not express the real understanding and agreement of the 
 parties, and praying that it may be reformed so as to conform 
 to that understanding. (83) 
 
 An injunction bill may be amended even after motion to 
 dissolve ; and if when so amended it shows sufficient cause for 
 continuing the injunction, which is not overcome by the defend- 
 
 (78) McMahon v. O'Donnell, 20 N. J. Eq., 306; and see "Dissolu- 
 tion" — "Sufficiency of Answer," page 529, infra. 
 
 (79) Everly v. Rice, 4 N. J. Eq., 553; Vreeland v. New Jersey 
 Stone Co., 25 N. J. Eq., 140. 
 
 (80) Carr v. Weld, 18 N. J. Eq., 41. 
 
 (81) Everly v. Rice, 4 N. J. Eq., 553; Vreeland v. New Jersey 
 Stone Co., 25 N. J. Eq., 140; Holdrege v. Gwynne, 18 N. J. Eq., 26; and 
 see "Dissolution of Injunctions," page 532, infra. 
 
 (82) Bailey v. Stiles, 3 N. J. Eq., 24s ; and see "Amendments,' 
 page 317, supra. 
 
 (83) Lanning v. Heath, 25 N. J. Eq., 425. 
 
512 Injunctions. 
 
 ant, it will be continued, .and a motion for dissolution on the 
 ground of defects in the original bill will be overruled, where 
 these defects have been remedied by means of the amended 
 bill, which does not change the cause of action. (84) Even 
 after an injunction has been dissolved on the merits, the party- 
 may amend and obtain an injunction on the amended bill. (85) 
 
 But where an injunction has been dissolved for want of 
 equity in the bill, the court will not grant an ex pcurte injunc- 
 tion upon an amended bill or upon a new bill supplying the 
 equity. If the complainant is willing to swear to a case fitting 
 the opinion of the court, the rights of a defendant should not 
 be interfered with upon such a bill without affording the de- 
 fendant an opportunity of being first heard. Any other prac- 
 tice would be oppressive, and would place the interest and 
 rights of a party too much in the power of his adversary. (86) 
 
 Waiver of Objection to Pleadings. Formal defects in a 
 bill for an injunction are waived by failing to demur and filing 
 an answer. (87) So where defendants answer the bill without 
 alleging any objection to the jurisdiction of the court, and 
 come to the hearing upon the merits, it is then too late to urge 
 such alleged lack of jurisdiction, they having submitted them- 
 selves to the jurisdiction of the court. (88) But an irregularity 
 in the bill or affidavit upon which an injunction is allowed is 
 not waived by filing an answer and moving to dissolve the 
 injunction, if the answer is not relied on in support of the 
 motion to dissolve. (89) 
 
 Writ of Injunction. The writ of injunction shall be is- 
 sued within five days from the date of the order or Hat there- 
 for, and served within twenty days after the issuing thereof, 
 and within ten days after service a return of such service shall 
 be made to the court, and on failure thereof the defendant 
 shall be entitled to a dissolution of the injunction, unless the 
 Chancellor, or a Vice-Chancellor, shall by order give further 
 time for the service and return of the writ. (90) 
 
 (84) Conover v. Ruckman, 34 N. J. Eq., 293, 297. 
 
 (8s) Buckley v. Corse, I N. J. Eq., 504. 
 
 (86) Horner v. Leeds, 10 N. J. Eq., 86. 
 
 (87) Perkins v. Collins, 3 N. J. Eq., 482. 
 
 (88) Morris Canal, etc., Co. v. Jersey City, 12 N. J. Eq., 252, 259; 
 reversed, ib., 547; Holmes v. Jersey City, 12 N. J. Eq., 299, 311. 
 
 (89) Perkins v. Collins, 3 N. J. Eq., 482. 
 
 (90) Chancery Rule 130. 
 
Evidence. 513 
 
 The court, in granting an injunction against defendant, may 
 impose upon tiie parties any terms which the equities of the 
 case require, as, for instance, that an injunction relating to the 
 same matter go against complainant. (91) So where a cor- 
 poration suing to restrain a municipality from interfering with 
 the laying of gas mains asks for a preliminary injunction, the 
 court on granting the injunction may require the corporation 
 to file a stipulation consenting that the court, on the munici- 
 pality's succeeding on final hearing, may require the corpora- 
 tion to remove the work done by it pending litigation. (92) So 
 the court may, before allowing a preliminary injunction, require 
 complainant to give to the defendant security for such damages 
 as the defendant may sustain by reason of the injunction; but 
 where upon the case made by the bill the right of the complain- 
 ant is clear, and the infraction of that right established, the fact 
 that the injunction occasions a serious loss to the defendant 
 affords no just ground of complaint, as he is only deprived of 
 the enjoyment of that which rightfully belongs to another. (93) 
 And so where the rule as to relative convenience of granting 
 or withholding injunction pending suit favors the defendant, 
 the court may protect the rights of complainant pending final 
 hearing by ordering that the injunction be denied, provided 
 defendant gives bond with a prescribed condition for the pro- 
 tection of complainant's rights. (94) 
 
 An injunction should always be plain and certain upon its 
 face, so that the party may understand it without reference to 
 the bill filed. (95) 
 
 Evidence — Weight and Sufficiency. Upon an applica- 
 tion for an injunction, complainant must establish the facts 
 necessary for the granting of such relief by a preponderance 
 of evidence, what constitutes a preponderance of evidence being 
 a question for the court, taking into consideration all the cir- 
 cumstances of that particular case. It is a general rule that 
 when the facts creating the equity on which the complainant's 
 right to an injunction rests are denied under oath in such man- 
 
 (91) Sternberg v. Wolff, 56 N. J. Eq., 389.. 
 
 (92) Gas Light Co. v. South River, 77 N. J. Eq., 487. 
 
 (93) Dodd V. Flavell, 17 N. J. Eq., 255 ; and see "Security required 
 on granting ex parte injunction," page 504, supra. 
 
 (94) Boyle V. Johnson, 84 Atl., 204. 
 
 (95) Richards v. West, 3 N. J. Eq., 456. 
 
514 Injunctions. 
 
 ner as to show they are not true or to leave their truth in seri- 
 ous doubt, the injunction must be denied, unless it clearly 
 appears that to put upon the defendant the restraint which 
 is asked will do him no serious harm, while a refusal. to enjoin 
 him will deprive the complainant of all relief or subject him to 
 some other peculiar hardship, should he finally succeed in his 
 case. (96) 
 
 Thus when complainants ask for an injunction to relieve 
 them from apprehended danger, and the answer denies that 
 such apprehensions are well founded, the court as a general 
 rule will give to the defendants the full benefit of such denial 
 and refuse the injunction; and when both parties come before 
 the court with affidavits, the court will refuse the injunction 
 unless the complainants make out a very clear case by their 
 bill and affidavits. (97) So where the bill alleges that defend- 
 ant threatened to construct a wharf in front of complainant's 
 wharf, thereby entirely preventing the latter from having 
 access to his own wharf, and the answer and affidavits in sup- 
 port thereof deny that such access will be cut oft by the pro- 
 posed construction, an injunction will not be ordered. (98) 
 
 But where complainant asked for an injunction to prevent 
 defendant from negotiating against the former a note which 
 a jury had held was wrongly given to defendant, and the 
 latter resisted the application, and absolutely denied any 
 intention to negotiate the paper, it was held that such denial 
 was not sufficient, and that the complainant was entitled to be 
 protected against any contingency that might arise. (99) 
 
 Allegations of fact upon information and belief, without giv- 
 ing the source of the information and the grounds of the belief, 
 and without the affidavit of any person having actual knowledge 
 
 (96) Miller v. Rusliforth, 4 N. J. Eq., 174; Van Houten v. First 
 Reformed Church, 17 N. J. Eq., 126; Citizens Coach Co. v. Camden 
 Horse R. R. Co., 29 N. J. Eq., 299 ; N. J. Zinc Co. v. Franklin Iron 
 Co., 29 N. J. Eq., 422; West Jersey R. R. Co. v. Cape May, &c., R. R. 
 Co., 34 N. J. Eq., 164; Nibert v. Baghurst, 47 N. J. Eq., 201; Connolly 
 Mfg. Co. V. Wattles, 49 N. J. Eq., 92 ; Guild v. Meyer, 56 N. J. Eq., 
 183 ; Oscillating Carousal Co. v. McCool, 35 Atl., 585 ; and see "Relative 
 Convenience and Injury," page 394, supra. 
 
 (97) Rogers v. Danforth, 9 N. J. Eq., 289; and see "Dissolution 
 of Preliminary Injunction," page 518, i"fra. 
 
 (98) Hatch V. Kaighns Co., 16 Atl., 433. 
 
 (99) Crandall v. Grow, 4 Atl, 311. 
 
Pleadings and Affidavits as Evidence. 515 
 
 of the facts, are ordinarily insufficient, whether contained in 
 the bill of complaint or affidavit. (lOo) 
 
 Pleadings and Affidavits as Evidence. On the hearing 
 of a motion 'for a preliminary injunction, the defendant may 
 read his answer to the bill and also affidavits in reply to the 
 case made by the bill and the accompanying affidavits, or 
 defendant may read such affidavits only ; but no other affi- 
 davits than those accompanying the bill or presented by the 
 defendant shall be read on either side unless the Chancellor 
 or Vice-Chancellor, on application at or before the time 
 appointed for the hearing shall, by order, otherwise direct ; 
 and when further affidavits are taken they shall be taken either 
 ex parte or on such notice to the opposite party as may be 
 ordered. ( i ) 
 
 The Chancellor or Vice-Chancellor before whom an order 
 to show cause why an injunction shall not issue shall come 
 for hearing may further order that any affiant whose affidavit 
 is annexed to or accompanies the bill, or is presented on the 
 part of the defendant, shall appear and submit to cross exami- 
 nation in respect to matter contained in his affidavit, under 
 such direction as to notice and time and officer examining, 
 before whom such cross examination shall be taken as may be 
 prescribed in the order; and if satisfied that such affiant has, 
 after reasonable notice, neglected or refused to submit tO' cross 
 examination as ordered, may decline to consider such affidavit 
 of such affiant. (la) 
 
 The answer of one of several defendants will be received and 
 heard upon the argument as an ajifidavit in answer to the com- 
 plainant's bill. (2) But the affidavits of the bill and answer are 
 not evidence at the final hearing. (3) The same principles 
 should control the court upon an application for an injunction 
 
 (100) Brundred v. The Paterson Machine Co., 4 N. J. Eq., 294; 
 Society for Useful Manufactures v. Low, 17 N. J. E^., 19; Schoenfeld 
 V. American Can Co., 55 Atl., 1044; and see "Dissolution of Pre- 
 liminary Injunction," page 518, infra. 
 
 (1) Chancery Rule 122; Hardenburgh v. Farmers, &c., Bank, 3 
 N. J. Eq., 68; Rawnsley v. Trenton Mut. Life Ins. Co., 9 N. J. Eq., 
 95- 
 
 (la) Chancery Rule 124a. 
 
 (2) Miller v. Rushforth, 4 N. J. Eq., 174; and see "Answers by 
 part only of defendants," page 534, infra. 
 
 (3) Attorney General v. Steward, 21 N. J. Eq., 340. 
 
516 Injunctions. 
 
 upon an order to show cause, when the answer of the defend- 
 ants and affidavits are presented by way of resistance, as are 
 applied to the decision of a motion to dissolve an injunc- 
 tion. (4) 
 
 Dismissal of Bill. A complainant or a number of com- 
 plainants can dismiss or consent to the dismissal of his or 
 their bill at any time before decree, and this power resides 
 in the complainants, although they sue as some of a class and 
 expressly state that the suit is not only for the benefit of 
 themselves but also for the benefit of such others of the class 
 as may choose to come in and share the expenses of the suit. 
 But this exclusive power of control of the litigation ceases 
 when a decree is signed, or when one of the class — not an 
 original complainant — is by order of the court admitted as a 
 party complainant. After such judicial recognition, this new 
 party must be reckoned with in any final disposition of the 
 cause, (s) 
 
 Where an application is made for a preliminary injunction, 
 and defendant moves to strike out complainant's bill, such 
 motion, being equivalent to a demurrer, must be heard and fully 
 determined as to all questions of law involved on the admitted 
 facts before the preliminary injunction can be granted. (6) 
 
 Hearing — Scope of Inquiry. On the hearing of a motion 
 for a preliminary injunction or on an order to show cause, 
 the court may go into the merits of the case, but is limited to 
 the issues that are raised by the bill, answer and affidavits, and 
 cannot go into outside or collateral matters. (7) Where all 
 the facts upon which the complainant relies for an injunction 
 appear on the application for a preliminary writ, and the 
 question involved is one purely of the application of legal 
 and equitable principles, no loss and inconvenience to the 
 
 (4) Stanton Mfg. Co. v. McFarland, 52 N. J. Eq., 8s, 87; Society 
 V. Low, 17 N. J. Eq., 19; for a discussion of the principles con- 
 trolling the court upon application to dissolve an injunction, see 
 "Dissolution" — "Use and Effect of Answer," page 526, infra. 
 
 (5) Mutual Life Ins. Co. v. Goddard, 33 N. J. Eq., 482; McAlpin 
 • V. Universal Tobacco Co., 57 Atl., 418; and see "Dismissals," page 340, 
 
 supra. 
 
 (6) Grey v. Greenville Hudson R. R. Co., 59 N. J. Eq., 372; 
 reversed, 62 N. J. Eq., 769; and see "Motions to strike out pleadings," 
 page 287, supra. 
 
 (7) Attorney General v. Greenville, &c., R. R. Co., 46 Atl., 638; 22 
 Cyc. 953 ; and see Chancery Rule 122, page 504, supra. 
 
Appeals. 517 
 
 complainant will justify the granting of a preliminary injunc- 
 tion if the court is of opinion that no relief would be granted 
 on final hearing for reasons apparent on the preliminary appli- 
 cation. (8) 
 
 Where the issue before the court is one of law as to the 
 rights of the parties, and is fully presented on the preliminary 
 application, and no sufficient reason appears for delaying deci- 
 sion on the question until final hearing, a preliminary injunc- 
 tion will be granted, and this even in cases requiring a manda- 
 tory injunction. (9) So on a final hearing upon bill and answer 
 a preliminary injunction will be made perpetual where it appears 
 from the pleadings that the defendant intends to do some act 
 charged in the bill which would be a nuisance to the public 
 or an injury to the complainant. (10) 
 
 Where on an application for preliminary injunction the 
 defense of a' former adjudication is made, the proper practice 
 would seem to be, where this preliminary question on the record 
 is up for decision and no special reason appears for reserving 
 decision until final hearing, that such question should be 
 disposed of as a preliminary question on the motion for pre- 
 liminary in j unction. (11) 
 
 Violation and Punishment. The Chancellor may, on mo- 
 tion supported by proof, order an attachment for contempt to 
 be issued against any person charged with disobedience to any 
 injunction, and if such disobedience shall appear, may in his 
 discretion order such offender to be committed and kept in 
 close custody until he shall give further order therein. (12) 
 
 Appeals from Orders Granting or Denying Injunctions. 
 This subject is fully treated in the chapter on appeals. (13) 
 
 (8) Swift V. D., L. & W. R. R. Co., (£ N. J. Eq., 34; affirmed, ib., 
 452; Edison Storage Battery Co. v. Edison Auto Co., 67 N. J. Eq., 44. 
 
 (9) Johnston v. 'Belmar, 58 N. J. Eq., 354; O'Hara v. Nelson, 71 
 N. J. Eq., 161, 173. 
 
 (10) Attorney General v. Steward, 21 N. J. Eq., 340; see also 
 "Dissolution of Preliminary Injunction," page 518, infra. 
 
 (11) Isham V. Cooper, 56 N. J. Eq., 398. 
 
 (12) Chancery Act, sec. 69, page 61, supra; see also Chancery 
 Act, sec. 82, page 71, supra, and see "Contempts," page 452, supra. 
 
 (13) See "Appeals," page 766, infra. 
 
518 Injunctions. 
 
 DISSOLUTION OF PRELIMINARY INJUNCTIONS. 
 
 In General. A marked feature of preliminary injunctions, 
 as distinguished from those which are final or perpetual, is 
 that the former are liable to be dissolved upon sufficient cause 
 at any stage of . the proceedings. ( i ) It is not necessary to 
 the continuance of an injunction that it should be clear that the 
 complainant will succeed at the hearing ; it is sufficient if there 
 is ground for supposing that relief may be given. (2) But an 
 injunction ought not to be continued where the statements of 
 the bill to sustain it are improbable. (3) So where it is very 
 clear that the complainant has no title upon which to base his 
 right to an injunction, it will be dissolved even before the 
 title is determined in a pending action. (4) 
 
 Grounds for Dissolving — in General. The continuance 
 or dissolution of an injunction always rests in discretion, not 
 arbitrary, but controlled by established rules. The equity of 
 the bill may be answered, and yet the court may continue the 
 injunction to the hearing, especially if the dissolution would 
 work greater injury than its continuance, or where the circum- 
 stances and justice between the parties require it. (5) 
 
 The power of dissolving injunctions should be exercised in 
 such manner as to prevent the restraint by injunction from 
 working unnecessary delay and injustice to the parties. (6) So 
 where the complainant has been tardy in his application, and 
 the party sought to be enjoined has made large expenditures of 
 money with complainant's knowledge, and without notice of his 
 alleged rights, and the continuance of the injunction will entail 
 serious loss and damage to innocent parties, and public incon- 
 
 (i) High on Injunctions, sec. 1167. 
 
 (2) Huffman V. Hummer, 17 N. J. Eq., 263. 
 
 (3) Fowler v. Roe, 11 N. J. Eq., 367. 
 
 (4) Westcott V. Gifford, s N. J. Eq., 24; and see "Existence and 
 Nature of Right," page 482, supra. 
 
 (5) Chetwood V. Brittan, 2 N. J. Eq., 438; Fleischman v. Young, 
 9 N. J. Eq., 620; Stotesburg v. Vail, 13 N. J. Eq., 390; Firmstone v. 
 DeCamp, 17 N. J. Eq., 309; Scanlon v. Howe, 24 N. J. Eq., 273; Britton 
 V Hill, 27 N. J. Eq., 389; Emson v. Ivins, 42 N. J. Eq., 277; Campbell 
 V. Runyon, 42 N. J. Eq., 483; Stanton Mfg. Co. v. McFarland, 52 N. J. 
 Eq., 85; affirmed, 53 N. J. Eq., 649; Brunson v. Board of Free- 
 holders, 76 N. J. Eq., 480. 
 
 (6) Cammack v. Johnson, 2 N. J. Eq., 163 ; Jewett v. Dringer, 27 
 N. J. Eq., 271 ; Henwood v. Jarvis, 27 N. J. Eq., 247 ; Warren v. 
 Pim, 65 N., J. Eq., 38. 
 
Dissolution. 510 
 
 venience woujd result therefrom, and the complainant has his 
 remedy at law, the injunction will be dissolved. (7) And so, 
 although the equity of the bill is not answered, if the con- 
 tinuation of the injunction is a material injury to the defendant, 
 and its dissolution is no present injury to the complainant, or 
 cannot prejudice his rights, the court may, in its discretion, 
 dissolve it. (8) 
 
 Where no public inconvenience will result from the con- 
 tinuance of an injunction against municipal authorities, and, 
 on the other hand, the private interests involved are consider- 
 able, affecting not only complainant, bm many of his neigh- 
 bors, the injunction will be retained until final hearing. (9) 
 And so, where the right to the injunction which issued on 
 filing the bill depended on questions some of which were new 
 and eminently proper to be decided by a court of law, and were 
 awaiting an adjudication in such tribunal between the same 
 parties, a motion to dissolve was denied. (10) 
 
 Irregularity of Service. Mere irregularities in the service 
 of an injunction constitute no ground for its dissolution, since 
 it is sufficient that defendant is apprised of its existence. Thus, 
 the fact that a subpoena could not be served, or that the in- 
 junction itself was served illegally without the jurisdiction 
 of the court is not a sufficient reason for dissokttion. ( 11 ) 
 Illegality in the service of an injunction on a non-resident is 
 not waived by the appearance of counsel to move the dis- 
 missal of the writ because of such illegality, nor, when that 
 motion is refused, by counsel's answering to the merits. (12) 
 But where a preliminary injunction issues after a hearing on a 
 rule to show cause, and complainant neglects to issue a sub- 
 poena and procure its return within the time limited in the 
 rule, the injunction may be dissolved. (13) 
 
 (7) Scanlon v. Howe, 24 N. J. Eq., 273; and see "Conduct of 
 Complainant as Affecting Right," page 493, supra. 
 
 (8) Bechtel v. Carslake, 11 N. J. Eq., 244; Higgins v. Westervelt, 
 44 N. J. Eq., 254; D., L. & W. R. R. Co. v. Breckenridge, 55 N. J. Eq., 
 159. And see "Relative Convenience and Injury," page 494, supra. 
 
 (9) Nanko v. Chambersburgh, 25 N. J. Eq., 168; And see "Injury 
 and Inconvenience to the Public," page 497, supra. 
 
 (10) M. & E. R. R. Co. V. Haskins, 26 N. J. Eq., 295. 
 
 (11) Corey v. Voorhees, 2 N. J. Eq., 5. 
 
 (12) Ludlam v. Horner, 2 N. J. L. J., 230. 
 
 (13) West V. Smith, 2 N. J. Eq., 309; Lee v. Cargill, 10 N. J. Eq., 
 331 ; Brown v. Fuller, 13 N. J. Eq., 271 ; Allman v. United Brotherhood 
 &c., 81 Atl., 116. 
 
520 Injunctions. 
 
 Defective Verification. If the facts upon which an in- 
 junction depends are not properly verified, the injunction will 
 be dissolved, even if the denial in the answer is not sufficient 
 for want of personal knowledge by the defendant (14), and 
 a deficiency in the verification of the charges in the bill can- 
 not be supplied upon the hearing of a motion to dissolve the 
 injunction. (15) 
 
 Want of Equity in the Bill. If the injunction has been 
 improvidently granted on account of want of equity in the 
 bill, it will be dissoljVed on motion, either before or after 
 answer. (16) So an injunction will be dissolved where the 
 bill shows no necessity for the court's affording to complain- 
 ant such protection ; the power to restrain by injunction is 
 confined exclusively to the Court of Chancery, and should be 
 exercised with caution, and only where there is a necessity 
 for it. The individual ought not to be restrained unless the 
 ends of justice require it. (17) And so where there is an 
 adequate remedy by way of defence to an action at law, the 
 injunction will be dissolved. (18) The fact that the equity of 
 the bill for injunction is not fully answered will not stand in 
 the way of dissolving the injunction where it appears that 
 complainant is not entitled to claim the equity set up in his 
 bill. (19) 
 
 Laches of Complainant. Want of due diligence on the 
 part of a complainant in the prosecution of his suit is always 
 cause for dissolving an injunction granted upon the filing of 
 the bill. The rule rests upon sound principle, and should be 
 strictly enforced. The injunction is granted e^- parte; it 
 deprives the party enjoined of the exercise of his legal rights; 
 it is designed to prevent irreparable or serious injury to the 
 
 (14) Holdrege v. Gwynne, 18 N. J. Eq., 26; Snyder v. Seeman, 41 
 N. J. Eq., 405. 
 
 (is) Perkins v. Collins, 3 N. J. Eq., 482. 
 
 (16) Morris Canal &c., Co. v. Biddle, 4 N. J. Eq., 222; Smith 
 V. Kuhl, 25 N. J. Eq., 38; ConoVer v. Ruckman, 32 N. J. Eq., 683. 
 The expression of opinion of the chancellor in Conover v. Ruckman, 
 supra, that want of equity in a bill should be taken advantage of by 
 demurrer and not by motion is of no value since the promulgation of 
 Chancery Rule 213 a motion under which is a substitute for a de- 
 murrer. See "motion to strike out pleadings," page 287, supra. 
 
 (17) Mullen V. Jennings, 9 N. J. Eq., 192. 
 
 (18) Freeman v. Elmendorf, 7 N. J. Eq., 475; a-fHrtned i. b., 655. 
 
 (19) Quackenbush v. Van Riper, i N. J. Eq., 476. 
 
Dissolution. 521 
 
 legal rights of the complamant until the merits of the contro- 
 versy can be heard and adjusted; and every principle of justice 
 requires that the defendant should be restrained from the 
 exercise of his rights no longer than is essential to investigrate 
 the matter at issue. When extended further, it operates injuri- 
 ously to the rights of defendant. (20) This is especially so 
 where the injunction deprives the defendant of the enjoyment 
 of the property in dispute and must prove greatly prejudicial 
 to his interests if his claim should be established. (21) 
 
 It is the duty of the complainant to sue out a subpoena, and 
 take the requisite steps to compel an answer from all the 
 defendants and to expedite his cause; and if he neglects to do 
 so, the injunction may be dissolved, though a part only of the 
 defendants have answered. (22) And a failure to make a 
 return of the service is ground for dissolving the injunction. 
 (23) So where complainant obtained an injunction ex parte, 
 and failed to file a replication and proceed to proofs after a 
 sufficient answer had been filed, defendant was entitled to move 
 to dissolve the injunction order, pending the determination of 
 the sufficiency of the answer.(24) So an application to dis- 
 solve an injunction for want of due diligence on the part of 
 complainant in not taking testimony and setting the case down 
 ■ for hearing, it is no answer to say that both parties are actors, 
 and that the defendant might have entered a rule to close, 
 testimony, 'taken his evidence, and brought the case on for 
 hearing. (25) 
 
 On the other hand, delay • or- laches on the part of a defend- 
 ant in seeking the aid of the court for the dissolution of an 
 
 (20) Corey v. Voorhees, 2 N. J. Eq., s ;Greenin v. Hoey, 9 N. J. 
 Eq., 137; Lee v. Cargill, lo N. J. Eq., 331; Brown v. Fuller, 13 N. J. 
 Eq., 271 ; Hoagland v. Titus, 14 N. J. Eq., 81 ; Schalk v. Schmidt, 14 
 N. J. Eq., 268; Dodd v. Flavell, 17 N. J. Eq., 255; Huffman v. Hum- 
 mer, 17 N. J. Eq., 263; Hendrickson v. Norcross, ig N. J. Eq., 417; 
 Collings V. Camden, 27 N. J. Eq., 293. 
 
 (21) Dodd V. Flavell, 17 N. J. Eq., 235; Collings v. Camden, 27 
 N. J. Eq., 293. 
 
 (22) West V. Smith, 2 N. J. Eq., 309; Stoutenburgh v. Peck, 4 
 N. J. Eq., 446; Brown v. Fuller, 13 N. J. Eq., 271; Allman v. United 
 Brotherhood &c., 81 Atl., 116. 
 
 (23) Tantum v. West, 3 Atl. Rep., 338; West v. Smith, 2 N. J 
 Eq., 309. 
 
 (24) Gibbs V. Ward, 48 Atl., 243. 
 
 (25) Hoagland v. Titus, 14 N. J. Eq., 81. 
 
522 Injunctions. 
 
 injunction may constitute sufficient ground for refusing the 
 motion. Where there has been long acquiescence in an order 
 for an injunction, the courts are slow to entertain a motion 
 for its dissolution. (26) 
 
 Fraud and Misrepresentation. The utmost good faith be- 
 ing required of those who invoke the extraordinary remedies 
 of equity, it follows that deception or misrepresentation on the 
 part of the person obtaining the injunction atiEords strong 
 ground for its dissolution. And when it is apparent upon a 
 motion to dissolve an injunction granted ex parte that com- 
 plainant has misrepresented his case, either by actual mis- 
 statement, or by a suppression of facts material to a full 
 understanding of the equities involved, and that upon a cor- 
 rect statement of the facts the writ would not have been 
 granted, such misrepresentation is of itself sufficient ground 
 for a dissolution. (27) 
 
 Where an injunction has been obtained through misrepre- 
 sentation of facts, if" makes no difference, in determining a 
 motion to dissolve it, whether such misrepresentation was 
 through carelessness, misinformation or otherwise ; the injunc- 
 tion must be dissolved. (28) But an injunction will not 
 be dissolved merely because the complainant in his bill 
 has unintentionally misstated some of the facts on which 
 his claim to relief is founded, such misstatements not affect- 
 ing the merits. (29) 
 
 Non-Joinder of Parties. It is the general rule that the 
 non-joinder of an essential party -leads to the dissolution of 
 the injunction. This rule, however, is not universal, but, 
 like most general rules, is subject to the control of the equit- 
 ies O'f the particular case. The true principle is that when 
 an injunction will have the effect of injuring in any material 
 aspect the rights of absent persons, the court will not, except 
 in cases of special necessity, interfere with such rights; but 
 when the absence of persons as parties constitutes, so far as 
 
 (26) Scanlon v. Howe, 24 N. J. Eq., 273 ; Feistel v. King's Col- 
 lege, 10 Bev., 491; Bickford v. Skews, 4 Myl. & C, 500; McCoy v. 
 McCoy, 29 West Va., 794, 2 S. E. 809. 
 
 (27)' High on Injunctions, Sec. 1474; Leigh v. Clark, II N. J. Eq., 
 no. 
 
 (28) Endicott v. Mathis, 9 N. J. Eq., no. 
 
 (29) Promes v. Freeholders of Warren, 33 N. J. Eq., 464. 
 
Dissolution. 523 
 
 the granting or refusing of the injunction is concerned, a 
 formal rather than a substantial defect, there is no ground 
 arising from such fact for a refusal of the temporary aid of 
 the court, if such aid appears under the circumstances to be 
 equitable. (30) So where an injunction is sought to restrain 
 the trustees of a church from performing certain acts, the 
 church in its corporate capacity is a proper and necessary 
 party; but where such act has been enjoined, the injunction 
 will not necessarily be dissolved on account of such non- 
 joinder. (31) 
 
 Dissolution on Court's Own Motion. If the court has 
 allowed an interlocutory injunction which afterwards clearly 
 appears to have been improvidently allowed, the court may, 
 on its own motion, set it aside at any time, without notice 
 having been given of an application to dissolve. (32) 
 
 Parties Entitled to Move to Dissolve. No one but a party 
 to a suit can make any motion in it,- except for the purpose 
 of being made a party. So an injunction restraining a defend- 
 ant from receiving money in the hands of his attorney will 
 not be dissolved on motion of such defendant's assignee, who 
 was not a party to the suit. (33) While a party is in contempt 
 for disobedience to an injunction, he cannot properly have a 
 hearing upon a motion for its dissolution ; but when the nature 
 and extent of the punishment to be inflicted for such contempt 
 depends on the determination of the question whether the 
 injunction shall be continued or not, a hearing may be allow- 
 ed. (34) 
 
 Parties Entitled to Oppose Dissolution. Aside from the 
 original complainants, the dissolution of an injunction may be 
 opposed by new parties who have been brought in as com- 
 plainants; and notwithstanding an order making new parties 
 complainants provides that the right to a continuance of a 
 
 (30) Irick V. Black, 17 N. J. Eq., 189; Morgan v. Rose, 22 N. J. 
 Eq., 583; Black v. Delaware & Raritan Canal Co., 24 N. J. Eq., 455- 
 492; Smalley v. Line, 28 N. J. Eq., 348-351; Elkins v. Camden & At- 
 lantic R. R. Co., 36 N. J.' Eq., 5 ; see also "Suits for Injunctions," 
 "Parties," page 499, supra. 
 
 (31) Schalk V. Schmidt, 14 N. J .Eq., 268. 
 
 (32) Coriover v. Ruckman, 33 N. J. Eq., 303. 
 
 (33) Linn v. Wheeler, 21 N. J. Eq., 231 ; Easterbrook Co. v. Ahearn, 
 31 N. J. Eq., 3 ; Ross v. Titsworth, 37 N. J. Eq., 333. 
 
 (34) Endicott v. Mathis, 9 N. J. Eq., no. 
 
524 Injunctions. 
 
 temporary injunction shall depend solely on the original com- 
 plainant's right thereto, the injunction will not be dissolved 
 if the added complainants would have had a right to its conr 
 tinuance, had they been original parties. (35) 
 
 Time for Motion. Where an injunction is granted 
 ex parte, the court will at any time hear a motion to dissolve 
 for want of equity, unless for special cause (36) ; but a motion 
 to dissolve an injunction restraining a suit at law will not be 
 granted before answer filed on the ground that the bill on the 
 face of it shows no equity in a case where a discovery is 
 sought or where the bill alleges that the obligations sued on 
 at law were given without consideration and were fraudu- 
 lently obtained, and the affidavits annexed to the bill are suffi- 
 cient prima facie proof that fraud was used in obtaining the 
 obligations. (37) 
 
 No motion to dissolve an injunction before answer shall 
 be entertained, except on the ground of want of equity in the 
 bill, unless tht defendant shall show good cause why an answer 
 has not been put in, and where no answer has been put in, 
 and the chancellor shall allow the motion to be heard on 
 affidavits on the part of the defendant, the adverse party shall 
 be permitted to rebut them by counter affidavits ; but such 
 affidavits, on both sides, shall be ex parte, or taken on such 
 notice as may be ordered. (38) 
 
 Notice of Motion. The Chancery Rules require that 
 eight days' notice be given of all motions to dissolve injunc- 
 tions. (39) So upon the argument of a rule to show cause 
 why an injunction should not issue, in a case where an injunc- 
 tion has been granted as to part, the question whether the 
 existing injunction should not be removed cannot be con- 
 sidered; that can only be removed upon notice and motion 
 to dissolve, in accordance with the rule of the court. (40) And 
 while the allowance of a plea which either constitutes a full 
 defence to the complainant's whole case, or deprives him of 
 
 (35) Warren v. Pirn, 65 N. J. Eq., 36; S. C, 66 N. J. Eq., 353. 
 
 (36) Morris Canal &c. Co. v. Biddle, 4 N. J. Eq., 222; Woodhull v. 
 Neafie, 2 N. J. Eq., 409. 
 
 (37) Shotwell V. Smith, 20 N. J. Eq., 79. 
 
 (38) Chancery Rule 123. 
 
 (39) Chancery'^ Rule 141. 
 
 (40) Manhattan etc. R. R. Co. v. Van Keuren, 23 N. J. Eq., 251. 
 
Dissolution. 525 
 
 all power further to prosecute his action, will, if he holds an 
 injunction, entitle the defendant to its dissolution, a motion for 
 that purpose must be made. (41) 
 
 Form of Notice. General notice of a motion to dissolve 
 an injunction for want of equity is sufKcient.(42) But when 
 a party seeks to set aside an injunction as having been inform- 
 ally^ or improperly issued, either because the facts are not 
 sworn to before competent authority or because the money 
 has not been brought into court, or for any special matter not 
 touching the equities of the case, the notice should set out the 
 grounds of the motion. (43) And a notice of a motion to 
 dissolve an injunction "for irregularity in the proceedings" is 
 insufficient ; the notice should state wherein the irregularity 
 consists. (44) 
 
 In a notice of a motion to dissolve an injunction, it is 
 proper to specify that it will be heard before a Vice-Chancellor 
 whom the calendar indicates to be sitting for the Chancellor, 
 though the bill was addressed to the Chancellor and the case 
 had not yet been referred to any Vice-Chancellor.(45) 
 
 Hearing — Use and Effect of Bill. On the hearing of a 
 motion to dissolve an injunction upon the defendant's answer 
 to the bill, the charges in the bill, unless met by the' answer, 
 are to be taken as true, and the allegations in the answer are 
 entitled to the same credit. (46) A defect in the verification 
 of the bill cannot be supplied upon the hearing of a motion 
 to dissolve, since the granting of an injunction upon a bill thus 
 defective is not merely an irregularity, but an error to which 
 the doctrine does not apply. (47) But if an injunction bill 
 has been properly sworn to, the fact that the officer adminis- 
 tering the oath has neglected to sign the jurat does not con- 
 stitute sufficient ground for dissolution. (48) 
 
 (41) Fulton V. Greacen, 44 N. J. Eq., 443. 
 
 (42) Morris Canal etc., Co. v. Bartlett, 3 N. J. Eq., 9. 
 
 (43) Morris Canal etc., Co. v. Bartlett, 3 N. J. Eq., 9; Brown v 
 Winans, 11 N. J. Eq., 267. 
 
 (44) Miller v. Traphagen, 6 N. J. Eq., 200. 
 
 (45) Smith v. Painter, 10 N. J. L. J., 182. 
 
 (46) Merwin v. Smith, 2 N. J. Eq., 182. 
 
 (47) Perkins v. Collins, 3 N. J. Eq., 482. 
 
 (48) Capner v. Flemington Mining Co., 3 N. J. Eq., 467. 
 
526 Injunctions. 
 
 Use and Effect of Answer — General Rule. Upon a mo- 
 tion to dissolve, the allegations of the answer, supported 
 by affidavits, must be taken as established. (49) And where 
 the facts on which the equity of the bill rests are positively 
 and explicitly denied by the defendant in his answer, on his 
 own personal knowledge and not merely by way of argument 
 or upon information and- belief, the injunction will be dis- 
 solved. (50) The rule that a preliminary injunction will be 
 dissolved when a responsive answer under oath by a defendant 
 having knowledge of the transaction denies the facts on which 
 the equity of the bill depends, is unaffected by the fact that 
 complainant in his bill waives an answer under oath. (51) 
 
 Limitations of and Exceptions to Rule — Discretion of 
 Court. The general rule that where the answer fully denies 
 the equity of the bill the injunction will be dissolved is not 
 inflexible, but is applied subject to the sound discretion of 
 the court. (52) Thus an injunction granted on notice and 
 
 (49) Tainter v. Morristown, 19 N. J. Eq., 46. 
 
 (so) Youle V. Richards, I N. J. Eq., 534; Quackenbush v. Van 
 Riper, i N. J. Eq., 476; Wooden v. Wooden, 3 N. J. Eq., 429; Hatch 
 V. Daniels, S N. J. Eq., 14; Washer v. Brown, S N. J. Eq., 81; Jones 
 V. Sherwood, 6 N. J. Eq., 210; Grafton v .Brady, 7 N. J. Eq., 79; 
 Vervalen v. Older, 8 N. J. Eq., 98; Fowler v. Roe, 11 N. J. Eq., 367; 
 Masterton v. Barney, 11 N. J. Eq., 26; Scott v. Ames, 11 N. J. Eq., 
 261 ; Trustees &c. v. Gilbert, 12 N. J. Eq., 78 ; Kent v. DeBaum, 12 
 N. J. Eq., 220; Horner v. Jobs, 13 N. J. Eq., 19; Gariss v. Gariss, 13 
 N. J. Eq., 320; Price v. Armstrong, 14 N. J. Eq., 41; Thorp v. Pettit, 
 16 N. J. Eq., 488; Marshman v. Conklin, 17 N. J. Eq., 282; Morris 
 Canal, &c., Co. v. Fagan, 18 N. J. Eq., 215 ; Holdrege v. Gwynne, 18 
 N. J. Eq., 26; Suffern v. Butler, 18 N. J. Eq., 220; Teasey v. Baker, 
 19 N. J. Eq., 61 ; Eaton v. Jenkins, 19 N. J. Eq., 362 ; Inhabitants of 
 Winslow V. Hudson, 21 N. J. Eq., 172; Murray v. Elston, 23 N. J. 
 Eq., 127; Brewer v. Day, 23 N. J. Eq., 418; Moies v. O'Neill, 23 N. J. 
 Eq., 207; Liebstein v. Newark, 24 N. J. Eq., 200; Keron v. Coon, 
 26 N. J. Eq., 26, Stilt V. Hilton, 30 N. J. Eq., 579; affirmed, 31 N. J. Eq., 
 28s. 
 
 (si) Walker v. Hill, 21 N. J. Eq., 191; Ireland v. Kelly, 60 N. J. 
 Eq., 308; Allman v. United Brotherhood, etc., 81 Atl., 116. 
 
 (S2) Fleischman v. Young, 9 N. J. Eq., 620; Leigh v. Clark, 11 
 N. J. Eq., no; Stotesburg v. Vail, 13 N. J. Eq., 390; McKibben v. 
 Brown, 14 N. J. Eq., 13; Irick v. Black, 17 N. J. Eq., 189; Firmstonc v. 
 De Camp, 17 N. J. Eq., 309 ; Carr v. Weld, 18 N. J. Eq., 41 ; Camden 
 &c. R. R. V .Stewart, 18 N. J. Eq., 489; Murray v. Elston, 23 N. J. 
 Eq., 127; Liebstein v. Newark, 24 N. J. Eq., 200; Mulock v. Mulock, 
 26 N. J. Eq., 461 ; Simon v. Townsend, 27 N. J. Eq., 302 ; Jewett v. 
 Dringer, 27 N. J. Eq., 271 ; Cregar v. Creamer, 27 N. J. Eq., 281 ; 
 Snyder v. Seeman, 41 N. J. Eq., 405. 
 
Dissolution. 527 
 
 after a hearing upon affidavits on both sides, and especially 
 upon the affidavits of the defendants themselves going to the 
 merits, will not as a general rule be dissolved on the answer 
 of the defendants. (53) So an injunction will not be dissolved 
 where auxiliary evidence of the complainant's right is before 
 the court sufficient to sustain the bill, even though its mate- 
 rial averments are denied by the answer. (54) 
 
 In order to bring a case within the exception to this rule, 
 there must be something characteristic in the case, or the 
 case must exhibit some feature which shows there is a strong 
 probability at least that the ends of justice will be better 
 served by the continuance of the injunction. Thus the fact 
 that the continuance of the injunction will work a great 
 injury to defendant has great weight with the court in the 
 consideration of the question whether the injunction should 
 be continued. (55) So where the bill alleged gross fraud, 
 and abuse by a son of confidential relations existing, accord- 
 ing to his own admission, between himself and an aged 
 mother, in procuring conveyances of property from her to 
 himself with circumstances of a suspicious character, the 
 injunction was retained until the final hearing. (56) So where 
 the effect of withholding the injunction will be to deprive the 
 party of all relief in case he is finally successful or to subject 
 him to some irreparable injury or peculiar hardship, the 
 injunction should be retained notwithstanding the denials of 
 the equity of the bill by defendant's answer and affidavits. (57) 
 
 The general rule, that where the .answer denies fully and 
 explicitly the equities of the- bill, the injunction should be dis- 
 solved, does not necessarily prevail where by continuing the 
 injunction the ends of justice will be better subserved. The 
 motion to dissolve in such instances has been often denied by 
 the court in the exercise of its appropriate discretion, having 
 regard to the circumstances of the case and the effect which 
 a dissolution would have upon the relative situation of the 
 
 (53) Sinickson v. Johnson, 3 N. J. Eq., 374. 
 
 (54) Stevens v. Stevens, 24 N. J. Eq., 77; Conover v. Ruckman, 
 34 N. J. Eq., 293-297. 
 
 (55) Furman v. Clark, 11 N. J. Eq., 13s; and see. "Relative Con- 
 venience and Injury," page 494, supra. 
 
 (56) Mulock V. Mulock, 26 N. J. Eq., 461 ; Hartly v. Hartly, 4 
 Atl., 677. 
 
 (57) Kountze v. Morris Aqueduct Co., 54 N. J. Eq., 40. 
 
528 Injunctions. 
 
 parties in the further prosecution of the suit. (58) Thus where 
 the eiifect of the dissolution of an injunction restraining pro- 
 ceedings at law will be to permit the defendants to proceed 
 at law to enforce their claim against a fund in controversy, 
 and to compel the holders of the fund, in order to protect 
 themselves against loss from conflicting claims, to seek the aid 
 of this court, the injunction will be retained for the purposie 
 of adjusting the whole matter in the Court of Chancery. ( 59) 
 
 If the case presented by the bill is one that seems to 'require 
 investigation, and a dissolution of the injunction would enable 
 the defendant to place the property' which is the subject of 
 the controversy beyond the control of the court, and would 
 thus be tantamount to a denial of the relief sought, the injunc- 
 tion will not be dissolved. (60) So, though the court may 
 doubt whether the case made by the bill in an action for an 
 account is sufficient to justify retaining the injiinction and 
 changing the forum of litigation, yet if the answer shows that 
 the case embraces an equity which a court of equity can alone 
 administer, the Chancellor should retain the injunction and 
 assume exclusive jurisdiction. (61) So where a bill was filed 
 to prevent the alleged violation of a building covenant in a 
 deed, and the answer, while admitting the existence of the 
 covenant, denied that the construction put upon it by the com- 
 plainants was the proper one, and the decision of the cause 
 depended principally on the judicial construction of the cove- 
 nant, which question could not be decided satisfactorily upon 
 the application before the court, the court retained the injunc- 
 tion until final hearing. (62) But the mere fact that a disso- 
 lution of the injunction to stay a suit at law would leave the 
 
 (58) Van Syckle v. Rorbach, 6 N. J. Eq., 234; Greenin v. Hoey, 
 9 N. J. Eq., 137; Leigh v. Qark, 11 N. J. Eq., no; Furman v. Qark, 
 II N. J. Eq., 13s; Scott V. Ames, 11 N. J. Eq., 261; Murray v. Elston, 
 23 N. J. Eq., 127; Stilt V. Hilton, 30 N. J. Eq,, 579; affirmed, 31 N. 
 J. Eq., 28s; Ely v. Crane, 37 N. J. Eq., 157; Reversed, ib., 564; Snyder 
 V. Seeman, 41 N. J. Eq., 405; Stanton Mfg. Co. v. McFarland, 53 
 N. J. Eq., 8s; affirmed, 53 N. J. Eq.,649; Jersey City Printing Co. v. 
 Cassidy, 63 N. J. Eq., 759. 
 
 (59) Mosser v. Pequest Mining Co., 26 N. J. Eq., 200; Pine v. 
 Shannon, 32 N. J. Eq., 85. 
 
 (60) Hoagland v. Titus, 14 N. J. Eq., 81 ; Carr v. Weld, 18 N. J. 
 Eq., 41 
 
 (61) Ely V. Crane, 37 N. J. Eq., 157; Reversed, ib., 564. 
 
 (62) Pope V. Bell, 35 N. J. Eq., i. 
 
Dissolution. 529 
 
 complainant remediless constitutes no sufficient reasin for 
 holding the injunction until the hearing, when that remedi- 
 lessness consists in the want of a valid defence of the suit. (63) 
 
 Where, on a motion to dissolve an injunction on the ground 
 that the equity is fully denied in the answer, it appears that the 
 matter is clearly not within the defendant's knowledge, but 
 presents a question for legal construction, the injunction will 
 be continued to the hearing. (64) So in a case where, if the 
 motion prevailed, the cause was virtually decided, and the com- 
 plainants would have been deprived of their only remedy, and 
 the answers showed circumstances enough for a well founded 
 belief that they did not give the true character of the trans- 
 action, although they technically denied the equity of the bill, 
 the court refused to dissolve the injunction. (65) But there 
 should be some good reason for making an exception to the 
 rule; thus, where the complainant has not prosecuted his suit 
 with diligence, and no insuperable mischief can be done to 
 him by dissolving the injunction, the court will not deny the 
 defendant the benefit of his answer. (66) 
 
 Sufficiency of Answer. It is not the mere denial of the 
 facts on which a complainant's equity is founded that amounts' 
 in every case to such a denial of the equity of the bill as will 
 entitle the defendant to the dissolution of an injunction ; the' 
 facts must be of a character to entitle the denial of them by 
 the answer to as much credit, at least, as their affirmation by 
 the complainant is entitled to. If a fact is one within the 
 knowledge of the complainant, and of which the defendant has 
 knowledge only from hearsay, and the equity of the bill rests 
 upon that fact, and the defendant denies it of his knowledge 
 and belief, the equity of the bill is not denied in the sense 
 which entitles the defendant to have the injunction dis- 
 solved. (67) 
 
 To entitle a defendant to the dissolution of an injunction, he 
 must deny the whole equity of the bill upon which the injunc- 
 
 (63) Keron v. Coon, 26 N. J. Eq., 26. 
 
 (64) Boston Franklinite Co. v. N. J. Zinc Co., 13 N. J. Eq., 215. 
 (6s) Fleischman v. Young, 9 N. J. Eq., 620. 
 
 (66) Greenin v. Hoey, 9 N. J. Eq., 137. 
 
 (67) Shields v. Arndt, 4 N. J. Eq., 234; Morris Canal, etc., Co. 
 V. Jersey City, 11 N. J., Eq., 13; and see "Denials on Information and 
 Belief," page S32, infra. 
 
530 Injunctions. 
 
 tion is based. He must answer directly and without evasion, 
 and must not merely answer the several charges literally, but 
 must traverse the substance of each charge. (68) And it is 
 not sufficient that the answer denies the inference to be drawn 
 from or the effect of the facts set up in the bill. (69) But 
 though a bill is verified by affidavit of all the material facts, 
 and the answer is only verified by the usual oath of the defend- 
 ant, yet when the alleged equity is only a matter of inference 
 from the affidavit, and is distinctly and positively denied by 
 the answer, the injunction will be dissolved. (70) 
 
 The formal traverse of material matters contained in the bill 
 is not sufficient to dissolve an injunction; the answer must be 
 full and satisfactory. (71) And so an injunction to restrain 
 the payment of a mortgage assigned by a wife to her husband 
 through the mediation of his brother, such injunction having 
 been obtained on the ground that the wife was non compos 
 mentis at the time of her marriage and continued so until her 
 death, will not be dissolved upon the husband's answer merely 
 setting up the marriage and the assignment, and denying the 
 alleged insanity. (72) So an answer to a bill for an injunction 
 which simply avers that the facts stated in a paper purport- 
 ing to be the answer of another defendant in the cause "are 
 substantially correct so far as these defendants are concerned" 
 is both formally and substantially defective. (73) 
 
 Where any of the matters charged in the bill, and which are 
 an essential part of the complainant's equity entitling him to 
 an injunction remain unanswered, the injunction will not be 
 dissolved. (74) So where, on a bill to restrain the purchaser 
 of a mortgage from a trustee from using and misapplying 
 
 Everly v. Rice, 4 N. J. Eq., 553; Boston Franklinite Co. 
 V. N. J. Zinc Co., 13 N. J. Eq., 215, 218; Randall v. Morrell, 17 N. J. 
 Eq., 343; Morris Canal, etc., Co. v. Pagan, 18 N. J. Eq.. 215; Shotwell 
 V. Struble, 21 N. J. Eq., 31 ; Vreeland v. New Jersey Stone Co., 25 N. J. 
 Eq., 140; Ireland v. Kelly, 60 N. J. Eq., 308 . 
 
 (69) Teasey v. Baker, 19 N. J. Eq., 61. 
 
 (70) Keron v. Coon, 26 N. J. Eq., 26. 
 
 (71) Merwin v. Smith, 2 N. J. Eq., 182; Brown v. Fuller, 13 N. J. 
 Eq., 271 ; Horner v. Jobs, 13 N. J. Eq., 19. 
 
 (72) French y. Snell, 29 N. J. Eq., 95. 
 
 (73) Carr v. Weld, 18 N. J. Eq., 41. 
 
 (74) Kuhl V. Martin, 26 N. J. Eq., 60; Vreeland v. N. J. Stone 
 Co., 25 N. J. Eq., 140; Everly v. Rice, 4 N. J. Eq., 553; Gibby v. 
 Hall, 27 N. J. Eq., 282. 
 
Dissolution. _ 531 
 
 trust funds, the answer formally denied the facts, but admit- 
 ted such knowledge as should have excited defendant's sus- 
 picion and put him upon inquiry, the injunction was continued 
 until final hearing. (75) 
 
 An injunction will not be dissolved upon an answer which 
 is partial, equivocal or evasive. (76) Thus where, in a suit to 
 enjoin a person from continuing a business in violatiori of a 
 contract, the answer fails to disclose the true character of 
 such business or to show whether it is, in fact, such as the 
 defendant might carry on without breach of his covenant, or 
 whether it is such only colorably, the injunction will not be 
 dissolved on the answer, but will be retained until final hear- 
 ing- (77) And so where complainants in their bill affirm 
 that a certain pier and its appurtenances are essential to the 
 enjoyment of their canal, and the answer affirms that they 
 are useful but not essential, this is not such a denial as entitles 
 the answer to outweigh the allegation of the bill. (78) 
 
 If the answer leaves the question of fraud not entirely 
 free from doubt, an injunction will be retained until the 
 hearing. (79) So where transactions are charged involving 
 fraud, either actual or constructive, and especially where 
 direct interrogatories are put in relation to particular facts, 
 the court cannot be satisfied with a general answer or with 
 one in any way evasive. (80) So an answer in which the 
 denial is made in such form as to leave it in doubt whether it 
 is of the facts alleged or only of the facts in the form and 
 manner and at the time alleged in the bill, is evasive, and will 
 not avail to dissolve an injunction. (81) And an express 
 denial in an vanswer of a fact of which the defendants admit 
 themselves to be ignorant is' not a sufficient denial of the com- 
 plainant's equity to justify the dissolution of the injunc- 
 tion. (82) 
 
 (75) Dey v. Dey, 23 N. J. Eq., 88. 
 
 (76) Woodruff V. Ritter, 26 N. J. Eq., 86. 
 {.^^') Richardson v. Peacock, 26 N. J. Eq., 40. 
 
 (78) Morris Canal, etc., Co. v. Jersey City, 11 N. J. Eq., 13. 
 
 (79) Scott V. Hartman, 26 N. J. Eq., 89. 
 
 (80) Scull V. Reeves, 3 N. J. Eq., 84. 
 
 (81) McMahon v. O'Donnell, 20 N. J. Eq. 306. 
 
 (82) Bailey v. Stiles, 3 N. J. Eq., 245. 
 
532 , Injunctions. 
 
 On a motion to dissolve an injunction, the separate answer 
 of a co-defendant not included in the injunction cannot be 
 regarded. (83) But where the answer of the defendant who 
 has been restrained denies the equity of the bill and the 
 answer of other defendants, who are the parties most interested 
 in the subject matter of the suit, admits every material allega- 
 tion on which relief is claimed, the injunction will not be dis- 
 solved. (84) 
 
 Denials Upon Information and Belief. To entitle a de- 
 fendant to the dissolution of an injunction he must answer 
 upon his own knowledge ; a denial upon information and belief 
 will not avail to dissolve the injunction. (85) It is not incum- 
 bent on the court to dissolve an injunction on the coming in 
 of an answer where some of the most important charges of 
 the bill remain unanswered and the pleading is filed by repre- 
 sentatives having no personal knowledge of the facts, which 
 are, therefore, not admitted or denied by them. (86) So where 
 the facts on which the equity of a bill rested were not charged 
 to be within the knowledge of an administrator, a motion to 
 dissolve on his answer was denied on the ground that defend- 
 ant as such administrator had no personal knowledge of the 
 transactions charged in the bill. (87) But it has been held 
 that when complainant neglects to make a party defendant 
 one who is personally cognizant of all the facts and who 
 should be joined as a party, defendants having no personal 
 knowledge of the equities of the bill are entitled to a dissolu- 
 tion upon their answer denying those equities upon informa- 
 tion and beHef.(88X 
 
 New Matter in Answer. It is a general rule that where 
 the equity of the bill is not denied, or where the answer 
 admits the material allegations upon which the equity of the 
 complainant's bill rests, but sets up new matter, not respon- 
 
 (83) V-an Syckel v. Emery, 18 N. J. Eq., 387. 
 
 (84) Zabriskie v. Vreeland, 12 N. J. Eq., 179. 
 
 (8s) Everly v. Rice, 4 N. J. Eq., 553; Pierson v. Ryerson, S N. J. 
 Eq., 196; Morris Canal, &c., Co. v. Jersey City, 11 N. J. Eq., ii^; 
 Boston Franklinite Co. v. N. J. Zinc Co., 13 N. J. Eq., 215-218; 
 Society &c. v. Low, 17 N. J. Eq., 19; Irick v. Black, 17 N. J. Eq., 
 189 ; Higbee v. C. & A. R. R. Co., 19 N. J. Eq., 276. 
 
 (86) Miller v. Ford, i N. J. Eq., 358. 
 
 (87) Williams v. Stevens, s N. J. Eq., 119, but see Campbell v. 
 Runyon, 42 N. J. Eq., 483. 
 
 (88) DeGrott v. Wright, 7 N. J. Eq., 516. 
 
Dissolution. 533 
 
 sive to the allegations of the bill, in avoidance, the injunction 
 will not be dissolved. (89) So in a suit to restrain an action 
 at law by reversioners for waste in cutting timber, a justifi- 
 cation of the waste not alleged or set i;p in the bill will be of 
 no avail on a motion to dissolve the injunction. (90) So new 
 matter, as ground of estoppel, cannot avail upon the hearing 
 of a motion to dissolve an injunction. (91) But the presence 
 of new matter in the answer is no ground for refusing to dis- 
 solve, if, in addition thereto, the entire equity of the bill is 
 negatived. (92) 
 
 This rule, however, has its exceptions. Thus, where the 
 complainant, when he files his bill, has full knowledge of the 
 matter of defence upon which the defendant relies,' and it is 
 the substantial matter in controversy between the parties, the 
 complainant cannot, by purposely keeping such matter out of 
 view in stating his case, in order to deprive the defendant of 
 the benefit of a denial, subject his adversary to the application 
 of the rule in question. (93) 
 
 The rule that the defendant cannot set up new matter in his 
 answer or affidavits, and rely upon it on his motion to dissolve, 
 has lost much of its force by the change in the practice of the 
 court upon the hearing of motions to dissolve injunctions. The 
 124th rule (94) provides that on a motion to dissolve an 
 injunction the complainant is at liberty to read affidavits in 
 reply to any new matter set up in the answer, and upon which 
 the defendant in any manner relies for his success of his 
 motion. It is true that the court ought not on a motion of 
 this kind to try the case as upon a final hearing; but if the 
 defendant sets up new matter which, if true, constitutes 
 
 (89) Everly v. Rice, 4 N. J. Eq., SS3; Cornelius v. Post, 9 N. J. 
 Eq., 196; Carson v. Coleman, 11 N. J. Eq., 106; Brewster v. New- 
 ark, II N. J. Eq., 114; Morris Canal &c., Co. v. jersey City, 12 N. J. 
 Eq., 227; affirmed ib., 545; Butler v. Society &c., 12 N. J. Eq., 264; 
 affirmed in 498; Green v. Pallas, 12 N. J. Eq., 267; Huffman v. Hum- 
 mer, 17 N. J. Eq., 263; Society for Establishing Useful Manufactures 
 V. Low, 17 N. J. Eq.; 19; West Jersey R. R. Co. v. Thomas, 21 N. J. 
 Eq., 20s; Armstrong v. Potts, 23 N. J. Eq., 92; Johnston v. Corey, 
 25 N. J. Eq., 311; Vreeland v. N. J. Stone Co., 25 N. J. Eq., 140; 
 Ettenborough v. Bishop, 26 N. J. Eq., 262. 
 
 (90) VanSyckel v. Emery, 18 N. J, Eq., 387. 
 
 (91) Ettenborough v. Bishop, 26 N. J. Eq., 262. 
 
 (92) Crane v. Ely, 37 N. J. Eq., 564. 
 
 (93) Holmes v. Jersey City, 12 N. J. Eq., 299-302. 
 
 (94) See page 537, infra. 
 
534 Injunctions. 
 
 beyond doubt a good defense, he should have the benefit of it,- 
 unless the complainant shows to the court that the facts upon 
 which it is founded are controverted, or some other reason 
 why it should not avail the defendant on the motion. (95) 
 
 Answers to Bills for Discovery. Where the bill merely 
 asks discovery in aid of a defense at law, the injunction will, 
 as a general rule, be dissolved as soon as the answer is per- 
 fected. (96) But this rule does not apply to a case where the 
 bill is filed for relief, and discovery incidental to the granting 
 thereof. (97) So where on a bill for discovery in aid of a 
 defense at law an injunction was granted restraining further 
 proceedings in the action at law, and the defendant answered 
 the bill, denying its allegations and making no discovery, the 
 injunction was dissolved. (98) Where an injunction had been 
 granted to stay a suit at law that the defendants might make 
 discovery and that the complainants might have relief in the 
 premises in this court, and the defendants subsequently moved 
 to dissolve the injunction on the ground that the equity of the 
 bill had been fully answered and the discovery prayed for 
 obtained, the court refused the motion on the ground that the 
 bill prayed for rehef as well as for discovery, in regard to a 
 subject matter which appropriately belonged to equity juris- 
 diction ; but to have this effect the bill must show a case where 
 the propriety of the court's retaining the cause is manifest. (99) 
 
 Answers by Part Only of Defendants. The general rule 
 is that an injunction will not be dissolved until the defendant 
 .upon whom the gravamen of the charge of the bill rests has 
 answered; and if all the defendants are implicated in the 
 charge, not until all have answered. (100) Where two defend- 
 ants are implicated in the same charge, the court always 
 requires the answer of both before dissolving the injunction, 
 
 (95) Holmes v. Jersey City, 12 N. J. Eq., 299-302. 
 
 (96) 'Henwood v. Jarvis, 27 N. J. Eq., 247. 
 
 (97) Henwood v. Jarvis, 27 N. J. Eq., 247; Pratt v. Boody, 55 
 N. J. Eq., 175. 
 
 (98) Grafton v. Brady, 7 N. J. Eq., 79. 
 
 (99) Brown v. Edsall, g N. J. Eq., 256; Little v. Qjoper, 10 
 N. J. Eq., 273. 
 
 (100) Stoutenburgh v. Peck, 4 N. J. Eq., 446; Gregory v. Stillwell, 
 6 N. J. Eq., 51; Adams v. Hudson County Bank, 10 N. J. Eq., 535; 
 Robinson v. Davis, 11 N. J. Eq., 302; Jewett v. Bowman, 27 N. J. Eq., 
 171. 
 
Dissolution. 535 
 
 unless some special reason to the contrary appears.(i) ' So 
 where an injunction was granted upon an allegation of the 
 fraudulent concealment of a written agreement between the 
 defendant and another defendant in an action at law, such 
 injunction will not be dissolved upon the answer of one defend- 
 ant and the affidavit of the other, but only upon the answers 
 of both and the production of such agreement. (2) 
 
 So where on an application to dissolve an injunction it 
 appeared that the defendants who had answered denied the 
 fraud charged in the bill, but that other defendants, more 
 deeply interested in getting the injunction dissolved, remained 
 silent, the court declined to dissolve the injunction, on the 
 ground that the complainants were entitled to the answers of 
 all of the defendants. (3) And if the answering defendants 
 are unable from want of knowledge to deny allegations of the 
 bill which are material to its equity, the injunction will be 
 retained. The fact that the only defendant who can answer 
 such allegations is absent from the state is no ground of excep- 
 tion to the general rule. (4) But if the answering defendant 
 is able, from his own connection with the subject and conse- 
 quent knowledge, to lay facts before the court which show 
 that the complainant has no equity, the injunction may be 
 dissolved without the answer of the other defendant. (5) 
 
 An injunction may be dissolved, though only part of the 
 defendants have answered, if the complainant has neglected to 
 take the requisite steps to compel an answer from all. (6) 
 
 The neglect or refusal to answer of any defendant not 
 interested in the gravamen of the charge will not affect the 
 rights of the parties really interested. (7) If the defendants 
 upon whom rests the gravamen of the charge answer denying 
 the whole equity of the bill as against them, the injunction 
 will be dissolved, though the other defendants have not ans- 
 wered. (8) 
 
 (i) Price V. Clevenger, 3 N. J. Eq., 207; Smith v. Loomis, 5 N. J. 
 Eq., 60. 
 
 (2) Prickett v. Tuller, 29 N. J. Eq., 154. 
 
 (3) Wisham v. Lippincott, 9 N. J. Eq., 353. 
 
 (4) Lines v. Speer, 8 N. J. Eq., 154. 
 
 (5) Gregory v. Stillwell, 6 N. J. Eq., 51. 
 
 (6) Stoutenburgh v. Peck, 4 N. J. Eq., 446. 
 
 (7) Price V. Clevenger, 3 N. J. Eq., 207. 
 
 (8) Vliet V. Lowmason, 2 N. J. Eq., 404 ; Price v. Clevenger, 3 N. J. 
 Eq., 307. 
 
536 Injunctions. 
 
 Effect of Exceptions to Answer. The filing of exceptions 
 to an answer constitute's no technical objection to the dissolu- 
 tion of an injunction. The court will look into them merely 
 to ascertain whether they relate to the points of the bill upon 
 which the injunction rests. (9) The English rule that excep- 
 tions to an answer undisposed of are a bar to the dissolution 
 of an injunction upon the denials of the answer has not been 
 adopted in this state. (10) So where an answer explicitly and' 
 fully denies the grounds on which an injunction has been 
 granted, it must be dissolved, though exceptions to other parts 
 of the answer have been filed.(ii) 
 
 Hearing on Motion. On a motion to dissolve an injunc- 
 tion, the court may properly consider all questions involved 
 in the grounds for the motion as set out therein. So the court 
 has power to construe a written instrument, upon a motion to 
 dissolve ; but it is a matter resting in the discretion of the 
 court, to be exercised according to the nature and circumstan- 
 ces of each particular case. (12) But the power to construe 
 a written instrument will not tie exercised where the ends of 
 justice are more likely to be attained by deferring the con- 
 struction until the final hearing. (13) 
 
 Upon a motion to dissolve an injunction, the court will not 
 undertake to determine points of doubt or difficulty upon 
 which the merits of the case depend, but will leave them to 
 be determined at the final hearing, when the evidence is fully 
 before the court. (14) So a nice or doubtful question of law 
 will not be decided on a motion to dissolve an injunction, but 
 will be reserved for the final hearing. (15) On the hearing of a 
 motion to dissolve an injunction, the burden of showing 
 cause for dissolution is on the defendant. (16) 
 
 Eq., 207; Stoutenburgh v. Peck, 4 N. J. Eq., 446; Adams v. Hudson 
 County Bank, 10 N. J. Eq., 535. 
 
 (9) Robert v. Hodges, 16 N. J. Eq., 299 ; McGee v. Smith, 16 N. J. 
 Eq., 462; Stitt V. Hilton, 31 N. J. Eq., 285. 
 
 (10) Mitchell V. Mitchell, 20 N. J. Eq., 234; Wyckoff v. Cochran, 
 4 N. J. Eq., 420. 
 
 (11) Stitt V. Hilton, 31 N. J. Eq., 285. 
 
 (12) Morris Canal & Banking Co. v. Matthiesen, 17 N. J. Eq., 385. 
 
 (13) Morris Canal & Banking Co. v. Matthiesen, 17 N. J. Eq., 385. 
 
 (14) Hufifman v. Hummer, 17 N. J. Eq., 263. 
 
 (is) VanKuren v. Trenton Locomotive, &c., Co., 13 N. J. Eq., 
 302. 
 
 (i5) Ross V. Stevens, 45 N. J. Eq., 231. 
 
Dissolution. 537 
 
 Use of Answer and Affidavits at Hearing. When a motion 
 is made to dissolve an injunction upon the answer, the defend- 
 ant must rely upon his answer and on the affidavits annexed 
 thereto in reply to the case made by the bill and its accom- 
 panying affidavits. (17) But affidavits annexed to the answer 
 can only be read in reply to affidavits annexed to the bill. (18) 
 The general rule is that when an injunction has been obtained 
 upon the complainant's affidavit alone, and a motion is made 
 by the defendant, upon filing his answer, to dissolve the 
 injunction, affidavits cannot be read upon the argument of 
 the motion. (19) 
 
 Where an answer has been filed, and on a motion to dis- 
 solve an injunction defendant relies upon anything except the 
 want of equity in the bill, or his answer, he must specify in 
 his motion the grounds upon which he rests for a dissolution. 
 (20) It is not necessary that affidavits annexed to answers 
 should be taken upon notice, or that copies should be served 
 on the adverse party. (21) An answer under oath is evidence 
 for the respondent at the hearing of a motion to dissolve an 
 injunction, though the bill did not call for a sworn answer. (22) 
 
 No affidavits except those annexed to the bill shall be read 
 on behalf of the complainant upon a motion to dissolve an 
 injunction except in reply to new matter set up in the answer. 
 When the defendant shall in any manner rely on such new 
 matter for a dissolution of the injunction, affidavits for com- 
 plainant in reply to new matter may be ex parte, or upon such 
 notice as may be directed. (23) No affidavits can be read 
 on the part of a complainant in reply to responsive allegations 
 in an answer. The rule limits the use of such affidavits to 
 cases where the answer sets up new matter. (24) But in 
 cases of waste, affidavits are admissible in support of the 
 
 (17) Chancery Rule 124; Holmes v. Jersey City, 12 N. J. Eq., 299- 
 302; Morris Canal &c., Co. v. Matthiesen, 17 N. J. Eq., 385. 
 
 (18) Gariss v. Gariss, 13 N. J. Eq., 320. 
 
 (19) Merwin v. Smith, 2 N. J. Eq., 182; Brown v. Winans, II 
 N. J. Eq., 267; Gariss v. Gariss, 13 N. J. Eq., 320; Mulock v. .Mulock, 
 26 N. J. Eq., 461 ; Bell v. Romaine, 30 N. J. Eq., 24 ; Ramsey v. Smith, 
 32 N. J. Eq., 28; Pope v. Bell, 35 N. J. Eq., i. ^ 
 
 (20) Brown v. Winans, 11 N. J. Eq., 267. 
 (2i) Gariss v. Gariss, 13 N. J. Eq., 320. 
 
 (22) Walker v. Hill, 21 N. J. Eq., 191. 
 
 (23) Chancery Rule 124. 
 
 (24) Eaton V. Jenkins, 19 N. J. Eq., 362; Brown v. Winans, 11 
 N. J. Eq., 267. 
 
538 Injunctions. 
 
 bill to prove acts of waste. (25) Where new matter is con- 
 tained in the answer, not responsive to the bill, which is relied 
 upon as a ground for setting aside the injunction, the com- 
 plainant may read affidavits in contradiction of such new mat- 
 ter. (26) But the affidavits in support of the injunction, to 
 contradict matters in the answer alleged to be irresponsive to 
 the bill, cannot be read if the defendant's counsel disclaims 
 or waives reliance upon any irresponsive matter. (27) 
 
 The Chancellor or Vice-Chancellor before whom a motion 
 may be made to dissolve an injunction may further order that 
 any affiant whose affidavit is annexed to or accompanying 
 the bill or presented on the part of defendant shall appear and 
 submit to cross examination in respect to matter contained 
 in his affidavit, under such direction as to notice and time 
 and officer, examining, before whom such cross examination 
 shall be taken as may be prescribed in the order, and if satis- 
 fied that such affiant has after reasonable notice neglected or 
 refused to submit to cross examination as ordered, may decline 
 to consider such affidavit of such affiant. (28) 
 
 Costs. The costs of proceedings to dissolve an injunction 
 are largely in the discretion of the court; and while they may 
 be left to abide the event of the final hearing, they will gener- 
 ally be awarded to defendant upon granting his motion to dis- 
 solve. (29) And where the complainant has not diligently 
 prosecuted his suit, the costs of a motion to dissolve an injunc- 
 tion will be charged to him, although such motion be denied. 
 (30) But on dissolution of an injunction, with an allowance 
 of costs to be paid by the complainant, the defendant is not 
 entitled to costs for a demurrer to the bill which has been 
 overruled. (31) And where the hearing of a motion to dis- 
 solve an injunction is adjourned because complainant's coun- 
 sel has not had time to prepare for the argument, the defend- 
 ant is not entitled to costs therefor. (32) 
 
 (25) Merwin v. Smith, 2 N .J. Eq., 182; Renton v. Chaplain, 9 
 N. J. Eq., 62. 
 
 (26) Merwin v. Smith, 2 N. J. Eq., 182. 
 • (27) Miller v. English, 6 N. J. Eq., 304. 
 
 (28) Chancery Rule 124a. 
 
 (29) 22 Cyc. 1008. 
 
 (30) Randall v. Morrell, 17 N. J. Eq., 343 
 
 (31) Andrews v. Ford, 6 N. J. Eq., 488. 
 
 (32) Smith V. Painter, 10 N. J. L. J., 182. 
 
Foreclosure of Mortgages. 539 
 
 CHAPTER XXXII. 
 FORECLOSURE OF MORTGAGES. 
 
 In General. A mortgage at common law is a conveyance, 
 absolute in its form, granting an estate defeasible upon the 
 performance of a condition subsequent. The estate thus cre- 
 ated was strictly an estate on condition, and in a court of law 
 was treated as subject to be defeated only by the performance of 
 the condition, in the manner and at the time stipulated for in 
 the defeasence clause. If the condition was that the con- 
 veyance should be void on payment of a certain sum of money 
 on a given day, and the condition was performed according 
 to its terms, the estate reverted back to the mortgagor without 
 any reconveyance, by the simple operation of the condition. 
 If on the other hand, the condition was not performed by the 
 payment of the money on the day named in the condition, 
 the estate of the mortgagee became absolute at law ; the title 
 of the mortgagor was completely divested and gone, and a 
 reconveyance was necessary to restore him to his original 
 estate. ( i ) 
 
 In New Jersey^ the prevailing doctrine in courts of law as 
 well as in courts of equity is to consider the mortgage as merely 
 ancillary to the debt, and to hold that the estate of the mort- 
 gagee is annihilated by the extinguishment of the debt secured 
 by it, even after the day of payment named in the condition. 
 The mortgage is regarded as a mere security for the debt or 
 obligation ; the latter is considered the principal thing, the mort- 
 gage only the accessory. The legal title vests in the mortgagee 
 merely for the protection of his interest, and in order to give 
 him the full benefit of the security ; for all other purposes, the 
 mortgage is a mere security for the debt, the mortgagor retain- 
 ing the right to redeem upon payment of the debt or obliga- 
 tion. (2) 
 
 Remedies of Mortgagee. Prior to the act of 1880, a mort- 
 gagee could enforce bis debt by suit at law upon the bond, by 
 
 (i) Shields v. Lozear, 34 N. J. L., 496. 
 
 (2) Shields V. Lozear, 34 N. J. L., 496; Magie v. Reynolds, 51 
 N. J. Eq., 113; Blue v. Everett, 56 N. J. Eq., 455-458; Perkins v. 
 Trinity Realty Co., 69 N. J. Eq., 723; Voorhees v. Nixon, 72 N. J. 
 Eq., 790. 
 
540 Foreclosure of Mortgages. 
 
 writ of ejectment, and by a suit in equity to foreclose the 
 equity of redemption of the mortgagor, and he could pursue 
 these remedies concurrently or successively. The act of 1880 
 as amended 'n 1881 provides that in all cases where'a bond and 
 mortgage be given for the same debt, all proceedings to collect 
 said debt shall be first to foreclose the mortgage ; and if at the 
 sale of the mortgaged premises under said foreclosure proceed- 
 ings, the said premises should not, sell for a sum sufficient to 
 satisfy said debt, interest and costs, then and in such case it 
 shall be lawful to proceed on the bond for the deficiency. The 
 act further provides that all suits on said bond shall be com- 
 menced within six months from the date of the sale of said 
 mortgaged premises, and judgment shall be rendered and execu- 
 tion issue only for the balance of debt and costs of suit. (3) 
 So a suit on overdue interest coupons on coupon bonds secured 
 by mortgage on lands in this state will not lie until after 
 foreclosure and sale of the mortgaged premises. (4) 
 
 Construction of Act. The hardship that this act was in- 
 tended to alleviate was the seizure and sale of the chattels of 
 the mortgagor by virtue of a judgment on the bond, before a 
 resort to the land, and the act does not abridge the rights of 
 the mortgage beyond that measure. This act, therefore, does 
 not prevent a mortgagee from maintaining ejectment before 
 beginning foreclosure proceedings. (5) 
 
 The provision of the act requiring the foreclosure of the 
 mortgage as the first step in the proceedings for the collec- 
 tion of the debt is a personal privilege, and is not designed to 
 secure any object of public policy; and being a personal privi- 
 lege, a party has a right to waive it. (6) But the giving of a 
 warrant to confess judgment upon any instrument securing 
 the identical debt is not per se a waiver; it is merely an ele- 
 ment in the issue of fact, and the intention of the parties in 
 giving the warrant to confess judgment contrpls.(7) So where 
 
 (3) 3 Comp. Stat, 3421, Sec. 48; (P. L. 1880, p. 255, as amended 
 by P. L., 1881, p. 184) and see "Suit for Deficiency," page 640, infra 
 
 (4) Holmes v. Seashore Electric Co., 57 N. J. L., 16. 
 
 (5) Mershon v. Castree, 57 N. J. L., 484. 
 
 (6) Hellyer v. Baldwin, 53 N. J. L., 141 ; Van Aken v. Tice, 60 
 N. J. L., Z77; Andrus v. Burke, 61 N. J. Eq., 297; Crosby v. Washburn, 
 66 N. J. L., 494; Callan v. Bodine, 79 Atl., 1057. 
 
 (7) Hellyer v. Baldwin, S3 N. J. L., 141; Van Aken v. Tice, 60 
 N. J. L., 377. 
 
Remedies of Mortgagee. 541 
 
 a mortgage on lands was given to secure a bond and war- 
 rant of attorney to confess judgment, and the mortgagor 
 afterwards, with the consent of the mortgagee, conveyed the 
 mortgaged premises to a third person with an agreement that 
 the grantee should sell the premises clear of the lien of tHe 
 mortgage, and apply the proceeds of the sale to the payment 
 of the amount due on the bond and warrant, so far as they 
 would extend, it was held that after such sale by the grantee 
 and application of the proceeds of the sale in accordance with 
 such agreement, the mortgagee might enter judgment on the 
 bond and warrant, the agreement and its execution making 
 compliance with this act unnecessary. (8) 
 
 And so this act does not apply where a mortgagor subse- 
 quently executes a warrant of attorney to confess judgment 
 for the same debt with intenton that the judgment shall be 
 entered at once. (9) But where a creditor took a bond and 
 warrant to confess judgment for the same debt for which he 
 at the time held his debtor's bond and mortgage, and then 
 without the consent of the mortgagor tore the seals off the 
 mortgage for the purpose of cancelling it, and caused judg- 
 ment to be entered by virtue of the warrant of attorney, it 
 was held that the judgment was illegal and must be set 
 aside. (10) 
 
 The statute, being in derogation of the common law force 
 inherent in the bond, must be strictly construed. ( 1 1 ) So 
 where an obligee holds two bonds aggregating a sum certain, 
 due at once, and afterwards takes from the same obligor a 
 bond and mortgage to secure a like sum payable at the expira- 
 tion of one year, with a provision as to default in the payment 
 of interest and taxes and an obligation by which the cost 
 of insurance may be added to the debt secured by the bond, 
 the two bonds first mentioned and the debt secured by the 
 bond last mentioned are not so strictly identical that the 
 former are stripped of their common law force by this act. (12) 
 
 (8) Franklin Bldg. Assn. v. Richman, 65 N. J. L., 526. 
 
 (9) Andrus v. Burke, 61 N. J. Eq., 297 ; Crosby v. Washburn, 66 N. 
 J- L-, 494- 
 
 (10) Van Aken v. Tice, 60 N. J. -L., 377. 
 
 (ii)Mershon v. Castree, 57 N. J. L., 484; Knight v. Cape May Sand 
 Co., 81 At!., 361. 
 
 (12) Knight V. Cape May Sand Co., 81 Atl., 361. 
 
542 Foreclosure of Mortgages. 
 
 And so an action on a bond without first foreclosing an 
 accompanying mortgage can be brought where the bond has 
 been presented to the legal representative of a deceased obligor, 
 who has duly served notice disputing the claim. (13) The 
 thne of the "giving" of the securities for the same debt is 
 the test made by the statute, not the time of bringing suit or 
 of obtaining judgment thereon. ( 14) 
 
 This act has no application where the existence of the 
 mortgage has been lawfully terminated before the institu- 
 tion of proceedings on the bond to collect the debt. (15) Nor 
 is it applicable to cases in which the mortgage given is a 
 nullity for want of title in the mortgagors. (16) 
 
 PROCEEDINGS TO FORECLOSE. 
 
 Form of Remedy. It has already been seen that the right 
 of the mortgagee to enforce his obligation upon the bond 
 is postponed until he has foreclosed the equity of redemp- 
 tion of the mortgagor. ( I ) Where all the mortgaged lands 
 are within one county, the suit for foreclosure may be brought 
 in the circuit court of the county wherein the lands lie. (2) 
 And if no other person than the mortgagor or mortgagors 
 and the mortgagee are necessarily interested, and the lands 
 are subject to but one mortgage, the mortgagee may sue 
 forth a writ of scire facias out of the Supreme Court, or 
 the court of common pleas of the county within which such 
 lands lie. (3) But the remedy usually resorted to by the 
 mortgagee is a bill in chancery to foreclose the equity of 
 redemption of the mortgagor. 
 
 Right to Foreclose — in' General. Where a mortgage is 
 given to secure future advances by the mortgagee, who stipu- 
 lates that he will make advances to a certain amount, and he 
 
 (13) Weatherby v. Weatherby, 63 N. J. L., 445; Callan v. Wash- 
 burn, 66 N. J. L., 494. 
 
 (14) "Van Aken v. Tice, 60 N. J. L., 377. 
 
 (is) Seigman v. Streeter, 64 N. J. L., 169; Bower v. Bower, 78 
 N. J. L., 387; Callan v. Bodine, 79 Atl., 1057. 
 (16) Pruden v. Savage, 70 N. J. L., 22. 
 (i) See page 539, supra. 
 
 (2) 3 Comp. Stat, 3412, Sec. 9. 
 
 (3) 3 Comp. Stat, 3410, Sec. 4. 
 
Right to Foreclose. 543 
 
 makes advances, but not to the stipulated amount, he may 
 enforce his claim for re-payment by foreclosure for any 
 amount he may have advanced. (4) And the fact that the 
 mortgage contained a stipulation by the mortgagee that he 
 would not assign or dispose of the mortgage until after 
 advances, therein contracted for, had amounted to a fixed 
 sum, will not prevent his foreclosure of the mortgage for the 
 sum actually advanced and due thereon, although such advan- 
 ces do not amount to the fixed sum. (5) Where a debt paya- 
 ble at a future day, with interest payable in the meantime at 
 stated intervals, is secured by a mortgage, and default is made 
 in the payment of an installment of such interest, the mortgage 
 may be foreclosed to enforce its lien as to such arrears of 
 interest. (6) 
 
 And where, on condemnation proceedings by a railroad 
 company, it fails to give notice to a mortgagee as required 
 by law, and pays the full amount of the award to the owner, 
 it cannot contend that the mortgagee is guilty of laches, if 
 within the statutory time for foreclosure he files a bill to 
 foreclose and to recover the amount of the award from the 
 company. (7) 
 
 The exemption from suit granted to an administrator by 
 the 65th section of the Orphans' Court Act (8), does not 
 extend to a foreclosure suit in which no relief is sought 
 either against the administrator, or the estate which he repre- 
 sents. (9) So although an executor is made a trustee by a 
 provision in the will giving him power to sell and take charge 
 of the real estate, a suit to foreclose a mortgage thereon is 
 not within the provisions of this section of the Orphans' 
 Court Act. (10) 
 
 The holder of a mortgage not recorded when a bill is filed 
 to foreclose another mortgage upon the same premises, can- 
 
 (4) Baldwin v. Flagg, 36 N. J. Eq., 48; Reversed, 38, N. J. Eq., 
 219. 
 
 (5) Baldwin v. Flagg, 36 N. J. Eq., 48; Reversed, 38 N. J. Eq., 
 2ig. 
 
 (6) Van Doren v. Dickerson, 33 N. J. Eq., 388; see also cases 
 cited in note to Collerd v. Huson, 34 N. J. Eq., at page 42. 
 
 (7) Gray v. Case, 51 N. J. Eq., 426. 
 
 (8) P. L. 1898, p. 738; 3 Comp Stat, p. 3832. 
 
 (9) United Security Life, etc., Co. v. Vandegrift, 51 N. J. Eq., 400. 
 
 (10) Ayres v. Shepherd. 64 N. J. Eq., 166. 
 
544 Foreclosure of Mortgages. 
 
 not file an original bill upon his unrecorded mortgage but 
 must seek his rights by applying to intervene in the first suit 
 pursuant to the provisions of section 59 of the chancery 
 act.(ioa) 
 
 Maturity of Debt. If the mortgage or bond fixes a certain 
 future date as the time for its payment, there can be no legal 
 default, and consequently no right to foreclose, before the 
 maturity of the debt thus fixed ; and where the mortgage sought 
 to be foreclosed is not due at the time of the commencement 
 of the suit, the bill will be dismissed.(ii) . 
 
 But where a mortgage specially provides that the equity 
 of redemption should run to the maturity of the bpnd, no 
 bill to foreclose can be filed until the expiration of that time, 
 although the bond gives the mortgagee an option to declare 
 it due at any prior time on default of payment of interest, 
 since a decree of foreclosure necessitates a sale, which is a 
 final bar to the equity of redemption under the laws and 
 practice of New Jersey. (12) Where a mortgage is given by 
 a member to a building association, the insolvency of the 
 association works a rescission of the contract, and the sums 
 borrowed become immediately due and payable, regardless 
 of the terms of, payment fixed by the contract. (13) 
 
 Anticipation of Maturity. Where a mortgage due in a 
 specified time provides that in case any interest payment or 
 tax remains unpaid for a fixed period after it becomes due 
 and payable, the principal sum shall become due, the unex- 
 cused failure to pay such interest or tax within such period 
 matures the mortgage. (14) And the right of the assignee 
 of a mortgage to elect to call in the principal, in case of a 
 default provided for in the mortgage, and to foreclose for 
 breach of condition, is the same as the right of the mortgagee 
 would have been had the mortgage not been assigned. (15) 
 So where a bond given by defendant contained the usual 
 
 (loa) Sibell v. Weeks, 65 N. J. Eq., 714; and see chancery act, 
 section 59, page 54, supra. 
 
 (11) Maryott v. Renton, 21 N. J. Eq., 381. 
 
 (12) Phillips V. Youmans, 57 N. J. Eq.. 130. 
 
 (13) Harris v. Nevins, 68 N. J. Eq., 183; affirmed, ib. 684. 
 
 (14) Spring V. Fisk, 21 N. J. Eq., 175; Arkenburgh v. Lakeside 
 Residence Ass'n., 56 N. J. Eq., 102 S. C, 57 N. J. Eq., 443; Bergman 
 V. Fortescue, 74 N. J. Eq., 266. 
 
 (is) Bergman v. Fortescue, 74 N. J. Eq., 266. 
 
Right to Foreclose. 545 
 
 thirty days' interest default clause, and defendant made default, 
 it was held that complainant was entitled to foreclose for the 
 whole amount, unless defendant could offer some good excuse, 
 such as accident or mis'take, for such default. (i6) But in a 
 suit to foreclose a mortgage, the failure to pay taxes after the 
 filing of the bill is of no avail to complainant. (17) 
 
 Where there has been a mistake on the part of the obligee 
 in regard to the time for the payment of interest, such as 
 might happen to a prudent man, and there has also been a 
 waiver of the default on the part of the obligor, the court 
 will relieve. (18) Mere negligence or forgetfulness as to 
 the place where or person to whom interest is to be paid 
 will not, however, excuse the non-payment or constitute a 
 defense to a suit to foreclose. (19) So where a mortgage pro- 
 vides that the principal shall become due if the interest remains 
 unpaid for thirty da;ys after it is due, the fact that the mort- 
 gagor makes a mistake in calculating the time when the 
 thirty days expired, and does not tender the interest until 
 the thirty-first day, is no defense against a foreclosure, the 
 mistake being due to pure carelessness. (20) 
 
 So where by the terms of a purchase money mortgage it 
 was provided that upon the mortgagor's failure to pay the 
 taxes when due and to produce a tax receipt within thirty 
 days thereafter the mortgagee ifiight declare the whole princi- 
 pal debt due and payable, and taxes became due and were 
 unpaid, and thereafter the mortgagor paid a semi-annual 
 installment of interest to the mortgagee, which the latter' 
 accepted, but at the time of the payment did not know that 
 the taxes were unpaid, it was held that by accepting the 
 interest payment he did not waive the benefit of the above 
 mentioned provision, the non-production of the tax receipt 
 qot being sufficient to charge him with notice of the fact that 
 the taxes were unpaid. (21) 
 
 (16) Baldwin v. Van Vorst, 10 N. J. Eq., ^"jj. 
 
 (17) Bradley v. Glenmary, 64 N. J. Eq., T}. 
 
 (18) Martin v. Melville, 11 N. J. Eq., 222. 
 
 (19) De Groot v. McCotter, 19 N. J. Eq., 531 ; Spring v. Fisk, 21 
 N. J. Eq., 17s; Voorhis v. Murphy, 26 N. J. Eq., 434; Bergman v; 
 Fortescue, 74 N. J. Eq., 266. 
 
 , (20) Serrell v. Rothstein, 49 N. J. Eq., 385. 
 
 (21) Bergman v. Fortescue, 74 N. J. Eq., 266. 
 
546 Foreclosure of Mortgages. 
 
 So when a mortgage to secure bonds and the interest 
 thereon contains a covenant that at a fixed time after default 
 in the payment of interest, and after_ demand, the principal 
 shall become immediately due, and the bonds and coupons 
 are payable at a designated place, default in the payment of 
 interest within the meaning of that covenant will result from 
 the non-payment of the coupons, though not presented at 
 the designated place nor payments demanded. (22) 
 
 Where a mortgage securing payment of a debt due in two 
 years from its date, with the usual thirty days interest arrears 
 clause, gave the mortgagors the right to redeem specified 
 portions of the mortgaged premises on paying specified por- 
 tions of the debt "at any time prior to the two years herein- 
 before fixed and limited," it was held that the mortgagee 
 was entitled to maintain a bill for foreclosure of the mort- 
 gage after interest had been thirty days in arrears, although 
 two years from the date of the mortgage had not elapsed. (23) 
 
 But the court will not enforce a forfeiture of credit if the 
 complainant is himself in fault, or has misled the defendant. 
 (24) So where the mortgagee informed the mortgagor that 
 he had assigned the bond and mortgage to his sister, and 
 advised him to keep his money until he should call for the 
 interest, he is in no position to claim the benefit of a forfeit- 
 ure arising from the failure to pay the interest within the, 
 thirty days. (25) Where, however, the interest on a mortgage 
 debt is not paid when due, and the mortgagor informs the 
 mortgagee next day that he is ready to pay it, but makes no 
 tender, and the mortgagee directs his solicitor to foreclose, 
 but before doing so, the solicitor notifies the mortgagor, and 
 waits several days before filing the bill, there is no hardship 
 of which the mortgagor can complain. (26) A mortgagor of 
 a mortgage containing the thirty days' interest forfeiture 
 clause cannot defeat the right to foreclose upon default in 
 
 (22) New Jersey Paper Board &c., Co. v. Security Trust &c., Co., 
 57 N. J. Eq., 306. 
 
 (23) Phillips V. Youmans, 41 Atl., 924. 
 
 (24) DeGroot v. McCotter, 19 N. J. Eq., 531. 
 
 (25) Wilson V. Bird, 28 N. J. Eq., 352; and see "Waiver of De- 
 fault," page 549, itifra. 
 
 (26) Probasco v. Vaneppes, 13 Atl., S98. 
 
Right to Foreclose. 547 
 
 payment of interest without proving a tender of the inter- 
 est. (27) 
 
 In computing the days of grace allowed for the payment of 
 interest in a bond, where in .default of such payment the 
 principal shall become due, the day when the interest became 
 payable will not be counted. Thus where the day of pay- 
 ment is May ist, the thirty days will have expired on 'May 
 3ist.(28) 
 
 Extension of Time for Payment. After a bond and mort- 
 gage have become due, a promise to extend the time of pay- 
 ment may be shown by parol. (29) And when the time of 
 payment of a mortgage has been extended by parol, a bill to • 
 foreclose filed before the expiration of the extension will be 
 dismissed as premature. (30) But the general rule is, that a 
 promise by parol to ejctend the time of payment of a bond 
 and mortgage after the same has become due cannot be 
 enforced, unless it appears that it was made upon sufficient 
 consideration. (31) Where, however, the action of the party 
 to whom the promise was made was controlled by such prom- 
 ise, and 'he took title to the real estate covered by the mort- 
 gage relying thereupon, a court of equity will apply the doc- 
 trine of estoppel and will refuse its aid to the mortgagee if he 
 attempts to foreclose his mortgage before the expiration of 
 the period named. (32) 
 
 Where a bill is filed to foreclose a mortgage, it is no defense 
 that the money would have been paid at the time it became 
 due had not the complainant a year before, in conversation, 
 told the defendant that he did not wish him to pay any more 
 of the principal when it became due, and that if he needed it, 
 he would give timely notice and that no notice had been given ; 
 such a promise amounts to nothing, being made without con- 
 
 (27) Schmitz V. Scheifele, 7 Atl., 351. 
 
 (28) Thome v. Mosher, 20 N. J. Eq., 257; Serrell v. Rothstein, 49 
 N. J. Eq., 38s ; McCormick v. Hickey, 56 N. J. Eq., 848. 
 
 (29) Van Syckel v. O'Hearn, 50 N. J. Eq., 173, and Cases cited; 
 Measurall v. Pearce, 4 Atl., 678; Bigelow v. Roromelt, 24 N. J. Eq., 
 IIS- 
 
 (30) Tompkins v. Tompkins, 21 N. J. Eq., 338; Maryott v. Renton, 
 21 N. J. Eq., 381. 
 
 (31) Massaker v. Mackerley, 9 N. J. Eq., 440; Van Syckel v. 
 O'Hearn, 50 N. J. Eq., 173 and cases cited. 
 
 (32) Van Syckel v. O'Hearn, 50 N. J. Eq., 173 and Cases cited; and 
 see "Waiver of Default" page 549, infra. 
 
548 Foreclosure of Mortgages. 
 
 sideration.(33) But an agreement by a mortgagee in a mort- 
 gage from a corporation, to extend the time of payment of 
 the mortgage debt in consideration of another purchasing 
 shares of stock of the corporation and paying the money 
 therefor into its treasury, is supported by sufficient considera- 
 tion. (34) 
 
 The reduction by a mortgagor of the amount due on a 
 first mortgage is a sufficient consideration to support an 
 agreement' by the second mortgagee extending the time for 
 payment of his mortgage. (35) But an agreement by a mort- 
 gagee to go into partnership with the mortgagor, and to 
 cancel a mortgage held on the premises where the business 
 is to be carried on, if abandoned before the next payment 
 of interest becomes due, does not amount to an agreement to , 
 extend the time of payment of the interest so as to save a 
 forfeiture of credit incurred by the non-payment of inter- 
 est. (36) 
 
 A mortgagor is not entitled to any benefit from a subse- 
 quent agreement made between the mortgagee and the.latter's 
 assignee, extending the time of payment on condition of the 
 mortgagee's guaranty and the prompt payment of the interest. 
 (37) But when a mortgagor, on negotiations between him 
 and the first and second mortgagees, pays a sum on the first 
 mortgage, and believes that there is an understanding that in 
 consideration of such payment the time for payment of the 
 second mortgage is to be extended, though no such agreement 
 was made by the second mortgagee, there is quasi estoppel 
 against the latter's foreclosing before the time to which the 
 mortgagor believed payment was extended. (38) 
 
 A promise to extend the time for the payment of a 
 mortgage in consideration of a note given for a usurious 
 premium is void; and an assignee of the mortgagee without 
 notice of such agreement, who took the mortgage as then due 
 and payable, is entitled to foreclose without awaiting the 
 
 (33) Massaker v. Mackerley, 9 N. J. Eq., 440. 
 
 (34) Hauser v. Capital City Brewing Co., 57 Atl., 722. 
 
 (35) Bradley v. Glenmary Co., 64 N. J. Eq., 77 ; and see Maryott 
 V. Renton, 21 N. J. Eq., 381. 
 
 (36) Fausel v. Schabel, 22 N. J. Eq., 126. 
 
 , (37) Lee V. West Jersey Land &c. Co., 29 N. J. Eq., 377. 
 (38) Bradley v. Glenmary Co., 64 N. J. Eq., 77. 
 
Defenses. 549 
 
 expiration of the extended time, and the premium so paid 
 should be credited on the mortgage as of the time when the 
 payment was made. (39) The defense that a mortgage paya- 
 ble in one year from date was, by an agreement made before 
 execution of the mortgage, to be payable in three years, 
 which time has not elapsed, is not sustained by the oath of 
 defendant's agent, contradicted by that of complainant's agent 
 and by the terms of the mortgage. (40) 
 
 Waiver of Default.' Where the obligee has ratified several 
 parol extensions of the time for paying the interest, a subse- 
 quent parol extension will be deemed a waiver of the for- 
 feiture. (41) So acceptance of interest upon a mortgage, 
 without claim of forfeiture, after the expiration of the time 
 when, by its terms, the principal became due, accompanied by 
 an acknowledgment of the receipt of such interest as of the 
 very day it fell due, without any claim of forfeiture, consti- 
 tutes a waiver of the forfeiture. (42) But the fact that the 
 mortgagee did not exercise his option the first time there was 
 a failure to pay an installment of interest within the time limi- 
 ted does not deprive him of the right to elect that the princi- 
 pal should become immediately due and payable on account 
 of a subsequent default in the payment of interest. (43) 
 
 DEFENSES TO A FORECLOSURE BILL. 
 
 In General. As a general rule, the same defenses may be 
 made in a suit to foreclose a mortgage that might be made in 
 an action on the debt to secure which the mortgage is given. 
 Thus the mortgagor may plead that the action has been prema- 
 turely brought.(i) He cannot, however, plead his own want 
 of title to the mortgaged premises and set up title in a third 
 
 (39) Trusdel v. Jones, 23 N. J. Eq., 121 ; aMrmed, ib., 555 ; Laing 
 V. Martin, 26 N. J. Eq., 93; Terhune v. Taylor, 27 N. J. Eq., 80. 
 
 (40) Manning v. Young, 28 N. J. Eq., 568. 
 
 (41) Bell V. Romaine, 30 N. J. Eq., 24. 
 
 (42) Sire V. Wightman, 25 N. J. Eq., 102. 
 
 (43) Industrial Land &c., Co. v. Post, 55 N. J. Eq., 559; O'Conner 
 V. Meskill, 39 Atl., 1061 ; and see "Extension of Time for Payment" 
 page 547, supra. 
 
 (i) See "Maturity of Debt" page — , supra. "Anticipation of Ma- 
 turity," page 544, supra. 
 
550 Foreclosure of Mortgages. 
 
 person. (2) Waste of the mortgaged premises by the mort- 
 gagee, when in possession, not as mortgagee, but in some 
 other right, cannot be set up as a defense to the foreclos- 
 ure of a mortgage. (3) Nor is it a defense to a suit to fore- 
 close that the mortgagee was induced by malicious feelings 
 toward the mortgagor in bringing the suit; if the law con- 
 cerned itself with the motives of parties, new compHcations 
 would be introduced into suits, which might seriously obscure 
 their real merits. If the debt secured by a mortgage be justly 
 due, it is no defense to a f'oreclosure that the mortgagee was 
 animated by hostility or other bad motives. (4) 
 
 It is no defense to a suit by executors to foreclose a mort- 
 gage held by their testator^ that the testator made a will, 
 other than that under which complainants are acting, which 
 has not been offered or admitted to probate. (5) Nor can a 
 mortgagor in a suit to foreclose a lost mortgage, resist pay- 
 ment, either of principal or of interest, on the ground of a 
 refusal of the mortgagee to indemnify him. (6) And where 
 three tenants in common of lands gave a mortgage thereon 
 to secure money borrowed by one of them from the mortga- 
 gee, who afterwards assigned it to the borrower's daughter, 
 it was held that it was no defense to a foreclosure of the 
 mortgage that the assignee knew at the time of the assign- 
 ment that her father was the real debtor and his co-mort- 
 gagors only sureties; and that the only relief to which the 
 latter were entitled was to have the real debtor's interest in 
 the premises sold first before resorting to that of the sure- 
 ties. (7)' 
 
 A clause in a will stating that "my executors may in their 
 discretion cancel the mortgages held by me" upon certain 
 lands, does not amount to a discharge of such mortgage, but 
 leaves such discharge entirely discretionary with the execu- 
 tors. (8) So where to a bill for foreclosure defendant ans- 
 
 (2) Bird V. Davis, 14 N. J. Eq., 467; Wyckoff v. Gardner, 20 N. J. 
 L., 556 ; Mutual Building & Loan Ass'n. v. Batterson, 65 N. J. Eq., 610. 
 
 (3) McMichael v. Webster, 57 N. J. Eq., 295. 
 
 (4) Davis V. Flagg, 35 N. J. Eq., 491 ; Roberts v. Tompkins, 
 75 N. J. Eq., 576; Crocheron v. Savage, 75 N. j. Eq., 589. 
 
 (5) Moss V. Lane, 50 N. J. Eq., 295. 
 
 (6) Sharp V. Cutler, 25 N. J. Eq., 425. 
 
 (7) Lorey v. Overton, 42 N. J. Eq., 330. 
 
 (8) Moss v. Lane, 50 N. J. Eq., 295. 
 
Defenses. 551 
 
 wered that he had agreed to satisfy the mortgage by giv- 
 ing to mortgagee a deed for the land, and that such deed 
 had been given, and that the mortgage had entered into 
 possession under it, and it appeared that the mortgagor had 
 given a prior deed to a third party, it was held that the mort- 
 gagor showed no sufficient defense to the suit. (9) The giv- 
 ing of a bond as collateral security to a subsisting bond and 
 mortgage does not per se, and in the absence of any ancillary 
 agreement, operate as a suspension of the right to prosecute 
 such bond and mortgage. (10) 
 
 Usury. In all suits at law, or in equity to enforce any 
 mortgage on which a higher rate of interest shall be reserved 
 or taken than allowed by the law of the place where the 
 mortgage was made or is to be performed, the amount or 
 value actually lent, without interest or costs of suit, may be 
 recovered, and no more ; and if any premium or illegal inter- 
 est shall have been paid to the lender, the sum or sums so 
 paid shall be deducted from the amount that may be due 
 as aforesaid, and recovery had for the balance only.(ii) 
 Where a bill was filed to foreclose a mortgage with the usual 
 clause giving the right to the mortgagee to declare the princi- 
 pal due on failure to pay the interest within thirty days after 
 it became due, the defense of usury was set up which was 
 held to be well founded; but the bill having been filed on 
 default of the payment of the first six months' interest and 
 the mortgage itself not being due it was held that the bill was 
 prematurely filed, for the reason that the statute provides 
 for the forfeiture of interest upon a usurious contract and 
 forbids the accrual of interest and makes so much of the con- 
 tract as provides for it void, and that the principal of the mort- 
 gage could not become due until the time of payment fixed 
 in the mortgage itself, (iia) Upon the foreclosure of a 
 usurious mortgage, the defendant is entitled to a credit on the 
 principal of the interest payment made in excess of the legal 
 rate. (12) But usurious brokerage by a third person, whether 
 
 (9) Chandler v. Herrick, 11 N. J. Eq., 497. 
 
 (10) Firemans' Ins. Co. v. Wilkinson, 35 N. J. Eq., 160. 
 
 (11) 4 Comp. Stat., p. 5705, Sec. 2. 
 
 (iia) Leipziger v. Van Saun, 64 N. J. Eq., 37. 
 
 (12) Kohn V. Kelly, 76 N. J. Eq., 132 affirmed, 77 N. J. Eq., 273. 
 
552 F^ORECLOSURE OF MORTGAGES. 
 
 an agent of the mortgagee or not, if taken without the latter's 
 knowledge or consent, will not taint the mortgage. (13) 
 
 Upon a bill filed by a second mortgage for foreclosure and 
 seeking to avoid the first mortgage as usurious, no decree 
 will be made declaring the usurious mortgage a valid encum- 
 brance for the amount actually advanced, unless by the con- 
 sent, express or implied, of the owners of the equity of redemp- 
 tion. (14) A second mortgagee who has been made a party to 
 a suit to foreclose the firfet mortgage may, however, show 
 that the first mortgage is usurious or has been paid ; and a 
 statement in the second mortgage that the mortgaged premi- 
 ses were, when given, subject to a prior mortgage, will not 
 operate to prevent him from setting up such defense. (15) 
 
 In a suit to foreclose a mortgage, where the owner of the 
 equity of redemption and a subsequent mortgagee are both 
 defendants, and both answer (the subsequent mortgagee set- 
 ting up his mortgage and asking that the amount due on it 
 should be paid), and the owner admits the existence of the 
 mortgage, but sets up that it is void for usury, the second 
 mortgagee will be considered, as between himself and the 
 owner, the actor ; and the owner will be permitted to set up 
 and prove the usury without offering to pay the money 
 advanced. (16) 
 
 An interlocutory decree, made at the hearing, where the 
 answer of one of the defendants charged that the mortgage 
 of the other defendant was void for usury, does not adjudi- 
 cate upon the validity of such mortgage by not directing an 
 account to be taken of the amount due upon it; the question 
 between the two defendants is still open, and may be brought 
 up by a cross bill. (17) 
 
 In a suit for the foreclosure of a mortgage in which usury 
 is set up as a defense, where it appears that the parties to the 
 mortgage both reside in another state, and that the negotia- 
 tions were conducted and the contract made there, the valid- 
 
 (13) Manning v. Young, 28 N. J. Eq., 568; Gray v. Van Blarcom, 29 
 N. J. Eq., 454; Lane v. Washington Life Insurance Co., 46 N. J. Eq., 
 316. 
 
 (14) Hudnit V. Nash, 16 N. J. Eq., 550. 
 
 (is) Trusdell v. Dowden, 47 N.' J. Eq., 396; Short v. Post, 58 
 N. J. Eq., 130-132. ' 
 
 (16) Vandeveer v. Holcomb, 17 N. J. Eq., 547. 
 
 (17) Vandeveer v. Holcomb, 21 N. J. Eq., 105. 
 
Defenses. 553 
 
 ity of the mortgage must be decided according to the laws 
 of that state. The fact that the land which was the subject 
 of the contract is in this state wilLnot afifect the question. (i8) 
 
 It has been repeatedly held by the courts of this state that 
 the purchaser of a mere equity of redemption in premises cov- 
 ered by a usurious mortgage, who buys subject to the lien of 
 such mortgage, cannot set up usury as a defense to the encum- 
 brance ; the repudiation of the mortgage by such purchaser 
 would inure to his benefit against the terms of his purchase, 
 and would not inure to the benefit of the borrower. (19) This 
 inability is not based upon the idea that the taint of usury 
 has been purged by a conveyance in which the mortgagor has 
 recognized the usurious mortgage as valid ; the defense of 
 usury may still be available to the mortgagor as between the 
 original parties. The taint of usury can only be removed by 
 the borrower receiving the full amount called for by the .secur- 
 ity. (20) It necessarily follows that the original mortgagor 
 notwithstanding his conveyance subject to the mortgage, is 
 still entitled to be protected against liability upon his bond 
 in the event of a deficiency at sale; and if such mortgagor is 
 made a party to the foreclosure suit he may assert the defense 
 of usury as against a liability for a deficiency; if, however, 
 he neglects to make such defense the decree will be operative 
 as a bar to such defense on the bond. (20a) 
 
 (18) Dolman v. Cook, 14 N. J. Eq., 56; Campion v. Kille, 14 N. J. 
 Eq., 229; affirmed, 15 N. J. Eq., 476; Andrews v. Torrey, 14 N. J. Eq., 
 3SS; Atwater v. Walker, 16 N. J. Eq., 42; Flagg v. Baldwin, 38 N. J. 
 Eq., 219. 
 
 (19) Dolman v. Cook, 14 N. J. Eq., 56; Conover v. Hobart, 24 N. J. 
 Eq., 120; Lee v. Stiger, 30 N. JT. Eq., 610; Pinnell v. Boyd, 33 N. J. 
 Eq., 190; reversed ib. 600; Trusdell v. Dowden, 47 N. J. Eq., 396; 
 Scull V. Idler, 81 Atl., 746. A bill to foreclose which alleges that the 
 mortgagor after the execution of the mortgage conveyed to a third 
 person and that whatever interests the third person acquired were sub- 
 ject to the interests of complainant who is without knowledge whether 
 the conveyance was an absolute one or whether an interest was re- 
 served in the mortgagor, does not directly aver that the purchaser 
 purchased the equity of redemption subject to the mortgage; and the 
 defense that, the mortgage is usurious is available ; Scull v. Idler, 81 
 Atl., 746. 
 
 (20) Hackensack Water" Co. v. DeKay, 36 N. J. Eq., 548; Scull v. 
 Idler, 81 Atl., 746 ; Taylor v. Morris, 22 N. J. Eq., 606. 
 
 (20a) Andrews v. Stelle, 22 N. J. Eq., 478; Scull v. Idler, 81 
 Atl., 746. 
 
554 Foreclosure of Mortgages. 
 
 The principle that the purchaser of an equity of redemption 
 cannot defend against the mortgagee on the ground of usury 
 does not apply to sales by officers under judicial process. A 
 purchaser at a sheriff's sale, either under an execution, at 
 law against the mortgagor or at the foreclosure sale of a 
 second mortgage, may defend against a prior mortgage on the 
 premises on the ground of usury, although in fact by his pur- 
 chase he acquired the property subject to whatever prior 
 encumbrances there might be upon it. (21) But the principle 
 under discussion was applied where the purchase was made 
 at a sale under a decree of foreclosure of a second mort- 
 gage, the purchaser in that case having made his purchase 
 with reference to the existence of the prior mortgage, which 
 he assumed to be a valid and prior encumbrance according 
 to its terms, but which was in fact usurious. (22) 
 
 Invalidity of Mortgage. The validity of the mortgage 
 may be attacked for fraud, duress, or any other matters which 
 go to show that it is invalid. Thus, a mortgagor may show 
 that he was induced to execute the mortgage under a promise 
 that it should not be recorded nor have the effect of a mort- 
 gage, and that he would never be required to pay it; but 
 to establish such defense he must produce sufficient proof to 
 put the mind of the court at rest as to his right to have the 
 mortgage nullified. (23) 
 
 And where the owner of land upon which he had recently 
 executed a mortgage obtained from him by a fraud which he 
 had not yet discovered, conveyed a portion of it without con- 
 sideration to a corporation of which he was the principal 
 stockholder, by a deed which stated merely that he was con- 
 veying subject to the mortgage but did not assume it, it was 
 held in a suit to foreclose the mortgage that the corporation 
 was not estopped from setting up the same defense which the 
 mortgagor had. (24) But a mortgagor cannot defend against 
 his own mortgage on the ground that it was obtained under 
 
 (21) Hackensack Water Co. v. DeKay, 36 N. J. Eq., 548. 
 
 (22) Warwick v. Dawes, 26 N. J. Eq., 548; Lee v. Stiger, 30 N. J. 
 Eq., 610. 
 
 (23) Marsh v. Mitchell, 26 N. J. Eq., 497; aftinned, 27 N. J. Eq., 631. 
 
 (24) Magie v. Reynolds, 51 N. J. Eq., 113. 
 
Defenses. 555 
 
 fraudulent promises of his agent, unless he shows collusion 
 between the agent and the mortgagee. (25) 
 
 Want or Failure of Consideration. Want or failure of 
 consideration may be set up as a defense to a suit for the 
 foreclosure of a mortgage. (26) So a bill by executors to 
 foreclose a mortgage given to the testator as security for money 
 that might be advanced, will be dismissed with costs where 
 no money had been advanced under the arrangement. (27) 
 And a mortgage given as a part of a business transaction can 
 be foreclosed only when it secures a debt. (28) But where a 
 debt was past due, and the creditor demanded payment or 
 security, whereupon the debtor tendered and the creditor 
 accepted a mortgage executed by a corporation on its prop- 
 erty, but did not release the debtor or expressly extend the 
 time of payment, the mortgage is supported by considera- 
 tion. (29) 
 
 In Suit by Assignee. All mortgages on land in this state, 
 and all covenants and stipulations therein contained, shall be 
 assignable at law by writing, whether sealed or not, and such 
 assignments shall pass and convey the estate of such assignor 
 in the mortgaged premises, and the assignee may sue thereon 
 in his own name; but in such suit there shall be allowed all 
 just set-offs and other defenses against the assignor that 
 would have been allowed in any action brought by him and 
 existing before notice of such assignment; all assignments 
 made under this section by a married woman in her own 
 right and without hfer husband shall be valid. (30) 
 
 It is a well established rule that the assignee of a mortgage, 
 although a bona Me holder, takes it subject to all equities 
 existing between the mortgagor and mortgagee, and that the 
 mortgagor can only be deprived of this equity by such con- 
 duct on his part as estops him from setting it up against the 
 
 (25) Marsh v. Mitchell, 26 N. J. Eq., 497; aKrmed, 27 N. J. Eq., 
 631. 
 
 (26) See "Foreclostire of Purchase Money Mortgage" page 559, 
 infra. 
 
 (27) McDowell V. Fisher, 25 N. J Eq., 93. 
 
 (28) Perkins v. Trinity Realty Co., 69 N. J. Eq., 723; affirmed, 71 
 N. J. Eq., 304. 
 
 (29) Perkins v. Trinity Realty Co., 6g N. J. Eq., 723 ; affirmed, 
 71 N. J. Eq., 304; and see "Foreclosure of Purchase Money Mort- 
 gage," page SS9, infra. 
 
 (30) 3 Comp. Stat. p. 3418, sec, 31. 
 
556 Foreclosure of Mortgages. 
 
 assignee. (31) So an assignee of a mortgage, without notice 
 of usury, takes it subject to that defense. (32) So in a suit 
 to foreclose a mortgage, it is no answer to a defense that the 
 mortgage was given for a specified purpose and has been mis- 
 appropriated, that the holder of the mortgage is a bona fide 
 assignee thereof, without notice of the misappropriation. (33) 
 So where a mortgage was satisfied in the hands of the mortga- 
 gee, one who subsequently took the mortgage from him, with 
 knowledge that it had been satisfied, acquired no rights under 
 it. (34) 
 
 In a suit by the assignee of a mortgage, fraudulent in its 
 inception, to foreclose it, the burden is on the defendant to 
 show that the complainant is not a bona Ude purchaser. (35) 
 The assignment of a mortgage not under seal will authorize 
 the assignee to come into equity to enforce the mortgage for 
 his benefit. (36) 
 
 A mortgagor is estopped, in a foreclosure suit by the mort- 
 gagee's assignee, to claim a rescission on the ground of .the 
 mortgagee's fraud, where at the time of the assignment he 
 declared in writing that he had no claim, set-oflf, &c. against 
 the mortgagee. (37) And oral as well as written statements 
 by a mortgagor that he has no defense or set-oflf against the 
 mortgagee will estop him to assert one against the latter's 
 assignee. (38) But a mere failure of the obligor and mortga- 
 gor to take proceedings to procure the discharge of record 
 and delivery up of a mortgage to which he has a valid defense, 
 does not estop him from setting up such defense against an 
 assignee for value without notice. (39) 
 
 (31) Atwater v. Underhill, 22 N. J. Eq., S99; McFarland v. Gil- 
 christ, 25 N. J. Eq., 487 ; Black v. Thurston, 71 N. J. Eq., 643, and cases 
 cited at page 655; Magie v. Reynolds, 51 N. J. Eq., 113; Tallman v. 
 Wallack, 54 N. J. Eq., 655; Robeson v. Robeson, 50 N. J. Eq., 465; 
 Cartun v. Myers, 82 Atl., 14. 
 
 (32) Bennett v. Hadsell, 23 N. J. Eq., 174. 
 
 (33) Andrews v, Torrey, 14 N. J. Eq., 355. 
 
 (34) Black V. Thurston, 71 N. J. Eq., 643. 
 
 (35) Danbury v. Robinson, 14 N. J. Eq., 213. 
 
 (36) Kinna v. Smith, 3 N. J. Eq., 14; Kamena v. Huelbig, 23 N. J. 
 Eq., 78. 
 
 (37) Nixon V. Haslett, 74 N. J. Eq., 789; aihrmed, 78 Atl.; 1134. 
 
 (38) Nixon V. Haslett, 74 N. J. Eq., 789; affirmed, 78 Atl., 1134. 
 
 (39) Magie v. Reynolds, 51 N. J. Eq., 113. 
 
Defenses. 557 
 
 In order to enable an assignee to take advantage of such 
 estoppel, he must be a bona iide purchaser without notice, that 
 is, he must have advanced his money or other thing of value 
 upon the strength of the conduct out of which the estoppel 
 arises. It is also well settled that he is only protected by the 
 estoppel to the extent to which he has actually parted with 
 his money, or other valuable thing. (40) So if the assignee 
 of a mortgage, fraudulent in its inception and void as against 
 creditors, purchased the mortgage with knowledge of the 
 fraud, he is not a bona fide purchaser, and the fact that he 
 paid full consideration for the assignment will not aid him. 
 (41) The assignee of a mortgage takes it free and dis- 
 charged from secret equities created by the mortgagee in 
 favor of third persons. (42) 
 
 Set-Off. The sixty-first section of the Chancery Act pro- 
 vides, that in all suits where the amount due on any mort- 
 gage is in issue, all just set offs shall be allowed in ascertain- 
 ing the amount due, whether the holder of such mortgage 
 be a party complainant or defendant, in the same manner and 
 to the same extent as the like set ofifs are allowed in actions, 
 at law. Prior to the enactment of this section' in 1902, the 
 rule was settled in this state that on the foreclosure of a 
 mortgage the owner of the equity could not set off against, 
 his bond and mortgage in the hands of the obligee and mort- 
 gagee, a debt due to him from the latter. (43) 
 
 Limitations. A mortgagee has a double security for the 
 payment of his debt, viz. : the bond, which is a contract by the 
 obligor to pay, and the mortgage, which is a conveyance of an 
 estate in the mortgaged premises. Notwithstanding the mort- 
 gagee may have lost his action at law on the bond by reason 
 of the statute of limitations, his remedy under the mortgage 
 
 (40) Jacobsen v. Dodd, 32 N. J. Eq., 403 ; Mellick v. Mellick, 47 
 N. J. Eq., 86; aMrmed, 48 N .J. Eq., 613; Robeson v. Robeson, 50 N. J. 
 Eq., 46s; Bogert v. Stevens, 69 N. J. Eq., 800; Dixon v. Bentley, 59 
 Atl., 1036, and cases cited at page 1041. 
 
 (41) Danbury v.' Robinson, 14 N. J. Eq., 213., 
 
 (42) Shannon v. Marselis, i N. J. Eq., 413; Losey v. Simpson, 11 
 N. J. Eq., 246; Woodruff v. Depue, 14 N. J. Eq., 168; Coursen v. 
 Canfield, 21 N. J. Eq., 92; Bush v. Cushman, 27 N. J. Eq., 131 ; Freden- 
 burgh V. Burnet, 31 N. J. Eq., 229; aMrmed, 34 N. JEq., 252; Wood- 
 ruff V. Morristown Inst., 34 N. J. Eq., 174; Tate v. Security Trust Co., 
 63 N. J. Eq., SS^. 
 
 (43) See Chancery Act, Sec. 61 and notes page 56, supra. 
 
558 Foreclosure of Mortgages. 
 
 may still remain. (44) So long as the right to enforce the 
 debt remains, the right of the creditor to resort to the land 
 for payment of the debt also continues, even though by the 
 statute the legal right of entry is barred. (45) So the right to 
 foreclose a mortgage continues for twenty years from the 
 last payment of interest. (46) 
 
 When lands have been conveyed, subject to a debt secured 
 by bond and mortgage, to successive grantees, each of whom 
 by covenant in his deed assumes to pay the mortgage debt 
 as part of the consideration of his purchase, the payments 
 of interest made on that debt by the successive grantees are 
 referable to the bond held by the mortgagee, and operate to 
 satisfy the interest due on the bond and thereby to stay the 
 running of the statute of- limitations against an action on the 
 bond. (47) But when the legal right of action upon a bond 
 is barred by the statute of limitations, and the legal right of 
 entry upon lands mortgaged to secure the bond is likewise 
 barred, the holder of the bond and mortgage cannot maintain 
 a bill in chancery to collect the debt by sale of the mort- 
 gaged premises, unless he can show some pertinent equitable 
 right beyond the ownership of the bond and mortgage. ( 48 ) . 
 
 Where the purchasers of portions of mortgaged property 
 remain for more than twenty years in full, exclusive, open 
 and actual possession thereof, without admitting the title of 
 the mortgagee, and no claim for the principal or interest is 
 made against them, the lien of the mortgage is lost as to such 
 portions, though th^ debt was kept alive by payments made 
 by the owner of the other portions. (49) On general demurrer 
 to a bill to foreclose a mortgage, the presumption of payment 
 arising from lapse of twenty years will be sustained in the 
 absence of allegations explaining or excusing delay. (50) 
 
 (44) Colton V. Depew, 60 N. J. Eq., 454. 
 
 (45) Blue V. Everett, 56 N. J. Eq., 455. 
 
 (46) Colton V. Depew, 59 N. J. Eq., 126 ; affirmed, 60 N. J. Eq., 454. 
 
 (47) Biddle v. Pugh, 59 N. J. Eq., 480. 
 
 (48) Blue V. Evere'tt, 56 N. J. Eq„ 455; Colton v. Depew, S9 N. J. 
 Eq., 126; afHrmed, 60 N. J. Eq., 454; Stimis v. Stimis, 60 N. J. Eq., 
 313 ; Chancellor v. Seiberlich, 75 N. J. Eq., 501 ; Swinley v. Force, 78 
 N. J. Eq., S2. 
 
 (49) Ely V. Wilson, 61 N. J. Eq., 94; Shreve v. Harvey, 74 N. J. 
 Eq., 336. 
 
 (so) Wallace v. Coward, 81 Atl., 739. 
 
Purchase Money Mortgages. 559 
 
 The running of the statute of limitations against the fore- 
 closure of a mortgage will be arrested by a written agree- 
 ment between the parties to keep the mortgage alive, or by 
 an acknowledgment of the mortgage as an obligation still 
 subsisting and unsatisfied. But an acknowledgment, to oper- 
 ate as an avoidance of the statute of limitations, must be 
 made to the creditor, or must have been intended to be com- 
 municated to him. (51) 
 
 An acknowledgment of liability, made to a third person 
 with the understanding that it should be conveyed to the 
 creditor, will be as binding upon the debtor as if it had been 
 made to the creditor directly. (52) And a request by the 
 mortgagor to a third person to write to the mortgagee con- 
 cerning a mortgage which the latter holds against the firm 
 of the mortgagor, saying that he had made arrangements to 
 pay it off, and telling him to produce it in person, or to send 
 it to some friend, in which case he would remit by check, is 
 such an acknowledgment as to prevent the operation of the 
 statute of limitations. (53) But an acknowledgment of the 
 existence of a debt made after the lapse of twenty years by 
 a debtor to a stranger who contemplated the purchase of the 
 mortgage securing the debt, is insufficient, standing, by itself, 
 to rebut the presumption of payment, especially whene the 
 stranger endeavoring to obtain an acknowledgment refrained 
 from disclosing his interest. (54) 
 
 FORECLOSURE OF PURCHASE MONEY 
 MORTGAGE. 
 
 In General. In a suit to foreclose a purchase money mort- 
 gage, the defendant may plead fraud, want of considteration, 
 or fraudulent representations by which he has been induced 
 to make the purchase. So in a suit to foreclose a purchase 
 money mortgage, where the vendee has been defrauded, the 
 court will not, in a proper case, permit the mortgagee to com- 
 
 (Si) Swinely v. Force, 78 N. J. Eq., 52. 
 
 (52) Miller V. Teeter, S3 N. J. Eq., 262. 
 
 (53) Miller v. Teeter, S3 N. J. Eq., 262. 
 
 (54) Swinely v. Force, 78 N. J. Eq., 52. 
 
560 Foreclosure of Mortgages. 
 
 pel the payment of the money without deduction, if such 
 fraud and resulting damages are made to appear in a proper 
 manner. ( i ) 
 
 And the mere fact that the damages sought to be set up as 
 an abatement of the mortgage debt, in a suit to foreclose a 
 mortgage, are unliquidated, does not prevent equity from 
 granting the abatement. (2) 
 
 Defect in or Failure of Title. It is no defense to the fore- 
 closure of a purchase money mortgage that the conveyance 
 was by deed containing covenants that the property was clear 
 ■ of encumbrances, and that there is an outstanding title against 
 the land ; to constitute a defense it must appear that there has " 
 been an eviction, or a suit commenced on such adverse title. 
 (3) So an allegation that there is an outstanding paramount 
 title will not enable the owner of the equity of redemption to 
 arrest the enforcement of a purchase money mortgage; but 
 if there has been an eviction by title paramount, or if an 
 action is pending by an, adverse claimant to try the title to the 
 mortgaged premises, the court will interfere. (4) 
 
 So where a riparian owner conveyed by deed, with ordi- 
 nary covenants of title to his grantee, lands which included 
 lands between high and low water mark, -and took back a 
 mortgage in part payment, and also procured for the benefit 
 of the grantee, pursuant to an agreement made with him, a 
 license under the Wharf Act, under which the grantee after- 
 wards erected a wharf, it was held that the fact that such 
 grantee was subsequently obliged to obtain from the state a 
 riparian lease of the lands between high and low water (which 
 he did without notice to his grantor), was not tantamount 
 to a partial eviction from the mortgaged premises, and was 
 
 (1) O'Brien v. Hulfish, 22 N. J. Eq., 471; Skinner v. Christie, 52 
 N. J. Eq., 720. 
 
 (2) Peterson v. Reid, 76 N. J. Eq., 377. 
 
 (3) Shannon v. Marselis, i N. J. Eq., 413 ; Glenn v. Whipple, 12 
 N. ,J. Eq., so; Long v. Long, 14 N. J. Eq., 462; Miller v. Gregory, 16 
 N. J. Eq., 274; Van Waggoner v. McEwen, 2 N. J. Eq., 412; Hile 
 V. Davison, 20 N. J. Eq., 228; O'Brien v. Hulfish, 22 N. J. Eq., 471; 
 Price V. Lawton, 27 N. J. Eq., 325 ; American Dock &c., Co. v. Trus- 
 tees, 35 N. J. Eq., 181, 257; Frenche v. McConnell, 38 Atl., 687; And see 
 "Outstanding Encumbrances" page 561, infra. 
 
 (4) Price V. Lawton, 27 N. J. Eq., 325; aMrmed, 28 N. J. Eq., 274; 
 Kuhnen v. Parker, 56 N. J. Eq., 287; Redrow v. Sparks, 76 N. J. Eq., 133. 
 
Purchase Money Mortgages. 561 
 
 not available to the grantee as a defense to a suit to fore- 
 close the mortgage. ( S ) 
 
 Where land is conveyed with warranty, and the vendee, 
 in a suit by the vendor against him for foreclosure of the pur- 
 chase money mortgage, sets up failure of title to part of the 
 premises from which he has been evicted, the foreclosure 
 suit will be stayed until the damages from such failure of 
 title are determined, either at law, or by directing an issue, 
 or, preferably, by reference to a Master. (6) A defect of 
 title which has been removed before final hearing, and which 
 has caused no damage to the vendee, affords no ground for 
 relief of the vendee mortgagor in a suit to foreclose a pur- 
 chase money mortgage; but in such case partial relief may 
 be given against costs. (7) 
 
 Outstanding Encumbrances. Where there is a mere al- 
 legation of an outstanding encumbrance, the court will not 
 interfere, but will leave the party to his remedy on the cove- 
 nant, unless there has been an eviction. (8) So it is no defense 
 to a foreclosure that the mortgage was given to secure the 
 purchase money, and that the conveyance was by deed con- 
 taining covenants that the property was clear of encum- 
 brances, and that the grantor's wife had survived her hus- 
 band, and claimed dower in the mortgaged premises. (9) 
 And a grantor is not estopped by his covenant of warranty 
 from enforcing an existing mortgage on the property, which 
 is afterwards assigned to him, it having been expressly under- 
 stood when the deed was made that the property was sold 
 subject to such mortgage, and the consideration having been 
 agreed on with that understanding. ( 10) 
 
 Where all the parties are before the court, and the court 
 has jurisdiction so as to do justice and settle litigation between 
 them, relief will be afiforded. (11) So where premises are con^ 
 veyed with a covenant that they are free from "all assess- 
 es) Cooper V. Bloodgood, 32 N. J. Eq., 209. 
 
 (6) Coster v. Munroe Mfg. Co., 2. N. J. Eq., 467. 
 
 (7) Redrew v. Sparks, 76 N. J. Eq., 133. 
 
 (8) Shannon v. Marselis, i N. J. Eq., 413-426; Glenn v. Whipple, 
 12 N. J. Eq., so; And see "Defect or failure of title" page s6o, supra. 
 
 (9) Glenn v. Whipple, 12 N. J. Eq., so. 
 
 (10) Hamill v. Inventors Mfg. Co., SS N. J. Eq., 649. 
 
 (11) Glenn v. Whipple, 12 N. J. Eq., so. 
 
502 Foreclosure of Mortgages. 
 
 ments and encumbrances of what nature or kind soever," 
 the grantor is bound to pay off an encumbrance existing at the 
 date of the deed ; and in a suit to foreclose the purchase money 
 mortgage, the amount of such encumbrance will be deducted 
 from the amount due on the mortgage, and the decree will 
 be only for the balance. (12) And where a deed contains gen- 
 eral covenants of warranty, and there is a mortgage on the 
 premises, a provision in the' purchase money mortgage for 
 release from such prior mortgage on paying certain sums, 
 does not form an exception to the general rule that the 
 grantor must procure a release from such prior mortgage 
 before he is entitled to a decree for foreclosure on his purchase 
 money mortgage. (13) 
 
 An easement is an encumbrance withn the meaning of the 
 covenant against encumbrances; and where the answer sets 
 up that the easement existed at the time of the conveyance 
 by complainant to defendant, the purchase money mortgagor 
 may reduce the mortgagee's demand to the extent of the 
 damages sustained by reason of the existence of such ease- 
 ment. (14) And a mortgagor grantee is entitled by virtue 
 of the covenants against encumbrances contained in the deed 
 to him to have the amount of tax liens outstanding on the 
 mortgaged premises deducted from the mortgage, and a 
 decree taken only for the balance. (15) Where the amount 
 due on the encumbrances exceeds the amount of the mort- 
 gage debt, so that no deduction can be made from the latter 
 a suit to foreclose will be stayed until the premises have been 
 released from the lien of the encumbrances. (16) 
 
 Where the mortgagor, at the time of proceedings to fore- 
 close the mortgage, has pending an action at law for dama- 
 ges resulting from the breach of a covenant in the deed, the 
 decree in the foreclosure proceedings should be stayed until 
 a judgment can be rendered in the law action, upon proper 
 
 (12) Woodruflf V. Depue, 14 N. J. Eq., 168; White v. Stretch, 22 
 N. J. Eq., 76; Union National Bank v. Pinner, 25 N. J. Eq., 495; 
 Skinner v. Christie, 52 N. J. Eq., 720; Kuhnen y. Parker, 56 N. J. Eq., 
 286; Bergman v. Fortescue, 74 N. J. Eq., 266; Redrow v. Sparks, 76 
 N. J. Eq., 133. 
 
 (13) Stiger V. Bacon, 29 N. J. Eq., 442. 
 
 (14) Kuhnen v. Parker, 56 N. J. Eq., 286. 
 
 (is) Union National Bank v. Pinner, 25 N. J. Eq., 495. 
 (16) Dayton v. Dusenberfy, 25 N. J. Eq., no. 
 
Purchase Money Mortgages. 563 
 
 indemnity of the complainant against any loss arising from 
 the stay. (17) But in a suit to foreclose a purchase money 
 mortgage, brought by the mortgagee against purchasers from 
 the mortgagor, the court will not order a stay until the mort- 
 gagee has procured releases that will perfect the title to the 
 land which he conveyed to the mortgagor, the deed having 
 contained the usual covenants of warranty and seizin. (18) 
 So where in a suit to foreclose a purchase money mortgage, the 
 defense set up was that the mortgagee had failed to keep an 
 independent covenant, made at the time of the delivery of 
 the deed and mortgage, to procure certain releases, and the 
 mortgagor by his mortgage had agreed to pay the money at 
 a certain time absolutely, and not on condition that the releases 
 should have been procured, it was held that the failure to 
 procure such r'eleases was not a defense to a suit to fore- 
 close. (19) 
 
 Defects in Quantity of Land. Where property has been 
 conveyed by deed of warranty, and a mortgage is given by 
 the grantee to the grantor to secure the whole- or a part of 
 the purchase money, on foreclosure, the mortgagor is entitled 
 to a deduction of the mortgage debt to that amount where he 
 has by mistake obtained less land than he bargained for, where 
 the land was sold by certain boundaries or where the sale was 
 by the acre and the statement of the number of acres is of the 
 essence of the contract. (20) So if a vendor fraudulently 
 represents the number of acres, and thereby induces the vendee 
 to pay more than he otherwise would, an abatement will be 
 allowed. (21) So there will also be an abatement where 
 there is a gross mistake, a gross mistake being where the 
 quantity of land conveyed falls so far short of the quantity 
 represented as clearly to warrant the conclusion that the 
 grantee would not have contracted had he known the 
 truth. (22) 
 
 (17) Bergman v. Fortescue, 74 N. J. Eq., 266. 
 
 (18) Kuntzman v. Smith, ^^ N. J .Eq., 30. 
 
 (19) Coursen v. Canfield, 21 N. J. Eq., 92. 
 
 (20) Couse V. Boyles, 4 N. J. Eq., 212 ; Weart v. Rose, 16 N. J. Eq., 
 290; McMichael v. Webster, S7 N. J. Eq., 295; Cartun v. Myers, 82 
 Atl., 14; Redrow v. Sparks, ^(> N. J. Eq., 133. 
 
 (21) Melick V. Dayton, 34 N. J. Eq., 245. 
 
 (22) Melick V. Dayton, 34 N. J. Eq., 245. 
 
564 Foreclosure of Mortgages. 
 
 Mere enumeration of quantity at the end of a particular 
 description of the premises, where there is no fraud or gross 
 mistake, is matter of description only, and is not of the essence 
 of the contract; and in such cases there will not be a deduc- 
 tion from the mortgage. (23) So where land is sold by the 
 acre as containing so many acres, more or less, if the quan- 
 tity, on an actual survey and estimation, falls short or over- 
 runs a little, no compensation should be received by either 
 party. (24) And where a deed contains no statement as to 
 the number of acres conveyed, and the weight of evidence 
 shows that the conveyance was in gross, and not by the acre,. 
 the fact that the property contains in reality a less number 
 of acres than both the grantor and grantee supposed is no 
 defense on foreclosure of a mortgage given by such grantee 
 as part of the consideration, no fraud being shown. (25) 
 
 The grantee of mortgaged premises, who has purchased 
 subject to a purchase money mortgage thereon given by his 
 grantor, the payment of which he has assumed may not set 
 up in defense, to a suit to foreclose such purchase money 
 mortgage, that when complainant sold the property to the 
 original mortgagor, he falsely represented the amount of 
 land conveyed. The amount of the mortgage is in his hands 
 in trust to pay it to the mortgage^ and whether the mortgagor 
 could defend himself against it or not is no concern of his. Nor 
 does it make any difference that the mortgagor in selling to 
 his grantee made the like misrepresentation to him. His 
 claim for relief is against his grantor. (26) The neg- 
 lect of one executing a purchase money mortgage to dis- 
 cover for many years a deficiency in the acreage wilt 
 be held laches which will defeat his bill to obtain a credit 
 on the mortgage therefor when his failure to discover such 
 deficiency will result in a loss to a third person who properly 
 assumed that the mortgage secured a binding obligation for 
 the amount of the debt purporting to be secured thereby as 
 
 (23) Melick V. Dayton, 34 N. J. Eq., 245. 
 
 (24) Weart v. Rose, 16 N. J. Eq., 290; Melick v. Dayton, 34 N. J. 
 Eq. 245; Frenche v. Chancellor, 51 N. J. Eq., 624. 
 
 (25) Weart v. Rose, 16 N. J. Eq., 290; Clark v. Davis, 32 N. J. Eq.,. 
 530; affirmed, 33 N. J. Eq., S79- 
 
 (26) Clark V. Davis, 32 N. J. Eq., 530; affirmed, 33 N. J. Eq., 57^ 
 
Parties. 565 
 
 in thfe case of a bona fide assignee of the mortgage who pur- 
 chased it at its face value. (27) 
 
 The question of abatement from the amount of the mort- 
 gage on account of deficiency in contents of the premises 
 may be raised by the mortgagor in foreclosure proceedings 
 by answer without cross bill. (28) 
 
 PARTIES TO FORECLOSURE PROCEEDINGS. 
 
 In General. In proceedings to foreclose a mortgage, the 
 same general rules as to parties obtain that apply to other 
 proceedings in the Court of Chancery. (i) In the strictest 
 sense, the only necessary parties to a bill to foreclose are the 
 mortgagor and mortgagee, and those who have acquired 
 rights or interests under them subsequent to the mortgage. (2) 
 So a plaintiff in attachment, claiming a lien on a mortgage 
 debt by virtue of his attachment, is a necessary party defend- 
 ant to a bill to fotreclose such mortgage. (3) And a person 
 who is an executor, and who, in his individual capacity, holds 
 a mortgage upon the lands of which the testator died seized, 
 may file a bill to foreclose such mortgage. (4) 
 
 Trust Mortgages. On a bill to foreclose a trust mortgage, 
 all the persons interested in the mortgage money should be 
 before the court; all the beneficiaries should be made parties 
 as well as the trustee. (5) So where a deed in the nature of a 
 mortgage is given to a trustee, the cestuis que trustent are 
 necessary parties to a bill to foreclose the deed as a mortgage, 
 at least if they are known, and are not so numerous as to 
 make it impossible or highly inconvenient to include them as 
 parties. (6) While cestuis que trustent are what are termed 
 
 (27) Cartun v. Myers, 82 Atl., 14. 
 
 (28) Melick V. Dayton, 34 N. J. Eq., 245; McMichael v. Webster, 
 57 N. J. Eq., 29s. 
 
 (i) See "Parties" page 91, supra. 
 
 (2) Wilkins v. Kirkbride, 27 N. J. Eq., 93. 
 
 (3) Pine V. Shannon, 30 N. J. Eq., 501; aMrmed, 31 N. J. Eq., 367. 
 
 (4) Trimmer v. Todd, 52 N. J. Eq., 426. 
 
 ■ (s) Woodruflf V. Depue, 14 N. J. Eq., 168; and see "Parties'" page, 
 114, supra. 
 
 (6) Butler v. Farry, 68 N. J. Eq., 760. 
 
566 Foreclosure of Mortgages. 
 
 "necessary" parties in suits ta foreclose a trust deed, teilure 
 to make them parties does not invalidate the foreclosure decree. 
 So it has been held that the holder of corporate bonds was not 
 entitled to have a decree foreclosing a trust deed on corporate 
 property set aside because he was not a party to the proceed- 
 ings, especially where it was not shown that any property 
 subject to the lien was omitted from the foreclosure, or that 
 his interest was not fully protected, the utmost which he 
 could claim being that the foreclosure did not affect his 
 rights. (7) 
 
 In a suit to foreclose a first mortgage, to which the trustees 
 of a junior mortgage are defendants, the cestuis que trust ent 
 of the trust mortgage are not necessary parties, they being 
 sufficiently represented by making the trustees defendants. (8) 
 So a judgment creditor whose claim was secured by a trust 
 mortgage, the trustee under which was made a defendant 
 to the suit, although the judgment creditor was not, is barred 
 of his claim against the property by the foreclosure and 
 sale. (9) 
 
 It is well settled that a single bondholder, or several com- 
 bined, holding bonds secured by a mortgage given to a trustee, 
 may maintain a suit to foreclose such mortgage in his or 
 their own name or names, although the mortgage provided 
 for a suit by the trustee. The right given to the trustee to 
 foreclose is cumulative, and not exclusive of the right of 
 the bondholders. Their rights arise out of the fact that they 
 are the parties beneficially interested in the mortgage security ; 
 such right is fundamental in its character, and can be taken 
 away only by some provision, express or implied, found in 
 the instrument itself. (10) So where the trustee, in a mort- 
 gage by a corporation given to secure bonds, declines to' sue 
 to foreclose except on unjustifiable terms, a single bond- 
 holder, or several combined, are entitled to maintain the suit 
 in his or their own name or names, though in this case also 
 
 (7) Ring V. New Auditorium Pier Co., 77 N. J. Eq., 422. 
 
 (8) N. J. Franklinite Co. v. Ames, 12 N. J. Eq., 507. 
 
 (9) Chilver v. Weston, 27 N. J. Eq., 435. 
 
 (10) McFadden v. IVIays Landing &c., R. R. Co., 49 N. J. Eq., 
 176; Schultze V. VanDoren, 64 N. J. Eq., 465; affirmed, 65 N. J. Eq., 
 764; and see "Parties" page 114, supra. 
 
Parties Complainant. 567 
 
 the mortgage provided that the suit should be brought by the 
 trustee.(ii) 
 
 Where a mortgage is made to trustees, and suit is brought 
 by a bondholder, such suit should ordinarily be brought in 
 behalf of complainant and all other bondholders ; but an 
 averment to this effect is unnecessary when default has been 
 made only on the bonds held by complainant. (12) 
 
 These general rules as to the necessary parties in fore- 
 closure proceedings admit of exceptions arising out of the 
 circumstances of particular cases — thus, when a mortgage is 
 made to trustees in trust for numerous and unknown per- 
 sons, such as holders of bonds issued by a railroad, etc., 
 whose names and consent it would be inconvenient or practi- 
 cally impossible to obtain, 'the trustees may maintain a bill 
 without making the ccstuis que tru,stent parties. (13) And 
 the limits of the exceptions to the rule which requires that the 
 cestuis que trustent shall all be pairties have never been, and 
 probably never can be precisely defined. (14) 
 
 PARTIES COMPLAINANT. 
 
 In General. No principle of equity pleading, is better 
 settled than that there can be no foreclosure unless all ' the 
 persons entitled to the mortgage money are before the court. 
 (15) So a person who is personally entitled to substantially 
 all the benefits of a foreclosure suit, if it be successful, should 
 be made a party complainant. (16) So where mortgages were 
 made to the president of a National Bank to secure a debt 
 due the bank, and the president filed a bill to foreclose, with- 
 out making the bank a party, and a decree of foreclosure 
 
 (11) Schultze V. Van Doren, 64 N. J. Eq., 465; affirmed, 65 N. J. 
 Eq., 764. 
 
 (12) McFadden v. Mays Landing &c., R. R. Co., 49 N. J. Eq., 176. 
 
 (13) Williamson v. N. J. Southern R. R. Co., 25 N. J. Eq., 13; 
 Tyson v. Applegate, 40 N. J. Eq., 305 ; Camden Safe Deposit &c., Co. 
 V. Dialogue, 75 N. J. Eq., 600; and see "Parties" page 114, supra. 
 
 (14) Ring V. New Auditorium Pier Co., 77 N. J. Eq., 422. 
 
 (is) Large v. VanDoren, 14 N. J. Eq., 208; Chapman v. Hunt, 14 
 N. J. Eq., 149 ; Trades Savings Bank v. Freese, 26 N. J. Eq., 453 ; 
 Tyson' v. Applegate, 40 N. J. Eq., 305; Jewell v. West Orange, 36 
 N. J. Eq., 403. 
 
 (16) Snyder v. Harris, 61 N. J. Eq., 480. 
 
568 Foreclosure of Mortgages. 
 
 followed and the premises were sold, the property having 
 previously been sold for taxes and the certificates of sale 
 acquired by the bank, it was held that a bill by the purchaser 
 under foreclosure to enjoin the bank from enforcing the cer- 
 tificate would not lie. (17) And a person entitled to a part 
 only of the mortgage money cannot file a bill to foreclose a 
 mortgage as to his own part of the money ; all the beneficiaries 
 must be made parties. (18) So a person who was a member 
 of a partnership when a mortgage was given to the firm (but 
 in the name of one partner only), and also when advances 
 were afterwards made thereon by the firm, and when the bill 
 was filed, should be a party to the suit for foreclosure of the 
 mortgage. (19) So where a mortgage is given to a firm and 
 thereafter one of the members retires, the new firm although 
 pursuing the same business and under the same name, can- 
 not enforce the obligation unless the right to enforce is acquired 
 by a new contract. (19a) 
 
 One of two or more joint mortgagees cannot maintain a 
 suit for foreclosure without joining the others ; if they refuse 
 to join him as complainants, they should be made defend- 
 ants. (20) Thus where a mortgage is held by two executors, 
 and one of them refuses to join in a suit for its foreclosure, 
 the other executor may file a bill for foreclosure, making the 
 one refusing to join a defendant. (21) And so in a suit to 
 foreclose a mortgage given to A and his wife jointly, brought 
 by the holder of the mortgage under assignment from A's 
 executor, in which the widow did not join, the widow is a 
 necessary party defendant. (22) 
 
 Upon the death of one of two mortgagees the legal owner- 
 ship of a mortgage made to them vests in the survivor exclu- 
 sively, and he alone is entitled to its possession, and to sue 
 for and receive the money due upon it. He is entitled to one- 
 half the money due upon it in his own right, and he takes 
 the other one-half as trustee for the representatives of his 
 
 (17) Bushey v. National State Bank, 66 At!., 592. 
 
 (18) Chapman v. Hunt, 14 N. J. Eq., 149. 
 
 (19) DeGrieff v. Wilson, 30 N. J. Eq., 435. 
 (19a) Forst V. Kirkpatrick, 64 N. J. Eq., 578. 
 
 (20) Currie v. Bittenbinder, 7 Atl., 872. 
 
 (21) Arkenburgh v. Lakeside Residence Ass'n., 56 N. J. Eq., 102; 
 S. C, 57 N. J. Eq., 443- 
 
 (22) Trades Savings Bank v. Freese, 26 N. J. Eq., 453. 
 
Parties Complainant. 569 
 
 deceased co-obligee. (23) So where a mortgage is given or 
 assigned for the payment of a debt due to two or more jointly, 
 on a bil.l to foreclose by the surviving obligee the executor 
 of a deceased obligee need not necessarily be joined as a com- 
 plainant. (24) And this principle applies whether the bene- 
 ficial interest of the joint mortgagees be equal or unequal, 
 and even though the entire beneficial interest was in the 
 deceased mortgagee. (25) But when there are conflicting 
 claims between the parties in interest in the mortgage debt, 
 the surviving obligee may file the bill in his own name, and 
 make the executor of the deceased co-obligee a defendant. (26) 
 
 Suits by Assignees. Where a mortgagee assigns his mort- 
 gage absolutely to a third person, he is not a necessary party 
 to a foreclosure suit. (27) If, however, the assignment is not 
 absolute, then the assignor is a necessary party. (28) So 
 where in a suit to foreclose a mortgage on a railroad, it 
 appeared that the owners of the bonds, who, with the trustees, 
 were complainants, held them as collateral security only for 
 a debt less than the amount of the bonds, it was held that the 
 assignor should be made a party to the suit. (29) 
 
 Though it is a general rule that if an assignment of a mort- 
 gage be not absolute, but merely as collateral security, the 
 assignor is a necessary party to the suit, yet if no necessity 
 appears on the face of the pleadings for making him a party 
 and it does not appear that he is in interest, the objection made 
 at the hearing that he is not a party will not prevail. (30) But 
 a mortgagee who assigns the mortgage and guarantees the debt 
 is a proper party to a suit to foreclose the mortgage. (31) An 
 assignment not under seal of a mortgage is sufficient to trans- 
 
 (23) Lippincott v. Stokes, 6 N. J. Eq., 122; Mut. Life Ins. v. 
 Sturges, 32 N. J. Eq., 678; reversed, 33 N. J. Eq., 228. 
 
 (24) Freeman v. Scofield, 16 N. J. Eq., 28. 
 (2s) Freeman v. Scofield, 16 N. J. Eq., 28. 
 
 (26) Freeman v. Scofield, 16 N. J. Eq., 28. 
 
 (27) Parker v. Stevens, 3 N. J. Eq., 56; Miller v. Henderson, 10 
 N. J. Eq., 320; Hudnit v. Thomson, 26 N. J. Eq., 239. 
 
 (28) Miller v. Stevens, ID N. J. Eq., 320; Stevens v. Reeves. 33 N. 
 J. Eq., 427. 
 
 (29) Ackerson v. Lodi Branch R. R. Co., 28 N. J. Eq., 542. 
 
 (30) Stevens v. Reeves, 33 N. J. Eq., 427. 
 
 ■ (31) Jarraan v. Wiswall, 24 N'. J. Eq., 267 ; Field v. Tliistle, 58 N. J. 
 ' Eq., 339 ; affirmed, 60 N. J. Eq., 444. 
 
570 Foreclosure of Mortgages. 
 
 fer to the assignee all the equitable and beneficial interest in 
 the mortgage, including the right to come into equity for 
 relief. (32) 
 
 Suits by Representatives of Deceased Mortgagee. A 
 mortgage before foreclosure is considered personal property, 
 and goes to the personal representatives of the mortgagee. 
 In a bill for foreclosure, the heir need generally not be made 
 a party. (33) And a substituted administrator with the will 
 annexed may in his own name foreclose a mortgage given 
 by his predecessor, the executor of decedent's estate ; no others 
 need be made parties complainant, and none but those inter- 
 ested in the equity of redemption need be made parties defend- 
 ant, (34) On the death of a mortgagee trustee, the trust 
 devolves on his personal representatives, and they, and not 
 his heirs or devisees, should be made parties to a bill to fore- 
 close a junior mortgage. (35) 
 
 PARTIES DEFENDANT. 
 
 In General. Since the object of a foreclosure is to extin- 
 guish the equity of redemption and obtain a sale of the mort- 
 gaged premises, all persons who own that equity, wholly or in 
 shares, or are interested in it adversely to the mortgage, 
 should be made defendants. (36) 
 
 And where a tenant in common of the equity of redemption 
 has not been made a party to foreclosure proceedings, her 
 subsequent written consent to be made and treated as a party, 
 and to execute a release of her interest to the purchaser under 
 the foreclosure, is not equivalent to being actually a party 
 and as such bound by the decree. (37) As has been seen, an 
 original mortgagee is not a necessary party to a suit to fore- 
 close brought by his assignee, although the assignment from 
 
 (32) Kinna v. Smith, 3 N. J. Eq., 14; Kamena v. Huelbig, 23 
 N. J. Eq., 78. 
 
 (33) Kinna v. Smith, 3 N. J. Eq., 14. 
 
 (34) Parker v. Fay, 61 N. J. Eq., 167. 
 
 (35) Lambertville National Bank v. McCready &c., Co., 15 At!., 
 388. 
 
 (36) Brundred v. Walker, 12 N. J. Eq., 140. 
 
 (37) Walbridge v. English, 28 N. J. Eq., 266. 
 
Parties Defendant. 571 
 
 him to complainant shows that the mortgage was originally 
 assigned as a collateral security for certain purposes, and the 
 balance, if any, was to be paid to the mortgagee, when it 
 does not appear that there was any surplus after the immedi- 
 ate object of the assignment had been accomplished. (38) 
 And the owner of a mortgage by an unrecorded assignment 
 is bound by proceedings in foreclosure of a prior mortgage, 
 to which his assignor was made a party defendant by reason 
 of his apparent ownership of the mortgage, so far as the mort- 
 gaged premises are concerned, although he was not a party 
 to such proceedings. (39) 
 
 Where a mortgagor conveyed the mortgaged premises by 
 deed, which the purchaser did not record, such purchaser is 
 bound by the proceedings in the suit as if he had been made 
 a party thereto. (40) But the mortgagee has no right to make 
 one who claims adversely to the title of the mortgagor and 
 prior to the mortgage a party defendant for the purpose of 
 trying the validity of his adverse claim of title. (41) And 
 neither are obligors, who join with the owner of mortgaged 
 premises in a bond given to secure a mortgage, necessary 
 parties to a bill to foreclose such mortgage. (42) Remain- 
 dermen who have not joined in a mortgage in fee made by the 
 life tenant are neither necessary nor proper parties to a fore- 
 closure suit on the mortgage. (43) 
 
 Infant Defendants. In suits for the satisfaction of a 
 mortgage, when an application shall be made for the appoint- 
 ment of a guardian for an infant defendant, as provided for 
 in the last preceding rule(43a), or when it shall appear by 
 affidavit, to the satisfaction of the Chancellor, that notice 
 cannot be served, as mentioned in that rule, the Chancellor 
 may, on the application of the complainant, appoint the clerk 
 
 (38) Woodruff V. Depue, 14 N. J. Eq., 168; Stevens v. Reeves, 33 
 N. J. Eq.,. 427. 
 
 (39) Cannon v. Wright, 49 N. J. Eq., 17. 
 
 (40) Dinsmore v. Westcott, 25 N. J. Eq., 302 ; Leonard v. N. Y. 
 Bay Co., 28 N. J. Eq., 192; reversed, ib. 467; and see Chancery Act, 
 sec. 58, page 53, su-pra. 
 
 (41) Wilkins v. Kirkbride, 27 N. J. Eq., 93; and see "Adverse 
 Claimants of Title," page 574, supra. 
 
 (42) Raritan Savings Bank v. Lindsley, 58 N( J. Eq., 214. 
 
 (43) Wilkins v. Kirkbride, 27 N. J. Eq., 93. 
 
 (43a) See rules 63 and 64 relating to practice on appointment 
 of guardians ad litem for infant defendants, page 123, supra. 
 
572 Foreclosure of Mortgages. 
 
 of the court guardian ad litem for such infant, whose duty it 
 shall be, if no application shall be made on behalf of the infant 
 for the appointment of a guardian within the time allowed 
 by law for such infant to answer, plead or demur to the bill, 
 to enter an appearance for the infant to the suit ; after which 
 the complainant may, if the suit is against the infant alone, 
 or the bill shall have been ordered to be taken pro confesso 
 against the other defendant or defendants, take an order to 
 refer the cause to a Master to ascertain the truth of the 
 allegations of the complainant's bill, and to take an account 
 of what is due upon the complainant's mortgage (if any- 
 thing), and also upon any other encumbrance, the amount of 
 which it may be necessary to ascertain, and if more encum- 
 brances than one, to report their several priorities ; and the 
 complainant and every other person setting 'up an encum- 
 brance before the Master, affecting the estate or interest of 
 such infant, shall prove his demand before the Master, and 
 the Master may, if he thinks proper so to do, examine the 
 complainant, or other person setting up such demand, on 
 oath or affirmation, to ascertain the truth thereof, and shall 
 report such examination (if any) and all the proofs taken, 
 before him to the court; and shall also inquire and report 
 whether, under the circumstances of the case, a sale of the 
 whole, or a part only, of the mortgaged premises is neces- 
 sary to be madCj and any other special matter which the 
 Master may .deem proper for the benefit of the infant ; and 
 if no exception to said Master's report shall be filed within 
 four days after the filing of said report, the complainant 
 shall, without further notice or setting down the cause for 
 hearing, be entitled to a final decree. (44) 
 
 Subsequent Purchasers of Premises. Every purchaser of 
 mortgaged premises who by his conveyance assumes the pay- 
 ment of the mortgage is a proper, but not a necessary party 
 to a suit to foreclose the mortgage. (45) So when mortgaged 
 property has been sold several times, each grantee assum- 
 ing the mortgage, the successive grantees are all proper, but 
 not necessary parties to the foreclosure suit. (46) 
 
 (44) Chancery Rule 65. 
 
 (45) Pruden v. Williams, 26 N. J. Eq., 210. 
 
 (46) Field V. Thistle, 58 N. J. Eq., 339; affirmed, 60 N. J. Eq., 
 444; Biddle v. Pugh, 59 N. J. Eq., 480. 
 
Parties Defendant. 573 
 
 Vendor of Mortgaged Premises. A mortgagor who has 
 parted with all his interest in the mortgaged premises is a 
 proper, though not a necessary party to a bill for foreclosure. 
 (47) The original mortgagor, notwithstanding his convey- 
 ance subject to the mortgage, is still entitled to be protected 
 against liability upon his bond, in the event of a deficiency 
 at the sale ; and if such mortgagor is made a party to a fore- 
 closure suit against his vendee, the decree will be operative as 
 a bar to the defense of usury on the bond, unless the defense 
 is asserted by him in the foreclosure suit to which he was 
 made a party. (48) And if a mortgagor whose equity of 
 redemption has been sold is made a party, and sets up the 
 defense of usury, he has a right to appeal from a decree against 
 him, because the decree would bar him from setting up the 
 same defense to a suit on the bond. (49) 
 
 Heirs and Representatives of Deceased Mortgagor. Up- 
 on the death of a mortgagor, the equity of redemption in the 
 mortgaged premises passes to his heirs at law or devisees, who 
 are alone necessary parties defendant to a suit to foreclose the 
 equity of redemption in such premises. (50) And where hus- 
 band and wife gave a bond, and mortgage on the property of 
 the wife, and the husband died, neither the heirs at law nor 
 the personal representatives of the husband are necessary par- 
 ties to a bill to foreclose the mortgage. (51) 
 
 While the personal property of a deceased mortgagor in the 
 hands of his personal representative is primarily charged with 
 the payment of the mortgage debt (52), yet in a suit to fore- 
 close the equity of redemption in mortgaged premises, the 
 personal representative of a deceased mortgagor is not a 
 necessary party. (53) But no doubt can be entertained that the 
 
 (47) Chester v. King, 2 N. J. Eq., 405 ; Vreeland v. Loubat, 2 N. 
 J. Eq., 104; Wittemore v. Coster, 4 N. J. Eq., 438; Andrews v. Stelle, 
 22 N. J. Eq., 478; Johnes v. Cutwater, 55 N. J. Eq., 398. 
 
 (48) Scull V. Idler, 81 Atl, 746. 
 
 (49) Andrews v. Stelle, 22 N. J. Eq., 478. 
 (so) See "Parties," page 113, supra. 
 
 (51) Savings Ass'n. v. Vandevere, 11 N. J. Eq., 382. 
 
 (52) Keene v. Munn, 16 N. J. Eq., 398; Campbell v. Campbell, 30 
 N. J. Eq., 415; Krueger v. Ferry, 41 N. J. Eq., 432; afHrmed, 43 N. J. 
 Eq.,29S; Coudert v. Coudert, 43 N. J. Eq., 407; Bacon v. Davinney, 
 55 N. J. Eq., 449. 
 
 (53) Harlem &c., Building & Loan Ass'n. v. Freeburn, 54 N. J. 
 Eq., 37- 
 
574 Foreclosure of Mortgages. 
 
 interest which such personal representative has in being present 
 when the account is taken of the amount remaining due on 
 his intestate's bond, in order that he may see that all proper 
 credits are given, and the sum remaining due is fairly and 
 correctly ascertained, is quite sufficient to make him a proper 
 party. (54) There is this advantage in making the personal 
 representative of a deceased mortgagor a party, that while 
 no direct or active relief can be awarded against him, he will 
 nevertheless be concluded by a decree as to the amount due; 
 and if a suit at law upon the bond, or any other proceeding, 
 should afterwards be taken to recover any deficiency arising 
 . from the sale of the mortgaged premises, the amount so 
 recoverable will be considered as having been unalterably 
 determined by the decree in the foreclosure suit. (55) 
 
 Adverse Claimants of Title. As has been seen above, the 
 moirtgagee has no right to make one who claims adversely to 
 the title of the mortgagor, and prior to the mortgage, a party 
 defendant for the purpose of trying the validity of his adverse 
 claim of title in such suit. (56) A foreclosure suit is not 
 a proper proceeding in which to litigate the rights of a party 
 claiming title to the mortgaged premises in hostility to the 
 mortgagor. (57) And a decree in a foreclosure suit, where 
 the prayer of the bill is that the mortgagor and holders of 
 encumbrances subsequent to the complainant's mortgage may 
 be foreclosed of all equity of redemption in the mortgaged 
 premises, will not bind parties holding estates in remainder 
 prior to the mortgage, in which they have not joined. (58) 
 But a mortgagee who forecloses may make a purchaser at a 
 tax sale a party defendant as a lien holder; and if redemp- 
 tion of the tax be effected pending the foreclosure suit, he 
 
 (54) United Security &c., Co. v. Vandegrift, 51 N. J. Eq., 400; 
 Rutherford v. Alyea, 53 N. J. Eq., 580. 
 
 (55) Dorsheimer v. Rorback, 23 N. J. Eq., 46, 48; affirmed 25 N. J. 
 Eq., 516; United Security &c., Co. v. Vandegrift, 51 N. J. Eq., 400, 
 402; State Mutual B. & L. Ass'n. v. Batterson, yy N. J. L., 57. 
 
 (56) Wilkins v. Kirkbride, 27 N. J. Eq., 93. 
 
 (57) Wilkins v. Kirkbride, 27 N. J. Eq., 93; Van Doren v. Dicker- 
 son, 33 N. J. Eq., 388; Coe v. N. J. Midland R. R. Co., 31 N. J. Eq., 
 ids; reversed, 34 N. J. Eq., 266; Wills v. Field, 62 N. J. Eq., 271. 
 
 (58) Wilkins v. Kirkbride, 27 N. J. Eq., 93. 
 
Parties Defendant. 575 
 
 may enforce the collection of the redemption money in con- 
 nection with the proceedings to foreclose the mortgage. (59) 
 
 Prior Encumbrancers. A prior encumbrancer whose lien 
 is not assailed in the bill of complaint is not a necessary, 
 though a proper party to a suit for foreclosure ; and if he 
 be made a party, and does not choose to come in with his 
 encumbrance, his rights are wholly unaffected by the pro- 
 ceedings. (60) So a prior mortgagee, though made defend- 
 ant and served with process in the suit of a subsequent mort- 
 gagee, may take no notice of that suit, and may file his bill 
 on his own mortgage, and make the subsequent mortgagee a 
 party. This is so from the very nature of the different inter- 
 ests mortgaged ; for if it were not, the control of the first 
 mortgagee over his own securities, as to the time when he 
 will enforce them, and as to the time and mode of selling the 
 property on execution, might be taken away from him by 
 any person who might choose to make a loan and take a 
 mortgage subsequent to his. (61) So the holder of a judg- 
 ment entelred prior to the giving of a mortgage on lands 
 upon which his judgment is a lien is not a necessary party 
 to a suit to foreclose the mortgage. (62) And where the 
 assignment of a judgment constituting a lien on mortgaged 
 premises is absolute and unconditional, the assignor is not a 
 necessary party to a bill for foreclosure. (63) 
 
 Where, as in our practice, prior encumbrancers are per- 
 mitted to be made parties to a bill for foreclosure and sale 
 of mortgaged premises, if the first mortgagee defendant in 
 such bill comes in with his mortgage, he simply assents to the 
 relief prayed for by the complainant. (64) 
 
 A subsequent mortgagee may file a bill either for a fore- 
 closure and sale subject to the prior mortgage, or to redeem 
 
 (Sg) Burgin v. Rutherford, 56 N. J. Eq., 666; aMrtned, 56 N. J. Eq., 
 852. 
 
 (60) Gihon V. Belleville White Lead Co., 7 N. J. Eq., S3i ; Hud- 
 nit V. Nash, 16 N. J. Eq., 550; Wilkins v. Kirkbride, 27 N. J. Eq., 93; 
 Farmers National Bank v. Lloyd, 30 N. J. Eq., 442. 
 
 (61) Gihon V. Belleville White Lead Co., 7 N. J. Eq., 531; Bige- 
 low V. Cassedy, 26 N. J. Eq., 557; reversed, 27 N. J. Eq., 505. 
 
 (62) Hendry v. Quinan, 8 N. J. Eq., S34; Farmers National Bank 
 V. Lloyd, 30 N. J. Eq., 442. 
 
 (63) Bruen v. Crane, 2. N. J. Eq., 347. 
 
 (64) Hudnit v. Nash, 16 N. J. Eq., 550. 
 
576 Foreclosure of Mortgages. 
 
 the prior mortgages, and for a sale to raise the redemption 
 money and the amount of his own mortgage; or if he files a 
 bill, making the prior mortgagee a party, and makes the 
 proper prayer, and the prior mortgagee by the course he 
 takes in that cause consents to it, the court may make a decree 
 for the sale of the property, and order that out of the pro- 
 ceeds the mortgages be paid according to priority. (65) But 
 a foreclosure bill by a second mortgagee making the first mort- 
 gagee a defendant is, as against such first mortgagee, in effect 
 a bill to redeem and not to foreclose. (66) 
 
 Subsequent Encumbrancers. Upon a bill for foreclosure 
 and sale of mortgaged premises, all the subsequent encum- 
 brancers are necessary parties ; and to effectuate a complete 
 decree, the existence, validity, order of priority and amount 
 due upon the several encumbrances must be settled and 
 decided. (67) So if the first mortgagee brings a bill to fore- 
 close the mortgage, and obtains a decree without making 
 subsequent encumbrancers parties their rights are not fore- 
 closed, and their remedies remain against a purchaser claim- 
 ing under the decree. (68) So where the holder of the first 
 of two mortgages upon a lot of land forecloses his mortgage, 
 and the mortgaged premises are sold accordingly, but the hold- 
 er of a second mortgage duly recorded when the suit was 
 brought is not made a party thereto, the holder of the latter 
 mortgage may maintain a suit to foreclose upon his mort- 
 gage. (69) 
 
 Where a second mortgagee, who has not been made a party 
 to the foreclosure proceedings of the first mortgagee, and 
 is accordingly not bound thereby, brings suit to foreclose his 
 mortgage, the -purchaser at the former sale will be entitled to 
 the rights of all parties foreclosed in the former suit, and 
 will be subrogated thereto accordingly. He will not, how- 
 ever, be allowed the costs of the former foreclosure and 
 
 (65) Gihoii V. Belleville White Lead Co., 7 N. J. Eq., 531. 
 
 (66) Hudnit v. Nash, 16 N. J. Eq., 550. 
 
 (67) Vandeveer v. Holcomb, 17 N. J. Eq., 87; affirmed, ib., 547- 
 
 (68) Taylor v. Thomas, S N. J. Eq., 331; Williamson v. Probasco, 
 8 N. J. Eq., S7I ; McCall v. Yard, g N. J. Eq., 358. 
 
 (69) Atwater v. West, 28 N. J. Eq., 361 ; Chilver v. Weston, 27 
 N. J. Eq., 435. 
 
Parties Defendant. 577 
 
 sale, as the proceedings did not bind the holder of the subse- 
 quent mortgage. (70) 
 
 Where a mortgage was foreclosed, but by mistake a subse- 
 quent encumbrancer was not made a party, and the mort- 
 gagee bid in the property and transferred his bid to the 
 mortgagor, from whom he took a new mortgage for a larger 
 amount, a part of the proceeds of which was used to pay 
 encumbrances paramount to that held by the second mort- 
 gagee, it was held that the rights of such mortgagee were 
 subsequent to the encumbrances which were substituted for 
 those paramount to his and of equal amount, and that equity 
 would treat the second mortgagee as having the position occu- 
 pied by him before the foreclosure. (71) And the fact that the 
 holder of such subsequent encumbrances had waited seventeen 
 years before bringing suit for foreclosure will not bar him 
 of his claim to relief. (72) 
 
 But a mortgagee who comes into court for foreclosure and 
 sale of the mortgaged premises is not at liberty to omit as parties 
 to the proceedings those who hold encumbrances subsequent 
 to his own ; for while it is true that if subsequent encumbran- 
 cers be not made parties, the proceedings are of no avail against 
 them, that is no reason for making a suit for foreclosure and 
 sale of mortgaged premises an exception to the general rule of 
 equity which requires that all persons in interest be made 
 parties to the suit. It is manifestly unjust to all persons inter- 
 ested in the proceedings for the sale of the mortgaged premi- 
 ses that the sale be made subject to an outstanding right to re- 
 deem for that invariably and inevitably prejudice the sale. 
 Where subsequent encumbrancers are omitted, the court will 
 order that they be brought in and the cause proceeded in regu- 
 larly as against them, and in the meantime the siait will be 
 stayed. (73) 
 
 A purchaser at a tax sale, under the "Martin Act," does not 
 acquire any title to the land so purchased until a deed there- 
 fore be delivered to him as provided in that act. During the 
 
 (70) Chilver v. Weston, 27 N. J. Eq., 435. 
 
 (71 ) VanDuyne v. Shann, 39 N. J. Eq., 6 ; reversed in part, 41 N. J. 
 Eg., 311. 
 
 (72) Chilver v. Weston, 27 N. J. Eq., 435. 
 
 h:^) McCall V. Yard, 9 N. J. Eq., 358; Gould v. Wheeler, 28 N. J. 
 Eq., S4I. 
 
578 Foreclosure of Mortgages. 
 
 period between the purchase of the tax title and the delivery 
 of the deed to the purchaser, the interest of the purchaser 
 remains a iijere lien on the premise^ ; and a mortgagee, who 
 forecloses, may make the purchaser at a tax sale a party 
 defendant as a lienholder and, if redemption of the tax sale 
 be effected pending the foreclosure suit, may enforce the col- 
 lection of the redemption money in connection with the pro- 
 ceedings to foreclose the mortgage. (74) 
 
 Owners of Unrecorded Liens May Become Parties. The 
 owner of a lien on mortgaged premises which was not recorded 
 at the time of the filing of the bill to foreclose, may be admit- 
 ted as a party to the proceedings by recording the instrument 
 creating his lien, and by presenting his petition in the cause. 
 (75) 
 Proceedings Against Unknown Owners. (76) 
 Supersedeas where party proceeded against as an absent 
 defendant enters his appearance, {j'j') 
 
 PLEADINGS AND EVIDENCE. 
 
 Bill of Complaint. The bill of complaint should conform 
 to the ordinary rules of chancery pleading, and the general 
 rules governing such pleadings are applicable thereto.(i) But 
 no foreclosure bill shall set forth the bond or mortgage at 
 length, but only those parts thereof upon which the relief 
 sought is founded, including the date^ names of parties, con- 
 sideration, words of conveyance, description of premises, the 
 words limititig the estate and the condition in full; and no 
 costs shall be taxed or allowed for any bill drawn in palpable 
 violation of this rule. (2) 
 
 On a bill for the foreclosure and sale of mortgaged prem- 
 ises, the bill must show that the debt which the mortgage is 
 given to secure is due and owing to the complainant. (3) But 
 
 (74) Burgin v. Rutherford, 56 N. J. Eq., 666; afHrmei ib., 852. 
 
 (75) Chancery Act Section 58, and Notes page 53, supra. 
 
 (76) See 3 Corap. Stat., p. 341 1, sections 6 et seq. ib., p. 3423 sec- 
 tions 54 et seq., and Chancery Act, section 10, page 10, supra. 
 
 (77) Chancery Act, section 55, page 51, supra. 
 (i) See "Bill of Complaint," page 138, supra. 
 
 (2) Chancery Rule SO- 
 
 (3) Cornelius v. Halsey, 11 N. J. Eq., 27. 
 
Bill of Complaint. 570 
 
 when by the terms of a mortgage it has become due by default 
 in the payment of interest before suit commenced, it is not 
 necessary that the bill should formally allege that the princi- 
 pal is due ; an allegation that no principal or interest has been 
 paid is sufficient. (4) 
 
 Technicality of pleading, is not required; and if a com- 
 plainant files his bill as the assignee of a mortgage, and alleges 
 that the debt is due and owing to him, and that he is ready 
 to produce the note, or obligation which is the evidence of 
 the debt the mortgage is given to secure, it is sufficient without 
 stating that the note or obligation has, been assigned to him. 
 (5) So, the primary purpose of a foreclosure bill being to 
 show the grounds of the complainant's right to foreclose, and 
 to bring before the court all the parties whose interests are 
 sought to be foreclosed, if the bill does this, and a decree for 
 complainant follows in due course, its effect is not limited nor 
 the title made by sale thereunder impaired by the fact that the 
 complainant has failed to state every right or interest of the 
 defendant that is subject to the mortgage. (6) 
 
 A foreclosure bill need not define the nature of the interests 
 which the defendants have in the mortgaged estate, when the 
 peculiar nature of those interests is unimportant to the relief 
 sought by the complainant. (7) And an allegation in the bill 
 that "a great part" of the principal of the mortgage is due is 
 not conclusive against complainant's claim that all of the 
 principal is due. (8) A statement in the bill, in reference to 
 the execution of a mortgage by the corporation of the German 
 Reformed Church, that it was executed "through their trus- 
 tees" under the "Act to incorporate trustees of religious soci- 
 eties," was held sufficient as a matter of pleading. (9) But 
 where a bill to foreclose contained no allegation that the com- 
 plainant's mortgage was given for unpaid purchase money, or 
 that subsequent mortgagees, made defendants, had notice of it 
 before the mortgage to them, and priority of the complainant's 
 
 (4) Bodine v. Gray, 24 N. J. Eq., 335. 
 
 (5) Cornelius v. Halsey, 11 N. J. Eq., 27. 
 
 (6) Kiernan v. Jersey City, 80 N. J. L., 273. 
 
 (7) Dunham v. Doremus, SS N. J. Eq., 511. 
 
 (8) Hagan v. Ryan, 27 N. J. Eq., 236. 
 
 (9) German Reformed Church v. Von Puechelstein, 27 N. J. Eq,, 
 30. 
 
580 Foreclosure of Mortgages. 
 
 mortgage depended on these facts, and they appeared clearly 
 in the proofs, it was held that the bill was defective, and that 
 no decree or relief founded on the facts above stated CQuld be 
 given, unless they were set forth in the bill; but that the bill 
 might be amended. (lo) 
 
 On a bill to foreclose a mortgage belonging to a wife, a mere 
 averment that the owner of the premises alleges that it is 
 unsafe for him to pay the amount of the mortgage debt, 
 because of a foreign attachment issued against complainant's 
 husband, without stating any connection between the attach- 
 ment proceedings and the mortgage, is insufficient. ( 1 1 ) So 
 a bill to foreclose a mortgage, alleging that a cancellation of 
 the mortgage entered of record is fraudulent, and that a suit 
 to set aside such cancellation resulted in a decree annulling it 
 and re-establishing the mortgage, of which suit one of the 
 defendants, who purchased the property, had notice when he 
 acquired his title, but not setting forth the facts constituting 
 the alleged fraud, is defective ; and a demurrer by such pur- 
 chaser must be sustained, where it does not appear that he, 
 or anyone under whom he claims, was a party to such former 
 suit. (12) Where a bill to foreclose a second mortgage is 
 objectionable in its statement of the complainant's rights 
 under the first mortgage, in that it contains no averment that 
 the notes endorsed by the mortgagor, and against which the 
 mortgage was given as an indemnity, were ever assigned to 
 the complainant, nor that the principal of said notes remains 
 unpaid, the objection is not cured by the fact that these aver- 
 ments are made in the affidavit annexed to the bill. (13) 
 
 Under the general prayer, the complainant is entitled to 
 any relief to which the facts pleaded show him to be entitled. 
 (14) So under a prayer for other or further relief in a fore- 
 closure bill, the mortgage may be reformed. (15) And a bill 
 to foreclose a junior mortgage need not pray for the sale of 
 land included in the first mortgage but not in the subsequent 
 
 (10) Armstrong v. Ross, 20 N. J. Eq., 109. 
 
 (11) Pine V. Shannon, 30 N. J. Eq., 404. 
 
 (12) Stover V. Reading, 29 N. J. Eq., 152. 
 
 (13) Chapman v. Hunt, 14 N. J. Eq., 149. 
 
 (14) See "Prayer for Relief," page 151, supra. 
 
 (15) Coe V. N. J. Midland R. R. Co., 31 N. J. Eq., ios\'>'eversed, 34 
 N. J. Eq., 266. 
 
Answer. 581 
 
 mortgages. (i6) And when neither complainant's right to 
 insure, nor the fact of the insurance, is averred in the bill, 
 and no relief is prayed on that account, the amount paid for 
 insurance should not be allowed, although by an improper 
 construction of the order of reference it might be deemed 
 within the cognizance of the Master. (17) 
 
 Answer. Defendant's plea or answer to a foreclosure 
 bill follows the form of like pleadings in an ordinary case in 
 the Court of Chancery, and the general principles governing 
 such pleadings are applicable thereto. (18) Thus, the ques- 
 tion of abatement from the amount of a mortgage on account 
 of deficiency in the contents of the premises may be raised by 
 the mortgagor in foreclosure proceedings by answer. (19) 
 And so where property not intended to be covered by a mort- 
 gage was by mistake included therein, such defense may be 
 raised by answer. (20) And a defendant in a foreclosure suit, 
 who claims to be possessed of a paramount title to the premi- 
 ses, which he intends to enforce, must set it up in his answer. 
 (21) So on foreclosure of a first mortgage, a second mort- 
 gagee, who sets up in his answer a paramount claim for expen- 
 ses necessarily paid to preserve the property, may recover 
 therefor under his answ^er, without filing a cross bill.(22) 
 
 The fact that an answering mortgagee, in a bill to fore- 
 close, alleges and establishes the priority of his mortgage over 
 that of the complainant, does not entitle him thereafter to 
 conduct the suit as if he were the complainant. (23) 
 
 The right of a mortgagor to compel a mortgagee in posses- 
 sion to account for the rental value of the mortgaged premi- 
 ses is, in a suit by the mortgagee to foreclose, a pure matter 
 of defense, of which the mortgagor may avail himself by 
 
 (16) Lambertville National Bank v. McCready Bag &c., Co., 15 
 Atl., 388. 
 
 (17) Stonington Savings Bank v. Davis, 15 N. J. Eq., 30; see 
 "References" page 357, supra. 
 
 (18) See "Pleas," page 248, supra; "Answers," page 294, supra. 
 
 (19) Melick V. Dayton, 34 N. J. Eq., 245. 
 
 (20) Ames V. Franklinite Co., 12 N. J. Eq., 66; affirmed, ib., 507 
 S. C, ib. S.12. 
 
 (21) Chadwick v. Island Beach Co., 43 N. J. Eq., 616; Burgin v. 
 Rutherford, 56 N. J. Eq., 666; affirmed, 56 N. J. Eq., 852. 
 
 (22) Fiacre v. Chapman, 32 N. J. Eq., 463 ; Farmer v. Ward, 75 
 N. J. Eq., 33; But see Rankin v. Coar, 46 N. J. Eq., 566. 
 
 (23) Coulston V. Coulston, 37 N. J. Eq., 396. 
 
5S2 Foreclosure of Mortgages. 
 
 answer. (24) And where by agreement between vendor and 
 purchaser certain assessments on the premises were to be 
 deducted from the purchase money mortgage, if confirmed, 
 and such assessments were afterwards set aside and new 
 assessments ordered, a cross bill is not necessary on the fore- 
 closure. (25) And so where a bill seeks to foreclose a mort- 
 gage on the ground that the whole credit was forfeited by 
 non-compliance with the condition that by a certain day on 
 each year receipts for all taxes assessed for the current year 
 should be produced, the part of the answer showing that on 
 such day the tax assessed was by due course of law in dis- 
 pute, that it was subsequently determined to be erroneous, was 
 reduced, and thereupon paid and the receipts produced, cannot 
 be stricken out on motion as impertinent. (26) 
 An answer by a second mortgagee to a bill to foreclose a first 
 mortgage is not inpertinent because it avers that the second 
 mortgage is for a larger amount than is alleged in the bill; 
 nor is it impertinence in an answer by the mortgagor to allege 
 that he has paid a certain sum on his mortgage for which 
 no credit has been allowed. (27) 
 
 Upon a bill filed by a mortgagee for foreclosure and sale 
 of mortgaged premises, the mortgagor may by his answer set 
 up usury against the claims of a mortgagee who is made a 
 co-defendant ; he will not be driven to a cross bill and thereby 
 deprived of his defense. (28) 
 
 On the other hand, in a suit to foreclose a mortgage by an 
 assignee thereof, the assignor, made a defendant because of 
 her holding a third mortgage on the premises, cannot by 
 answer set up the defense that the mortgage in suit was 
 assigned by her agent, without her authority, to secure his 
 own debt ; her claim for relief on that ground is available only 
 by way of cross bill. (29) And a defendant cannot by answer 
 alone avail himself of the defense of fraud in the considera- 
 tion of a mortgage, which does not go to the extent of a com- 
 
 (24) Krueger v. Ferry, 41 N. J. Eq., 432; atHrmed, 43 N. J. Eq., 
 
 (25) White V. Stretch, 22 N. J. Eq., 76. 
 
 (26) Brill V. Riddle Co., 47 All., 223. 
 
 (27) Squier v. Shaw, 24 N. J. Eq., 74. 
 
 (28) Vandeveer v. Holcomb, 17 N. J. Eq., 87; affirmed, 17 N. J. 
 Eq., 547; But see Hudnit v. Nash, 16 N. J. Eq., 550. 
 
 (29) Grocers Bank v. Neet, 29 N. J. Eq., 449. 
 
Answer. 583 
 
 plete nullification of the instrument; but to have the benefit 
 of such defense, he must have recourse to a cross bill. (30) 
 And a mortgage can be declared fraudulent against creditors, 
 on a bill to foreclose, only when the creditors raise that issue 
 by their answer. (31) 
 
 Fraud in the consideration of a prior encumbrance may be 
 set up by a mortgagee in his answer without filing a cross 
 bill, and a general allegagtion of such fraud is sufficient, where' 
 the fraud alleged was that the mortgage was given to defraud 
 creditors, and was without consideration. (32) 
 
 Where a mortgage provided that on each payment of a 
 certain amount on the principal a lot should be released by 
 the mortgagee, and a bill was filed to foreclose for default 
 in interest, and defendant alleged an inefficient tender, but his 
 answer was overruled, and after the bill was filed, but before 
 decree, he made a payment on the principal, and demanded 
 the release of a lot, which was refused, it was held that he 
 was entitled to file a supplemental a'nswer setting up this 
 latter tender and demand. (33) 
 
 When the complainant, in any bill filed to foreclose a mort- 
 gage, makes prior or subsequent encumbrancers parties to said 
 bill, and they come in and answer, and the complainant then 
 for four months neglects or refuses to proceed, the said 
 defendants, or any of them, may take an order upon the com- 
 plainant to show cause at any time on ten days' notice why 
 the said defendant or defendants shall not be allowed to pro- 
 ceed with the said cause to decree and execution in his name ; 
 and unless good cause be shown tO the contrary, an order 
 may be made that the said defendant or defendants shall be 
 allowed so to proceed with the suit, and the complainant 
 shall not be allowed his costs. (34) 
 
 So a defendant, who has been allowed to proceed with a 
 foreclosure suit in the complainant's name under this rule 
 
 (30) Graham v. Berryman, ig N. J. Eq., 29; reversed, 21 N. J. 
 Eq., 370; Parker v. Jameson, 32 N. J. Eq., 22; Parker v. Hartt, 32 N. J. 
 Eq., 22s ; affirmed ih., 844. 
 
 (31) MacFarlane v. Richardson, 56 N. J. Eq., 191; affirmed 57 N. 
 J. Eq., 346. 
 
 (32) McGuckin v. Kline, 31 N. J. Eq., 454. 
 
 (33) Hall V. Home Buildimg Co., 56 N. J. Exj., 304; Ventnor invest- 
 ment &c., Co. V. Record Development Co., 80 Atl., 952. 
 
 (34) Chancery Rule 28. 
 
584 Foreclosure of Mortgages. 
 
 may enforce the payment of his demand by means of such 
 suit, though the complainant's debt has been paid in full, or 
 he has given the mortgagee further time. (35) 
 
 Subsequent Encumbrancer May Give Notice in Lieu of 
 Answer. In any suit for the foreclosure and satisfaction 
 of a mortgage, in which there are no infant defendants, any 
 ^ party who has been made a defendant as a subsequent encum- 
 brancer, and does not dispute the priority of complainant's 
 mortgage, or the order and priority of the subsequent encum- 
 brancers as stated in the bill, may, in lieu of an answer setting 
 up his encumbrance, give notice to the complainant that he 
 desires to have his encumbrance reported upon. (36) 
 
 Sufficiency of Answer. An allegation in the answer, as 
 a defense to a bill for the foreclosure of a purchase money 
 mortgage, that "part" of the land intended to be conveyed 
 has been omitted from the description by meets and bounds, 
 without stating what part, or whether the land is not other- 
 wise sufficiently described to be fully, identified, is insufficient. 
 (37) And where an answer, in a foreclosure suit, denied 
 the indebtedness, and referred to a cross bill pleaded in con- 
 necetion therewith, which alleged that the mortgage was given 
 in settlement of a suit alleged to have been procured through 
 fraud, but the allegations were insufficient to show such fraud, 
 the answer was held insufficient as a defense, and was stricken 
 out. (38) So an answer which sets up an agreement between 
 mortgagees altering their priority as against a bona fide 
 assignee of the mortgagee, and without alleging the circum- 
 stances or the delivery of such agreement, is defective. (39) 
 
 To a bill to foreclose a mortgage for both principal and 
 interest, an answer purporting to be an answer to the whole 
 bill, but setting up a defense to the principal of the mortgage 
 only, is bad. (40) Oral evidence is inadmissible to vary or 
 alter a mortgage, and an answer which sets up that the mort- 
 gage sued on is not due because the mortgagee agreed orally 
 
 (35) Young V. Young, 17 N. J. Eq.. 161. 
 
 (36) Chancery Rule 23 A; for further proceedings under the rule 
 see page S93, infra. 
 
 (37) ■ Allen V. Roll, 25 N. J. Eq., 163. 
 
 (38) Randall v. Reynolds, 61 N. J. Eq., 334. 
 
 (39) New York Chemical Mfg. Co. v. Beck, 6 N. J. Eq., 37. 
 
 (40) Noe V. Noe, 32 N^ J. Eq., 469. 
 
Answer. 585 
 
 that interest should not become due until demanded at the 
 office of the mortgagor, and that no such demand had been 
 made before suit, presents no defense, and must be struck 
 out. (41) 
 
 The defense of usury must not only be distinctly set up in 
 the answer, and the terms of the usurious contract and the 
 quantum of the usurious interest or premium spec'ified and 
 distinctly and correctly set out, .but the defendant must also 
 prove the usury as laid. (42) So a mere reference, in an 
 answer, to an agreement for usury, alleging that "by said cor- 
 rupt and usurious contract the mortgagee was to receive and 
 had already received and taken more than $7.00 for the for- 
 bearance of $100.00 a year," no agreement whatever being 
 set up, is insufficient. (43) If a defendant fails in proving the 
 usurious ' contract in the way and manner in which he has 
 charged it in the answer, he must fail. (44) 
 
 Where the answer alleges generally that the mortgage was 
 in violation of the statutes against usury, in the absence of a 
 more specific allegation of any statement or of the place where 
 the contract was made, it must be inferred that the defense 
 is that the contract is in violation of the statutes of this state. 
 If the defense relied on is that the contract was usurious by 
 the laws of another state, it is incumbent on the defendant 
 distinctly to aver it in his answer, and to sustain it by his 
 evidence. (45) 
 
 Where the defense of usury rests upon the laws of another 
 state, the laws must be pleaded, and the pleading must set 
 out what the laws are. (46) So where defendant designed 
 to rely upon the fact that the mortgage was usurious under 
 the laws of another state, and failed to set up such defense 
 
 (41) Van Ness v. Robbins, 47 N. J. Eq., 329. 
 
 (42) Hannas v. Hawk, 24 N. J. Eq., 124; Turrell v. Byard, 24 
 N. J. Eq., 135; affirmed ib., .'589; Beatty v. Van Brenner, 24 N. J. Eq., 
 312; Watson V. Conklin, 24 N. J. Eq., 230; Cox v. Westcoat, 29 N. J. 
 Eq., SSI- 
 
 (43) Dawes v. Cadmus, 32 N. J. Eq., 456. 
 
 (44) Hannas v. Hawk, 24 N. J. Eq., 124. 
 
 (45) Dolman v. Cook, 14 N. J. Eq., 56; Campion v. Kille, 14 
 N. J. Eq., 229; affirmed. IS N. J. Eq., 476; Andrews v. Torrey, 14 N. J. 
 Eq., 3SS; Atwater v. Walker, 16 N. J. Eq., 42; Leake v. Bergen, 27 
 N. J. Eq., 360. 
 
 (46) Leake v. Bergen, 27 N. J. Eq., 360. 
 
586 Foreclosure of Mortgages. 
 
 in his answer, the court will not at the hearing of the cause 
 grant an application to supply the defect by amending the 
 answer or by filing a supplemental answer; for the design 
 of such amendment is not to correct any mistake or misstate- 
 ment in the original answer, but to set up substantially new 
 ground of defense. (47) 
 
 Issues and Proof. A mortgagee, in a bill to foreclose his 
 mortgage, may litigate the, question of the liability of the 
 receiver of the insolvent mortgagor for waste committed by 
 him by the removal of fixtures from the premises, whereby 
 the security of the mortgagee was depreciated. (48) And 
 where, on a sale of lands $500.00 was retained by the pur- 
 chaser out of the consideration as an indemnity against an 
 alleged right of dower in the premises, and a bond and mort- 
 gage thereon given by him to the vendor to secure that 
 amount and lawful interest, the principal payable only on the 
 extinguishment of the claim, it was held that the claimant of 
 dower could not be compelled to litigate her right in the 
 foreclosure suit. (49) 
 
 When to a suit to foreclose a mortgage the defense set up 
 is payment, the burden of proof is upon the defendant, and 
 the proof must be clear. (50) So where defendants by their 
 answer set up a claim under a cancelled mortgage as a sub- 
 sisting lien upon the mortgaged premises mentioned in the 
 bill of complaint, it is incumbent on them to show that the 
 mortgage has not been paid, and that the cancellation was 
 wrongfully made ; the complainants are not bound to prove 
 the fact of payment. (51) So in a suit by an assignee to 
 foreclose a mortgage, the burden of proving that complain- 
 ant is not a bona iide purchaser is on the defendant. (52) 
 And where an answer to a bill to foreclose admits the exist- 
 ence of the mortgage sought to be foreclosed, but seeks to 
 
 (47) Campion v. Kille, 14 N. J. Eq., 229 ; affirmed, 15 N. J. Eq., 476 ; 
 Price V. Lawton, 27 N. J. Eq., 325; affirmed, 28 N .J. Eq., 274. 
 
 (48) Prudential Ins. Co. v. Guild, 64 Atl., 694. 
 
 (49) Van Doren v. Dickerson, 33 N. J. Eq., 388. 
 
 (50) McKinney v. Slack, 19 N. J. Eq., 164; Hagan v. Ryan, 27 N. 
 J. Eq., 236. 
 
 (51) Trenton Banking Co. v. Woodruff, 2 N. J. Eq., 117. 
 
 (52) Danbury v. Robinson, 14 N. J. Eq., 213. 
 
Appointment of Receiver. 587 
 
 avoid it, the matter alleged by way of avoidan'ce must be sus- 
 tained by evidence independent of the answer. (53) 
 
 To sustain the defense of usury, the proof must be clear 
 and cogent ; probabilities will not be accepted, nor can recourse 
 be had to conjectures to aid the defense. (54) So where the 
 defense is usury, and the proof shows a usurious bargain, but 
 the usurious contract proved does not correspond with that 
 set up in the answer, the variance is fatal ; the defendant must 
 prove the usury as laid. (55) But where on foreclosure defend- 
 ant pleads usury, but there is a variance between the con- 
 tract as set up in the answer and as proven by the evidence, 
 unless complainant consents to forego the usury, defendant 
 will be allowed to amend his answer to conform to the 
 proofs. (56) 
 
 APPOINTMENT OF RECEIVER. 
 
 In General. The early practice of the court appears to 
 have been to refuse the appointment of a receiver at the 
 instance of a first mortgagee, unless some special grounds 
 for the appointment appeared other than inadequacy in value 
 of the mortgaged premises, coupled with the insolvency of 
 the mortgagor. ( I ) Under the modern conception of mort- 
 gages, and the practicable means for their enfoircement, no 
 reason can exist for the application of a dififerent rule 
 between a mortgagor and his first mortgagee, and between a 
 mortgagor and his subsequent mortgagee; as it is the inade- 
 quacy of the security and legal remedy which affords the 
 equitable ground of relief, it is necessarily immaterial whether 
 such inadequacy has been caused by wrongful acts of the 
 
 (53) Bray v. Hartough, 4 N. J. Eq., 46. 
 
 (54) Hannas v. Hawk, 24 _N. J. Eq., 124. 
 
 (55) Hannas v. Hawk, 24 N. J. Eq., 124; Cox v. Westcoat, 29 N. J. 
 Eq., SSi; Turrell v. Byard, 24 N. J. Eq., 135; afHirmed ib. 589; Beatty 
 V. Van Brenner, 24 N. J. Eq., 312; Watson v. Conkling, 24 N. J. Eq., 
 230; Richards v. Weingarten, 58 N. J. Eq., 206. 
 
 (56) Richards v. Weingarten, 58 N. J. Eq., 206; Cox v. Westcoat, 
 29 N. J. Eq., SSI. 
 
 (i) Land Title & Trust Co. v. Kellogg, 73 N. J. Eq., S24 and cases 
 cited. 
 
588 Foreclosure of Mortgages. 
 
 mortgagor. (2) ' So the right to the appointment of a receiver, 
 to collect the rents and profits of mortgaged premises for the 
 benefit of the mortgagee, should extend to all cases where it 
 appears that his security is insolvent or precarious, and that 
 the mortgagor cannot be made to respond to any deficiency 
 which may arise at the foreclosure sale. (3) 
 
 As a general rule, a receiver will be appointed pendente lite 
 on foreclosure on the application of the mortgagee showing 
 that the security is inadequate, and that the mortgagor is receiv- 
 ing rent which he fails to apply to pay interest. (4) So where 
 on foreclosure a junior mortgagee shows that the mortgagor 
 is insolvent, that the property is insufficient security, and that 
 the mortgagor is permitting it to waste and has failed to pay 
 the interest on the encumbrance, a receiver will be appointed, 
 and the mortgagor will be required to pay the rent or surren- 
 der possession of the property. (5) So where after a second 
 mortgagee had obtained an order for a sale on foreclosure, a 
 stay was procured by a third person, attacking in the Court 
 of Chancery his title to the mortgage, and the mortgagor had 
 been in possession of the premises and insolvent, and no taxes 
 or interest on any of the encumbrances had been paid for three 
 years, it was held that the second mortgagee was entitled to 
 the appointment of a receiver pending his litigation with such 
 third person. (6) 
 
 On an application in equity to aid a mortgagee to obtain 
 possession 'of the property under his mortgage, where it 
 appeared that the mortgagor was insolvent, and had removed 
 from the premises and given possession to another, who occu- 
 pied them for his own use without paying rent, and it also 
 appeared that the mortgagor had committed waste, and threat- 
 ened to commit more, and that the premises were insufficient 
 security, a receiver was appointed. (7) So where the owner 
 
 (2) Land Title & Trust Co. v. Kellogg, 73 N. J. Eq., 524 and cases 
 cited. 
 
 (3) Leeds v. Gifford, 41 N. J. Eq., 464; affUnned, 45 N. J. Eq., 
 24s; Land Title & Trust Co. v. Kellogg, 73 N. J. Eq., 524 and cases 
 cited. 
 
 (4) Penneck v. Geyer, 9 N. J. L. J., 307 ; Northrup v. Roe, 10 N. J. 
 L. J., 334- 
 
 (5) V. Cramer, 3 N. J. L. J., 302. 
 
 (6) Warwick v. Hammell, 32 N. J. Eq., 427. 
 
 (7) Brasted v. Sutton, 30 N. J. Eq., 462. 
 
Appointment of Receiver. 589 
 
 of the premises covered by a mortgage receives the rents there- 
 from and refuses to apply them on account of the interest 
 due on such mortgage, there being no personal security, and 
 the premises being insufficient, the appointment of a receiver 
 is justified. (8) So where the premises had been leased for 
 a term that had three years longer to run, the receiver was 
 directed to collect the rents, but not to take possession of the 
 premises, nor to re-let them. (9) 
 
 In a suit to foreclose a first mortgage, a receiver should be 
 appointed on the application of complainant, where he has no 
 personal security for the debt and the mortgaged premises 
 are an insufficient security, and where the mortgagor has not 
 paid interest or taxes on the premises. (10) But where the 
 fact that property has decreased in commercial value extends 
 to a general decrease of farm values, and it appears that the 
 failure of the mortgagor to pay the interest was due to fail- 
 ure of crops, this is not sufficient cause for the appointment 
 of a receiver, even if the security approaches the point of 
 being inadequate. (11) And where ■ a mortgage exempts the 
 mortgagor from personal liability, the question of his solvency 
 is not involved on an application by the mortgagee for the 
 appointment of a receiver pending foreclosure. (12) 
 
 A charge of waste whereby the mortgage security is dimin- 
 ished is always a sufficient ground for an injunction and 
 receiver as between mortgagor and mortgagee. (13) But 
 where a farm is purchased and occupied for mining pur- 
 poses, any necessary or proper use of the property for mining 
 operations is not waste. (14) On an application for a receiver 
 of mortgaged premises, the test of the adequacy of the secur- 
 ity is its present market value. (15) And where upon the 
 application of a subsequent mortgagee a receiver is appointed, 
 it is without prejudice to any prior mortgagee or other encum- 
 
 (8) Stockman v. Wallace, 30 N. J. Eq., 449; Chetwood v. Coffin, 
 30 N. J. Eq., 450. 
 
 (9) Pennock v. Geyer, 9 N. J. L. J., 307. 
 
 (10) Mahon v. Crothers, 28 N. J. Eq., 567. 
 
 (11) Horner v. Dey, 61 N. J. Eq., SS4- 
 
 (12) Land Title & Trust Co. v. Kellogg, 73 N. J. Eq., 524 and cases 
 cited. 
 
 (13) Capner v. Fleniington Mining Co., 3 N. J. Eq., 467. 
 
 (14) Capner v. Flemington Mining Co., 3 N. J. Eq., 467. 
 (is) Wood V. Eckert, 3 N. J. L. J., 53. 
 
590 Foreclosure of Mortgages. 
 
 brancer, and the receiver will be directed to keep down the 
 interest on prior encumbrances. (i6) A complainant in a 
 foreclosure suit who nominates and procures to be appointed 
 as receiver, his own solicitor and agent, must bear the loss 
 caused by his defalcation and the insufficiency of his sure- 
 ties. (17) 
 
 Powers and Duties of Receiver. Where, pending the 
 foreclosure of a mortgage on a farm, a receiver was, with 
 the written consent of the solicitors of all the parties in 
 interest, appointed, with power to let the premises, it was 
 held that he could let the farm for a year without a special 
 order, that being the usual term for such leases, and that such 
 lease was neither limited nor terminated by the duration of 
 the suit. (18) And where property is covered by several 
 mortgages, and in foreclosure proceedings a receiver of the 
 rents is appointed pendente lite, the rents of the premises 
 accruing after his appointment go to him for the benefit of 
 the mortgagees. ( 19) But where mortgaged premises are occu- 
 pied by a tenant working the land on shares, a receiver 
 appointed on account of the inadequacy of the security, on the 
 application of the mortgagee, but not until nearly all the labor 
 in producing the crops has been performed, should be allowed 
 to take only such part of the mortgagor's share as would 
 amount to a fair rental of the premises from the time he was 
 appointed. (20) 
 
 Disposition of Fund Collected by Receiver. Where, after 
 a senior mortgagee began foreclosure proceedings, a junior 
 mortgagee applied for and secured the appointment of a 
 receiver, without any order as to the application of funds that 
 might be derived from the receivership, and the premises were 
 purchased by the senior mortgagee for less than sufficient to 
 satisfy his mortgage, it was held that he was entitled as 
 'against the junior mortgagee to have the funds derived from 
 the receivership applied to the deficiency, and the junior mort- 
 gagee was not entitled to any priority as to such fund by 
 
 (16) Cortleyou v. Hathaway, 11 N. J. Eq., 39; N. J. Title, Guaranty 
 & Trust Co. V. Cone, 64 N. J. Eq., 45. 
 
 (17) Sorchan v. Mayo, 50 N. J. Eq., 288. 
 
 (18) Shreve v. Hankinson, 34 N. J. Eq., 413. 
 
 (19) Con.over v. Grover, 31 N. J. Eq., S39- 
 
 (20) Northrup v. Roe, 10 N. J. L. J., 334. 
 
Master's Report. 591 
 
 securing the appointment. (21) But where premises sold 
 under a senior mortgage, subject to two years taxes, were pur- 
 chased by the mortgagee foreclosing, and did not bring enough 
 to satisfy the mortgage, and a receiver had been appointed at 
 the instance of a junior mortgagee, who reported funds in 
 hand and asked for a discharge, upon an application of the 
 senior mortgagee, it was held that, the taxes being a lien on 
 the land at the time it was purchased by him, he stood in the 
 same relation as any stranger, and was not entitled to have 
 the amount derived from the receivership applied to payment 
 of taxes. (22) 
 
 A receiver appointed in a suit is appointed for the benefit of 
 such of the parties in that suit as afterwards appear to be 
 entitled to the fund in controversy, but not for the benefit of 
 strangers to the suit. (23) So a mortgagee has no right, as 
 mortgagee, to the rents of the mortgaged premises, which have 
 been paid into the Court of Chancery by a receiver appointed 
 in a suit by legatees for the administration of the estate of the 
 mortgagor, although the mortgagee has obtained a decree for 
 the foreclosure of his mortgage in the same court, and has 
 sold the mortgaged premises, and a part of the debt is unsatis- 
 fied ; he should have applied to discharge the receiver in the 
 administration suit and entered into possession himself, or 
 applied for a receiver in his foreclosure suit. (24) 
 
 PROCURING THE MASTER'S REPORT. 
 
 When Decree Pro Confesso Taken. In all suits for the 
 foreclosure or satisfaction of a mortgage, when the complain- 
 ant's bill shall be ordered to be taken as confessed, or the 
 defendant shall make default at the hearing, and the whole 
 amount of the debt intended to be secured by the mortgage 
 shall have become due, no order of reference to a Master to 
 ascertain and report the sum due to the complainant shall be 
 entered without the special order of the court; but a report 
 
 (21) N. J. Title, Guaranty & Trust Co. v. Cone, 64 N. J. Eq., 45. 
 
 (22) N. J. Title, Guaranty & Trust Co. v. Cone, 64 N. J. £q., 45. 
 
 (23) Coddington v. Bispham, 36 N. J. Eq., 574. 
 
 (24) Coddington v. Bispham, 36 N. J. Eq,, 574. 
 
592 Foreclosure of Mortgages. 
 
 by a Master being made of the amount due upon the mortgage, 
 the same, if no cause to the contrary be shown, shall be filed 
 of course, and without any motion or rule for that purpose 
 or for confirmation, and a decree made accordingly. The 
 Master, before making such report, shall require an affidavit 
 to be produced before him stating the amount due upon the 
 mortgage, and made by the complainant or some person having 
 knowledge of the amount due. The Master shall not report 
 as due any amount greater than that stated in the affidavit, 
 nor shall he report as due the amount stated in the affidavit, 
 if it is greater than the amount appearing to be due from the 
 charges of the bill and the inspection of the mortgage and the 
 evidences of indebtedness secured thereby. (i) 
 
 In cases where the complainant's bill shall be ordered to be 
 taken pro confesso against a defendant (where there are no 
 infant defendants), and there shall be a reference to a Master 
 ordered in the cause, the complainant may proceed before the 
 Master without notice thereof to such defendant, and it 
 shall not be necessary, upon the coming in of the Master's 
 report, to enter a rule to confirm the same nisi, or to set the 
 cause down preparatory to further directions, or to a final 
 decree against such defendant ; but the complainant shall, 
 without further notice, be entitled to a final decree. (2) 
 
 If a Master to whom is left the question of ascertaining the 
 amount due upon complainant's mortgage, errs in his report, 
 either by way of mistake in computing the sum due or by 
 reporting upon matters not referred to him, the defendant may 
 present his petition to the Court of Chancery setting forth 
 wherein the Master's report is erroneous and praying for such 
 relief as the circumstances may require. Such an application 
 may be made after final decree and. at any time before the 
 sale of the premises. (2a) 
 
 Where Order of Priority of Subsequent Encumbrancers 
 Is Not Disputed. In all cases where the complainant's bill 
 
 (i) Chancery Rule 21. Where any of the defendants have 
 answered the complainant cannot enter a rule of course to refer the 
 cause to a Master except by consent of such defendants as have 
 answered or their solicitor. Faitoute v. Haycock, 2 N. J. Eq., 105; 
 Wright v. McKean, 13 N. J. Eq., 259; and see Chancery Rule 29, page 
 594, infra. 
 
 (2) Chancery Rule 22. 
 
 (2a) State Mutual B. & L. Ass'n. v. O'Callahan, 65 N. J. Eq., 738. 
 
Master's Report. 593 
 
 shall be taken pro confesso against the mortgagor, and other 
 defendants, claiming to be encumbrancers, file their answer 
 or answers setting up said encumbrances, if the order of pri- 
 ority shall, not appear, upon the face of the pleadings, to be 
 disputed by the parties, either complainant or defendant, and 
 the amounts respectively claimed as due do not appear to be 
 denied, and a report be made upon an order of reference to a 
 Master, it shall not be necessary to enter a rule to confirm 
 said report, or to set the cause down for hearing on the same; 
 but if no exceptions to 'said report be filed within _ four days 
 after the filing of said report, the complainant shall, without 
 further notice, be entitled to a final decree. (3) 
 
 Proceedings When Defendant Gives Notice in Lieu of 
 Answer. In any suit for the foreclosure and satisfaction of 
 a mortgage in which there are no infant defendants, any party 
 who has been made a defendant as a subsequent encumbran- 
 cer, and does not dispute the priority of complainant's mort- 
 gage or the order and priority of the subsequent encumbran- 
 cers as stated in the bill, may, in lieu of an answer setting up 
 his encumbrance, give notice to the complainant that he desires 
 to have his encumbrance reported upon. On filing such notice, 
 with proof of its service, within the time limited by law for 
 filing an answer, complainant, if no defendant has filed an 
 answer, shall apply for and obtain without notice an order 
 of reference to a Master to report on complainant's mortgage, 
 and also on all subsequent encumbrances as between them- 
 selves, and the report made on such order, if no cause be 
 shown to the contrary, shall be filed of course, without any 
 motion, order or rule for that purpose, and unless exceptions 
 shall be filed within four days, a decree shall be made accord- 
 ingly. But if in any such cause any defendant who is made 
 a party as a subsequent encumbrancer files an answer, the 
 cause shall then proceed,, as to a defendant who has given 
 such notice, in the same manner as if he had filed an answer 
 setting up his encumbrance as stated in the bill. (4) 
 
 Report and Decree Must Conform to Bill. Where the bill 
 in a foreclosure suit shall be ordered to be taken as confessed 
 against a defendant, no report or decree shall be made by 
 which his rights or claims are postponed to those of any other 
 
 (3) Chancery Rule 23. 
 
 (4) Chancery Rule 23a. j 
 
594 Foreclosure of Mortgages. 
 
 defendant, unless the priority of the rights or claims of such 
 other defendant, and the facts upon which it depends, are 
 distinctly set forth in the bill ; and any controversies between 
 such defendants may be settled upon application for the sur- 
 plus moneys. (5) 
 
 Proceedings Where Answer Does Not Set Up Any De- 
 fense. Whenever in a suit for foreclosure of mortgage or 
 for partition the answer or answers shall not appear to set up 
 any defense or to present any question except such as, in the 
 opinion of the court, may be properly referred to a Master, 
 it shall not be necessary to set down the cause for hearing in 
 order to obtain a reference, but the same may be granted on 
 motion on notice to the solicitor or solicitors of the answer- 
 ing defendant or defendants if appearing in person, and if the 
 reference be ordered, the report made on such order, if no 
 cause be shown to the contrary, shall be filed of course, with- 
 out any motion, order or rule for that purpose, and unless 
 exceptions shall be filed within four days, a decree shall be 
 made accordingly. (6) 
 
 Proceedings Before Master. This subject has been fully 
 considered in connection with the general subject of Refer- 
 ences to Masters. (7) 
 
 DECREE OF FORECLOSURE. 
 
 Nature of Decree. A decree of foreclosure and for sale 
 of mortgaged premises consists of two parts — First, the ascer- 
 tainment of the amount due on the mortgage, and the decla- 
 ration that the complainant is entitled to have the premises 
 sold to pay the same ; and Second, the decree of foreclosure 
 against all the defendants, when the premises are sold. The 
 actual foreclosure depends entirely upon the sale ; and to effect 
 a foreclosure in equity, the sale must not be a fraudulent one, 
 so conducted as to injure the party affected by it.(i) It is 
 
 (5) Chancery Rule 24. State Mutual B. & L. Ass'n. v. O'Callahan, 
 6s N. J. Eq., 738; and see "References" page 354, supra. 
 
 (6) Chancery Rule 29. 
 
 (7) See "References," page 354, supra. 
 
 (i) Turner v. Kuehnle, 70 N. J. Eq., 61; and see Chancery Act, 
 section 53, page 50, supra. 
 
Decree. 595 
 
 not necessary that the decree should describe the premises pre- 
 cisely ; it is usual to designate them in the decree by reference 
 to the bill. (2) The decree directs that a writ of fieri facias 
 directed to the sheriff pr a Master issue directing the officers 
 to make the amount of the decree by the sale of so much of 
 the mortgaged lands as may be necessary. (2a) 
 
 Scope and Extent of Relief. It is the disposition of a 
 court of equity in a foreclosure suit to settle all controver- 
 sies, adjudicate all claims, and grant to the parties all the 
 relief to which they may be entitled under the pleadings and 
 proof; but the relief afforded must conform to and be sup- 
 ported by the case made by the pleadings. (3) So in a fore- 
 closure suit, the court may award damages for waste, com- 
 mitted by purchasers from the mortgagor, whereby. the secur- 
 ity was rendered inadequate, (4) or determine the validity of 
 statutory liens claimed upon the property. (5) 
 
 It is not the province of a suit to foreclose a mortgage to 
 settle questions of legal title. (6) Nor can the regularity of 
 attachment proceedings at law be questioned collaterally, in 
 the foreclosure of a mortgage on the premises attached. (7) 
 But where a railroad mortgage was made to trustees without 
 words of inheritance, but empowered them on default to sell 
 the mortgaged premises, and to convey to the purchaser "all 
 the estate, right, property and interest, and to tlje same extent 
 as the railroad company had therein at the date of the mort- 
 gage, &c.," it was held that the mortgage would be reformed 
 so as to convey a fee. (8) 
 
 A mortgagee taking possession, either himself or by a ten- 
 ant, of lands mortgaged to him, is liable for rent, whether he 
 received a profit or not. By taking possession he assumes 
 the position of owner, and is, therefore, chargeable with the 
 profit a prudent owner could have made ; but actual possession, 
 
 (2) McGee v. Smith, 16 N. J. Eq., 462. 
 (2a) Chancery Act, section 54, page 50, supra. 
 
 (3) Ely V. Perrine, 2 N. J. Eq,, 396. 
 
 (4) Tate V. Field, 56 N. J. Eq., 35 ; S. C, 57 N. J. Eq., S3 ; affirmed, 
 ib., 632. 
 
 (5) Provident Inst. v. Allen, 37 N. J. Eq., 36; affirmed ib., 627. 
 
 (6) Hazeldine v. McVey, 67 N. J. Eq., 275. 1 
 
 (7) Hoppock V. Ramsey, 28 N. J. Eq., 413. 
 
 (8) Coe V. N. J. Midland R. R. Co., 31 N. J. Eq., 105; reversed, 
 in part, 34 N. J. Eq., 266. 
 
596 Foreclosure of Mortgages. 
 
 or a receipt of the profits, or a fraudulent use of his power as 
 mortgagee to the loss of subsequent encumbrancers, must be 
 shown to render him liable. (9) But while a prior mortgagee 
 who has had possession of the mortgaged premises must 
 account for rents and profits to the subsequent encumbran- 
 cer, a subsequent encumbrancer in possession is not bound 
 to account to the prior encumbrancer. (10) Where a mort- 
 gagor- in possession has committed waste on the mortgaged 
 estate by the removal of a building erected thereon, the meas- 
 ure of the mortgagee's loss is not the value of the building 
 after severance, but the dimunition in the value of his secur- 
 ity.(ii) 
 
 As is the case in an ordinary decree in chancery a decree 
 in foreclosure is limited by the bill of complaint, and no relief 
 can be afforded inconsistent with the bill or the relief therein 
 prayed. (12) So a decree in a foreclosure suit will not cut 
 off a widow's claim of flower, where the same is paramount 
 to the lien of the mortgage, when the bill makes no allusion 
 to such dower right, although the widow on other grounds is 
 a party to the suit. (13) 
 
 Premises or Interests to be Sold. The decree should 
 order the sale only of the right, title and interest of the mort- 
 gagor in the property mortgaged at the time of the execu- 
 tion of the mortgage. So on a bill by a second mortgagee, 
 nothing more than the equity of redemption mortgaged to him 
 can be decreed to be sold, unless the first mortgagee comes in 
 with his' mortgage and thereby consents that a decree shall 
 be made for the sale of the property to pay his mortgage 
 also. (14) And where complainant's mortgage covers several 
 parcels of land which are covered by subsequent encumbran- 
 ces, and the latter cover more property than complainant's 
 mortgage, the decree of foreclosure cannot direct a sale of that 
 
 (9) Dawson v. Drake, 30 N. J. Eq., 601 ; Leeds v. Gifford, 41 N. J. 
 Eq., 464 ; afHrmed, 45 N. J. Eq., 245 ; Ketchum v. Bell, 72 N. J. Eq., 907. 
 
 (10) Leeds v. Gifford, 41 N. J. Eq., 464; afHrmed, 45 N. J. Eq., 245. 
 
 (11) Tate V. Field, 57 N. J. Eq., 53; affirmed ib., 632. 
 
 (12) See "Prayer for Relief," page 151, supra. 
 
 (13) Wade V. Miller, 32 N. J. L., 296. 
 
 (14) Roll V. Smalley, 6 N. J. Eq., 464; and see Chancery Act, 
 section 53, page 50, supra. 
 
Decree. 597 
 
 part of the premises not covered by complainant's mort- 
 gage- (15) 
 
 A mortgage intended to cover after acquired property- 
 attaches only to such property in the condition in which it 
 comes to the mortgagors so that if already subject to other 
 liens the general mortgage would not displace them although 
 they might be junior in point of time.(isa) 
 
 Provisions for Sale Where Entire Amount of Mortgage 
 Not Due. Where the whole sum secured by the mortgage 
 is not due, and it appears that a part of the mortgaged premi- 
 ses cannot be sold to satisfy the amount due without material 
 injury to the remaining part, the court may decree a sale of 
 the whole of the mortgaged premises, and apply so much of 
 the proceeds of the sale as may be necessary to the payment 
 of the portion of the mortgage then due, and may make such dis- 
 position of the residue of such proceeds as may be agreeable 
 to equity. (16) 
 
 Provisions for Sale in Gross or in Parcels. Where a mort- 
 gage contains no provision that on default in payment of 
 interest both principal and interest shall become due, and the 
 mortgagee files a bill to foreclose for non-payment of interest, 
 only so much of the premises will be ordered sold as will real- 
 ize the interest and costs, unless it appears that a sale of part 
 will materially injure the security. (17) And so when a mort- 
 gage is foreclosed for default of payment of an installment, 
 the residue of the money not being' due, the whole premises 
 will not be directed to be sold, unless a necessity for such 
 course exists; and when in such a case a decree has been 
 entered for the sale of the whole premises, the court will in 
 its discretion regulate the process of execution under the 
 decree. (18) But where the complainant's mortgage covers 
 several parcels of land which are covered by subsequent 
 
 (is) Ely V. Perrine, 2 N. J. Eq., 396. 
 
 (iSa) Knickerbocker Trust Co v. Carteret Steel Co., 82 Atl., 146; 
 Williamson v. N. J. Southern R. R. Co., 29 N. J. Eq., 311; N. J. R. R. 
 &c., Co. V. Long Dock Co., 42 N. J. Eq., 547 ; Campbell v. Roddy, 44 N. J. 
 Eq., 244 ; Daly v. N. Y. & Greenwood Lake R. R. Co., 55 N. J. Eq., 595. 
 
 (16) See Chancery Act, section 56, page 51, supra. 
 
 {17) Probasco v. Vaneppes, 13 Atl., 598; McFadden v. May's Land- 
 ing &c., R. R. Co., 49 N. J. Eq., 176. 
 
 (18) American Life &c., Co. v. Ryerson, 6 N. J. Eq., 9; Allen 
 V. Wood, 31 N. J. Eq., 103. 
 
598 Foreclosure of Mortgages. 
 
 encumbrances, the decree may direct the whole of the prop- 
 erty to be sold and the proceeds applied to satisfy as well the 
 subsequent encumbrances as the mortgage of the complain- 
 ant; and although the complainant's mortgage is satisfied by 
 the sale of a part of the premises, the sheriff may proceed to 
 a sale of the remainder to satisfy subsequent encumbran- 
 ces. (19) 
 
 Order of Sale of Several Parcels. Where it is necessary, 
 in order to do equity as between several encumbrancers, or 
 between successive purchasers of the mortgaged land or part 
 of it, the court will order that the different parcels should be 
 put up in such an order as will work equity between the 
 several parties in interest. (20) So the holder of a second 
 mortgage upon part of the premises embraced in a first mort- 
 gage, upon the remaining part whereof another holds a second 
 mortgage, is entitled to have the two parcels sold separately 
 under proceedings to foreclose the first mortgage, where it 
 can be done without prejudice to the rights of the complain- 
 ant. If so sold, the proceeds of the sale of each parcel must 
 pay their due proportion of the amount due on the first mort- 
 gage, with costs. (21) And so where joint purchasers mort- 
 gaged the premises to their vendor to secure the purchase 
 money, and afterwards one of them purchased the undivided 
 one-half of the other, together with an adjoining lot, and in 
 order to secure the purchase money, gave the vendor of the 
 second lot a mortgage on both lots, except a strip of the first, 
 it was held that if necessary to secure the payment of his 
 mortgage, the second mortgagee might compel the first mort- 
 gagee to sell such strip first; but not if the property common 
 to both mortgages be sufficient to satisfy both. (22) 
 
 Marshaling of Assets. The right of a second mortgagee 
 to have the assets and securities marshaled, so that the preced- 
 ing mortgagee may be required to look first to the lands on 
 which the second mortgage is not a lien, is absolute against the 
 mortgagor and his voluntary fraudulent grantee of the lands on 
 
 (19) Ely V. Perrine, 2 N. J. Eq.,3g6; and see "Sale of Mortgaged 
 Premises," page 603, infra. 
 
 (20) Foster v. Union Bank, 34 N. J. Eq., 48. 
 
 (21) Pancoast v. Duval, 26 N. J. Eq., 445. 
 
 (22) Gilbert v. Galpin, 11 N. J. Eq., 445; and see "Marshaling of 
 Assets," infra. 
 
Decree. 599 
 
 which the second mortgage is not a lien. (23) Where, on a 
 bill to foreclose, questions arose between complainants, whose 
 mortgage was given before the erection of a building on the 
 land, and certain lienholders, who had liens for the erection 
 of the building, as to the proportions in which they were 
 respectively entitled to share in the proceeds of sale, which 
 were insufficient to satisfy all the claims, it was held that the 
 proper mode of determining the relative claims of the respect- 
 ive parties would be for the Master to ascertain the fair 
 market value of the lot and building, and also the value of 
 the lot as it stood at the time of the mortgage, clear of the 
 building, both valuations having relation as near as might be 
 to the time of sale. (24) 
 
 Where Mortgagor has Conveyed a Portion of Mortgaged 
 Lands. Where there is a paramount mortgage upon land, 
 part of which land is conveyed by the mortgagor, equity will 
 throw the burden of the mortgage upon the land that remains, 
 where the grantee has paid full value, or where the grantor 
 has covenanted against encumbrances ; but the rule' being 
 based upon intention, express or implied, will not obtain in 
 favor of a purchaser at a sheriff's foreclosure sale. (25) The 
 debt is due from the mortgagor to the encumbrancers, and 
 his portion of the mortgaged premises must primarily bear 
 the burden, unless it be shown that it has by some means been 
 shifted upon the portion of his alienees; this fact it is encum- 
 bent upon the mortgagor to establish. (26) So when a mort- 
 gagor, after giving the mortgage, sells to a third person a 
 part of the mortgaged premises, the part remaining in the 
 mortgagor should in a decree for sale be directed to be sold 
 first. (27) So where a mortgagor sold to a third person a 
 portion of the mortgaged premises, and on a bill for fore- 
 closure, a general decree was entered to sell so much of the 
 
 (23) Whittaker v. Belvidere Roller Mill Co., 55 N. J. Eq., 674; 
 Harron v. Du Bois, 64 N. J. Eq., 657. 
 
 (24) Whitehead v. First Methodist, &c., Church, 15 N. J. Eq., 135 ; 
 and see "Order of Sale of Several Parcels," supra. 
 
 (25) Shannon v. Marselis, i N. J. Eq., 413; Winters v. Henderson, 
 6 N. J. Eq., 31; Gaskill v. Sine, 13 N. J. Eq., 400; Weatherby v. Slack, 
 16 N. J. Eq., 491; Harrison v. Guerin, 27 N. J. Eq., 219; Sternberger v. 
 Sussraan, 69 N. J. Eq., 199. 
 
 (26) Winters v. Henderson, 6 N. J. Eq., 31. 
 
 (27) Winters v. Henderson, 6 N. J. Eq., 31 ; Weatherby v. Slack, 
 16 N. J. Eq., 491. 
 
600 Foreclosure of Mortgages. 
 
 premises as would be sufficient to pay the debt, it was held 
 that an injunction would lie to restrain the sheriff from sell- 
 ing the part already conveyed by the mortgagor until the 
 further order of the court; and it was subsequently directed 
 that the part remaining in the mortgagor should be sold first. 
 (28) 
 
 Where lands subject to a mortgage are ahenated in par- 
 cels, the parcels are chargeable for the satisfaction of the 
 mortgage in the inverse order of alienation. (29) So where 
 the mortgagor successively sells portions of mortgaged premi- 
 ses by general warranty deeds, upon a foreclosure of the 
 motrgage any of the mortgaged premises still owned by the 
 mortgagor will -be sold first, and if the mortgage debt still 
 remains unpaid, the parcels last sold by him will be sold next, 
 and so on in the inverse order of the deeds until the mortgage 
 debt is satisfied. (30) And where a first mortgage includes 
 two lots, and a second mortgage only the first lot, and the 
 mortgagor has sold and conveyed his equity of redemption 
 in the first lot, and that lot is sold on a bill filed by the first 
 mortgagee to foreclose his mortgage, the proceeds will be 
 applied first to satisfy a proportional part of the first mort- 
 gage due, then the second mortgage debt, and the subsequent 
 encumbrances in their order. (31) But the doctrine of mar- 
 shaling portions of lands in the discharge of a mortgage in 
 the inverse order of their alienation does not apply where 
 the alienations were not made by deeds of general warranty, 
 and were given for a nominal consideration, and there were 
 no circumstances from which an agreement could be implied 
 that the portions conveyed were to be free from the mort- 
 gage. (32) And so where a purchaser of a part of mort- 
 gaged premises assumed the payment of all of the mortgage 
 on the whole premises the land so purchased is liable for the 
 mortgage debt before the portion of the mortgaged premises 
 
 (28) Winters v. Henderson, 6 N. J. Eq., 31. 
 
 (29) Shannon v. Marselis, i N. J. Eq., 413 ; Brittan v. Updike, 3 
 N. J. Eq., I2S ; Wikoff v. Davis, 4 N. J. Eq., 224 ; Keene v. Munn. 16 
 N. J. Eq., 398; Mount v. Potts, 23 N. J. Eq., 188. 
 
 (30) Thompson v. Bird, 57 N. J. Eq., 175. 
 
 (31) Mickle V. Rambo, I N. J. Eq., 501. 
 
 (32) Jackson v. Condict, 57 N. J. Eq., 522. 
 
Decree. 601 
 
 remaining unconveyed by the mortgagor or his estate can be 
 ■sold in satisfaction of the mortgage debt. (32a) 
 
 Directions as to Time of Sale. Under extraordinary cir- 
 cumstances, showing irreparable loss to the mortgagee if the 
 sheriff should adjourn the foreclosure sale, the Chancellor 
 may order him not to adjourn it, but to sell the property on 
 the first day. (33) And where defendant attempts to delay 
 a sale of mortgaged premises, and such delay will injure com- 
 plainant in disposing of them, the court will direct the sheriff 
 to sell at the next day of sale; for the court's authority is 
 superior to the power vested in the sheriff by statute, author- 
 izing him to exercise his discretion as to selling property on 
 the first day advertised for sale. (34) If it is shown to the 
 satisfaction of the court that the mortgaged property is liable 
 to deteriorate if not sold promptly the court may at any time 
 order the immediate sale of the property. (34a) 
 
 Amount of Decree. The decree directing a sale of the 
 premises should fix the exact amount due on the mortgage. 
 A decree which simply orders the payment of the sum due 
 on the rriortgage debt, without finding the amount, is errone- 
 ous ; and where several mortgages upon separate parcels of 
 land are foreclosed together, the decree must find the amount 
 due upon each, and not the aggregate amount secured on 
 all. (35) The amount fixed by the decree cannot exceed the 
 amount actually due on the mortgage ; so a complainant, who 
 holds a bond and mortgage given to him by the mortgagor as 
 collateral security merely for a debt alleged to be due to him 
 from the latter, should in proceedings for the foreclosure of 
 the mortgage prove his debt, and if it be less than the amount 
 due on the mortgage, take a final decree for the amount- of 
 his debt and interest only. (36) So complainant cannot recover 
 the amount of a previous mortgage which he had agreed to 
 pay as part of the consideration, if he has not paid it.(37) 
 
 (32a) Chancellor v. Towell, 82 Atl., 861. 
 
 (33) Bailey v. Ellis, cited in Annin v. Jones, 2 N. J. L. J.. 6. 
 
 (34) Annin v. Jones, 2 N. J. L. J., 6. 
 
 (34a) Chancery Act, section 62, page 56, supra. 
 
 (35) Jones on Mortgages, sec. 1590. 
 
 (36) Van Deventer v. Stiger, 25 N. J. Eq., 224. 
 
 (37) Manhattan &c., Savings &c., A^s'n. v. Massarelli, 42 Atl., 284. 
 
602 Foreclosure of Mortgages. 
 
 Where in a suit for the foreclosure of a mortgage, defend- 
 ant answered that the bond and mortgage in question were 
 given as collateral security for certain judgments which had 
 been recovered against' the mortgagor by other persons and 
 assigned to the mortgagee, and that the judgments had since 
 been satisfied by sales of other property of the mortgagor 
 on execution, and proofs were taken by defendants in sup- 
 port of their defense, and complainant then introduced evi- 
 dence of payments made by him for the mortgagor since the 
 date of the bond and mortgage, and other judgments against 
 the mortgagor since assigned to the mortgagee; it was held 
 that under the pleadings a decree for a sale to raise these 
 latter sums could not be made. ^38) 
 
 In making up the foreclosure decree, proper deductions 
 should be made for partial payments made by the mortgagor, 
 besides giving him credit for anything transferred and accepted 
 in part satisfaction of the mortgage. (39) So where a mort- 
 gage was given to secure two promissory notes, and as a part 
 of one of the notes was paid, and the remainder consolidated 
 with the amount due on the other and a new note given there- 
 for, and to enable the mortgagor to make paygient on account 
 of the notes, and to that end to use money which he needed 
 to buy goods for his store, the mortgagee sold him the goods 
 on credit and took his note therefor^ it was held that the mort- 
 gagee could not as against the mortgagor or a judgment credi- 
 tor include and recover the last note on foreclosure. (40) 
 
 Upon a bill in equity for the recovery of a bond debt, either 
 upon the bond itself or upon a mortgage to secure the bond, 
 the obligee may recover the full amount of principal and inter- 
 est due upon the bond, though it exceed the amount of the 
 penalty. (41) Premiums paid by a mortgagee for insurance 
 against fire are a charge upon the premises if expressly made 
 such by the terms of the mortgage, and if paid by the mort- 
 gagee pursuant to its provisions. (42) 
 
 (38) Hopper V. Sisoo, 5 N. J. Eq., 343; but see Van Riper v. 
 Claxton, 9 N. J. Eq., 302. 
 
 (39) Conover v. Conover, 31 N. J. Eq., 539; Woodruff v. Depu'e, 14 
 N. J. Eq., 168. 
 
 (40) Jones V. Brogan, 29 N. J. Eq., 139. 
 
 (41) Long V. Long, 16 N. J. Eq., 59; Hutchinson v. Swartsweller, 
 31 N. J. Eq., 20s. 
 
 (42) Neal V. Albertson, 39 "N. J. Eq., 382. 
 
Sale of Mortgaged Premises. 603 
 
 A mortgagee, prior to sale, may pay the taxes which the 
 owner of the equity of redemption was primarily liable to 
 pay, and thereby acquired by a species of subrogation a lien 
 for the amount so paid, which, in respect of priority, occu- 
 pies the same position as the tax lien. (43) If a mortgagee 
 does not pay taxes before sale, he may redeem under the 
 Martin Act after sale. (44) And where the mortgagee, with- 
 out authority, purchases the property at a tax sale, he occu- 
 pies the same position as if he had paid the taxes before sale 
 and is, therefore, only entitled to subrogation to the tax 
 lien. (45) 
 
 Filing Decree. No order in the proceedings for foreclos- 
 ure and sale under mortgages shall be filed by the clerk until 
 it is actually signed, and none shall be filed nunc pro tunc 
 unless specially directed by the court; and all proceedings 
 under an order not actually signed shall be null and void. (46) 
 
 Opening and Vacating Decree. This subject is consid- 
 ered in a former chapter. (47) 
 
 SALE OF MORTGAGED PREMISES. 
 
 Notices of Sale; Publication. In all cases- whatsoever 
 where any sheriff, coroner, master in chancery, executor, 
 administrator, guardian, commissioners, auditors, or other 
 officers or person, is now or hereafter shall be authorized or 
 required by any public statute, or the direction of any court 
 of competent jurisdiction in this state, to make sale of any' 
 lands, tenements, 'or hereditaments or real estate, such officer 
 or officers, person or persons, unless specially directed by law, 
 shall give notice by public advertisement signed by himself, 
 herself or themselves, and set up at five or more public places 
 in the country, one whereof shall be in the township, ward or 
 city where such real estate is situate, of the time and place of 
 such sale at least three weeks next before the time so appointed, 
 and shall also cause the same to be published four times in 
 
 (43) Farmer v. Ward, 75 N. J. Eq., 33. 
 
 (44) Farmer v. Ward, 75 N. J. Eq., 33. 
 
 (45) Farmer v. Ward, 75 N. J. Eq., 33. 
 
 (46) Qiancery Rule 41. 
 
 (47) See "Opening and Vacating Decrease," page 436, supra. 
 
604 Foreclosure of Mortgages. 
 
 two newspapers to be designated by such officer or officers, 
 person or persons, printed and published in the county in 
 which the lands are situate, of which one shall be either a 
 newspaper printed and published at the county seat of said 
 county, or a newspaper printed and published in the munici- 
 pahty in said county having the largest population by the last 
 preceding federal or state census, at least once a week during 
 four consecutive calendar weeks the last publication to be not 
 more than seven days prior to the time appointed for selling 
 the same ; and at the time and place so appointed, between the 
 hours oif twelve and five in the afternoon, such officer or 
 officers, person or persons, shall sell the same at public vendue 
 to the highest bidder. (i) 
 
 The time of sale mentioned in the above act is referable to 
 a day, that is, the day of sale. Therefore it is as though the 
 act read "The last publication (of the notice of sale) to be 
 not more than seven days from the time appointed for selling." 
 The last advertisement must be made in two newspapers pub- 
 lished and circulated not later than the calendar day next pre- 
 ceding the time (day) appointed for selling the same; and a 
 sale made on the day of the last publication of the notice is 
 invalid and will be set aside if that publication has to be 
 relied upon as one of the advertisements required by law. (la) 
 
 Under a statute requiring notice of sales of land by virtue of 
 any judicial proceeding to be for four weeks next preceding 
 the day appointed for the sale, there must be four whole weeks 
 between the first insertion of the advertisement in the news- 
 paper and the day fixed for the sale. (2) And where a statute 
 requires that the notice of sale shall be published at least 
 four weeks successively, once a week, next preceding the time 
 appointed for the sale, and a notice of sale was published for 
 four full weeks, but the time appointed for such sale was 
 the tenth day of February, and the last publication was 
 the second day of February, it was that the failure to 
 publish for ' a period of eight days immediately preceding 
 the time appointed for the sale showed an inexcusable non- 
 
 (i) P. L. 1912, p. 131 amending 1877, p. 1040, as amended P. L. 
 1887, p. 28, and P. L. 1898, p. 535, 4 Comp. Stat., p. 4667, sec. i. 
 
 (la) Trenton Trust &c., Co. v. Fitzgibbon &c., Co., 84 Atl., 1042. 
 (2) Parsons v. Lanning, 27 N. J. Eq., 70; Barkley v. Elizabeth, 41 
 N. J. L., S17. 
 
Sale of Mortgaged Premises. 605 
 
 compliance with the statute, in that for more than a 
 week next preceding the time appointed for the sale notice 
 of it was not published, '^he purpose of the require- 
 ment that the publication should fit closely upon the sale is 
 obviously to keep freshly in the pubhc mind the pendency of 
 the sale ; and the mischief of the omission to publish within 
 the last week may be two-fold, in permitting the sale to be 
 lost sight of, and possibly in impressing the intending pur- 
 chasers with the belief that the sale has been abandoned. (3) 
 
 Publication in German Paper. Hereafter one of the news- 
 papers required to be designated by the act to which this is 
 a supplement, for the publication of advertisements of sales 
 and of adjournments thereof, may be printed and published 
 in the German- language ; or the officer having charge of any 
 sale of real estate, may, in addition to the publication required 
 by the act to which this is a further supplement, select a 
 newspaper printed in the German language, circulating in the 
 neighborhood of the property to be sold, whenever the sale, 
 in his opinion, will be promoted by the publication of the 
 advertisement thereof in said newspaper. (4) Notice of a 
 judicial sale published in a German newspaper must be in 
 the English language. (5) 
 
 Form and Contents of Notice. Where the Sheriff, in ad- 
 vertising a sale under foreclosure, duly stated the title of 
 the suit, and fully and particularly described the property, 
 but recited a person as owner of the property, who was in 
 fact only a lessee, it was held that this misstatement did not 
 vitiate the advertisement. (6) An advertisement by a Master 
 of the sale of real estate under a H. fa. issued on a foreclosure 
 decree need not be signed by him in his own proper hand ; the 
 signature may be printed or written by another at the foot 
 of the advertisement. (7) Where a sale is advertised for a 
 specified day between the hours of 12 and 5 o'clock in the 
 afternoon, and the property is sold in pursuance of such 
 advertisement, the sale will not be set aside, although there 
 
 (3) Tappan v. Dayton, 51 N. J. Eq., 260. 
 
 (4) Rev. 1877, p. 1049, 4 Comp. Stat. p. 4672, sec. 2a. 
 
 (5) Tappan v. Diayton, 51 N. J. Eq., 260. 
 
 (6) Bowlby V. Lott, 30 N. J. Eq., i. 
 
 (7) Coxa V. Halsted, 2 N. J. Eq., 311. 
 
606 Foreclosure of Mortgages. 
 
 is propriety and convenience in specifying a particular hour 
 between 12 and 5 .o'clock for the sale. (8) 
 
 If the advertisement of the Sheriff sufficiently identifies the 
 property to be sold, it is in compliance with the law, and he 
 need not describe the number of buildings or their charac- 
 ter. (9) The notices and advertisements of sale should state 
 any substantial defect in or cloud upon the title of the premi- 
 ses to be sold, and also the existence of any lien or encum- 
 brance thereon, with the approximate amount of such lien or 
 encumbrance. (10) 
 
 Adjournments. - The statute provides that the officers 
 charged with the duty of selling lands shall be vested with 
 power to adjourn such sale from time to time.(ii) An 
 adjournment is discretionary with the officer conducting the 
 sale. (12) So where an officer conducting a public sale pur- 
 suant to an order of the court, in an intelligent and bona fide 
 exercise of his discretion refuses an adjournment, his action 
 .will not constitute a reason why the sale should not be con- 
 firmed. (13) 
 
 It is the duty of the Sheriff, notwithstanding the protest of 
 the complainant, to adjourn the sale, if he sees that the prop- 
 erty is about to be sacrificed, and this right and duty on his 
 part is not affected by the fact that an increase in the price 
 will increase his fees. (14) But where a Sheriff, having duly 
 advertised a sale of real estate under execution, struck off 
 the property to the highest bidder at the time and place so 
 advertised, and then the purchaser, the parties concerned in 
 the execution and the Sheriff went away, and the persons 
 assembled at the sale dispersed, and about an hour after- 
 wards, the purchaser having refused to comply with the con- 
 ditions of sale, the Sheriff, under instructions from complain- 
 ant's solicitor, returned to the place of sale, and shortly before 
 the expiration of the advertised hours of sale publicly 
 
 (8) Coxe V. Halsted, 2 N. J. Eq., 311. 
 
 (9) Allen V. Cole, 9 N. J. Eq., 286. 
 
 (10) P. L. 1906 p. 269. 4 Comp. Stat. p. 4686; sec. 35; and see 
 "Grounds for vacating sale," page 619, infra. 
 
 (11) Rev. 1877, p. 1049, 4 Comp. Stat. p. 4673, sec. 3. 
 
 (12) Skillman v, Holconib, 12 N. J. Eq., 131-132. 
 
 (13) Bethlehem Iron Co. v. Philadelphia &c., R. R. Co., 49 N. J. 
 Eq., 356. 
 
 (14) Birbeck Investment &c., Co. v. Gardner, 55 N. J. Eq., 632. 
 
Sale of Mortgaged Premises. 607 
 
 announced that the sale was adjourned for two weeks, it 
 was held that a legal adjournment was not thereby efifected. 
 
 (15) .... 
 
 The act of a Sheriff in adjourning a sale under foreclos- 
 ure proceedings is not a judicial act, nor in any way f6rbid- 
 den by the act in relation to legal holidays. (i6) So when 
 the day fixed for the sale of mortgaged premises was not 
 a legal holiday when the date of sale was so fixed, and such 
 day is afterwards appointed a legal holiday, the Sheriff should 
 adjourn the sale; in such case the advertisement is not ren- 
 dered invalid. (17) 
 
 If any sale of lands be adjourned for more than one week, 
 notice of such adjournment, which need only consist of a 
 statement of the parties to the cause and the time and place 
 of such adjournment, shall be published once within one week 
 after the date of such adjournment in the same two news- 
 papers in which the original notice of sale was published, for 
 the publication of which notice of adjournment not more than 
 five dollars shall be allowed in any case as against the defend- 
 ant in execution, and in publishing any adjournment it shall 
 not be necessary to continue the publication of the original 
 advertisement of sale. (18) In advertising an adjournment 
 of a Sheriff's sale, it is not necessary to describe the lands to 
 be sold. (19) Where a sale by a Sheriff or Master is adjourned 
 for a period not exceeding one week, no publication of the 
 adjournment is necessary; a formal adjournment from week 
 to week is sufficient. (20) 
 
 Who May Sell. The statute provides that the sale of 
 mortgaged lands shall be made either by one of the Masters 
 of the Court of Chancery, or by the Sheriff of the county 
 where the premises are situated, by virtue of a writ of fieri 
 facias issued for that purpose. (21) The appointment of a 
 special deputy by a Sheriff must be in writing; and although 
 
 (is) Weatherby v. Slape, 58 N. J. Eq., 550. 
 
 (16) 3 Comp. Stat., p. 3091, Sec. s; White v. Zust, 28 N. J. Eq., 107. 
 
 (17) White V. Zust, 28 N. J. Eq., 107. 
 
 (18) P. L. 1906, p. 130. 4 Comp. Stat., p. 4674, Sec. 6. 
 
 (19) Avon-by-the-Sea Land &c. Co. v. Finn, 56 N. I. Eq., 808. 
 
 (20) Coxe V. Halsted, 2 N. J. Eq., 311; Allen v. Cole, 9 N. J. Eq., 
 286; Hewett V. Montclair R. R. Co., 25 N. J. Eq., 395; Weatherby v. 
 Slape, s8 N. J. Eq., 550. 
 
 (21) Qiancery Act, Sec. 53, see page 50, supra. 
 
608 Foreclosure of Mortgages. 
 
 a deed made by a Sheriff of lands sold on foreclosure by a 
 deputy appointed by the Sheriff'^ro Imc vice by parol may be 
 sustained in a collateral proceeding, it will be set aside on a 
 direct application to the Chancellor made in the course of 
 the same proceeding. (22) A Sheriff who has begun to exe- 
 cute a writ for the sale of mortgaged property is authorized 
 to complete the execution of it, notwithstanding the expira- 
 tion of his term of office pending the proceedings. (23) 
 
 Sale of Property Pending Foreclosure Proceedings. This 
 question is considered in a note to section sixty-two of the 
 Chancery Act. (23a) 
 
 CONDUCT OF SALE. 
 
 In General. The law confers upon the officer who is 
 charged with thfi duty of making a sale large discretionary 
 power; and until it is clearly shown that he has abused his 
 discretion, or fraudulently exercised his powers, the court 
 will assume that he has acted fairly and discreetly. (24) But 
 the discretion vested by law in the Sheriff is a legal discre- 
 tion, and the court will, not permit such an exercise of it as 
 shall work injustice and wrong. (25) A mere error of judg- 
 ment or mistake in exercise of discretion by the Sheriff, in 
 the absence of fraud or unfairness in the sale, affords no 
 ground for the interference of the court. (26) 
 
 An officer charged with the conduct of a judicial sale has 
 a considerable latitude of discretion in prescribing such terms 
 of sale as will exclude puffers and fraudulent bidders, and 
 will secure the confidence of real purchasers in offering their 
 bids. (27) He may adopt conditions of sale amply sufficient 
 to secure compliance by purchasers with their bids; but he 
 cannot impose any liability upon purchasers with respect to 
 the property sold which would not result by law from the 
 
 (22) Meyer v. Paterson, 28 N. J. Eq., 239. 
 
 (23) Ayres v. Casey, 72 N. J. L., 223. 
 
 (23a) See Chancery Act, Sec. 62, page $6, supra. 
 
 (24) Holmes v. Steele, 28 N. J. Eq., 173. 
 
 (25) Seaman v. Riggins, 2 N. J. Eq., 214. 
 
 (26) Vanduyne v. Vanduyne 16 N. J. Eq., 93. 
 
 (27) National Bank, &c. v. Sprague, 20 N. J. Eq., 159. 
 
Sale of Mortgaged Premises. 609 
 
 purchase. (28) And a sale by an officer will not be set aside, 
 because the terms of sale were unusually strict or severe, if 
 the circumstances of the case call for rigid measures and no 
 design is manifested to oppress or injure the defendants. (29) 
 It is the custom where a bid is fairly claimed by two or more 
 persons to put the property up again at the price bid as of' the 
 bid of the p>erson whom the Sheriff may declare entitled to 
 it. (29a) There should be inserted in the conditions of sale 
 notice of any substantial defect in or cloud upon the title of 
 the premises to be sold and also the existence of any lien or 
 encumbrance thereon, -with the approximate amount there- 
 of. (30) 
 
 Scd.e in Parcels or in Gross. It is a matter in the discre- 
 tion of the officer executing the writ to sell the premises 
 altogether or in parcels, except in cases where the decree 
 directs the manner of sale, in which case the Sheriff has no 
 discretion in the matter. (31) And where a writ of execu- 
 tion commands the Sheriff to sell so much of the mortgaged 
 premises as should be required to satisfy the decree, this 
 language imposes no different duty upon the Sheriff as to 
 the quantity of the premises to be sold than if it had simply 
 commanded him to raise the money required by a sale of the 
 mortgaged premises. (32) The discretion of the Sheriff will 
 be interfered with only when it is abused by him. It is dis- 
 cretion which the court will control, but the court will not 
 weigh evidence to ascertain whether the Sheriff has sold in 
 the most judicious manner. If, however, the manner of sale 
 is so palpably injudicious as to amount to a breach of trust 
 on the part of the officer, it is a fraud upon the rights of 
 parties interested, and the court will interfere. (33) 
 
 (28) Hackensack Water Co. v. DeKay, 36 N. J. Eq., 548. 
 
 (29) Coxe V. Halsted, 2 N. J. Eq., 311, and see "Grounds for 
 vacating sale," page 619, infra. 
 
 (29a) Conover v. Walling, 15 N. J. Eq., 173. 
 
 (30) P. L. 1906, p. 269; 4 Comp. Stat. p. 4686, sec. 35, and see 
 "Grounds for vacating sale," page 619, infra. 
 
 (31) Parkhurst v. Corey, 11 N. J. Eq., 233; and see Chancery Act 
 Sec. 56, page 51, supra. 
 
 (32) Parkhurst v. Corey, 11 N. J. Eq., 233; Vanduyne v. Vanduyne, 
 16 N. J. Eq., 93. 
 
 (33) Parkhurst v. Corey, 11 N. J. Eq., 233; McFadden v. Mays 
 Landing &c., R. R. Co., 49 N. J. Eq., 176. 
 
610 Foreclosure of Mortgages. 
 
 On a Sheriff's sale of land constituting several parcels, the 
 general rule is, if the land is plainly divisible, that it should 
 be sold in separate parcels, so as to secure the highest price. 
 (34) So where a tract of land is divided into distinct par- 
 cels, it must be sold in that way. (35) But where a defendant 
 stands by and permits a Sheriff to sell several separate lots 
 of land as one tract, without objection, he cannot afterwards 
 object because they were not sold in parcels. (36) 
 
 Who May Purchase. A person who occupies a position 
 of trust and confidence toward the mortgagor, or such rela- 
 tion as would make it inequitable for him to acquire for 
 himself the title to the mortgaged premises, may not become 
 the purchaser at a foreclosure sale. So where the purchaser 
 at a foreclosure sale was at the time thereof the complain- 
 ant's confidential adviser in regard to the business and suit, 
 it was held that he was disqualified by such fiduciary relation 
 from becoming a purchaser for himself, and must account as 
 trustee. (37) But where an executor is obliged to foreclose 
 a mortgage to raise the mortgage money, and the property is 
 about to be struck off at a sacrifice for a sum less than the 
 amount of the decree, such executor is justified in purchasing 
 the property for the benefit of the estate. (38) 
 
 Freedom of Competition as to Bidding. Any contract or 
 
 arrangement which is designed or tends to prevent fair and 
 free competition among the bidders at a mortgage foreclosure 
 sale will invalidate the sale. So the employment of puffers 
 by an owner of property offered for sale at auction, or in the 
 case- of a judicial sale by creditors in whose behalf property 
 is offered, for the purpose of increasing the price by fictitious 
 bids, is a fraud upon honest bidders, and a buyer at such sale 
 may be relieved from his purchase. (39) It seems, however, 
 that the mere fact that a puffer has bid at the sale will not 
 
 (34) Corles V. Lashley, 15 N. J. Eq., 116. 
 
 (.3S) Coxe V. Halsted, 2 N. J. Eq., 311; Ryerson v. Boorman, 7 
 N. J. Eq., 167; S. C. ib. 640; Schilling v. Lintner, 43 N. J. Eq., 444; 
 Lundy v. Seymour, 55 N. J. Eq., 1-6. 
 
 (36) Holmes v. Steele, 28 N. J. EJq., 173, and see "Order of Sale of 
 Several Parcels," page 598, supra. 
 
 (37) Wakemati v. Dodd, 27 N. J. Eq., 564. 
 
 (38) Holcomb V. Holcomb, 11 N., J. Eq., 281; Marshall v. Carson, 
 38 N. J. Eq., 250; Bechtold v. Read, 49 N. J. Eq., III. 
 
 (39) National Bank &c. v. Sprague, 20 N. J. Eq., 159. 
 
Sale of Mortgaged Premises. 611 
 
 void the sale, if after the bid of the pufifer there is a bid by a 
 real purchaser before the bid at which the property is knocked 
 down; but that in all cases where the bid next preceding is 
 that of a puffer, the sale is voidable by the purchaser. (40) 
 
 It is illegal for persons intending to purchase at auction to 
 combine not to bid against each other ; but the rule is con- 
 fined to cases where there is an agreement not to bid, and is 
 not extended to cases where several persons join to make 
 a purchase for their common benefit without an agreement 
 not to compete, or to a case where several creditors, no one of 
 whom would be willing to purchase a property of very large 
 value, unite to purchase. (41) And it is not unlawful for 
 persons who wish to make a joint purchase of property about 
 to be offered at auction to agree together that they will 
 authorize one person to bid for it upon their joint account. 
 (42) The fact that such an agreement to make a joint pur- 
 chase might indirectly operate to prevent the parties from com- 
 peting is not enough to render the transaction unlawful ; to 
 have that effect, it must appear that the object of making the 
 agreement was to avoid competition. (43) 
 
 A person claiming to have an interest in land being sold at 
 a judicial sale, whether such person be a judgment creditor or 
 otherwise, may at such sale state facts as to the property about 
 to be sold, when such facts relate to the title, possession, or 
 the alleged right of possession thereof (44) : but it is inequita- 
 ble for a judgment creditor, or other party in interest in the 
 land sold, to not only state facts, but to express an opinion 
 as to the title which injures and prejudices the sale of the 
 interest which the debtor has or which will pass under the 
 conveyance by the Sheriff or other officer. (45) 
 
 Enforcement of Sale Against Purchaser. In sales under 
 foreclosure proceedings, the court is really the vendor ; the 
 pledge. is sold by its authority, and under its process, and 
 though the contract is in form with its officer, he acts merely 
 
 (40) National Bank &c. v. Sprague, 20 N. J. Eq., 159. 
 
 (41) National Bank &c. v Sprague, 20 N. J. Eq., 159. 
 
 (42) National Bank &c. v. Sprague, 20 N. J. Eq., 159. 
 
 (43) National Bank &c. v. Sprague, 20 N. J. Eq., 159. 
 
 (44) Brady v. Carteret Realty Co., 67 N. J. Eq., 641. 
 
 (45) B'rady v. Carteret Realty Co., 67 N. J. Eq., 641, and see 
 "Circumstances discouraging competition," page 627, infi-a. 
 
612 Foreclosure of Mortgages. 
 
 as the agent of the court. For this reason the court exercises 
 a more Hberal supervision over such contracts than over those 
 of any other class. (46) So purchasers at sales under decrees 
 of the Court of Chancery, if not already parties to the suit, 
 are regarded to a certain extent as parties to it so as to be 
 under the control of the court on the one hand, and under 
 its protection on the other ; and such a purchaser may, there- 
 fore, be compelled in a summary way to complete, his pur- 
 chase by an order upon him, in the foreclosure suit, to pay 
 the money or to bring it into court. (47) 
 
 Forfeiture of Deposit. If the purchaser, without good 
 cause, does not complete the purchase, he forfeits the deposit 
 made at the time of the sale so far as may be needed to make 
 up any deficiency in price on a resale. So where at a foreclos- 
 ure sale the written conditions signed by the purchaser pro- 
 vided that he should pay 20% of the purchase money at the 
 close of the sale and sign an acknowledgment of purchase 
 in accordance with such conditions, and in case of his failure 
 to comply with the conditions the property should be re-sold, 
 he to reap no benefit therefrom, but to be held answerable 
 for loss and expense occasioned thereby, the purchaser hav- 
 ing failed to comply with the conditions and complete the pur- 
 chase, and the Sheriff having re-sold at a loss, it was held 
 that the deposit of the first purchaser should be retained and 
 applied to the loss. (48) So where a party has become the 
 purchaser at a Sheriff's sale at the request of the mortgagor, 
 and has paid money on the purchase, he cannot as against the 
 mortgagee, whose claim would be unsatisfied if the money 
 so paid were restored to him, have such money repaid on 
 the ground that the mortgagor misrepresented the amount he 
 would be compelled to pay. (49) 
 
 Where, on the other hand, by the terms of a foreclosure sale 
 the purchaser was required to pay 10% of the purchase money 
 at the close of the sale, and if he should not complete his pur- 
 chase, the premises would be offered for sale again, and a 
 purchaser of the premises for $9,900.00 paid the 10%, but did 
 
 (46) Snyder v. Blair, 33 N. J. Eq., 208. 
 
 (47) Silver v. Campbell, 25 N. J. Eq., 465 ; Booreum v. Tucker, 51 
 N. J. Eq., 13s; afdrmed, 52 N. J. Eq., 587; McCarter v. Finth,. 
 55 N. J. Eq., 245. 
 
 (48) Smith V. Cunningham, 69 N. J. Eq., 622. 
 
 (49) Shann v. Jones, 19 N. J. Eq., 251. 
 
Sale of Mortgaged Premises. 613 
 
 not pay the balance of the purchase money, and the premises 
 bid by him were re-sold by the Sheriff and brought $10,500.00, 
 it was held that he was entitled to recover the 10% deposi- 
 ted by him. (50) And where a mortgagor purchased the 
 mortgaged premises at a foreclosure sale, and deposited with 
 the Sheriff 10% of the amount of his bid, and upon his failure 
 to complete the purchase, complainant's solicitor procured an 
 order directing the Sheriff to retain the deposit to meet any 
 deficiency on a re-sale, and subsequently the mortgagor, at the 
 request of complainant's solicitor, gave him an order upon the 
 Sheriff for the money, which the Sheriff refused to pay 
 because of the outstanding order to retain it, it was held that 
 it was the duty of the complainant's solicitor to secure a 
 revocation of the order, and that the mortgagor was entitled 
 to a credit upon the decree as of the date of his order to the 
 Sheriff. (5 1) 
 
 Contempt Proceedings. The ordinary method of com- 
 pelling a purchaser at a sale under an order of court, who has 
 signed an acknowledgment of the purchase, to complete it, is 
 by petition and order to show cause why an attachment 
 should not issue against him as for a contempt. (52) The 
 court, however, deals with the question of enforcing a con- 
 tract of sale with one of its officers upon equitable principles. 
 (53) So where a second mortgage was foreclosed without 
 making a prior mortgagee a party, and the value of the equity 
 of redemption was merely nominal, and a purchaser bid 
 $1,150.00 for it, signed the conditions, and paid the deposit 
 money, in ignorance of the prior mortgage, which was 
 recorded, upon petition of the complainant asking that the 
 sale be enforced, it was held that though the purchaser was 
 negligent and there was no fraud or misrepresentation, a 
 court of equity ought not to enforce the bid on account of the 
 gross inadequacy of the value of the estate compared with the 
 
 (so) Chancellor v. Gummere, 39 N. J. Eq., 582; affirmed, 40 N. J. 
 Eq., 279. 
 
 (si) Winants v. Traphagen, 66 N. J. Eq., 4S5. 
 
 (52) Bowne v. Ritter, 26 N. J. Eq., 4s6; Snyder v. Blair, 33 N. J. 
 Eq., 208 ; McCarter v. Finch, SS N. J. Eq., 24s ; for practice in con- 
 tempt proceedings see "Contempts," page 4S2, supra. 
 
 (53) Boorum v. Tucker, si N. J. Eq., 13s; affirmed, 52 N. J. Eq., 
 587. • 
 
614 Foreclosure of Mortgages. 
 
 bid. (54) And so although a bidder at a Sheriff's, sale under 
 a foreclosure may by his own willfulness have put himself 
 in a position where the court would not on his appHcation 
 relieve him from the consequence of his bid, yet it will refuse 
 to compel the specific performance of such a bid where its 
 enforcement would be unjust to the bidder and unconscion- 
 ably advantageous to the mortgagee. (55) 
 
 Action Against Purchaser. A Sheriff who has sold lands 
 under a H. fa. out of Chancery, in a foreclosure suit, may 
 bring an action in his own name against a purchaser who 
 refuses to comply with the conditions of sale. (56) And 
 where, the conditions of sale are, that if the purchaser refuses 
 to comply the property will be re-sold and the purchaser held 
 liable for all losses and expenses, and on the refusal of tlie 
 purchaser to comply the property has been re-sold on the 
 same conditions of sale, and a less sum realized, in an action 
 against the former purchaser, the measure of damages is the 
 difference between the defendant's bid and the sum realized 
 at the second sale, together with the costs and expenses of the 
 re-sale. (57) 
 
 Bill for Specific Performance. The parties in interest 
 may, if they see fit, file a bill for specific performance ; and 
 sometimes the court will itself, in a case of doubt, and where 
 the ends of justice will be served by it, give that shape to the 
 litigation. (58) Such a bill filed without direction of the 
 court is not liable to demurrer by the purchaser, on the 
 ground that there is a more summary method of compelling 
 him to abide by his contract (59) ; but specific performance 
 of a contract of sale made by a Sheriff under a decree for 
 the foreclosure of a mortgage will not be enforced against the 
 purchaser, where subsequent to the sale it was first discovered 
 that the wife of the mortgagor had not executed the mort- 
 gage so as to release her right of dower, although the sale 
 
 (54) State Mutual Building & Loan Ass'n v. O'Callahan, 65 N. J. 
 Eq., 738. 
 
 (55) Sullivan v. Jennings, 44 N. J. Eq., 11. 
 
 (56) Townsend v. Simon, 38 N. J. L., 239. 
 
 {Z7) Townsend v. Simon, 38 N. J. L., 239; Smith v. Cunningham, 
 69 N. J. Eq., 622. 
 
 (58) Bowne v. Ritter, 26 N. J. Eq., 456. 
 
 (59) Bowne v. Ritter, 26 N. J. Eq., 456. 
 
Sale of M6rtg/\.ged Premises. 615 
 
 was made subject to all encumbrances. (60) The officer 
 making a judicial sale, representing all the parties in interest, 
 is the only necessary party complainant' to a bill to enforce 
 performance of an agreement to purchase at such sale. (61) 
 
 Report and Confirmation of Sale. Whenever the Sheriff 
 or other officer shall by virtue of any decree or order of the 
 court, sell any lands or any interest therein, he shall within 
 five days thereafter report such sale to the court making such 
 decree or order of sale, and the court shall, if it approve the 
 sale, confirm the same as valid and effectual in law, and shall 
 by rule of court, allowed in open court or at chambers, direct 
 said Sheriff or other officer to execute good and sufficient 
 conveyance in law to the purchaser or purchasers for the 
 lands or interest therein so sold ; provided, no such sale shall 
 be confirmed until the court is satisfied by evidence that the 
 lands or interest therein have been sold at the highest and 
 best price the same would then bring, and such evidence may 
 be in the form of affidavits ; provided further, such sale and 
 the confirmation thereof, shall be subject to such rules and 
 orders in respect thereto as the court may from time to time 
 make. (62) 
 
 The Sheriff or other officer by whom mortgaged premises 
 shall be sold on proceedings for foreclosure, begun after 
 March 12th, 1880, shall, within five days after the sale, report 
 it to this court in writing, stating the name of the purchaser 
 and the price obtained ; and he shall accompany the report 
 with his affidavit that the price was the best that the property 
 would, at the time of the sale, bring in cash, and unless 
 written objection to the confirmation of the sale be filed 
 within five days from the expiration of the time limited for 
 filing the report, if the report be duly filed within the time 
 limited by law and this rule, and if the report be not so filed, 
 then within five days from the filing thereof, an order, which 
 shall be an order of course, confirming the sale as valid and 
 effectual in law, and directing the officer by whom the sa'e 
 was made to execute a good and sufficient conveyance in 
 law to the purchaser for the mortgaged premises, may be 
 entered after the expiration of the time limited for making 
 
 (60) Ely V. Perrin.e, 2 N. J. Eq., 396. 
 
 (61) Bowne v. Ritter, 26 N. J. Eq., 456. 
 
 (62) Chancery Act, Section 94, p. 77, supra; see also P. L. 1880, p. 
 256, 3 Comp. Stat., p. 3422, Sec. so. 
 
61G Foreclosure of. Mortgages. 
 
 objections. If objections shall be filed, the question whether 
 the property was sold for the best price that could be obtained 
 for it in cash shall be disposed of summarily by the court, 
 on affidavits or depositions. (63) 
 
 The foregoing act and rule apply to all foreclosure sales, 
 and not merely to those in which a personal decree for defici- 
 ency is sought. (64) 
 
 The object of this section of the Chancery Act which is in 
 substance the reinactment of the act of 1880 (64a), is 
 merely to prevent the sacrifice of property at a foreclosure 
 sale, so far as it may be done, by requiring proof to the satis- 
 faction of the court that at the sale the property brought 
 the best price then obtainable for it at a foreclosure sale for 
 cash. The legislature did not intend by the act to authorize 
 the court to protect' the property from sacrifice by setting 
 aside sales until an adequate price could be obtained for it. 
 (65) So where several lots ^nd improvements cost the 
 defendant over $18,000.00, and were sold for $8,500.00, and 
 several witnesses testified that in their judgment the prop- 
 erty was worth $9,500.00 at a forced sale for cash, and the 
 taxes and costs, which were admitted to be liens, were over 
 $1,000.00, it was held that the statute requiring the court 
 to be satisfied that the property had been sold at highest and 
 best price that it would bring in cash had been complied 
 with. (66) 
 
 The only office of a written objection to the confirmation 
 of a Sheriff's sale, in foreclosure, under the foregoing sec- 
 tion of the Chancery Act and Rule 205, is to urge the over- 
 throw of ' the sale on the sole ground that the property did 
 not bring the highest and best price obtainable, and an 
 attack on the sale on any other ground must be made the 
 basis of an independent action by bill or petition; so any 
 efifort by the fjurchaser to be relieved of his purchase must 
 
 (63) Chancery Rule 20S. 
 
 (64) Mutual Benefit Life Ins. Co. v. Gould, 34 N. J. Eq., 417; 
 Birbeck Investment &c., Co. v. Gardner, 55 N. J. Eq., 632. 
 
 (64a) P. L. 1880, p. 256; 3 Comp. Stat., p. 3422, Sec. 50. 
 
 (63) D. L. & W. R. R. Co. V. Scranton, 34 N. J. Eq., 429; Porch 
 V. Agnew, 66 N. J. Eq., 232; affirmed, 67 N. J. Eq., 727; and see 
 "Inadequacy of Price," page 629, infra, and "Circumstances Discour- 
 aging Competition," page 627, infra. 
 
 (66) Guarantee Trust &c., Co. v. Jenkins, 40 N. J. Eq., 451. 
 
Sale of Mortgaged Premises. 617 
 
 be by an independent proceeding, and may be by petition 
 filed iDefore the crate fixed for the confirmation of the sale. (67) 
 
 If a sale be refused for the confirmation on- the ground of 
 inadequacy of price alone, the applicants for a re-sale will 
 be required to give some security or assurance that at such 
 re-sale a higher purchase price will be bid for the property. (68) 
 
 All sales of land made by virtue of any ordei", judgment or 
 decree of any court of record of this state shall be con- 
 firmed by the court, notwithstanding any defect or irregu- 
 larity in the publication of the advertisement of such sale; 
 provided, that the officer making such sale shall certify, under 
 oath, that such sale was otherwise regular, and that the 
 property was sold for a fair price, in the judgment of such 
 officer; and provided further, that the court shall be satisfied 
 by affidavit that the defect or irregularity in the publication 
 was not injurious to the parties in interest. (69) 
 
 This act is not a mere validating act, applicable to past 
 sales only; but in providing that "all sales" made by order 
 of any court ".shall be confirmed" notwithstanding any irregu- 
 larity in the publication of the notice of sale, when the 
 officer making the sale certifies, under oath, that the' sale was 
 otherwise regular and for a fair price, it applies to future 
 sales. (70) Where it appears that the property was sold for 
 less than its fair value, it cannot be said that a defect in the 
 publication of the advertisement, consisting in failure to pub- 
 lish in two newspapers, as required by law, was not injuri- 
 ous to a second mortgagee. (71) The burden of proving that 
 the price was fair, where the advertisement is defective, is 
 on the officer or purchaser alleging it.'(72) 
 
 Where a Sheriff's sale is required to be confirmed by the 
 court, a purchaser cannot be required to accept the deed 
 until confirmation has been obtained. (73) 
 
 (67) Cropper v. Brown, 76 N. J. Eq., 406. 
 
 (68) Porch V. Agnew, 66 N. J. Eq., 232; affirmed, 67 N. J. Eq., 
 727; Strong V. Smith, 68 N. J. Eq., 650. 
 
 (69) P. L. 1891, page 24. 
 
 (70) Polhemus v. Priscilla, 54 At!., 141. 
 
 (71) Polhemus v. Princilla, 61 Atl., 263. 
 
 (72) Polhemus v. Princilla, 61 Atl., 263. 
 
 (73) Polhemus v. Priscilla, 54 Atl., 141 ; see also "Circumstances 
 Discouraging Competition," page 627, infra. 
 
618 Foreclosure of Mortgages. 
 
 OPENING OR SETTING ASIDE SALE. 
 
 Who May Object to Sale. No person can apply to open 
 a sale under a decree of foreclosure unless he is a party to 
 the suit or has some interest in the mortgaged premises, and 
 such interest must appear on the face of his petition. He 
 cannot set up at the hearing an interest in the premises other 
 than that which appears in the petition (74), but the court 
 will set aside a sale upon application in the suit in which 
 the sale was made, even when the purchaser was not a 
 party to the suit; by becoming a purchaser he subjects him- 
 self to the jurisdiction of the court. (75) And a purchaser 
 may apply to have the sale set aside and be relieved from 
 his purchase, by petition filed in the cause before the date 
 fixed for the confirmation of the sale. (76) 
 
 The owner of the equity of redemption in mortgaged 
 lands, who has assigned for the benefit of his creditors, 
 retains such an interest that he may apply to set aside a sale 
 of the lands under foreclosure, notwithstanding the assign- 
 ment. (77) And where an administrator, party to a foreclos- 
 ure suit for a sale of the land of his intestate, after request 
 by the creditors, refuses to apply to have the sale set aside, 
 a creditor on behalf of himself and other creditors may obtain 
 relief on petition. He may be permitted to intervene in the 
 name of the administrator on such terms, if any, as the 
 court may see fit to impose for the indemnity of the latter, 
 or, if occasion require, in his own name. (78) 
 
 A party who is guilty of laches is not entitled to have a 
 sale opened. (79) So a mortgagor neglecting to give notice, 
 at the sale under the foreclosure decree, of his appeal from 
 an order denying his application to correct the amount 
 adjudged by the decree to be due to the mortgagee, and fail- 
 ing to except to the confirmation of the sale, is, as against 
 
 (74) Day V. Lyon, 11 N. J. Eq., 331. 
 
 (75) National Bank &c. v. Sprague, 21 N. J. Eq., 458. 
 
 (76) Cropper v. Brown, 76 N. J. Eq., 406. 
 
 {yy) D. L. & W. R. R. Co. v. Scranton, 34 N. J. Eq,, 429. 
 
 (78) VanDyke v. VanDyke, 31 N. J. Eq., 176. 
 
 (79) Penn v. Craig, 2 N. J. Eq., 495 ; Rogers v. Rogers, S N. J. 
 Eq., 32-43; Hall v. Urquhart, 11 N. J. Eq., 318; Van Duyne v. Van 
 Duyne, 16 N. J. Eq., 93; Mutual Life Ins. Co. v. Goddard, 33 N. J. 
 Eq., 482 ; Campbell v. Gardner, 11 N. J. E^., 423. 
 
Setting Aside Sale. 619 
 
 the purchaser, estopped from claiming that the sale is invalid. 
 (80) And so while it is the duty of a Sheriff to sell property 
 plainly divisible into separate parcels, in parcels and not in 
 gross, yet where a sale has been made in violation of this 
 rule, if made with the approbation of the owner of the prop- 
 erty, and thirteen years have elapsed since the sale, and the 
 property has descended to the heirs of the purchaser, the 
 court will not for this cause alone disturb the title. (81) 
 
 Power and Authority of Court. The power of the court 
 to set aside a sale made under its authority is undoubted; 
 but its exercise, like all other judicial action, must always 
 rest upon some consideration of justice, such as fraud, acci- 
 dent, or mistake of fact, when the mistake is not the result 
 of the purchaser's own negligence. (82) So it is within sound 
 discretion to vacate a decree and open a sale where they have 
 been rendered and ordered unjustly as towards some right 
 which has not been heard and protected, and the party apply- 
 ing is not chargeable with laches. Failure to record a deed 
 is not necessarily such laches (83), and a sale may be opened 
 upon a proper case made by petition, after the delivery of the 
 deed (84) ; but the power of the court to set aside a sale 
 will not be exercised in behalf of a suitor who seeks to 
 escape from the consequence of his own act induced by mis- 
 take of law. (85) An order refusing to set aside a sale on 
 foreclosure of a mortgage in chancery is appealable. (86) 
 
 Grounds for Vacating Sale. As has been seen, in a sale 
 under foreclosure proceedings the court is really the vendor; 
 and though the contract is in form with its officer, he acts 
 merely as the agent of the court, and for this reason the court 
 exercises a more liberal supervision over such contracts than 
 those of any other class. (87) While the court will exercise 
 
 (80) State Mutual B. & L. Ass'n. v. O'Callaghan, 67 N. J. Eq., 103. 
 
 (81) Penri v. Craig, 2 N. J. Eq., 495. 
 
 (82) Seaman v. Riggins, 2 N. J. Eq., 214; National Bank v 
 Sprague, 21 N. J. Eq., 458; Woodward v. Bullock, 27 N. J. Eq., 507; 
 Hayes v. Stiger, 29 N. J. Eq., 196. 
 
 (83) Crawley v. Leonard, 28 N. J. Eq., 467. 
 
 (84) Campbell v. Gardner, 11 N. J. Eq., 423; Mutual Life Ins. 
 Co. V. Goddard, 33 N. J. Eq., 482. 
 
 (85) Hayes v. Stiger, 29 N. J. Eq., ig6. 
 
 (86) Woodward v. Bullock, 27 N. J. Eq., 507. 
 
 (87) McCahill v. Equitable Life &c., Co., 26 N. J. Eq., 531; Hayes 
 V. Stiger, 29 N. J. Eq., 196; Snyder v. Blair, 33 N. J. Eq., 208. 
 
620 Foreclosure of Mortgages. 
 
 greater power over contracts made with itself than it can 
 over any other class of contracts, still it cannot rescind them 
 arbitrarily and without sufficient cause. (88) Nor will the 
 court exercise such power in favor of a purchaser who seeks 
 to escape from the contract on the ground of misapprehension 
 or mistake of fact, when it appears that his error resulted 
 entirely from his own negligence, and that he could have 
 avoided it by the use of ordinary prudence. (89) 
 
 A puTchaser at a judicial sale is invested with a definite 
 legal right, recognized and enforced by law, of which he can- 
 not be deprived except on some legal or equitable ground, 
 though in those cases in which confirmation is required, the 
 right is subject to be defeated by the court's refusal to confirm. 
 (90) So where a complainant resists the confirmation of a 
 foreclosure sale on the ground that he had given instructions 
 to his solicitor, which if followed would have resulted in the 
 purchase of the premises for him, the purchaser at the sale 
 cannot be deprived of the benefit of his purchase because the 
 instructions were not followed, unless he knew of them and of 
 their violation, or had information putting him on inquiry, and 
 the price at which he purchased was grossly below the fair 
 market value. (91) And so where the Master struck off the 
 premises to the solicitor of complainant, who signed the con- 
 ditions as "Attorney" and afterwards directed the Master to 
 report the sale in the name of another, it was' held that the de- 
 fendant could not object to this in the absence of fraud. (92). 
 
 A purchaser at judicial sale subjects himself to the power of 
 the court to guard on equitable terms against hardship, sur- 
 prise, misrepresentation, or undue advantage taken by which 
 the other parties interested suffer loss, even though he is not 
 in fault ; and such relief is still more readily afforded when the 
 mortgagee is the purchaser at the sale under his mortgage. (93) 
 And so the fact that a party to the suit who is entitled to the 
 surplus money on the sale of mortgaged premises is in so far 
 deprived of his eye-sight as not to be able to read a newspaper, 
 
 (88) Hayes v. Stiger, 29 N. J. Eq., 196. 
 
 (89) Smith V. Duncan, 16 N. J. Eq., 240; Hayes v. Stiger, 29 N. J. 
 Eq., 196. 
 
 (go) Cropper v. Brown, 76 N. J. Eq., 406. 
 
 (91) Zimmerman v. Place, 61 N. J. Eq., 273. 
 
 (92) Guarantee Trust &c., Co. v. Jenkins, 40 N. J. Eq., 451. 
 
 (93) Kirkpatrick v. Corning, 48 N. J. Eq., 302. 
 
Setting Aside Sale. 621 
 
 * . 
 
 and alleges on this account he did not see the advertisement 
 
 of the sale, and that in consequense of his absence from the sale 
 the property was sold at a sacrifice, is not ground for the court 
 ordering a re-sale of the property. (94) 
 
 Eixistence of Encumbrance. Any purchaser of real estate 
 at any public sale, held under the provisions of the act to which 
 this is a supplement, or of any supplement thereto or amend- 
 ment thereof, except at sales under general execution and 
 actual levy thereunder, or for unpaid taxes or municipal liens, 
 shall be entitled to be relieved from his bid if before delivery 
 of the deed he shall satisfy the court by whose authority such 
 sale was made of the existence of any substantial defect in or 
 cloud upon the title of the premises sold which would render 
 said title unmarketable, or of the existence of any lien or en- 
 cumbrance thereon, unless a reasonable description of the estate 
 or interest to be sold, and of the defects in title and liens or en- 
 cumbrances thereon, with the approximate amount of said liens 
 and encumbrances, if any, be inserted in the notices and adver- 
 tisements required by law, and in the conditions of sale ; pro- 
 vided, however, that if the court shall direct any lien or en- 
 cumbrance not described, and which is due and payable, to 
 be paid out of the proceeds of sale, the purchaser shall not then 
 be relieved by reason of such lien or encumbrance. (95) 
 
 This statute does not cast any duty upon the complainant, 
 or upon any of the parties to the suit, but it does extend to each 
 of them a privilege. Before the enactment of this statute, a 
 purchaser at a judicial sale took only such title as the proceed- 
 ings showed, and could not claim to be relieved because of the 
 existence of prior encumbrances or defects in the title. The 
 effect of this statute is to prevent the bidder from being re- 
 lieved of the defects in the title only if the liens and encum- 
 brances thereon are brought to his notice before the sale. Any- 
 one who desires to bring these things to the notice of the in- 
 tending purchaser may do so. If it be to the interest of the 
 complainant to have the sale under such conditions that the pur- 
 chaser cannot be relieved of his bid because of defects, &c., then 
 he may serve his own interest by causing notice of the same 
 
 (94) Parkhurst v. Corey, 11 N. J. Eq., 233. 
 
 (gs) P. L. 1906, p. 269; 4 Comi). Stat., p. 4686, Sec. 35. 
 
622 Foreclosure of Mortgages. 
 
 to be -given; and in like manner any of the other parties may 
 avail themselves of the privilege extended by the statute. (96) 
 
 The object of this act is to relieve bidders at foreclosure 
 sales from having unmarketable or encumbered titles thrust 
 upon them, when they had no notice of the estate or interest 
 to be sold, or of the defects in the title, or liens, or encum- 
 brances thereon, with the approximate amount thereof ; and 
 one who has notice should not be relieved under the act referred 
 to, though he did not obtain that notice in the manner pre- 
 scribed by the statute. The statute is entirely remedial, and 
 should not be extended to one whose claim to the remedy is 
 without equity. (97) So a defendant who made the mortgage 
 foreclosed, and who also made a prior mortgage upon the same 
 premises, will not be heard to say that he should be relieved 
 of his bid, because no notice of the prior mortgage on the prem- 
 ises was inserted in the notice and advertisements of the sale, 
 and in the condition of sale ; for having created the situation 
 against which he asks to be relieved and seeking to take ad- 
 vantage of that situation, he is with respect to it without 
 equity. (98) 
 
 Defects and Irregularities in Sale. A foreclosure sale 
 will be vacated where there was any omission or wrong 
 method of proceedings of such a nature as to invalidate the 
 sale, prevent the purchaser from acquiring a good title, or work 
 wrong or injury to the parties in interest. So where it ap- 
 pears that the premises should have been sold in parcels, but 
 were not, the sale will not be confirmed, or if confirmed, will 
 be set aside. (99) But an execution sale of land described 
 in two parcels will not be set aside because the property was 
 sold as a whole, there having been no preparation or request 
 to the Sheriff for sale by parcels. (100) And so where defend- 
 ant had taken title to the mortgaged premises in four different 
 parcels, all contiguous and all occupied and used by him as a 
 city home or residence, and the premises were sold as one 
 parcel, and the decree directed the sale of all, as did the 
 writ without more, and the defendant had full knowledge of the 
 
 (96) Armstrong v. Fisher, 73 N. J. Eq., 228. 
 
 (97) Oakley v. Shaw, 69 Atl., 462. 
 
 (98) Oakley v. Shaw, 69 Atl., 462. 
 
 (gg) Schilling v. Lintner, 43 N. J. Eq., 444. 
 (100) Lennon v. Heindel, 56 N. J. Eq., 8. 
 
Setting Aside Sale. 623 
 
 facts and asked for and had three adjournments, without re- 
 questing that the lands be sold in parcels, it was held that the 
 sale was valid. ( i ) And so where the master has recom- 
 mended, on sufficient proof, that land be sold in parcels, and a 
 decree has been obtained confirming such report, without ob- 
 jection, the sale will not be set aside on the ground that the 
 land should have been sold as an entirety. (2) 
 
 A refusal by the Sheriff to adjourn a sale, in the exercise of 
 reasonable discretion, is not sufficient ground for setting the 
 sale aside. (3) And so where the complairijant's solicitor con- 
 sented that the defendant might have an adjournment of the 
 sale of his property, but owing to bad faith (if there was any) 
 of the Sheriff, or by the negligence of the defendant or the 
 solicitor in not giving the Sheriff instructions and attending the 
 sale, the sale was proceeded with and the property struck off, 
 the sale will not be set aside as against the complainant. (4) 
 But where the Sheriff was directed by complainant's solicitor 
 to stop the advertisement of a foreclosure sale, because an in- 
 junction had been issued restraining such sale, but continued 
 to adjourn the sale from week to week for nearly three years, 
 without notice of such adjournment being given in any news- 
 paper, and after the injunction was dissolved, and without any 
 further notice to parties in interest, sold the premises and re- 
 alized an amount far below their value, it was held that the 
 Sheriff's action could not under the circumstances be regarded 
 as a substantial compliance with the statute, and that the sale 
 would be set aside on terms. (5) 
 
 A foreclosure sale should not be set aside because the pre- 
 mises were described in the notice of sale as "lots" merely, 
 without mentioning the improvements, especially when defend- 
 ant had an opportunity to object thereto and did not do so. (6) 
 So a purchaser under a foreclosure sale will not be relieved 
 from his bid on the ground that the title offered him is defect- 
 
 (i) Guarantee Trust &c., Co. v. Jenkins, 40 N. J. Eq., 451. 
 
 (2) Morrisse v. Inglis, 46 N. J. Eq., 306, and see "Sale in parcels, 
 or in Gross," page 609, supra. 
 
 (3) Morris v. Woodward, 25 N. J. Eq., 32, and see "Adjournments" 
 page 606, supra. 
 
 (4) Williams v. Doran, 23 N. J. Eq., 385. 
 
 (5) Trustees v. N. H. &c., R. R. Co., 30 N. J. Eq.,\494; aMrmed, 
 32 N. J. Eq., 29s, and see "Adjournments," page 606, supra. 
 
 (6) Guarantee Trust &c., Co. v. Jenkins, 40 N. J. Eq., 451. 
 
624 Foreclosure of Mortgages. 
 
 ive, where such supposed defect arises from an alleged irregu- 
 larity in the publication of the notice to a non-resident of the 
 pendency of the suit. (7) And a requirement that 20% of the 
 purchase money shall be paid at the close of the sale, and satis- 
 factory security be given for the balance, will not suffice to 
 set aside the sale, where no complaint was made of the terms, 
 nor any relaxation of them requested, and where it does not 
 appear that any one was ' prevented from bidding by reason 
 of them. (8) But a Sheriff's sale of mortgaged lands and his 
 deeds thereunder will be set aside, if his advertisement stated 
 the lands to be in another township than that in which they 
 were actually situated. (9) 
 
 Fraud. A court of equity has power to vacate a fore- 
 closure sale which is shown to be tainted with fraud, or to have 
 been made in pursuance of a corrupt scheme to gain possession 
 of the premises inequitably. Thus where an agreement is 
 made by the complainant with a mortgagee defendant present 
 at the sale and intending to buy in the property to protect his 
 claims, if necessary, that if such mortgagee would not bid, and 
 would permit him' to buy the property, he would pay his claim, 
 and by reason of the latter not bidding, in pursuance of such 
 agreement, the property brought much less than it otherwise 
 would have done, thereby throwing upon the mortgagor a lia- 
 bility for a greater deficiency, such agreement is a fraud upon 
 the mortgagor, and vitiates the sale. (10) And so the purchase 
 of the real estate of an intestate, at a foreclosure sale, by one 
 who by contrivance or fraud has prevented a sale for a fair 
 value, will be set aside as against the heir. (11) And a sale 
 made in violation of a promise to adjourn to a future day will 
 be set aside. (12) 
 
 So representations by the mortgagor that the premises would 
 be sold free from encumbrances, when in fact they were 
 sold subject to a mortgage, together with laches, were held 
 sufficient equitable ground for a relief against a bid made by a 
 
 (7) McCahill v. Equitable Life &c., Co., 26 N. J. Eq., 531. 
 
 (8) Morris v. Woodward, 25 N. J. Eq., 32. 
 
 (9) Britton v. Smith, 2 N. J. L. J., 284. 
 
 (10) Morris v. Woodward, 25 N. J. Eq., 32; DeBaun v. Brand, 
 60 N. J. L., 283. 
 
 (11) Jofins V. Norris, 22 N. J. Eq., 102; reversed, 27 N. J. Eq., 
 48s. 
 
 (12) Mutual Life Ins. Co. v. Goddard, 33 N. J. Eq., 482. 
 
Setting Aside Sale. 623 
 
 purchaser, notwithstanding he had been held liable at law on 
 the conditions of sale. (13) But a sale will not be set aside be- 
 cause of the negligence or bad faith of the solicitor. ( 14) And 
 a bona fide purchaser, without notice of fraud in the judgment, 
 becomes entitled to make a sale of the thing purchased, and will 
 thus confer on his vendee his own status' as a bona fide pur- 
 chaser, though the second vendee is one who had actual notice 
 of the fraud. (15) 
 
 Mistake, Surprise, or Want of Notice. A person whose 
 property has been sold at judicial sale to his injury may always, 
 if he applies promptly and without fault, have the sale set aside 
 upon showing that he was' prevented from attending the sale 
 by fraud, mistake or accident. (16) Gross inadequacy of price, 
 coupled with proof that owing to a misapprehension as to the 
 time of sale a purchaser, who was willing to give a greatly en- 
 hanced price for the property, could have been had, are suf- 
 ficient reasons for ordering a re-sale of mortgaged premises 
 which had been bid in by the mortgagee. (17) So where the 
 complainant in a cause promised to notify the petitioner, who 
 was interested in the property, of the time and place of sale, 
 and forgot to do so in consequence whereof the petitioner did 
 not attend, and the property was sacrificed, the sale was set 
 aside. (18) So where property was purchased at a fore- 
 closure sale by the mortgagee at a low price and the mortgagor 
 was an aged woman and the only party to the suit, and it was 
 proved that she was misled as to the nature of the process 
 served upon her, or as to when the sale would be held, the sale 
 will be set aside. (19) 
 
 Where the property is sold under the process of the court 
 for a grossly inadequate price, the court will not permit one 
 
 (13) Simon v. Townsend, 27 N. J. Eq., 302, and see "Grounds 
 for vacating sale," page 619, supra. 
 
 (14) Wilson V. Hoffman, 50 Atl., 592. 
 (is) Wilson V. Hoffman, 50 Atl., 592. 
 
 (16) Campbell v. Gardner, 11 N. J. Eq., 423; Hazard v. Hodges, 
 17 N. J. Eq., 123; Smith v. Alton, 22 N. J. Eq., 572; Wetzler v. 
 Schumann, 24 N. J. Eq., 60; Mutual Life Ins. Co. v. Goddard, 33 
 N. J. Eq., 482. 
 
 (17) Rowan v. Congdon, 53 N. J. Eq., 385; Campbell v. Gardner, 
 II N. J. Eq., 423. 
 
 (18) Pell V. Vreeland, 35 N. J. Eq., 22. 
 
 (ig) Campbell v. Gardner, 11 N. J. Eq., 423; Carpenter v. Smith, 
 30 N. J. Eq., 463; Schilling v. Lintner, 43 N. J. Eq., 444. 
 
626 I'ORECLOSURE OF MORTGAGES. 
 
 who, however innocently or unintentionally, contributes to the 
 mistake of the owner by which he is misled as to the time of 
 sale, to take advantage of the mistake by a voluntary purchase 
 of the property at the sale. (20) But in the absence of fraud or 
 unfair practice, erroneous information of the day fixed for the 
 sale of mortgaged premises will not operate to set aside the sale 
 on the ground of surprise, where the mistake is corrected and 
 the party informed of the hour of sale in ample time to have 
 been present, if he had so elected. (21) And the fact that the 
 petitioner was present at the judicial sale intending to bid, and 
 failed to do so because he thought the bid made by another 
 person was not bona fide, is not such a mistake as would justify 
 seting aside the sale. (22) 
 
 Surprise is one of the grounds upon which the court inter- 
 feres, and orders a re-sale ; but where the party has suffered loss 
 by the property having been sacrificed, and where the surprise 
 is due to his negligence, and is of a character which would have 
 been avoided by the exercise of ordinary prudence, the court 
 will not as a general rule interfere. Thus, it will not interfere 
 where the surprise is not created by the misconduct or inad- 
 vertence of a third person, but by the neglect and inattention 
 of the party complaining. (23) So the allegation of surprise 
 will not avail the holder of a second mortgage, when he paid 
 no attention whtever to the proceedings in the suit, and does 
 not even intimate that he would have attended the sale had he 
 known of it, or that he ever intended to bid on the property at 
 all. (24) 
 
 Where, however, the confirmation of a Master's sale of lands 
 was, by consent of all the parties, refused for alleged irregular- 
 ities and surprise, but afterwards upon an ex parte representa- 
 tion, and what appeared to be a satisfactory explanation of the 
 irregularity, the sale was confirmed, and it was held that the 
 court had the power and would exercise it, upon the applica- 
 tion of the administratrix of one of the land owners showing 
 surprise and that he had no opportunity to oppose the con- 
 
 (20) Wetzler v. Schumann, 24 N. J. Eq., 60. 
 
 (21) Hazard v. Hodges, 17 N. J. Eq., 123. 
 
 (22) Fiske V. Weigel, 21 Atl., 452. 
 
 (23) Parkhurst v. Corey, II N. J. Eq., 233. 
 
 (24) Boyd V. Hudson City Society, 24 N. J. Eq., 349. 
 
Setting Aside Sale. 627 
 
 firmation to set aside the sale, although the deed for the prem- 
 ises had been delivered. (25) 
 
 Where one claiming an interest in the premises sold under 
 foreclosure proceedings has, by neglect of her counsel, been de- 
 prived of an opportunity to protect that interest, and the 
 property seems not to have produced the "highest and best 
 price it would bring in cash at the time of sale," a re-sale of the 
 premises will be ordered. (26) So where, owing to a misunder- 
 standing of the solicitors of the parties, the premises, worth 
 $2,500.00, were bid in by the first mortgage for $25.00, it was 
 held that the sale would be set aside. (27) A foreclosure 
 sale may be set aside on terms, if the bid of the mort- 
 gagee was made under a mistake. (28) But where a de- 
 cree provided for the sale of the mortgaged premises to raise 
 the interest due and costs, the mortgage to stand as a lien for 
 the payment of the principal not due and interest to become 
 due, and complainant purchased the property at the sale, and it 
 was held that he was not entitled to be relieved of his bid on 
 the ground of surprise, in that he was not aware that in pur- 
 chasing he extinguished his mortgage. (29) 
 
 Circumstances Discouraging Competition. If the sale is 
 so managed as to discourage bidders, and to result in a consider- 
 able sacrifice, that circumstance would justify the court in re- 
 fusing to confirm the sale, even though the purchaser had 
 nothing to do with such management. The court must regard 
 the interests of those parties whose property it undertakes 
 to sell, as well as the expectations of those who propose to 
 bid. (30) So where the purchaser and the Sheriff stated to 
 bidders the amount of certain legacies charged on the lands 
 at fixed amounts, when in fact the payment was contingent, 
 and the sums not apportioned between dififerent parcels of land, 
 the sale will be set aside. (31) So a sale of lands' to the first 
 
 (25) Barker v. Richardson, 41 N. J. Eq., 656. 
 
 (26) Mutual Benefit Life Ins. Co. v. Gould, 34 N. J. Eq., 417; 
 Seaman v. Riggins, 2 N. J. Eq., 212; Banta v. Brown, 32 N. J. Eq., 41; 
 But see Hayes v. Stiger, 29 N. J. Eq., 196. 
 
 (27) Van Arsdalen v. Vail, 32 N. J. Eq., 189. 
 
 (28) Sinking Fund Commissioners v. Peter, 32 N. J. Eq., 113. 
 
 (29) Mott V. Shreve, 25 N. J. Eq., 438. 
 
 (30) Bliss V. N. Y. Life Ins. Co., 51 N. J. Eq., 630; Ryan v. Wil- 
 son, 64 N. J. Eq., 797. 
 
 (31) Woodward v. Bullock, 27 N. J. Eq., 507. 
 
628 Foreclosure of Mortgages. 
 
 mortgage was set aside, 'and re-sale ordered, on the second 
 mortgagee's giving security to obtain a bid $3,000.00 in ex- 
 cess of the price for which the land sold, on his petition show- 
 ing that he refrained from bidding at the sale owing to repre- 
 sentations of the first mortgagee and a third person as to the 
 amount each would bid. (32) But one of several bondholders, 
 who have combined for the purchase of an insolvent railroad 
 at the sale under the execution in foreclosure proceedings 
 against it cannot object that the committee appointed by the 
 combination stifled competition at the sale, the acts of the com- 
 mittee being the acts of his agent, and not injurious to his in- 
 terests. (33) 
 
 A person claiming to have an interest in land being sold at 
 a judicial sale, whether such person be a judgment creditor or 
 otherwise may, at such- sale state facts as to the property about 
 to be sold, when such facts relate to the title, possession or 
 the alleged right of possession thereof. (33a) So confirma- 
 tion of the foreclosure sale will not be denied because the com- 
 plainant's solicitor announced before the sale began that certain 
 tracts advertised for sale included some land which had been 
 sold by the mortgagor previous to his mortgage to complainant, 
 no objection being interposed to the sale thereafter, and it not 
 appearing that such statement was not true, nor that the sale 
 of such tracts would have affected the security of the subse- 
 quent mortgage. (34) So confirmation of a foreclosure sale will 
 not be denied because representatives of a subsequent mortga- 
 gee, whose mortgage was' not completely satisfied by the sur- 
 plus, ceased bidding because of statements of the Master and 
 the complainant's solicitor that the amount already bid was suf- 
 ficient to pay the subsequent mortgage, the solicitor accompany- 
 ing his statement with a caution not to rely on it, and it not~ 
 appearing that there would have been a higher bid. (35) And 
 confirmation of a foreclosure sale of hotel property will not be 
 denied on the ground that immediately before the sale a watch- 
 man in charge of the premises had refused to allow an inspec- 
 tion thereof by a prospective purchaser until the Sheriff ar- 
 
 (32) Dawson v. Drake, 29 N. J. Eq., 383 ; afHrmed, 30 N. J. Eq., 733. 
 
 (33) Walker v. Montclair &c., R. R. Co., 30 N. J. Eq,, 525. 
 (33a) Brady v. Carteret Realty Co., 67 N. J. Eq., 641. 
 
 (34) Adams Express Co. v. Hoey, 48 Atl., 823. 
 
 (35) Adams Express Co. v. Hoey, 48 Atl, 823. 
 
Setting Aside Sale. 629 
 
 rived, where it appears that the watchman jvas not informed 
 of the intent to bid, that no request for an inspection was 
 made after the Sheriff arrived and that the Sheriff was willing 
 to allow an inspection and did nothing to prevent it. (36) 
 
 Inadequacy of Price. The practice of the English Court 
 of Chancery in opening sales' upon an offer to bid more for the 
 property, without an allegation of surprise or fraud, was early 
 declared not to have been adopted in this state. (37) ThSre is' a 
 uniform current of decisions that official sales will not be opened 
 on mere representation that more may be obtained for 
 the property. The court will not interfere on account of mere 
 inadequacy of price with the sale under a decree, unless the 
 price is so grossly inadequate that from such inadequacy the 
 court can infer fraud, or where great injustice will be done 
 by confirming the sale. (38) Thus in Morrisse v. Inglis,{Z9) 
 over 10% advance was offered. In Bethlehem Iron Co. v. 
 Philadelphia & Seashore R. R. Co., (40) 21% advance was 
 offered. In Bliss v. N. Y. Life Ins. Co., (41), $1,000.00 in ad- 
 vance was offered. In. each case sale was confirmed notwith- 
 standing the increased bid. This well settled practice is in ac- 
 cord with the policy of our law respecting such sales, which are 
 required to be made after advertisement sufficient to give pub- 
 licity, and by public out-cry, to the highest bidder. It is of the 
 greatest importance to encourage bidding by giving to every 
 bidder the benefit of bids made in good faith and without col- 
 lusion or misconduct, at least when the price offered is not un- 
 conscionably below the value of the property. ^ Nothing could 
 
 (36) Worth V. Newlin, 36 At!., 30, and see "Freedom of Compe- 
 tition as to bidding," page 610, supra, and "Confirmation of sale," page 
 61S, supra. 
 
 (37) 'Seaman v. R'iggins, 2 N. J. Eq., 214; Conover v. 'Walling, 15 
 N. J. Eq., 173; Cline v. Prall, 27 N. J. Eq., 415; Fiske v. Weigel, 21 
 Atl., 452. 
 
 (38) Eberhart v. Gilchrist, 11 N. J. Eq., 167; Smith v. Duncan, 16 
 N. J. Eq., 240; 'Weber v. 'Weitling, 18 N. J. Eq., 108; afHrmed, 19 N. J. 
 Eq., 439; Boyd v. Hudson City, &c., Co. 24 N. J. Eq., 349; White v. 
 Zust, 28 N. J. Eq., 107; Lundy v. Seymour, 55 N. J. Eq., i ; Lennon 
 V. Heindel, 56 N. J. Eq., 8; Rogers v. Rogers Locomotive Co., 62 
 N. J. Eq., in; Porch v. Agnevv Co., 66 N. J. Eq., 232; aiKrimd, 67 
 N. J. Eq., 727; Fleming v. Fleming Hotel Co., 70 N. J. Eq., 509; 
 Hoffman v. Quigley, 82 Atl., 900. 
 
 (39) 46 N. J. Eq., 306. 
 
 (40) 49 N. J. Eq., 356. 
 
 (41) SI N. J. Eq.., 630. 
 
630 Foreclosure of Mortgages. 
 
 more evidently t^id to discourage and prevent bidding than a 
 judicial determination that such a bidder may be deprived of 
 the advantage of his accepted bid whenever any person is willing 
 to give a larger price. The interest of owners in particular 
 cases must give way to the maintenance of a policy which, in 
 general, is in the highest degree beneficial. (42) 
 
 A judicial sale, however, will be set aside, even if there has 
 been rro fraud, where there is gross inadequacy of price, and the 
 party by reason of mistake or misapprehension did not attend 
 the sale or protect his interest, and the sacrifice was caused 
 by such mistake or misapprehension, or where such surprise is 
 created by the conduct of the purchaser, or of the officer con- 
 ducting the sale. (43) 
 
 Application and Proceedings Thereon. The proper 
 method of proceding to vacate a foreclosure sale is either by 
 petition in the original suit, or by opposing the confirmation of 
 sale. An original bill is not necessary. (44) 
 
 An application to set aside a foreclosure sale can be made 
 only by one who shows that he has an interest in the premises 
 affected, and that his rights are invaded or his interests' preju- 
 diced by the sale. (45) And in a proceeding to set aside a fore- 
 closure sale for the purpose of redemption, all the parties to 
 the foreclosure proceedings who would have been proper parties 
 to a suit to redeem, if there had been no sale, and all intervening 
 encumbrances', must be made parties. (46) 
 
 (42) Morrisse v. Inglis, 46 N. J. Eq., 306; Rogers v. Rogers 
 Locomotive Co., 62 N. J. Eq., Iii; Palladino v. Hilpert, 72 N. J. Eq., 
 270, and Cases cited at page 279; and see "Confirmation of Sale," 
 page 615, supra. 
 
 (43) Howell V. Hester, 4 N. J. Eq., 266; Eberhart v. Gilchrist, 
 II N. J. Eq., 167; Marlatt v. 'Warwick, 18 N. J. Eq., 108; Kloepping v. 
 Stellmacher, 21 N. J. Eq., 328; 'Woodward v. Bullock, 27 N. J. Eq., 
 507; Rea V. Wheeler, 27 N. J. Eq., 292; Large v. Ditmars, 27 N. J. 
 Eq., 406; VanWinkk v. Stearns, 27 N. J. Eq., 238; VanDyke v. Van- 
 Dyke, 31 N. J. Eq., 176; Lennon v. Heindel, 56 N. J. Eq., 8 Raphael 
 V. Zehnier, 56 N. J. Eq., 836; Palladino v. Hilpert, 72 N. j. Eq., 270; 
 and see "Confirmation of Sale," page 615, supra, and "Mistake, Sur- 
 prise and 'Want of Notice," page 625, supra. 
 
 (44) Campbell v. Gardner, 11 N. J. Eq., 423; Meyer v. Bishop, 27 
 N. j. Eq., 141 ; afHrmed, 28 N. J. Eq., 239 ; Woodward v. Bullock, 27 
 N. J. Eq., 507; Mutual Life Ins. Co. v. Goddard, 33 N. J. Eq., 482; 
 and see "Confirmation of Sale," page 615, supra. 
 
 (45) See "Who may object to sale," page 618, supra. 
 
 (46) Wimpfheimer v. Prudential Ins. Co., 56 N. J. Eq., 585. 
 
Setting Aside Sale. 631 
 
 On an application by petition, verified by the affidavit of the 
 party, to set aside a sale, tli? material facts alleged in the peti- 
 tion must be proved. The affidavit of the party, except as to 
 facts peculiarly within his own knowledge, must be supported 
 by other evidence (47) ; and the court on the hearing of a pe- 
 tition, by the purchaser at a foreclosure sale, to be relieved 
 of his purchase, filed before the date fixed for confirmation, 
 must treat the sale as if it were, or were about to be, confirmed, 
 in the absence of anything to show that the property did not 
 bring the best price obtainable. (48) 
 
 Where the mortgagee is the purchaser, the court will regard 
 an application for a re-sale with more indulgence then when 
 a stranger is the purchaser. (49) So where the mortgagee is 
 the purchaser, and the party applying to open the sale offers to 
 pay all the money due upon the security, and there has reall3( 
 been a mistake upon the part of the owner of the equity of re- 
 demption, owing to which the property has been sacrificed, the 
 court ought to regard an application for re-sale with more in- 
 dulgence than when a stranger is the purchaser. (50) 
 
 The court, on ordering a re-sale of mortgaged premises on 
 account of inadequacy of price, may exact security from a pros- 
 pective purchaser who has offered the increased price. (51) 
 So where the complainant in execution has become the pur- 
 chaser of the mortgaged premises at a sum less than the amount 
 due upon the execution, the sale will not be opened and a re- 
 sale ordered unless the petitioner will undertake upon the- re- 
 sale to bid the amount due on the execution. (52) 
 
 Upon an application to set aside a sale, reasons founded upon 
 irregularities in making the sale are not available unless a suf- 
 ficient reason is alleged for not having urged such objection in 
 opposition to the confirmation of the sale, and in general it may 
 be said that objections to a sale based upon errors in the pro- 
 ceedings or in the degree will not be considered. So where the 
 mortgagor makes no defense to a foreclosure suit, and in his 
 
 (47) Coxe V. Halsted, 2 N. J. Eq., 311. 
 
 (48) Cropper v. Brown, 76 N. J. Eq., 406. 
 
 (49) Campbell v. Gardner, 11 N. J. Eq., 423. 
 
 (so) Campbell v. Gardner, 11 N. J. Eq., 423; Strong v. Smith, 68 
 N. J. Eq., 650. 
 
 (51) Rowan v. Congdon, 53 N. J. Eq., 385; Avon-by-the-Sea v. Finn, 
 56 N. J. Eq., 808. 
 
 (52) Hazard v. Hodges, 17 N. J. Eq., 123. 
 
632 Foreclosure of Mortgages. 
 
 petition to set aside the sale claims as one ground that the 
 mortgage was only collateral, and that the principal security 
 for the debt had not been resorted to or exhausted, the sale 
 will not be set aside, such grounds not being available to him 
 under the circumstances. (53) And so where, upon the fore- 
 closure of a mortgage, a decree pro confesso is taken and an 
 order of reference made to a master to report the amount of the 
 principal and interest due, and the Master in addition to these 
 amounts reports as also due to complainant an additional sum 
 for dues &c., and the defendant presents his petition to the court 
 praying that before the sale of the mortgaged premises to satis- 
 fy stich decree it be opened and corrected so far as to make 
 it conform to the interlocutory decree and the order of reference 
 that had been made to the cause, it was held that the defend- 
 ant's petition should have been passed upon before the execution 
 of the decree by the sale of the mortgaged premises. (54) 
 
 On the other hand where on a proceeding, by a sheriff to com- 
 pel acceptance of a deed by a purchaser at a foreclosure sale, 
 the owner of the equity of redemption and the second mortgagee 
 who were the only persons who could have been injured by a 
 lack of proper advertisement, were not made parties or given an 
 opportunity to be heard, and it was probable that the property 
 did not bring a fair price, a re-sale should be ordered. (55) And 
 where an application to open a foreclosure decree after sale it 
 appeared that the purchaser resisted on the ground of defect of 
 advertisement, the Sheriff's application to compel her to take 
 the deed, and that she had derived no benefit from the property, 
 it having been in litigation ever since she took it, she was held 
 entitled on a re-sale to be fully indemnified, including costs, 
 counsel fees' and legal interest on the amount paid by her. (56) 
 
 Property and Rights Acquired by Purchaser. A pur- 
 chaser at a foreclosure sale of the mortgaged premises' takes the 
 place of the mortgagee in strict foreclosure at common law. 
 His title reverts back to the time of the execution of the mort- 
 gage, and he succeeds as well to the title and estate acquired 
 by the mortgagee by the delivery of the mortgage deed as to the 
 
 (53) D. L. & W. R. R. Co., V. Scranton, 34 N. J. Eq., 429. 
 
 (54) State Mutual Building & Loan Ass'n. v. O'Callaghan, 65 N. J. 
 Eq., 738. 
 
 ,q., /JO. 
 
 {55) Polhemus v. Princilla, 61 Atl. 263. 
 (56) Polhemus V. Princilla, 61 Atl., 263. 
 
Setting Aside Sale. 633 
 
 estate the mortgagor had at the time of the execution of the 
 mortgage. (57) S& where lands devised are subject to a mort- 
 gage given by testator, after whose death the mortgage is fore- 
 closed and the land purchased in by the devisee for a sum not 
 exceeding the mortgage debt, he holds his title under the judi- 
 cial sale and not as devisee, and so is not liable for the debts 
 of the testator. (58) So if an instrument given by a mortgagor, 
 surrendering a right of way appurtenant to the mortgaged 
 lands, although executed before the mortgage is not recorded, 
 a purchaser at the foreclosure sale will take the property with 
 the right of way attached. (59) So where an assessment upon 
 property sold by a Master was confirmed after the confirma- 
 tion of the sale, but before the delivery of the deed, and under 
 the conditions of the Master's sale the property was sold free 
 from encumbrance, the purchaser will take the property subject 
 to such assessment, and cannot have the amount of such as- 
 sessment paid out of the purchase price. (60) 
 
 A purchaser at a foreclosure sale under a second mortgage 
 receives a title which the mortgagor had at the time of the 
 delivery of the mortgage and the rights attendant upon that 
 title, and he takes the right which the second mortgagee re- 
 ceived to have the assets marshaled. (61) 
 
 No dedication to public use or portions of a parcel of land 
 made by the general owner, after giving a mortgage on it, can 
 affect the lien of the mortgage ; and a purchaser at a sale on 
 foreclosure will take title free of the dedication, where no 
 claims of purchasers buying lots in reliance on the dedication, 
 and without notice of the mortgage are present. (62) But 
 where lands covered by a mortgage were in part afterwards 
 laid out by the mortgagor or as a public street, and accepted 
 and treated as such by the municipal authorities, and subse- 
 quently the mortgagee released that part of the mortgaged 
 
 (57) Champion v. Hinkle, 45 N. J. Eq., 162; Henniger v. Heald, 
 52 N. J. Eq., 431 ; aMrmed, 53 N. J. Eq., 694 ; Bushey v. National State 
 &c., Bank, 72 N. J. Eq., 466; and see Chancery Act, Sec. 54, page 50, 
 supra; and 4 Comp. Stat., p 4675, Sec. 7. 
 
 (58) Byrne v. Condon, 68 N. J. L., 439. 
 
 (59) Dahlberg v. Haeberle, 71 N. J. L., 514. 
 
 (60) Carpenter v. Shanley, 75 N. J. Eq., 369. 
 
 (6r) Whittaker v. Belvidere Roller Mill Co., SS N. J. Eq., 674, 
 (62) Hague V. West Hoboken, 23 N. J. Eq., 354; Kiernan v. Jersey 
 City, 80 N. J. L., 273. 
 
634 Foreclosure of Mortgages. 
 
 premises adjoining the street and described it as bounding on 
 the street, it was held that the land lying iif the street was', as 
 against the mortgagee, subject to the public rights acquired by 
 the dedication and release. (63) 
 
 In addition to the estate of the mortgagor and mortgagee 
 at the time of the execution and delivery of the mortgage 
 deed, the title made, under a decree condemning mortgaged 
 premises to sale, invests the purchaser with all the rights and 
 equities inhering in either of the parties to the suit, whether 
 complainant or defendant, at the time of the institution of the 
 suit (64) ; or in other words, a Sheriff's deed passes the same 
 title which a deed of bargain and sale executed by the judg- 
 ment debtor would pass. (65) So a mortgagor who has ac- 
 quired a tax title to the mortgaged property before the filing 
 of the bill to foreclose, in which he is made a defendant as 
 owner, is' precluded from setting up that title against the pur- 
 chaser under the foreclosure decree. (66) 
 
 A mortgagee buying at his own foreclosure sale has the same 
 rights' of any other purchaser (67) ; and a mortgagee does not 
 lose any of his rights by force of notice of facts received after 
 he took the mortgage, though such notice before acceptance 
 of the mortgage would have invalidated it. (68) 
 
 At a judicial sale, the rule of caveat emptor applies, and the 
 purchaser buys only such an interest as the debtor has. (69) 
 Purchasers at a judicial sale are not entitled to what is called 
 a merchantable title, but must be content with such a title as 
 the proceedings show that they will get. (70) So an intending 
 purchaser at foreclosure must search the records to discover 
 
 (63) Vreeland v. Torrey, 34 N. J. Eq., 312. 
 
 (64) Mount V. Manhattan Co., 43 N. J. Eq., 25 ; affirmed, 44 N. J. 
 Eq., 297; Baldwin v. Howell, 45 N. J. Eq., 519; Wimpfheimer v. Pru- 
 dential Ins. Co., 56 N. J. Eq., 585; Phillips v. Youmans, 57 N. J. Eq., 
 130-134; Brady v. Carteret, 67 N. J. Eq., 641. 
 
 (65) Brady v. Carteret Realty Co., 67 N. J. Eq., 641 ; Bilder v. Rob- 
 inson, 73 N. J. Eq., 169. 
 
 (66) Ayers V. Casey, 72 N. J. L., 223. 
 
 (67) Avon by the Sea Land &c. Co. v. Finn, 56 N. J. E'q., 805. 
 
 (68) Rutherford Land &c., Co. v. Sanntrock, 44 Atl., 938; affirmed, 
 60 N. J. Eq., 471. 
 
 (69) Brady v. Carteret, 67 N. J. Eq., 641. 
 
 (70) Boorum v. Tucker, 51 N. J. Eq., 13s ; affirmed, 32 N. J. Eq., 
 587. 
 
Setting Aside Sale. 635 
 
 any prior liens on the property, as the Sherifif's deed only con- 
 veys the interests of the parties under the mortgage. (71) 
 
 The title of a purchaser under a Sheriff's' deed is co-extensive 
 with the description contained in the mortgage, the bill to fore- 
 close, and the writ of execution under which the sale was 
 made. (72) So where a tract of land described by metes and 
 bounds, and stated to contain 121 acres more or less, was 
 sold by order of court after having been offered twice, the pur- 
 chaser being present on both occasions, and a week elapsing, 
 and with this opportunity to investigate the quantity of lands 
 before bidding, he purchased the track for a lump sum, it was 
 held that a shortage of 10 acres in the quantity of land was not 
 such a discrepancy as to entitle him to a diminution in the 
 price. (73) 
 
 On confirmation of a foreclosure sale by the court, the deed 
 issued to the purchaser relates back to the time of sale (74) ; 
 but the legal title does not vest in the purchaser at a judicial 
 sale until the delivery of the deed, and in the meantime the 
 property is held in trust for him, and the beneficial ownership 
 of the property is vested in him, so that any increase or de- 
 crease in value inures to him. (75) So where stone was quar- 
 ried by an insolvent corporation on the mortgaged premises 
 after decree of foreclosure and issuing of execution, and it 
 remained on the ground, it was held that the stone as between 
 mortgagor and mortgagee was subject to the mortgage. (76) 
 
 The lessee of a mortgagor, or his assignee, holding under a 
 lease made subsequent to the mortgage, is not entitled to emble- 
 ments as against the purchaser at a foreclosure sale under such 
 mortgage; such purchaser enters by title paramount, and may 
 treat the lessee as a trespasser. (77) And crops raised by a 
 son under an agreement with his father that he should assist in 
 the general farm work, and should have in return all he could 
 raise on a particular part of the farm, are no exception to the 
 
 (71) Bushey v. National State Bank, 66 Atl., 592; But see " Ex- 
 istence of Encumbrances," page 621, supra. 
 
 (72) McGee v. Smith, 16 N. J. Eq., 462. 
 
 (73) Close V. Brown, 20 Atl., 674. 
 
 (74) Wimpfheimer v. Prudential Ins. Co., 56 N. J. Eq., 585. 
 
 (75) Cropper v. Brown, 76 N. J. Eq., 406. 
 
 (76) American Trust Co. v. North Belleville Quarry Co., 31 N. J 
 Eq., 89. 
 
 (.77) Howell V. Schenck, 24 N. J. L., 89. 
 
636 Foreclosure of Mortgages. 
 
 rule that all of a tenant's crops pass on a sale under a mort- 
 gage foreclosure. (78) While the purchaser at a foreclosure 
 sale is entitled to all the profits accruing from the land pur- 
 chased from the date of the sale, such as, for example, rents 
 collected by a receiver appointed in the foreclosure proceed- 
 ings, he will not be so entitled until he has fully performed 
 the conditions of sale and accepted the Sheriff's deed. (79) 
 
 A Sheriff's deed op foreclosure, executed, sworn to and ap- 
 proved in accordance with the statute, is prima facie evidence 
 of the truth of its recitals. (80) 
 
 WRIT OF ASSISTANCE. 
 
 Nature and Function. The function of the writ of assist- 
 ance is to put into actual possession of property the person who 
 under the decree of the court becomes entitled thereto. ( i ) This 
 remedy is founded on the general principle that a court of 
 equity will, when it can do so justly, carry its decrees into full 
 execution without relying on the co-operation of any other tri- 
 bunal. The consequence is that it cannot refuse its aid to one 
 of its suitors' in this respect, except upon some reasonable 
 ground of equity. (2) 
 
 When Writ Will Issue. As a general rule, a purchaser 
 at a foreclosure sale who has obtained a deed from the Sheriff 
 is entitled to a writ of assistance to enable him to get possession 
 of the premises (3) ; but ordinarily the writ is only granted 
 against parties clearly bound by the decree, and where on the 
 application for the writ there is no substantial question that they 
 are so bound. If there is such a question, the respondent has 
 the right to have his legal rights regularly settled at law. (4) 
 
 (78) Calvin V. Shimer, 15 Atl., 255. 
 
 (79) Thompson v. Ramsey, 66 Atl, 588. 
 
 (80) N. Y & Greenwood Lake R. R. Co. v. State, 50 N. J. L., 303; 
 affirmed, S3 N. J. L., 244; Ayers v. Casey, 72 N. J. L., 223. 
 
 (i) Strong V. Smith, 68 N. J. Eq., 686. 
 
 (2) Strong V. Smith, 68 N. J. Eq., 686; Schenck v. Conover, 13 N. J 
 Eq., 220. 
 
 (3) Beatty v. DeForest, 27 N. J. Eq., 482. 
 
 (4) Blauvelt v. Smith, 22 N. J. Eq., 31; National B. & L, Ass'n. 
 V. Strauss, 49 Atl., 137. 
 
Writ of Assistance. 637 
 
 A purchaser under a decree in Chancery for the foreclosure 
 of a mortgage may by proper proceedings obtain a writ of as- 
 sistance against a person who was not a party to the fore- 
 closure suit, but who claims possession of the mortgaged prem- 
 ises under such a party, and whose right of possession is 
 clearly subordinate to that of the purchaser, even though the 
 rights- of the possessor have not been foreclosed under the de- 
 cree, (s) 
 
 A writ of assistance will run against persons not parties : 
 (a). Where the person in possession has entered pending the 
 suit under any of the parties, (b). Where such person has 
 entered pending suit as a trespasser, (c). Where such person 
 has subjected his title and right of possession to the operation 
 of section 58 of the Chancery Act, subjecting owners of un- 
 recorded instruments to the operation of a decree of fore- 
 closure and (d) where the person in possession conceals his' 
 title, and by his conduct represents to the parties interested 
 in the suit that his possession is subject thereto. (6) 
 
 Where one is in possession of mortgaged premises under an 
 unrecorded lease conceals his title during a foreclosure suit, 
 he will be estopped to resist an application for a writ of as- 
 sistance to dispossess him (7) ; and the fact that he had no 
 actual fraudulent intent in so doing, and did not know that his 
 rights under the concealed title were not affected by the fore- 
 closure, does not affect the force of the estoppel raised against 
 him to resist an application for a writ of assistance to dis- 
 possess him. (8) The estoppel to resist an application for a 
 writ of assistance in foreclosure proceedings, where the ground 
 for granting the writ is a concealment of title during such pro- 
 ceedings, is' not merely for the benefit of the purchaser at the 
 foreclosure sale, but rather for the benefit of the complainant, 
 who, in consequence of the concealment of title, has neglected 
 to make the person concealing the same a party ; and hence such 
 estoppel is not affected by the absence of injury to the pur- 
 chaser on account of the concealment. (9) 
 
 (5) Schenck v. Conover, 13 N. J. Eq., 220; Strong v. Smith, 68 N. J. 
 Eq., 686; But see N. J. B. & L. &c., Co. v. Schatzkin, 72 N. J. Eq., 175. 
 
 (6) Blauvelt v. Smith, 22 N. J. Eq., 31; Strong v. Smith, 68 N. J. 
 Eq., 686. 
 
 (7) Strong V.' Smith, 68 N. J. Eq., 686. 
 
 (8) Strong v. Smith, 68 N. J. Eq., 686. 
 
 (9) Strong V. Smith, 68 N. J. Eq., 686. 
 
638 Foreclosure of Mortgages. 
 
 When Writ Will Not Issue. The exercise of the power to 
 issue a writ of assistance rests in the sound discretion of the 
 Qourt. It will never be exercised in a case of doubt, nor under 
 color of its exercise will a legal title be tried or decided ( lo) ; 
 nor will the court in cases of doubt attempt to settle the rights 
 of any party claiming possession by title paramount to that 
 of the mortgagee or any other party in whose favor the decree 
 was made. ( 1 1 ) So the court will not make a decree upon the 
 right of possession, and order possession to be given, where the 
 right of possession depends upon a legal question, unless there 
 are special circumstances laying the foundation for equitable 
 interposition. (12) So when the party in possession claims to 
 hold the premises under a lease executed before the execution 
 of the mortgage under which the sale has been made, the court 
 will not grant a writ of assistance at the instance 
 of the purchaser under the mortgage. (13) So a pur- 
 chaser of mortgaged premises' at foreclosure cannot 
 have a writ of assistance, where there is a question 
 whether under Section 78 of the Chancery Act the de- 
 cree in the foreclosure suit is binding, against a purchaser from 
 a defendant named in the bill before issuance or service of 
 subpoena on such defendant, as the writ is only granted against 
 parties clearly bound by the decree. (14) And so where a de- 
 fendant in a foreclosure suit purchases a paramount title after 
 the decree for sale in the suit, such .defendant stands in the 
 same position as a stranger who purchases an outstanding title 
 and enters into possession, and will not be ousted from posses- 
 sion by a writ if assistance. (15) 
 
 The writ is a summary process used only when the right is 
 clear, and when there is no equity or appearance of equity in 
 the defendant, and where the sale and proceedings under the 
 decree are above suspicion. (16) So a writ of assistance has 
 
 (10) Schenck v. Conover, 13 N. J. Eq., 220; Vanmeter v. Borden, 
 25 N. J. Eq., 414; Barton v. Beatty, 28 N. j. Eq,, 412; Strong v. Smith, 
 68 N. J. Eq., 686; Board of Home Missions v. Davis, 70 N. J. Eq., 
 577; affirmed, 71 N. J. Eq., 788. 
 
 (11) Thomas v. DeBaum, 14 N. J. Eq., 37. 
 
 (12) Lehigh Zinc & Iron Co. v. Trotter, 43 N. J. Eq., 185. 
 
 (13) Thomas v. DeBaum, 14 N. J. Eq., 37. 
 
 (14) National B. & L. Ass'n. v. Strauss, 49 Atl., 137. 
 
 (is) Board of Home Missions v. Davis, 70 N. J. Eq., 577; affirmed. 
 71 N. J. Eq., 788. 
 
 (16) Blauvelt v. Smith, 22 N. J. Eq., 31. 
 
Writ of Assistance. 089 
 
 been refused because the sale under the execution was not suf- 
 ficiently advertised as to one of the tracts sold. (17) 
 
 A purchaser, who by his conduct subsequent to his purchase 
 leaves it doubtful whether he has not given the person in 
 possession a right to hold the land, is not entitled to a writ of 
 assistance. (18) So where a mortgagee purchasing the prem- 
 ises at a foreclosure sale stood by for over two years after the 
 purchase without exhibiting his title to a person in- possession 
 under a deed recorded at the time of the filing of the bill to 
 foreclose, or to her surviving husband, and they were in pos- 
 session without notice of the purchaser's title, it was held that 
 the purchaser was barred by laches from obtaining the aid of 
 the court, through a writ of assistance, for the removal of the 
 husband, claiming the premises as tenant by the curtesy. (19) 
 
 Practice. An order to deliver possession to the purchaser 
 of mortgaged premises under a decree of foreclosure will be 
 made only upon notice of the application, and proof that the 
 deed was shown to the tenant, that a demand of possession was 
 made, and that the tenant refused to comply. (20) 
 
 The order for possession of premises purchased at' foreclos- 
 ure or other sale under decree of the Court of Chancery may 
 direct that on refusal to deliver possession in pursuance of the 
 order for possession, upon service of the order accompanied by 
 demand of possession, application may be made without fur- 
 ther notice for a writ of assistance at a tinje and place fixed 
 in the order, which shall not be less than five days after the 
 service of the order^ unless otherwise specified in the order; 
 and upon proof of the service of a certified copy of said order 
 for possession, containing such direction, and of refusal to 
 deliver possession in pursuance thereof, complainant may at the 
 time and place fixed in the order, or such other time and place 
 as may then be fixed, apply for a writ of assistance, and the 
 same may be issued without further notice. (21) 
 
 (17) Vanmeter v. Borden, 25 N. J. Eq., 414. 
 
 (18) Barton v. Beatty, 28 N. J. Eq., 412. 
 
 (19) New Jersey B. & L. &c., Co. v. Schatzkin, 72 N. J. Eq., 175. 
 
 (20) Fackler v. Worth, 13 N. J. Eq., 395 ; Blauvelt, v. Smith, 22 N. J. 
 Eq., 31- 
 
 (21) Chancery Rule 220. 
 
640 Foreclosure of Mortgages. 
 
 DEFICIENCY AND PERSONAL LIABILITY. 
 
 Proceedings to Enforce Personal Liability. Prior to tlie 
 Act of 1880, the mortgagee might enforce the payment of 
 any deficiency arising at the foreclosure sale by a decree for 
 a deficiency in his foreclosure suit.(i) That act provides 
 that in all proceedings to foreclose mortgages thereafter com- 
 menced, no decree shall be rendered therein for any balance 
 of money which may be due complainant over and above the 
 proceeds of the sale or sales of the mortgaged property, and 
 no execution shall issue for the collection of such balance 
 under such foreclosure proceedings. (2) The Act of 1880 
 declaring that no decree for deficiency shall be made in a 
 foreclosure suit is valid, as such law does not deprive a 
 party of any remedy for enforcing a contract, existing when 
 the contract was made, but merely changes the practice of 
 the courts in pursuit of such remedy. (3) Since this act 
 took efifect, there can be no decree for deficiency, in a fore- 
 closure suit, against the obligors in the bond secured by the 
 mortgage in suit, nor against a mortgagor. (4) 
 
 Suit oil Bond to Recover Deficiency. As has been seen, 
 the Act of 1880 provides that if the mortgaged premises do 
 not sell for a sum sufficient to satisfy the mortgage debt, 
 interest and costs, the mortgagee may proceed upon the bond 
 for such deficiency. That act further provides that all suits 
 on said bond shall be commenced within six months from 
 the date of the sale of said mortgaged premises, and judg- 
 ment shall be rendered and execution issued only for the 
 balance of the debt and costs of suit. (5) The limitation in 
 this act that suits on bonds should be commenced within six 
 months from the date of the sale of the mortgaged premises, 
 is so connected with other parts of the act as to be insepar- 
 
 (i) Klapworth v. Dressier, 13 N., J. Eq., 62. 
 
 (2) P. L. 1880, p. 255, 3 Comp. Stat., p. 3420, sec. 47. 
 
 (3) Toffey V. Atcheson, 42 N. J. Eq., 182. 
 
 (4) Newark Savings Institution v. Forman, 33 N. J. Eq., 436; 
 Naar v. Union & Essex Land Co., 34 N. J. Eq., iii; Allen v. Allen, 
 34 N. J. Eq., 493 ; Chancellor v. Traphagen, 41 N. J. Eq., 369 ; Toffey 
 V. Atcheson, 42 N. J. Eq., 182. 
 
 (5) P. L. 1880, p. 2SS, as amended P. L. 1881, p. 184; 3 Comp. Stat., 
 p. 3421, sec. 48. 
 
Suits for Deficiency. . 641 
 
 able, and as to antecedent obligations is unconstitutional. (6) 
 The right of action upon a bond secured by a mortgage 
 will not be barred by the lapse of six months after sale of 
 the mortgaged premises in proceedings to foreclose a prior 
 mortgage, in which the junior mortgagee was made a party, 
 and where the sale of the mortgaged premises did not pro- 
 duce sufficient to satisfy his mortgage; the statute deals only 
 with the bond of the complainant in foreclosure. (7) And 
 where a note and a bond and mortgage are given for the 
 same debt, the obligee may, after the foreclosure of the 
 mortgage, proceed upon the bond, as the giving of the note 
 for the same debt does not take away the right of action 
 on the bond given by this act. (8) And this act does not 
 prevent the mortgagee from presenting his full claim to the 
 personal representatives of the deceased mortgagor before 
 such foreclosure sale, and obtaining his dividends on the 
 amount of such deficiency, if the estate be insolvent, more 
 than six months after such sale, though no action has been 
 brought on the bond. (9) 
 
 Where a bond and mortgage are given for the same in- 
 debtedness, and a decree is had in favor of the mortgagee 
 and obligee upon a bill to foreclose the mortgage, that decree 
 is conclusive in an action brought upon the bond for the 
 deficiency' as to any defense that was available in the fore- 
 closure suit. (10) 
 
 The personal liability of the mortgagor upon his bond for 
 any deficiency may be enforced by a suit in equity as well as 
 by an action at law.(ii) And a mortgagee to whom there 
 was due a deficiency judgment after foreclosure and sale of 
 mortgaged premises can maintain a suit in equity against the 
 mortgagor's executor, and a Savings Institution, to subject 
 to his judgment the money recovered by the mortgagor from 
 a railroad company for depreciation of the value of the mort- 
 
 (6) Coddington v. Bispham, 36 N. J. Eq., 574! Randolph v. Wilson, 
 38 N. J. Eq., 28; Baldwin v. Flagg, 43 N. J. L., 495; Champion v. 
 Hinkle, 45 N. J. Eq., 162; Wilkinson v. Rutherford, 49 N. J. L., 242. 
 
 (7) Wheeler v. Ellis, 56 N. J. L., 28. 
 
 (8) Crosby v. Washburn, 66 N. J. L., 494. 
 
 (9) Carter v. Smith, 42 N. J. Eq., 348; affirmed, 43 N. J. Eq., 636. 
 
 (10) State Mutual B. & L. Ass'n. v. Batterson, yy N. J. L., 57. 
 
 (11) Allen V. Allen, 34 N. J. Eq., 493; Green v. Stone, 54 N. J. 
 Eq., 387. 
 
642 Foreclosure of Mortgages. 
 
 gaged land due to its negligent burning of the timber thereon, 
 and deposited with such Savings Institution, though the action 
 at law for such damages was terminated before the commence- 
 ment of the foreclosure suit. (12) 
 
 As Against Grantee of Mortgaged Premises. Where one 
 purchases land and assumes in his deed to pay off a bond 
 and mortgage of his grantor, the obligation of ihe pur- 
 chaser to pay the debt inures in equity to the benefit of the 
 mortgagee. (13) This right of the mortgagee to hold a subse- 
 quent purchaser, whose deed contains such a stipulation, for 
 any deficiency, does not result from any fixed or vested right 
 in the mortgagee, arising either from the acceptance of the 
 conveyance of the mortgaged premises by the grantee or from 
 his obligation to pay the mortgage debt as between himself 
 and his grantee ; it rests merely on the doctrine of courts of 
 equity that a creditor may have the benefit of all collateral 
 obligations for the payment of the debt, which a person stand- 
 ing in the situation of surety for others holds for his indem- 
 nity, and that he may proceed directly against the person 
 ultimately liable in order to avoid circuity of action. (14) 
 
 As under the Acts of 1880 and 1881 the liability for a 
 deficiency judgment cannot be enforced against the mort- 
 gagor in the action to foreclose, it cannot in such an action 
 be enforced aga:inst a grantee of the mortgaged premises who 
 assumed payment of the debt (15) ; but the grantees of the 
 mortgaged premises, who assume the payment of the mort- 
 gage in their respective deeds, are nevertheless still liable 
 to the mortgagee on their several assumptions if a deficiency 
 remain after foreclosure, and their liability may be enforced 
 through an independent suit in equity. (16) And equity will 
 enforce the undertaking of successive grantees whose cove- 
 nants to assume and pay the mortgage debt, to which the 
 property conveyed is subject, form a chain of liabilities to 
 
 (12) Corporation v. Eden, 46 Atl., 717. 
 
 (13) Klapworth v. Dressier, 13 N. J. Eq., 62; Hoy v. Branihall, 19 
 N. J. Eq., 74; rev. ib., 563; Jarman v. Wiswall, 24 N. J. Eq., 267; 
 Pruden v. Williams, 26 N. J. Eq., 210; Crowell v. Hospital of St. 
 Barnabas, 27 N. J. Eq., 650. 
 
 (14) Crowell V. Hospital of St. Barnabas, 27 N. J. Eq., 650. 
 (is) Allen v. Allen, 34 N. J. Eq., 493. 
 
 (16) Allen V. Allen, 34 N. J. Eq., 493; Green v. Stone, 54 N. J. 
 Eq., 387. 
 
Suits for Deficiency. 643 
 
 pay the mortgage debt^ by decreeing payment of a deficiency 
 in the proceeds of the. sale of the mortgaged premises to 
 satisfy the mortgage debt. (17) B^ut where the purchaser 
 of mortgaged land agreed to pay the mortgage, but before the 
 ■same fell due, he reconveyed to the mortgagor, who assumed 
 the mortgage, it was held that the mortgagee was not entit- 
 led to a decree, against such purchaser personally for defici- 
 ency. (18) A parol assumption by a grantee of mortgaged 
 premises, made at the time of the conveyance to him, makes 
 him liable to a personal decree for deficiency. (19) 
 
 On any execution issued for deficiency against several 
 defendants, some liable after the others, the order in which 
 they are liable as between themselves shall be endorsed, and 
 if the deficiency be paid by a defendant not primarily liable, 
 he shall have the right to use the decree and execution to 
 compel the payment by parties liable before him. (20) 
 
 A mortgagee can derive no advantage from a covenant of 
 assumption in the deed, if the covenant be invalid between 
 the parties to the deed, as where there was no agreement 
 for assumption, and though the deed contained the covenant 
 and was delivered, the covenant escaped the notice of the 
 grantee, it being inserted in an unusual place in the deed. (21) 
 So though the assumption of a mortgage debt by a subse- 
 quent purchaser is absolute and unqualified in the deed of 
 conveyance to him, it will be controlled by a collateral con- 
 tract between him and his grantor not embodied in the deed, 
 and the mortgagee cannot enforce the contract unless the 
 grantor could. (22) Where an intestate assumed, in a deed 
 to him of certain lands, to pay a mortgage thereon, and also 
 gave complainants his bond conditioned to pay the mortgage 
 debt in one year thereafter, and after the death of intestate, 
 his administrator took the usual order to limit creditors, but 
 complainants never filed any claim thereunder, and a decree 
 barring creditors was accordingly entered, it X^as held that 
 
 (17) Biddle v. Pugh, S9 N. J. Eq., 480. 
 
 (18) Crowell V. Currier, 27 N. J. Eq., 152; Crowell v. Hospital of 
 St. Barnabas, 27 N. J. Eq., 650. 
 
 (19) Ketcham v. Brooks, 27 N. J. Eq., 347. 
 
 (20) Chancery Rule 116. 
 
 (21) Bull V. Titsworth, 29 N. J. Eq., 73; Stevens Institute v. 
 Sheridan, 30 N. J. Eq., 23 ; Parker v. Jenks, 36 N. J. Eq., 398. 
 
 (22) Klemmer v. Kerns, 7t N. J. Eq., 297. 
 
644 Foreclosure of Mortgages. 
 
 the administrators were not liable to a decree for deficiency on 
 their intestate's assumption. (23) 
 
 On a bill filed by a mortgagee to enforce the assumption 
 of the mortgage debt by the grantee of the mortgagor, the 
 defense that the assumption clause was improperly inserted 
 in the deed should be made by cross bill, and the grantor, or 
 his personal representatives in case of his death, should be 
 made parties to such cross bill. (24) And in a suit after 
 foreclosure against a vendee, who has assumed a mortgage 
 for deficiency, the defense that the assumption was inserted 
 in his deed by mistake leaves the burden of proof on him. 
 (25) Where the proceeds of a foreclosure sale, after sale, 
 are insufficient to pay the mortgage debt, and a bill for the 
 deficiency is brought against a purchaser of the mortgaged 
 premises, who by his conveyance had assumed to pay the 
 debt, the original owner and mortgagor is not a necessary 
 party to such bill, but may be made a party thereto by the 
 court, if necessary for the protection of those who have 
 assumed the payment of the mortgage. (26) Unpaid taxes 
 on mortgaged property at the time of sale under foreclosure 
 suit cannot be added to the deficiency, as the purchaser bought 
 subject thereto. (27) 
 
 DISPOSITION OF PROCEEDS OF SALE. 
 
 Persons Entitled to Proceeds. In suits for foreclosure, 
 each mortgagee is entitled to be paid his principal, interest 
 and costs, according to his priority. It is immaterial whether 
 the bill be filed by the first, last or any intermediate encum- 
 brancer. ( I ) 
 
 Right to Surplus. The surplus proceeds of a foreclosure 
 sale after satisfying the mortgage debt represent the equity 
 of redemption, and are constructively real property belong- 
 
 (23) Mutual Benefit Life Ins. Co. v. Howell, 32 N. J. Eq., 146. 
 
 (24) Green v. Stone, 54 N. J. Eq., 387. 
 
 (25) Wilson V. Randolph, 38 N. J. Eq., 28; affirmed, ib., 287. 
 
 (26) Pruden v. Williams, 26 N. J. Eq., 210. 
 
 (27) Field V. Thistle, 58 N. J. Eq., 339; afHrmed, 60 N. J. Eq., 444. 
 (i) Lithauer v. Royle, 17 N. J. Eq., 40; and see Chancery Act, 
 
 sec. 54, page 50, supra. 
 
Proceeds of Sale. 645 
 
 ing to the mortgagor. (2) So where the real estate of an 
 intestate is sold under foreclosure, the surplus belongs to the 
 heir and not to the administrator (3) ; and the holder of a 
 judgment subsequent to a mortgage cannot in foreclosure 
 claim the surplus proceeds, when he has already levied on 
 and sold the knd under his judgment, though it in fact is 
 unsatisfied. (4) 
 
 Every Sheriff shall make return of his execution, and pay 
 to the clerk of this court any surplus in his hands within 
 thirty days after sale; and no execution shall hereafter be 
 directed to any Sheriff while he shall be in default in either 
 of the above respects ; and any Sheriff who shall pay over to 
 any defendant named in an execution any money raised by 
 him on the same, unless so directed by the writ, or by an 
 order of the court afterwards made, shall have no allowance 
 for the same. (s) The court may in its discretion order the 
 proceeds of the sale pf lands under foreclosure paid into 
 court, even though the terms of the writ of execution make 
 it payable to a person named (6) ; but where the court ordered 
 the proceeds of a foreclosure sale paid into court, upon the 
 application of the widow of the mortgagor, who claimed to 
 have a dower interest in the property, without any inquiry 
 into the truth of her allegations, the Court of Errors and 
 Appeals held that while no substantial grievance was inflicted 
 by such course, that the Chancellor might well have made an 
 inquiry into the truth of her allegations before ordering the 
 money paid, into court. (7) 
 
 Petitions for surplus moneys in foreclosure suits may be 
 presented at any time after the sale, and before the moneys 
 are paid into court; and if any order be made for the pay- 
 ment of such surplus before the delivery of the deed, the 
 Sheriff or other officer making the sale shall accept the receipt 
 or order of the person to whom such surplus, or any part of 
 it, may be ordered to be paid, as payment to that extent of 
 
 (2) Hinchman v. Stiles, 9 N. J. Eq., 361 ; Troxall v. Silverthorne, 
 II Atl., 684. 
 
 (3) Hinchman v. Stiles, 9 N. J. Eq., 361 ; Johns v. Norris, 22 N. J. 
 Eq., 102; reversed, 27 N. J. Eq., 485. 
 
 (4) Lambertville National Bank v. Boss, 13 Atl., 18. 
 
 (5) Chancery Rule 117. 
 
 (6) Gifford v. McGuinness, 63 N. J. Eq., 834. 
 
 (7) Gifford V. McGuinness, 63 N. J. Eq., 834. 
 
040 Foreclosure of Mortgages. 
 
 the purchase money, or may pay the same to such person. (8) 
 On an application for surplus moneys, all parties to the origi- 
 nal suit who have an interest not only in the money, but in 
 the matter of its disposition, should be made parties. (9) So 
 a purchaser at a Sheriff's sale, when not a party to the origi- 
 nal suit, is, as has been seen, held to be made a party by the 
 purchase, so far as to be subject to the jurisdiction of the 
 court on questions arising from the sale. Upon the same 
 principle, he may be held to have a standing in court suffi- 
 cient to be heard upon the subject of the disposition of the 
 purchase money while .still in court, when part has been paid 
 by him and he claims the right to have it restored. (10) 
 
 If the rights of the parties claiming to share in the distribu- 
 tion are not entirely clear, the court may refer the matter to 
 a Master to ascertain and report the facts (11); and where 
 on petition for surplus moneys an order of reference to a 
 Master is made, the Master must make his report, and a final 
 order of the court be made, before the money can be paid 
 over. (12) Any Master to whom an application for surplus 
 money may be referred shall issue summonses to all defend- 
 ants whose claims are not directed, in the execution, to be 
 paid out of the proceeds of sale; and he shall not proceed 
 unless such summonses shall have been served five days, as 
 directed in the 20th rule, or the parties shall appear before 
 him.(i3) 
 
 Upon an application for surplus moneys, the rights of the 
 parties must be considered to have been ascertained under 
 the proceedings in the foreclosure suit, and they will not be 
 permitted to further litigate them upon such an application. 
 So a mortgagor who answered a foreclosure bill, but did not 
 dispute the claim of a judgment creditor in attachment, who 
 had answered setting up his judgment, will not be permitted 
 to call such judgment in question on a petition by such credi- 
 tor for the surplus money. (14) And so owners of the fee 
 
 (8) Chancery Rule 153. 
 
 <9) Hare v. Headley, 52 N. J. Eq., 496. 
 
 (10) Shann v. Jones, 19 N. J. Eq., 251; Townsend v. Simon, 38 
 N. J. L, 239. 
 
 (11) Whitehead v. First Methodist &c., Church, 15 N. J. Eq., 135. 
 .(12) Ex parte Allen, 2 N. J. Eq., 388. 
 
 (13) Chancery Rule 154. 
 
 (14) Brantingham v. Brantingham, 12 N. J. Eq., 160. 
 
Costs and Fees. 647 
 
 in land ordered to be sold to satisfy a first mortgage, who 
 purchased after mechanics had acquired a lien thereon, but 
 before the. actual filing of their claim, are precluded after 
 such sale and the surplus brought into court, from disputing 
 that the hen covered other machinery put on the premises by 
 such owners after the lien was filed, and included in the sale 
 on the ground that such machinery was not fixtures. (15) 
 
 Application of Surplus Proceeds of Sale to Payment of 
 Judgment. (16) 
 
 Satisfaction of Dower Rights in Fund. (17) 
 Application by Administrator of Deceased Mortgagor for 
 Surplus Proceeds for the purpose of Paying Debts of Dece- 
 dent. (18) 
 
 COSTS AND FEES. 
 
 General Rule. The general rule is that the mortgagee is 
 entitled to costs both on bills to redeem and to foreclose ( i ) ; 
 but costs will be refused where complainant's proceedings 
 have been unnecessary and vexatious. So where the solicitor 
 of complainant insisted on the sale of mortgaged premises 
 and a report of such sale by the Sheriff, after he had been 
 . informed that all the parties in interest had agreed to the 
 settlement of the controversy and specifically performed their 
 agreement, and after an offer to pay him and the Sheriff their 
 costs, such soHcitor will be liable to costs on motion to set 
 aside such report of sale. (2) So a suit for foreclosure upon 
 each of two mortgages covering the same premises, both of 
 which were in the hands of the complainant when the first 
 bill was filed, is unnecessary and oppressive, and costs will be 
 allowed in but one suit (3) ; but where the second bill was 
 rendered necessary by the fact (discovered after the filing of 
 
 (is) Amett v. Finney, 29 N. J. Eq., 309. 
 
 (16) See Chancery Act, sec, 93, page 76, supra. 
 
 (17) See Chancery Act, sec. 60, page SS, supra. 
 
 (18) See Chancery Act, section 63, page 57, supra. 
 
 (i) Danbury v. Robinson, 14 N. J. Eq., 324; Burlew v. Hillman, 
 
 16 N. J. Eq., 23. 
 
 (2) Hobbs V. Lippincott, 23 Atl., 955. 
 
 (3) Deniarest v. Berry, 16 N. J. Eq., 481. 
 
648 Foreclosure of Mortgages. 
 
 the first' bill) that the mortgage upon which the first bill was 
 filed covered a part only of the premises included in the other 
 mortgage, proceedings in the first suit will be stayed, and the 
 seq^ond suit alone allowed to proceed. (4) So costs were denied 
 to complainant in a foreclosure suit where he had unreason- 
 ably demanded a much larger sum than was due on the mort- 
 gage, and defendant had been diligent in endeavoring to 
 ascertain the amount from complainant and his solicitor in 
 order to pay the debt. (5) 
 
 Where a mortgagor has made a tender of legal tender notes 
 before a suit to foreclose the mortgage, the court may, in its 
 discretion, decree that if defendant pay the amount of the 
 mortgage within a designated period that neither party shall 
 recover costs. (6) But when a mortgage securing payment 
 of several bonds is in process of foreclosure, an offer to pay 
 one of the bonds which is held by the complainant, and the 
 costs of the pending foreclosure to date, accompanied by a 
 demand for an assignment of the bond, is not such a tender 
 as will stop the running of interest or the accruing of costs. (7) 
 And where a mortgage, void as to creditors, was good in the 
 hands of a bana fide purchaser for value, a creditor of the 
 mortgagor purchasing the equity of redemption was held not 
 liable for costs on foreclosure, because of the defense set up 
 by him of the fraud in the original making of the mortgage. (8) 
 And where on a bill to foreclose by one holding a second 
 mortgage on four lots, the holders of the prior separate mort- 
 gages on the lots were made parties, and appeared before the 
 Master and proved their respective claims, the costs of obtain- 
 ing the decree, as well as the costs of execution and sale, must 
 be borne by them in proportion to the respective amounts 
 realized by them, although the sale of each lot did not bring 
 enough to pay the first mortgage. (9) • 
 
 Ordinarily a mortgage is a lien on the land not only for the 
 debt secured, but also for the costs of enforcing it; and a 
 foreclosure suit being one in rent, and not a personal action 
 
 (4) Detnarest v. Berry, 16 N. J. Eq., 481. 
 
 (5) Large v. VanDoren, 14 N. J. Eq., 208. 
 
 (6) Stockton V. Dundee Mfg. Co., 22 N. J. Eq., 56. 
 
 (7) Whittak«r v. Belvidere Roller Mill Co., 55 N. J. Eq., 674. 
 
 (8) Danbury v. Robinson, 14 N. J. Eq., 324. 
 
 (9) Scott V. Somers, 9 Atl., 718. 
 
Costs and Fees. 649 
 
 against defendant, the costs of the proceeding are to be paid 
 out of the proceeds of sale. So where a second mortgagee 
 files a bill to foreclose, and makes the first mortgagee a party, 
 and the first mortgagee comes in and accepts the benefit of the 
 proceedings, all the ordinary costs of the suit must be borne 
 by the fund.(io) So the costs incurred by the complainant, 
 in resisting a motion on the part of the mortgagor to set aside 
 the execution, will be ordered paid out of the surplus money 
 in preference to the claim of a purchaser of the mortgaged 
 premises, who takes title from the mortgagor after the decree 
 and before the motion to set aside the ■execution.(ii) 
 
 The practice has always been, where a bill is filed by a second 
 mortgagee, making the first mortgagee a party to the suit, to 
 decree the taxed costs of the first mortgagee, not only to be 
 paid, but to be first paid out of the money raised by a sale of 
 the mortgaged premises ; and the mere fact that such a mort- 
 gagee has extended his claim beyond what the court finally 
 decides to be that to which he is entitled is no ground for re- 
 fusing him his costs. (12) So on a bill to foreclose brought 
 by a second mortgagee, to which the first mortgagee was made 
 a party, where an issue of fraud in the execution of the first 
 mortgage was overruled, it was held that if the proceeds of 
 the sale would pay all the claims and costs, the ordinary 
 foreclosure costs' should be paid first, the first mortgagee's claim 
 and costs next and the second mortgagee's claim and costs 
 last. (13) But unnecessary expenses incurred in the litigation 
 will not be allowed from the fund, when their allowance would 
 prejudice subsequent encumbrancers. So when a prior mort- 
 gage had by his answer attacked the validity of complainant's 
 mortgage, in an action to foreclose, when the protection of 
 his rights required no such defense, his conduct was held vex- 
 atious, and costs out of the estate were denied him. (14) 
 
 (10) Berlin B. & L. Ass'n. v. Clifford, 30 N. J. Eq., 482; Scatter- 
 good V. Keeley, 40 N. J. Eq., 491. 
 
 (11) McPherson v. Hotisel, 13 N. J. Eq., 299. 
 
 (12) Concklin v. Coddington, 12 N. J. Eq., 250. 
 
 (13) Scattergood' V. Keeley, 40 N. J. Eq., 49T. 
 
 (14) Danbury v. Robinson, 14 N, J. Eq., ,^24. 
 
G50 Redemption of Mortgages. 
 
 The Chancellor may fix counsel fees and order them to be 
 included in the taxed costs (iS) ; and fees for searches may 
 also be included. (i6) 
 
 Where a mortgagee is made a defendant in a suit to fore- 
 close, and the final decree in that suit gives such mortgagee his 
 costs, he will not be required to cancel or release his mortgage 
 before the costs are paid. The mortgage is merged in the de- 
 cree, and such relief will not be granted until the decree is fully 
 satisfied. (17) 
 
 Costs Where Amount Due is Less Than $300. (18) 
 
 REDEMPTION OF MORTGAGES. 
 
 In General. As already observed, mortgages of land were 
 originally estates' upon condition, and the mortgagor failing to 
 perform that condition upon the day stipulated, lost his estate 
 forever. The idea of redemption after breach of the con- 
 dition is said to have been introduced into English jurisprudence 
 from' the Roman law, under which default in the payment of 
 the mortgage debt at the time stipulated did not work a for- 
 feiture of the property, but gave the creditor thereupon the au- 
 thority to sell the property and reimburse himself from the pro- 
 ceeds'. Redemption is purely a creature of courts of equity. 
 Adopting the principle of the civil law, that a mortgage is 
 merely a security for the payment of a debt, they interposed to 
 prevent the hardship and injustice which resulted at common 
 law from the failure of the mortgagor strictly to comply with 
 the condition of the mortgage. Although the mortgagor had 
 forfeited his estate at law, courts of equity allowed him to re- 
 deem his estate within a reasonable time upon payment of the 
 debt and all proper charges, and this right was called the equity 
 of redemption. ( I ) 
 
 Right to Redeem. The right of redemption is a creature 
 of the law, and is an incident inseparable from a mortgage, of 
 
 (is) Chancery Act, sec. 91 and notes, page 73, supra. 
 
 (16) Chancery Act, sec. 92 and notes, page 75, supra, and see 
 "Fees and Costs," page 647, supra. 
 
 (17) Lewis V. Conover, 21 N. J. Eq., 230. 
 
 (18) See Chancery Act, sec. 59, page 54, supra. 
 (i) Jones on Mortgages, Sec. 1038. 
 
Persons Entitled to Redeem. 651 
 
 which the mortgagor cannot deprive himself, even by express 
 covenant for that purpose. It matters not how strongly the 
 parties may express their agreement that there shall be no re- 
 demption; the intent being contrary to the rules of equity, 
 cannot be carried into effect. (2) Even where a mortgagee 
 has obtained possession of the mortgaged premises under the 
 mortgage, the mortgagor has the right, on payment of the mort- 
 gage debt, to redeem the premises and have possession re- 
 delivered to him. (3) So where the sale of mortgaged premises 
 under foreclosure proceedings took place contrary to the sher- 
 iff's assurance that it would be adjourned, leave was granted 
 the owner of the equity of redemption to redeem. (4) 
 
 Where a deed, absolute on its face, is made only as security 
 for a loan, it will be regarded as a mortgage, which the real 
 owner of the property may redeem. (5) If by the transaction 
 the parties design to create a mortgage, the time fixed for re- 
 demption is immaterial. Once a mortgage, always a mortgage, 
 is a maxim of equity to which there is no exception (6) ; and 
 the equity of redemption of a mortgage in the form of an ab- 
 solute deed is not lost by the fact that the defeasance has been 
 withheld from the records in order to mislead and delay the 
 mortgaor's creditors. The fraud, if any, affects the deed, not 
 the defeasance. (7) 
 
 Persons Entitled to Redeem. The right of redemption 
 from a mortgage belongs primarily to the mortgagor and those 
 succeeding to his title, and to such persons as' have a title or 
 interest in the mortgaged premises which would be injured by 
 the foreclosure. (8) So where defendants purchased under 
 foreclosure, knowing that complainants were equitably en- 
 titled to a certain undivided interest in the land, and when the 
 
 (2) Crane v. Bonnell, 2 N. J. Eq., 264; Griffin v. Cooper, 73 N. J. 
 Eq., 46s; S. C, 74 N. J. Eq., 16. 
 
 (3) Osborne v. Tunis, 25 N. J. L., 633. 
 
 (4) Nevius V. Egbert, 31 N. J. Eq., 460. 
 
 (5) Crane v. DeCamp, 21 N. J. Eq., 414; Sweet v. Parker, 22 N. J. 
 Eq., 4S3; Winters v. Earl, 52 N. J. Eq., 52; affirmed ib., gS&; Vander- 
 hoven v. Romaine, 56 N. J. Eq., I. 
 
 (6) Youle V. Richards, I N. J. Eq., 534; Crane v. Bonnell, 2 N. J. 
 Eq., 264 ; Vanderhaize v. Hugues, 13 N. J. Eq., 244. 
 
 (7) Clark v.Condit, 18 N. J. Eq., 358. 
 
 (8^ 27 Cyc. 1804, and cases cited ; Crane v. Bonnell, 2 N. J. Eq., 
 264; Osborne v. Tunis, 25 N. J. L., 633; and see "Right to Redeem," 
 page 650, supra. 
 
652 Redemption of Mortgages. 
 
 mortgage was executed, the mortgagee had no notice of com- 
 plainant's interest, it was held that complainants were entitled 
 to an order of sale permitting them to redeem their interest in 
 the land by paying whatever deficiency there might be due on 
 the mortgage after sale of the interest which the mortgagor 
 owned. (9) 
 
 As a general rule, all persons who have acquired an interest 
 in the lands mortgaged, where the mortgage is due and liable to 
 be foreclosed, have a right to disengage the property from all 
 encumbrances when it becomes necessary to do so in order to 
 make- their own claims available or beneficial. (10) So where a 
 vendee mortgages his interest in a contract to convey, such 
 mortgagee has the right, if the vendee refuses to fulfill the 
 agreement to purchase, himself to assume his position and re- 
 deem the property. ( 1 1 ) So a woman who marries a man 
 whose estate is mortgaged, or a woman joining her husband in 
 the execution of a mortgage, may have her bill to redeem dur- 
 ing the lifetime of her husband. (12). 
 
 A widow, entitled to dower, has a right to her bill in equity 
 to redeem a mortgage which is an encumbrance upon herrights. 
 She is entitled to dower in the equity of redemption (13) ; 
 and a widow in possession as doweress, under her right of quar- 
 antine, of premises which had been mortgaged by her husband 
 while single, is entitled to protect her estate thereunder by re- 
 deeming from such mortagge.(i4) But a doweress cannot file 
 a bill to redeem and call the mortgagees to account for the rent 
 and profits', where the mortgage is not an encumbrance upon her 
 dower right, as when the mortgage was executed during cove- 
 ture and she was not a party to it. (15) 
 
 When the mortgagor dies seized of the equity of redemption 
 in mortgaged premises, his heirs at law or devisees may redeem. 
 So where complainant died before a decree for redeeming 
 lands', which he had demised by his will, was signed in his favor, 
 
 (9) Geishaker v. Pancoast, 57 N. J. Eq., 60; affirmed, 58 N. J. Eq., 
 537- 
 
 (10) Bigelow V. Cassedy, 26 N. J. Eq., 557. 
 
 (11) Sinclair v. Armitage, 12 N. J. Eq., 174. 
 
 (12) Opdyke v. Bartles, II N. J. Eq., 133. 
 
 (13) Opdyke v. Bartles, 11 N. J. Eq., 133. 
 
 (14) Merselis v. VanRiper, 55 N. J. Eq., 618. 
 
 (15) Opdyke v. Bartles, 11 N. J. Eq., 133. 
 
Persons Entitled to Redeem. 653 
 
 it was held that his heirs at law were the proper persons tO' re- 
 vive, and' that the executor and the persons interested in the 
 personal estate under the will should be made parties'. (i6) 
 
 A tenant for years has the right to redeem from a prior mort- 
 gage. He has not, perhaps, strictly the right to demand a 
 written assignment of the bond and mortgage, but he stands, by 
 redemption, in place of the mortgagee, and will be subrogated 
 to his rights against the mortgagor and the reversioner, and has 
 the right to have the mortgage delivered to him uncancel- 
 led. (17) The right of the senior mortgagee on the foreclosure 
 by the junior mortgagee is the right to foreclose, and not the 
 right to redeem. (18) But a first mortgagee purchasing at his 
 foreclosure sale may by bill to redeem require a second mort- 
 gagee, who by oversight was not made a party to the foreclos- 
 ure, to redeem within a reasonable time. ( 19) 
 
 A subsequent encumbrancer, such as a second mortgagee 
 or a judgment creditor, is not entitled merely as' such encum- 
 brancer to redeem a prior mortgage; and unless some special 
 equity exists in the subsequent encumbranceri the prior mort- 
 gagee has a right to retain his security, and may refuse to sur- 
 render it. (20) Nor can a second encumbrancer compel the 
 holder of a first lien to redeem the second or be fore- 
 closed. (21) So a subsequent encumbrancer, who was a party 
 to the foreclosure suit on a prior mortgage, cannot, after fore- 
 closure sale and purchase by the prior mortgagee, redeem from 
 the prior mortgage without setting aside the sale as to all parties 
 thereto (22) ; and where the right to redeem is disputed be- 
 tween two subsequent encumbrancers, a prior mortgagee may 
 decline to allow either to redeem, except by decree in a suit 
 in which the claimants are parties. (23) But if a second en- 
 cumbrancer happens to be in such a position that he is in 
 danger of losing the benefit of his security unless he is per- 
 mitted to redeem, and the circumstances are such that equity 
 
 (16) Lanning v. Cole, 6 N. J. Eq., 102. 
 
 (17) Hamilton v. Dobbs, 19 N. J. Eq., 227; Fidelity Trust Co. 
 V. Hoboken &c., R. R. Co., 71 N. J. Eq., 14. 
 
 (18) Kuntzman v. Smith, ^y N. J. Eq., 30. 
 
 (19) Parki.r v. Child, 25 N. J. Eq., 41. 
 
 (20) Wimpfheimer v. Prudential Ins. Co., 56 N. J. Eq., 585. 
 
 (21) Dickinson v. City of Treniton, 35 N. J. Eq., 416. 
 
 (22) Wimpfheimer v. Prudential Ins. Co., 56 N. J. Eq., 585. 
 
 (23) Wimpfheimer v. Prudential Ins. Co., 56 N. J. Eq., 585. 
 
65J: Redemption of Mortgages. 
 
 would subrogate him, upon making these facts known to the 
 first mortgagee and making him an unconditional tender of 
 his money, the latter will be put upon his inquiry, and after 
 taking a reasonable time to be advised, his refusal to accept 
 the tender and deliver up his mortgage will be at his peril. (24) 
 
 Time for Redemption. The right to redeem a mortgage 
 begins at the maturity of the debt secured by the mortgage, 
 or upon breach of the mortgage, and continues until cut off by 
 foreclosure; there can be no redemption until the mortgage is 
 due. (25) And even if the mortgagor tenders the interest for 
 the whole period the mortgage has to run, a suit to rdeem 
 cannot be maintained against the objection of the mortgagee 
 until the mortgage is due by its terms; the. courts cannot sub- 
 stitute another contract for that rnade by the parties. (26) If 
 after the foreclosure and sale of any mortgaged premises the 
 person who is entitled to the debt shall recover a judgment 
 in a suit on said bond for any balance of debt, such recovery 
 shall open the foreclosure and sale of said premises, and the 
 person against whom the judgment has been recovered may 
 redeem the property by paying the full amount of money for 
 which the decree was rendered, with interest to be computed 
 from the date of decree and all costs of proceedings on the 
 bond ; provided, that a suit for redemption be brought within 
 six months after the entry of such judgment for the balance 
 of the debt. (27) So if after a decree of foreclosure of a. 
 mortgage the creditor proceed against his debtor for the mort- 
 gage debt, the decree of foreclosure is thereby opened and the 
 debtor is let in to redeem. (28) The right of redemption con- 
 tinues until barred by lapse of time, by strict foreclosure, or 
 by deed given in completion of a foreclosure sale. (29) 
 
 Agreements as to Time for Redemption. The right of 
 redemption cannot be restricted by agreement to a limited time 
 
 (24) Bigelbw V. Cassedy, 26 N. J. Eq., 557; reversed, 27 N. J. 
 Eq., 505- 
 
 (25) Jones on Mortgages, sec. 1052. 
 
 (26) Abbe V. Goodwin, 7 Conn. 377. 
 
 (27) P. L. 1880, p. 256, as amended P. L. 1881, p. 185; 3 Comp. 
 Stat., p. 3422, sec. 49. 
 
 (28) Osborne v. Tunis, 25 N. J. L., 633. 
 
 (29) Jones on Mortgages, sec. 1052. 
 
Time for Redemption. 655 
 
 or to a particular class of persons. (30) So where an agree- 
 ment is for a loan to be repaid at a fixed time, the borrower 
 cannot, as part of the transaction, deprive himself of the right 
 to redeem from the mortgage, in the form of a deed given as 
 security, even by an express agrement for that purpose (31) ; 
 and where a bill charged that the agreement for redemption 
 was entrusted to a third person, and the agent for the defend- 
 ant by false representations induced him^ to deliver it up, con- 
 trary to the wishes and without the knowledge of the com- 
 plainant, it was held that complainant's equity will not be there- 
 by impaired, but that he would be entitled to redeem. (32) And 
 where the owner of an equity of redemption, who was en- 
 titled to ask for an adjournment of a foreclosure sale to pro- 
 cure an order for a sale in parcels, agreed with the mortgagees 
 that the latter should bid in the land and give him an option 
 to redeem within thirty . days, it was held that the sale did 
 not change the relations between the parties until the expira- 
 tion of that period. (33) So where the mortgagee upon a fore- 
 closure of this mortgage agrees with the mortgagor, in case of 
 sale, to purchase the property at the lowest price he can, and 
 then convey it to the mortgagor and take a new mortgage for 
 the whole amount due upon his decree, the mortgagor, after 
 sale and purchase by the mortgagee, may treat the latter as 
 a lienholder, and redeem- the premises. (34) So when a pur- 
 chase is made at a sheriff's sale under a parol agreement with 
 the defendant in execution that he shall be permitted to redeem, 
 he will be entitled to a reconveyance on paying what would be 
 due -to the purchaser. (35) 
 
 The right of redemption may be surrendered by the mort- 
 gagor, or be barred by foreclosure or by lapse of time; and 
 there is no distinction in this respect between a mortgage in 
 
 (30) Youle V. Richards, i N. J. Eq., 534; Crane v. Bonnell, 2 N. J. 
 E^., 264; Vanderhaize v. Hugues, 13 N. J. Eq., 244. 
 
 (31)' Griffin V. Cooper, 73 N. J. Eq., 465; S. C, 74 N. J. Eq., 16. 
 
 (32) Youle V. Richards, i N. J. Eq., 534. 
 
 (33) Heald v. Jardine, 21 Atl. Rep., 586. 
 
 (34) Snyder v. Greaves, 21 Atl. Rep., 291 ; But see Seeley v. Adams, 
 SS Atl. Rep., 820. 
 
 (35 ) Combs V. Little, 4 N. J. Eq., 310; Dodd v. Wakeman, 26 N. J. 
 Eq., 484; aMrmed, 27 N. J. Exi., 564. 
 
656 Redemption of Mortgages. 
 
 the usual form and an absolute conveyance made as a mere 
 security of money. (36) 
 
 Estoppel to Assert Right of Redemption. A person hav- 
 ing an equity of redemption in land, arising out of an abso- 
 lute conveyance and a separate contract to reconvey, may 
 estop himself from setting up his equity by standing by and 
 seeing the grantee make valuable improvements on the land 
 on the supposition that he is the absolute ovv'ner, or by enforc- 
 ing against him pecuniary demands based upon such owner- 
 ship. (37) So where under an arrangement between the widow 
 and the administrator of decedent to procure a foreclosure 
 sale of the intestate's lands, in which the administrator was 
 to buy them at an inadequate price, by announcing at the 
 sale that he was purchasing for the widow and thus dis- 
 suade others from bidding, the administrator purchased the 
 lands at the Sheriff's sale and agreed to convey them to the 
 widow for the price at which they were struck off to him, and 
 on his refusal subsequently to do so, the widow and the intes- 
 tate's only child filed a bill to redeem, it was held that the 
 widow, having participated in the fraud, was not entitled to 
 relief. (38) 
 
 Bar by Adverse Possession of Mortgagee. If a mortgagee 
 and those under him be in possession of the lands, tenements 
 and hereditaments contained in the mortgage, or any part 
 thereof, for twenty years after default in payment by the 
 mortgagor, then the right or equity of redemption therein shall 
 be forever barred. (39) Twenty years' possession of the premi- 
 ses by a mortgagee under his mortgage, pursuant to this act, 
 without accounting to the mortgagor for rents or profits or 
 otherwise recognizing the mortgage as a subsisting lien, where 
 the mortgagor is under no disability, bars the mortgagor's 
 equity of redemption ; and the extinguishment of the mort- 
 gagor's equity effected by this statute, unlike the extinguish- 
 ment effected by mere judicial action, is not subject -to be 
 
 (36) Youle V. Richards, I N. J. Eq., 534; Vanderhaize v. Hugues 
 13 N. J. Eiq., 244; Phillips v. Hulsizer, 20 N. J. Eq., 308; Crane v. 
 DeCamp, 21 N. J. Eq., 414. 
 
 (37) Pace V. Bartles, 47 N. J. Eq., 170. 
 
 (38) Johns V. Norris, 27 N. J. Eq., 485. 
 
 (39) 3 Comp. Stat., 3170, sec. 18. 
 
Amount Required to Redeem. 657 
 
 waived by an incautious admission of the mortgagee. (40) 
 There is nothing in the language of this statute, or in its spirit 
 or purpose, which will justify an inference that the bar which 
 it creates should be subject to be waived, at least by any act 
 of the mortgagee done with intent to strengthen his title ; and 
 so where a mortgagee who had been in possession of mort- 
 gaged premises twenty years after default of payment filed a 
 bill for strict foreclosure, and defendant filed a cross bill setting 
 up all the facts and praying redemption, it was held that the 
 cross bill should be dismissed, since the filing of the bill by 
 the mortgagee to foreclose was not a waiver of the statute. (41) 
 
 Amount Required to Redeem. Since redemption is an 
 equitable right, it can be claimed by a mortgagor only on the 
 terms of his paying all that is justly and equitably due under 
 the mortgage. (42) But, on the other hand, the mortgagee 
 can claim no more than is actually and fairly due him. (43) 
 A doweress, in redeeming from a mortgage in order to pro- 
 tect her estate, should, as between herself and the devisee of 
 the fee, pay a proportionate amount of such debt to be ascer- 
 tained by apportionment on the basis of the present value of 
 her life estate, the latter to be ascertained according to the 
 life tables. (44) 
 
 Where a first mortgage is foreclosed, a subsequent encum- 
 brancer can redeem only by paying the full amount of the 
 debt, whatever may be the price at which the property was 
 sold on foreclosure. (45) So where a first mortgagee purchas- 
 ing at his foreclosure sale files a bill to require a second mort- 
 gagee, who by oversight was not made a party to the fore- 
 closure, to redeem, such purchaser, as prior encumbrancer, 
 must be reimbursed not only to the full amount due for princi- 
 pal and interest upon his mortgage, but also to the full amount 
 of the purchase money paid by him over and above such 
 amount, the excess having been appropriated in payment of 
 
 (40) Bates V. Conrow, 11 N. J. Eq., 137; Chapin v. Wright, 41 N. J. 
 Eq., 438. 
 
 (41)' Chapin v. Wright, 41 N .J. Eq., 438; Coogan v. McCarren, 50 
 N. J. Eq., 611. 
 
 (42) 27 Cyc. p. 1823, and cases cited; Large v. VanDoren, 14 N. J. 
 Eq., 208 ; Large v. Ditraars, 27 N. J. Eq., 406. 
 
 (43) McKee v. Jordan, 50 N. J. Eq., 306. 
 
 (44) Merselis v. VanRiper, 55 N. J. Eq., 618. 
 
 (45) Large v. VanDoren, 14 N. J. Eq., 208. 
 
658 Redemption of Mortgages. 
 
 claims prior to the second mortgage. (46) A corporation, 
 which has acquired title to part of mortgaged premises under 
 condemnation, under the power of eminent domain, cannot 
 redeem such portion by paying only a proportionate share of 
 the mortgage debt, but must redeem the whole. (47) 
 
 Necessity for Tender. The effect of a tender, lawfully 
 made, is to discharge the debtor from subsequent interest and 
 costs; but to have this effect, the amount tendered must be 
 kept in readiness, and on bill to redeem, or on plea or answer 
 setting up the tender, the money must be paid into court. (48) 
 An unconditional offer by an execution creditor, seeking to 
 redeem from a mortgage, of the amount of the mortgage and 
 interest, the mortgagee not stating the expenses incurred by 
 him, is a sufficient tender. (49) The court will not permit the 
 owner of the equity of redemption to be deprived of his right 
 to redeem the mortgage by means of secret assignments; but 
 in such case a tender of the money to the mortgagee before 
 the filing of the bill to redeem will be held to be a tender 
 to the unknown assignee of the mortgage. (50) 
 
 Accounting by Mortgagee. Ordinarily a mortgagee in 
 actual possession under a formal mortgage is bound to account 
 for what he has or without fraud or willful default might have 
 received from the time of taking possession ; but credit should 
 be given for necessary repairs, costs of insurance and last- 
 ing improvements, with no allowance, however, for renting 
 and taking care of the property.(5i) So where a first mort- 
 gagee purchasing at his foreclosure sale seeks to compel a 
 second mortgagee not a party to the foreclosure suit to redeem 
 he must account for the rents and profits during his occu- 
 pancy of the premises, and cancel a mortgage given by him- 
 self thereon after he had received the deed. (52) But where 
 
 (46) Parker v. Child, 25 N. J. Eq., 41. 
 
 (47) N. Y. Mut. Life &c., Co. v. Easton, 38 N. J. Eq., 132. 
 
 (48) Shields v. Lozear, 22 N. J. Eq., 447; affirmed, 23 N. J. Eq., 
 509; Sharp V. Todd, 38 N. J. Eq., 324 
 
 (49) Lambert v. Miller, 38 N. J. Eq., 117. 
 (so) Fritz V. Simpson, 34 N. J. Eq., 436. 
 
 (51) 'Vanderhaize v. Hugues, 13 N. J. Eq., 410; Elmer v. Loper, 
 25 N. J. Eq., 475 ; Johns v. Norris, 28 N. J. Eq., 147 ; Schatt v. Grosch, 
 31 N. J. Eq., 199; Freichnecht v. Meyer, 39 N. J. Eq., 551; Griffin v. 
 Cooper, 73 N. J. Eq., 465. 
 
 (52) Parker v. Child, 25 N. J. Eq., 41. 
 
Accounting by Mortgagee. 659 
 
 a mortgagee had no actual possession, except so far as was 
 given by payment to him by the tenant of a month's rent, 
 on the condition that it should be paid back to the latter if 
 he had to pay the mortgagor, and ,the tenant having, because 
 of notice from the mortgagor, refused to pay more, he will 
 be required to account only for the rents actually received. 
 (S3) 
 
 If a mortgagee in possession permits the mortgagor to take 
 the profits of the mortgaged premises, he will be charged in 
 favor of subsequent encumbrancers with all the profits he 
 might have received. So if the mortgagee refuses to enter, 
 but suffers the mortgagor to protect his possession by means 
 of the mortgage. The principle upon which the court acts 
 is, that if the mortgagee be in possession or act maia Ude in 
 regard to subsequent encumbrancers, he will be charged not 
 only with the profits received, but with all those which, with- 
 out fraud or willful default, he might have received from the 
 mortgaged premises. (54) A mortgagee in possession may 
 do no act to prejudice the estate. He is not authorized to 
 cut down timber and commit waste upon the premises, even 
 if the proceeds be applied to the extinguishment of the debt. 
 (55) Where a mortgagee in possession is called upon to 
 account for rents and profits, and fails to do so, his mort- 
 gage will be declared satisfied. (56) 
 
 Where a deed, absolute in form, but which was in fact 
 intended as a mortgage, is made, the grantor may redeem 
 and the grantee will be held to all the liabilities of a mort- 
 gagee in possession (57) ; and if the net rents and profits 
 exceed the amount to secure which the deed was given, and 
 interest, the grantee must repay such excess when the grantor 
 redeems. (58) If a mortgagee in possession, holding under a 
 
 (53) Griffin v. Cooper, 73 N. J. Eq., 465 ; S. C. 74 N. J. Eq., 16. 
 
 (54) Detnarest v. Berry, 16 N. J. Eq., 481; Dawson v. Drake, 
 30 N. J. Eq., 601 ; Leeds v. Gifford, 41 N. J. Eq., 464 ; affirmed, 45 N. J. 
 Eq., 245. 
 
 (55) Youle v.. Richards, i N. J. Eq., S34- 
 
 (56) Morgan v. Morgan, 48 N. J. Eq., 399; reversed, 50 N. J. Eq., 
 473. 
 
 (57) Vamderhaize v. Hugues, 13 N. J. 410; Elmer v. Loper, 
 35 N J. Eq., 47S ; Johns v. Norris, 28 N. J. Eq., 147 ; Griffin v. Cooper, 
 73 N. J. Eq., 46s ; S. C. 74 N. J. Eq., 16. 
 
 (58) Freytag v. Hoeland, 23 N. J. Eq., 36. 
 
660 Redemption of Mortgages. 
 
 deed, absolute on its face, but which is in fact, as between the 
 parties, a mortgage, sells the mortgaged premises, he is bound 
 to account to his mortgagor at the price at which he sold,, 
 although he may be able to show by the opinion of compe- 
 tent judges that such price is- in excess of the market value;. 
 (59) and if he sells partly for cash and partly on credit, he 
 will be charged with the whole price, and not the cash con- 
 sideration only. (60) 
 
 Actions for Redemption. The proceeding to enforce the 
 right of redemption from a mortgage is by a bill in equity ta 
 redeem. (61) The same rule applies where the conveyance 
 is in form a deed, though equitably a mortgage. (62) The 
 rules as to joinder of parties and pleadings on bills to redeem 
 are the same as those governing ordinary bills. 
 
 The bill should conform to the general principles of equity 
 pleading and practice. (63) It should show that the debt 
 secured is due and payable, and should make a tender of the 
 amount which the complainant concedes to be due on the 
 mortgage debt. (64) The right to redeem a mortgage does- 
 not carry with it the right to an assignment of the mortgage 
 and of the bond or other instrument evidencing the mortgage 
 debt or of either, unless the redeeming party occupies the 
 position of surety for the mortgage debt (65) ; and one hav- 
 ing merely the fight to redeem a mortgage is not entitled to 
 a conveyance of or subrogation to the rights which the prior 
 mortgagee has as purchaser under foreclosure sale in addi- 
 tion to his rights as mortgagee. (66) 
 
 The statute provides that upon the admission by defend- 
 ant of complainant's rights the court may thereupon make- 
 any order which it might make upon final hearing. (66a) 
 
 (59) Budd V. VanOrden, 33 N. J. Eq., 143; affirmed, ib., 564. 
 
 (60) Van Orden v. Budd, 33 N. J. Eq., 564. 
 
 (61) Fritz V. Simpson, 34 N. J. Eq., 436; Freichnecht v. Meyer,. 
 39 N. J. Eq., 551 ; there is also a statutory right to redeem in courts 
 of law, see 3 Comp. Stat., p. 3408, sec. i. 
 
 (62) Griffin V. Cooper, 73 N. J. Eq., 465 ; S. C. 74, N. J. Eq., 16. 
 
 (63) See "Bill of Complaint," page 138, supra. 
 
 (64) Jones on Mortgages, sec. 1094-1095. 
 
 (6s) Bigelow v. Cassedy, 26 N. J. Eq., 557; S. C. 27 N. J. Eq., 505. 
 (66) Wimpfheimer v. Prudential Ins. Co., 56 N. J. Eq., 585. 
 (66a) 3 Corap. Stat., p. 3409, sections 2 et seq. 
 
Costs on Redemption. 661 
 
 Costs on Redemption. The general rule is, that on a bill 
 by a mortgagor to redeem, the mortgagor must pay the costs ; 
 but when the conduct of the mortgagee has been unfair or 
 oppressive, he may be charged with the costs. The mere fact, 
 however, that he refused to accept the debt under a mistake 
 as to his rights will not make him liable, particularly when 
 the mortgagor had failed to pay the debt when due, and has 
 put the mortgagee to expense and inconvenience. (67) So 
 where in a suit to redeem from a mortgage in the form of a 
 deed, defendant's agent refused to accept a tender of the 
 amount due, the right to redeem being denied and the premi- 
 ses being thereafter conveyed to another, the defendant was 
 held liable for the costs. (68) So where a complainant, in a 
 foreclosure suit, vexatiously and without reason refused to 
 accept a tender of the amount of the mortgage, interest and 
 costs, it was held that he should be compelled to pay the costs 
 of a cross suit to redeem. (69) 
 
 The fact that the evidence to prove a deed, absolute on its 
 face, defeasible, is very conflicting, and that the conclusion 
 that it was merely a mortgage was reached only by the pre- 
 ponderance of the evidence, is good reason for adhering to 
 the general rule that the, mortgagee is entitled to his costs on 
 a bill to redeem. (70) And so where, although a mortgagee 
 refused to accept the debt and interest, and to allow a redemp- 
 tion, it appeared that the tender was made more than one year 
 after the day set for payment, and that in the meantime the 
 mortgagee, supposing, undoubtedly in good faith, that he held 
 by sale and not by mortgage, took possession and managed 
 ,the property, it was held that there was not sufficient ground 
 to take the case out of the general rule that the costs of a bill 
 to redeem should be paid by the mortgagor. (71) 
 
 (67) Phillips V. Hulsizer, 20 N. J. Eq., 308; Lozear v. Shields, 23 
 N. J. Eq., S09; Melick v. Creamer, 25 N. J. Eq., 429; Vanderhoven 
 V. Romaine, 56 N. J. Eq., i ; Winters v. Earl, 52 N. J. Eq., 52 ; affirmed, 
 ib., 588; Griffin v. Cooper, 73 N. J. Eq., 465 and cases cited at page 
 466; S. C. 74 N. J. Eq., 16. 
 
 (68) Griffin v. Cooper, 73 N. J. Eq., 46s; S. C. 74 N. J. Eq., 16. 
 
 (69) Hendee v. Howe, 33 N. J. Eq., 92. 
 
 (70) Forman v. Bulson, 30 N. J. Eq., 493. 
 
 (71) Phillips V. Hulsizer, 20 N. J. Eq., 308. 
 
662 Partition. 
 
 CHAPTER XXXIII. 
 
 SUITS FOR PARTITION. 
 
 Definition. In its original and technical meaning, Parti- 
 tion signified the division by co-parceners or co-heirs among 
 themselves of lands which had descended by common law or 
 by custom. The term has now come to mean the division or 
 allotment made among several persons of real or personal 
 property belonging to them as co-owners. Partition may be 
 either voluntary, by agreement of the parties, or compulsory, 
 by means of judicial proceedings. ( i ) 
 
 Jurisdiction. Originally only courts of law recognized the 
 right of Partition ; but courts of equity very early assumed 
 a concurrent jurisdiction. In New Jersey 'jurisdiction of 
 suits for partition was early conferred upon the Supreme 
 Court, the Circuit Court, the Court of Common Pleas and the 
 Orphans' Court. (2) In modern practice, suits for partition 
 are rarely brought in the common law courts, recourse being 
 usually had to the Court of Chancery. 
 
 The origin of the jurisdiction of the Court of Chancery in 
 cases of partition, while assumed to be very ancient, has never 
 been satisfactorily accounted for. As early as the reign of 
 Elizabeth partition became a matter of equitable cognizance. 
 The ground of this jurisdiction is sometimes stated as resting 
 upon the principle of convenience; and sometimes upon the 
 principle of partition being an ordinary case of discovery in 
 aid of a legal right. The true ground, however, is found in 
 the inability of courts of law to furnish a plain and competent 
 remedy ; and, in the case of equitable interests, in the absence 
 at law of any remedy at all. (3) In New Jersey, the juris- 
 diction of the Court of Chancery has long been established. 
 
 Estates Subject to Partition. The Court of Chancery will 
 grant partition only of property held in co-tenency, and in 
 which the parties have a community of interest either as co- 
 tenants, tenants in common or co-parceners. Several i>er- 
 sons may be owners of the same property without being co- 
 
 (i) 6 Pom. Eq. Jur., sec. 701. 
 
 (2) 3 Comp. Stat., p. 3897; sec. i, et seq. 
 
 (3) 6 Pom. Eq. Jur., sec. 703. 
 
Estates Subject to Partition. 663 
 
 tenants, and the severance of their titles may be desirable or 
 even essential to the enjoyment of such property, but this 
 constitutes no ground for equitable interference by way of 
 partition. (4) The manner in which a co-tenant became seized 
 of his estate is immaterial ; the fact of the co-tenancy is essen- 
 tial, not the mode of its creation. So under section 45 of 
 the Chancery Act (5), providing that a decree of the Court 
 of Chancery for the conveyance of lands shall have the effect 
 of a conveyance in case it is not complied with by the party 
 against whom it is passed, the equitable estate existing in favor 
 of a lessee who has exercised an option of purchase is trans- 
 formed by a decree for specific performance into a legal estate, 
 which will support a bill for partition, notwithstanding the 
 pendency of an undetermined appeal from the decree. (6) So 
 a verbal agreement by one co-tenant with another, that he 
 will convey to him his interest in the premises, is no bar to a 
 suit for partition. (7) But where a father devised certain 
 lands to his three sons as tenants in common during their 
 natural lives, and provided that after the death of any one 
 of them his share was to go to his lawful issue, and if any 
 of his said sons should die without leaving lawful issue, his 
 share was to go to the survivors of them, or if any of the issue 
 had deceased, the living issue to have the share that would 
 have gone to their father if living, it was held. that no par- 
 tition could be made among the sons, except of their present 
 interest or estate in the land. (8) A right of entry for con- 
 dition broken held by two or more persons, will not support 
 partition. (9) And where a tenant in common of land has 
 granted a right to dig ores therein, the grantee is not entitled 
 to a partition as against the other owner. (10) 
 
 The fact that section 81 of the Orphans' Court Act (11) 
 makes the lands of a decedent liable for his debts for one 
 year after his death affords no reason why a decree for parti- 
 tion should, at the instance of a judgment creditor of the 
 
 (4) 6 Pomeroy Eq. Jur,, sec. 704. 
 
 (5) See page 45, supra. 
 
 (6) White V. Smith, 60 Atl., 399- 
 
 (7) Polhemus v. Hodson, 19 N. J. Eq., 63. 
 
 (8) Reeves v. Reeves, 6 N. J. Eq., 156. 
 
 (9) Bouvier v. Baltimore Railroad &c., Co., 67 N. J. L., 281. 
 
 (10) Boston Franklinite Co. v. Condit, 19 N. J. Eq., 394. 
 (it) p. L. 1898, p. 743; 3 Comp. Stat., p. 3838, sec. 81. 
 
664 Partition. 
 
 decedent be refused the heirs. The lands belong to the heirs 
 to all intents and purposes, and are subject only to such lia- 
 bility as the statute imposes, and the purchaser takes title at 
 his own risk. (12) But where testator devised lands to three 
 children equally, charged with legacies, and one of the devi- 
 sees, who had also bought the share of another devisee, and 
 was furthermore one of the executors, brought a bill for 
 partition, it was held that as the amount of the personal 
 estate and the deficiency thereof to satisfy debts and legacies 
 did not appear, partition would not be ordered until the execu- 
 tors' accounts had been settled in the Orphans' Court. (13) 
 
 Estates Held in Tenancy by the Entirety. An estate held 
 by a husband and wife as tenants by the entirety is regarded 
 as held in severalty rather than in co-tenency, and is not sub- 
 ject to partition. (14) If, however, a divorce is granted, the 
 unity of ^the parties is thereby destroyed, and, as a conse- 
 quence, the tenancy by the entirety is changed into a tenancy 
 in common, and either tenant rtiay sustain a suit for partition. 
 So where a husband and wife, having an estate by the entirety, 
 entered into an agreement whereby the husband was to receive 
 all the rents and profits in consideration of his paying the 
 wife a certain sum each month, on a change of the estate to 
 a tenancy in common by a decree of divorce, the existence of 
 the agreement was held to constitute no defense to a petition 
 for partition by the husband, in which he sought no relief 
 against the agreement. ( 1 5 ) 
 
 If either husband or wife convey their interest in an estate 
 by the entirety, the grantee becomes tenant in common with 
 the remaining tenant, but only for the joint lives of the hus- 
 band and wife. Such grantee may maintain partition against 
 his co-tenant, but the right is limited to the aforesaid tenancy 
 in common for the joint lives ; the common law right of 
 survivorship is not affected. (16) 
 
 Where There Are Dower Rights in the Whole Property. 
 Partition proceedings are not for the benefit of a doweress ; 
 
 (12) Simpson v. Straugheii, 19 Atl., 667. 
 
 (13) Adams v. Beideman, 33 N. J. Eq., 77; see also Serena v. 
 Moore, 69 N. J. Eq., 687. 
 
 (14) Hardenbergli v. Hardenbergli, 10 N. J. L., 42; Thomas v. De- 
 Baum, 14 N. J. Eq., 37 ; McDermott v. French, 15 N. J. Eq., 78. 
 
 (is) Buttlar v. Buttlar, 67 N. J, Eq., 136; afHrmed, ib., 729. 
 (16) Schulz V. Ziegler, 83 Atl, 968. 
 
Estates Subject to Partition. G65 
 
 she cannot institute them. They are instituted by one or more 
 of the tenants in common for a partition of the lands among 
 them; and when partition can be made of lands wherein an 
 estate in dower is had, the doweress retains her estate as it 
 was before. If dower has not been assigned, she retains the 
 right to have it assigned; if the assignment has been made, 
 she retains the part set off to her, unaffected by the parti- 
 tion. (17) On a bill for partition of three separate tracts of 
 land, the court has no power to order that a widow's dower 
 therein be set off in one tract, and that the remainder of that 
 tract and also the other two tracts be sold free and clear of the 
 encumbrance of her dower. The statute provides that the 
 interest in dower may be sold, or it may be excepted from 
 such sale; the court has power to sell or not, but cannot go a 
 step beyond that, and say that two of these tracts and a part 
 of the third shall be sold free and clear of the encumbrance 
 of dower, and that the balance shall not be sold at all. (18) 
 
 Partition of Lands Limited Over. Previously to the stat- 
 ute, a suit for partition could not be maintained by one whose 
 individual estate was in the reversion or remainder only, 
 ( 19) nor could the court in any case decree a sale of the com- 
 mon property against the will of any owner sui juris; the 
 most that could be done was to make an unequal division of 
 the land, and balance the shares by a pecuniary recompense 
 for owelty of partition to those who took the smaller portions 
 of land. (20) 
 
 The statute, however, provides that partition of lands held 
 by co-parceners, joint tenants or tenants in common may be 
 made by any court or jurisdiction having authority to make 
 partition of lands on any proceeding authorized for that pur- 
 pose, notwithstandmg the share held by any co-parcener, joint 
 tenant or tenant in common may be for a less estate than a 
 fee, or may be limited over after an estate for life, or any 
 estate therein, and such partition shall bind all tenants of such 
 share, in remainder, reversion or expectancy, who shall be 
 entitled only to that part of the lands partitioned which 
 
 (17) Haulenbeck v. Cronkright, 23 N. J. Eq., 407. 
 
 (18) Hardin v. Lawrence. 40 N. J. Eq., 154; and see "Sale of 
 Dower Rights," page Sg6, infra. 
 
 (19) Smith V. Gaines, 39 N. J. Eq., 545. 
 
 (20) Smith V. Gaines, 39 N. J. Eq., 545. 
 
666 Partition. 
 
 may be set off in severalty, to the share upon which such re- 
 mainder or expectancy is limited ; provided that in all cases 
 where such remainder, reversion or expectancy is limited over 
 to any person in being, such person shall be served with like 
 notice or process as may be by law required to be served on the 
 owner or tenant of such share in such proceeding or partition if 
 notice be required therein; and in all such cases where parti- 
 tion is made of lands of which any share is limited over, and 
 which are held in equal undivided shares, the commissioners, 
 or other persons making partition, shall divide said lands and 
 allot the shares, and certify such division and allotment in 
 the manner directed by this act. (21) 
 
 This statute applies to those cases only where the estate 
 of the co-parceners, joint tenants or tenants in common is in 
 possession. The design of the statute seems to have been 
 not to enlarge the class of cases in which the court could moke 
 partition, but to render the partition binding upon those who 
 were entitled to the shares in expectancy. (22) 
 
 Where there is an estate for life or lives, or other less estate, 
 in any lands or tenants situate in this state, and the reversion 
 or remainder in fee is owned by several persons as joint ten- 
 ants, co-parceners or tenants in common, and the particular 
 tenant or tenants shall consent thereto, partition of the said 
 lands or teilements may be made among said joint tenants, co- 
 parceners or tenants in common, by any court or jurisdiction 
 having authority to make partition of lands ; and the said par- 
 ticular tenant or tenants shall have the same estate or estates 
 in the respective parts which may be set off in severalty, as he, 
 she or they may have had in the whole lands or tenements be- 
 fore such partition shall have been made and in case partition 
 cannot be made of such lands or tenements or any part thereof, 
 without great prejudice to the said joint tenants, co-parceners 
 or tenants in common so that a sale thereof shall be ordered, 
 the whole estate, in possession as well as in expectancy, in the 
 said lands or tenaments, or in the said part thereof which 
 cannot be divided, shall be sold, and such portion of the pro- 
 ceeds of said sale shall be paid to the particular tenant or ten- 
 ants as shall be just and reasonable, according to the quan- 
 
 (21) 3 Comp. Stat, p. 3905, sec. 26. 
 
 (22) Radley v. Radley, 78 N. J. Eq., 170; Smith v. Gaines, 39 N. J. 
 Eq., S45 ; Yglesias v. Dewey, 60 N. J. Eq., 62. 
 
Estates Subject to Partition. 667 
 
 tity of his, her or their estate and interest in said lands or 
 tenements, and as shall be ascertained by the court ordering 
 stich partition or sale. (23) 
 
 According to the terms of this act, these things must con- 
 cur to justify a bill under its provisions : First, the particular 
 estate must be for life or less ; second, the remainder or re- 
 version must be owned in fee; and third, the particular ten- 
 ant or tenants must consent to the proceedings. On these con- 
 ditions partition may be made among the joint owners, or, 
 if that be impracticable without great prejudice to their in- 
 terests', a sale of the whole estate, embracing that in pos- 
 session as well as that in expectancy, may be ordered. (24) 
 A life estate may be sold without the consent of the life ten- 
 ant only when it exists as an interest in land, the remainder 
 of which is in others who are entitled to the possession with 
 the life tenant, or exclusive of his possession. (25) So where 
 the life estate is in an undivided one-half of the premises 
 sought to be partitioned, and does not comprise a tract in 
 the exclusive possession of the life tenant, partition may be 
 had without the consent of such life tenant. (26) 
 
 Where all the lands, partition of which is sought by tenants 
 in remainder of several undivided shares are held by a single 
 particular estate, partition cannot be had without the con- 
 sent of a tenant of this particular estate. (27) So where the 
 tenant of the particular estate holds such estate under a trust, 
 by the terms of which he cannot assent to partition, a bill for 
 partitibn will not lie. (28) A widow's right of possession con- 
 ferred by the Dower Act does' not give her an estate or make 
 her a particular tenant within the meaning of section 27 of the 
 Partition Act, (29) requiring the consent of the particular ten- 
 ant before partition or sale can be made of lands wherein 
 an estate for life or less estate of the particular tenant exists. 
 (30) 
 
 (23) 3 Comp. Stat., p. 3906, sec. 27. 
 
 (24) Smith V. Gaines, 39 N. J. Eq., 545. 
 
 (25) Radley v. Radley, 78 N. J. Eq., 170. 
 
 (26) Campbell v. Cole, 64 Atl., 461. 
 
 (27) Roarty v. Smith, S3 N. J. Eq., 253. 
 
 (28) Roarty v. Smith, 53 N. J. Eq., 253. 
 
 (29) Supra. 
 
 (30) Bleecker v. Hennion, 23 N. J. Eq., 123. 
 
668 Partition. 
 
 In all cases now pending or which may hereafter be com- 
 menced in the Court of Chancery for partition of lands de- 
 vised by a parent to his or her children, of which lands any 
 share is limited over, the proceedings may be in conformity 
 with the authority and practice of said court, as the same were 
 before the passage of this act, unless the said court shall other- 
 wise order and direct. (31) 
 
 Trust Estates. A court of equity may, in a proper case, 
 direct a partition of a trust estate, consisting of both real and 
 personal property, so that the share ef each cestui que trust 
 may be held in trust in severalty for him or her. (32) But 
 a court of equity will not decree partition, urged by one cestui 
 que trust and resisted by another, where its effect will be to 
 override and put an end to an active trust, and thus defeat 
 the testator's intention, if the trustees stand ready to to ex- 
 ecute the trust in good faith. (33) So where a will provided 
 that the testator's estate should be divided among his seven 
 children equally, with the exception of one, whose share should 
 be reduced to a certain amount, and the amount of the re- 
 duction divided equally among the other children and it was 
 provided that the children might agree on a division of the 
 property, but that if they were unable to agree the executors 
 should sell the real estate in one year from the testator's death 
 and divide the proceeds and the personalty as directed, it was 
 held that two of testator's children could not compel a par- 
 tition of the realty prior to the time when the power of sale 
 would become operative against the remaining five children. 
 (34) And so where testator devised the residue of his real 
 estate in trust, providing that the trustee should invest "part 
 of such residue and remainder" in certain securities, and on 
 several distinct trusts, and some of the beneficiaries were 
 minors, it was held that partition of the land would be de- 
 nied, it being in the power of the trustee to sell the same and 
 vest the proceeds under the will, and a partition being expen- 
 sive and not to the best interest of the minors(3S) 
 
 (31) 3 Comp. Stat., p. 3912, sec. 51. 
 
 (32) Wetmore v. Zabriskie, 2p N. J. Eq., 62; Terry v. Smith, 42 
 N. J. Eq., 504-509 ; reversed, 43 N. J. Eq., 659. 
 
 (33) Storey v. Palmer, 46 N. J. Eq., i ; Condict v. Condict, 73 N. J. 
 Eq., 301 ; see also "Executors and Administrators," page 670, infra. 
 
 (34) CahiU V. Cahill, 62 N. J. Eq., IS7-IS9- 
 
 (35) Tomkins v. Miller, 27 All., 484. 
 
Who May Maintain. 669 
 
 It is a well established rule that where a testator directs 
 his executors to sell his real estate and distribute the proceeds 
 among persons named in his will, such real estate is deemed 
 to be converted into personalty, and a partition cannot be 
 had. (36) Where, however, the will contains a bare power of 
 sale, and no devise of the real estate, so that the title descends 
 to the heirs unless the power of sale is' exercised, its existence 
 is no bar to partition by the heirs. (37) 
 
 Agreements Not to Partition. One of several co-tenants 
 will be found by a covenant, upon a sufficient consideration, 
 with his co-tenants not to bring partition for a certain period 
 unless all the other heirs agree thereto. (38) 
 
 Who May Maintain Suits for Partition — In General. 
 
 As has already been seen, suits for partition may be 
 maintained by co-tenants of every class, whether they 
 be co-parceners, tenants in common or joint tenants. (39) The 
 fact of the co-tenancy is essential, the mode of its creation im- 
 material. (40) But a party applying for a partition must not 
 only have a present estate in the property as joint tenant or 
 , tenant in common, but must also have an actual or constructive 
 possession of his undivided share or interest therein. (41) 
 Tenants by the entirety cannot, as has been seen, 
 maintain such a suit. (42) It is the right of one tenant in 
 common in the absence of any restriction upon the title, to 
 have partition of the real estate ; and this right should not be 
 denied or postponed in enjoyment simply because the inter- 
 ests of one or more of the other tenants in common may be 
 advanced or improved by the delay. (43) 
 
 Mortgagees. Under the modern view of mortgages, 
 which regards the mortgage as simply a security for the pay- 
 ment of the debt, (44) a mortgagee of a co-tenant, though 
 nomina,lly holding the fee in the co-tenant's interest in the mort- 
 
 (36) Cahill V. Cahill, 62 N. J. Eq., IS7-IS9- 
 
 (37) Cahill V. Cahill, 62 N. J. Eq., IS7-IS9- 
 
 (38) Yglesias v. Dewey, 60 N. J. Eq., 62. 
 
 (39) See page 662, supra. 
 
 (40) White V. Smith, 60 Atl., 399. 
 
 (41) 6 Pomeroy's Eq. Jur., sec. 709. 
 
 (42) See page 664, supra. 
 
 (43) Pomeroy v. Pomeroy, 55 N. J. Eq., 568. 
 
 (44) See "Foreclosure of Mortgages," page 539, supra .; 
 
670 Partition. 
 
 gaged lands, has no standing to file a bill for partition. And 
 so a deed in the nature of a mortgage, given by a tenant in 
 common upon his individual interest in lands, leaves in him 
 an estate which entitles him to apply for partition. (45) But 
 a co-tenant who, by irrevocable power of attorney, delegated 
 to two of her co-tenants the control and management of her 
 interest in the lands, and placed such co-tenants in full pos- 
 session of her interest by virtue of the power of attorney and 
 a mortgage, executed by her to them, she not being entitled 
 to the possession of the lands, cannot maintain a bill for par- 
 tition. (46) 
 
 Trustees. A trustee, holding a moiety of lands as such, 
 may sue for and compel partition if he holds an estate in pos- 
 session and the partition will not be in contravention of the 
 trust. (47) 
 
 Persons Holding An Equitable Title Only. The owner 
 of an equitable title may maintain a partition bill in the Court 
 of Chancery, provided he has a present right by virtue of his 
 equitable title. (48) 
 
 Executors or Administrators. Any executor or adminis- 
 trator with the will annexed, whose testator has or shall have 
 died seized of an undivided share of any lands, tenements or 
 hereditaments situated in this' state, and who has or shall have, 
 under the provisions of such testator's will, power to sell such 
 undivided share, shall hereafter have the same power to bring 
 an action to effect a partition of such lands', tenements or 
 hereditaments in any court in this state of competent juris- 
 diction that such testator might have brought if living. (49) 
 But where complainant was the executor under a will giving 
 him power to sell real estate and divide the proceeds among 
 the testator's children, so that on reaching the age of twenty- 
 one years "each child shall receive its portion of the estate," 
 it was held that the manifest intention of the testator was that 
 the power should be exercised, if at all, during the minority 
 of the children, and that when the children attained the age 
 
 (45) Kline v. McGuckin, 24 N. J. Eq., 411. 
 
 (46) Yglesias v. Dewey, 60 N. J. Eq., 62. 
 
 (47) Smith V. Gaines, 38 N. J. Eq., 65; reversed, 39 N. J. Eq., 545. 
 
 (48) Sailer v. Sailer, 41 N. J. Eq., 398; Strarey v. Palmer, 46 N. J. 
 Eq., I, and see "Trust Estates," page 668, supra. 
 
 (49) 3 Comp. Stat., p. 3909, sec. 40. 
 
Parties Defendant. 671 
 
 of twenty-one years his power became extinct and he could 
 not then have partition of the land under this section. (50) 
 
 Parties Defendant. The general rules in equity as to par- 
 ties prevail in partition as in other suits. As has been seen, 
 the general rule is that all persons must be made parties whose 
 interests in the subject matter of the suit and the relief sought 
 are so bound up with that of the other parties that their pres- 
 ence as parties to the proceeding is an absolute necessity, with- 
 out which the court will not proceed. Thus' all co-tenants of 
 the estate sought to be partitioned must be made parties, as 
 they are persons who not only have an interest in the con- 
 troversy, but an interest of such a nature that a final decree 
 cannot be made without affecting that interest or leaving the 
 controversy in such a condition that its final determination 
 may be wholly inconsistent with equity and good conscience. 
 (51) 
 
 Trustees and Cestuis Que Trustent. The general rule as 
 to parties in cases of trusts is that in suits respecting trust 
 property, brought either by or against the trustees, the cestuis 
 que trustent are necessary parties. Many exceptions have been 
 made to this rule, some for convenience, some for the reason 
 that, by the term.s' of the trust or from the nature of the suit, 
 the trustees themselves represent the cestuis que trustent. On 
 this latter ground, it has been laid dovvn that where the only 
 object of the suit is to transfer the trust property into the hands 
 of the trustees, the cestuis que trustent need not be made par- 
 ties; but if the existence or enjoyment of the property is to be 
 affected by the prayer of the bill, then they should be so where 
 a bill seeks a sale of real estate vested in trustees by devise, 
 and they have not a present absolute power of disposition 
 over it, according to the trust, they do not fully represent the 
 cestuis que trustent, and the latter are necessary parties. (52) 
 But where in partition it appeared that the deceased owner left 
 a will whereby he gave the land sought to be partitioned to 
 
 (so) Walsh V. Dunn, 46 Atl., S92, and see "Trust Estates," page 668, 
 supra. 
 
 (51) 6 Pomeroy Equity Jur., sec. 713; and see "Parties," page 91, 
 supra. 
 
 (52) Smith V. Gaines, 39 N. J. Eq., 545; and see "Parties," page 114, 
 supra. 
 
€72 Partition. 
 
 a trustee, and that the trustee held the title to the land, 
 the trustee as such was a necessary party. (53) 
 
 Executors and Administrators. The administrator of an 
 intestate is not a necessary party to a bill for partition be- 
 tween the heirs although the personal estate may be insufficient 
 to pay the debts; neither the administrator nor the creditors 
 of an intestate have any such interest in the land as to render 
 them necessary parties. (54) 
 
 Creditors and Encumbrancers. A partition will not affect 
 any rights legal or equitable, which a creditor may have in the 
 lands sought to be partitioned; if the land is liable for debts 
 before the partition, it will remain so afterwards. (55) So 
 as has been seen the' creditors of an intestate are not neces- 
 sary parties to a bill for partition of the real estate among the 
 heirs, even though the personalty is insufficient to pay debts. 
 (56) Nor are lienholders necessary parties defendant, because 
 they cannot be affected by a sale. (57) And the statute pro- 
 vides that it shall not be necessary, in the first instance, to make 
 any creditor having a lien on any real estate whereof a par- 
 tition is sought in the Court of Chancery, or any part thereof, 
 by judgment, decree, mortgage or otherwise, a party to the pro- 
 ceedings, nor shall the partition of the premises alter, affect or 
 impair the lien of such creditors (58), except where the lien 
 is upon an undivided interest, or estate of any of the parties 
 in which case such lien shall upon partition attach to the share 
 assigned to the owner of such interest and such share shall be 
 first charged with its just proportion of the costs of the pro- 
 ceedings in partition in preference to any such lien (59) 
 
 Doweress. If partition can be and is made, the doweress 
 is not a necessary party to the suit. (60) 
 
 Where Any of Co-parceners are Presumed to be Dead. 
 (61) 
 
 (53) Mackey v. Mackey, 63 Atl., 984. 
 
 (54) Speer v. Speer, 14 N. J. Eq., 240. 
 
 (55) Speer v. Speer, 14 N. J. Eq., 240. 
 
 (56) Speer v. Speer, 14 N. J. Eq., 240. 
 
 (57) Low V. Holmes, 17 N. J. Eq., 148; Becker v. Carey, 36 Atl., 770. 
 
 (58) 3 Comp. Stat., p. 3912, sec. S4- 
 
 (59) 3 Comp. Stat., p. 3913, sec. 55 ; and see page 763, infra. 
 
 (60) Haulenbeck v. Kronkright, 23 N. J. Eq., 407. And see "Where 
 There Are Dower Rights in the Wliole Premises," page 664, supra. 
 
 (61) See 3 Comp. Stat, p. 391S, sec. 67. 
 
Parties Defendant. 673 
 
 Encumbrancers of Co-tenants. The holder of an encum- 
 brance or lien created by mortgage or judgment upon the un- 
 divided interest of a co-tenant is not a necessary party to a bill 
 for partition. Upon partition the encumbrance is transferred 
 from the estate in common to the estate in severalty of the 
 party upon whose undivided interest the lien was a charge. (62) 
 And as has been seen the statute provides that where the lien 
 is on the undivided interest or estate of any of the parties, 
 such lien, if partition be made of the premises, shall thereafter 
 be a charge only on the share assigned to such party, and such 
 share shall be first charged with its just proportion of the costs 
 of the proceedings in partition, in preference to any such 
 lien. (63) So partition of land will not be delayed until the 
 establishment, on an accounting in a pending suit in equity, of 
 the amount of a possible lien in favor of one of the co-owners 
 upon the shares of the others; such lien will attach to the 
 divided shares, and rights acquired pendente lite will be sub- 
 ject thereto. (64) But where a bill for partition stated that the 
 premises were subject to a mortgage, but did not make the 
 mortgagee a party, nor did he appear in the suit, and the 
 order of reference directed the Master to ascertain as to en- 
 cumbrances, and he reported that the mortgagee had produced 
 before him his mortgage, and also reported the amount due 
 upon it, and the decree of sale directed the premises to be sold 
 free from the mortgage, it was held that the mortgagee was en- 
 titled to be paid from the proceeds before the payment of the 
 complainant's costs. (65) 
 
 The complainant in any such suit in partition may, at his or 
 her election, make every creditor having a lien upon the un- 
 divided interest or estate of any of the parties, by mortgage, 
 judgment, decree, devise or otherwise, a party to the pro- 
 ceeding, and in such case the bill shall set forth the nature 
 of such lien or encumbrance. (66) 
 
 Process. Complainant must take out and serve a sub- 
 poena as in ordinary suits, directed to all parties, whether their 
 
 (62) Speer v. Speer, 14 N. J. Eq., 240; Low v. Holmes, 17 N. J. 
 Eq., 148. 
 
 (63) 3 Comp. Stat., p. 3913, sec. 55. 
 
 (64) Pomeroy v. Pomeroy, S5 N. J. Eq., 568. 
 (6s) Shivers v. Hand, 50 N. J. Eq., 231. 
 (66) 3 Comp. Stat., p. 3913, sec. 56. 
 
674 Partition. 
 
 interests are known or uncertain, contingent or otherwise. (67) 
 If any of the parties are unknown, they should be proceeded 
 against as in other suits brought in the Court of Chancery. 
 (68) So if any of the parties are absent from the state or 
 conceal themselves and cannot be found therein, they may be 
 proceeded against as absent defendants in the usual manner. 
 (69) 
 
 Lis Pendens. A lis pendens may be filed in a partition 
 suit under the general provisions of the act concerning lis 
 pendens. (70) 
 
 Bill of Complaint. A suit for partition is governed by the 
 procedure applicable to other suits in Chancery; the general 
 principles heretofore laid down in regard to the frame and 
 requisites of a bill of complaint apply, therefore, to suits of 
 this character. (71) But in order to obtain a partition of one 
 tract of land held " by several tenants in common, it 
 is not necessary to include in the bill all the other tracts 
 owned by the same parties. (72) If a party in interest conceives 
 that he will suffer because a portion of the lands held in com- 
 mon have been omitted, he may have them included by means 
 of his pleadings. (73) And where on a bill for partition of 
 two tracts of land it appears that all the complainants and de- 
 fendants are interested in one of the tracts only, and that part 
 of the complainants and defendants are interested in the other, 
 as to the latter tract the bill will be dismissed, but as to the 
 complainants interested therein without prejudice. (74) 
 
 Prayef for Relief. As will hereafter be seen, complainant 
 may as an incident to the proceeding seek and obtain incidental 
 relief necessary to a complete adjustment of all matters arising 
 out of the co-tenancy, as for instance, an accounting for moneys 
 paid for improvements or received by a defendant as rents and 
 profits(75) Whatever claims to relief complainant may be en- 
 
 (67) See Chancery Act, sec. 3 and Notes, page 2, supra. 
 
 (68) . See Chancery Act, sees. 9 and 10 and Notes, page 10, supra. 
 
 (69) See Chancery Act, sec. 12 et seq., and Notes, page 11, supra. 
 
 (70) See "Lis pendens," page 334, su-pra. 
 
 (71) See "Bill of Complaint," page 138, supra. 
 
 (72) Jackson v. Beach, 2 Atl., 22. 
 
 (73) Jackson v. Beach, 2 Atl, 22. 
 
 (74) Havens v. Seashore Land Co., S7 N. J. Eq., 142. 
 
 (75) See "Relief Granted Incidental to Partition," page 676, infra. 
 
Pleadings. 675 
 
 titled to assert may be prayed in his bill. (76) So a complain- 
 ant, in a bill one object of which is the partition of land, may 
 include therein a question of title to said lands, when that ques- 
 tion is one for equitable cognizance, especially when the com- 
 plainants claim in that regard is essential to success in obtain- 
 ing relief by partition. Such a bill is not objectionable on the 
 ground of mis-joinder of causes. (77) But the court cannot 
 retain a suit for partition as one to quiet title under the statute 
 where the bill does not show that complainant is in possession 
 of the premises, that being a jurisdictional fact required in the 
 statutory bill to quiet title. (78) 
 
 The general rules' applicable to equity pleadings apply to 
 the prayer for relief in suits for partition ; a full discussion of 
 these rules will be found in another chapter. (79) 
 
 Defendant's Pleadings. The general rules applicable to 
 pleadings on behalf of defendants are equally applicable to pro- 
 ceedings for partition. If a defendant seeks to deny complain- 
 ant's title, and to set up a title adverse thereto, a bare denial in 
 his answer is not sufficient ; he must spread his own title be- 
 fore the court upon his pleadings. (80) A plea to a bill for par- 
 tition alleging complainant's want of title to the premises pre- 
 sents as an issue only the sufficiency of that title, and does not 
 question the advisability of permitting the suit to proceed to 
 partition of sale in view of the pendency of an appeal in another 
 suit involving complainant's title. (81) So defendants, in a suit 
 for partition, who have filed a plea alleging that complainants 
 have no such interest in the premises as to entitle them to ask 
 for a partition cannot under such plea urge that the bill is de- 
 fective in failing to contain a prayer for process, and in failing 
 sufficiently to describe complainant's estate in the premises. (82) 
 
 (76) Obert V. Obert, 10 N. J. Eq., 98; affirmed, 12 N. J. Eq., 
 423- 
 
 (77) Woglom V. Kant, 69 N. J. Eq., 489. 
 
 (78) Ellis V. Feist, 65 N. J. Eq., 548; and see "Bills to Quiet Title," 
 page 2ig, supra. 
 
 (79) See "Bill of Complaint," "Prayer for Relief," page 151, supra. 
 
 (80) Lucas V. King, 10 N. J. Eq., 277. 
 
 (81) White V. Smith, 60 All., 399. 
 
 (82) White V. Smith, 60 Atl., 399. 
 
676 Partition. 
 
 RELIEF GRANTED AS INCIDENTAL TO 
 PARTITION. 
 
 In General. It is an established principle that a court of 
 equity in decreeing partition does not act ministerially in 
 obedience to the call of those who have a right to the partition, 
 but administers its relief ex aequo et bono in the exercise of its 
 general jurisdiction as a court of equity^ according to its own 
 notions of general justice and equity between the parties. 
 It will, therefore, by its decree adjust the equitable rights of all 
 the parties interested in the estate and see to it that partition is 
 made accordingly; and in making these adjustments, it will not 
 confine itself to the mere legal rights of the original tenants in 
 common, but will have regard to the legal and equitable rights 
 of all other persons interested in the estate, which rights have 
 been derived from any of the original tenants in common, and 
 will, if necessary for that purpose, direct a distinct partition of 
 several portions' of the estate in which the derivative alienees 
 have a distinct interest. (83) 
 
 So where several parties had purchased land from a widow 
 who took a life estate with the power of alienation, and from 
 one of the children, who took a fourth interest in the remainder, 
 but mortgaged his individual interest, it was held that a court 
 of equity had jurisdiction, in a partition suit between the heirs, 
 to remove a cloud from the title of the property conveyed by 
 the widow, the legal title being in a number of people, to pre- 
 vent a multiplicity of suits. (84) And on a bill for partition, 
 an administrator's deed made to a third party for the benefit 
 of the administrator will be set aside, at the instance of the com- 
 plainant, on equitable terms. (85) So where the land of one co- 
 tenant is charged by the will creating such co-tenancy with 
 the payment of legacies, he will be required to account to his 
 co-tenants for their shares of specific devises charged upon 
 his share of the realty. (86) So where one tenant in common 
 makes a parol agreement with his co-tenant for the purchase 
 for his interest, and advances money in part payment, though 
 
 (83) Barrel! v. Barrel!, 25 N. J. Eq., 173; Atlia v. Jewell, 33 N. J. 
 Eq., 417-421- 
 
 (84) Bryan v. Bryan, 61 N. J. Eq., 45. 
 (8s) Obert v. Obert, 12 N. J. Eq., 423. 
 (86) Barrel! v. Barrel!, 25 N. J. Eq., 173. 
 
Incidental Relief. 67T 
 
 the forkier cannot claim specific performance of the agreement, 
 a court of equity, in a suit for partition, will decree the money 
 so advanced a lien upon the land. (87) 
 
 Parties in a partition suit will not be permitted to use the suit 
 to settle their various legal and equitable claims between them- 
 selves. So where in partition by two complainants defendant 
 set up claims against one of the complainants, some of the 
 claims being due defendant as executor, some individually, and 
 some jointly with another, it was held that the claims could 
 not be considered. (88) So unliquidated claims for dam- 
 ages done to premises by complainants are not cognizable in 
 a suit for partition of the premises. (89) 
 
 Accounting. Whenever a liability to an accounting or to 
 contribution exists, arising out of the property of the co- 
 tenancy, it may be enforced in a suit for partition of the facts 
 upon which the claim is founded are properly alleged in the 
 pleading of the party making such claim. (90) Advances made 
 by any of the co-tenants for the care or benefit of a common 
 property or for the protection of the title thereto may be as- 
 serted, and contribution therefor obtained from the other co- 
 tenants. So a co-tenant who pays taxes upon the common prop- 
 erty is entitled to repayment of the same, either from the 
 proceeds in case of a sale or by payment from the co-tenants, 
 in case of an actual partition. (91) So where a widow, in be- 
 half of her children, pays taxes on a tenament owned, by them 
 and a co-tenant, in adjudging a partition of the property, the 
 amount paid by her should be taken into account. (92) 
 
 Accounting for Rents and Profits, and Use and Occupa- 
 tion. A tenant in common is not, as a general rule, account- 
 able for rents and profits ; but when he takes possession of the 
 premises and excludes his co-tenant, or receives the rent there- 
 for, he must account for the value of his possession 
 or for the rent, deducting expenses for repairs and 
 
 (87) Campbell v. Campbell, 11 N. J. Eq., 268. 
 
 (88) Hanneman v. Richter, 63 N. J. Eq., 753 ; Cole v. Cole, 69 N. J. 
 Eq., 3- 
 
 (89) White V. Smith, 70 N. J. Eq., 418. 
 
 (90) Obert V. Obert, 10 N. J. Eq., 98; affirmed, 12 N. J. Eq., 423. 
 
 (91) White V. Smith, 70 N. J. Eq., 418. 
 
 (92) Flynn v. O'Malley, 33 Atl., 402. 
 
678 Partition. 
 
 taxes. (93) But to entitle a tenant in common to an 
 account of rents and profits from his co-tenant for use and oc- 
 cupation of premises held in common, he must show ex- 
 clusive possession of the premises, or that some profit has 
 been derived therefrom for which the co-tenant ought to ac- 
 count. (94) 
 
 The general rule is, that in order to render one co-tenant 
 liable to another for rent, or for use and occupation, there must 
 be something more than a mere occupancy of the estate by the 
 former, and a forbearance to occupy by the latter. (95) So 
 where one of several tenants occupies simply as a tenant in 
 common, and not to the exclusion of the others, he is not liable 
 to account; but an exclusion may occur where there is no ex- 
 press refusal by the tenant in possession to allow the others 
 to occupy, as where one of several tenants takes possession of 
 premises which are not capable of joint occupancy. In that 
 .case, his occupancy is an exclusion of the others. (96) So it 
 has been held that where one or several tenants in common cul- 
 tivates the whole of the lands held in common, and takes the en- 
 tire product to himself and makes a profit, he must account to 
 his co-tenants for their share of the profit (97) 
 
 And so a tenant in common who prevents his co-tenants from 
 obtaining from the premises held in common their just share 
 of the income which the premises are capable of yielding, or 
 who takes possession of the whole and uses it as his own and 
 thereby makes a profit, is bound to account to his co-tenants 
 either for the rental value of the premises or for the profit 
 he has made. (98) And where one of several tenants in com- 
 mon of a farm was requested by some of his co-tenants to oc- 
 cupy the building in order to prevent forfeiture of the insur- 
 ance policy which he did and cultivated and pastured part of 
 the farm, he was liable to his other co-tenants, who did not con- 
 sent to such occupancy for their share of the fair rental value. 
 
 (93) Davidson v. Thompson, 22 N. J. Eq., 83; Hammond v. Cronk- 
 right, 47 N. J. Eq., 447; Cole v. Cole, 69 N. J. Eq., 3. 
 
 (94) Barrel! v. Barrel!, 25 N. J. Eq., 173. 
 (pS) Sailer v. Sai!er, 41 N. J. Eq., 398. 
 
 (96) Edsal! V. Merri!!, 37 N. J. Eq., 114. 
 
 (97) Barre!! v. Barrel, 25 N. J. Eq., 173; Buclcelew v. Snedeker, 
 27 N. J. Eq., 82. 
 
 (98) Edsa!! v. Merri!!, 37 N. J. Eq., 114. 
 
Incidental Relief. 679 
 
 (99) Upon the same principle, claims by complainant against 
 defendant for rents of the premises collected by defendant may 
 be adjudicated.(i) So too, if the tenant in possession refuses to 
 join his co-tenants in an advantageous lease, and thus deprives 
 them of all income from the premises, he is chargeable with a 
 reasonable rent. (2) 
 
 On the other hand, a co-tenant will not be required to ac- 
 count for rents or profits resulting from his possession where 
 it does' not appear that he excluded his co-tenants from the en- 
 joyment of the premises, nor that he received any rents or 
 profits from letting the premises, nor that in occupying the 
 same as a farm he actually made any profits. (3) So where one 
 of several co-tenants suggested that the property held in com- 
 mon, consisting of a farm, should be occupied by the other co- 
 tenants, and the farm was run at a loss it was held that the 
 co-tenants occupying the farm' did not refuse possession of 
 such premises to the other co-tenant, and that he was not en- 
 titled to an accounting for the use of the premises. (4) The 
 mere fact that a tenant in common was mistaken as to the 
 extent of his interest when he took possession of the premises 
 and during his subsequent occupation, is not sufficient to re- 
 quire him to account to his co-tenants for his use thereof, where 
 it does not appear that he ever excluded any of them, or that 
 they ever made any claim or demand upon him in the assertion 
 of their rights. (5) 
 
 Upon a bill for partition containing a charge that one of the 
 defendants has enjoyed and received the rents and profits of 
 the land, and praying that he may be decreed to account for 
 them, the other defendants and co-tenants are entitled to the 
 benefit of an adjudication in complainant's favor on the prayer 
 for an account, without considering or asserting their rights 
 by cross bill. (6) 
 
 Respecting Improvements by a Co-tenant. Where a ten- 
 ant in common has in good faith made repairs and put improve- 
 
 (99) Vass V. Hill, 21 Atl., 585. 
 
 (i) Hanneman v. Richter, 63 N. J. Eq., 753. 
 
 (2) Izard V. Bodine, 11 N. J. Eq., 403; Edsall v. Merrill, 37 N. J. 
 Eq., 114. 
 
 (3) White V. Smith, 70 N. J. Eq., 418. 
 
 (4) Rose V. Cooley, 62 Atl., 867. 
 
 (5) Sailer v. Sailer, 41 N. J. Eq., 398. 
 
 (6) McKaig, V. McKaig, 50 N. J. Eq., 325. 
 
680 Partition. 
 
 ments which are both necessary and permanent upon the com- 
 mon property, for the purpose of improving it and not for the 
 purpose of embarrassing his co-tenants or encumbering their 
 estates or hindering partition, he is entitled to be compensated 
 in an equitable partition. (7) and in a suit for partition, allow- 
 ance from the gross' proceeds of sale will be made to parties for 
 taxes paid by them, for the value of permanent improvements of 
 a necessary or suitable character placed by them upon the prop- 
 erty at their own expense, and for lawful interest on sums so 
 expended. (8) Nor does the fact that the improvements were 
 were so placed by a tenant in common in remainder, during 
 the existence of a preceding life estate, change the rule. (9) 
 
 The only good faith required in improvements made by a 
 tenant in common is, as said above, that they should be made 
 honestly for the purpose of improving the property, and not 
 for the purpose of embarrasing the co-tenants, or encumbering 
 their interest, or hindering partition and the fact that the tenant 
 making such improvements knows that an undivided share in 
 the land is held by another is no bar to equitable partition. (10) 
 But in a suit for partition, a tenant in common is not entitled 
 to have a sum charged upon property for his services as attor- 
 ney for the tenants when no contract was made for remunera- 
 tion for such services, and they were rendered by him as one 
 member for all the members of the same family. (11) 
 
 Where improvements have been made by a co-tenant on some 
 portion of the property of the co-tenancy, the court may 
 order that an equitable partition be made so as to assign that 
 portion of the land on which the improvements have been 
 placed to the person who made them ; or the court will equalize 
 the partition by decreeing the payment of owelty. (12) Or 
 
 (7) Doughaday v. Crowell, 11 N. J. Eq., 201; Price v. Sisson, 13 
 N. J. Eq., 168; amrmed. 17 N. J. Eq., 475; Hall v. Piddock, 21 N. J. 
 Eq., 311; Shipman v. Shipman. 65 N. J. Eq., 556; White v. Smith,, 
 70 N. J. Eq., 418; Jenkins v. Jenkins, 5 Atl., 134. 
 
 (8) White V. Smith, 70 N. J. Eq., 418. 
 
 (9) Brookfield v. Williams, 2 N. J. Eq., 341 ; Hall v. Piddock, 21 
 N. J. Eq., 311; Shipman v. Shipman, 65 N. J. Eq., 556. 
 
 (10) Hall V. Piddock, 21 N. J. Eq., 311. 
 
 (11) Shipman v. Shipman, 65 N. J. Eq., 556. 
 
 (12) Brookfield v. Williams, 2 N. J. Eq., 341; Obert v. Obert, S N. 
 J. Eq., 397; Danforth v. Moore, 55 N. J. Eq., 127; Davis v. Palmer, 
 78 N. J. Eq., 78 ; As to Payment of Owelty see "Methods of Allotment," 
 page 689, infra. 
 
Proceedings to Preserve the Property. 681 
 
 in case of a sale of the property, the court may order that he 
 be repaid what he expended for such improvements from the 
 proceeds of the sale. (13) 
 
 Waste by Co-tenants. If one of the co-tenants has been 
 guilty of acts amounting to waste, he may be required in par- 
 tition to account for such waste. (14) So where a co-tenant 
 has wasted a portion of the land by cutting timber therefrom, 
 an equitable partition may be made by the court's directing 
 that the land from which the timber has been cut be valued 
 as it was with the timber on it and included in the assignment 
 to the co-tenant committing the waste. (15) A tenant in com- 
 mon in a suit for partition may also be enjoined from com- 
 mitting waste (16) The right to an accounting for waste is 
 not barred by the Statute of Limitations. (17) 
 
 Proceedings to Preserve the Property — By Injunction. In 
 the event of waste, in progress or threatened, the court may by 
 injunction prevent further injury during the pendency of the 
 suit for partition. So a tenant in common may be enjoined 
 from committing waste, but this jurisdiction is sparingly exer- 
 cised (18) But where the threatened waste, which consisted of 
 the cutting of timber, will, if unrestrained, extend tO' the strip- 
 ping of the property of all the timber on it, and it is made to 
 appear that the land without the timber is of but very little 
 value, the court will restrain the further cutting of such timber 
 pendente lite;(i9) on the other hand, where, on a bill for par- 
 tition by a tenant in common owning a twentieth part an 
 injunction was granted against the tenant in common in pos- 
 session, restraining him from cutting timber, and his answer 
 showed that he was owner of eight-twentieths, that he had 
 made improvements to the amount of $2,000, and that he only 
 intended to cut the wood and timber from two acres near the 
 barn, which he had commenced doing when the injunction was 
 
 (13) Hall V. Piddock, 21 N. J. Eq,, 311; Danforth v. Moore, 55 
 N. J. Eq., 127; White v. Smith, 70 N. J. Eq., 418. 
 
 (14) Jackson v. Beach, 3 Atl., 375. 
 
 (15) Obert V. Obert, S N. J. Eq., 397; Polhemus v. Emson, 30 N. J. 
 Eq., 405 ; affirmed, 32 N. J. Eq., 827 ; Davis v. Pahner, 78 N. J. Eq., 78. 
 
 (16) See "Proceedings to Preserve the Property," infra. 
 
 (17) Jackson V. Beach, 3 Atl., 375. 
 
 (18) Obert V. Obert, S N. J. Eq., 397; Low v. Holmes, 17 N. J. Eq., 
 148; Weise v. Welsh, 30 N. J. Eq., 431, .434. 
 
 (19) Coffin v. Loper, 25 N. J. Eq., 443. 
 
682 Partition. 
 
 served, and denied all intention of committing waste, the in- 
 junction was dissolved upon the defendant's answer. (20) 
 
 Where a decree in partition declared that one of the parties 
 was entitled "to have, hold, use, occupy, possess and enjoy 
 in severalty" the share allotted to him, an injunction will issue, 
 upon a proper case made, to prevent any of the parties to the 
 suit from interfering with or molesting any other party in the 
 possession of his share. (21) 
 
 Courts of law have jurisdiction of partiton as well as courts 
 of equity, and when proceedings have been commenced at law, 
 that tribunal must retain the jurisdiction; a court of equity 
 will not interfere with it unless such interference becomes 
 necessary to protect some party thereto from fraud or wrong, 
 or to secure to him some clear right which the law tribunal, 
 from the manner of proceeding before it, cannot secure. For 
 such purpose courts of equity, in exercising one of their princi- 
 pal functions, which is to remedy injustice occasioned 
 by the strict rules of law and the manner of proceeding in 
 courts of law, will interfere by injunction to prevent failure of 
 justice and loss of rights'. (22) So though a court of equity 
 will not determine a dispute concerning a purely legal title to 
 lands, where no equitable question is connected therewith, it 
 will restrain wanton injury, not adequately remediable at law, 
 to structures on the land in dispute, until the complainant shall, 
 by suit at law, have had his rights adjudicated. (23) 
 
 Appointment of Receiver. The power of the Court of 
 Chancery to appoint a receiver as an incident to partition pro- 
 ceedings is unquestioned. A receiver will always be appointed 
 where the circumstances of the case require it, and where it 
 is necessary in order to protect the complainant's right to the 
 enjoyment of the property. (24) So where the facts constitute 
 a clear case of the use and enjoyment of the property by one 
 joint tenant to the entire exclusion of the complainant, a re- 
 ceiver will, be appointed. (25) A receiver will not be appointed, 
 however, when the appointment will subject the co-tenant to 
 
 (20) Obert V. Obert, 5 N. J. Eq., 397. 
 
 (21) King V. Wilson, 54 N. J. Eq,, 247. 
 
 (22) Hall V. Piddock, 21 N. J. Eq., 311. 
 
 (23) Johnsbn v. Hughes, 58 N. J. Eq., 406. 
 
 (24) Weise v. Welsh, 30 N. J. Eq., 431. 
 
 (25) Low V. Holmes, 17 N. J. Eq., 148. 
 
Hearing. 683 
 
 inconvenience and expense, without corresponding benefit to 
 the complainant, and such co-tenant will give the complainant 
 security for the rents and profits. (26) 
 
 HEARING. 
 
 In General. There is nothing peculiar in the method of 
 bringing a partition suit to a hearing, the usual proceedings in 
 equity suits being adopted. Thus, the defendant has the usual 
 time in which to file his plea, demurrer or answer; (27) 
 and in default thereof, a decree pro confesso is t^ ken. (28) 
 
 Disputed or Doubtful Title. Upon a bill for partition, 
 if the legal title to the land is brought in issue, a court of equity 
 will not proceed to settle the disputed title, but will either dis- 
 miss the bill, or retain it to allow the legal title to be settled in 
 an action at law. (29) Where the complainant's title is denied, 
 the court will, however, try the issue to the extent of deter- 
 mining whether the title is doubtful. The bare denial of the 
 complainant's title is no obstacle to the court's proceeding ; the 
 defendant must answer the bill, and if he sets up a title adverse 
 to the complainant, or disputes the complainant's title, must 
 discover his own title ; and if, when the titles are spread before 
 the court upon the pleadings, the court can see no valid legal 
 objection to the complainant's title, there is no- reason why it 
 should not proceed to order the partition. (30) 
 
 (26) Low V. Holmes, 17 N. J. Eq., 148. 
 
 (27) Chancery Act, sec. 20, page 24, supra. 
 
 (28) Chancery Act, sec. 23, page 26, supra; see also "Hearing," 
 page 380, supra. 
 
 (29) Manners v. Manners, 2 N. J. Eq., 384; Obert v. Obert, 5 N. J. 
 Eq., 397; Chapin v. Sears, 7 N. J. L. J., iii; Obert v. Obert, 10 N. J. 
 Eq., 98; afHrmed, 12 N. J. Eq., 423; Lucas v. King, 10 N. J. Eq., 277; 
 DeWitt V. Ackerman, 17 N. J. Eq., '215; Hay v. Estell, 18 N. J. Eq., 
 251 ; Riverview Cemetery Co. v. Turner, 24 N. J. Eq., 18 ; Hoyt v. 
 Tuers, 35 N. J. Eq., 360; Vreeland v. Vreeland, 49 N. J. Eq., 322; 
 Slockbower, v. Kanouse, 50 N. J. Eq., 481 ; Havens v. Seashore Land 
 Co., 57 N. J. Eq., 142 ; Hanneman v. Richter, 62 N. J. Eq., 365 ; affirmed, 
 6s N. J. Eq., 803; Ellis v. Feist, 65 N. J. Eq., 548; Woglom v. Kant, 69 
 N. J. Eq., 489; Country Homes Land Co., v. DeGray, 71 N. J. Eq., 
 283; Roll V. Everett, 65 At!., 732. 
 
 (30) Lucas V. King, 10 N. J. Eq., 227; White -i. Smith, 60 Atl., 
 399- 
 
684 Partition. 
 
 It must clearly appear to the court that there is an actual dis- 
 pute, either by direct statement or by words that amount to a 
 direct denial of title, and not merely by a possible inference 
 from the pleadings or proof. (31) Where to a bill, one purpose 
 of which was a partition of lands' to which complainants 
 claimed title under a will set out in the bill, a defendant de- 
 murred on the ground that by the true construction of the will 
 complainants had no title to the lands, it was held that there 
 was thus disclosed a dispute in respect to title which should 
 be settled at law before the court could proceed to a parti- 
 tion. (32) 
 
 A single recovery in ejectment, if the right be not 
 further controverted at law, will be regarded in equity as de- 
 cisive of the legal title. (33) And where complainant's right to 
 have one-half of the property in question set off to him in 
 severalty is unquestioned, he is entitled to a decree' though the 
 legal title to the other half interest is in dispute between the de- 
 fendants. (34) So where a complainant in a bill for partition has 
 established his title, by judgment at law, to a part of his un- 
 divided share, and as to the residue asks the court of equity, 
 in aid of his title, to set aside a deed made by the defendant 
 as' administrator for his own benefit, the deed will be set aside 
 as to said residue only upon equitable terms. (35) 
 
 If in a bill for partition the title of any party is disputed 
 on equitably grounds, the legal title not being contested, a court 
 of equity will pass upon and settle the dispute in the partition 
 suit. (36) 
 
 Whenever all of the defendants in any suit now pending 
 or hereafter commenced in the Court of Chancery for the par- 
 tition of real estate shall either fail to answer, or, by answer, 
 shall admit or fail to deny the title of the complainant or of 
 any co-defendant or co-defendants as alleged in the bill, and 
 shall not contest the complainant's right to an actual partition 
 
 (31) Hay V. Estell, 18 N. J. Eq., 251. 
 
 (32) Hanneman v. Richter, 62 N. J. Eq., 365 ; affirmed, 63 N. J. Eq., 
 803. 
 
 (33) Obert V. Obert, 12 N. J. Eq., 423. 
 
 (34) Egner v. Meis, 36 Atl., 943 ; Hay v. Estell, 18 N. J. Eq., 251. 
 
 (35) Obert v. Obert, 12 N. J. Eq., 423. 
 
 (36) Lucas V. King, 10 N. J. Eq., 277; Read v. Huff, 40 N. J. Eq., 
 229; Bacon v. Fay, 63 N. J. Eq., 411; Woglom v. Kant, 69 N. J. Eq., 
 489. 
 
Hearing. 685 
 
 of the said real estate or to a sale thereof, if an actual partition 
 is found to be impracticable, but one or more of such defendants 
 shall raise an issue of title as against any co-defendant or co- 
 defendants' then in such case, the complainant and each de- 
 fendant whose title is not denied by any other defendant shall 
 be entitled to a decree, that the interest of the complainant 
 and of each such defendant whose title is not questioned be set 
 off by actual partition, if an actual partition be practicable, 
 and if not, that the real estate be sold and the complainant 
 and each defendant whose title is not questioned be paid their 
 share of the net proceeds of the sale without waiting for the de- 
 termination of the question of title as betwen the various de- 
 fendants. In such case the remainder of the proceeds of the sale 
 of said real estate shall be paid into court to await the determi- 
 nation of the issue of title raised as aforesaid between the de- 
 fendants, or where an actual partiton has been made and the 
 share of the complainant and of any defendant has been set 
 off to him or them the remainder of said real estate shall await 
 the determination of said question of title between the defend- 
 ant's before being actually partitioned among such defend- 
 ants (36a) 
 
 Practice Where Answer Is Filed. In partition proceed- 
 ings where an answer has been filed, the court usually deter- 
 mines on the hearing on the evidence as to the divisibility of 
 the property. In case of default of an answer, it determines 
 the question on the evidence and the report of the Master. (37) 
 
 Practice Where Decree Pro Confesso Is Taken — Order of 
 Reference. Where a bill is filed for partition, and a decree 
 pro confesso is taken, there shall be a reference to a Special 
 Master to report as to the rights of the respective parties in 
 the premises, and to ascertain and report whether, in his opinion, 
 a partition of the land or real estate can be made without great 
 prejudice to the owners of the same. The order of reference 
 should fix the time and place for the presentation of such re- 
 port (38) 
 
 Where Answer Is Filed Which Raises No Defense. 
 Whenever in a suit of foreclosure of mortgage or for partition 
 the answer or answers shall not appear to set up any defense 
 
 (36a) P. L. 1912, p. 324. 
 
 (37) Wain V. Meirs, 27 N. J. Eq., yT, 
 
 (38) Chancery Rule 166. 
 
686 Partition. 
 
 or to present any question except such as in the opinion of the 
 court, may properly be referred to a Master, it shall not be 
 necessary to set down the cause for hearing in order to obtain a 
 reference, but the same may be granted on motion on notice 
 to the solicitor or solicitors of the answering defendant or de- 
 fendants (or to such defendant or defendants if appearing in 
 person), and if the reference be ordered, the report made on 
 such order, if no cause be shown to the contrary, shall be filed 
 of course, without any motion, order or rule for that purpose, 
 and unless' exceptions shall be filed within four days, a decree 
 shall be made accordingly. (39) Where an answer is filed 
 which raises no defense, and the matter is referred to a Mas- 
 ter under this rule, the answer should be submitted to the 
 Master. (40) 
 
 Where in partition complainant alleges that no actual parr. 
 tition can equitably be made, which defendants by their answer 
 deny, a material issue is raised, so that defendants' are entitled 
 to have the cause heard, on pleadings and proofs, and it will be 
 referred to a Master as a case in which there is no material dis- 
 pute between the parties. (41) 
 
 Master's Report. The same general rules control refer- 
 ences in partition proceedings as in ordinary references'. (42) 
 On reference in partition, however, the Master is not concluded 
 by the admission of the bill and answer as to the answering de- 
 fendant's rights in the premises. (43) Lands, not described 
 in the bill must not be included in the Master's report. (44) 
 And where the Master was required to report a description of 
 the premises to be divided, a statement giving the numbers of 
 the several lots as shown on a map in the City Atlas, without 
 more or further description, is insufficient ; he should describe 
 them. (45) 
 
 When a married woman, one of the parties in partition, owns 
 an undivided share in her own right, and the title has become 
 
 (39) Chancery Rule 29. 
 
 (40) Davis V. Palmer, 78 N. J. Eq., 78. 
 
 (41) Fisk V. Grosvenor, 20 Atl., 261. 
 
 (42) See "References," page 354, supra. 
 
 (43) Buzby V. Roberts, 53 N. J. Eq., 566. 
 
 (44) Barnes v. Taylor, 30 N. J. Eq., 7. 
 
 (45) Barnes v. Taylor, 30 N. J. Eq., 7. For matters to be taken 
 into consideration by Master in considering whether an actual partition 
 should be made, see "Partition by Sale," page 694, infra. 
 
Actual Partition. 687 
 
 vested in her, or the coverture commenced after July 4th, 1852, 
 the title to such share shall be stated in the report of the Master 
 ascertaining the right of the parties, and in the decree thereon, 
 to be in such married woman, and not in her and her hus- 
 band. (46). 
 
 The master is required to file his report at the time and place 
 named in the order of reference, or at the time and place named 
 in any order made before the expiration of the time limited in 
 the order of reference extending the time to make such re- 
 port. (47) 
 
 Objections to Master's Report. Any party may appear 
 and make objections to the Master's report, but no exceptions 
 in writing shall be filed to the same. (48) And it is a proper 
 ground of objection that the Master in his conclusion as to 
 matters of fact has made a report contrary to the evidence. (49) 
 
 Practice When Complainant Neglects to Prosecute Suit. 
 When the complainant in any bill filed for partition neglects or 
 refuses to proceed. with the cause for the space of four months, 
 the defendants, or any of them, may take an order upon the 
 complainant to show cause at any time on ten days' notice why 
 the defendant or defendants should not be allowed to proceed 
 with said cause to final decree of partition or distribution in 
 his name ; and unless good cause be shown to the contrary, 
 an order may be made that said defendant or defendants shall 
 be allowed to so proceed, the complainant shall not be allowed 
 his costs', except such as he would be entitled to if he had been 
 made defendant to a bill for partition by such defendant or de- 
 fendants. (50) 
 
 ACTUAL PARTITION. 
 
 Appointment of Commission. If the Master report that, 
 in his opinion, a partition can be made without prejudice, etc., 
 then the Chancellor may appoint three persons as commission- 
 ers to make partition according to law; and all further pro- 
 
 (46) Chancery Rule 167. 
 
 (47) Chancery Rule 166. 
 
 (48) Chancery Rule 166; Bentley v. Long Dock Co., 14 N. J. Eq., 
 480. 
 
 (49) Haulenbeck v. Cronkright, 23 N. J. Eq., 407; and see gener- 
 ally "References," page 354, supra. 
 
 (so) Chancery Rule 171a. 
 
688 Partition. 
 
 ceedings as to such partition shall be according to the prac- 
 tice of the court in like cases as' heretofore. ( i ) If neces- 
 sary to adjust all the equitable rights of the parties in the suit, 
 the court will give special instructions to the commissioners. (2) 
 So the court may in a proper case direct that where a co- 
 tenant has wasted part of the land the part so wasted be set 
 off to the co-tenant committing the waste. (3) 
 
 The order appointing the commission to make partition is 
 usually embodied in the decree for partition which confirms 
 the master's report and fixes the respective rights and interests 
 of the parties in the lands sought to be partitioned. (4) Upon 
 the filing of the decree for partition appointing commissioners 
 to make partition, a commission issues out of the court under 
 its seal, directed to the commissioners, authorizing them to 
 proceed to apportion the lands among the parties entitled there- 
 to, and for that purpose to enter upon such lands, subpioena 
 witnesses, &c.(5) 
 
 Commissioners' Oath of Office. It is the usual practice 
 for the commissioners before acting as such to subscribe an 
 oath that they will "honestly, faithfully and imp'artially" make 
 the partition and perform the duties required of them. (6) 
 Where an order was made by a Vice-Chancellor appointing 
 commissioners, which directed that they be sworn, but did not 
 require them to qualify before such Vice-Chancellor, their re- 
 port will not be quashed mSrely because they qualified before 
 a Master in Chancery, even though the Vice-Chancellor may 
 have directed that they be sworn in before him' in a conversation 
 with counsel. (7) 
 
 Report of Commissioners. The report of the commis- 
 sioners designating the boundaries of the several lots, with the 
 map, constitute the usual return; but the costs of making a 
 
 (1) Chancery Rule 166. 
 
 (2) Doremus v. Doremus, 8 N. J. Eq., 556. 
 
 (3) Polhemus v. Emson, 30 N. J. Eq., 405; affirmed, 32 N. J. Eq., 
 827; and see "Waste by Co-tenants," page 681, supra. 
 
 (4) Dickinson's Ch. Pr., 437. 
 
 (5) Dickinson's Ch. Pr., 439. 
 
 (6) Dickinson's Ch. Pr., 441. 
 
 (7) McMullin V. Doughty, 62 N. J. Eq., 252; amrmed, 63 N. J. Eq., 
 800. 
 
Actual Partition. 689 
 
 field book will be allowed, as well as the costs of drawing 
 the commissioners return (8) 
 
 Methods of Allotment. In equity, there is no necessity 
 that a partition should be made so as to give each party a share 
 in every part of the property. Each party must have his share 
 in value, and this is all that is required. (9) So the interest 
 of one tenant in common may be set off to him in land, even 
 though the balance of the land is held by so many, as tenants 
 in common, that it will be to their interest to order a sale of 
 -their shares. (10) It is better, however, where it can be done 
 without injury to the value of the estate, that a part of every 
 distinct kind of property should be assigned to each tenant, 
 especially of property that far exceeds the other in value. (11) 
 
 Where a partition exactly equal cannot be made without in- 
 jury, a gross sum or yearly rent may be directed to be paid 
 for owelty or equality of partition by one whose share is too 
 large to others whose shares are too small. (12) Where owelty 
 is allowed, the charge rests upon the land alone, and not upon 
 the person of the co-tenant, and may be enforced by appropriate 
 proceedings in rem. It constitutes an encumbrance in the nature 
 of a lien upon the moiety against which it is assigned, follows 
 the land in to the hands of third persons, and is prior to all 
 other encumbrances existing against such moiety. Unless made 
 so by the decree, the payment, of owelty is not a conditon pre- 
 cedent to the vesting of the title to the portion upon which it 
 rests. (13) 
 
 Objections to Report of Commissioners. Exceptions will 
 not lie to the return of commissioners in a suit for partition; 
 the correct practice in such case is by motion to supress the re- 
 turn. (14) To justify the court in setting aside the partition 
 of real estate on the ground of a mistake in judgment on the 
 part of the commissioners, the mistake must be a serious one, 
 and the evidence of it too plain to be mistaken. (15) The 
 
 (8) Coles V. Coles, 13 N. J. Eq., 356. 
 
 (9) Brookfield v. Williams, 2 N. J. Eq., 341 ; Haulenbeck v. Cronk- 
 right, 26 N. J. Eq., 159. 
 
 (10) Jackson v. Beach, 2 Atl., 22. 
 
 (11) Hay V. Estel, 19 N. J. Eq., 133-136. 
 
 (12) Brookfield v. Williams, 2 N. J. Eq., 341. 
 
 (13) 6 Pom. Eq. Jur., Sec. 718. 
 
 (14) Hay V. Estell, 19 N. J. Eq., 133. 
 (is) In re Thompson, 3 N. J. Eq., 637. 
 
690 Partition. 
 
 court, by its well settled practice, interferes with the action of 
 commissioners in partition with great reluctance ; it is only 
 when a clear mistake has been made that it will do so. (i6) 
 To set aside a partition for mere inequality, when there is no 
 partiality or improper conduct of the commissioners, the proof 
 must be clear and the inequality considerable. (17) So where 
 a commissioner appointed to partition land expressed a wish 
 that because of the hard feeling between the parties they should 
 not attend a meeting of the commissioners, but did not bar 
 their counsel, and in fact admitted the right of the parties to 
 be present, and there was nothing to show that because of ab- 
 sence from the meeting the parties were put to any disadvan- 
 tage, it was held that the fact that one party remained away 
 from the meeting, believing himself to be barred, was no 
 ground for quashing the commissioner's report. (18) So if 
 the evidence be doubtful, or contradictory, the report will be 
 sustained. ( 19) 
 
 It is not of itself sufficient to set aside a partition that the 
 commissioners gave to one of the tenants nearly the whole of 
 by far the most valuable part of the tract to be divided. (20) 
 So in proceedings to partition fourteen thousand acres of land, 
 of which defendant owned four-fifths, a division making a 
 railroad running through the land the dividing line, giving com- 
 plainant a portion which contained neither the improved lands 
 nor the buildings, and giving .defendant the mansion house, 
 tenement houses and other improvements, lying next to a vil- 
 lage and connected with the State road, will not be set aside 
 where the proportionate interests of the parties were duly main- 
 tained and no inadequacy or excess of value was shown. (21) 
 
 The court will set aside and quash the return of commis- 
 sioners in partition when the partition has been made upon 
 wrong principles, or in disregard of the rights of the parties, or 
 
 (16) Bentley v. Long Dock Co., 14 N. J. Eq., 480. 
 
 (17) Hay V. Estell, 19 N. J. Eq., 133-13S; Haulenbeck v. Cronkright, 
 26 N. J. Eq., 159. 
 
 (18) McMuUin v. Doughty, 62 N. J. Eq., 252; aMrmed, 63 N. J. Eq., 
 800. 
 
 (19) In re Thompson, 3 N. J. Eq., 637. 
 
 (20) Haulenbeck v. Cronkright, 26 N. J. Eq., 159. 
 
 (21) McMulIin V. Doughty, 62 N. J. Eq., 252; affirmed, 63 N. J. 
 Eq., 800. 
 
Actual Partition. 691 
 
 where there is great and evident inequality in the division. (22) 
 Equal partition among all the owners of each parcel is not re- 
 quired; and a partition so made, without necessity, and prac- 
 tically destructive of the value of the parcels divided, will be set 
 aside. (23) 
 
 The question to be considered on motion to quash the par- 
 tition is whether the inequality is more than can fairly be ac- 
 counted for by the difference in judgment between men of dis- 
 cretion in valuing the property. (24) And in a proceeding to 
 quash the report of commissioners on the ground of inequality, 
 testimony of witnesses having little acquaintance with the land, 
 who were especially taken to view it by a party or by counsel 
 for the purpose of making an estimate to impugn the fairness 
 of the shares assigned, will not be accorded the weight given to 
 that of witnesses resident in the locality. (25) 
 
 Procedure where Parties Desire to Enjoy Their Shares in 
 Common. Where two or more parties to a suit now pend- 
 ing, or which may hereafter be commenced in the Court of 
 Chancery for the partition of lands make it appear to the 
 court that they desire to enjoy their respective shares of the 
 whole or any part of said lands in common with each other, 
 it shall be lawful for the court, in its discretion, to direct 
 partition to be so made as to set off to them, their shares of 
 the land partitioned, without partition as between themselves, 
 to be held by them in common; and where any party to any 
 such suit for partition is a minor, under the age of twenty- 
 one years, it shall be lawful for the court in its discretion, 
 and if it shall appear to be for the benefit of such minor, to 
 direct partition to be so made as to set off to such minor, 
 and to any other party or parties to such suit who may 
 consent thereto, their respective shares in the lands parti- 
 tioned, without partition as between themselves, to be held 
 by them in common. (26) 
 
 Where one party holds five shares and the other party 
 holds one share, the question is not whether the land can be 
 
 (23) Hay V. Estell, 19 N. J. Eq., 133 ; Haulenbeck v. Cronkright, 26 
 N. J. Eq., 159- 
 
 (23) Haulenbeck v. Cronkright, 26 N. J. Eq., 159. 
 
 (24) Hay V. Estell, 19 N. J. Eq., 133. 
 
 (25) McMuUin v. Doughty, 62 N. J. Eq., 252; affirmed, 63 N. J. 
 Eq., 800. 
 
 (26) 3 Comp. Stat., p. 3914, sec. 65. 
 
692 Partition. 
 
 divided into six shares of equal value, but virhether the land 
 can be divided into two shares having a ratio of value of five 
 to one; or in other words, whether a portion can be set off 
 which will be one-sixth of the value of the whole tract, with- 
 out prejudice to the owners and without disregarding any 
 equities of the two parties. (27) Where complainant is one 
 of six co-tenants in the lands in question, and the defendants, 
 comprising the other five co-tenants^ unite in an answer joining 
 in the prayer of the bill that a commission issue to make par- 
 tition, but expressly declaring their election to have the other 
 shares set ofif to them jointly, and praying that the interest 
 of the complainant be set off to him in severalty, the answer 
 should be submitted to the Master on the reference to him 
 of the other matters. (28) If a partition is prayed, and all 
 the parties (all being sui juris) agree upon the divisibility 
 of the premises, it may be so ordered, although the master 
 reports adversely. (29) 
 
 Compensation of Commissioners. The court is author- 
 ized, in its discretion, to make such allowance for the serv- 
 ices of the commissioners and their expenses' in surveying, or 
 otherwise, as may be deemed reasonable, on a consideration 
 of the character and extent of the services of the commis- 
 sioners and their responsibilities and the expenses reasonably 
 incurred. (30) Put a survey of the premises will not be 
 ordered unless shown to be clearly necessary. (31) An ap- 
 peal will not lie from an order of the Chancellor making an 
 allowance to commissioners for their services and expenses ia 
 having maps and surveys, made where the ground of appeal 
 is, that the allowance is unreasonable and excesssive, and 
 the matter has been heard in the Court of Chancery on pe- 
 tition and affidavits annexed thereto, without any counter- 
 affidavits and without application for a hearing on deposi- 
 tion, such order being purely discretionary. (32) 
 
 Recording of Map and Report of Commissioners. Where 
 partition shall be made by commissioners, it shall be lawful 
 
 (27) Davis V. Palmer, 78 N. J. Eq., 78. 
 
 (28) Davis V. Palmer, 78 N. J. Eq., 78. 
 
 (29) Barnes v. Taylor, 30 N. J. Eq., 7. 
 
 (30) Cronkright v. Haulenbeck, 35 N. J. Eq., 279; see also "Fees and 
 Costs," page 711, infra. 
 
 (31) Barnes v. Taylor, 30 N. J. Eq., 7. 
 
 (32) Cronkright v. Haulenbeck, 35 N. J. Eq., 279. 
 
Partition by Sale. 693 
 
 for the court making such appointment to order a certified 
 copy of the report of such commissioners, with map an- 
 nexed if any there be, to be recorded by the clerk or clerks, 
 or when there is or may be a register or registers of deeds 
 provided by law, then with the register or registers, of the 
 county or counties in which said land or lands so ordered or 
 directed to be partitioned shall lie, whereupon it shall be 
 the duty of such commissioners to cause the same to be re- 
 corded accordingly at the cost and expense of the parties 
 interested in said lands. (33) 
 
 PARTITION BY SALE. 
 
 Jurisdiction. The statute provides that the Court of 
 Chancery shall have power, upon bill filed in that court for 
 the partition of real estate, to decree the sale thereof, and 
 the jurisdiction of said court shall continue as heretofore. ( i ) 
 
 Practice. It has been seen that when a decree pro con- 
 fesso has been taken, or where an answer does not set up 
 any defense, the court refers the matter to a Master to 
 ascertain whether a partition can be made without great preju- 
 dice to the owners of the property. (2) The proceedings be- 
 fore the Master in partition cases follow the usual course of 
 like procedings in ordinary references. (3) 
 
 Court May Direct Creditor Having Lien to be Made Par- 
 ty to Proceedings. Before the making of any order for the 
 sale of the premises, where the creditors having liens shall 
 not have been made parties, the court, on the motion of either 
 party, may admit any creditor having a lien on the undivided 
 interest, share or estate of any of the parties, by mortgage, 
 judgment, decree, devise or otherwise, a party to the pro- 
 ceedings, and may thereupon, by an order of reference for that 
 purpose, direct a Master of the court to ascertain and re- 
 port whether the shares or interests in the premises of the 
 parties in such suit, or any of them, are subject to any lien 
 
 (33) 3 Comp. Stat., p. 3902, sec. 11. 
 
 (1) 3 Comp. Stat., ip. 1910, sec. 44. 
 
 (2) See page 685, supra. 
 
 (3) See "References," 354, supra. 
 
694 Partition. 
 
 or encumbrance by mortgage, devise, judgment or decree, or 
 otherwise, and if so, to what liens or encumbrances, and by 
 whom they are held. (4) 
 
 The Grounds for Sale. Partition is a matter of right ; and 
 by the ancient practice, both at law and in equity, the partition 
 was made, however prejudicial it might be to the interests of 
 the parties. It was to remedy this evil that the statute, first 
 enacted in 1816, authorized a sale of the land when the com- 
 missioners reported that a partition could not be made without 
 great prejudice; and by the act of 1846, the same power was 
 conferred upon the Court of Chancery upon bills filed for 
 .partition. (5) Where the premises described in a bill for 
 partition are so situated and are of such character that they 
 can not be divided among the owners without great prejudice 
 to the interests of such owners, the property will be ordered 
 sold and the proceeds divided among the several owners 
 according to their respective interests. (6) So in a suit for 
 partition of land, where it appears that there are valuable 
 mineral deposits beneath the surface, but their exact locality, 
 extent and value are uncertain, rendering it impossible to do 
 equal justice between 'the parties, the court will not decree 
 an actual partition. (7) 
 
 Under the express provisions of sections 26, 45 and 46 
 of the Partition Act, sale of lands may be made notwithstand- 
 ing the fact that the share held by any tenant in common 
 is for a less estate than a fee, whenever it appears that the 
 land is so situate that partition cannot be made without prepu- 
 dice to the persons interested. (8) The fact that the property 
 is of so great a value that no one individual can buy it con- 
 stitutes no objection to the sale. (9) But the court will re- 
 fuse to order a sale of partnership lands and payment to com- 
 plainant of her share of the proceeds of the sale of the prop- 
 erty, in a suit for partition, where it appears that the land 
 has been in the market for some time and could not be sold 
 
 (4). 3 Comp. Stat., p. 3913, sec. 57. 
 
 (5) Bentley v. Long Dock Co., 14 N. J. Eq,, 480. 
 
 (6) Bentley v. Long Dock Co., 14 N. J. Eq., 480; White v. Smith, 
 70 N. J. Eq., 418. 
 
 (7) Kemble v. Kemble, 44 N. J. Eq., 434; 2 Comp. Stat., p. 3905, 
 et seq. 
 
 (8) Campbell v. Cole, 64 Atl., 461, and see page 666, supra. 
 
 (9) Bentley v. Long Dock Co., 14 N. J. Eq., 480. 
 
Partition by Sale. 695 
 
 without great loss,- but will set off to complainant her share 
 in specie. (lo) So where the property to be partitioned is 
 a five foot strip between and adjoining the rear of the lots 
 of complainant and defendant, and each is entitled to one- 
 half, a sale will not be ordered, but actual partition will be 
 made. ( 1 1 ) 
 
 Where the master reported that the lands could not be 
 divided among the heirs without great prejudice to their in- 
 terests, and the court was unable, upon the evidence, to 
 reach the same conclusion, an order was made appointing 
 commissioners to make partition among the owners according 
 to their respective interests, unless they should be of opinion 
 that such partition could not be made without great preju- 
 dice, in which case they were to report to the court accord- 
 ingly. (12) 
 
 Objections to Master's Report. At the time and place 
 fixed by the order of reference for the filing of the Master's 
 report, or at such other time and place as may be fixed by 
 an order entered before the time first appointed shall have 
 expired, any party interested may appear and make objections 
 to the, report, but no exceptions in writing shall be filed to the 
 same. (13) 
 
 Decree for Sale. If the Master report that a partition can- 
 not be made without great prejudice to the owners of the 
 property, and the report is confirmed, then an order shall be 
 made directing a sale by a Special Master. (14) In cases of par- 
 tition, the Master who may make the report whether partition 
 can be made without great prejudice shall in no case be ap- 
 pointed to make sale of the premises. (15) The order con- 
 firming the Master's report is usually embodied in the decree 
 for sale; but no order for a sale by a special master shall be 
 made except upon application to the chancellor or one of the 
 Vice Chancellors, which application when any defendant has 
 
 (10) Craighead v. Pike, 58 N. J. Eq., 15 affirmed, 60 N. J. Eq., 443. 
 
 (11) Davidson v. Thompson, 22 N. J. Eq., 83. 
 
 (12) Wain v. Meirs, 27 N. J. Eq., 351; Davis v. Palmer, 78 N. J. 
 eq., 78; 
 
 (13) Chancery Rule 166. 
 
 (14) Chancery Rule 166. 
 (is) Chancery Rule 171. 
 
696 Partition. 
 
 entered appearance or has filed an answer, but not otherwise, 
 shall be made upon notice to such defendant. (15a) 
 
 Inchoate Rights of Dower May Be Ordered Sold. The 
 
 statute provides that inchoate rights of dower may be sold, 
 and provides for the ascertainment of the value of such rights 
 of dower and for the payment thereof from the proceeds of 
 sale. (16) 
 
 Sale Free from Dower or Curtesy. In proceedings for 
 the partition of land in any court of this state, or for the sale 
 of lands by executors, administrators or guardians by order 
 of the Orphans' Court, if it shall appear to the court in which 
 such proceedings are pending that any person is entitled 
 to an estate in dower or by the curtesy in the whole or any 
 part or share of the premises, it shall be lawful for the said 
 court at the time of making the order for the sale of such 
 premises to consider and determine under all the circumstances 
 of the case, having regard to the interests of all persons inter- 
 ested, whether such right or estate in dower or by the curtesy 
 should be excepted from such sale, or whether the same should 
 be sold, and to order and decree accordingly; and if the sale 
 of the premises including such estate shall be ordered, the 
 estate and interest of every such person shall pass thereby, 
 and the purchaser, his heirs and assigns shall hold such 
 premises free and discharged from all claims by virtue there- 
 of; provided, however, that notice shall be given to the party 
 entitled to the said estate in dower or by the curtesy of the 
 intended application for the sale of said lands free and dis- 
 charged of such estate at least twenty days prior to such ap- 
 plication, or by publishing such notice at least four weeks 
 next preceding the- time of making such application in one 
 of the newspapers printed and published in the county where 
 such lands are situate. (17) 
 
 Notice of Application for Decree to Sell Free from Right 
 of Dower. In partition suits, where a person is entitled to 
 an estate in dower or by the curtesy, in the whole or any part 
 or share of the premises, and the Master shall report that 
 
 (iSa) Chancery Rule 166. 
 
 (16) 3 Comp. Stat., p. 3909, sec. 39; and see "Order for Distribu- 
 tion," page 702, infra. 
 
 (17) 4 Comp. Stat., p. 4680, sec. 18; see also 3 Comp. Stat., p. 
 3912, sec. 52. 
 
Partition by Sale. 697 
 
 said premises should be sold free and discharged of such 
 estate, no decree for the said premises free and discharged 
 from such dower or curtesy shall be made until notice shall 
 have been given to the party entitled to the said estate of the 
 intended application for the sale of said lands free and dis- 
 charged as aforesaid. Such notice shall be served personally 
 on said party within or without the state at least twenty days 
 prior to such application, or if he or she be without the state, 
 or cannot be found therein, may be published in one of the 
 newspapers printed and published in the county or counties 
 wherein such lands are situate once a week for at least four 
 weeks next preceding the time of making such application ; 
 if published, a copy thereof shall be mailed and prepaid 
 to such party, if his or her residence can be ascertained. (i8) 
 
 Waiver of Notice. The party entitled to such estate may 
 waive the notice herein required, by filing his or her consent, 
 or the consent of his or her solicitor, to such sale; provided, 
 such signature of the party be verified by affidavit. (19) 
 
 Neither section 26 of the Partition Act, permitting lands 
 held by tenants in common to be partitioned though they may 
 be limited over after an estate for life, or any estate therein 
 (20), nor 4 Comp. Stat., page 4680, section 18 of the 
 Act concerning the sale of land and providing for a sale free 
 from dower (21), authorizes a partition of a dower estate 
 after dower assigned, without the wife's consent, for the 
 benefit of the tenants in common, by a sale thereof in lieu 
 of actual partition. (22) On a bill for partition of three sepa- 
 rate tracts of land, the court has no power to order that a 
 widow's dower therein be set off from one tract, and that the 
 remainder of that tract and also the two other tracts be sold 
 free and clear of the encumbrance of dower. The statute 
 provides that the interest in dower may be sold or it may 
 be excepted from the sale ; the Court has no power to ad- 
 measure dower in a proceeding for partition. (23) 
 
 (18) Chancery Rule 168. 
 
 (19) Chancery Rule 169. 
 
 (20) See page 666, supra. 
 
 (21) See page 696, supra. 
 
 (22) Radley v. Radley, 78 N. J. Eq., 170. 
 
 (23) Hardin v. Lawrence, 40 N. J. Eq., 154. 
 
698 Partition. 
 
 When Personal Estate of Ancestor is Insufficient to Pay 
 Debts. In all suits and proceedings for the partition of 
 lands, tenements, hereditaments', and real estate, in which the 
 said lands, or any part thereof, shall be ordered to be sold, 
 if it shall appear to the court so ordering that the personal 
 estate of the ancestor from whom said lands descended is in- 
 sufficient to pay his just debts, it shall be lawful for the said 
 court to direct such lands to be sold free from the lien or claim 
 of such debts, and to make such order touching the dispo- 
 sition of the proceeds of sale as may be necessary for the ascer- 
 tainment and payment thereout of such debts of the defici- 
 ency thereof, before the distribution of such proceeds. (24) 
 
 Independent of this statute, the rule seems to be that where 
 a sale or partition has been made, a creditor may come in 
 by petition to have his debf paid out of the proceeds of the 
 sale, and the practice of this court in relation to the applica- 
 tion of executors and administrators for so much of the pro- 
 ceeds as is necessary to pay the debts (whether they are parties 
 to the suit or not) is based upon this theory. (25) This act 
 does not deprive the court of jurisdiction to order the proceeds 
 of land sold in partition to be paid into court, though the sale 
 was not directed to be free from debts which were enforcible 
 against it. (26) 
 
 Sale of Tract When Undivided Shares are Limited Over. 
 In all proceedings for the partition of lands, where all or any 
 of the undivided shares thereof is or are limited over in the 
 manner specified in the twenty-sixth section of the partition 
 act (27) a sale thereof may be made upon an order or decree 
 of the Court of Chancery, where such proceedings shall have 
 been commenced in that court, whenever it shall be made to 
 appear to the court that the tract or tracts of land in question 
 are so circumstanced that a partition thereof cannot be made 
 without great prejudice to the owners or persons interested 
 in the Bame. (28) 
 
 (24) 3 Comp. Stat., p. 3910, sec. 43; see also 4 Comp. Stat., p. 
 4683, sec. 20. For practice on application of executor or administra- 
 tor for payment to him of proceeds of sale to pay decedent's debts, 
 see notes to sec. 63, Chancery Act, page 57, supra. 
 
 (25) McKinley v. Coe, 66 N. J. Eq., 70-77. 
 
 (26) Morgan v. Morgan, 71 N. J. Eq., 606. 
 
 (27) See page 666, supra. 
 
 (28) 3 Comp. Stat., p. 3910, sec. 45. 
 
Partition by Sale. 699 
 
 Sale of Share. In all proceedings for partition, whenever 
 it shall appear by satisfactory proof that the interest of the 
 owner of any share is such that the said share, if it were actu- 
 ally set apart, might be sold under proceedings for the sale of 
 lands limited over, then such sale of said share, after actually 
 setting apart the same, may be made in the proceedings for par- 
 tition, and by virtue of the decree therein, instead of in proceed- 
 ings for the sale of lands limited over. (29) 
 
 Order of Court Regarding Sale Where Liens Exist. If 
 
 it shall appear, by the proceedings in the suit or by the re- 
 port of the Master, that there are any existing liens or en- 
 cumbrances upon the estate, share or interest in the premises 
 of any party named in the proceedings in said suit, the Court 
 shall, if it order a sale, in the decree for sale direct the Master 
 or Commissioners, as the case may be, to bring intO' the Court 
 of Chancery and pay to the clerk thereof the portion of the 
 moneys arising from the sale of the estate, share and interest 
 of said property after deducting the portion of the costs, 
 charges and expenses to which it shall be liable. (30) From 
 a literal reading of this section it would appear that the 
 court should order the Master to bring the funds' into court 
 by the decree of the sale ; the paramount intention of the 
 act is, however, to preserve the fund for proper application, 
 and the omission to incorporate the legislative mandate in a 
 particular order or decree does not forbid, but rather re- 
 quires that the omission be corrected by a supplemental order, 
 and, if necessary, the decree for sale can be amended where 
 all parties interested are before the court. (31) 
 
 Sale of Lands Limited Over. Upon a bill for partition 
 among remaindermen, the consent of the owner of the particu- 
 lar estate in possession is requisite; and if a sale is ordered, 
 it must be a sale of the whole estate, as well that in pos- 
 session as that in expectancy. (32) 
 
 (29) 3 Comp. Stat., p. 3910, sec. 46. For proceedings for the 
 investment and final disposition of proceeds of sale see 3 Comp. Stat., 
 p. 391 1, section 47, et seq. 
 
 (30) 3 Comp. Stat., p. 3913, sec. 58. 
 
 (31) Morgan v. Morgan, 71 N. J. Eq., 606. 
 
 (32) Roarty v. Smith, 53 N. J. Eq., 253; Yglesias v. Dewey, 60 
 N. J. Eq., 62; and see "Partition of Lands Limited Over," page 665, 
 supra. 
 
700 Partition. 
 
 Advertisement of Sale by Master. The subject of judicial 
 sales is fully considered in a previous chapter. (33) 
 
 Conduct of Sale. A person to whom property is struck 
 off a sale in partition acquires a right which the court is 
 bound to protect. Such bidder has a right to have a deed for 
 the property, unless for good cause the sale be set aside. (34) 
 It is the custom in New Jersey, at public sales, where a bid 
 is fairly claimed by two or more persons, to put the property 
 up against the price bid and as at the bid of such one of the 
 competitors as the auctioneer may declare entitled to it. (35) 
 
 Proceedings to Collect Bid. If a party to a partition suit 
 who is entitled to a share of the lands becomes a purchaser of 
 a part of the lands at a sale by the Master under an order for 
 that purpose made in the cause and makes default in complet- 
 ing his purchase, and upon a resale a deficiency arises, the 
 court may pass upon and determine, in a summary manner, 
 his liability to make it good, and charge such deficiency against 
 his share in the fund. (36) Where the conditions of sale con- 
 tained a clause by which the percentage paid by the purchaser 
 at the time of the sale was forfeited in case he failed to 
 complete his purchase, and the purchaser failed to complete 
 his purchase, and on a second sale a deficiency arose, it was 
 held that under the language of the condition the defaulting 
 purchaser was entitled to have the percentage by him paid 
 applied in reduction of the deficiency. (37) But where the 
 Special Master, in partition, appointed to sell the real estate at 
 auction, accepts the bid of a person whose agency for others 
 is disclosed at the time of the payment of the deposit required, 
 and the Master accepts such sum as from the principals and 
 reports the sale as made to the principals, he cannot hold the 
 agent liable on the failure of the principals to complete the 
 purchase. (38) 
 
 (33) See "Foreclosure of Mortgages," "Sale of Mortgaged Premi- 
 ses," page 603, supra. 
 
 (34) Conover v. Walling, 15 N. J. Eq., 167. 
 
 (35) Conover v. Walling, 15 N. J. Eq., 173; for general discussion 
 of judicial sales see "Foreclosure of Mortgages," "Sale of Mort- 
 gaged Premises," page 603, supra. 
 
 (36) Vass V. Hill, 21 Atl., 585; Bailey v. Dalrymple, 47 N. J. Eq., 
 81; and see "Foreclosure of Mortgages," page 611, supra. 
 
 (37) Bailey v. Dalrymple, 47 N. J. Eq., 8r. 
 
 (38) Zeingenfuss v. Moore, 60 Atl., 520. 
 
Partition by Sale. 701 
 
 Confirmation of Sale. The Chancery Act provides that 
 whenever any oflScer shall make a sale of lands pursuant to 
 an order or decree of the Court of Chancery, he shall within 
 five days thereafter report such sale to the court making 
 such decree or order of sale, and the court shall, if it ap- 
 proves such sale, confirm the same as valid and effectual in 
 law, and shall direct the officer making such sale to execute 
 good and sufficient conveyances therefor to the purchaser. 
 The statute provides that no such sale shall be confirmed until 
 the court is satisfied by evidence that the lands were sold for 
 the highest and best price the same would bring. (39) The 
 mere fact that more is offered for the property so sold at 
 auction than the amount for which it was cried off is no 
 justification for the court's refusing to confirni the sale; the 
 practice of the English courts in opening bids has not been 
 adopted by the courts of this state. (40) As has been seen one 
 of the tenants in common cannot object to a sale on the ground 
 that he is not capable alone of purchasing the entire premi- 
 ses, and that, therefore, his interest may be sacrificed by a 
 combination among his co-tenants. (41)' 
 
 A petition to set aside a Master's sale in partition was 
 dismissed, where an application to the Master to adjourn the 
 sale was made after the sale had begun, the price obtained 
 for the premises was satisfactory, the Master's discretion as 
 to selling nine lots in gross fairly exercised, and the petitioner 
 was in laches in presenting his petition. (42) But a sale of 
 lands under partition may be set aside where no advertisement 
 was set up in the township where the lands lay, as required by 
 statute, the buyer at such sale being repaid the purchase money 
 paid by him with interest. (43) So where a mistake occurs in 
 the biddings which is brought to the knolwedge of the Master, 
 who does not correct it by having the property again set up 
 in the ordinary way, and it appears that a less price was 
 obtained than would otherwise have been offered, the sale will 
 
 (39) Chancery Act, Sec. 94, page "JT, supra, and for a full dis- 
 cussion of the practice on Report and Confirmation of Sales, see 
 "Foreclosure of Mortgages," page 615, supra. 
 
 (40) Conover v. Walling, 15 N. J. Eq., 173, and see "Foreclosure 
 of Mortgages," page 615, supra. 
 
 (41) Bentley v. Longdock Co., 14 N. J. Eq., 480. 
 
 (42) Thome v. Andrews, 33 N. J. Eq., 457. 
 
 (43) Rudderow v. Dudley, 41 N. J. Eq., 611. 
 
702 Partition. 
 
 be set aside. (44) A purchaser at a partition sale is entitled 
 to appeal from an order setting aside the sale. (45) 
 
 Conveyance by Master to be Recorded. Any conveyance 
 executed in pursuance of a sale in partition, under proceed- 
 ings in partition in the Court of Chancery, shall be recorded 
 in the county where the premises are situate, and shall be a 
 bar, both at law and in equity, against all persons interested 
 in such premises in any way who shall have been parties in 
 the said proceedings, and against all other persons claiming 
 by, from or under such parties or any of them. (46) 
 
 Effect of Deed. If a purchaser of land at a partition sale 
 accepts a deed containing reservation of an easement in favor 
 of an adjoining lot sold at the same sale, and of which, a deed 
 is given including a grant of such easement, such purchaser 
 is bound by the provisions of the deed, although no such restric- 
 tions were mentioned in the conditions of sale. (47) 
 
 DISTRIBUTION OF PROCEEDS OF SALE. 
 
 In General. The proceeds of a partition sale are to be 
 regarded as land. The lands are converted into money simply 
 as a means of making partition, but for no other purpose. 
 The question of who is entitled to such proceeds is to be 
 dealt with in the same manner as though the thing to be 
 divided still remained land.(i) So where one of several 
 tenants in common dies^ subsequent to the sale of the land 
 in partition proceedings, without doing anything manifesting 
 an intention to change his share from its charter of real 
 estate into personal property, the decedent's share would 
 descend to his heirs at law as real estate, unless it be shown 
 that by a will lawfully executed to pass real estate in New 
 Jersey he devised the property to other persons. (2) So the 
 
 (44) Conover v. Walling, 15 N. J. Eq., 173. 
 
 (45) Conover v. Walling, 15 N. J. Eq., 167. 
 
 (46) 3 Comp. Stat., p. 3914, sec. 64. 
 
 (47) Rosenkrans v. Snover, 19 N. J. Eq., 420. 
 
 (i) Larch v. Oberly, 18 N. J. Eq., 346; Green v. Hathaway, 36 
 N. J. Eq., 471 ; McCarthy v. McCarthy, 57 N. J. Eq., 587. 
 (2) McCarthy v. McCarthy, 57 N. J. Eq., 587. 
 
Distribution. 703 
 
 judgment creditor of a co-tenant, whose judgment was entered 
 and execution thereon issued and levy made during the 
 debtor's lifetime, is entitled to be paid from the proceeds of 
 the sale of said land before the payment of funeral charges 
 and expenses of such deceased co-tenant. (3) 
 
 The distribution of the proceeds of land sold in partition is 
 controlled by the law of the state where it is situate. (4) When 
 the devisee of a deceased defendant in partition applies for 
 payment of his share of the proceeds of sale, notice of the 
 application must be given to the heirs and next of kin of such 
 deceased defendant. (5) Where a decree in partition adjudges 
 that the parties are entitled to the land in certain proportions, 
 the proceeds of the land on a sale thereof under partition 
 proceedings must be distributed in the same manner, unless 
 the decree is set aside. (6) 
 
 Distribution to Married Woman. The Chancery Rules 
 provide that when one of the parties in partition is a married 
 woman who owns an undivided share in her own right, her 
 share of the proceeds of sale shall be ordered to be paid to 
 her. (7) In the light of recent decisions it would appear, how- 
 ever that in the case of a married woman whose husband is 
 living, and who has had issue born alive, this rule cannot be 
 applied. It has been generally understood by the bar, that 
 under the rule stated in the case of Porch vs. Fries (8), that 
 the Married Women Acts destroyed any interest which a 
 husband had in his wife's lands during the lifetime of his 
 wife. In Doremus vs. Paterson (9) Vice-Chancellor Stevens 
 held that where a bill filed in respect to an injury to the 
 wife's land showed the birth of issue, the husband had such 
 an interest in his wife's lands as made him a necessary party. 
 This rule was applied in the case of Leach vs. Leach (10) to 
 an application by a wife for surplus money ai^sing from the 
 sale of her land in foreclosure proceedings. In that case 
 Vice-Chancellor Emery used the following language: "Under 
 
 (3) Wright V. Wright, 70 N. J. Eq., 407. 
 
 (4) Oberly v. Lerch, 18 N. J. Eq., 346; afHrmed, ib., 575. 
 
 (5) McCarthy v. McCarthy, 57 N. J. Eq., 587. 
 
 (6) Green v. Hathaway, 36 N. J. Eq., 471. . 
 
 (7) Chancery Rule 167. 
 
 (8) 18 N. J. Eq., 204. 
 
 (9) 69 N. J. Eq., 188 ; aMrmed ib., 77$. » 
 
 (10) 69 N. J. Eq., 620. 
 
704 Partition. 
 
 the decisions declaring the effect of our statutes relating to 
 the real estate of married women, the respective interests in 
 the land sold and in its proceeds are as follows: The wife 
 has an estate for her life in the lands, with remainder to her 
 husband for his life, if he survives the wife, and with remain- 
 der over to the wife in fee." Applying these principles to 
 the case under consideration, it was held that the wife was 
 entitled under Section 60 of the Chancery Act (loa) to a gross 
 sum in lieu of her life estate, and that the balance must be 
 invested during the lives of the husband and wife for the 
 benefit of the wife during their joint lives, and for the fur- 
 ther benefit of the husband during his life in case he survived 
 the wife. On the death of the husband during the wife's 
 life she will be entitled to the principal sum invested. There 
 appears no reason why these rules should not apply to the 
 distribution of the proceeds of a partition sale. It follows, 
 therefore, that where there is a husband living, and issue has 
 been born alive, this rule, rather than that outlined in the 
 Rules of the Court of Chancery should be followed. 
 
 Payment of Judgments out of Proceeds of Sale. In all 
 
 suits in partition heretofore or hereafter begun in any of 
 the courts of this state wherein a sale of the lands sought to 
 be partitioned is or shall be made, and any judgement or judg- 
 ments are or shall be obtained against any of the distributees, 
 their executors, administrators or legal representatives at any 
 time prior to the distribution of the proceeds of any such sale, 
 such judgment creditor or creditors may, upon petition filed 
 in such cause, have an order, and such court is hereby author- 
 ized to make the same, directing the payment of such judg- 
 ment or judgments out of the proceeds of the sale of such 
 share or shares against which the same would have been a 
 lien had such share or shares been owned by such debtor or 
 debtors in severalty. ( 1 1 ) 
 
 Distribution in Case of Sale of Inchoate Dower Right. In 
 
 any proceedings for the partition of lands in the Court of 
 Chancery of this state, or the Orphans' Court of any county 
 therein, or upon any application made or hereafter made to 
 any justice of the Supreme Court or judge of any Circuit 
 
 (loa) See page 55, supra. 
 
 (11) 3 Comp. Stat, p. 3907, sec. 31; see also Chancery Act, sec. 
 93, page 76, supra. 
 
Distribution. 705 
 
 Court or- Court of Common Pleas of the county wherein such 
 lands may lie, all inchoate rights of dower in lands ordered 
 in said proceedings to be sold may be sold by the order of 
 said court, justice or judge, and in such case said rights of 
 dower shall be forever barred, and the court by which said 
 sale shall be confirmed shall direct one-third of the net pro- 
 ceeds of the sak of the share or shares in such lands as are 
 subject to such inchoate dower to be invested, and the incorne 
 thereof during the lifetime of the tenant in fee of such share 
 or shares to be paid to such tenant or to the lienors upon such 
 share or shares, and upon the death of such tenant said 
 income shall be paid to the person entitled to said right of 
 dower during her lifetime, and upon her death the court shall 
 order the principal of said fund to be paid to the heirs-at-law 
 of the tenant in fee or to the parties holding liens upon the 
 said share or shares at the time of the sale thereof and remain- 
 ing unsatisfied at the death of the person entitled to said right 
 of dower, as equity may require ; provided, however, if such 
 person entitled to such right of dower shall signify her con- 
 sent thereto in writing, acknowledged as deeds are required 
 to be acknowledged by married women, the proceeds of the 
 sale of such share or shares as are subject to such inchoate 
 dower shall be paid over as though no such right existed. (12) 
 
 One-third of Net Proceeds may be Paid Over Instead of 
 Invested. In all partition cases in the Court of Chancery, 
 where inchoate rights of dower in any lands are ordered to 
 be sold therewith, instead of investing one-third of the net 
 proceeds of the sale of the share or shares in such lands sub- 
 ject to such inchoate dower, as now directed by the thirty-ninth 
 section of this act, it shall be lawful for the Master or other 
 officer making such sale, on executing to him a full release 
 and discharge, duly acknowledged according to law, from the 
 tenant in fee and his wife entitled to such inchoate right of 
 dower, to pay to them the one-third of the net proceeds 
 aforesaid ; provided, however, that where the share or interest 
 of the tenant in fee has been sold by judgment or otherwise, or 
 become subject to any valid lien, then such payment shall not 
 be made unless all such parties in interest shall join in such 
 release and discharge. (13) 
 
 (12) 3 Comp. Stat., p. 3909, sec. 39. 
 
 (13) 3 Comp. Stat., p. 3914, sec. 66. 
 
706 Partition. 
 
 Compensation to Doweress or Tenant by the Curtesy. 
 
 Upon sale being made of any estate in dower or by the curtesy 
 under the provisions of Section i8 (see page 696, sii-pra), the 
 said court shall direct the payment of such sum in gross out 
 of the proceeds of the sale of the premises to the person entitled 
 to such estate as shall be deemed a just and reasonable satis- 
 faction for such estate or interest, and which the person so 
 entitled shall consent in writing to accept in lieu thereof; but 
 in case no such consent be given before the making of the 
 order confirming such sale or for the distribution of the pro- 
 ceeds thereof, then the court shall ascertain and de- 
 termine what proportion of such proceeds will be 
 a just and reasonable sum to be invested for the 
 benefit of the person entitled to such estate in dower 
 or by the curtesy, and shall order the same to be 
 put at interest on sufficient security of real property or invested 
 in public stock or deposited in some safe and reliable savings 
 institution by order and under the direction and control of 
 said court for the benefit of the parties entitled, and the inter- 
 est thereon to be paid to them as the same may become due 
 as a compensation for and in lieu of the said estate in dower 
 or by the curtesy, arid at the decease of the person entitled to 
 the same the principal sum shall be paid to or distributed among 
 the parties entitled thereto. (14) 
 
 When a sale is made in proceedings in partition, the dower- 
 ess is entitled by the statute to a just and reasonable satisfac- 
 tion for her estate. This means full compensation for the loss 
 which she sustains by having her estate taken from her by 
 the decree of the court. The value of her estate must be com- 
 puted from the use and profits she was entitled to derive from 
 it if not sold. (15) It was not intended that the interest of 
 one-third of the net proceeds was to be paid to the doweress, 
 or a sum in gross computed from the interest of such one- 
 third as a compensation for the sale of her estate. (16) Where 
 a widow agrees to take a gross sum in lieu of her dower, the 
 court should consider the condition of her health, and if she 
 be found to enjoy the usual health of persons of her age, the 
 
 (14) 4 Comp. Stat, p. 4681, sec. 19. 
 
 (is) Haulenbeck v. Cronkright, 23 N. J. Eq., 407. 
 
 (16) Haulenbeck v. Cronkright, 23 N. J. Eq., 407. 
 
Distribution. 707 
 
 sum awarded her should be based upon the average expect- 
 ancy of life of persons of her age in ordinary health. (17) 
 
 Where a widow consents to accept a gross sum in lieu of 
 dower, and then dies after the sale of the lands but before 
 distribution, the fact of her death cannot affect the valuation 
 to be made of her interest in the lands ; it is her expectancy 
 which is to be valued and not the actual value of her life estate 
 as it has turned out to be. The right of the widow becomes 
 vested by her consent, and her subsequent death cannot affect 
 it. (18) On the other hand, where a widow dies before a 
 sale of the premises, her estate is terminated by her death; 
 while -it is true that the estate in dower of the widow was 
 by the decree for sale ordered sold, yet in point of fact this 
 estate was determined by the death of the widow before the 
 sale, and no sale of the dower right was ever made, no such 
 estate being in existence at the time of sale, and consequently 
 there are no proceeds of the sale which the widow would be 
 entitled to have invested for her- benefit or in lieu whereof she 
 could receive a sum in gross. (19) 
 
 Practice on Ascertainment of Value of Dower Estate. 
 
 When an estate in dower or curtesy in any lands, sold by 
 order of the court in proceedings for partition, shall, by order 
 of the court, be sold with such lands, the sum to be paid or 
 invested in lieu of such dower or curtesy shall be ascertained 
 in the same manner as in like cases on sale of infants' lands. 
 (20) 
 
 If any person entitled to dower in the premises, or to any 
 estate for life or years therein devised to a widow in lieu of 
 dower, is willing to join in the sale and release of such estate 
 upon receiving, in lieu thereof, such sum in gross as shall be 
 approved by the chancellor, or upon the investment > of such 
 sum as the chancellor may deem reasonable in such manner 
 that the interest shall be paid to the person entitled to such 
 estate for the duration thereof, or if any person entitled to 
 curtesy in the premises shall be willing to join in the sale, upon 
 
 (17) McLaughlin v. McLaughlin, 22 N. J. Eq., 505; and see "Method 
 of Ascertaining Value," page 708, infra. 
 
 (18) Mulford V. Hiers, 13 N. J. Eq., 13; McLaughlin v. McLaughlin, 
 22 N. J. Eq., 505. 
 
 (19) Mulford V. Hiers, 13 N. J. Eq., 13. 
 
 (20) Chancery Rule 170. 
 
708 Partition. 
 
 receiving such sum in gross as shall be approved by the Chan- 
 cellor, and such person shall, before the sale, sign and deliver 
 a consent in writing to join in the sale and release of such 
 estate on the terms above specified, or either of them, then the 
 lands shall be sold free from such estate. (21) 
 
 Reference to Ascertain Value. If any person entitled to 
 such dower or estate shall have agreed to join in the sale and 
 accept such sum in gross, or investment in lieu thereof, then, 
 upon such sale, it shall be referred to a Special Master to 
 ascertain and report the clear yearly income, above insurance, 
 repairs and taxes, that such tenant for life could realize from 
 the whole premises during his or her life, if owner of the 
 whole for life; and in such calculation, allowance shall be 
 made for all repairs necessary to keep the premises in as 
 good condition as at the sale, including the renewal of any 
 part of the buildings thereon that may, by ordinary wear and 
 tear, or from decay, require renewal ; and from said income 
 to ascertain and report the gross value of such dower or other 
 estate, on the principle of life anuities, to be calculated on the 
 basis of the table annexed to the rules of this court ; and also 
 further to ascertain the gross value of such dower or estate 
 from the net proceeds of the sale above costs and expenses 
 to be calculated on the basis of said table ; and also, in case 
 such consent is to accept a gross sum, to inquire into and re- 
 port the condition as to health of such doweress of life tenant, 
 and whether he or she has an average expectancy of life ; and, 
 if not, what deduction should be made from such gross sum 
 on that account. (22) But where the amounts payable to two 
 widows and to several infant children, in partition, were very 
 small, the Chancellor examined the calculations of the com- 
 plainant's solicitor, and ordered the widow's share to be paid, 
 without a reference, and the infants' shares paid their mothers, 
 without appointing a guardian. (23) 
 
 Method of Ascertaining Value. The gross sum allowed in 
 lieu of dower or other estate so sold shall not be greater than 
 that calculated on the net proceeds of the sale ; and when the 
 clear yearly income shall be less than the interest on the net 
 proceeds of sale at four per cent., the gross sum to be allowed 
 
 (21) Chancery Rule 183. 
 
 (22) Chancery Rule 184. 
 
 (23) Decker v. Decker, 2 N. J. L. J., 176. 
 
Distribution. 709 
 
 shall be calculated, by adding to the amount calculated from 
 the clear yearly income, in cases of dower one-half, and in 
 other cases one-fourth of the excess of the amount calculated 
 from the net proceds of sale over the amount calculated from 
 the clear yearly income. Having made such calculation and 
 ascertained the result, the Master is to report, irrespective of 
 that result, what is, in his opinion and under all the circum- 
 stances of the case, a reasonable satisfaction for said dower 
 or other estate. (24) 
 
 In ascertaining the proper sum to be paid in gross to a 
 tenant, the present value of an estate in dower or by the 
 curtesy is to be ascertained upon the principle of life anuities', 
 to be calculated upon the basis of the tables prescribed by the 
 rules of the Court of Chancery. (25) But the 184th. and 
 i8sth. rules should not be taken as an absolute guide, irres- 
 pective of the result of the application of the rule to the case 
 in hand ; the court should determine what, in each case, 
 under all the circumstances thereof, is a reasonable sum to be 
 paid in commutation. (26) 
 
 Where lands, subject to curtesy, are sold free from such 
 curtesy, the interest on the proceds will belong to the tenant 
 by the curtesy during life. (27) 
 
 Investment of Proceeds. Where a portion of the money 
 arising from the sale of lands made by the order of the Court 
 of Chancery is invested in .bond and mortgage, the mortgage 
 is made to the Chancellor. (28) 
 
 Disposition of Proceeds of Sale Where Person Unknown, 
 Etc. Where the residence of any person interested in the 
 proceeds of land or real estate which has been heretofore or 
 may be hereafter sold by virtue of any proceedings in par- 
 tition in this state is unknown, or where it is not known 
 whether a person who, if living, would be interested in such 
 proceeds of the sale of lands or real estate is living or not, 
 it shall be lawful for the court having the power, by order or 
 decree, of distributing such proceeds, to order the share or 
 
 (24) Chancery Rule 185. 
 
 (25) Chiswell V. Morris, 14 N. J. Eq., loi. 
 
 (26) Cronkright v. Haulenbeck, 25 N. J. Eq., 513; and see "Compen- 
 sation to Doweress or Tenant by the Curtesy," page 706, supra. 
 
 (27) Jacques v. Ennis, 25 N. J. Eq., 402. 
 
 (28) Shotwell V. Dalrymple, 49 N. J. L., 530, 536. 
 
710 Partition. 
 
 • 
 interest of any such person to be invested in bonds of this state, 
 or of any city or county of this state, authorized 
 by law to issue bonds, or on bonds secured by mort- 
 gage on real estate, or in such public or other securities 
 as the court may approve, and to direct and control the custody 
 of the securities which may be taken, from time to time, for 
 any investment ordered ; and also, either before or after an 
 investment is ordered, at such time as the court may determine, 
 to order or decree a distribution of the share or interest, 
 which any such person, if living, would be entitled to, among 
 and to the person or persons interested in such proceeds as 
 are known to be living, in proportion to their interests therein, 
 respectively, or to and among the person or persons who are, 
 if it shall appear such person has died, entitled by law to re- 
 ceive the same as an heir or heirs; and the court may fix 
 the time when it shall be supposed or deemed such person died ; 
 and may order refunding bonds to be given by or on behalf of 
 any of the persons to whom any part of such share shall be 
 distributed, to the clerk of the court and his successors in office, 
 in such sum and with such condition, with or without security, 
 as the court may direct. (29) 
 
 Further Provisions for Disposition of Proceeds of Sale 
 Where Person Unknown, Etc. Where the residence of any 
 person interested for life or otherwise in the proceeds of land 
 or real estate heretofore or hereafter sold, by virtue of any 
 proceedings in partition in this state, which have or may here- 
 after be deposited in court or invested according to law, is un- 
 known, or where it is not known whether any person, who, 
 if living, would be interested as aforesaid, in any proceeds 
 of the sale of lands or real estate deposited or invested as 
 aforesaid, is living or not, or where any person interested 
 either for life or otherwise in the proceeds of the sale of land 
 or real estate deposited or invested as aforesaid, whether a 
 resident of this state or not, absents himself or herself from 
 this state, or conceals himself or herself in this state, for seven 
 years successively, it shall be lawful for the court having 
 the power, by order or decree, of distributing such proceeds 
 of sale, deposited or invested, as aforesaid, to order or decree 
 a distribution of any share or interest in the proceeds of sale 
 deposited or invested as aforesaid to which any such person 
 
 (29) 3 Comp. Stat., p. 3906, sec. 28. 
 
Fees and Costs. 711 
 
 would be entitled for life or otherwise, to and among the per- 
 son or persons who are or may be entitled by law tO' receive the 
 same in the case of the death of such persons so interested 
 therein as aforesaid, and the court may fix the time when it is 
 supposed or deemed that such person died, and may order re- 
 funding bonds' to be given by or on behalf of any person or per- 
 sons to whom any part of said share shall be distributed, to the 
 clerk of the court, and his successors, in such sum, and with 
 such condition, with or without security, as the court may 
 direct. (30) 
 
 FEES AND COSTS. 
 
 In General. In partition suits where an actual partition 
 is had the costs of the proceedings, as well as of the partition 
 itself, will be charged upon the several shares' in proportion 
 to their respective value, (i) A share may be subdivided on 
 partition, and the costs' of such subdivision will be charged 
 on that share. (2) And the Chancellor has discretionary power 
 to allow a counsel fee to complainant suing for partition and 
 for an account of rent and profits to be recovered against 
 a defendant personally, under the provisions of section 91 
 of the Chancery Act (3) providing that it shall be lawful 
 to include in the complainant's taxed costs to be credited as 
 a part thereof of counsel fee to be fixed by the Chancellor on 
 final decree. (4) But where, in partition, defendant presented 
 claims which were overruled and rejected, such conduct on her 
 part causing substantially all the expense, it was held proper 
 to charge the costs against her instead of charging the com- 
 plainants a proportionate share of the expenses. (5) 
 
 Search Fees. The Chancery Act provides that in parti- 
 tion proceedings the clerk may tax as a part of the taxable 
 costs in favor of the complainant such legal fees and charges 
 
 (30) 3 Comp. Stat., p. 3906, sec. 28a. 
 (i) Coles V. Coles, 13 N. J. Eq., 365. 
 
 (2) Coles V. Coles, 13 N. J. Eq., 365. 
 
 (3) See page 73, supra. 
 
 (4) Keeney v. Henning, 55 Atl., 88; McMullin v. Doughty, 68 N. J. 
 Eq., 776- 
 
 (5) McMullin v. Doughty, 69 N. J. Eq., 649; Keeney v. Henning, 
 55 Atl., 88. 
 
712 Partition. 
 
 as may necessarily have been incurred in procuring searches 
 against or in relation to the title to the lands sought to be par- 
 titioned or sold in such action, which fees and charges shall 
 be ascertained in such way as the Chancellor shall direct. (6) 
 
 The Chancery Rules provide that the clerk shall not tax 
 fees for searches as a part of the taxable costs in favor of 
 the complainant in any partition suit, unless prior to the 
 taxation of such cost there be filed with the papers in the 
 cause an abstract of the searches made for the purpose of 
 said action, which in partition cases, shall set forth the date 
 and manner of the commencement of the co-tenancy, and 
 which shall shortly indicate precisely what searches were 
 made and for what purpose made, together with an affidavit 
 of the complainant or his solicitor, which shall set forth an 
 itemized statement of the fees and charges for which taxa- 
 tion is asked, and which shall include only such fees and charges 
 as were actually and necessarily paid or incurred for the pur- 
 pose of the action. There shall also be filed a certificate or 
 report of the reference Master, that he has examined the 
 abstract of search and statement of fees and charges claimed, 
 and that in his opinion such search was necessary for the 
 proper purposes of the suit. Without the special order of 
 the court, no search fees shall be certified or taxed for searches 
 respecting the state of the title or encumbrances thereon prior 
 to the commencement of the co-tenancy. The abstract of 
 search shall remain permanently upon the files. (7) 
 
 Master's Fees. In cases of sale the Master shall be al- 
 lowed the same fees that by law are allowed to a sheriff on sale 
 by execution. (8) 
 
 Sale of Estates of Curtesy and Dower. The Chancellor 
 shall make such order for the payment of the costs and expen- 
 ses of the proceedings aforesaid as the practice and authority 
 of said court, in partition and sale thereon, will permit, and 
 as he shall deem equitable and just. (9) 
 
 Commissioners' Fees Where Actual Partition is Had. 
 (10) 
 
 (6) Chancery Act, sec 92, page 75, supra. 
 
 (7) Chancery Rule 113a. 
 
 (8) Chancery Rule 166. 
 
 (9) 3 Comp. Stat, p. 3912, Sec. 53. 
 
 (10) See "Compensation of Commissioners," page 692, supra. 
 
Lunacy Proceedings. 713 
 
 s 
 
 CHAPTER XXXIV. 
 
 LUNACY PROCEEDINGS. 
 
 Commission, of Idiocy or Lunacy ; Inquest. All cases of 
 idiocy and lunacy shall be determined by an inquest on a com- 
 mission of idiocy or lunacy issued out of the Court of Chancery, 
 and returnable thereto, and the proceedings thereon shall be as 
 heretofore practiced, and in cases of idiocy or lunacy found, 
 the Chancellor shall cause to be transmitted to the Orphans' 
 Court of the county where such idiot or lunatic may reside, a 
 certified copy of all proceedings which may be had thereon, 
 which shall be recorded and filed in the surrogate's office of 
 said county.(i) 
 
 The object of issuing a commission of lunacy is that the 
 Chancellor may ascertain whether the person alleged to be a 
 lunatic shall be allowed to exercise acts of dominion over his 
 personal property, or whether his personal estate sh^ll be taken 
 into custody for the benefit and safety of both. (2) 
 
 Commission to Inquire into Habitual Drunkenness of 
 Person. It shall be lawful for the Court of Chancery to 
 issue a commission in the nature of a writ de lunatico inquir- 
 endo, as heretofore practiced and allowed, and returnable 
 thereto, to inquire into the habitual drunkenness of any per- 
 son in this state, and in case of habitual drunkenness found, 
 by reason of which such habitual drunkard has become inca- 
 pable of controlling or managing himself or his estate, or is 
 wasting his estate, the Chancellor shall cause to be transmit- 
 ted to the Orphans' Court of the county where such habitual 
 drunkard may reside, a certified copy of all proceedings which 
 may be had thereon, which shall be recorded and filed in the 
 surrogate's office of said county, and thereupon the said 
 Orphans' Court, upon application for that purpose, is hereby 
 directed and required to appoint a guardian or guardians for 
 such habitual drunkard, who shall have the same power over 
 the person and estate of such habitual drunkard, and per- 
 form the same duties and be subject to. the same liabilities, as 
 are conferred on and required of the guardian or guardians of 
 an idiot or lunatic by the act entitled "An Act Concerning 
 
 (i) 2 Comp. Stat., p. 2781, sec. i. 
 (2) In re Clifford, 57 N. J. Eq., 14. 
 
714 Lunacy Proceedings. 
 
 Idiots and Lunatics," approved April sixteenth, one thousand 
 eight hundred and forty-six. 
 
 The Chancellor, on application of the guardian or guardians 
 of any such habitual drunkard, may make such order for the 
 safe keeping of such habitual drunkard as he may deem neces- 
 sary, with a view to his reformation, and from time to time 
 to alter or modify the same, and to that end may authorize the 
 guardian or guardians to place such habitual drunkard in a 
 state asylum for lunatics, or in such other proper retreat as 
 the Chancellor may order; and when such order is made for 
 the keeping of such habitual drunkard in a state asylum, such 
 guardian or guardians shall be required to give security in such 
 amount and form as the Chancellor shall direct, for the pay- 
 ment of the expense of keeping such habitual drunkard there- 
 
 in-(3) 
 
 The practice in proceedings upon a commission, in a case of 
 habitual drunkenness, is substantially the same as in cases 
 of lunacy. (4) 
 
 Petition for Commission. On all applications to obtain a 
 commission of idiocy, lunacy or habitual drunkenness, the 
 petition shall be accompanied by the affidavits of two or more 
 persons, evincing the lunacy, idiocy or habitual drunkenness 
 of the party against whom the commission is prayed, and the 
 person's incapacity to manage his or her own affairs ; and the 
 commissioners and jury shall have a right to examine the 
 idiot, lunatic or habitual drunkard in person before them, with- 
 out a special order for that purpose. (5) A petition for a 
 commission should be accompanied by affidavits setting forth 
 the unsound state of mind of the person against whom the 
 commission is desired, and mentioning such instances of 
 incoherent conduct or expression as prove him unfit to con- 
 tinue in the management of his affairs. The court ought, in 
 all cases, to be satisfied of the propriety of granting the com- 
 mission. (6) 
 
 The issuance of a commission of lunacy out of Chancery is 
 a matter of judicial discretion. (7) The unsoundness of mind 
 
 (3) 2 Cotnp. Stat., p. 2797, sec. 25. 
 
 (4) In re Weis, 16 N. J. Eq., 318. 
 
 (5) Chancery Rule 172. ' 
 
 (6) In re Covenhoven, i N. J. Eq., 19. 
 
 (7) In re Cliattin, 16 N. J. Eq., 4^6; in re Clifford, 57 N. J. Eq., 
 14. 
 
Commission of Lunacy. 715 
 
 which will justify proceedings under a commission of lunacy 
 must be such ^is to deprive the person concerning whom the 
 inquiry is made of ability to manage his estate (8) ; but in 
 order to warrant the court in interfering in behalf of a person 
 to protect him against the consequences of his own mental 
 incompetency, it is not necessary that he should be an idiot 
 of a lunatic. It is enough if from any cause, whether by age, 
 disease, affliction or intemperance, he has become incapable 
 of managing his own affairs. (9) 
 
 It is obvious that if the lunatic and his property are within 
 safe and lawful custody, as, for instance, where an infant 
 lunatic is well cared for in body and estate by a competent 
 guardian, a commission will not issue. (10) Infancy is, how- 
 ever, no bar to the issue of a commission ; but where a guard- 
 ian has been appointed for the infant, his control over the 
 person and estate of his ward ought not to be interfered with, 
 on the ground that the ward labors under a double disability, 
 except in cases of clear necessity. (11) So a commission will 
 not be issued in behalf of a man alleged to be a lunatic who 
 has no estate, and who is incarcerated in a well appointed 
 prison under conviction of murder in the first degree, punish- 
 able with death. (12) An order for a commission in lunacy 
 advised by a Vice-Chancellor is the order of the Chancellor 
 himself. (13) 
 
 The Court of Chancery has jurisdiction to issue a commis- 
 sion de lun^tico inquirendo, if the alleged lunatic, though non- 
 resident has real estate in this state and it is necessary to 
 appoint a receiver. The provisions of the statute are, however, 
 so ample, and the procedure so simple, that recourse should 
 be had to the remedy thereby provided unless there are insur- 
 mountable reasons for not doing so. (14) 
 
 Who May Institute Proceedings. A mere stranger can- 
 not sue out a commission in the nature of a writ de lunatico 
 inquirendo, nor in any way interfere in such a proceeding. 
 
 (8) In re Lindsley, 43 N. J. Eq., 9; afHrmed, 44 N. J. Eq., 564. 
 (g) In re Perrine, 41 N. J. Eq., 409. 
 
 (10) In re Clifford, 57 N. I. Eq., 14. 
 
 (11) In re Chattin, 16 N. I. Eq., 496. 
 
 (12) In re Clifford, 57 N. I. Eq., 14. 
 
 (13) In re James, 35 N. J. Eq., 58; reversed, 36 N. J. Eq., 547. 
 
 (14) In re DeVausney, 52 N. J. Eq., 502; see also 2 Comp. Stat., p. 
 2783, sec. 2. 
 
716 Lunacy Proceedings. 
 
 The proceedings must be instituted by a relative or other per- 
 son in interest. (15) 
 
 Provisional Orders as to Person or Property.' The court 
 has the power to make a provisional order to protect the luna- 
 tic's person or property pending the proceedings under the 
 commission; but there is no precedent for converting the 
 petition into a bill in chancery, making a case against third 
 persons, and in this way invoking the action of the court 
 upon matters involving the rights of others not parties to the 
 proceedings. (16) 
 
 Order for Commission. It is the duty of the solicitor for 
 the petitioner to suggest the names of commissioners who 
 will be competent tx) execute the commission and to give the 
 proper instructions to the jury. (17) At least one of the 
 commissioners named must be a Master in Chancery, who 
 presides at the proceedings in execution of the commission. 
 It is also the practice to appoint a physician as one of the 
 commissioners. (18) 
 
 Procuring the Jury. Upon receiving the commission from 
 the clerk, a precept to the Sheriff of the county in which the 
 commission is to be executed is issued by the commissioners, 
 or at least two of them, under their hands and seals, directing 
 said Sheriff to cause a jury of not more than twenty- four 
 good and lawful men to come before them at a certain time 
 and place to inquire upon their oaths of the matters and 
 things which shall be given them in charge by the commis- 
 sion. By virtue of this precept, the Sheriff summons the 
 jurors whose names are written in a panel annexed to the 
 precept. (19) Where the alleged lunatic is in an asylum, the 
 commission should be executed in the county where his estate 
 is, or where he last resided before being sent to the asylum 
 (20) ; but where the estate of the lunatic is small, the court 
 will, in order to avoid inconvenience and expense, order the 
 
 (is) In re Covenhoven, i N. J. Eq., 19. 
 
 (16) In re Dey, 9 N. J. Eq., 181; In re DeVausney, 52 N. J. Eq, 
 502 ; In re Sulk, 74 N. J. Eq., 736. 
 
 (17) Matter of Root, 8 Paige, 627. 
 
 (18) Dickinson's Ch. Pr., 646. 
 
 (19) Dickinson's Ch. Pr., 645. 
 
 (20) In re Child, 16 N. J. Eq., 498. 
 
Notice of Hearing. 717 
 
 commission to issue in a different county from that in which 
 he resides. (21) 
 
 The statute provides that it shall and may be lawful for 
 the Sheriflf in all cas^s of idiocy, lunacy, habitual drunkenness, 
 and of persons who are alleged to be lunatics by reason of 
 unsoundness of mind so as to render them incapable of 
 managing their property and themselves, to summon twelve 
 jurors, instead of twenty-four as now provided by law, who 
 shall inquire into and determine and find the truth of the 
 matters alleged in the commission or inquisition, and whose 
 verdict, when found, shall be as legal and binding as. if found 
 by twenty-four jurors. (22) 
 
 The statute directing that a commission de lunatico inquir- 
 endo shall be executed before a jury of twelve men is con- 
 stitutional. (23) It is to be observed that the provisions of 
 this act do not require the commissioners to issue their pre- 
 cept to the Sheriff commanding him to return a jury of only 
 twelve persons, nor do they require the Sheriff to return only 
 twelve persons to make such inquiry, but make such action 
 optional. (24) ' Constables of the county are not improper per- 
 sons to be selected and summoned to serve on such a jury; and 
 an inquisition is not irregular because taken before a jury 
 composed in part of such officers. (25) 
 
 Notice of Hearing. Ten days' notice of the taking of the 
 inquisition shall be given to the person who is the subject 
 thereof; the Chancellor may, however, for good reasons 
 allow shorter notice, or dispense with notice altogether. Proof 
 of the giving of the notice shall be filed with the inquisition, 
 and in case less than ten days' notice has been given, or no 
 notice at all, the reasons therefor shall appear by affidavit to 
 be filed with the inquisition. When an order dispensing with 
 notice is made, it shall recite the grounds upon which it is 
 made, and the Chancellor, before making a decree upon an 
 inquisition taken without notice, shall be satisfied by the report 
 of any two of the commissioners (of whom one shall be the 
 Master appointed as commissioner, if any Master was 
 
 (21) In re Child, 16 N. J. Eq., 498. 
 
 (22) 2 Comp. Stat., p. 2784, sec. 3d. 
 
 (23) DeHart v. Condit, 51 N. J. Eq., 611. 
 
 (24) In re Comfort, 63 N. J. Eq., 377. 
 
 (25) In re Comfort, 63 N. J. Eq., 377. 
 
718 Lunacy Proceedings. 
 
 appointed), or otherwise by an investigation and report 
 under an order of reference made by him, that the grounds 
 upon which the order dispensing with the notice to the alleged 
 idiot, lunatic or habitual drunkard was' made continued to 
 exist at the time of taking the inquisition. (26) 
 
 An alleged lunatic has a right to be present at the execution 
 of the commission, to make his defense by himself or by 
 counsel, and to examine witnesses. The effect of a finding 
 against him is to deprive him of the control of his property 
 and of personal liberty. Such consequences cannot follow 
 except upon the verdict of a jury, and no such verdict should 
 be permitted to pass against any man without affording him 
 an opportunity of defending himself, except in extreme cases 
 when such notice would be nugatory. In cases of confirmed 
 or dangerous madness it may be dispensed with, but then only 
 by the express order of the court. (27) 
 
 In ordinary cases, an appearance cures a defective service 
 of notice. (28) So when an alleged lunatic appears upon such 
 notice by counsel, and makes no objection, but consents to an 
 adjournment to a future day, the insufficiency of notice is 
 thereby waived. The court will, however, relieve the peti- 
 tioner if through inadvertance or mistake he has been preju- 
 diced, but not unless such mistake or prejudice clearly appears. 
 (29) And so where an attempt was made to serve a written 
 notice of an inquisition of lunacy upon the alleged lunatic at 
 the house of her brother, with whom she lived, and the 
 brother refused to admit the constable, and thereupon that 
 officer served the notice upon the brother, and upon the same 
 day served a similar notice upon the attorney who had repre- 
 sented the alleged lunatic in similar proceedings which had 
 theretofore been had, and at the taking of the inquisition the 
 attorney thus served in behalf of the alleged lunatic examined 
 and cross examined the witnesses for her, without objecting 
 that she had not been properly notified, it was held, in the 
 absence of proof that the alleged lunatic did not have notice 
 
 (26) Chancery Rule, 173. 
 
 (27) In re Whitenack, 3 N. J. Eq., 252; In re Van Auken, 10 N. J. 
 Eq., 186; In re Lindsley, 46 N. J. Eq., 358. 
 
 (28) In re Whitenack, 3 N. J. Eq., 252. 
 
 (29) In re Van Auken, 10 N. J. Eq., 186. 
 
Hearing. 719 
 
 of the inquisition and suffered prejudice for that reason, that 
 the inquisition would not be set aside for want of notice. (30) 
 
 Hearing Before Commissioners. The commissioner named 
 in the commission who is a Master in Chancery usually 
 administers the oath to the jurors and the witnesses. There 
 is no statute or rule of court requiring the commissioners to 
 be sworn. The commissioners have power to summon wit- 
 nesses and issue subpoenas as incident to their office. If wit- 
 nesses fail to attend .to this summons, it will be necessary to 
 get an order of the court to compel their attendance. It is the 
 usual pi'actice thereof, to issue a subpoena- ad testificandum 
 under the seal of the court in the first instance. (31) 
 
 The jury having been sworn, the commission is read to 
 the jury, and the Master commissioner should explain to them 
 the nature of the inquiry they are to make, and their duties. 
 Witnesses are then examined, both as to the facts of lunacy 
 and as to who are the alleged lunatic's nearest heirs and next 
 of kin, and as to the nature and extent of his real and personal 
 property. The object of the inquiry as to the value of the 
 estate is for the purpose of fixing the amount of the bond of 
 the guardian when appointed. If the lunatic be represented 
 by counsel, he may cross examine the witnesses as in the trial 
 of other causes. (32) It is not necessary that the evidence 
 taken before the jury be reduced to writing and returned with 
 the inquisition. (33) 
 
 The commissioners and jury have a right to examine the 
 idiot, lunatic or habitual drunkard in person before them, 
 without a special order for that purpose. (34) And if neces- 
 sary, the court will order the party having the alleged lunatic 
 in charge to bring him before the jury. (35) It is not, how- 
 ever, absolutely necessary that the alleged lunatic should be 
 before the jury; a commission may issue where he is a non- 
 resident or temporarily absent from the state, and where it is 
 impossible for the jury to see him. (36) The fact that only 
 
 (30) In re Lindsley, 46 N. J. Eq., 358. 
 
 (31) Dickinson's Ch. Pr., 648. 
 
 (32) Dickinson's Ch. Pr., 649. 
 
 (33) In re Covenhoven, i N. J. Eq., 19. 
 
 (34) Chancery Rule 172. 
 
 (35) In re Child, 16 N. J. Eq., 498. 
 
 (36) In re Child, 16 N. J. Eq., 498. 
 
720 Lunacy Proceedings. 
 
 part of the jurors visited the alleged lunatic for personal exam- 
 ination is not sufficient ground for setting aside the inquisi- 
 tion. (37) At a personal examination of an alleged lunatic 
 by the commissioners and jurors, all other persons, including 
 counsel, may be excluded, so that the commissioners and 
 jurors may be at liberty to exercise their own observations. 
 (38) 
 
 After the testimony is closed, it is the privilege of coun- 
 sel on each side to address the commissioners and jurors upon 
 the inquisition (39), after which the commissioners should 
 submit the question to the jury in the form of a charge, 
 , stating the law applicable to the case, and recapitulating the 
 facts so far as may be necessary. (40) The jury should re- 
 tire and discuss the evidence and consider their verdict in 
 private. It is improper for the commissioners to remain in 
 the room where the jury is considering its verdict; and the 
 consent of an alleged lunatic's counsel that the commissioners 
 might be present with the jury while deliberating on their find- 
 ing is not a consent to their giving directions in the nature of 
 a charge in his absence. (41) 
 
 The Return and Finding. A return to a commission 
 should be in the words of the commission, or in equivalent 
 language. . So where the commission directed inquiry as to 
 whether a certain person was a lunatic or of unsound mind 
 so that she was not fit for the government of herself, her 
 lands, &c., it was held that a return that the "mind is impaired 
 by age and other causes, and that she is not capable of man- 
 aging her own affairs" was insufficient. (42) So where a com- 
 mission required an inquiry whether one were "a lunatic, or of 
 unsound mind, so that he is not fit for the government of him- 
 self, his lands," &c., and the return recited that the alleged 
 lunatic was "of unsound mind and is not capable of govern- 
 ment of himself, his lands" &c., it was held insufficient in 
 failing to find that the incapacity was the result of the un- 
 
 (37) DeHart v. Condit, 51 N. J. Eq., 611. 
 
 (38) In re Lindsley, 46 N. J. Eq., 358; In re Kennedy, 55 N. J. 
 Eq., 636. 
 
 (39) 2 Comp. Stat., p. 2784, sec. 3c. 
 
 (40) Dickinson's Ch. Pr., 649. 
 
 (41) In re Kennedy, 55 N. J. Eq., 636. 
 
 (42) In re Lindsley, 43 N. J. Eq., 9-10; S. C, 44> N. J. Eq., 564. 
 
The Return and Finding. 721 
 
 soundness. (43) And a return to the commission of lunacy 
 that the party is not a lunatic should be set aside; the jury 
 should find whether he is of unsound mind or not, even though 
 they may not find that he is a lunatic in the popular sense of the 
 word. (44) ^ 
 
 The return need not use the exact language of the com- 
 mission, so long as it shows a finding in response to its re- 
 quirements. (45) So an inquisition finding the alleged lunatic 
 of "unsound mind so that he is not capable of the government 
 of his lands, tenements, goods and chattels" is sufficient, 
 though it does not state that he is also incapable of governing 
 himself. (46) So a return that the imbecile is an idiot or a 
 lunatic, or non compos mentis, or of unsound mind will be re- 
 garded as sufficiently showing this fact, because these terms 
 are technically used to express a deprivation of sense to that 
 degree. (47) 
 
 The practice of inserting in the return a finding on the sub- 
 ject of lucid intervals is derived from the ancient practice 
 under the writ de lunatico inquirendo. Originally this writ 
 was applicable only to those who were alleged to be lunatics 
 according to the signification of the term as it was then under- 
 stood. Anciently only those insane persons who enjoyed lucid 
 intervals were regarded as lunatics, the mental disorder being 
 thought to be dependent on the moon, and, therefore, inter- 
 mittent. With modem views under modern practice, it is not 
 necessary that the return should state whether the lunatic 
 has lucid intervals or not. (48) So in a return to a commis- 
 sion of lunacy that the alleged lunatic "is a lunatic and of un- 
 sound mind and does enjoy lucid intervals, so that he is not 
 capable of the government of himself, his lands, tenements', 
 goods and chattels," the phrase "and does enjoy lucid inter- 
 vals," whether read parenthetically or not, is not objection- 
 able either in form or fact. (49) 
 
 (43) In re Dayton, 57 At!., 871. 
 
 (44) In re Conover, 28 N. J. Eq., 330. 
 
 (45) In re Dayton, 57 Atl., 871. 
 
 (46) In re James, 35 N. J. Eq., 58; reversed, 36 N. J. Eq., 547. 
 
 (47) In re Lindsley, 44 N. J. Eq., 564. 
 
 (48) In re Hill, 31 N. J. Eq., 203. 
 
 (49) In re Hill, 31 N. J. Eq., 203. 
 
722 Lunacy Proceedings. 
 
 In all cases where a commission of idiocy, lunacy or ha- 
 bitual drunkenness shall issue, it shall be executed and the in- 
 quisition returned to the Chancellor within two months after 
 making the order for the issuing of the commission, or the 
 commission shall be considered as superseded, and no proceed- 
 ings shall take place thereon without the further order of the 
 court; and no decree shall be entered upon any inquisition, 
 and signed, until the expiration of ten days after the inqui- 
 sition shall be returned into the office. (50) 
 
 Setting Aside Proceedings. No person can be deprived 
 of the right to mange his own affairs, without the interven- 
 tion of a jury; and in case of lunacy, the verdict of the jury 
 must be founded, as in all other cases', upon satisfactory and 
 unexceptional evidence submitted to their consideration. ( 5 1 ) 
 So in proceedings of lunacy, where the verdict is against the 
 weight of the evidence, the court will either set aside the ver- 
 dict and order a new commission, or will take measures to pro- 
 tect the imbecile ; but this power should be exercised only 
 in clear cases. (52) An application to set aside an inquisition 
 is addressed to the discretion of the court, and should be granted 
 if upon the whole evidence a reasonable doubt as to the cor- 
 rectness of the verdict is disclosed. (53) So where the testi- 
 mony upon the question of insanity was contradictory, but 
 there was evidence, which, if credited, justified the conclusion 
 that lunacy existed, and yet upon the whole proof there was 
 a reasonable doubt as to the correctness of this conclusion, 
 and the inquisition found that lunacy existed, it was held that 
 an application to set aside the inquisition on the ground that 
 it was against the weight of evidence was properly denied. 
 (54) A mere failure of memory, and decay and feebleness 
 of the intellectual faculties are not evidence of that unsound- 
 ness' of mind which will justify a jury in finding a man a luna- 
 tic; to warrant such a finding, they must be such as to import 
 a total deprivation or suspension of the ordinary powers of 
 the mind. (55) But an inquisition which found that a deaf 
 
 (so) Chancery Rule 174. 
 
 (si) In re Dey, 9 N. J. Eq., 181. 
 
 (52) In re Lawrence, 28 N. J. Eq., 331; in re Davenport, 63 N. J. 
 Eq., 342. 
 
 (53) In re Davenport, 63 N. J. Eq., 342. 
 
 (54) In re Davenpart, 63 N. J. Eq., 342. 
 
 (55) In re Van Auken, 10 N. J. Eq., 186. 
 
Setting Aside Proceedings. 723 
 
 mute, sixty-five years old, who had been such since she was 
 two or three years old, who was ignorant and could neither 
 read nor write nor communicate her ideas to others by signs 
 or otherwise, and who could not be made to understand an 
 ordinary business transaction, was "of sound mind and capable 
 of controlling her property by her own selection of a proper 
 person to act for her," was set aside. (56) 
 
 Upon the same principle, inquisition proceedings will be 
 set aside where they are irregular or unsatisfactory; but the 
 court will proceed with caution in setting aside proceedings, 
 and will do so only where it is clear that the alleged lunatic 
 was prejudiced thereby. So the court will not set aside the 
 proceedings for defect or informalities in the petition, if it 
 appears from the evidence that the supposed lunatic is so in- 
 deed, and is entitled to the protection of the court, and that he 
 will be benefitted by the court's interference. (57) So where 
 it appears' that one of the jurors in an inquisition sat two and 
 one-half years before upon a similar inquisition touching 
 the lunacy of the same person, and that the attorney who 
 represented the alleged lunatic in the second proceeding also 
 represented her in the former proceeding, and that he not only 
 suffered the juror to be sworn without objection, but during 
 the trial questioned him as to his connection with the former 
 inquest and then proceeded in the trial without objection, and 
 that no actual bias or misconduct is imputable to the juror, the 
 inquisition will not be set aside because of the previous serv- 
 ice of that juror. (58) So where on taking an inquisition, un- 
 lawful evidence was admitted under exceptions duly made, 
 but it appears that there was a thorough investigation, and that 
 the defense was conducted by able counsel, it was held that the 
 court would not be justified in interfering with the proceed- 
 ings on account of the admission of this testimony, its char- 
 acter not being such as must necessarily or probably have 
 influenced the jury in their finding. (59) And although 
 the affidavits accompanying the petition do not come 
 up to the requirements of the rule and practice of the court, 
 
 (56) In re Perrine, 41 N. J. Eq., 409 ; In re Lindsley, 43 N. J. Eq., 9. 
 
 (57) In re Dey, 9 N. J. Eq., 181. 
 
 (58) In re Lindsley, 46 N. J. Eq., 358. 
 
 (59) In re Dey, 9 N. J. Eq., 181. 
 
724 Lunacy Proceedings. 
 
 the court will not on this account quash an inquisition by 
 which the affidavits themselves were entirely confirmed. (6o) 
 
 On the other hand, a refusal to adjourn an inquisition for 
 a reasonable time, that the party may make the necessary 
 preparation for trial, when he has been prevented from making 
 that preparation by the day named in the notice, is good ground 
 for setting aside the inquisition. (6i) So as has been seen a 
 finding of lunacy will be set aside where the commissioners 
 remained in the jury room with the jurors while they were 
 deliberating as to their finding, in the absence of the alleged 
 lunatic, or of his counsel, especially where under such cir- 
 cumstances, they gave directions to the jury and informed 
 them of the issue. (62) 1 
 
 Where the jury finds the subject of the inquest not of un- 
 sound mind, the court has power to set aside the inquisition 
 and order a new commission, if the proceedings under the in- 
 quisition were irregular or unsatisfactory, or if the finding 
 is against the weight of evidence, or if a mistake was made 
 by the jury as to their duty, or the court may order a second 
 inquisition at some time after the first, if it appear that there 
 is an evident change in the subject. But where an inquisi- 
 tion finding that the subject thereof was not of unsound mind 
 was set aside, and an order for a new commission was made 
 and subsequently quashed on the ground that no change was 
 shown in the condition of the subject, and a new petition for 
 a commission was later filed, the court directed that the matter 
 be heard on rule to show cause why the commission should 
 not issue. (63) 
 
 A party seeking to quash an inquisition must have an in- 
 terest, legal or equitable, which may be endangered by the 
 finding of the jury on the inquisition. (64) A person who 
 merely acted as agent of a lunatic has no standing to move to 
 quash an inquisition. (65) 
 
 Traverse of Inquisition. When the person who has been 
 found a lunatic, or any other party having an interest in dis- 
 
 (60) In re Dey., 9 N. J. Eq., 181. 
 
 (61) In re Jewell, 26 N. J. Eq., 298. 
 
 (62) In re Kennedy, 55 N. J. Eq., 636. 
 
 (63) In re Collins, 18 N. J. Eq., 253. 
 
 (64) In re Covenhoven, i N. J. Eq., 19. 
 
 (65) In re Covenhoven, i N. J. Eq., 19. 
 
Setting Aside Proceedings. 725 
 
 puting the inquisition, is dissatisfied with the finding of the 
 jury, but such finding is not so far contrary to the weight of 
 evidence or otherwise irregular as to justify the court in setting 
 it aside (66), application may be made to the Court of Chan- 
 cery praying for leave to traverse the inquisition. (67) 
 
 As a general rule, the petition for the tranverse should be 
 made by the subject of the inquest. (68) Taking all the cases 
 together, however, it is fairly to be inferred that while appli- 
 cations on the part of third persons to traverse the inquisition 
 are not to be encouraged, yet they will be listened to and 
 granted when actual bona fide interests and rights are en- 
 dangered. (69) So the son of the subject of a lunacy inqui- 
 sition has an actual bona fide interest, filial and sentimental 
 rather than substantial though it may be, to traverse an in- 
 quisition. (70) And the court may, in its discretion, permit a 
 purchaser from an alleged lunatic, whose conveyance is over- 
 reached by the inquisition, to traverse the finding of the jury, 
 upon his agreeing to be bound by the final decision upon the 
 traverse. (71) And it has been held that a person found a 
 lunatic may appear and traverse the inquisition by attorney. 
 (72) A petition for a traverse need not be sworn to by the 
 lunatic ; but the court should be satisfied that it is in truth the 
 petition of the alleged lunatic. (73) 
 
 In England, the traverse of an inquisition was deemed a 
 matter of right under the statute, 2 & 3 Edw. VI, c. 8, and 
 on an application of the alleged lunatic to traverse, the duty 
 of the court consisted merely in ascertaining that the applica- 
 tion was an act of the free will of a person capable of forming 
 and expressing such volition. (74) But that statute not having 
 been adopted in the United States, the right was denied at 
 
 (66) See "Setting Aside Proceedings,'' page 722, supra. 
 
 (67) Shelf, on Lun., 73; DeHart v. Condit, 51 N. J. Eq., 611; In re 
 Comfort, 63 N. J. Eq., 377. 
 
 (68) In re Collins, 18 N. J. Eq., 253; In re Lawrence, 28 N. J. 
 Eq., 331 ; In re Davenport, 63 N. J. ,Eq., 342. 
 
 {6p) In re. Hannah, 76 N. J. Eq., 237. 
 
 (70) In re Hannah, 76 N. J. Eq., 237. 
 
 (71) Yauger v. Skinner, 14 N. J. Eq., 389. 
 
 (72) In re Covenhoven, i N. J. Eq., 19. 
 
 (73) In re Collins, 18 N. J. Eq., 253; In re Lawrence, 28 N. J. 
 Eq., 331. 
 
 (74) In re Cumming, i DeG. M. & G., 537. 
 
726 Lunacy Procesdings. 
 
 an early day. In Wendal's case, (75), Chancellor Kent said: 
 "The case and custody of idiots and lunatics being confined 
 to this court, the whole control of the inquisition and the man- 
 ner in which that control should be exercised would seem 
 to depend entirely on the discretion of the court." In New 
 Jersey by a statute passed in 1749, (76), it was enacted that the 
 chancellor should have the care and provide for the safe 
 keeping of all idiots and lunatics and of their lands, tene- 
 ments, goods and chattels, and it is probable that upon this 
 statute was founded the practice in this state of regarding the 
 application to traverse as depending entirely upon the discre- 
 tion of the court. (77) 
 
 Where upon an examination of the evidence a reasonable 
 doubt exists as to the propriety of the finding of the jury, this 
 will justify and require the grant of leave to traverse, if it 
 appears' satisfactorily to the court that the person found by the 
 inquisition to be of unsound mind intelligently asks and 
 actually desires such leave. (78) The practice in such cases 
 is to direct the petitioner to be brought before the Chancellor 
 for his personal examination, if that be practicable. If it be 
 impossible to pursue that course, whether by reason of the 
 distant residence or of the age and infirmities of the peti- 
 tioner, the practice is to have him examined by some discreet 
 Master of the court, who will report upon his ability to under- 
 stand and desire a further test. (79) And the court has 
 power to order physicians to examine an alleged lunatic, and 
 they may testify before the commission as to the result of the 
 examination. (80) 
 
 The examination by a discreet Master is merely a substitute 
 for personal examination by the Chancellor; in either case, 
 the matter is between the court and the alleged lunatic, and is 
 
 (.75) I Johns. Ch., 600. 
 (76) Pat. L., p. 125. 
 
 {77) In re Van Auken, 10 N. J. Eq., 186; In re Lindsley, 46 N. J. 
 Eq., 358; DeHart v. Condit, 51 N. J. Eq., 611; in re Hannah, 76 N. J. 
 Eq., 237. 
 
 (78) In re Davenport, 63 N. J. Eq., 342; De Hart v. Condit, si 
 N. J. Eq., 611; In re Comfort, 63 N. J. Eq., 377; In re Van Auken, 
 10 N. J. Eq., 186. 
 
 (79) In re Van Auken, 10 N. J. Eq., 186; In re Lindsley, 46 N. J. 
 Eq., 358; In re Davenport, 63 N. J. Eq., 342. 
 
 (80) In re Lindsley, 3 At!., SiS- 
 
Setting Aside Proceedings. 727 
 
 often spoken of as a "private" examination. This investiga- 
 tion should originate with and be directed and controlled by the 
 Chancellor. (8i) So the refusal of counsel for an alleged luna- 
 tic to apply for the appointment of a master to examine the 
 lunatic is not a waiver of his client's right to a traverse of the 
 inquisition. (82) A traverse of a lunacy inquisition is only 
 available on an allegation that lunacy has been untruly found, 
 and'cannot be availed of so as to obtain the release of a lunatic 
 on the groutid that he has recovered his sanity. (83) 
 
 Where the lunacy at the time of inquisition found is not 
 questioned, but a traverse is sought to vary the time at which 
 the lunacy commenced, in order to exempt from its operation 
 a will executed by the lunatic within the period of lunacy so 
 determined, with respect to which the inquisition is not con- 
 clusive, permission to traverse will not be granted. (84) And 
 leave to traverse an inquisition will be refused where three 
 costly inquisitions have already been had, and it appears from 
 a personal examination of the alleged lunatic by a Master in 
 Chancery that she is mentally incapable of demanding the right 
 to traverse. (85) Where upon an application for leave to tra- 
 verse an inquisition an issue is directed to be tried at law, a 
 motion for a new trial is to be made before the Chancellor, 
 and not in the Supreme Court. (86) 
 
 Superseding Inquest on Ground of Restoration to Sanity. 
 Where the subject of an inquisition has recovered his sanity, 
 he is entitled to be liberated under the terms of the act con- 
 cerning the commitment O'f insane persons to hospitals, which 
 provides that such persons shall be confined therein until 
 restored to reason, or removed or discharged according to 
 law. (87) If he be restored to reason, and the authorities 
 of the institution in which he is confined refuse to discharge 
 him, he may be enlarged on habeas corpus, or he may make an 
 application to the Court of Chancery to supersede the inquest 
 
 (81) In re Weis, 16 N. J. Eq., 318; in re Davenport, 63 N. J. Eq., 
 342. 
 
 (82) In re Davenport, 63 N. J. Eq., 342. 
 
 (83) In re Hannah, 76 N. J.Eq., 237, and see "Superseding inquest 
 on ground of restoration to sanity," infra. 
 
 (84) In re Covenhoven, I N. J. Eq., 19. 
 (8s) In re Lindsley, 46 N. J. Eq., 3S8. 
 
 (86) In re Comfort, 66 N. J. Eq., 6. 
 
 (87) P. L. 1906, p. 679 ; In re Hannah, 76 N. J. Eq., 237. 
 
728 Lunacy Proceedings. 
 
 on the ground of his restoration to sanity. Under such circum- 
 stances an application to traverse the inquisition will not lie. 
 (88) But orders superseding an inquisition in lunacy and 
 directing restoration of the lunatic's property are appropriate 
 only when the proceedings against the lunatic are such as to 
 divest him of the title to his property, or to form the basis 
 of proceedings for that purpose. (89) 
 
 An application to supersede a commission, on_ the ground 
 that the subject thereof, who has been declared a lunatic, has 
 recovered his sanity, should be by petition of the person who 
 has been so declared a lunatic. (90) The usual course is to 
 refer it to a Master, to take proofs as to the state of mind 
 of the petitioner, and to report the proofs and his opinion 
 thereon. (91) And upon the coming in of the Master's report, 
 the Chancellor in his discretion may supersede the commis- 
 sion on the ground of restored sanity, or may direct an issue 
 to try the question. (92) A guardianship in lunacy may be 
 superseded where the court, taking the finding of the inquisi- 
 tion as a part of the evidence to be considered, is satisfied of 
 the present capacity of the party. (93) And though the Master 
 reports the proofs and his opinion thereon that the petitioner 
 is restored, the Chancellor in his discretion may direct the peti- 
 tioner to appear before him for inspection and examination. 
 (94) But the court proceeds with caution in vacating an 
 inquisition. (95) 
 
 The practice in proceedings to supersede a commission in 
 case of habitual drunkenness should be substantially the same 
 as in cases of lunacy. (96) So a commission under which a 
 party. has been found a habitual drunkard will not be super- 
 seded on the ground that he has reformed upon a hearing 
 
 46; in re Hannah, 76 N. J. Eq., 
 
 in re Hannah, 76 N. J. Eq.. 
 
 (8») 
 
 In re Rogers, 5 N. J. Eq., 46 
 
 231. 
 
 
 (89) 
 
 In re Ellis, 62 Atl., 702. 
 
 (90) 
 
 In re Price, 8 N. J. Eq., 533. 
 
 (91) 
 
 In re Rogers, 5 N. J. Eq., 46 
 
 237- 
 
 
 (92) 
 
 In re Rogers, s N. J. Eq., 46. 
 
 (93) 
 
 In re Rogers, S N. J. Eq., 46. 
 
 (94) 
 
 In re Rogers, S N. J; Eq., 46. 
 
 (9S) 
 
 In re Rogers, 5 N. J. Eq., 46. 
 
 (96) 
 
 In re Weis, 16 N. J. Eq., 318. 
 
Effect of Adjudication. 729 
 
 without notice, or upon ex parte affidavits, even with the assent 
 of the guardian. (97) 
 
 Effect of Adjudication. The inquisition simply makes a 
 prima facie case of lunacy, and is not conclusive against the 
 defendant, even as to the point of the time when it was taken. 
 (98) So in a suit to set aside an assignment of a leasehold 
 instrument on account of the mental incapacity of the assignor, 
 the finding of the commission in lunacy, a few months after 
 the conveyance, declaring the assignor a lunatic is only prima 
 facie evidence of his incompetency. (90) And so a finding by 
 an inquisition in lunacy that the alleged lunatic was of unsound 
 mind and incapable of the government of herself and her 
 estate at a time anterior to a conveyance of a part of it is 
 not conclusive against the grantee. In an action by the 
 lunatic's guardian to set aside such conveyance, the grantee 
 may show that the alleged lunatic possessed sufficient mind 
 to understand in a reasonable manner the nature and effect 
 of the act in which she was engaged when she made the 
 conveyance. ( I ) But the rule is well settled, both at law and 
 in equity, that an inquisition of lunacy though not conclu- 
 sive, is competent evidence in proof of the lunacy against 
 persons claiming title under the alleged lunatic. (2) 
 
 Costs. In proceedings in lunacy where the alleged lunatic 
 is found to be of sound mind, or the commission is superseded 
 before a guardian is appointed, the prosecutor cannot be 
 allowed his costs and expenses, however meritorious his con- 
 duct may have been, where there is no fund under the con- 
 trol of the court out of which they can be directed to be 
 paid. (3) But where under proceedings on a commission in 
 the nature of a writ de lunatico inquirendo the subject of the 
 commission is found to be of sound mind, the person petition- 
 ing for and prosecuting the commission of lunacy is entitled 
 to costs, including counsel fee and expenses reasonably and 
 properly incurred, providing he has acted from justifiable 
 
 (97) In re Weis, 16 N. J. Eq., 318. 
 
 (98) Aber v. Clark, 10 N. J. L., 217; Hunt v. Hunt, 13 N. J. Eq., 
 161; Hill V. Day, 34 N. I. Eq., 150; Mott v. Mott, 49 N. I. Eq., 192; 
 Kern v. Kern, 51 N. J. Eq., 574-583 ; Sbarbero v. Miller, 65 Atl., 472. 
 
 (99) Sbarbero v. Miller, 65 Atl., 472. 
 (i,) Mott V. Mott, 49 N. J. Eq., 192. 
 
 (2) Yauger v. Skinner, 14 N. J. Eq., 389. 
 
 (3) In re Farrell, 51 N. I. Eq., 353. 
 
730 Lunacy Proceedings. 
 
 motives and in good faith and there is a fund under the con- 
 trol of the court out of which payment can be ordered to be 
 made. (4) And where upon the appHcation for a commis- 
 sion a case is made which moves the court to appoint a 
 receiver pendente lite, and afterwards upon the inquest the 
 subject of the inquisition is found to be of sound mind, the 
 court will, in discharging the receiver, allow him compensa- 
 tion for his services, and will allow the petitioner the taxed 
 costs of the proceedings, including a reasonable counsel fee 
 and expenses reasonably and properly incurred. (5) 
 
 Allowances to Commissioners and Jurors. It shall be 
 lawful for the Chancellor to allow to the Master who may 
 preside at such commission, and also to the other commis- 
 sioners, such compensation as under the circumstances may 
 be reasonable and proper, and to the jurors who may be sum- 
 moned the same compensation as is now allowed by law to 
 jurors in the circuit court of this state; the same to be paid 
 out of the estate of the person who is the subject of the 
 inquisition. (6) 
 
 MISCELLANEOUS PROCEEDINGS IN CONNEC- 
 TION WITH ESTATES OF LUNATICS. 
 
 The statute provides for various proceedings in relation to 
 the Estates of Idiots and Lunatics which are not considered 
 of sufficient importance to be inserted in full but should be 
 referred to. Thus, where an incompetent is a member of 
 a partnership the Chancellor may on application of the part- 
 ner of such lunatic, dissolve the partnership. (7) And so where 
 the lands of any idiot or lunatic are subject to an estate by 
 the curtesy or in dower or to an estate for life or for years, 
 devised 'to any woman in lieu of dower, such tenant by the 
 curtesy or dowere-^s may elect- to accept such gross sum in 
 lieu thereof as may be approved by the Chancellor, who may 
 order the payment of such sum to the tenant in curtesy or 
 
 (4) In re Sulk, 74 N. J. Eq., 736. 
 
 (5) In re Sulk, 74 N. J. Eq., 736. 
 
 (6) 2 Comp. Stat., p. 2784, sec. 3d. 
 
 (7) P. L. 1884, p. 214; 2 Comp. Stat, 2790., sec. 14a. 
 
Lunatics' Estates. 731 
 
 dower. (8 j The guardian of an idiot or lunatic may apply to 
 the Court of Chancery for directions as to what amount he 
 shall expend yearly for the support and maintenance of such 
 idiot or lunatic or that of his household. (9) 
 
 Where any power discretionary or otherwise is vested in, 
 or the exercise of any power is dependent upon the consent 
 of a person of unsound mind the court may upon the appli- 
 cation of his guardian authorize and direct him to exercise 
 such power or execute such consent. (10) 
 
 Where it be represented to the Chancellor upon the applica- 
 tion of the guardian of any incompetent person that it would 
 be advantageous to him or his family that a dwelling house 
 should be purchased for the use of such incompetent and his 
 family, the Chancellor may order his guardian so to do.(ii) 
 Where the income of an incompetent is more than sufficient 
 for his support and that of his family the court may order 
 that such surplus income be applied by the guardian of such 
 incompetent to the support of his indigent relatives. (12) 
 
 Whenever any person of unsound mind shall be seized or 
 possessed of any real estate by way of mortgage or as a 
 trustee for others in any manner, his guardians may apply to 
 the court for authority to convey such real estate to any 
 person entitled to such conveyance (13) and the person entit- 
 led to such conveyance may apply to the court for relief. (14) 
 
 The court has also power to compel the specific perform- 
 ance of any contract made by such incompetent while he was 
 of sound mind. (15) 
 
 (8) P. L. 1889, p. 148; 2 Comp. Stat., 2790, sec. 14b. 
 
 (g) P. L. 189s, p. 500; 2 Comp. Stat., 2791, Sec. I4d. 
 
 (10) P. L. 1897; p. 141; as amended by P. L. 1904, p. 71; 2 Comp. 
 Stat., 2792, Sec. 14J. 
 
 (11) P. L. 1903, p. 112; 2 Comp. Stat, p. 2792, sec. 14I. 
 
 (12) P. L. 1906, p. 302; 2 Comp. Stat., p. 2792; sec. 14m. 
 
 (13) P. L. 1897, p. 140; 2 Comp. Stat., p. 2791, sec. 146. 
 
 (14) P. L. 1897, p. 140; 2 Comp. Stat., p. 2791, sec. I4f. 
 (is) P. L. 1897, p. 141; 2 Comp. Sta't., p. 2791, sec. 14I1. 
 
732 Sale of Infants' Lands. 
 
 CHAPTER XXXV. 
 
 PROCEEDINGS RESPECTING LANDS OF INFANTS 
 AND INCOMPETENTS. 
 
 SALE OF INFANTS' LANDS. 
 
 Jurisdiction. Whenever an infant shall be seized of any 
 lands, tenements, hereditaments either corporeal or incor- 
 poreal, or be entitled to any term to come in any lands in this 
 State, or shall be entitled to the said property by virtue of a 
 deed of trust wherein no power of sale is reserved to the trus- 
 tee, and it shall be represented to the Chancellor on behalf of 
 said infant, by his or her guardian or next friend, that his or 
 her interest requires that the said lands, tenements, heredita- 
 ments or term should be sold or disposed of, the Chancellor 
 may, in a summary manner, proceed to inquire into the merits 
 of the application ; and from such time the infant shall, so far 
 forth as relates to such property, its proceeds and income, be 
 considered a ward of the Court of Chancery. (i) 
 
 It is always a good reason for selling an infant's share in 
 real estate held in common with adults, that the value of his 
 estate is small as compared with the expense of a partition 
 suit to which it will be subjected, if a sale by the guardian of 
 his share should be refused. (2) 
 
 Definitions: "Lands": "Real Estate": The word "lands" 
 and the words "real estate" whenever they occur in the 
 act to which this is a supplement, and in any and every 
 supplement to said act, shall embrace and include, and shall 
 be deemed to embrace and include any and every rent, charge, 
 and any and every rent reserved on any conveyance of land 
 in fee simple, heretofore made or hereafter to be made; and 
 any and every rent granted out of any lands by deed, hereto- 
 fore made or hereafter to be made. (3) 
 
 Who May Apply — Form of Petition. The general guar- 
 dian of the infant, if he have any, and, if there be none, some 
 
 (i) Rev. 1877, p. 481; 2 Comp. Stat., 2804, sec. i, as amended by 
 P. L., 1913- 
 
 (2) In re Congden, 2 Paige 566. 
 
 (3) Rev. 1877, p. 484; 2 Comp. Stat. p. 28o6^sec. 12. 
 
Reference. 733 
 
 relative or friend, may present a petition to the Chancellor, 
 stating the age and residence of the infant, the situation and 
 value of the real estate proposed to be sold, with a descrip- 
 tion of the samCj and the particular reasons which render a 
 sale of the premises necessary or proper, and praying that a 
 guardian may be appointed to sell the same ; the petition shall 
 also state the name and residence of the person proposed as 
 such guardian, the relationship, if any, which he bears to the 
 infant, and the security proposed to be given. (4) 
 
 Practice of Filing Petition — Reference. Matter Referred. 
 
 Upon the petition being presented to the court, if it satisfac- 
 torily appear that there is a reasonable ground for the appli- 
 cation, there shall be a reference to a special master to ascer- 
 tain the truth of the facts stated in the petition, and whether 
 the interest of the infant requires that said real estate, or any 
 part thereof, should be sold, and what part, and the particular 
 reasons upon which his opinion is founded, and to ascertain 
 also the value of the property proposed to be sold, and of 
 each separate lot or parcel thereof, and the terms and condi- 
 tions upon which it should be sold, and fixing a price below 
 which it should not be sold, and whether, in his opinion, said 
 premises will increase in value during the minority of said 
 infant, and to what extent. And if he shall ascertain that the 
 interest of the infant requires that the said real estate, or any 
 part thereof, be sold then to ascertain and report whether the 
 person proposed as a guardian is a suitable and proper person 
 for that purpose ; what is the age of the infant, the actual value 
 of the infant's interest in the real estate proposed to be sold, 
 the sufficiency of the sureties offered by the guardian, and 
 whether each is worth double the value of the infant's interest 
 in the real estate proposed to be sold, over and above all debts, 
 or whether the land proposed to be mortgaged by way of 
 security is unencumbered and of the requisite value, or 
 whether the security offered is such as is permitted by law and 
 should be approved by the Chancellor according to the pre- 
 ceding rule (S), and what should be the penalty of the guard- 
 ian's bond, in conformity to that rule, to be given to each 
 infant. And if the master is not satisfied with the person 
 nominated as guardian, or with the security proposed, he may 
 
 (4) Chancery Rule, 179. 
 
 (5) See Chancery Rule 180, page 73S, infra. 
 
734 Sale of Infants' Lands. 
 
 name a suitable person as guardian and state what further 
 or other security should be given. (6) 
 
 Upon a reference to examine and report whether the inter- 
 ests of infants require and will be promoted by a sale of their 
 lands, the Master must report his own opinion formed from 
 facts, not that of others, nor an opinion founded upon that 
 of others without facts. Mere opinions of witnesses are no 
 evidence (7), and the testimony of the father and mother own- 
 ing a life estate in the premises that the interest of the infants 
 would be promoted by a sale, when they would be clearly 
 benefited by a sale at the expense of the infants, should not 
 be acted upon and hardly received. (8) 
 
 Guardian: Appointment: Bond. On every such applica- 
 tion, the Chancellor, shall in his discretion appoint a suitable 
 guardian or guardians, of the infant in the premises, who 
 shall give bond to the infant, to be filed with the clerk of this 
 Court of Chancery, in such penalty and with such surety as 
 the Chancellor shall direct, conditioned for the just and faithful 
 performance of the trust reposed in such guardian and for the 
 observance of such orders and directions as the Chancellor 
 shall from time to time make in the premises in relation to such 
 trust; which bond, if forfeited, may be prosecuted in any 
 court having recognizance of the same, by the direction of the 
 Chancellor. (9) 
 
 The Chancery Rules provide that on the coming in of the 
 report of the Master application may be made for an order 
 appointing a guardian for the purposes of the application on 
 his executing and filing with the clerk the requisite security, 
 approved as to its form and manner of execution by the master, 
 signified by his certificate endorsed thereon and also directing 
 a sale of the property. (10) 
 
 Character of Bond. The security required on a sale of 
 the real .estate of an infant shall be a bond of the guardian, 
 with two sufficient sureties, in a penalty of double the value 
 of the interest of such infant in the premises, each of which 
 sureties shall be worth the penalty of the bond over and above 
 
 (6) Chancery Rule 181. 
 
 (7) In re Heaton, 21 N. J. Eq., 221. 
 
 (8) In re Heaton, 21 N. J. Eq., 221. 
 
 (9) Rev. 1877, p. 482; 2 Comp. Stat., p. 2804, sec. 2. 
 
 (10) Chancery Rule 182. 
 
Proceedings. 735 
 
 all debts, or a similar bond of the guardian only, secured by a 
 mortgage on unencumbered real estate of the value of the 
 penalty of such bond, not estimating the improvements there- 
 on, or a similar bond of the guardian, with such surety as is 
 permitted by law and approved by the Chancellor. ( 1 1 ) 
 
 Death of Special Guardian: New Guardian: Appoint- 
 ment: Bond: Powers and Duties. In case of the death of 
 any special guardian appointed under this act, the Chancellor 
 may appoint another guardian in the place of such deceased 
 guardian, who shall give bond according to the provisions of 
 this act, and shall then have power, by the order of the Chan- 
 cellor, to perform and shall be liable to all the duties, require- 
 ments and provisions of this act; and all proceedings now 
 pending or to be commenced, may be continued and con- 
 ducted by said newly appointed guardian, who shall be invested 
 with the same power and authority as if he had been originally 
 appointed. (12) 
 
 Hearing on Application: Direction for Sale or Other 
 Disposition: Validity of Sale, Etc. After such bond shall 
 be given and filed, as aforesaid, the Chancellor may proceed 
 in a summary manner, by reference to a Master, to inquire 
 into the merits of such application ; and whenever, and as 
 often as it shall satisfactorily appear to the court that the 
 interest of the infant requires, or will be substantially pro- 
 moted by a sale or other disposition of the lands or term of 
 such infant, or of any part or parts thereof, the Chancellor may 
 direct a sale or other disposition of such lands or term to be 
 made by the guardian or guardians, in such a way and manner, 
 and with such restrictions, as shall be deemed expedient ; and 
 all sales, dispositions and conveyances, made in good faith in 
 pursuance of and in conformity with the direction of the 
 court, when confirmed as hereinafter mentioned, shall be valid 
 and effectual as if made by such infant when of full age; 
 provided, however, that nothing in this act contained shall 
 authorize the sale or disposition of any lands or term for 
 years, against the provisions of any last will or conveyance 
 by which the same were devised or granted to such infant. (13) 
 
 (11) Chancery Rule 180. 
 
 (12) Rev. 1877, p. 483; 2 Comp. Stat., p. 2806, sec. 11. 
 
 (13) Rev. 1877, p. 482; 2 Comp. Stat., p. 2804, sec. 3. 
 
736 Sale of Infants' Lands. 
 
 Approval of Sale: Disposition of Proceeds. All sales 
 and dispositions made in pursuance of this act, shall be re- 
 ported on the oath or affirmation of the guardian or guardians 
 aforesaid, to the Chancellor; to be approved by him before a 
 conveyance shall be executed; and if the sale or disposition is 
 confirmed by the Caancellor, and a conveyance directed to be 
 executed, he shall then make order for the application and dis- 
 position of the proceeds of the same, and for the investment 
 of the surplus belonging to such infant, so as to secure it to 
 the infant in such way and manner as may seem most for his' 
 or her benefit and advantage; and a report of such in- 
 vestment or disposition shall also be made to the Chancellor 
 by such guardian or guardians, on oath or affirmation as afore- 
 said, as soon as conveniently may be, and filed in the office of 
 the Clerk in Chancery. (14) 
 
 Interest in Proceeds. Descent and Distribution. No sale 
 of any real estate, made in pursuance of the provisions of this 
 act, shall give to any person any other or greater interest in 
 the proceeds of such sale than he or she had or would have had 
 in the lands, provided the same had not been sold ; but the said 
 proceeds shall be considered relative to the statutes of descents 
 and distribution, and for every other purpose as real estate of 
 the same nature as the property sold. (15) 
 
 Where land of an infant is sold under an order of the Court 
 of Chancery, the fund arising from such a sale is regarded as 
 real estate. (16) 
 
 Order of Distribution. In the order approving the sale 
 and directing a conveyance to be executed, may be embraced 
 the directions and order of the Chancellor for the application 
 and disposition of the proceeds of the sale, and for the invest- 
 ment of the surplus thereof. (17) 
 
 Proceeds of Sale: Payment to General Guardian: Dis- 
 charge of Special Guardian: Certified Copy of Receipt as 
 Evidence. When any special guardian appointed under this 
 act shall have sold the lands and real estate of the infant, and 
 his account has been presented and approved by the Chancellor, 
 it shall be lawful for the Chancellor to make an order directing 
 
 (14) Rev. 1877, p. 482; 2 Comp. Stat., p. 2804, sec. 4. 
 
 (is) Rev. 1877, p. 482; 2 Comp. Stat., p. 2805, sec. 5. 
 
 (16) Merriam v. Dunham, 62 N. J. Eq., 567. 
 
 (17) Chancery Rule 186. 
 
Bond of General Guardian. 737 
 
 the said guardian to pay the proceeds of such sale, after de- 
 ducting such commissions' and expenses as shall be allowed by 
 the Chancellor, to the general guardian of the said infant; 
 and upon the payment to the general guardian of the amount 
 ascertained by the Chancellor to be due to the infant in the 
 hands of the general guardian, and the assignment of the 
 securities held by him, in case the money has been invested 
 by the order of the court, the special guardian may, by an 
 order of the Chancellor, be discharged from further duties 
 and liability in relation to his office; and the receipt of the 
 general guardian for the moneys and securities so ordered to 
 be paid and transferred shall be a sufficient release and dis- 
 charge of such special guardian from his trust; which re- 
 lease having been acknowledged or proved, as deeds for land 
 are required to be acknowledged or proved, may be filed and re- 
 corded in the office of the Clerk of the Court of Chancery and 
 a certified copy thereof shall be competent evidence in all courts 
 and places. (i8) 
 
 Bond of General Guardian for Proceeds of Sale. Before 
 any order directing the special guardian to pay or transfer 
 the proceeds of the sale of the lands of such infant to his gene- 
 ral guardian shall be made, the general guardian shall give bond 
 with sureties in a sum sufficient to secure the amount of such 
 proceeds which bond shall be approved by the Orphans' Court 
 of the County in which the general guardian was appointed, 
 and filed with the Surrogate of said County; and a certificate 
 from such Orphans' Court, signed by at least two judged 
 therof and attested by the Surrogate under his official seal, 
 certifying that a good and sufficient bond has been filed in 
 the Surrogate's office sufficient to cover the amount (naming 
 it) to come into the hands of the general guardian, shall be 
 filed with the Clerk of the Court of Chancery ; provided, how- 
 ever, that in case such general guardian was appointed by the 
 prerogative court, the general guardian shall give bonds with 
 sureties in a sum sufficient to secure the amount of such pro- 
 ceeds, which bonds shall be approved by the ordinary and filed 
 in the office of the Clerk of the Prerogative Court. (19) 
 
 (18) Rev. 1877, p. 483; 2 Comp. Stat., p. 2806, sec. 9. 
 
 (19) Rev. r877, p. 483, as amended P. L., 1887, p. 122; 2 Comp. Stat, 
 p. 2806, sec. 10. 
 
738 Sale of Infants' Lands. 
 
 Sale Free from Curtesy or Dower or Estate for Life or 
 Years: How Compensated for: Release of Right. If the 
 
 lands of any infant or any part thereof shall be subject to an 
 estate by the curtesy or in dower, or to an estate for life or 
 years devised to any woman in lieu of dower, and the person 
 entitled to such estate shall consent in writing to accept in lieu 
 of his or her right or estate in such lands, either a gross sum 
 to be approved by the Chancellor, or the investment of a 
 reasonable sum with like approval ; in such manner as that the 
 interest thereof be made payable to the person entitled to 
 such estate by the curtesy, in dower, or for life, or years, 
 during the period for which such estate would by its own limi- 
 tation continue, the Chancellor may, after such consent in 
 writing has been filed in the office of the Clerk of Chancery, 
 direct the payment of such sum in gross, or the investment of 
 such sum, as he shall deem reasonable and shall be acceptable 
 to the person entitled to such estate, in manner aforesaid; 
 which sum, so paid or invested, shall be taken out of the 
 proceeds of the sale of the real estate of such infant, so sub- 
 ject to such estate as aforesaid; provided, however, before any 
 such sum shall be paid, or such investment made, the Chancel- 
 lor shall be satisfied that an effectual release of such estate 
 or right has been executed. (20) 
 
 Consent of Dowress or Life Tenant. If any person 
 entitled to dower in the premises or to any estate for life or 
 years therein, devised to widow in lieu of dower, is willing 
 to join in the sale and release of such estate, upon receiving, 
 in lieu therof, such sum in gross as shall be approved by the 
 Chancellor, or upon the investment of such sum as the Chan- 
 cellor may deem reasonable, in such manner that the inter- 
 est shall be paid to the person entitled to such estate for the 
 duration thereof; or if any person entitled to curtesy in the 
 premises shall be willing to join in the sale, upon receiving 
 such sum in gross as shall be approved by the Chancellor ; 
 and such person shall, before the sale sign and deliver to the 
 guardian a consent in writing, to join in the sale and release of 
 such estate on the terms above specified, or either of them, 
 then the guardian shall sell the lands free from such estate. 
 (21) 
 
 (20) Rev. 1877, p. 482 ; 2 Comp. Stat., p. 2805, sec. 6. 
 
 (21) Chancery Rule 183. 
 
Dower Estates. 739 
 
 Reference to Ascertain Value of Dower or Life Estate. 
 
 If any person entitled to such dower or estate shall have agreed 
 to join in the sale and accept such sum in gross', or investment 
 in lieu thereof, then, upon such sale, it shall be referred to a 
 special master to ascertain and report the clear yearly income, 
 above insurance, repairs and taxes, that such tenant for life 
 could realize from the whole premises during his or her life, 
 if owner of the whole for life ; and in such calculation, allow- 
 ance shall be made for all repairs necessary to keep the prem- 
 ises in as good condition as at the sale, including the renewal 
 of any part of the buildings thereon that may, by ordinary 
 wear and tear, or from decay, required renewal ; and from said 
 income to ascertain and report the gross value of such dower, 
 or other estate, on the principle of life annuities, to be calculated 
 on the basis of the table annexed to the rules of this' court ; 
 and also further to ascertain the gross value of such dower 
 or estate from the net proceeds of the sale above costs and ex- 
 penses, to be calculated on the basis of said table ; and also, in 
 case such consent is to accept a gross' sum, tO' inquire into and 
 report the condition as to health of such doweress or life tenant, 
 and whether he or she has an average expectancy of life ; and 
 if not, what deduction should be made from such gross sum 
 on that account. (22) 
 
 Method of Determining Value of Dower or Other Estate 
 Sold. The gross sum allowed in lieu of dower or other 
 estate so sold, shall not be greater than that calculated on the 
 net proceeds of the sale, and when the clear yearly income shall 
 be less than the interest on the net proceeds of sale at four per 
 cent., the gross sum to be allowed shall be calculated, by 
 adding to the amount calculated from the clear yearly income — 
 in cases of dower one-half, and in other cases one-fourth of 
 the excess' of the amount calculated from the net proceeds of 
 sale over the amount calculated from the clear yearly income. 
 Having made such calculation and ascertained the result, the 
 Master is to report, irrespective of the result, what is, in his 
 opinion and under all the circumstances' of the case, a reason- 
 able satisfaction for said dower or other estate. (23) 
 
 Release by Married Woman: Joinder of Husband. If 
 any woman entitled to dower or to an estate devised for life or 
 
 (22) Chancery Rule 184. 
 
 (23) Chancery Rule 185. 
 
740 Sale of Infants' Lands. 
 
 years, in lieu or dower in the real estate of any infant or in- 
 fants, sold under the provisions of this act, shall be a married 
 woman, it shall be lawful for such married woman to execute 
 a release of her right, interest and estate in such real estate, 
 without her husband joining in or executing the deed of such 
 release, and to receive and hold for her own separate use the 
 moneys ordered by the court to be paid to her, or the interest 
 on the sum invested for her benefit for such release, and such 
 deed of release when executed and given as aforesaid shall have 
 the same force and effect as if her husband had joined in said 
 deed, or as if she were sole and unmarried. (24) 
 
 Accounting by Guardians: Master's Report Thereon. 
 
 The guardian or guardians appointed as aforesaid, shall be 
 liable to account, under the order of the Court of Chancery, 
 before such master as the Chancellor may designate from time 
 to time, upon the application of any person or persons inter- 
 ested in the funds, and the report of such master, made there- 
 upon, shall be liable to exceptions, as in other cases of 
 master's reports requiring confirmation ; and the Chancellor 
 shall have full power and authority to make all such orders 
 and decrees in the premises as shall be necessary to give com- 
 plete relief to the parties. (25) 
 
 Guardian's Commissions on Sale. The guardian shall be 
 entitled to receive on all sales of such infants' estates the fol- 
 lowing percentage : 
 
 1. On all sums not over one thousand dollars, three per 
 cent, of sales. 
 
 2. If over one thousand dollars, and not exceeding three 
 thousand dollars, two per cent, on such excess ; and 
 
 3. If over three thousand dollars, one per cent, on such 
 excess. (26) 
 
 Sale of Lands Limited Over to Infants. The sale of lands 
 act provides that in all cases where any future or contingent 
 interest in lands is limited over to infants or persons not in esse 
 or in such manner that the vesting or duration of such estate 
 may be contingent and the interest of the owners of the par- 
 ticular and future estate in such lands require and would be 
 
 (24) Rev. 1877, p. 483 ; 2 Comp. Stat., p. 2805, sec. 7. 
 
 (25) Rev. 1877, p. 483; 2 Comlp. Stat., p. 2805, sec. 8; and see "Ref- 
 erences," page 361, supra. 
 
 (26) Chancery Rule 187. 
 
Sale of Lands Limited Over. 741 
 
 promoted by a sale thereof, the Chancellor may, upon the ap- 
 plication of any person having a vested estate therein, where it 
 appears that the situation and prospective value of -said lands 
 are such that it would be for the interest of any person who 
 might own the same in fee to sell the same, direct such 
 sale. (27) 
 
 Under the act authorizing the sale of lands limited over to 
 infants or in contingency where such sale would be beneficial, 
 the court has power in a proper case, to direct a sale of the 
 vested estate of persons legally competent but unwilling to 
 sell. Ever since the enactment of this statute it has been 
 treated as empowering the court to dispose of the entire estate. 
 This power should, however, be sparingly exercised. The 
 right to control one's own property ought to be preserved as 
 far as practicable and every reasonable intendment made in 
 favor of its maintenance. (28) 
 
 Upon an application for the sale of infant's reversion in 
 land, the only question is, will the property bring as much now 
 as it will at the death of the life tenant? If it will not, it is 
 not for the interest of the infants to sell, if the life tenant is 
 to receive a share of the proceeds or of the income from them 
 according to the rules of this Court. (29) And it is not a 
 sufficient reason for the sale of an infants' revisionary estate 
 in lands that the property is so much out of repair that it 
 would now cost more to put it in tenantable condition than the 
 income would justify, where the property has been in the 
 actual possession of the life tenant. If he has suffered it to 
 get out of repair he is bound to put it in as good repair as it 
 was when he entered upon it. (30) And so the revisionary 
 estate of an infant will not be sold bcause there may be a great 
 advantage in the sale for the tenant for life when the benefit 
 to the infant is doubtful or inappreciable. (31) The pro- 
 cedure upon an application under this act is fully set forth in 
 the statute to which reference should be had. (32) 
 
 (27) Rev. 1877, p. 1052 ; 4 Comp. Stat., 4688, sec. 42. 
 
 (28) Apgar V. Apgar, 38 N. J. Eq., 549. 
 
 (29) In re Heaton, 21 N. J. Eq., 221. 
 
 (30) In re Steele, 19 N. J. Eq., 120; in re Heaton, 21 N. J. Eq., 221. 
 
 (31) In re Steele, 19 N. J. Eq., 120. 
 
 (32) Rev., 1877, p. 1052; 4 Comp. Stat., 4589, sec. 43, et seq. 
 
742 Sale of Lands of Lunatics. 
 
 SALE OF LANDS OF IDIOTS AND LUNATICS. 
 
 Sale of Land: Application to Chancellor: Proceedings. 
 
 Whenver any idiot or lunatic shall be seized of any lands or 
 real estate, and it shall be represented to the Chancellor on be- 
 half of such idiot or lunatic, by his or her guardian or guardians, 
 duly appointed in the manner prescribed in this act, that his or 
 her interest requires that the said lands should be sold or dis- 
 posed of, the Chancellor may proceed in a summary manner, by 
 reference to a master, to inquire into the merits of such ap- 
 plication, and whenever and a^ often as it shall satisfactorily 
 appear to the Court that the interest of such idiot or lunatic 
 requires, or will be substantially promoted by a sale of his 
 or her lands or real estate, or of any part or parts thereof, the 
 Chancellor may order and direct, the guardian or guardians of 
 such idiot or lunatic to sell or dispose of the whole or any part 
 or parts of such lands or real estate in such way and manner 
 and with such restrictions as' shall be deemed expedient ; pro- 
 vided, however, that nothing in this act contained shall author- 
 ize the sale of any lands or real estate contrary to the pro- 
 visions of any last will and testament, or of any conveyance 
 by which the same were devised or granted to such idiot or 
 lunatic. ( i ) The chancery rules provide that the general guar- 
 dian of an idiot, lunatic or habitual drunkard, may present 
 a petition to the Chancellor, stating the residence of the idiot, 
 lunatic or drunkard, the situation and value of the real estate 
 proposed to be sold or disposed of, with a description thereof, 
 and that the interest of such idiot, lunatic or drunkard requires 
 that said lands should be sold or disposed of, and stating also 
 the particular reasons which render such sale necessary or 
 proper. (2) 
 
 Reference to Master. Upon the petition being presented 
 to the Court, if it satisfactorily appear that there is reason- 
 able ground for the application, there shall be a reference to 
 a special master to ascertain and report what is the actual 
 value of the real estate proposed to be sold or disposed of, 
 ,and of each separate lot or parcel thereof; the sufficiency of the 
 sureties offered by the guardian, and whether each is worth 
 double the value of the real estate proposed to be sold ; or 
 
 (i) P. L. 188s, p. 30; 2 Comp. Stat., p. 2788, sec. 7. 
 (2) Chancery Rule 175. 
 
Proceedings. 743 
 
 whether the land proposed to be mortgaged by way of security, 
 is unencumbered and of the requisite value, or whether the 
 security offered is such as is permitted by law and should be 
 approved by the Chancellor, according to the preceding rule ; 
 and what should be the penalty of the guardian's bond in con- 
 formity to that rule ; and also to ascertain the truth of the facts 
 stated in the petition, and whether the interest of the idiot, 
 lunatic or drunkard (as the case may be) requires that said real 
 estate or any part thereof, should be sold or disposed of, and 
 the particular reasons upon which his opinion is founded, and 
 the terms and conditions upon which it should be sold or dis- 
 posed of and fixing a price below which it should not be 
 sold. (3) 
 
 Sale of Land: Report to Chancellor. The guardian or 
 guardians who may be ordered to sell any lands' or real estate 
 as aforesaid, shall after making such sale, report the same in 
 writing, under oath or affirmation, to the Chancellor, either 
 in term or vacation; and if the Chancellor shall approve such 
 sale, he shall confirm the sale as valid and effectual in law, and 
 shall direct the said guardian or guardians to execute good 
 and sufficient conveyance, in the law to the purchaser or pur- 
 chasers for the lands and real estate so sold ; which said con- 
 veyances, duly executed as aforesaid, shall vest in the pur- 
 chaser or purchasers as good and perfect an estate in the prem- 
 ises so sold as the said idiot or lunatic shall be seized of or 
 entitled to at the time of making said order by the Chancel- 
 lor. (4) 
 
 Sale of Land: Guardian to Give Bond. Every guardian 
 who may be ordered to sell any lands or real estate as afore- 
 said, shall, before or at the time of making the report of such 
 sale, entered into bond to the ordinary of this state and his 
 successors, with such security as the Chancellor shall deem to 
 be sufficient, and shall so adjudge and approve, in the order 
 confirming said sale, conditioned for the faithful discharge of 
 the trust committed to such guardian, which bond shall be 
 filed in the office of the Clerk of Chancery ; and in case the 
 same shall become forfeited, it shall and may be lawful for the 
 Chancellor to order the same to be prosecuted in any court of 
 
 (3) Chancery Rule 177. 
 
 (4) Rev. 1877, p. 603 ; 2 Comp. Stat., p. 2788, sec. 8. 
 
744 Sale of Lands of Lunatics. 
 
 record at the request of any person aggrieved by such for- 
 feiture. (5) 
 
 The Chancery rule provides' that the security required on a 
 sale of the real estate of an idiot, lunatic or habitual drunkard, 
 shall be. a bond of the general guardian to the Ordinary of the 
 State of New Jersey, and his successors, with two sufficient 
 sureties, in a penalty of double the value of the premises, each 
 of which sureties shall be worth the penalty of the bond over 
 and above all debts; or a similar bond of the guardian only, 
 secured by a mortgage on unencumbered real estate of the value 
 of the penalty of such bond, not estimating the improvements 
 thereon or a similar bond of the guardian with such surety as 
 is permitted by law and approved by the Chancellor. (6) 
 
 The guardian shall, at or before the time of making his re- 
 port a sale of said real estate, file with the clerk of this court 
 the bond required by the 176th. rule, approved as to its form 
 and manner of execution by the master, signified by his cer- 
 tificate endorsed thereon. (7) 
 
 Married Woman, Entitled to Dower, Etc., May Release 
 Right, Etc., in Estate of Idiot or Lixnatic. If any woman 
 entitled to dower, or to an estate devised for life or years, in 
 lieu of dower, in the real estate of any idiot or lunatic, sold 
 under the provisions of this act, shall be a married woman, 
 it shall be lawful for such married woman to execute a release 
 of her right, interest and estate in such real estate, without her 
 husband joining in or executing the deed of such release, and 
 to receive and hold for her own separate use, the moneys 
 ordered by the court to be paid to her, or the interest on the 
 sum invested for her benefit, for such release ; and such deed 
 of release, when executed and given as aforesaid, shall have 
 the same force and effect as if her husband had joined in said 
 deed, or as if she were sole and unmarried. (8) 
 
 Sale of Land: Interest in Proceeds. No sale of any real 
 estate, made pursuant to or by virtue of the provisions of this 
 act, shall give to any person any other or greater interest in the 
 proceeds of such sale than he or she had, or would have had, 
 in the lands, provided the same had not been sold ; but the said 
 
 (5) Rev. 1877, p. 603; 2 Comp. Stat., p. 2789, sec. 10. 
 
 (6) CHiancery Rule 176. 
 
 (7) Chancery Rule 178. 
 
 C8) P. L., 1889, p. 149; 2 Comp. Stat., p. 2790, sec. 14c. 
 
Sale of Lands for Various Purposes. 745 
 
 proceeds shall be considered, relative to the statutes of de- 
 scents and distribution, and for every other purpose as real 
 estate of the same nature as the property sold. (9) 
 
 Sale of Lands: Piroceeds to be put at Interest. The 
 moneys arising from any sale, made in pursuance of this act, 
 after payment of the costs and expenses incident thereto, shall 
 be put out at interest on good and sufficient security of unen- 
 cumbered real estate, or if the Chancellor shall soi direct, in 
 public stock of the United States' or of this State, and in no 
 other way whatever. (10) 
 
 Sale of Land: Guardian to Account in Orphans' Court 
 for Proceeds. It shall be the duty of every such guardian 
 to render to the Orphans' Court from whom he received his 
 appointment as gtiardian, a true account of the administration 
 of the proceeds' of the sale of any real estate ordered to be 
 sold as aforesaid, at the times and in the manner such guar- 
 dians are hereinafter directed to account. (11) 
 
 Sale of Lands of Idiot or Lunatic for Various Purposes. 
 If any such idiot or lunatic is justly indebted to any person or 
 persons, or if any person or persons shall have advanced 
 moneys, purchased necessaries or rendered services on account 
 of any Such idiot or lunatic, for his or her care, support or 
 maintenance, or for the preservation or benefit of his or her 
 estate, beyond the ability of any such idiot or lunatic, to pay the 
 same out of his or her personal estate, or in case the personal 
 estate of such idoit or lunatic, together with the profits of his or 
 her lands' and tenements, shall be insufficient for his or her sup- 
 port and comfortable maintenance, and that of his or her 
 household, if any he or she shall have, it shall and may be law- 
 ful for the Orphans' Court of the County in which the lands 
 and tenements of any such idiot or lunatic shall be situate, or 
 for the Chancellor, on full investigation of the situation and 
 circumstances of the said idiot's or lunatic's real and personal 
 estate, and of the just debts owing by him or her, and of the 
 advances which have been made on his or her account, and of . 
 the services rendered for him or her or for his' or her estate, 
 from time to time, to order the guardian of such idiot or luna- 
 tic to sell so much of the timber growing or being upon the 
 
 (9) Rev. 1877, p. 603 ; 2 Comp. Stat., p. 2788, sec. 9. 
 
 (10) Rev. 1877, p. 603; 2 Comp. Stat., p. 2789, sec. 11. 
 
 (11) Rev. 1877, p. 603; 2 Comp. Stat., p. 2789, sec. 12. 
 
746 Moneys in Hands of Masters. 
 
 lands of said idiot or lunatic, or to sell such parts of the said 
 idiot's or lunatic's lands, tenements, hereditaments or real 
 estate, as said court, or the Chancellor, shall direct and judge 
 sufficient to pay his or her just debts and the advances as above 
 mentioned, and proper and necessary for his or her support 
 and maintenance, and for the support of his or her household, 
 if any he or she have. (12) 
 
 Sale of Land : Report to Orphans' Court. That after the 
 lands, tenements, and real estate of such idiot or lunatic so 
 ordered to be sold, shall be sold, said guardian or guardians 
 shall make report in writing of all proceedings thereon, to the 
 next Orphans' Court after such sale. (13) 
 
 Sale of Land: Deed to Ptirchaser. The said guardian 
 or guardians shall make a deed to the purchaser or pur- 
 chasers, for the lands, tenements, hereditaments and real 
 estate so sold, which deed shall set forth the said order at 
 large, and shall vest in the purchaser or purchasers, as good 
 and perfect an estate in, the premises so sold, as the said idiot 
 or lunatic, shall be seized of or entitled to at the time of making 
 said order of the court. (14) 
 
 Payment of Proceeds of Sale to Guardian of Non-Resi- 
 dent Lunatic. The act authorizes the Chancellor, Preroga- 
 tive Court or Orphans' Court, upon the guardian of a non- 
 resident lunatic giving a proper bond, to authorize the payment 
 of the proceeds of such sale to the guardian of such non- 
 resident lunatic. (15) 
 
 MONEYS IN HANDS OF MASTERS. 
 
 Any master who shall make sale of any property under any 
 order, decree or writ of this Court, shall immediately deposit 
 any money which shall be paid to him, or which has come or 
 shall come to his hands in such cases, or in any other case for 
 ' any purpose, in some National or State bank of good standing, 
 to his credit as master, and shall at the same time report 
 
 (12) Rev. 1877, p. 602, as amended P. L., 1888, p. 540; 2 Comp. Stat., 
 p. 2787, sec. 4; see P. L. 191 1, p. 70. 
 
 (13) Rev. 1877, p. 602; 2 Comp. Stat., p. 2788, sec. 5. 
 
 (14) Rev. 1877, p. 602; 2 Comp. Stat., p. 2788, sec. 6. 
 (is) p. L. 1887, p. 177; 2 Comp. Stat., 2789, sec. 14. 
 
Lands of Infants and Lunatics. 7J:7 
 
 to the Chancellor the amount of money so received by him, in 
 what cause or matter it was received, and in what bank it has 
 been deposited. The Chancellor may require any master at any 
 time to make and file a statement of his account as such master 
 and the balance shown thereby. Whenever money has been or 
 shall be paid to the master of this Court, or has come or shall 
 come to his hands for any purpose, and shall remain in his 
 hands undisposed of, pursuant to an order or decree of this 
 Court for the space of three months, the said master shall 
 forthwith, upon the expiration of such time, unless the Chanc- 
 ellor shall otherwise specially order, pay the said money to the 
 Clerk of this Court, who shall receipt tO' the master for such 
 payment, and shall forthwith deposit the money so paid to him 
 in the depository of funds of this Court, to the credit of the 
 cause to which it belongs, and the said money shall thereafter 
 remain in said depository, subject to the order of the Chancel- 
 lor. (i6) 
 
 VARIOUS PROCEEDINGS RESPECTING LANDS OF 
 INFANTS, IDIOTS AND LUNATICS. 
 
 The statutes of New Jersey confer jurisdiction upon the 
 Court of Chancery to authorize the guardian of an infant or 
 incompetent person to deal with the lands of his ward in 
 various ways ; thus where it is made to appear that the land of 
 an infant is occupied in whole or in part by old or delapidated 
 buildings or by buildings incapable of producing an income 
 proportionate to the value of the land, the court may, when it 
 appears of advantage to the infant, order such buildings to 
 be removed and the other buildings erected thereon and the 
 Chancellor may authorize such guardian to borrow on bond 
 and mortgage sufficient to erect such buildings. ( i ) And an- 
 other act confers similar jurisdiction upon the application of 
 the guardian of an incompetent person. (2) 
 
 If any person entitled to dower in lands so mortgaged shall 
 join in the mortgage, she will be entitled to receive during 
 
 (16) Chancery Rule 216. 
 
 (i) P. L., 1886, p. 219; 2 Conip. Stat., 2628, sec. sa and sb; see 
 also P. L. 1894, p. 436; 2 Cotnp. Stat., p. 2631, sec. 11. 
 (2) P. L. 1894, p. 436; 2 Comp. Stat., p. 2631, sec. 11. 
 
748 Lands of Infants and Lunatics. 
 
 the term of her natural Hfe one-third of the net proceeds, 
 received from such buildings after deducting all taxes, assess- 
 ments, water rents, repairs, insurance premiums, commissions 
 paid to agents for collecting such rents and other proper 
 charges. (3) 
 
 Sale of Lands without Order of Court. In case any 
 guardian has heretofore or shall hereafter become the grantee 
 for or on account of his ward, of any lands, tenements, or 
 hereditaments, or undivided interest therein, in the transfer or 
 distribution of assets held by any executor or trustee, such 
 lands, tenements or hereditaments, or undivided interest 
 therein, shall be assets to such guardian's lands and may be sold 
 and conveyed by him without any order of court, and he shall 
 receive, give security, be accountable for and pay over the pro- 
 ceeds of such sale or sales the same as other assets in his 
 hands. (4) 
 
 In case any guardian heretofore has or shall hereafter be- 
 come the purchaser of any land, tenements or hereditaments, 
 at a sale upon the foreclosure of any mortgage held by such 
 guardian, such lands, tenements or hereditaments shall be as- 
 sets in his hands, and may be sold and conveyed by him 
 without any order of court, and he shall receive, be accountable 
 for and pay over the proceeds of such sale the same as the 
 other assets in his hands. (5) 
 
 Mortgaging of Lands of Minors and Incompetents. The 
 statutes authorize the Chancellor to direct that lands of 
 minors and incompetents be mortgaged to raise moneys for 
 various purposes. Thus where the lands of any minor or in- 
 competent are likely to be imperiled or sacrificed by reason of 
 the sale of such lands or when for any cause such lands can 
 be saved to such person or in any way advantaged by the 
 guardian of such person being able to raise money upon the 
 security of such lands, the Chancellor may order the guardian 
 of such minor or incompetent to raise a loan upon bond and 
 mortgage on said lands upon such terms as he may deter- 
 mine. (6) And so the guardian of a minor or incompetent per- 
 
 (3) P. L. 1886, p. 327; 2 Comp. Stat., p. 2632, sec. 13. 
 
 (4) P. L. 1904, p. 48; 2 Comp. Stat., p. 2637, sec. 35. 
 
 (5) P. L. 1892, p. 434; 2 Comp. Stat., p. 2637, sec. 33. 
 
 (6) P. L. 1887, p. 224 ; 2 Comp. Stat,, p. 2632, sec. 15 ; see also P. L. 
 1898, p. 230; 2 Comp. Stat., 2634, sec. 20. 
 
Mortgaging and Exchanging. 749 
 
 son may in a proper case be authorized to mortgage the lands 
 of his ward for the purpose- of raising money to pay liens and 
 encumbrances thereon. (7) So where lands of a minor or in- 
 competent person are subject to an estate in dower and the 
 dowress consents to receive a gross sum in lieu thereof, the 
 court may authorize the guardian to pay such sum as it may 
 approve, and if necessary, to mortgage the lands' of his ward 
 to raise such sum. (8) And so where it is made to appear that 
 personal estate and the income from the real estate of any 
 minor or incompetent person is insufficient for his proper sup- 
 port, education and maintenance, the court may order that such 
 lands be mortgaged to raise a sum' sufficient for such pur- 
 pose. (9) And the Court may order lands of a minor or in- 
 competent to be mortgaged to raise funds tO' support his wife 
 and minor children. (10) So the court may order lands of 
 a minor or incompetent person to be mortgaged for the pur- 
 pose of raising money to erect buildings to replace those 
 destroyed by fire.(ii) And where it is made to appear upon 
 the application of the guardian of a minor or incompetent 
 person that machinery in any building owned by his ward is 
 old and incapable or insufficient to perform the duties' required 
 of it, or that additional machinery is ilecessary, the court may 
 order that new machinery be purchased by such guardian. (12) 
 
 Exchange of Lands. The court may authorize the 
 exchange of a portion of the lands of any minor for lands 
 next adjoining thereto in order that the land of said minor 
 be not separated by the land of another. (13) And another 
 act confers a similar jurisdiction upon the application of the 
 guardian of an incompetent person. (14) 
 
 General Rules Governing Proceedings for Mortgaging 
 and Exchanging of Lands. The proceedings under any acts 
 
 (7) P. L. 1890, p. 465; 2 Comp. Stat, 2632, sec. 16; P. L. 1893, p. 
 498; 2 Comp. Stat., 2633, sec. 17, anu see P. L. 1909, p. 70; 2 Comp. 
 Stat., 2791, sec. 14. 
 
 (8) P. L. 1897, p. 446; 2 Comp. Stat., 2633, sec. 18. 
 
 (9) P. L. 1899, p. 561 ; 2 Comp. Stat., 2634, sees. 22, 23, 24 and 25 ; 
 see also P. L. 1909, p. 70; 2 Comp. Stat., 2791, sec. 14. 
 
 (10) P. L. 1903, p. 202; 2 Comp. Stat., 263s ; sees. 26, 27 and 28. 
 
 (11) P. L. 1903, p. 234; 2 Comp. Stat, sec. 29, et seq. 
 
 (12) P. L. 1886, p. 327; 2 Comp. Stat, p. 2631, sec. 12. 
 
750 Lands of Infants and Lunatics. 
 
 of the legislature conferring power on the Court of Chancery, 
 or the Chancellor, to order and direct the borrowing of money 
 on the security of or the exchange of any lands of a minor or 
 other person, shall be begun by petition of the guardian or 
 other person authorized to apply under any of said acts, and 
 shall be in conformity with the proceedings established by 
 statutes' and the rules and practice of this Court for the sale 
 of infants' lands so far as such last mentioned proceedings 
 may be applicable thereto. There shall be a reference to a 
 special master as to the merits of the application and in case 
 the application be to mortgage land, .as to the manner in which 
 it is proposed to meet the interest to accrue upon the mortgage 
 and as to fitness of the guardian or other person who is fo re- 
 ceive or may be appointed to receive the fund raised by such 
 mortgage, and the amount of bonds to be given and the suf- 
 ficiency of the surities offered. 
 
 When the application is to mortgage the guardian or other 
 person who is to receive or may be appointed to receive the 
 funds raised by such mortgage is to be required to give bond 
 in double the amount of the money to be borrowed, with sure- 
 ties and conditions, as provided by the act entitled "An act 
 relative to the sale and disposition of the real estate of infants," 
 or such other security as is permitted by law and approved by 
 the Chancellor. The infant, or any other person, whose land 
 is to be mortgaged or exchanged, shall, as to the property and 
 the money borrowed on mortgage thereof, or the property 
 received in exchange, be regarded as a ward of this Court. 
 If it should appear that the interest of the infant or other 
 person would be promoted by selling the lands of such infant 
 or other person, rather than by mortgaging the same, the 
 Chancellor may, in his discretion, direct the guardian, or any 
 other person to be designated by him, to take such proceedings 
 to sell the whole or any part of such lands as may be permitted 
 by law. (15) 
 
 (is) Chancery Rule 188. 
 
Costs. 751 
 
 CHAPTER XXXVI. 
 COSTS. 
 
 Nature and Grounds of Right to Costs. Costs are the 
 creature of statute, and are not recoverable unless by force of 
 a statute ; and the allowance of them in any case will depend 
 upon the terms of such statute. ( i ) The Chancery Act provides 
 that except where it is otherwise directed by law, it shall be 
 in the discretion of the Court of Chancery to award costs or 
 not. (2) As the allowance of costs and counsel fees in the 
 Court of Chancery is in the discretion of the Chancellor, to be 
 exercised on equitable principles, which in their nature forbid 
 an arbitrary rule by percentage, a stipulation in a mortgage 
 fixing in advance a gross allowance for attorney's collection 
 fees in the event of a foreclosure should not be enforced un- 
 less it agrees with the Chancellor's discretion as to the fair 
 allowance justified by the services rendered. (3) 
 
 In proceedings in lunacy upon a commission in the nature 
 of a writ de lunatico inquirendo, where the alleged lunatic is 
 found to be of sound mind, or the commission is superseded 
 before a guardian is appointed, the prosecutor cannot be al- 
 lowed his costs and expenses, however meritorious his con- 
 duct may have been, there being no fund out of which they 
 can be directed to be paid; (4) but where there is a fund 
 under the control of the court out of which payment can be 
 ordered to be made, and the prosecutor of the inquisition has 
 acted from justifiable motives and in good faith, costs, including 
 counsel fee and expenses reasonably and properly incurred, 
 will be allowed to the petitioner. (5) 
 
 A party prosecuting an inquisition of lunacy in good faith 
 will not be condemned in the costs of resisting the commission, 
 where the alleged lunatic is found to be of sound mind. (6) 
 
 Right of Prevailing Party to Costs. The general rule is 
 that the successful party is entitled to costs, and this rule will 
 
 (i) Lehigh Valley R. R. Co. v. McFarland, 44 N. J. L., 674. 
 
 (2) Chancery Act, sec. 84, page 71, supra. 
 
 (3) United States Security Life, &c., Co. v. Smith, 51 N. J. Eq., 635. 
 
 (4) In re Farrell, 51 N. J. Eq., 353. 
 
 (5) In re Sulk, 74 N. J. Eq., 736. 
 
 (6) In re White, 17 N. J. Eq., 274. 
 
752 Costs. 
 
 be applied unless the losing party can show that equity requires 
 a diflferent judgment ; and although the costs of a feigned issue 
 are said to be discretionary, the general rule of the court in 
 awarding them is that they follow the event and are given 
 to the successful party. (7) So in a suit to reform a deed for 
 mistake in the description, whereby the whole of a certain 
 tract was conveyed when the intention of the parties was 
 merely the conveyance of a part, and it appears that the 
 grantees, after notice of the mistake and knowledge thereof, 
 refused to correct it, and persistently defended the suit, they 
 should be charged with costs'. (8) So where one of the next of 
 kin of a decedent refused to deliver decedent's will to the 
 executor after demand for the same, upon a bill filed restrain- 
 ing such next of kin from destroying the will, he will be 
 ordered to pay the costs of suit. (9) 
 
 So where a suit to compel specific performance was brought 
 against the complainant's vendor and a third person, to whom 
 the property had been conveyed, and there was a decree that 
 the third person did not take subject to the rights of com- 
 plainant, such third person is entitled to his costs. (10) So 
 where the circumstances of the case prove a resulting trust in 
 the defendants' deceased brother, whose heirs at law the de- 
 fendants are, and there is no evidence that the answering de- 
 fendant knew of the existence of the trust, he is entitled to 
 his costs ; ( 1 1 ) and where defendants in good faith severed 
 their answers, each may be allowed his costs, though they all 
 may have employed the same solicitor. (12) But where the 
 vendee in a contract for the sale of lands secured various ex- 
 tensions of time, and finally failed to pay certain interest and 
 taxes which he had piromised to pay to secure the last exten- 
 sion, but at all times expressed his desire to take the property, 
 upon a bill for specific performance it was held that he was 
 entitled to a decree for specific performance, but was not en- 
 titled to costs because of his delay. (13) A solicitor who is a 
 
 (7) Carpenter v. Easton & Aniboy R. R. Co., 28 N. J. Eq., 390. 
 
 (8) Loss V. Obry, 22 N. J. Eq., 52 ; Meserole v. Leary, 23 Atl., 1074. 
 
 (9) Beckett V. Zane, 41 N. J. Eq., 412. 
 
 (10) Smith V. Umstead, 65 Atl., 442. 
 
 (11) Third National Bank v. Cary, 39 N. J. Eq., 25. 
 
 (12) Putnam v. Clark, 34 N. J. Eq., 51. 
 
 (13) Cranwell v. Clinton Realty Co., 67 N. J. Eq., 540. 
 
Right of Prevailing Party. 753 
 
 party to a suit, and who appears in his own behalf, is' entitled 
 to the allowances made by the fee bill for his services therein, 
 except a retaining fee. (14) 
 
 Wliere complainant does not establish his claim to any re- 
 lief, he will be decreed to pay the costs of the suit;(i5) and 
 so where a complainant has not diligently prosecuted his suit, 
 the costs of a motion to dissolve an injunction will be charged 
 to him, though such motion be denied. (16) But a complain- 
 ant in laches will not be charged with costs of a motion to dis- 
 solve an injunction, where he is acting for an infant. (17) 
 
 As a general rule, any order for costs in a vendor's suit for 
 specific performance must be made with regard to the status 
 of the vendee, not at the end of the suit, but at its commence- 
 ment — at the time when he refused to take the offered title. 
 Where the suit has exercised a curative effect upon the title, 
 and the vendee was justified under the circumstances in de- 
 manding that such cure should be made, the expense of the 
 suit may be a necessary incident to the performance of the con- 
 tract by the vendor. Not only should the vendee not be 
 mulcted in the costs of the vendor, but in some cases' the pay- 
 ment by the vendor of the entire costs and expenses of the 
 vendee will be made a condition upon which the decree in favor 
 of the former will be made. (18) 
 
 On judgment against several co-defendants who make the 
 same defense, the costs will be decreed against them jointly 
 and not apportioned among them, even though part of them 
 are insolvent and the burden of all the costs is thereby thrown 
 upon the others. (19) 
 
 Where Both Parties are Successful in Part. Where each 
 party to a suit is partially successful, no costs' will as a general 
 rule be allowed to either. (20) So where complainants sued to 
 
 (14) Flaacke v. Jersey City, 33 N. J. Eq., 57. 
 (is) Conover v. 'Walling, 28 N. J. Eq., 333. 
 
 (16) Randall v. Morrell, 17 N. J. Eq., 343. 
 
 (17) VanDuyne v. 'VanDuyne, 16 N. J. Eq., 93. 
 
 (18) Barger v. Gery, 64 N. J. Eq., 263. 
 
 (19) Barret v. Foley, 17 At!., 687. 
 
 (20) Moore v. Vail, 13 N. J. Eq., 295 ; Fairchild v. Hunt, 14 N. J. 
 Eq., 367; Camden & Amboy R. R. Co. v. Stewart, 19 N. J. Eq., 343-350; 
 afHrmed, 21 N. J. Eq., 484; Coddington v. Idell, 30 N. J. Eq., 540; 
 Vanderhoven v. Romaine, 56 N. J. Eq., i ; Lengyel , v. Meyer, 62 Atl., 
 548. 
 
754 Costs. 
 
 reform a deed for fraud and to restrain the violation of their 
 easement -of light and air through windows in a party wall, 
 defendant, the grantor, and his grantee of the adjoining proper- 
 ty defending the whole case jointly, and none of the circum- 
 stances indicating that the grantor was interested in defeating 
 complainant's claim, and a large part of the expense was 
 caused by the charge of fraud alleged by complainants, which 
 was not sustained, but complainants were successful in restrain- 
 ing the violation of their alleged easement, it was held that, 
 each party having partially succeeded, no costs would be al- 
 lowed to either. (21) So a refusal by a creditor to surrender 
 on demand two bonds of the debtor, held by him, will not sub- 
 ject him to costs, when on an accounting it is found that the 
 •debtor is entitled to the surrender of one only. (22) 
 
 Where Both Parties are in Fault. Where both parties to 
 an action are at fault, costs' will be refused, and the court 
 will require each party to pay his own costs. (23) So where 
 the bill of complaint was dismissed on the ground that the 
 remedy at law was adequate, costs were denied both parties. 
 (24) So where a bill is dismissed for multifariousness, to 
 which bill defendants had not demurred, but had answered, it 
 was held that each party, being in default, should pay his own 
 costs. (25) So if a demurrable bill is allowed to proceed to 
 a hearing and is dismissed for want of equity, the dismissal 
 will be without costs. (26) And so where complainant and 
 defendant were owners of adjoining tracts of land and both 
 derived title by sundry mesne conveyances from the same 
 grantor, and to complainants' bill to rectify the descrip- 
 tion of his tract in his deed the defendant answered and 
 cross-examined complainant's' witnesses, but offered no evi- 
 dence, and a decree was rendered for complainant, it was held 
 that defendant was not chargeable with costs, although the bill 
 sought to quiet title as well as to reform the deed. (27) 
 
 (21) Lengyel v. Meyer, 62 Atl., 548. 
 
 (22) Chew V. Corkery, 10 Atl., 437. 
 
 (23) Harrison v. Righter, 11 N. J. Eq., 389; Knight v. Hallinger, 
 58 N. J. Eq., 223. 
 
 (24) Morris Canal, &c., Co. v. Fagin, 22 N. J. Eq., 430; Attorney 
 General v. Brown, 24 N. J. Eq., 89. 
 
 (25) Harrison v. Righter, 11 N. J. Eq., 389; Walker v. Walker, 
 36 N. J. Eq., 376. 
 
 (26) Dawes v. Taylor, 35 N. J. Eq., 40. 
 
 (27) Graves v. Wood, 40 N. J. Eq., 65. 
 
Personal Representatives. 755 
 
 Discontinuance of Suit by Complainant. Where a cause 
 is settled by the parties out of court, without any agreement 
 as to the disposition of the suit as to costs, neither party is en- 
 titled to costs as against his adversary ;( 28) but if a complain- 
 ant voluntarily dismisses his bill, or discontinues his suit, the 
 defendant is entitled to costs. (29) 
 
 When a party shall set down a cause for hearing or argu- 
 ment, and give notice thereof and shall not bring on the same 
 agreeably to his notice the opposite party upon the production 
 of the notice shall be entitled to costs to be taxed for attend- 
 ance on the court upon such notice, unless the court shall 
 order ofi the hearing or argument without costs. (29a) 
 
 Abatement by Death of Party. Where a suit abates by 
 the death of a party, no costs will be awarded, except in cases 
 where the costs are payable out of a particular fund, or are 
 connected with a duty towards the party claiming costs. (30) 
 
 Persons Suing in a Representative Capacity. Ordinarily 
 executors are not chargeable with costs'; they are not supposed 
 to know, as complainants, the defects of their own suit. This 
 is the reason of the rule at law. In the Court of Chancery, 
 where costs' are discretionary, they depend more upon the par- 
 ticular circumstances of each case; (31) but as a general rule, 
 when executors come into court to settle the true construc- 
 tion of the will, or for directions as to their duty, they are en- 
 titled to costs out of the estate. (32) So on a question involving 
 the powers of testamentary guardians as' opposed to the rights 
 of the ward's mother, the costs of the proceedings were ordered 
 to be paid out of the ward's estate. (33) So a next friend is 
 entitled to be reimbursed out of the estate of the person in 
 whose behalf he sues, though his suit is unsuccessful, if it 
 appears that he acted in good faith and with reasonable 
 
 (28) Bruce v. Gale, 13 N. J. Eq., 211; Oberon Land Co. v. Dunn, 
 60 N. J. Eq., 281. 
 
 (29)' Fisher v. Quick, 9 N. J. Eq., 312; N. Y. & N. J. Walter Co. 
 V. N. Arlington, 75 Atl., 177 and see "Dismissals," page 340, supra. 
 
 (29a) Chancery Rule 106. 
 
 (30) Benson v. 'Wolverton, 16 N. J. Eq., no; Sears v. Jackson, 
 II N. J. Eq., 45. 
 
 (31) Walton V. Taylor, 78 N. J. Eq., 266. 
 
 (32) Wintermute v. Snyder, 3 N. J. Eq., 489-502; Annin v. Van- 
 doreh, 14 N. J. Eq., 135 ; Feit v. Vanatta, 21 N. J. Eq., 84-87. 
 
 (33) VanHouten's case, 3 N. J. Eq., 220-231. 
 
756 Costs. 
 
 caution and simply with a view to protect a person who was 
 unable to protect himself. (34) 
 
 The costs of a suit brought by executors to determine the 
 ownership of a trust fund remaining in their hands after the 
 death of a legatee for life, and for which several claimants ap- 
 peared must be borne by the fund; (35) and the costs of estab- 
 lishing a lost will and of taking out letters of administration 
 were ordered paid out of the estate, where the burden fell 
 upon the residuary legatee, who destroyed the will. (36) So 
 where an executor files a bill for directions as to his duties 
 under a will, and no factitious or unnecessary opposition,, or 
 costs, are occasioned by any defendant, costs and proper 
 counsel fees for both parties will be allowed out of the 
 estate. (37) 
 
 Where a decedent alter payment neglected to cancel a 
 mortgage, on which his executors brought suit, costs were 
 ordered paid from his estate. (38) Where, however, com- 
 plainants have no estate of the testator in their hands, and the 
 fund in dispute is not under the control of the court, but has 
 been paid over to the legatee to whom it belongs, costs 
 incurred upon a bill filed for the construction of the will can- 
 not be charged upon that fund. (39) On an appeal by execu- 
 tors' from a decree of the Chancellor upon a bill filed for the 
 construction of a will, where a question of doubt was raised 
 by beneficiaries thereunder, the cost should be paid out of the 
 estate. (40) 
 
 The rule exempting persons suing in a representative capacity 
 from liability for costs applies only to suits brought by them 
 in good faith, and wihere the suit is not caused by their default, 
 neglect or misconduct. So where the suit is brought in bad 
 faith by the complainant executor, he will be ordered to pay 
 the costs out of his own estate. (41) So an executor is per- 
 
 (34) Voorhees v. Polhenius, 36 N. J. Eq., 456. 
 
 (35) Halsted v. Meeker, 18 N. J. Eq., 136-141 ; Slack v. Bird, 23 
 N. J. Eq., 238 ; Gulick v. Gulick, 25 N. J. Eq., 324 ; afHrmed, 27 N. J. Eq., 
 498. 
 
 (36) Wyckoff V. Wyckoff, 16 N. J. Eq., 401. 
 
 (37) Jacobus V. Jacobus, 20 N. J. Eq., 49. 
 
 (38) Shepherd v. McClain, 18 N. J. Eq., 128. 
 
 (39) Annin v. Vandoren, 14 N. J. Eq., 135. 
 
 (40) VanHoutfen v. Pennington, 8 N. J. Eq., 745-750. 
 
 (41) Shepherd v. McClain, 18 N. J. Eq., 128. 
 
Liability of Fund.* 757 
 
 sonally chargeable with costs of Htigation instituted against 
 him by a legatee to establish her fund free from the testator's 
 debts, where his resistance is not justified by any ambiguity 
 in the will and he is the only other beneficiary. (42) So where 
 s guardian has failed to account as required by law, and sets 
 up a prior account as a bar to accounting in this court, and a 
 decree for an accounting is made, the complainant will be 
 allowed costs up to the decree. (43) 
 
 Trustees who neglect their duties', and do not invest the 
 fund in their hands according to the terms of the trust will 
 be charged with the costs of a suit brought to establish the 
 amount of such funds; (44) and where interest is given 
 against a trustee as a penalty for a breach of trust, costs fol- 
 low as of course. (45) So executors who instituted proceed- 
 ings to be relieved from the amount charged against them in 
 their final account, and who were refused relief therefrom, were 
 held liable to pay the costs of the suit, though they also asked 
 incidentally for a construction of the will by the same bill. (46) 
 
 Liability of Fund for Payment of Costs. The court has 
 power to charge a fund, the ownership of which is disputed, or 
 which has been realized from or is preserved by litigation, 
 with the costs and expenses of such litigation. So on a bill of 
 interpleader, the complainant is entitled to have his costs paid 
 out of the fund. (47) Where, however, a bill of interpleader 
 was retained, but the court did not require the parties to inter- 
 plead, but decreed upon the pleadings' to whom the fund should 
 be paid, costs from the fund were denied. (48) So a creditor 
 complaining of proceedings before the Master in settlement 
 of receivers' accounts may be allowed his costs to be paid out 
 of the fund, or by the receivers, at the discretion of the 
 court. (49) So costs were refused to both parties where the 
 trespass committed was not irreparable, and the injunction was 
 
 (42) 'Wiggins V. Wiggins, 65 N. J. Eq., 417. 
 
 (43) Burn'ham v. Dalling, 16 N. J. Eq., 310. 
 
 (44) Warbass v. Armstrong, 10 N. J. Eq., 263 ; Lathrop v. Smalley, 
 23 N. J. Eq., 192. ■ 
 
 (45) Prey v. Frey, 17 N. J. Eq., 71. 
 
 (46) Beatty v. Trustees, 39 N. J. Eq., 452 ; Reversed, 41 N. J. Eq., 563. 
 
 (47) Rahway Savings Inst. v. Drake, 25 N. J. Eq., 220. 
 
 (48) Blair v. Porter, 13 N. J. Eq., 267. 
 
 (49) Richards v. Morris Canal, &c., Co., 4 N. J. Eq., 428. 
 
758 Costs. 
 
 on that account dissolved; (50) and where complainant, having 
 been advised to do so by defendant, with the best intentions, 
 conveyed her property to him in trust for herself to protect 
 her estate from an improvident husband, defendant should 
 not be charged with the costs of a suit in which the convey- 
 ance was set aside, but the costs should be paid out of the 
 estate. (51) 
 
 Amount and Items Allowable. A complainant in the 
 Court of Chancery is entitled to have the expense to him of 
 printing testimony taken by defendant taxed in his bill of costs ; 
 (52) but where the volume of evidence taken before a 
 Master is swelled by testimony, taken by the prevailing party, 
 which is unimportant or irrelevant, or taken with needless 
 prolixity, the court in awarding costs in his favor will dis- 
 allow the costs and expenses of printing such testimony. (53) 
 Where several defendants, who could not have been compelled 
 to join in one demurrer, demurred separately, but all appeared 
 by the same solicitor and counsel, it was held that only one 
 bill of costs would be allowed them, but that that might em- 
 brace the costs of dravving, engrossing and filing all the 
 demurrers, and of drawing, taking and filing the affidavits there- 
 to. (54) A map, annexed to a bill or answer, the accuracy of 
 which is verified by affidavit, and which is used on an appli- 
 cation for an injimction, cannot be taxed as an affidavit upon 
 the assumption that it represents as many folios of written 
 matter as a skilled person could have written in the same 
 number of hours as were required for making it. (55) 
 
 Objections to Allowance of Costs. Every party who may 
 be affected by an award of costs in any order or decree where 
 the opinion is' silent on the subject of costs shall be deemed 
 to have waived all objections thereto unless he objects in 
 writing ten days from the fihng of the order or decree ; pro- 
 vided that nothing herein contained shall be held to prevent or 
 
 (so) Cross V. Morristown, 18 N. J. Eq., 305. 
 
 (si) Smith V. Boyd, 61 N. J. Eq., 175; and see "Persons Suing in a 
 Representative Capacity," page 7SS, supra. 
 
 (52) Pearman v. Gould, 8 Atl., 285. 
 
 (53) Ruckman v. Ruckman, 33 N. J. Eq., 3S4; Yard v. Ocean Beach 
 Ass'n., 49 N. J. Eq., 306. 
 
 (54) Terhune v. Midland R. R. Co., 38 N. J. Eq., 423. 
 
 (55) Booraem v. North Hudson County R. R. Co., 44 N. J. Eq., 
 70. 
 
Enforcement of Payment. 759 
 
 preclude an application to the chancellor at any time to change 
 the order or decree as to the award of costs. (553) 
 
 Taxation of Costs. It is established practice in this state, 
 in the settlement of pending suits, for parties to estimate and 
 agree upon the amount of taxable costs, without having a 
 regular taxation by the clerk; and the court should always 
 support such settlements, unless they are affirmatively shown 
 to be unjust, oppressive or illegal, or to have been induced by 
 unfairness. (56) So where complainants' solicitor furnished 
 the amount of their charges to defendant's solicitor upon 
 negotiations to settle the suit, and offer to have their costs 
 taxed by the clerk, and defendant's solicitor did not accept 
 the offer, but agreed that the amount should be paid by his 
 client, the failure to accept the offer was a waiver of the 
 right to have the costs taxed. (57) 
 
 Enforcement of Payment of Costs. The Chancery Act 
 provides that the payment of costs when awarded may be 
 compelled by writ of -fieri facias or capias ad satisfaciendum 
 issuing out of said court, or by subpoena and attachment; (58) 
 but no execution will issue for costs allowed by a decree or 
 order of the court unless specially directed. (59) Where costs 
 are directed to be paid by an interlocutory order which cannot 
 be enforced by execution their payment may be compelled by 
 attachment for contempt ; but where they are awarded as an 
 incident to the final decree in the cause, their payment can 
 only be enforced by those methods which the law designates 
 for the enforcement of the decree itself. (60) 
 
 The court will as a general rule, stay proceedings in a second 
 suit between the same parties for the same cause until the costs 
 of the first suit have been paid. So where a suit has been 
 discontinued by a complainant voluntarily, or through his negli- 
 gence or default, and a new suit is brought for the same cause 
 of action, or where a second suit is' brought to try the same 
 question over again, the court will order the second suit to be 
 
 (SSa) Chancery Rule 103. 
 
 (56) Crane v. Gurnee, 75 N. J. Eq., 104. 
 
 (57) Crane v. Gurnee, 75 N. J. Eq., 104. 
 
 (58) Chancery Act, sec. 84, page 71, supra. 
 
 (59) Chancery Rule 114. 
 
 (60) Aspinwall v. Aspinwall, 53 N. J. Eq., 684. 
 
760 Costs. 
 
 stayed until the costs of the first suit are paid;(6i) but the 
 court will not stay the procee'dings in a second suit until the- 
 costs of a first suit have been paid, unless in the first suit the 
 party was legally liable for the costs. (62) So where a demur- 
 rer is allowed the court will stay proceedings in the suit 
 until the costs on demurrer are paid (63) 
 
 Security for Costs. (64) 
 
 COSTS IN SPECIFIC CASES. 
 
 Costs on Setting Down Cause. The clerk shall not tax 
 costs for setting down any cause, plea, demurrer or other mat- 
 ter for hearing or argument more than twice, unless when set 
 down by a special order of the Court. (65) 
 
 Costs on Default at the Hearing. When a party shall 
 set down a cause for hearing or argument, and give notice 
 thereof, and shall not bring on the same agreeably to his 
 notice, the opposite party, upon the production of the notice, 
 shall be entitled to costs to be taxed for attendance on the Court 
 upon such notice, unless the Court shall order oflf the hearing 
 or argument without costs (66) 
 
 Costs on Postponement of Hearing. When the hearing or 
 argument of a cause shall be ordered off upon the application 
 of a party to whom notice shall have been given, the party 
 setting down the cause shall be entitled to costs for attendance 
 on the Court upon such notice, to be taxed, unless the Court 
 shall order off the hearing or argument without costs. (67) 
 
 Motions — Where Party Fails to Move. If a party gives 
 notice of a motion and does not move accordingly, he shall, 
 upon the filing of the notice, pay to the other side costs to be 
 
 (61) Sears v. Jackson, 11 N. J. Eq., 45; Updike v. Bartles, 13 N. J. 
 Eq., 231. 
 
 (62) Sears v. Jackson, 11 N. J. Eq., 45. 
 
 (63) Updike V. Bartles, 13 N. J. Eq., 231. 
 
 (64) See Chancery Act, sec. 8, page 8, supra. 
 (6s) Chancery Rule 104. 
 
 (66) Chancery Rule 106. 
 
 (67) Chancery Rule 107. 
 
Costs in Specific Cases. 761 
 
 taxed, unless the Court, upon a consideration of the circum- 
 stances of the case, shall direct otherwise. (68) 
 
 Motions— Occasioned by Party's Fault. A party shall 
 not be allowed costs against his adversary for any amend- 
 ment or for any motion occasioned by his own fault, mistake 
 or laches, though he may, by his decree, recover costs of suit 
 and when the Court makes no special order respecting costs a 
 party making a successful motion or successfully opposing a 
 motion, shall have costs against the other party. (69) 
 
 Counsel Fee for Attendance before Master or Examiner. 
 
 A counsel fee of three dollars shall be allowed for attending 
 before a master or examiner making report or taking depo- 
 sitions, but no more, though the solicitor or counsel may have 
 attended more than once, unless where new notice was neces- 
 sary, and shall have been given; and each party shall pay to 
 the examiner the costs of his own examinations and cross 
 examinations. (70) 
 
 Examiners Fees — Division of with Stenographer. Where 
 testimony is taken before an examiner by means of a steno- 
 grapher, the fees taxed to the examiner therefor shall be 
 divided between him and the stenographer as follows: One- 
 third to the examiner and two-thirds to the stenographer ; and 
 where testimony shall have been taken before a Vice Chancel- 
 lor, or an advisory master, by means of a stenographer, no 
 examiner's fees shall be taxed in the bill of costs. (71) 
 
 In Foreclosure Cases — No Costs at Law Taxable. In 
 
 taxing costs in mortgage cases no costs shall be allowed for 
 any proceedings at law upon the bond or mortgage, but the 
 clerk shall tax only such costs as have been incurred in the pro- 
 ceedings in this court. (72) 
 
 Mileage on Service of Subpoena. In taxation of costs for 
 service of subpoena to answer, the clerk shall allow for mile- 
 age only from and to the court house in the county where the 
 service is made. (73) 
 
 (68) Chancery Rule 105. 
 
 (69) Chancery Rule lo8. 
 
 (70) Chancery Rule 109. 
 
 (71) Chancery Rule no. 
 
 (72) Chancery Rule in. 
 iyz) Chancery Rule 112, 
 
762 Costs. 
 
 Fees for Drawing and Acknowledging Deed. For the 
 
 ^drawing and acknowledging lof every deed given by the 
 guardian of an infant, idiot or lunatic, by virtue of an order 
 of the Chancellor, three dollars and fifty cents shall be taxed 
 in the bill of costs. (74) 
 
 Costs in Particular Proceedings. The subject of costs is 
 considered in connection with each separate proceeding. Thus 
 for costs on Foreclosure see Foreclosure Proceedings for costs 
 on Lunacy Proceedings see Lunacy Proceedings and so with 
 the various other proceedings. 
 
 Solicitors Answerable for Fees to Clerk. The solicitor, 
 in every case in this Court, shall be answerable to the officers 
 thereof for all lawful fees which shall become due to them 
 in the conducting of the suit (execution fees excepted), and 
 the clerk of the Court is authorized to receive from the solicitor 
 all such fees as shall become due to the State; and in order 
 to enforce the punctual payment thereof by the solicitors, the 
 clerk shall not enter or suffer to be entered or filed in his 
 office, any rule or rules, paper or papers', until the solicitor 
 moving the same shall have paid up all fees due from him to 
 the State, and also to the clerk himself, on the last day of the 
 term next preceding the term in which the motion for such 
 entry or filing is made. (75) 
 
 (74) Chancery Rule 113. 
 
 (75 ) Chancery Rule 38. 
 
Appeals. 763 
 
 CHAPTER XXXVII. 
 APPEALS. 
 
 Right of Appeal. All persons aggrieved by any order or 
 decree of the Court of Chancery may appeal from the same to 
 the Court of Errors and Appeals. (i) The right of appeal 
 in this state is derived from the statute and confirmed 
 by the Constitution, and is unrestricted by reference to prac- 
 tice or model ; and as the right is given in general terms, it is 
 not to be restricted by the practice of the English courts. (2) 
 
 Persons Entitled to Appeal. As has been seen, the right 
 of appeal is given by statute to persons "aggrieved" by some 
 order or decree of the Court of Chancery ;(3) and where a 
 right of appeal exists only by virtue of an Act, only those 
 embraced within the description in such act of those to whom 
 the right is given, can appeal. (4) So relief by appeal from 
 chancery is only for persons "aggrieved" by the order or 
 decree in question. (5) The statute says that all persons 
 "aggrieved" may appeal; but its language must have a legal 
 construction, and hence the party appealing must in a legal 
 sense be aggrieved. (6) So no appeal will lie from a .decree 
 of the Court of Chancery for the purpose of having a decree 
 affirmed ; the party appealing not being aggrieved, he has no 
 standing to appeal. (7) And an appellant who complains of one 
 portion of a decree in chancery does not thereby acquire the 
 right to ask for the affirmance of other and independent parts 
 of the decree of which no one complains. (8) 
 
 A purchaser at an official sale becomes invested with a fixed 
 and definite legal right which is recognized and enforced by 
 
 (1) Chancery Act, sec. iii, page 86, supra. 
 
 (2) P. R. R. Co. V. National Docks, &c., Co., 54 N. J. Eq., 647- 
 653-654- 
 
 (3) Chancery Act, sec. in, page 86, supra. 
 
 (4) Mclntyre v. Easton & Amboy R. R. Co., 26 N. J. Eq., 425. 
 
 (5) Conover v. Walling, 15 N. J. Eq., 167; National Bank v. 
 Sprague, 21 N. J. Eq., 458; Andrews v. Stelle, 22 N. J. Eq., 478; 
 Blake v. Domestic Mfg. Co., 64 N. J. Eq., 480; Beckhard v. Rudolph, 
 68 N. J. Eq., 749; Ewald v. Ortynsky, 76 N. J. Eq., 291 . 
 
 (6) Attorney General v. Paterson, 9 N. J. Eq., 624 and see "Decrees 
 from which appeal will lie," page 764, infra. 
 
 (7) Green v. Blackwell, 32 N. J. Eq., 768. 
 
 (8) Green v. Blackwell, 32 N. J. Eq., 768. 
 
764 Appeals'. 
 
 law, and of which he cannot be deprived except upon some 
 legal or equitable ground. Therefore, if such right be caprici- 
 ously abrogated, or its enforcement refused without just cause, 
 he is in legal contemplation injured, and is a person aggrieved ; 
 and as such he may have his appeal. (9) So where a fore- 
 closure sale is unfair and illegal, and the property if fairly 
 sold would have brought enough to pay a lien creditor, he is 
 aggrieved by an order refusing to set aside the sale and is the 
 proper party to appeal; (10) and so an executor or trustee 
 representing the interests' of persons who are otherwise un- 
 represented in the cause is entitled to appeal from a decree 
 which injuriously affects those interests. ( 1 1 ) 
 
 One of several persons against whom a joint decree is 
 rendered may appeal and carry up the whole case for review, 
 although the right of appeal may have been lost by the other 
 parties; (12) but a complainant appealing from a decree in 
 chancery is not aggrieved by a failure or refusal to grant relief 
 upon matters disclosed in evidence that are not within the 
 scope of the bill. (13) In a court of equity, a decree may be 
 made determining the rights' of co-defendants in a contro- 
 versy between themselves in which the complainant has no 
 interest ; and it seems the party aggrieved may appeal from 
 such decree. (14) 
 
 One not a party or privy to the record cannot appeal, for 
 he is not a person aggrieved by such order within the meaning 
 of the constitutional or statutory provision for appeal; (15) 
 but if a decree be entered against a person who is not a party, 
 he has a right to have it reversed as to him on appeal. (16) 
 
 Decrees from which an Appeal will Lie. It is not prac- 
 ticable to fix any test which will be applicable in every case, 
 so as to separate into classes those orders which are appeal- 
 able and those which are not. There are many cases which are 
 
 (9) Chamberlain v. Larned, 32 N. J. Eq., 295; Mutual Life Ins. 
 Co. V. Sturges, 33 N. J. Eq., 328. 
 
 (10) National Bank of Metropolis v. Sprague, 21 N. J. Eq., 458; 
 Woodward v. Bullock, 27 N. J. Eq., 507. 
 
 (H) Green v. Blackwell, 32 N. J. Eq., 768. 
 
 (12) Peer y. Cookerow, 14 N. J. Eq., 361. 
 
 (13) Polhemus v. Holland Trust Co., 61 N. J. Eq., 654. 
 
 (14) Vanderveer v. Holcomb, 17 N. J. Eq., 547. 
 (is) Raleigh v. Rogers, 25 N. J. Eq., 506. 
 
 (16) Adams v. Adams, 50 N. J. Eq., 751. 
 
Appealable Decrees. 765 
 
 obviously appealable; there are some as obviously not appeal- 
 able ; and there is an intermediate class which cannot be re- ' 
 duced to any fixed rule. When this latter class has to be 
 dealt with, it would seem that the court is called upon to exer- 
 cise a special judgment in each case in view of its peculiar 
 circumstances, and also having regard to the general propo- 
 sition that an order to be appealable must go to some extent 
 to the merits of the controversy, or substantially affect the 
 legal or equitable rights of the party appealing. (17) 
 
 It is a general rule that an order to be appealable must go 
 to some extent to the merits of the controversy, or substan- 
 tially affect the legal or equitable rights of the party appeal- 
 ing, (18) hence an order which determines the whole con- 
 troversy between the parties, without reserving anything for 
 further consideration, is a final order and appealable. ( 19) 
 Upon the same principle, an order made by th^ chancellor under 
 the "Act empowering executors and trustees' holding land and 
 real estate in trust to -improve the same and erect buildings 
 thereon" (19a) is appealable 5(20) and so an appeal will lie 
 from a decree of the Court of Chancery which settles perma- 
 nently the right to the custody of infants, although the pro- 
 ceedings' in the case were commenced by habeas corpus. (21) 
 
 Upon the same principle, an order denying an application to 
 open a decree and for leave to answer and present the merits 
 of a defense, on the ground that the solicitor who appeared 
 for the defendant was not authorized to appear for him and 
 that the case was heard upon a stipulation, given by such 
 solicitor without the defendant's' knowledge or consent, admit- 
 ting the allegations of the bill, is an appealable order. (22) 
 So an appeal will lie from an order of the Court of Chancery 
 appointing a receiver ; (23) from an order of the Chancellor, 
 
 (17) Camden & Amboy R. R. Co. v. Stewart, 21 N. J. Eq., 484; 
 Newark & New York R. R. Co. v. Mayor, 23 N. J. Eq., 515; Stevens 
 V. Stevens, 24 N. J. Eq., 574. 
 
 (18) C. & A. R. R. Co. V Stewart, 21 N. J. Eq., 484-488; Mutual 
 Life Ins. Co. v. Sturges, 33 N. J. Eq., 328; Philadelphia & Reading 
 R. R. Co. V. Little, 41 N. J. Eq., 519; Read v. Huff, 40 N. J. Eq., 229. 
 
 (19) Ellison v. Gray, 55 N. J. Eq., 581. 
 
 (19a) P. L. 1897, p. 190; 2 Comp. Stat., p. 2269, sec. 31. 
 
 (20) In re Miller, 62 N. J. Eq., 764. 
 
 (21) Baird v. Baird, 19 N. J. Eq., 481. 
 
 (22) Read v. Patterson, 44 N. J. Eq., 211. 
 
 (23) 'Weissenborn v. Siegh&rtner, 21 N. J. Eq., 483. 
 
766 Appeals. 
 
 on appeal from the determination of the receiver of an insol- 
 " vent corporation; (24) from an order setting aside a deed of 
 property purchased at a foreclosure sale; (25) and -from an 
 order sustaining exceptions to a bill for impertinence. (26) 
 And where an order directed a purchaser of lands at an admin- 
 istrator's sale to complete the purchase, and also directed the 
 issue of an attachment for contempt on failure to complete the 
 purchase within a given time, the first portion of the order, 
 being appealable, entitled the purchaser to appeal, irrespective 
 of the appealability of the second portion of the order. (27) 
 And so where the complainant is entitled to an equitable answer, 
 he may appeal if a defendant, answering by favor of the court, 
 is permitted to set up usury without offering to pay the sum 
 actually due. (28) 
 
 The general rule is' well settled that all orders granting, 
 refusing, sustaining, or dissolving injunctions are appealable, 
 except in those few exceptional cases where an order is' so 
 temporary in its operation or so slightly affects the interest 
 of the party on whom it operates, that such party cannot be 
 said to be aggrieved thereby. This class of excepted cases 
 belongs to the category-of interlocutory orders in the cause, or 
 orders resting in the discretion of the Chancellor. (29) So 
 an appeal will lie from an order for a preliminary injunction ; 
 and in such cases the case, on the appeal, must be heard on 
 the same facts that were before the Court of Chancery ;(3o) 
 and the right of appeal from the denial of a preliminary in- 
 junction is not taken away by the fact that the act sought 
 to be enjoined may possibly have been already accomplished 
 aftd in some respects therefore an order of reversal might be 
 inefficacious, but the court may on such an appeal hear and 
 
 (24) Ellison V. Gray, 55 N. J. Eq., 581. 
 
 (25) Chamberlain v. Larned, 32 N. J. Eq., 295. 
 
 (26) Camden & Amboy R. R. Co. v. Stewart, 21 N. J. Eq., 484. 
 
 (27) Podesta v. Moody, 69 N. J. Eq., 468. 
 
 (28) Vanderveer v. Holcomb, 22 N. J. Eq., 555. 
 
 (29) Chegary v. Schofield, s N. J. Eq., 525 ; Doughty v. Somerville 
 & Easton R. R. Co., 7 N. J. Eq., 629; Atty. Gen. v. Paterson, 9 N. J. 
 Eq., 624; Morgan v. Rose, 22 N. J. Eq., 583; Black v. Delaware & 
 Raritan Canal Co., 24 N. J. Eq., 4SS ; and see "Suits for Injunctions," 
 page — . supra. 
 
 (30) N. J. Franklinite Co. v. Ames, 12 N. J. Eq., 507; Morgan v. 
 Rose, 22 N. J. Eq., 583 ; Black v. Delaware & Raritan Canal Co., 24 
 N. J. Eq., 4SS; Terhune v. Midland R. R. Co., 36 N. J. Eq., 318. 
 
Appealable Decrees. 767 
 
 adjudge the right upon which a preHminary injunction should 
 have been granted. (31) But an appeal from an interlocutory 
 order granting an injunction restraining directors of a cor- 
 poration from hindering a new election was dismissed where 
 the appeal was taken after the day for the election had passed, 
 and the appellants had adequate relief by summary proceedings 
 injhe Supreme Court to set aside the election if illegal. (32) 
 
 Interlocutory Orders and Decrees. All the ordinary 
 orders made in the progress of the suit for the purpose of 
 putting the case fairly at issue, obtaining the requisite evidence 
 and affording the parties a hearing, are clearly not appeal- 
 able. (33) So an order of reference to a Vice Chancellor is 
 a mere interlocutory order in the suit, and as such is' not the 
 subject of appeal. (34) So an appeal will not lie from an order 
 refusing to dismiss the complainant's bill on the ground that 
 the replication was not filed within the time prescribed by 
 law; (35) nor from an order directing process to bring in the 
 party to answer for an alleged contempt, this being a mere 
 order in the progress of the suit not affecting the merits of 
 the cause, whereby the party appealing is not aggrieved. (36) 
 So an order staying proceedings under the original bill until 
 a cross bill has been answered is not appealable 1(37) and 
 the fact that such an order is in the form of an injunction, 
 and that that writ is prayed for in the cross bill, does not affect 
 the rule. (38) 
 
 No appeal lies from an order of the Chancellor author- 
 izing a receiver to permit defendant to collect rents, which 
 were a part of the subject matter of the suit, instead of col- 
 lecting them himself, until the further order of the court, 
 upon his giving sufficient bond. Such an order does not affect 
 the rights or interests of the parties; it leaves the subject mat- 
 ter of the controversy precisely where it 'Stood before, and is 
 simply an order regulating the conduct of an officer of the 
 
 (31) Terhune v. Midland R. R. Co., 36 N. J. Eq, 318 
 
 (32) Camden & Atlantic R. R. Co. v. Elkins, 37 N. J. Eq., 273. 
 
 (33) Stevens v. Stevens, 24 N. J. Eq., 574; Read v. Huff, 40 N. J. 
 Eq., 229. 
 
 (34) Schnitzius v. Bailey, 18 Atl., 192. 
 
 (35) Read v. Huff, 40 N. J. Eq., 229. 
 
 (36) Coryell v. Holcombe, 9 N. J. Eq., 650. 
 
 (37) Stevens v. Stevens, 24 N. J. En., 574. 
 
 (38) Stevens v. Sttevens, 24 N. J. Eq., 574. 
 
768 Appeals. 
 
 court. (39) But an interlocutory order forbidding payment 
 or transfer by or to a judgment creditor, in a proceeding in 
 aid of an unsatisfied judgment, is appealable. (40) 
 
 Appeal from Orders in Contempt Proceedings. (40a) 
 Appeal from Decree where Issue at Law has been 
 Awarded. (40b) 
 
 Appeal from Order on Application to Open Decree. (40c) 
 Orders Resting in Discretion. It is settled that an appeal 
 will not lie from an order resting in the discretion of the 
 Chancellor, or upon a mere matter of practice; (41) and so 
 an appeal will not lie from an order of the Chancellor refusing 
 to order a special guardian appointed by him to pay over the 
 moneys derived from a sale of the minor's lands to the general 
 guardian, the power of the Chancellor in that respect being 
 purely discretionary. (42) What is matter of discretion may 
 in some cases be doubtful. In People v. Superior Court of 
 New York, {43) this discretion is defined to be "that which is 
 not and cannot be governed by any fixed principles or rules." 
 And in Rogers v. Hosacks, executors, (44) Justice Cowan says, 
 "that to warrant an appeal some definite rule of law or equity 
 must appear to have been violated." This statement of the 
 rule is cited with approbation in the opinion delivered in the 
 case of Garr v. HUl.(4^) Where, however, the discretion of 
 the Chancellor is controlled or fixed by a determined rule, the 
 failure to apply which would substantially affect the legal and 
 equitable rights of the complainant, an appeal will He. (46) 
 
 (39) Garr v. Hill, 5 N. J. Eq., 639 
 
 (40) Barr v. Voorhees, 55 N. J. Eq., 561. 
 (40a) See "Contempts," page 470, supra. 
 
 (40b) See "Submission of Issues to Jury,'' page 371, supra. 
 
 (40c) See "Proceedings to Open or Vacate Decrees," p. 451, supra. 
 
 (41) Atty. Gen. v. City of Paterson, 9 N. J. Eq., 624; in re Ander- 
 son, 17 N. J. Eq., 536; National Bank v. Sprague, 21 N. J. Eq., 458; 
 Camden & Amboy R. R. Co. v. Stewart, 21 N. J. Eq., 484; Cronkright 
 V Haulenbeck, 35 N. J. Eq., 279 ; Browning & Bros. Case, 68 N. J. Eq., 
 
 751 
 
 (42) In re Anderson, 17 N. J. Eq., 536. 
 
 (43) S Wend., 125- 
 
 (44) 18 Wend., 319. 
 
 (45) 5 N. J. Eq., 639-641 ; see also Camden & Amboy R. R. Co. 
 V. Stewart, 21 N. J. Eq., 484; in re Miller, 62 N. J. Eq., 764. 
 
 (46) Camden & Amboy R. R. Co. v. Stewart, 21 N. J. Eq, 485; 
 Vanderveer v Holcotab, 22 Ni J. Eq., 555. 
 
Waiver of Right of Appeal. 769 
 
 But an order refusing to set aside a sale, upon an application 
 based on the illegality of the sale, is not a discretionary order, 
 and is appealable. (47) 
 
 Waiver of Right of Appeal. Neither by any ancient prac- 
 tice inherited from the mother country, nor in accordance 
 with our Constitution and statutes, can a defendant appeal 
 from a decree in- chancery made upon a bill which has been 
 regularly taken as confessed against him for want of a plea, 
 demurrer or answer. Such a decree is not merely what the 
 complainant chooses to make it and thinks he can abide by, 
 but is what the court thinks equitable and just, taking the 
 statements of a bill as admitted to be true. (48) 
 
 If a party to a suit acquiesces in an order or decree against 
 him, he thereby waives his right to have such order or de- 
 cree reviewed by an appellate court. So a party cannot appeal 
 from an order procured by himself ; (49) and so a defendant 
 who has demurred to a bill in chancery upon grounds going 
 to the whole of the complainant's bill, and whose demurrer 
 has been sustained on some of the grounds' specified, cannot 
 appeal from a subsequent order, obtained on his own motion, 
 which assumes to sustain the demurrer on those grounds and 
 to overrule it on other grounds. (50) But where the subject 
 matter is not within the jurisdiction of the court, the appearance 
 and submission of parties' will not prevent their afterwards 
 questioning the jurisdiction on appeal. (51) 
 
 If due notice of the final hearing of a cause in the Court of 
 Chancery is given, and the cause is accordingly heard, but one 
 of the parties does not appear and is not represented at the 
 hearing, and the decree is made in his absence, he cannot appeal 
 from such decree ;(52) and so if a defendant does not ap- 
 pear before the court on the day when the cause has been 
 regiilarly noticed for argument, he cannot appeal from the 
 decree thus rendered in his absence. (53) 
 
 (47) National Bank v. Sprague, 21 N. J. Eq., 458; Woodward 
 V. Bullock, 27 N. J. Eq., 507. 
 
 (48) N. J. Building Loan & Investment Co. v. Lord, 66 N. J. Eq., 
 344; Pemberton's Case, 40 N. J. Eq., 520; afHrmed, 41 N. J. Eq., 349. 
 
 (49) Ewald V. Ortynsky, 76 N. J. Eq., 291. 
 (so) Ewald V. Ortynsky, 76 N. I. Eq., 291. 
 (si) Dodd V. Una, 40 N. J. Eq., 672. 
 
 (52) Barber v. West Jersey Title, &c., Co., 52 N. J. Eq., 287. 
 
 (53) Townsend v. Smith, 12 N. J. Eq., 350. 
 
770 Appeals. 
 
 Where a decree in equity by default is entered against a 
 defendant whose absence is accidental, his remedy is by peti- 
 tion for a re-hearing, not by an appeal. (54) Upon the same 
 principle, when a case has been heard by a Vice Chancellor 
 without objection, and the Chancellor has adopted his advice 
 and signed a decree, it is too late to raise on appeal the ques- 
 tion as to the Vice Chancellor's right to hear the cause. (55) 
 
 It is a settled rule that where a party recovers a judgment or 
 decree, and accepts the benefits thereof voluntarily and know- 
 ing the facts, he is estopped to appeal from such judgment or 
 decree. (56) So where one has applied for and secured an 
 order from the Court of Chancery purging him of contempt, 
 and discharging him from such judgment, said order being 
 made upon certain conditions to be performed by the party 
 discharged, such party cannot, after accepting the benefit of the 
 order, attack by appeal one or more of the conditions imposed. 
 (57) 
 
 The mere fact that the decree sought to be appealed from 
 has been executed does not deprive the party of his right of 
 appeal ; the execution of the decree, either before or after the 
 appeal, in nowise interferes with the right of appeal, or with 
 the proceedings upon it. (58) But where an order of the 
 Court of Chancery has been executed .and its object attained, 
 and there is' nothing upon which a judgment of reversal could 
 operate, the appeal will be dismissed. (59) 
 
 PRACTICE ON APPEAL, 
 
 Notice of Appeal. Notice of appeal must be filed in the 
 Court of Chancery, which notice shall state shortly the parts 
 of the order or decree complained of as erroneous and shall 
 be signed by counsel, who shall state that he conceives there 
 is good cause for the appeal ; and a copy thereof shall be served 
 
 (54) Townsend v. Smith, 12 N. J. Eq., 350. 
 
 (55) Delaware Bay R. R. Co. v. Markley, 45 N. J. Eq., 139. 
 
 (56) Coryell v. Holcombe, 9 N. J. Eq., 650; Knause v. Jones, 
 32 N. J. Eq., 323; Krauss v. Krauss, 74 N. J. Eq., 417. 
 
 (57) Krauss v. Krauss, 74 N. J. Eq., 417. 
 
 (58) Peer v. Cookerow, 14 N. J. Eq., 361. 
 
 (59) Coryell v. Holcombe, 9 N. J. Eq., 650. 
 
Petition of Appeal. 771 
 
 on the solicitor of the adverse party, if he has prosecuted or 
 defended by a sohcitor.(6o) It is the notice of appeal filed 
 in the Court of Chancery which confers upon the Court of 
 Appeals cognizance of the case. The petition of appeal sub- 
 sequently filed in the Court of Appeals is in the nature of a 
 pleading tending to form an issue. (6i) 
 
 Petition of Appeal and Deposit. The party appealing 
 from a final decree must present his petition of appeal to the 
 Court of Appeals at the time fixed by the rules of said court; 
 and in default of so doing, such appeal shall be deemed to 
 have been waived, and the cause may proceed as if no appeal 
 had been filed. (62) 
 
 The rules of the Court of Errors and Appeals provide 
 that in all cases of appeal from any order or decree of the 
 Court of Chancery, the party appealing shall, within twenty 
 days after filing the notice of appeal in chancery, either in 
 term or vacation, file with the clerk of this court a petition 
 of appeal, in which shall be briefly stated the order or decree 
 complained of and the grounds of appeal, and shall within five 
 days after filing the same, serve a copy thereof on the solicitor 
 of the adverse party, if he nas a solicitor, or if he has not, 
 then on the adverse party, if to be found in this state, and 
 shall also, within thirty days after filing said petition, deposit 
 with the clerk in chancery one hundred dollars to answer 
 the costs of the appeal, if the appellant shall not prosecute the 
 same to efifect ; and in default of serving a copy of the petition, 
 and making such deposit as aforesaid, proceedings may be had 
 on the order or decree appealed from, as if such appeal had 
 not been made; and the said appeal may be dismissed by this 
 court, with costs. (63) 
 
 The purpose of this provision is obviously to require a notice 
 to the opfHjsite party of the points in the proceeding which 
 are to be made the subject of complaint in the appellate court, 
 and objections to the decree appealed from should be particu- 
 larly assigned. (64) So the petition of appeal must contain 
 
 (60) Chancery Rule 151. 
 
 (61) Barton v. Long, 45 N. J. Eq., 160; D., L. & W. R. R. Co. v. 
 Breckenridge, SS N. J. Eq., iS9-i6S- 
 
 (62) Chancery Rule 152. 
 
 (63) Rule 21 of Court of Errors and Appeals ; and see "Dismissal 
 or Abandonment of Appeals," page 782, infra,. 
 
 (64) Butterfield v. Third Avenue Savings Bank, 25 N. J. Eq., 533. 
 
772 Appeals. 
 
 all the grounds' intended to be urged by appellant as reasons 
 for reversing the decree of the Court of Chancery, as neither 
 in accordance with Rule 21 of the Court of Errors and 
 Appeals nor in accordance with plain practice or justice can 
 an appellant be permitted to assail a decree in chancery upon 
 grounds of appeal which are nowhere stated in his petition of 
 appeal 1(65) and so where on a bill filed for the construction of 
 a will, the decree omits toi adjudge all the matters considered,, 
 and on appeal no complaint is set out in the petition of appeal 
 that the appellant is aggrieved by such ommission, the appellate 
 court will only review so much of the decree or questions raised 
 by the pleadings, which the decree ignores, as the petition of 
 appeal sets forth as the ground upon which the appeal is raised 
 (65a) but when, on appeal respecting an account, a charge, 
 complained of by the appellant is struck out, credits which are 
 so connected with the .charge as to require adjustment with it 
 must likewise be considered, although they are not made the 
 subject of direct appeal. (66) 
 
 Clerk in Chancery to Prepare Copy of Papers. Whenever 
 a deposit shall be made as aforesaid with the Clerk in Chancery, 
 he shall, if required, with all convenient speed cause copies 
 of the several orders and the decree in the cause to be made 
 at the expense of the appellant (who shall be liable for the same 
 in the first instance) and deliver the same, with all the plead- 
 ings, depositions, exhibits and papers which may have been 
 filed in his office relating to the cause, to the clerk of this 
 court ; and the said deposit shall be subject, prior to any other 
 lien, to the fees of the Clerk in Chancery for the said 
 copies. (67) 
 
 Answer to Petition of Appeal. The respondent is required 
 to file an answer to the petition of appeal within thirty 'days 
 after service of a copy of the said petition, and making the 
 deposit aforesaid; and in default thereof, the appellant may 
 enter a rule as of course, in vacation or term-time, with the 
 clerk of the court of errors and appeals, for the hearing of 
 
 (6s) Penn Ins. Co. v. Semple, 38 N. J. Eq., 573 ; Boice v. Conover, 
 63 N. J. Eq., 273; N. J. Building Loan & Investment Co. v. Lord, 
 66 N. J. Eq., 344- 
 
 (6sa) Lembeck v. Lembeck, 74 N. J. Eq., 848. 
 
 (66) Laurel Springs Land Co. v. Fougeray, 57 N. J. Eq., 318. 
 
 (67) Rule 22 of Court of Errors and Appeals. 
 
Answer to Petition of Appeal. 773 
 
 said appeal, and may bring on the same, by giving and filing 
 notice thereof, in accordance with these rules. (68) 
 
 Papers, Etc., on Appeal to be Delivered to Clerk of Court. 
 In cases of appeal from a decree or order of the Court of 
 Chancery, it shall be, the duty of the clerk of the Court of 
 Chancery to deliver to the clerk of the court of errors and 
 appeals all the pleadings, depositions, exhibits and papers which 
 may have been filed in his office relating to the cause in which 
 the appeal hath been taken, and also the several orders and 
 decree made in said cause^ instead of a transcript of the pro- 
 ceedings, giving the said clerk of the Court of Chancery a 
 receipt for the same; which papers shall be filed by the clerk 
 of the court of errors and appeals for the purpose of being 
 used at the hearing of such appeal. (69) 
 
 Appellant to Prepare State of Case. The appellant or 
 plaintiff in error shall provide a state of case, which shall con- 
 tain, in appeals, the pleadings, proofs and order or decree in 
 chancery, with the petition of appeal and answer thereto, the 
 reasons given in the court below for the decree, order or judg- 
 ment complained of, and of any documents proper to be con- 
 sidered in the appellate court. By agreement of parties, an 
 abridgement of the foregoing may be printed in lieu therteof. 
 The state of case shall be printed on good white paper, on pages 
 seven by eleven inches in size, with a large margin, numbered 
 consecutively, and having every tenth line on each page num- 
 bered. The date of filing each paper shall be stated at the 
 head of the printed copy. At the top of each page of the state 
 of case shall be stated the subject matter of that page, as "bill 
 of complaint" ; "declaration" ; "answer" ; "plea" ; "charge to 
 jury"; "judgment"; "exhibits"; or the like; and with respect 
 to evidence, the name of the witness, and whether the exami- 
 nation is direct, cross or re-direct. An index of contents shall 
 preface the state of case, referring to the initial page of the 
 direct, cross and re-examination of each witness, and of each 
 pleading, exhibit, or other paper printed. (70) 
 Where the printed book does not show whether the vice 
 chancellor before whom the case was hear4 below advised a 
 decree, or what decree he advised, nor whether any decree was 
 
 (68) Rule 23 of Court of Errors and Appeals. 
 
 (69) P. L. 1900, p. 345 ; 2 Comp. Stat., p. 1710, sec. 16 . 
 
 (70) Rule ig of Court of Errors and Appeals. 
 
77J: Appeals. 
 
 signed, and no stipulation is shown providing that the decree 
 under review shall be omitted, the appeal will be dismissed 
 although the book contains a draft of the decree which lacks 
 signature and date (70a) 
 
 It is the absolute right of the appellant to prepare the state 
 of the case, or at his option to abandon the further prosecution 
 of his appeal. He cannot be deprived of that right; (71) and 
 the record of the court below is conclusive evidence of all 
 matters that are properly included in it. (72) 
 
 Form of Record. In the entitling of causes in the court 
 of errors and appeals the title by which the cause was styled 
 in the court below shall be retained, the character in which the 
 parties appear in the writ of error or appeal being described 
 after their names. The name of the State shall not be made 
 a part of the title to any cause merely because of the nature of 
 the writ by which the cause was brought into the court 
 below. (73) 
 
 On appeal from chancery, it is' not necessary to print the 
 pleadings and evidence in full. The formal parts of the bill 
 may be always advantageously omitted, and the pleadings 
 in niost cases materially abridged. (74) While the court con- 
 demns the practice of marking a case by italics whether a state 
 of the case shall be rejected upon this ground rests in the 
 sound discretion of the court. (75) 
 
 Where a case has been argued in the Court of Appeals and 
 the reasons why the decree is made have been submitted in 
 the form of an opinion of the lower court, and a re-argument 
 of the whole case or any part thereof is afterwards ordered 
 by the Court of Appeals', a supplemental opinion of the court 
 below, formulated after the re-argument has been ordered, 
 and containing additional reasons for making such decree, con- 
 stitutes no part of the case, unless sent up pursuant to the 
 request of the Court of Appeals. (76) 
 
 (70a) Ludy V. Larson, 73 Atl., 516. 
 
 (71) Cooper V. Cooper, 9 N. J. Eq., 655. 
 
 {72) Morton v. Beach, 56 N. J. Eq., 791. 
 
 (73) Rule 18 of Court of Errors and Appeals. 
 
 (74) Cooper V. Cooper, 9 N. J. Eq., 655. 
 
 (75) Cooper V. Cooper, 9 N. J. Eq., 655. 
 
 (76) Varrick v. Hitt, 65 N. J. Eq., 778. 
 
Bringing on Argument. 775 
 
 Service &c. of State of Case. Three copies of the state 
 of case shall be furnished to each adverse party at least 
 twenty days before the time noticed for argument, and unless 
 the adverse party give notice within ten days after service 
 of his objections thereto, it shall be deemed complete. When 
 the cause is moved, eighteen copies of the state of the case 
 shall be delivered to the clerk of the court; one copy he shall 
 file in his office, one other copy he shall deliver to the law or 
 equity reporter, and the remaining copies he shall distribute 
 among the judges of the court. (77) 
 
 Service of "Points." At least fifteen days before a cause 
 is moved, the attorney, or solicitor, of the moving party shall 
 serve upon the attorney or solicitor of the adverse party three 
 copies of the points on which he means to rely, with a citation 
 of the authorities to be used in the argument, which copies, 
 shall be printed as prescribed for the state of the case. Within 
 ten days thereafter the attorney or solicitor of the adverse 
 party shall serve upon the attorney or solicitor of the moving 
 party three copies of his points in reply, in like form as is 
 required of the moving party's points. When the cause is 
 moved, eighteen copies of each of said points shall be furnished 
 to the clerk. Causes may be submitted on such points and 
 citation of authorities, without oral argument, in the manner 
 prescribed by Rule 35.(78) 
 
 Form of Briefs. Tbe brief of the plaintiff in error, or 
 appellant, shall contain in the order here stated : 
 
 (i) A concise abstract, or statement of the case, present- 
 ing succinctly the questions involved, in the manner in which 
 they are raised. 
 
 (2) A specification of the errors in criminal cases, and of 
 the grounds of appeals in civil cases relied upon, which in cases 
 at law, shall set out separately and particularly each ground 
 of appeal asserted and intended to be urged ; and in equity the 
 specification shall state, particularly as may be, in what the de- 
 cree is alleged to be erroneous. When the error alleged is to 
 the admission or to the rejection of evidence, the specification 
 shall quote the substance of the evidence admitted or rejected. 
 When the error alleged is to the charge of the court, the specifi- 
 cation shall set out the part referred to totidem verbis, whether 
 
 (77} Rule 19a of Court of Errors and Appeals. 
 (78) Rule 20 of Court of Errors and Appeals. 
 
776 Appeals. 
 
 it be in instructions given or instructions refused. When the 
 error alleged is to the ruling upon the report of a master, the 
 specification shall state the exception to the report and the 
 action of the court upon it. In all cases there shall be a refer- 
 ence to the page of the record where each error may be found. 
 
 (3) A brief of the argument, exhibiting a clear statement 
 of the points of law or fact to be discussed, with a reference 
 to the pages of the record (were found) and the authorities 
 relied upon in support of each point. 
 
 When a statute is cited, so much thereof as may be deemed 
 necessary to the decision of the case shall be printed at length. 
 
 The brief for a defendant in error or respondent shall be 
 of a like character with that required of the plaintiff in error 
 or appellant, except that no specification of grounds of apf)eal 
 'shall be required, and no statement of the case, unless that pre- 
 sented by the plaintiff in error or appellant is contro- 
 verted. (78a) 
 
 Time for Taking and Perfecting Appeal. The Chancery 
 Act provides that all persons' aggrieved by an order or decree 
 of the Court of Chancery may appeal from the same, or any 
 part thereof, and that all appeals except from final decrees 
 shall be made within forty days after filing the order or decree 
 appealed from. All appeals from final decrees shall be made 
 within one year from the making of such decree, unless a 
 notice of Us pendens has been filed or on bills to quiet title, 
 in which case such appeals shall be made within three months 
 after filing the decree appealed from. If any person entitled 
 to such appeal from any final decree shall be an infant, feme 
 covert, or insane, he has one year to bring such an appeal after 
 such disability shall be removed, except where a notice of Us 
 pendens has been filed, or the bill is filed to quiet title to lands, 
 in which case the appeal must be taken within three months 
 after such disability is removed. (79) 
 
 Operation of Appeal. As a general rule, an appeal from 
 a decree of the Court of Chancery, either interlocutory or 
 final, does not stay proceedings in the court below or prevent 
 the issuing of process, without a special order for that pur- 
 
 (78a) Additional rule of the Court of Errors and Appeals promul- 
 gated June term, 1912. 
 
 (79) See Chancery Act, sec. Ill, as Amended by P. L., 1907, p. 
 4S2, page 86, supra; see also "Lis Pendens," page 334, supra. 
 
Operation of Appeal. 777 
 
 pose. (80) So an appeal from a decree directing an accounting 
 will not stay the accounting. (81) 
 
 The chancery rules provide that an appeal from an inter- 
 locutory decree or order shall not stay proceedings in the 
 cause, without an order of this court or of the Court of Appeals 
 for that purpose first had, which order shall be granted upon 
 such terms as the court making it may impose. (82) So after 
 an appeal from an interlocutory order, the Chancellor may 
 proceed to final hearing according to the rules of his court; 
 but the party taking such final decree will run the risk of its 
 being set aside if the interlocutory order should be reversed by 
 the higher court, (83) and the court as a general rule will not 
 stay the execution of an interlocutory decree pending an appeal, 
 unless its execution will render it impossible to set the appellant 
 right again in case he is successful on the appeal. (84) 
 
 Where in a suit to set aside as fraudulent certain conveyances 
 of land by a creditor a conveyance to a son was declared void, 
 as was also a mortgage to another, and the lands were ordered 
 sold, but the validity of a conveyance to the wife was reserved 
 for further consideration, it was held that an appeal by the 
 son left the lower court undisturbed to deal with the convey- 
 ance to the wife and with the proceeds of the sale of the mort- 
 gaged. premises. (85) But the Court of Chancery after entering 
 a final decree of distribution in a suit construing a will, and 
 determining the rights of beneficiaries thereunder, has no 
 jurisdiction pending an appeal from a part of the decree to 
 permit on a petition of appellants the enforcement of the re- 
 remainder of the decree, but an application therefor should 
 be made to the Court of Errors and Appeals, which has juris- 
 diction of the subject matter of the suit. (86) 
 
 If the party appealing from a final decree shall, within ten 
 days after the filing of such final decree, file his appeal with 
 
 (80) Chegary v. Scofield, 5 N. J. Eq., 525 ; Schenck v. Conover, 
 13 N. J. Eq., 31 ; Peer v. Cookerow, 14 N. j. Eq., 361-365 ; Laird 
 V. Atlantic Coast Sanitary Co., 73 N. J. Eq., 5. 
 
 (81) Ratzer v. Ratzer, 29 N. J. Eq., 162; Morton v. Beach, 56 N. J. 
 Eq., 791. 
 
 (82) Chancery Rule 149. 
 
 (83) Barton v. Long, 45 N. J. Eq., l6p. 
 
 (84) Ratzer v. Ratzer, 29 N. J. Eq., 162. 
 
 (8s) Perrine v. Perrine, 63 N. J. Eq., 483; affirmed, 65 N. J. Eq., 
 719. 
 
 (86) VanHouten v. Hall, 66 Atl. Rep., 1085. 
 
778 Appeals. 
 
 the clerk of the Court of Chancery, process shall not issue 
 on said decree without the order of that court, or of the Court 
 of Appeals. (87) The 112th section of the Chancery Act pro- 
 vides that no appeal from an order granting an injunction 
 shall suspend or modify the operation of the injunction without 
 an order of the Chancellor or Court of Errors and Appeals 
 for that purpose. Such suspension or modification shall extend 
 only so far as may be necessary to preserve the subject of 
 the appeal, and shall not in any case be allowed to destroy the 
 right established or protected by the order or decree; (88) 
 and section 113 of the Act provides that no appeal taken from 
 an order or decree dissolving an injunction shall have the 
 effect of continuing in force the injunction, unless the Chancel- 
 lor or the Court of Errors and Appeals for good cause shall 
 direct such continuance in whole or part and prescribe the 
 terms thereof. (89) 
 
 In case of an appeal from any order or decree of the Chancel- 
 lor, such judges of the Court of Errors and Appeals, being 
 justices of the Supreme Court, as' may be appointed for that 
 purpose by the said Court of Errors and Appeals (not exceed- 
 ing three), may, in vacation, by order signed by them upon 
 good cause shown, continue in its original force and effect an 
 injunction or order of the Chancellor which may have been 
 dissolved or vacated or modified by him, and may also stay 
 all the proceedings in the original suit until the next succeeding 
 term of the Court of Errors and Appeals, and may also make 
 all necessary orders in the premises. (90) Where an injunction 
 was granted restraining defendant from interfering with a 
 strong hand to prevent complainant fro^m constructing certain 
 improvements under a lease, an application to suspend the 
 injunction pending an appeal was denied; (91) and a stay may 
 be refused on security being given, when adequate protection 
 may be given in that mode. (92) 
 
 (87) Chancery Rule 150; Schenck v. Coiiover, 13 N. J. Eq,, 31. 
 
 (88) Chancery Act, section 112, page 87, supra. 
 
 (89) Chancery Act, section 113, page 87, supra. 
 
 (90) P. L. igoo, p. 34S ; 2 Cowip. Stat., p. 1710, sec. 19. 
 
 (91) Hoboken, &c., R. R. Co. v. Jersey, &c., R. R. Co., 70 N. J. 
 Eq., 122. 
 
 (92) Jewett V. Dringer, 29 N. J. Eq., 199; Reversed, 30 N. J. Eq., 291. 
 
Operation of Appeal. 779 
 
 If the appeal be not filed within ten days from the entry of 
 the decree, a motion to stay execution is addressed to the 
 discretion of the court, and will be granted only upon good 
 cause shown; (93) and the provisions of section 112 (94) 
 of the Chancery Act do not repeal or modify the effect of 
 Rules 149 and 150 (95) which forbid the issue of process 
 upon a final decree until after the expiration of ten days 
 from the filing of such decree. (96) So where an injunction 
 has' been issued within ten days after the decree authorizing 
 it, an appeal from such decree within ten days suspends the 
 operation of the writ ipso facto, afid it is unnecessary to apply 
 to the court to dissolve the injuiiction or to stay the issuance 
 of process on the decree. (97) 
 
 The court will stay proceedings pending an appeal only 
 when such proceedings would cause irreparable injury to the 
 appellant. Mere inconvenience and annoyance are not suf- 
 ficient to take away from a successful party the benefit of 
 his decree. (98) In considering an application to stay the exe- 
 cution of an interlocutory decree pending an appeal the court 
 must assume the decree to be right; (99) and upon such appli- 
 cation the merits of such decree cannot be discussed. (100) 
 Except in cases entirely free from doubt the Court of Appeals 
 will not interfere with an order of the Chancellor continuing 
 an injunction until the final hearing. ( i ) If after any such order 
 directing the issue of process defendant conceives' that it would 
 have the effect, above mentioned, of causing irreparable injury 
 to him, he may apply for an order to suspend or modify the 
 
 (93) Doughty V. Somerville, &c., R. R. Co., 7 N. J. Eq., 629; Schenck 
 V. Conover, 13 N. J. Eq., 31 ; McAlpin v. Universal Tobacco Co., SS 
 Atl., 999. 
 
 (94) See page 87, supra. 
 
 (95) Pages 777, 77%, supra. 
 
 (96) Laird v. Aitlantic Coast, &c., Co., 72, N. J. Eq., 5. 
 
 (97) Osborne v. Williams, 40 N. J. Eq., 490 ; Lair-d v. Atlantic Coast, 
 &c., Co., 73 N. J. Eq., S. 
 
 (98) Jewett V. Dringer, 29 N. J. Eq., 199; Reversed, 30 N. J. Eq., 291 ; 
 C. R. R. Co. V. Standard Oil Co., 33 N. J. Eq., 372; Riehle v. Heulings, 
 38 N. J. Eq., 83; D., L. & W. R. R. Co. v. Central Stock Yards Co., 
 43 N. J. Eq., 77; Chesapeake & Ohio R. R. Co. v. Swayze, 60 N. J. Eq., 
 417- 
 
 (99) Ratzer v. Ratzer, 29 N. J. Eq., 162. 
 
 (100) Ryerson v. Boorman, 7 N. J. Eq., 640. 
 
 (l) Jersey City v. Morris Canal & Banking Co., 12 N. J. Eq., 545. 
 
780 Appeals. 
 
 operation of the process under section 112 of the Chancer}' 
 Act. (2) 
 
 In the National Docks case (3) the broad rule was laid 
 down that the entire purpose and object of the appeal is to 
 preserve rights and property from the ill effects of the 
 decision which is challenged. Unless it produces such a result, 
 the procedure in mere form, and in many cases an absolutely 
 useless form. The suitor in carrying his case up asks for pro- 
 tection against an erroneous decree ; and such protection is 
 obviously refused to him if the decree can be enforced before 
 its legality has been tested by the superior court. The very 
 essence of the remedy by appeal is to prevent for the time being 
 the appellant from the execution of an existing decree; and 
 this being so, it is indisputable that when the statute grants 
 the right of appeal it grants such protection. The final decree 
 appealed from in that case was an injunction decree restrain- 
 ing the defendant from opposing the complainant in making 
 a causeway or tunnel under the defendant's caryard, and 
 requiring defendant to assist this construction by removing 
 certain of its trains in the caryard. The court was of opinion 
 that if this decree was carried out pending appeal it would 
 deprive the appellate court of the ability to render anything 
 more than a mere nominal decree on appeal in favor of the 
 appellant. This case has, however, been freely criticised in 
 numerous later decisions which hold that the force of the 
 National Docks case as a precedent should be limited in its 
 application to cases strictly analogous to the case then before 
 the court. (4) 
 
 From the foregoing decisions, the following rules of practice 
 concerning proceedings in the Court of Chancery pending an 
 appeal to the Court of Errors and Appeals may be deduced: 
 First: Pending an appeal from an order or decree of the 
 Court of Chancery, application may be made either to the 
 Court of Errors and Appeals, or to the Court of Chancery, 
 for leave to execute the order or decree of the Court of Chanc- 
 
 (2) Laird v. Atlanitic Coast, &c., Co., 73 N. J. Eq., 5. 
 
 (3) P. R. R. Co. V. National Docks Co., 54 N. J. Eq., 647. 
 
 (4) D., L. & W. , R. R. Co. V. Breckenridge, 55 N. J. Eq., 159 ; 
 Morton v. Beach, 56 N. J. Eq., 791 ; State Mutual B. & L. Ass'n. v. 
 O'Callaghan, 67 N. J. Eq., 103; Strong v. Smith, 68 N. J. Eq., 686; 
 Laird v. Atlantic Coast Sanitary Co., 73 N. J. Eq., 5 ; Ashby v. Yetter, 
 78 N. J. Eq., 173- 
 
Operation of Appeal. 781 
 
 ery, so far as may be necessary for the protection and preser- 
 vation of the subject of the appeal, and such order will be 
 made when the exigencies of the situation call for it, but no 
 order will be made that would discharge or impair the subject 
 of the appeal. (5) Second: If the procedure in the Court of 
 Chancery sought to be had after the cause has been appealed is 
 one calling for a new step or proceeding in that cause in aid 
 of the order or decree appealed from (for the protection and 
 preservation of the subject O'f appeal), application for leave 
 to so proceed must be made to that court, as it invokes original 
 jurisdiction, and the Court of Errors and Appeals, which is 
 a court of appellate jurisdiction only, has no power to put such 
 proceedings in motion in that court; nevertheless application 
 for leave so to proceed in the Court of Chancery may be made 
 in the first instance to the Court of Errors and Appeals at the 
 election of the movirtg party, but such leave is not required. 
 The advantage of obtaining such leave from the Court of 
 Errors and Appeals would be to forestall an appeal from the 
 order made in chancery, although such appeal would not of 
 itself operate to stay the order of the Court of Chancery ; but 
 if an order to proceed in chancery should be obtained from 
 that court without leave first had from the court above, appli- 
 cation to the appellate court to stay the order of the court below 
 would be open to the appellant. It must be obvious that an 
 order to proceed in the court below made On leave from the 
 court above could no more be appealed than could a final de- 
 cree made on a remittitur from the court of last resort, the 
 court's decision on any matter being of course an absolute 
 finality. (6) 
 
 It therefore follows that the Court of Chancery is limited, 
 in its' issuing of process upon a decree appealed from, to the 
 extent that it ought not to direct the issuing of such process, 
 if it appears to the court that the effect would be substantially 
 to destroy the subject matter of the litigation, and to prevent 
 the .effectiveness of an appeal ; and if it should issue the writ 
 where such clearly appears to be the effect, it would be rever- 
 sible error, and an attempt to enforce the process so issued and 
 having such effect, by proceedings for* contempt, would also 
 
 (5) Ashby v. Yetter, 78 N. J. Eq., 173. 
 
 (6) Ashby v. Yetter, 78 N. J. Eq., 173-178. 
 
782 Appeals. 
 
 be reversible error. (7) So on an application for an order 
 directing process to issue, if it appears on the face of the pro- 
 ceedings, or it is otherwise made to appear that such process' 
 would destroy the subject matter of the litigation and leave 
 nothing but an abstract question to be passed upon by the 
 Court, of Errors and Appeals, the order should be refused. (8) 
 
 Dismissal or Abandonment of Appeal. If appellant fail 
 to prosecute his appeal with diligence, neglect to serve a copy 
 of the state of the case within the time prescribed by the rule, 
 or to make the deposit required within the time prescribed by 
 the rule, his appeal may be dismissed. (9) Even though an 
 appellant may have a meritorious case, if he fails to bring on 
 the hearing in an orderly manner, the order or decree below 
 will be afifirmed or the appeal be dismissed, as the court may 
 direct; (10) and when the dismissal of an appeal for failure 
 to file the transcript in time could have been avoided by an 
 application by appellant for an extension of time, the appeal 
 will not be reinstated. (11) 
 
 On a motion to dismiss an appeal because the petition shows 
 that it was' brought by only one of two executors, the other 
 executor declining to join therein, an amendment of the petition 
 may be allowed for the purpose of adding the other executor 
 as a formal party, and, if necessary, the prosecuting executor 
 may thereupon apply for a summons and severance. (12) The 
 principle is of universal application that the validity of an ap- 
 peal is to be decided by the appellate tribunal, (13) ; but the 
 Court of Errors and Appeals will not as a general rule inter- 
 vene and determine questions of fact respecting the status of 
 the appellant unless such intervention be necessary for the pre- 
 vention of injustice which cannot be otherwise prevented. ( 14) 
 
 Notice of Motion to Dismiss. No motion to dismiss an 
 appeal or writ of error shall be entertained except upon notice 
 
 (7) Laird v. Atlantic Coast Sanitary Co., 73 N. J. Eq., 5. 
 
 (8) Laird v. Atlantic Coast, &c., Co., 73 N. J. Eq., 5. 
 
 (9) Rule 21 of Court of Errors and Appeals ; Cooper v. Cooper, 
 9 N. J. Eq., 655. 
 
 (10) N. J. Building Loan, &c., Co. v. Lord, 66 N. J. Eq., 344-353; 
 Edwards v. Mason, 59 At*., 458. 
 
 (11) Terhune v. Pinkney, 39 N. J. Eq., 494. 
 
 (12) Holcombe v. Holcombe, 29 N. J. Eq., 375. 
 
 (13) Hillyer v. Schenck, 15 N. J. Eq., 398. 
 
 (14) Moore v. Galupo, 70 N. J. Eq., 801. 
 
Dismissal. 783 
 
 or in presence of the solicitor or attorney of the appellant or 
 plaintiff in error; (15) and a motion to dismiss because an 
 appeal does not lie requires notice. (16) 
 
 Waiver of Right to Dismiss. No respondent shall be 
 entitled to the dismissal of an appeal from any interlocutory 
 order or decree upon the ground that such appeal was not 
 made within the time limited by law unless he shall, within 
 thirty days after service of the petition of appeal, give notice 
 of such objection to the appellant or his solicitor, and shall 
 present the objection to the court at the next term thereafter; 
 and upon receipt of such notice the appellant shall be absolved 
 from the duty of prosecuting the appeal until after the then 
 next term of the court, but this rule is not to be regarded as 
 interfering with the right of the court to dismiss an appeal for 
 the cause aforesaid, at any time, upon such terms as may be 
 just. (17) 
 
 Dismissal by Agreement. Whenever the plaintiff and 
 defendant in a writ of error pending in this court, or the ap- 
 pellant and respondent in any appeal, shall at any time here- 
 after, when the court is not sitting for the bearing of argu- 
 ments, by their respective attoraeys or solicitors, who are 
 entered as such on the record, sign and file with the clerk an 
 agreement in writing, directing the case to be dismissed, and 
 specifying the terms on which it is to be dismissed, it shall 
 be the duty of the clerk to enter a rule or order of dismissal, 
 and remit the cause to the court from which it has been 
 removed. (18) 
 
 Of Setting Down Causes, Etc. All causes, whether on 
 appeal or writ of error, may be brought on and heard upon 
 twenty days' notice thereof in writing and on filing a copy or 
 abstract of such notice in the office of the clerk, at least ten days 
 previous to the first day of the term at which such cause is 
 to be set down for hearing. (19) The appellant or plaintiff 
 in error shall notice the cause for argument, serve the state 
 of the case, and bring on the hearing according to law; and 
 if he fail so to do, the order, decree or judgment below shall 
 
 (is) Rule 8 of Court of Errors and Appeals. 
 
 (16) National Bank v. Sprague, 21 N. J. Eq., 458. 
 
 (17) Rule 24 of Court of Errors and Appeals. 
 
 (18) Rule II of Court of Errors and Appeals, 
 (ig) Rule 12 of Court of Errors and Appeals. 
 
784 Appeals. 
 
 be affirmed, or the appeal, or writ of error shall be dismissed, 
 as the court shall direct. (20) All causes shall be noticed 
 for hearing on the first day of the term, if at issue long enough 
 to admit of such notice; if not, then they may be noticed for 
 a day in term, not later than the twentieth day. (21) All 
 causes noticed for hearing or argument shall be set down by 
 the clerk upon the calendar or list of causes in the following 
 order, that is to say: writs of error shall have precedence 
 according to the time at which they were returnable, and 
 appeals shall have precedence according to the time of filing 
 the petition in this court. (22) 
 
 Among writs of error returnable and petitions of appeal 
 filed on the same day, priority on the list shall be given accord- 
 ing to the time of filing the notices of hearing. (23) The 
 following classes of cases may on motion be advanced, pro- 
 vided notice of such motion be given to the opposite party 
 ten days before the opening day of the term. i. Cases in 
 which the state is actually a party and in interest. 2. Tax- 
 ation cases and cases which involve the constitutionality of a 
 statute where the general public interest is' affected, provided 
 a motion to advance in either case be made by the Attorney- 
 General. 3. Cases directly involving the title to public office. 
 4. Cases directly involving the inception or completion of 
 municipal improvements. 5. Appeals from orders or decrees 
 in Chancery, granting or denying an injunction, and appeals 
 from orders or decrees adjudging or refusing to adjudge a 
 corporation insolvent. Not more than ten minutes will be 
 allowed each side upon such motion to advance. (24) It shall 
 be the duty of the clerk to furnish the court, on the first day 
 of each term, with a list of the causes noticed for hearing, in 
 the order in which they shall be entitled to be heard according 
 to the rule. (25) 
 
 Of the Hearing. When a cause is regularly noticed for 
 hearing, if the appellant or the plaintiff in error (as the case 
 
 (20) Rule 17 of Court of Errors and Appeals. 
 
 (21) Rule 13 of Court of Errors and Appeals. 
 
 (22) Rule 14 of Court of Errors and Appeals. 
 
 (23) Rule IS of Court of Errors and Appeals. 
 
 (24) Additional rule of the Court of Errors and Appeals as 
 amended June Term, 1909. 
 
 (25) Rule 16 of Court of Errors and Appeals. 
 
Hearing. 785 
 
 may be) shall not appear to argue the appeal or errors assigned, 
 the decree or judgment of the court below shall be affirmed, 
 with costs ; and if the respondent or defendant fails to appear, 
 the plaintiff or appellant may proceed ex parte. (26) So where 
 a case is regularly called for hearing and the appellant appears 
 by counsel, who abandons the cause, the judgment will be 
 affirmed with costs under the 31st rule of the court. (27) 
 
 The necessary papers in the cause shall be read without ex- 
 planation or comment, after which one of the counsel for the 
 appellant, or plaintiff in error shall open the cause, then two 
 counsel for the opposite party may be heard in answer, and 
 one counsel only for the opening party shall be allowed to 
 reply; but in case of an appeal from an order or decree of 
 the Court of Chancery, in a cause where there are several 
 defendants who have separate and distinct interests, and who 
 have different counsel concerned for them, the counsel for the 
 respective defendants shall be heard in such order as the court 
 may direct ; but no more than two counsel shall be allowed to 
 argue for any one defendant ; and if more than two counsel 
 answer for the defendants, in that case two counsel may be 
 heard in reply. (28) Cross-appeals, and appeals from orders 
 and decrees in the same cause, and cross writs or assignments 
 of error if regularly noticed and brought on for argument 
 at the same term, shall be argued together as one case, unless 
 the court shall direct otherwise. (29) 
 
 In the argument of all causes, there shall be allowed to each 
 side, when but one counsel is' to be heard on either side, the 
 period of orte hour ; when two or more counsel are to be heard 
 on each side, the period of two hours, unless express permis- 
 sion shall be given for a longer specified time before the argu- 
 ment of the cause is commenced, and the argument shall then 
 be limited to the time thus allowed. The presiding officer shall 
 in all cases enforce a strict observance of this rule. On all 
 arguments arising incidentally before the court, or not before 
 provided for, one counsel shall be heard in opyening the matter 
 in question, then two counsel for the opposite party may 
 answer, and one counsel only for the opening party shall be 
 
 (26) Rule 31 of Court of Errors and Appeals. 
 
 (27) Edwards v. Mason, 70 N. J. L., 825. 
 
 (28) Rule 32 of Court of Errors and Appeals. 
 
 (29) Rule 32a of Court of Errors and Appeals. 
 
786 Appeals. 
 
 allowed to reply. (30) Immediately upon the close of the argu- 
 ment of each cause the court shall designate a time for hold- 
 ing a conference in relation to such cause. (31) 
 
 Only such cases at any term shall be submitted to or con- 
 sidered by the court as are argued orally on call, and such 
 as are submitted on briefs down to the case on the list last 
 called for argument. Subsequent cases' on such list regularly 
 noticed for argument shall without further notice be placed on 
 the list at the next term in the position to which they are 
 entitled under rules 14 and 15. In cases submitted on briefs 
 under this rule, the state of case and briefs or points required 
 by rule 20 on both sides shall be filed with the docket and 
 calendar clerk within twenty days from the first day of the 
 term. (32) 
 
 Re-Argument. The Court of Appeals may order a re- 
 argument while the cause is still pending and before the 
 papers have been remitted. (33) After a cause has been heard 
 upon the merits, the judgment properly entered, and the 
 papers' remitted to the court below, the Court of Appeals has 
 no further jurisdiction with respect to the case. (34) The 
 power to grant re-arguments should be but sparingly exer- 
 cised, and perhaps in no case unless the court intimates a desire 
 for the argument to be repeated. (35) 
 
 Of Decisions by the Court. When a motion or prelimin- 
 ary or interlocutory matter has been argued or submitted to the 
 court, the presiding officer shall distinctly state the point or 
 points to be decided, and shall then inquire of the court whether 
 it is ready to decide the question ; and if no objection is made by 
 any member, the president shall ask each member his opinion, 
 calling their names, and also expressing his own opinion, in 
 such order as he may think proper and shall then announce 
 the decision, as the result may be ; but if any member, on the 
 question being put as aforesaid by the president, shall re- 
 quest or propose that the court shall have a consultation on the 
 matter, a private conference shall be held ; and after the court 
 
 (30) Rule 33 of Court of Errors and Appeals. 
 
 (31) Rule 34 of Court of Errors and Appeals. 
 
 (32) Rule 3S of Court of Errors and Appeals. 
 ' (33) King V. Ruckman, 22 N. J. Eq., 551. 
 
 (34) King V. Ruckman, 22 N. J. Eq., 551. 
 
 (35) Cassedy v. Bigelow, 27 N. J. Eq., 505. 
 
Disposition of Appeal. 787 
 
 shall have conferred and advised together of the matter, 
 the president shall, in manner aforesaid, call upon the mem- 
 bers of the court for their respective opinions, and announce 
 the judgment of the court in the matter, giving at the same 
 time his own opinion thereon. A similar course shall be pur- 
 sued after the argument of a cause on the merits. (36) 
 
 When the decision of a cause depends upon distinct ques- 
 tions the decision of either of which will dispose of the cause, 
 the question shall be taken separately, if required by any 
 three members. (37) 
 
 Opinion of Court to be Given in Writiilg. On pronounc- 
 ing any judgment, order or decree, either of affirmance or 
 reversal, the opinion of this court, containing the reasons for 
 such affirmance or reversal, shall be delivered in writing.(38) 
 
 Questions Considered by Appellate Court. In the court 
 of last resort no new facts can be introduced by testimony. 
 The contest must be decided upon the case as it was before the 
 chancellor, (39) and on -a second appeal in the same cause, 
 the points' already decided by the Court of Appeals are not 
 open to debate, except by the special order of the court. (40) 
 On an appeal to the Court of Errors and Appeals, matters 
 which do not appear to have been adjudicated in the court 
 below, and which are not complained of in the petition of 
 appeal, will not be considered. (41) So questions touching 
 the validity of respondent's claim as between appellant and 
 respondent, not embodied in the petition of appeal, and not the 
 subject of proof or consideration in the court below, should 
 not be given a hearing on appeal. (42) So- an objection first 
 raised on an appeal that the party appealing was improperly 
 joined as a party below, and therefore had no such status as 
 
 (36) Rule 36 of Court of Errors and Appeals. 
 
 (37) Rule 37 of Court of Errors and Appeals. ■ 
 
 (38) P. L. 1900, p. 344.; 2 Comp. Stat., p. 1709, sec. 12. 
 
 (39) Black V. Delaware & Raritan Canal Co., 24 N. J. Eq., 455; 
 Moore v. Galupo, 70 N. J. Eq., 801. 
 
 (40) Cassedy v. Bigelow, 27 N. J. Eq., 505. 
 
 (41) Penn Insurance Co. v. Semple, 38 N. J. Eq., S7S; Cumberland 
 Lumber Co. v. Clinton Hill Lumber Co., S7 N. J. Eq., 627; Polhemus 
 V. Holland Trust Co., 61 N. J. Eq., 654; Boice v. Conover, 63 N. J. 
 Eq., 273; N. J. Building Loan & Investment Co. v. Lord, 66 N. J. Eq., 
 344 ; Meyers v. Steel Machine Co., 68 N. J. Eq., 795. 
 
 (42) Penn Ins. Co. v. Semple, 38 N. J. Eq., S7S; Cumberland 
 Lumber Co. v. Qinton Hill Lumber C6., 57 N. J. Eq., 627. 
 
788 Appeals. 
 
 a party below as would entitle him to appeal, comes too 
 late. (43) 
 
 The jurisdiction of the Court of Errors and Appeals is alto- 
 gether appellate, its office being simply to review the decrees of 
 the Court of Chancery at the instance of a party aggrieved by 
 the decision of that court; new parties' to the suit cannot be 
 admitted while the cause is on appeal in that court. (44) So 
 where no objection for non-joinder of a necessary party was 
 taken in the court below, nor was such objection made a ground 
 of appeal, it cannot be made in the appellate court, unless 
 the party omitted i^ an indispensable party and justice cannot be 
 done without him. (45) But where a cause has been defended 
 below and comes up for review, and a point has been made which 
 was overlooked, and which could not be obviated in the court 
 below by proof or amendment, the court on appeal will not 
 refuse cognizance of such point and send it back to the chanc- 
 ellor for a re-hearing, but will hear and decide it ; (46) and 
 on appeal from a final decree, the appellate court will decide 
 whether a decree of reference prescribing the limits of an 
 accounting be right, but items clearly within the limits of the 
 reference, not allowed by the master, where exceptions to the 
 report have not been filed, will not be considered. (47) 
 
 It is a settled rule that an appeal from a final decree in 
 chancery brings up for review the whole case, with all inter- 
 locutory orders involving the merits of the controversy. (48) 
 So an appeal from a final decree brings before the appellate 
 court all interlocutory orders and decrees involving the merits, 
 as' well as the master's report, together, with the evidence 
 upon which they are founded; (49) and when a final decree 
 
 (43) Easton National Bank v. American Brick, &c., Co., 70 N. J.. 
 Eq., 732. 
 
 (44) N. J. Franklinite Co. v. Ames, 12 N. J. Eq., 507. 
 
 (45) Berryman v. Graham, 21 N. J. Eq., 370; McLaughlin v. Van 
 Keuren, 21 N. J. Eq., 379; Freeman v. Island Heights Hotel, &c., Co.,. 
 ^^ N. J. Eq., 572. 
 
 (46) Woodward v. Bullock, 27 N. J. Eq., 507. 
 
 (47) Clair v. Terhune, 35 N. I. Eq., 336; N. J. Building Loan &■ 
 Investment Co', v. Lord, 66 N. J. Eq., 344. 
 
 (48) Crane v. DeCamp, 22 N. J. Eq., 614; Decker v. Ruckman, 28 
 N. J. Eq., 614; Qair v. Terhune, 35 N. J. Eq., 336; Read v. Patterson,. 
 44 N. J. Eq., 211 ; Pennington v. Todd, 47 N. J. Eq., 569; 33 L. R. A., 
 7Son. 
 
 (49) Ci-ane v. DeCamp, 22 N. J. Eq., 614; Butterfield v. Third Ave. 
 Savs. Bank, 25 N. J. Eq., 533 ; Decker v. Ruckman, 28 N. J. Eq.,. 
 
Determination of Cause. ^ 789 
 
 involves the merits of the case, which had been previously 
 settled by an interlocutory order, an appeal from the final 
 decree brings the whole case before the court. (50) But an 
 order refusing to allow an answer to Be amended does not so 
 enter into a subsequent interlocutory decree deciding the 
 merits' that it can be reviewed on an appeal from such inter- 
 locutory decree; (51) and an order of the Court of Chancery 
 sustaining exceptions to an answer for insufficiency is not a 
 final decree, and is not so carried into a final decree subse- 
 quently made in' the cause as to become part of it and appeal- 
 able with it. (52) And the same is true in case of an order 
 refusing to allow an answer to be amended. (53) 
 
 Determination of Cause. A majority of the members of 
 the Court of Errors and Appeals present and voting is suf- 
 ficient for a decision of affirmance or reversal, where one or 
 more members have been excused, providing a constitutional 
 quorum attend the vote; (54) but if the court is equally 
 divided, the judgment will be affirmed; (55) and where on 
 appeal only ten of the fifteen qualified judges of the court 
 heard the argument, and. there was an affirmance of the decree 
 by an equal division of the judges who heard the argument, 
 a further argument before the full bench was ordered on appli- 
 cation therefor by appellant before judgment was entered. (-56) 
 
 A decree of the Court of Chancery will not be reversed on 
 appeal because of mere doubts' as to the correctness of such 
 decree. (57) So a decree and execution regularly obtained 
 will not be set aside unless upon satisfactory proof, not merely 
 of vague understandings and of reasonable inferences, but of 
 facts and circumstances which make it clearly inequitable and 
 
 614; Clair V. Terhune, 35 N. J. Eq., 336; N. J. Building- Loan & 
 Investment Co. v. Lord, 66 N. J. Eq., 344. 
 
 (50) Terhune v. Colton, 12 N. J. Eq., 312; Crane v. DeCarap, 22 
 N. J. Eq., 614. 
 
 (si) Butterfield v. Third Ave. Savings Bank, 25 N. J. £q., 533- 
 
 (52) N. J. Building Loan & Investment Co. v-. Lord, 66 N. J. 
 Eq., 344- 
 
 (53) Butterfield v. Third Ave. Savings Bank, 25 N. J. Eq., 533. 
 
 (54) Gibbons v. Ogden, s N. J. L., 1005-1013. 
 
 (55) Kaighn v. Fuller, 15 N. J. Eq.; 501; Flavell v. Flavell, 22 
 N. J. Eq., S99. 
 
 (56) Summerbell v. Summerbell, 36 N. J. Eq., 293. 
 
 (57) Emson v. Lawrence, 33 N. J. Eq., 286. 
 
790 Appeals. 
 
 unjust that they should be enforced. (58) So a finding of the 
 Chancellor on conflicting evidence that there was no agreement 
 to convey a one-half interest in land constituting a trust will 
 not be reviewed; (59) ^nd where in an action by a mortgagee 
 to redeem from a tax title the holder of such title was allowed 
 as much as she was entitled to under the statute providing 
 therefor, the fact that a rule other than that designated by 
 the statute was adopted in ascertaining the amount is no ground 
 for reversal. (60) If a decree in chancery be partly in favor 
 of a party and partly adverse to him, and he appeal from that 
 portion which is adverse, the Court of Appeals by a judgment 
 of affirmance on such appeal does not affirm that portion of 
 the decree which was in favor of the appellant. (61) 
 
 Entry of Judgment. Where o,ne respondent on appeal 
 dies after argument, but before opinion rendered affirming the 
 decree below, the decree of affirmance will be entered as of the 
 date when the cause was argued. (62) If a decree of the Court 
 of Errors and Appeals be mis-entered .in the minutes, it must 
 be executed by the Court of Chancery according to its terms, 
 the proper practice being to apply to the Court of Errors and 
 Appeals' to rectify the entry of such decree. (63) 
 
 Mandate and Proceedings in 'Lower Court. The Court 
 of Errors and Appeals is not a court of execution, and upon 
 affirmance of the judgment of the court below the record must 
 be remitted, to be there proceeded on according to law; (64) 
 but an appellate tribunal will sometimes reverse a decree and 
 send the cause back to a court of original jurisdiction in 
 order that an amendment may be made, so that the real merits 
 of the controversy may be settled. (65) 
 
 Return of Papers, Etc., on Final Decree on Appeal. When 
 a cause hath been decided by final decree or order of the 
 
 (58) Terhune v. Colton, 12 N. J. Eq., 312. 
 
 (59) Riddle v. Clabby, 59 N. J. Eq., 573. 
 
 (60) Harmes v. Hughes, 52 N. J. Eq., 288. 
 
 (61) Pennington v. Todd, 47 N. J. Eq., 569. 
 
 (62) Tallman v. Wallack, 41 All. Rep., 677. 
 
 (63) Tuttle V. Gilmore, 42 N. J. Eq., 369; McGrail v. McGrail, 51 
 N. J. Eq., 537. 
 
 (64) Gardner v. State, 21 'N. J. L., 557; Jewett v. Dringer, 31 N. J. 
 Eq., 586. 
 
 (65) Ogden V. Thornton, 30 N. J. Eq., 569; Reversed, 32 N. J. Eq., 
 723- 
 
Duty of Court of Chancery. 791 
 
 appellate court, it shall be the duty of the clerk to return to 
 the clerk of the Court of Chancery all papers which have been 
 received by him from the clerk of the Court of Chancery 
 in such cause, for which he shall take a receipt, together with a 
 copy of the order or decree of the court, which order or decree 
 it shall be the duty of the Court of Chancery to carry into 
 effect; and it shall be the duty of said clerks to file the said 
 receipts in their respective offices, for the benefit of the parties 
 interested in said papers. (66) 
 
 Of the Remittitur. The remittitur in case of a writ of 
 error shall contain a copy of the judgment of the appellate 
 court and be annexed to the writ of error and the transcript of 
 the record of proceedings, as brought into that court, under 
 its seal and signed by the clerk; and the remittitur in case 
 of an appeal shall contain a copy of the decree or order of the 
 appellate court, and be annexed to the petition of appeal and 
 the matters thereto annexed, as brought into that court, under 
 its seal and signed by the clerk. (67) When a remittitur shall 
 have been entered in the office of the clerk of the Court of 
 Errors and Appeals, the record shall not be actually remitted to 
 the court below until after the expiration of ten days from the 
 date of the entry of the remittitur, without the special order 
 of this court. (68) 
 
 Powers and Duties of Lower Court. The statute, as has 
 been seen, directs that after the Court of Errors and Appeals 
 shall have finally decided a cause the record shall be remitted 
 to the Court of Chancery, together with a copy of the order 
 or decree of the Court of Errors and Appeals, which order or 
 decree it shall be the duty of the Court of Chancery to carry 
 into effect; (69) and it is the duty of the Court of Chancery 
 to carry such order or decree into effect according to its plain 
 intent. In so doing it must confine itself strictly within its 
 alloted sphere, which is the faithful enforcement of the com- 
 mand of the superior tribunal, and must not in any way attempt 
 to evade, impede or defeat such command. (70) So the Court 
 
 (66) P. L. 1900, p. 345 ; 2 Comp. Stat., p.- 1710, sec. 17. 
 
 (67) Rule 38 of Court of EjTors and Appeals. 
 
 (68) Rule 39 of Court of Errors and Appeals. 
 
 (69) P. L., 1900, p. 345; 2 Comp. Stat, p. 1710, sec. 17. 
 
 (70) Snowhill V. Snowhill, 2 N. J. Eq., 30; Jewett v. Dringer, 
 31 N. J. Eq., 586. 
 
792 Appeals. 
 
 of Chancery cannot entertain a bill of review to reverse a 
 decree entered there upon remittitur from the Court of Errors 
 and Appeals reversing the decree of the Court of Chancery; 
 (71) and where a decree for complainants was affirmed on 
 appeal, the jurisdiction of the Court of Chancery to make the 
 decree entered in accordance with the mandate of the court 
 on appeal cannot be attacked for the first time upon a simple 
 petition verified in a general form, and without evidence of 
 the facts upon which want of jurisdiction was claimed to 
 rest. (72) 
 
 Where the Chancellor's decree sustaining a demurrer is 
 reversed on appeal, but a part of his decision was approved, 
 defendant may move in the Court of Chancery to have so 
 much of the bill as was decided by the Court of Errors and 
 Appeals to be objectionable stricken out, this being equivalent 
 to an amendment of the demurrer. (73) So where a complain- 
 ant filed his bill with a double aspect, asking that a certain 
 voluntary partition should be established, or, failing that, to 
 have such partition made, and such voluntary partition was 
 established by decree, but on appeal that decree was reversed 
 and the record remitted to the Court of Chancery to be proceed- 
 ed on according to the practice, it was held that the right of the 
 Chancellor to retain the bill in order to decide on the alternative 
 prayer for a partition. (74) 
 
 An appeal will not be entertained from a decree made in ac- 
 cordance with instructions contained in a remittitur on decision 
 of a former appeal ; if such decree is erroneous, the remedy is by 
 petition for re-hearing of the original appeal. (75) But where 
 a bill was brought against the beneficiaries of a decedent to 
 impress a trust on the devised property, and a final decree was 
 rendered against one defendant charging her share with the 
 entire amount, but the decree did not dismiss the bill against 
 any of the defendants, nor was there any reference therein 
 to the rights of the other defendants, and upon appeal by the 
 one defendant alone, the charge placed upon her share was 
 
 (71) Jewett V. Dringer, 31 N. J. Eq., 586. 
 
 (72) Cook V. Weigley, 68 N. J. Eq., 480; amrmed, 69 N. J. Eq., 836. 
 
 (73) ' Kirkpatrick v. Corning, 39 N. J. Eq., 22 ; Reversed, 40 N. J. Eq., 
 241. 
 
 (74) Polhemus v. Emson, 29 N.J. Eq., 583. 
 
 (75) Jenkins v. Guarantee Trust, &c., Co., 38 Atl., 695. 
 
Costs. 793 
 
 diminished, the decree reversed and the lower court entered a 
 decree on remittitur, it was held that the decree on remittitur 
 was final as to the character and extent of the appealing defend- 
 ant's liability, but as to the defendants not parties to the appeal, 
 the decree on remittitur was interlocutory only, and that a 
 siecond appeal would lie by defendants not parties to the first 
 appeal to bring up proceedings subsequent to the mandate on 
 remittitur and to correct errors of the court in entering the 
 decree on the mandate. (76) 
 
 Where the specific directions given by the decree of the 
 Court of Errors and Appeals are incomplete, or insufficient to 
 meet the requirements of the case, such action not inconsistent 
 with the directions given may be taken by the lower court as 
 necessity and the nature of the case require. (77) So where 
 the Court of Appeals, on an appeal from a decree filed in a suit 
 brought to redeem from a sheriff's sale, only directed in terms 
 that one of the defendants should be allowed for improvements 
 made on the property, the Chancellor allowed another .defend- 
 ant for like improvements, considering that the Court of 
 Appeals did not intentionally omit to give such direction; (78) 
 and the fact that the decree of the appellate court declaring 
 the grantee of an absolute deed to be a trustee ex maleficio, 
 and directing an account, did not allow interest to the grantor 
 and beneficiary, does' not prevent the trial court from charging 
 the grantee with interest in the exercise of its sound discre- 
 tion. (79) 
 
 Costs on Appeal. It is in the discretion of the Court of 
 Errors and Appeals, in cases of appeal from a decree or order 
 of the Chancellor, to award costs or not. (80) 
 
 The prevailing party is considered as recovering costs in the 
 Court of Errors and Appeals when costs are by law recover- 
 able, in which shall be included costs of printing the state of 
 case, unless the court shall, in express terms, adjudge to the 
 contrary. (81) So where defendant was obliged to appeal to 
 
 (76) Powell V. Yearance, 73 N. J. Eq., 117. 
 
 (.77) Johns V. Norris, 28 N. J. Eq,, 147; Conover v. Ruckman, 
 34 N. J. Eq., 293. 
 
 (78) Johns V. Norris, 28 N. J. Eq., 147. 
 
 (79) Thornton v. Ogden, 41 N. J. Eq., 345. 
 
 (80) P. L. 1900, p. 34S ; 2 Comp. Stat., p. 1710, sec. 15. 
 
 (81) Rule 40 of Court of Errors and Appeals. 
 
794 Appeals. 
 
 correct a decree against her which was improper, she will be 
 entitled to costs on the appeal including costs of printing, 
 though complainant was successful in the suit. (82) 
 
 The Court of Appeals may in its discretion refuse costs 
 in that court to a complainant whose decree has been affirmed, 
 when it appears that the cost of the suit which had heretofore 
 been borne by appellant had been exorbitantly increased by 
 superfluous recitals and statements in the bill of complaint. (83) 
 So where reversible error in a decree was merely clerical, 
 so that it might have been corrected on application, the reversal 
 will be without costs. (84) 
 
 (82) Parker v. Travers, 74 N. J. Eq., 812. 
 
 (83) Vliet V. Wyckoff, 42 N. J. Eq., 642. 
 
 (84) Nessler v. Industrial Land Development Co., 70 N. J. Eq., 
 804. 
 
Court of Errors and Appeals. 795 
 
 COURT OF ERRORS AND APPEALS. 
 
 Constitution of Court. The Court of Errors and Appeals 
 shall consist of the Chancellor, the Justices of the Supreme 
 Court and six Judges, or a major part of them; which Judges 
 are to be appointed for six years. ( i ) 
 
 Of the Members of the Court. No member of this court 
 shall, as attorney, solicitor or counsel, be concerned in or argue 
 any cause in this court, either upon error or appeal. (2) When 
 an appeal from an order or decree shall be heard, the Chancel- 
 lor shall inform the court in writing of the reasons for his or- 
 der or decree ; but he shall not sit as a member or have a voice 
 in the hearing or final sentence. (3) 
 
 Officers. The Chancellor, when present, shall be the presi- 
 dent of the court ; in case of his absence, the Chief Justice 
 of the Supreme Court; 'and in case of his absence, the senior 
 in office of the Justices of the Supreme Court who may be 
 present. (4) The Secretary of State is the clerk of this 
 court. (5) 
 
 Attorneys and Solicitors. In cases of writs of error or 
 appeals, the attorney of record or solicitor for the adverse party, 
 if any, in the court below shall be considered as attorney or 
 solicitor, as the case may be, for the defendant in error or 
 respondent in appeal; and notices and papers served on him 
 shall be deemed good service, until the defendant in error or 
 respondent in appeal shall give notice in writing to the plaintiff 
 in error or the appellant in appeal that he has employed another 
 attorney or solicitor, naming in such notice the att9rney or 
 solicitor employed, or until appearance entered by a new attor- 
 ney or solicitor. (6) 
 
 An attorney in the employ of, or in partnership with, .or 
 occupying an office with any judge, shall not practice before 
 him in any court where such judge shall preside, and any 
 person so offending shall be guilty of a misdemeanor. (7) 
 
 (1) Constitution Article VI, sec. II, par. i. 
 
 (2) Rule I of Court of Errors and Appeals. 
 
 (3) Constitution Article VI, sec. II, par. 5. 
 
 (4) P. L. 1900, p. 344; 2 Comp. Stat., p. 1709, sec. 5. 
 
 (5) Constitution Article VI, sec. II, par. 4. 
 
 (6) Rule 2 of Court of Errors and Appeals. 
 
 (7) P. L. 1898, p. 804, sec. 35 ; 2 Comp. Stat, p. 1757. sec. 35. 
 
796 Appeals. 
 
 Writs and Processes. Writs and processes issued out of 
 this court shall be signed by the clerk and tested in the name 
 of the president, and may be made returnable at any of the 
 stated terms of the court, or at such time in vacation as the 
 court may, by rule, from time to time prescribe. (8) 
 
 Terms of Court. The Court of Errors and Appeals may 
 from time to time fix and change the times for holding the 
 stated terms of said court, provided at least three such terms 
 shall be held annually; (9) but no change in the time of 
 holding said court shall become operative until the order there- 
 for shall have been entered upon the minutes of the court, and 
 publicly announced at a regular term prior to the change going 
 into effect. (10) At November term, 1880, the court fixed 
 the first Tuesday in March and the third Tuesday of June and 
 November as the first days of terms.(ii) 
 
 Of the Order of Business. The court shall meet at eleven 
 o'clock irt the forenoon of the first day of every term, and at 
 half-past ten o'clock in the forenoon of every other day in the 
 term, except Saturday, when no court will be held, unless 
 ordered. (12) 
 
 On the opening of the court on the morning of the first day 
 of each term, the presiding officer shall call the list of causes 
 for the information of the court and bar, and afterwards inquire 
 if any persons have any motions to make before the court; 
 and so much of said day shall be appropriated to the hearing 
 of such matters as may be necessary, but no such motions 
 shall be heard on any other day in term without the special 
 perniiission of the court. As soon as the motions have been 
 disposed of, the presiding officer shall take up the list of causes, 
 and they shall be brought on in the order in which they stand 
 upon the list, unless otherwise ordered by the court. (13) The 
 presiding officer shall call the court to order, and proceed to 
 business at the hour to which the court shall stand adjourned, 
 or as soon thereafter as a quorum shall be present. (14) The 
 
 (8) P. L. 1900, p. 34s; 2 Comp. Stat., p. 1709, sec. 13. 
 
 (9) P. L. igoo, p. 343; 2 Comp. Stat., p. 1708, sec. i. 
 
 (10) P. L. 1900, p. 343; 2 Comp. Stat, p. 1708, sec. 2. 
 
 (11) Corbin's Court Rules, p. 3. 
 
 (12) Rule 3 of Court of Errors and Appeals. 
 
 (13) Rule 7 of Court of Errors and Appeals. 
 
 (14) Rule 4 of Court of Errors and Appeals. 
 
Court of Errors and Appeals. 797 
 
 clerk shall enter in the mmutes the names of the members who 
 shall be present at each session of the court during the 
 term. (15) The court shall sit five hours on each day. (16) 
 
 Adjournments. If a sufficient number of members to 
 constitute the court shall not attend on the first day of the 
 term, it .shall be lawful for the members attending to adjourn 
 from day to day until a sufficient number shall attend, or to 
 adjourn till the next term, in which case the writs and pro- 
 cesses then returnable, and all suits, pleadings and proceedings 
 depending before the court, shall be continued of course till 
 such subsequent term. (17) 
 
 Rules of Practice. The Court of Errors and Appeals shall 
 and may, from time to time, make rules and regulations' of 
 practice, and alter, amend or revoke any rule of practice, so 
 as to obviate doubts, advance justice and expedite suits ; 
 provided, the same be .not contrary to this act or any other 
 statute of this state, the constitution of this state or of the 
 United States. (18) The rules of this court shall be considered 
 as general rules for the government of the court and the con- 
 ducting of causes ; and as the design of them is to facilitate 
 business and advance justice, they may be relaxed or dispensed 
 with by the court in any case where it shall be manifest to the 
 court that a strict adherence to them will work surprise or 
 injustice. (19) 
 
 Special Motions. Special motions shall require a notice 
 thereof, with copies of the papers, not records or files of this 
 court, to be served at least two entire days before the motion 
 is made. Half an hour on each side is allowed for argument 
 of motions. (20) 
 
 Affidavits to be used on any special motions in this court 
 shall be taken on four days' previous notice of the time and 
 place of taking the same, at which time and place both parties 
 may take affidavits. If not taken on such notice no affidavits 
 
 (15) Rule S of Court of Errors and Appeals. 
 
 (16) Rule 6 of Court Of Errors and Appeals. 
 
 (17) P. L. 1900, p. 344; 2 Comp. Stat., p. 1709, sec. 4. 
 
 (18) P. L. 1900, p. 34s ; 2 Comp. Stat., p. 1710, sec. 18. 
 
 (19) Rule 41 of Court of Errors and Appeals. 
 
 (20) Rule 9 of Court of Errors and Appeals. 
 
798 Court of Errors and Appeals. 
 
 shall be read, unless a copy thereof has been served on the 
 adverse party at least eight days before the motion is made; 
 and in such case the adverse party may take and us.e on the 
 argument counter affidavits taken without notice. (21) 
 
 (21) Rule 10 of Court of Errors and Appeals. 
 
Addenda 
 
 ADDITIONAL RULES— COURT OF CHANCERY. 
 
 To take effect July 4th, 191 3. 
 
 Interpleader. 
 
 221. Rule 221 be and the same is hereby amended so as 
 to read as follows: 
 
 Defendants shall not file pleadings to a bill of interpleader 
 except to contest the complainant's right to relief. In con- 
 tested causes successful complainants shall serve a copy of 
 the decree of interpleader on all answering defendants, and 
 until proof of such service is filed they shall not be con- 
 sidered as discharged under the decree. In uncontested causes 
 within twenty days after the return day of the subpoena, and. 
 in contested causes within twenty days after the service of 
 a copy of the decree, the defendants shall file concise statements 
 in writing of their several claims to the fund, and if they 
 intend to dispute the claims of co-defendants based on affirma- 
 tive defences, they'^shall within fifteen days after the time above 
 limited, file supplemental statements concisely setting forth such 
 defences. At the hearing defendants shall be confined to the 
 grounds of the claims and the causes of defences so 
 stated, unless otherwise ordered. Causes may be brought on 
 for final hearing by any defendant, as provided for in the 
 rules concerning litigated matters. 
 
 Transfer of Causes. 
 
 225. No cause or matter shall be transferred to the supreme 
 court, or any of the inferior courts of common law, without 
 the order of the chancellor or a vice-chancellor. 
 
 When a cause is transferred from any of the courts of 
 common law to this court the clerk in chancery shall give 
 a receipt in writing, describing the papers received ; and shall 
 take a similar receipt from the clerk of the court of common 
 law when a cause is transferred from this court to such court. 
 
802 Additional Rules — Court of Chancery. 
 
 Return of Writs and Process. 
 
 226. The following writs and process, tested and issued 
 after July 4th, 1913, shall be returnable as follows: Writs 
 of execution, ninety days, writs of injunction and ne exeat, 
 thirty days, after their teste; unless such day would fall on 
 Sunday or a holiday, in which cases they shall be made return- 
 able on the next secular day, but if, by inadvertence or other- 
 wise, any such writs are made returnable on any such inhibited 
 days, they shall be considered as having been made returnable 
 on the next secular day, and may be amended by the clerk 
 as of course and at any time. 
 
 Hearings on Pleas, Demurrers and Exceptions to 
 Masters' Reports. 
 
 227. Argument on pleas, demurrers and exceptions to 
 masters' reports may be brought on for hearing before the 
 chancellor or a vice-chancellor, on regular motion days (except 
 in vacation) upon eight days' notice by either party to the 
 other, except that no notice shall be necessary in ex parte cases ; 
 and no special reference to a vice-chancellor of any such 
 matters shall be required. 
 
 Promulgated June 12th, 1913. 
 
 E. R. walker. 
 
 Chancellor. 
 
Additional Rules — Court of Chancery. 803 
 
 RULE No. 204b. 
 POWERS OF ADVISORY MASTER AT TRENTON. 
 
 Because at times when solicitOTs and counsel desire to 
 make application in the city of Trenton for certain writs and 
 orders, and the Chancellor is temporarily absent from said 
 city, and no Vice-Chancellor happens then to be therein: 
 
 It is therefore hereby ordered, that at such times applications 
 for writs of ne exeat, interlocutory injunctions, temporary 
 restraining orders, orders to show cause why alimony pendente 
 lite should not be granted, and orders to show cause why 
 receivers should not be appointed, with or without appro- 
 priate restraining order ad interim; and also for adjudications 
 of insolvency and appointment of receivers instcmter, with order 
 to show cause why the appointment of any such receiver should 
 not be confirmed and continued, and with appropriate ad 
 interim restraining orders, whenever pressing necessity appears 
 to require the making of such last mentioned orders, may be 
 made to James Buchanan, Esquire, advisory master of this 
 court, residing in Trenton ; and he may then and there advise 
 any order or rule on such application (all orders to show 
 cause to be made returnable before the court), and any such 
 order or rule made by him in matters aforesaid, when marked 
 filed by the clerk, shall be considered and taken as made by 
 the court, and shall be considered and taken as the full minute 
 of such order and rule. 
 
 Upon filing any such order or rule for writ of ne exeat or 
 injunction, the appropriate writ shall issue. 
 
 Whenever any such order or rule shall be advised by said 
 advisory master, it shall be conclusively presumed that the 
 Chancellor was temporarily absent from Trenton, and that no 
 Vice-Chancellor happened then to be in said city. 
 
 Dated, Trenton, August 5th, 1912. 
 
 E. R. WALKER, 
 
 Chancellor. 
 
Table of Gases 
 
Table of Cases. 
 
 Abbe V. Goodwin 654 
 
 Abbott V. Case 395 
 
 Aber v. Clark 729 
 
 Ackerman v. Halsey 129,130 
 
 Ackerson v. Lodi Branch R. 
 
 R. Co 569 
 
 Action V. Schultz 277 
 
 Adams v. Adams 247,470,764 
 
 Adams v. Beideman 664 
 
 Adams v. Hudson County Bank 
 
 534, 536 
 Adams Express Co. v. Hoey. .628 
 African M. E. Church v. Con- 
 over 157,508 
 
 Albert v. Clarendon Invest- 
 ment Co 7,289 
 
 Albright v. Teas 483 
 
 Albro V. Dayton 219 
 
 Aleck V. Jackson 217 
 
 Allaire v. Ketcham 220,223 
 
 Ex parte Allen 646 
 
 Allen V. Allen...289, 317, 318,320 
 321, 334, 640, 641, 642 
 Allen V. Board of Chosen Free- 
 holders 500 
 
 Allen V. Cole.. 388, 389, 390, 606, 607 
 
 Allen V. Demarest 62,344,345 
 
 Allen V. Fury 301 
 
 Allen V. Roll .... 114, 195, 196, 584 
 Allen V. Taylor, 7, 188, 190, 191, 192 
 
 Allen V. Wood 597 
 
 Allen V. Wotflley 259 
 
 Allgor V. New Jersey State 
 
 Hospital 244 
 
 Allman v. United Brotherhood 
 
 8, 477, 479, 503, 519, 521, 536 
 
 Alpaugh V. Wood 377 
 
 Alpern v. Behrenburg :235 
 
 American Central Insurance 
 
 Co. V. Landau 164, 169 
 
 American Dock, &c., Co. v. 
 Trustees . .218, 371, 372, 373, 375 
 377, 378, 560 
 American Life, &c., Co. v. 
 
 Ryerson 597 
 
 American Trust Co. v. North 
 
 Belleville Quarry Co 635 
 
 Ames V. New Jersey Franklin- 
 
 ite Co 35, 197, 198, 581 
 
 Ammon v. Wiebold 125, 126 
 
 Amos V. Norcross 483 
 
 Amparo Mining Co. v. Fidel- 
 ity Trust Co 14,16 
 
 In re Anderson 768 
 
 Andrews v. Farnham 141,424 
 
 Andrews v. Ford 538 
 
 Andrews v. Guayaquil & Quito 
 
 R. R. Co 14 
 
 Andrews v. Stelle. .. .553, 573,763 
 
 Andrews v. Torrey. . .423, 434, 553 
 
 556, 585 
 
 Andrus v. Burke 540,541 
 
 Angel V. Pennsylvania R. R. 
 
 Co 293,308 
 
 Anglesey v. Colgan 507 
 
 Annin v. Annin. . .94, 154, 178, 180 
 
 Annin v. Jones 601 
 
 Annin v. Van Doren 755, 756 
 
 Anonymous— 2 Ves. Sr. 489... 350 
 Anthony Shoe Co. v. West 
 
 Jersey R. R. Co 500 
 
 Apgar V. Apgar 741 
 
 Appleton V. American Malting 
 
 Co 129 
 
 Arkenburgh v. Lakeside Resi- 
 dence Assn 112, 544, 568 
 
808 
 
 Table of Cases. 
 
 Armstrong v. Armstrong. .91, 137 
 
 433 
 
 Armstrong v. Fisher 76, 633 
 
 Armstrongs. Lear 145 
 
 Armstrong v. Potts 533 
 
 Armstrong v. Ross 580 
 
 Arnaud v. Grigg 311,336,331 
 
 Arndt v. Greggs 14 
 
 Arnett v. Finney 647 
 
 Arnett v. Welchi 143 
 
 Arnold v. Searing 96 
 
 Asbury & S. G. R. I^. v. Nep- 
 tune Township 195 
 
 Ashby V. Ashby 453, 468 
 
 Ashby V. Yetter 780, 781 
 
 Ashmore v.. Evans 363 
 
 Aspinwall v. Aspinwall. . . .46, 195 
 454,759 
 
 Atha V. Jewell 676 
 
 Atlantic City v. Feretti 3 
 
 Atlantic City v. New Audito- 
 rium Pier Co 250 
 
 Atlantic City Gas &c. Co. v. 
 
 Consumers Gas &c. Co.. 489, 496 
 Atlantic City Water Works 
 Co. V. Consumers Water Co. 484 
 
 B 
 
 Babbitt v. Fidelity Trust Co., 
 
 119, 353 
 
 Babcock v. Standish 363, 364 
 
 Bacon v. Davinney 573 
 
 Bacon v. Fay 684 
 
 Bailey v. Dalrymple 700 
 
 Bailey v. Ellis 601 
 
 Bailey v. Schnitzius 478,479 
 
 Bailey v. Stiles ... 33, 303, 333, 396 
 426, 508, 511, 531 
 
 Baird v. Baird 765 
 
 Baldwin v. Elizabeth 334 
 
 Baldwin v. Flagg 543, 641 
 
 Baldwin v. Howell 634 
 
 Baldwin v. Richman 143, 269 
 
 Baldwin v. Van Vorst 545 
 
 Ball V. Ward.. 109, 137, 160, 240, 241 
 
 Ballantine v. Harrison 488 
 
 Banks v. Weaver 143 
 
 Bannister v. Miller 394,438 
 
 Banta v. Brown 637 
 
 Atlantic Trust Co. v. Consoli- 
 dated Electric Storage Co.. 143 
 Attorney General v. Brown 
 
 489, 490, 754 
 
 Attorney General v. C. R. R. 
 
 of N. J 373,274 
 
 Attorney General v. Clavin ... 67 
 Attorney General v. Delaware 
 
 &c. R. R. Co 484,494 
 
 Attorney General v. Greenville 
 
 &c. R. R. Co .516 
 
 Attorney General v. Heishon. .490 
 Attorney General v. N. J. R. R. 
 
 &c. Co 487 
 
 Attorney General v. Paterson 
 
 169, 173, 483, 484, 488, 763, 766, 768 
 Attorney General v. Steward, 
 
 515, 517 
 
 Atwater v. Underbill 556 
 
 Atwater v. Walker 434, 553, 585 
 
 Atwater v. West 576 
 
 Atwood V. Carmer 34 
 
 Avon Land &c. Co. v. Finn, 
 
 446, 448, 607, 631 
 
 Ayers v. Casey 608, 634, 636 
 
 Ayres v. Shepherd 543 
 
 Banta v. Moore 383 
 
 Barber v. Beers 3 
 
 Barber v. West Jersey Title 
 &c. Co 769 
 
 Barger v. Gery 753 
 
 Barkalow v. Totten 370 
 
 Barker v. Barker 17,19 
 
 Barker v. Flagg 430 
 
 Barker v. Richardson 627 
 
 Barkley v. Elizabeth 604 
 
 Barnegat Beach Assn. v. 
 
 Busby 329 
 
 Barnes v. Taylor 686, 692 
 
 Barr v. Essex Trades Council. 492 
 
 Barr v. Voorhees 64, 67, 768 
 
 Barrell v. Barrell 676, 678 
 
 Barret v. Foley 753 
 
 Barrett v. Doughty. . .137, 134, 277 
 Barrett v. New York &c. R. R. 
 
 Co 24 
 
Table of Cases. 
 
 80!) 
 
 Barriclo v. Trenton Mutual 
 Life Insurance Co . . 164, 187, 190 
 
 191 
 
 Barrow v. Bispham 371 
 
 Barry v. Moeller 96, 129 
 
 Barton v. , Beatty 638, 639 
 
 Barton v. Long. 320, 771, 777 
 
 Bassett v. Johnson. . .370, 372, 373 
 374, 375 
 
 Bates V. Conrow 657 
 
 Bayerischen National Ver- 
 
 band &c. v. Knaus 206, 213 
 
 Bayley v. Bayley 143, 146, 337 
 
 Bayliss v. Newark &c. Traction 
 
 Co 488 
 
 Beach v. Sterling Zinc & Iron 
 
 Co 345 
 
 Beach v. Waddell 203 
 
 Beale v. Blake 237, 333 
 
 Beatty v. De Forest 636 
 
 Beatty v. Lewis 223 
 
 Beatty v. Trustees 757 
 
 Beatty v. Van Brenner 585, 587 
 
 Bechtel v. Carslake 519 
 
 Bechtold v. Read 610 
 
 Beck V. Beck 195, 196, 197 
 
 Becker v. Carey 673 
 
 Becker v. Gilbert 483 
 
 Beckett v. Zane 752 
 
 Beckhard v. Rudolph 763 
 
 Beckhaus v. Ladner. .385, 386, 389 
 
 391 
 
 Bedell v. Hoffman 215, 216 
 
 Bedwin v. Asprey 121 
 
 Beeckman v. Montgomery. .. .335 
 
 Belford v. Crane 388 
 
 Bell V. Gilmore 4, 6 
 
 Bell V. Hall 310,313,325,330 
 
 Bell V. Pennsylvania R. R. Co. 493 
 
 Bell V. Romaine 537, 549 
 
 Belleville Insurance Co. v. 
 
 Van Winkle 153 
 
 Bellows V. Wilson 234 
 
 Bender v. Dialogue 348 
 
 Benedict v. Columbus Con- 
 struction Co 485 
 
 Bennett v. Bennett 24,349,379 
 
 280, 381 
 Bennett v. Hadsell 556 
 
 Bennett v. Hamlin 307, 308 
 
 Benson v. Wolverton. .238, 242 
 
 ' 243, 393, 395, 431, 755 
 
 Bent V. Smith ... 389, 393, 394, 395 
 
 396 
 Bentley v. Long Dock Co. 
 
 687, 690, 694, 701 
 Bergen v. Porpoise Fishing Co. 147 
 
 Bergholz v. Ruckman 347 
 
 Bergman v. Fortescue. . .544, 545, 
 562, 563 
 Berlin Building & Loan Assn. 
 
 V. CHfford 649 
 
 Bermes v. Frick. .103, 176, 177, 179 
 Berryman v. Graham. .134, 136, 199 
 
 788 
 
 Besson v. Gribble 335 
 
 Bethlehem Iron Co. v. Phila- 
 delphia &c. R. R. Co. . . .606, 629 
 
 Bickford v. Skews 522 
 
 Biddle v. Pugh 558,573,643 
 
 Bidlock V. Mason 131 
 
 Bigelow V. Cassedy.. 575, 653,654 
 
 660 
 Bigelow V. Old Dominion Cop- 
 per Mining &c. Co 289 
 
 Bigelow V. Rommelt 547 
 
 Bigejow Blue Stone Co. v. 
 
 Magee 143 
 
 Bilder v. Robinson 634 
 
 Bingham v. Camden 94, 502 
 
 Birbeck Investment &c. Co. v. 
 
 Gardner 606,616 
 
 Bird V. Davis 550 
 
 Bird V. Inslee 270 
 
 Bird V. Magowan 25,278 
 
 Bird V. Styles 394 
 
 Bishop V. Waldron..223, 338, 373 
 374, 376, 377, 290 
 
 Black V. Black ' 383 
 
 Black V. Delaware & Raritan 
 
 Canal Co . . .483, 485, 533, 766, 787 
 
 Black V. Lamb.... 36, 373, 373,374 
 
 375, 393 
 
 Black V. Shreeve....ll2, 134, 277 
 
 Black V. Shreve..369, 370,373, 374 
 
 Black V. Thurston 556 
 
 Blair v. Green 198, 303 
 
 Blair j;. Porter 314,757 
 
810 
 
 Table of Cases. 
 
 Blake v. Domestic Mfg. Co... 763 
 
 Blake v. Garwood 210 
 
 Blakeman v. Bourgeois 234 
 
 Blatchford v. Conover 236 
 
 Blauvelt v. Ackerman 360,364 
 
 Blauyelt v. Smith. 636, 637, 638, 639 
 
 In re Bleakly 460 
 
 Bleecker v. Hennion 667 ■ 
 
 Blessing v. Smith 369 
 
 Bliss V. New York Life Insur- 
 ance Co 627, 629 
 
 Blue V. Everett 539, 558 
 
 Board of Health v. Dupont 
 
 &c. Powder Co 477, 496 
 
 Board of Home Missions v. 
 
 Davis 291,638 
 
 Board of Railroad Commis- 
 sioners V. United N. J. R. R. 
 
 &C. Co 272,290 
 
 Bodine v. Gray 579 
 
 Boehme v. Rail 25, 322 
 
 Bogert V. Elizabeth 223,224 
 
 Bogert V. Stevens 557 
 
 Boice V. Conover 337,772,787 
 
 BoUes V. BoUes 164,173,174 
 
 Bonaparte v. Camden & Amboy 
 
 R. R. Co 481 
 
 Bonnell v. Dunn 63 
 
 Boon V. Pierpont..38, 37, 160, 276 
 
 286 
 Booraem v. North Hudson R. 
 
 R. Co 483, 484, 758 
 
 Booraem v. Wells 95,135,137 
 
 170, 388 
 Boorum v. Tucker. . .613, 613, 634 
 Boston Franklinite Co. v. 
 
 Condit 663 
 
 Boston Franklinite Co. v. 
 New Jersey Zinc Co... 529, 530 
 
 533 
 Bouvier v. Baltimore R. R. 
 
 &c. Co 663 
 
 Bowen v. Cross 311, 313 
 
 Bowen v. Idley 130 
 
 Bower v. Bower 542 
 
 Bowlby V. Lott 605 
 
 Bowler v. Osborne 413,415 
 
 Bowne v. Ritter 613, 614, 615 
 
 Boyd V. Hudson City Society 
 
 626, 629 
 
 Boyer v. Boyer. .245, 438, 439, 443 
 444, 450 
 
 Boyle V. Johnson 513 
 
 Bo3mton v. Sandford 35,445 
 
 Bracey v. Sandiford 122 
 
 Bradbury v. Bradbury. 423, 425, 427 
 Bradley v. Glenmary Co.. 545, 548 
 
 Bradley v. McPherson 330,334 
 
 Bradley & Currier Co. v. 
 
 Berns 141 
 
 Bradshaw v. Qark 355 
 
 Brady v. Carteret Realty Co. 
 330, 331, 332, 337, 375, 611, 628, 634 
 
 Brands v. De Witt 195,331 
 
 Brant v. Brant 16 
 
 Brantingham v. Brantingham 
 
 423, 437, 646 
 
 Brasher v. Van Cortlandt 159 
 
 Brasted v. Sutton 588 
 
 Bray v. Hartough 390,587 
 
 Brennan Mfg. Co. v. Adams.. 408 
 
 Brewer v. Day 536 
 
 Brewer v. Norcross 195,393 
 
 Brewster v. Newark 533 
 
 Briant v. Reed 307,313,313 
 
 Brick V. Burr 509 
 
 Brigantine v. Holland Trust 
 
 Co 496 
 
 Briggs V. Bell 63 
 
 Brill V. Riddle Co. .. .291, 292, 582 
 
 Brindley v. Lawton 185 
 
 Brinkerhoflf v. Franklin .. 195, 434 
 444, 445 
 
 Bristol V. Skerry 127, 138 
 
 Brittan v. Updike 600 
 
 Britton v. Hill 493, 518 
 
 Britton v. Smith 624 
 
 Brokaw v. Brokaw. .114, 141, 142 
 
 344 
 
 Brookfield v. Williams 680,689 
 
 Brooks V. Lewis 503 
 
 Broome v. N. Y. & N. J. Tele- 
 phone Co 479 
 
 Brown v. Balen 306 
 
 Brown v. Bulkley. . .389, 393, 394 
 395, 435 
 
 Brown v. Carpenter 143 
 
 Brown v. Coriell 56 
 
Table of Cases. 
 
 811 
 
 Brown v. Easton 505 
 
 Brown v. E'dsall .534 
 
 Brown v. Fuller. .503, 519, 531, 530 
 
 Brown v. Gaskill 389 
 
 Brown v. Grandin 180 
 
 Brown v. Kahnweiler 390,393 
 
 Brown v. Pancoast 118 
 
 Brown v. Ricketts 356 
 
 Brown v. Ritter 99 
 
 Brown v. Tallman 38, 378 
 
 Brown v. Van Dyke 138, 130 
 
 Brown v. Warden 373 
 
 Brown v. Winans 535, 537 
 
 Browning & Bros.' Case 768 
 
 Brownlee v. Lockwood 383, 383 
 
 Bruce v. Gale 755 
 
 Bruen v. Crane. .100, 103, 104, 134 
 
 575 
 
 Brumagin v. Chew 440 
 
 Brundage v. Goodfellow 367 
 
 Brundred v. Paterson Machine 
 
 Co 515 
 
 Brundred v. Walker 570 
 
 Brunson v. Board of Freehold- 
 ers 484,518 
 
 Bryan v. Bryan 676 
 
 Buchanan v. Buchanan 67, 107 
 
 Buck V. Backarack 507 
 
 Buckalew v. Snedeker 678 
 
 Buckingham v. Corning. .190, 345 
 
 347 
 Buckingham v. Ludlum. . .359, 360 
 
 Cahill V. Cahill 668, 669 
 
 Cairo &c. R. R. Co. v. Titus 
 
 ,59,60 
 
 Calkins v. Landis 395 
 
 Callan v. Bodine 540, 543 
 
 Callan v. Washburn 543 
 
 Calvin v. Shimer 636 
 
 Camden & Amboy R. R. Co. v. 
 
 Stewart .... 31, 181, 183, 183, 184 
 309, 319, 340, 356, 509, 510, 536 
 753, 765, 766, 768 
 Camden & Atlantic R. R. Co. 
 
 V. Atlantic &c. R. R. Co.... 495 
 Camden & Atlantic R. R. Co. 
 
 V. Elkins 767 
 
 Buckley h. Corse 318, 335, 503 
 
 504, 513 
 Budd V. Camden &c. R. R. Co. 479 
 
 Budd V. Van Orden 660 
 
 Buecker v. Carr 119 
 
 Bull V. Titsworth 643 
 
 Bullock V. Adams 154 
 
 Bullock V. Zilley 340, 341 
 
 Bunker v. Anderson 388,393 
 
 Burgin v. Giberson . . .311, 336, 337 
 
 330 
 Burgin v. Rutherford. 575, 478, 581 
 
 Burlew v. Hillman 647 
 
 Burne v. O'Shaughnessy 168 
 
 Burne v. Partridge 361 
 
 Burnham v. Dalling. .437,431, 757 
 
 Burrell v. Middleton 483 
 
 Bush V. Cushman 557 
 
 Bushey v. National State Bank 
 
 568, 633, 635 
 
 Busick V. Van Ness 385 
 
 Butcher v. Camden 501 
 
 Butler V. Farry 565 
 
 Butler V. Rogers 486 
 
 Butler V. Society for Estab- 
 lishing Useful Manufactures 533 
 Butterfield v. Third Avenue 
 
 Savings Bank 771, 788, 789 
 
 Buttlar V. Buttlar 147, 664 
 
 Buzby V. Roberts 358, 686 
 
 Byrne v. Congdon 633 
 
 c 
 
 Camden Horse R. R. Co. v. 
 
 Citizens' Coach Co 153 
 
 Camden Safe Deposit Co. v. 
 
 Barbour 5 
 
 Camden Safe Deposit &c. Co. 
 
 V. Dialogue 116, 567 
 
 Cammack v. Johnson 393, 518 
 
 Campbell v. Bowne 133, 134 
 
 Campbell v. Campbell. 135, 573, 677 
 
 Campbell v. Cole 667,694 
 
 Campbell v. Fort 456 
 
 Campbell v. Gardner. .618, 619, 635 
 
 630, 631 
 
 Campbell v. McKay. .163, 164, 173 
 
 174 
 
8.12 
 
 Table of Cases. 
 
 Campbell v. Perth Amboy &c. 
 Assn. 259 
 
 Campbell v. Roddy 597 
 
 Campbell v. Runyon 518, 533 
 
 Campion v. Kille. .25, 311, 313, 329 
 
 330, 423, 424, 553, 585, 586 
 
 Cannon v. Ballard. .38, 93, 102, 168 
 
 Cannon v. Wright 53,438,571 
 
 Cape May &c. R. R. Co. v. 
 
 Johnson 455, 458, 460 
 
 Capner v. Flemington Mining 
 
 Co 503, 504, 508, 525, 589 
 
 Carlisle v. Cooper 357,344,369 
 
 Carpenter v. Easton & Amboy 
 
 R. R. Co 370, 374, 432, 753 
 
 Carpenter v. Gray 
 
 118, 301, 288, 393 
 
 Carpenter v. Hoboken 100, 334, 225 
 
 Carpenter v. Muchmore. .387, 438 
 
 444, 447, 475 
 
 Carpenter v. Shanley 633 
 
 Carpenter v. Smith 625 ' 
 
 Carr v. Weld... 398, 397,511,526 
 528, 530 
 
 Carson v. Coleman 533 
 
 Carter v. Carter 339 
 
 Carter v. Cryer 206, 315, 216 
 
 Carter -v. Smith 641 
 
 Carter v. Uhlein 100 
 
 Cartun v. Myers 556,563,565 
 
 Cary v. Cary 350, 352 
 
 Case V. McGill 67 
 
 Cassedy v. Bigelow 786, 787 
 
 Castner v. Sliker 127 
 
 Castree v. Shotwell 65 
 
 Catholic Benevolent Legion v. 
 
 Murphy 308 
 
 Cawley v. Leonard 54,444,445 
 
 Central R. R. Co. v. Hetfield 
 
 344, 389 
 C. R. R. of N. J. V. N. J. West 
 
 Line R. R. Co 356,258 
 
 C. R. R. of N. J. V. Standard 
 
 Oil Co 483,779 
 
 Chadwick v. Chadwick 423 
 
 Chadwick v. Island Beach Co.581 
 Chamberlain v. Larned. . .764, 766 
 
 Chambers v. Hunt 407 
 
 Chambers v. Kunzman 156 
 
 Chambers v. Tulane 323 
 
 Champlin v. New York 297 
 
 Champion v. Hinkle 633, 641 
 
 Chance v. Teeple 366, 394 
 
 Chancellor v. Gummere. . .250, 613 
 
 Chancellor v. Seiberlich 558 
 
 Chancellor v. Towell 601 
 
 Chancellor v. Traphagen. .387, 640 
 Chandler v. Herrick. .427, 433, 551 
 
 Chandley v. Robinson 234 
 
 Chapin v. Sears 683 
 
 Chapin v. Wright 657 
 
 Chapman v. Hunt. . .141, 148, 166 
 
 567, 568, 580 
 
 Chase v. Garretson. .401, 404, 416 
 
 Chasy V. Gowdy 108 
 
 In re Chattin 714, 715 
 
 Cheadle v. State 457 
 
 In re Cheeseman 456, 471 
 
 Chegary v. Schofield 766, 777 
 
 Chesapeake & Ohio R. R. Co. 
 
 V. Swayze 779 
 
 Chester v. Halliard. . .129, 130, 171 
 
 Chester v. King 106, 573 
 
 Chester Iron Co. v. Beach 197, 399 
 
 Chetwood V. Brittan 518 
 
 Chetwood v. Coffin 589 
 
 Chew V. Chew 353 
 
 Chew V. Corkery 754 
 
 In re Child 716,717,719 
 
 Chilver v. Weston 566,576,577 
 
 Chiswell V. Morris 709 
 
 Christopher v. Mattlage 364 
 
 Citizens' Coach Co. v. Camden 
 
 Horse R. R. Co 483,484,514 
 
 City Bank v. Bangs 213 
 
 Clair V. Cox 13 
 
 Clair V. Terhune 788, 789 
 
 Clark V. Board of Education 60 
 
 Clark V. Clark 349 
 
 Clark V. Condit 365, 651 
 
 Clark V. Davis 564 
 
 Clark V. Dew 472 
 
 Clark V. Hall 436 
 
 Clark V. Van Cleef. .260, 389, 431 
 
 Clark V. Wood 453 
 
 Cleveland v. O'Neil 438 
 
Table of Cases. 
 
 813 
 
 In re Clifford 713, 715 
 
 Cline V. Prall 629 
 
 Close V. Brown 635 
 
 Close V. Close 44,45,47 
 
 Coast Co. V. Spring Lake.... 368 
 
 Cockburn v. Thomson 93 
 
 Cocks V. Varney 164 
 
 Coddington v. Bispham. .591, 641 
 
 Coddington v. Idell 753 
 
 Codington v. Mott. . .317, 318, 319 
 330, 323, 325, 340 
 
 Coe V. New Jersey Midland R. 
 
 R. Co 574, 580, 595 
 
 Coffin V. Cooper 304 
 
 Coffin V. Loper 681 
 
 Cole V. Cole. .179, 283, 285, 677, 678 
 
 Coles V. Coles 689, 711 
 
 Colfax V. Colfax 108,109 
 
 Colgate V. Colgate 124 
 
 Collard v. Smith 35,26,399 
 
 Collerd v. Huson 543 
 
 Collings V. Camden 521 
 
 In re Collins 724, 725 
 
 Collins V. Leary 164,167,180 
 
 Collins V. Taylor 341 
 
 Collins V. Toppin 125 
 
 Colloty V. Stein 485,488,489 
 
 Colton V. Depew 558 
 
 Colton V. Ross 155, 157 
 
 Combs V. Combs 303 
 
 Combs V. Little 655 
 
 In re Comfort. . .370, 372, 373, 374 
 - 717, 725, 726, 727 
 
 Comins v. Culver 173, 359 
 
 Commercial Assurance Co. v. 
 
 New Jersey Rubber Co 187 
 
 Commercial Bank v. Reckless 
 
 394, 396 
 Commissioners v. Johnson.... 93 
 
 Concklin v. Coddington 649 
 
 Condict V. Condict 668 
 
 Condict V. Erie R. R. Co. .339, 391 
 
 Condit V. Bigalow 359, 260 
 
 Condit V. King 215 
 
 In re Congden 732 
 
 Congregational Church v. Ben- 
 edict 109,110 
 
 Connelly Mfg. Co. v. Wattles 
 
 495,514 
 
 Connolly v. Wells 96 
 
 In re Conover 721 
 
 Conover v. Conover 603 
 
 Conover v. Grover 590 
 
 Conover v. Hobart 553 
 
 Conover v. Ruckman.512, 530, 533 
 527, 793 
 
 Conover z;. Sealy 164,166,168 
 
 Conover v. Walling. .609, 639, 700 
 701, 702, 753, 763 
 
 Conover v. Wright 361 
 
 Conrad v. Mullison 55 
 
 Consolidated Electric Storage 
 Co. V. Atlantic Trust Co. . 22 
 434, 444, 445 
 
 Consolidated National Bank v. 
 Larkins 447 
 
 Converse v. Ware S. Bank... 211 
 
 Conway v. Halsey 139 
 
 Conway v. Wilson 293 
 
 Coogan V. McCarren 347,657 
 
 Cook V. Chapman 506, 507 
 
 Cook V. Weigley 344, 443, 793 
 
 Cool V. Higgins 108 
 
 Cooper V. Bloodgood 561 
 
 Cooper V. Cooper. .. .105, 774, 783 
 Cooper V. Philadelphia Worsted 
 
 Co " 130 
 
 Copper King v. Robert 420, 421 
 
 Corey v. Voorhies . 13, 455, 519, 531 
 Corkery v. C. R. R. of N. J.. .443 
 
 Ccirles V. Lashley 610 
 
 Corlies v. Corlies 349, 251, 285, 291 
 Cornelius v. Halsey. .146, 578, 579 
 
 Cornelius v. Post 483,533 
 
 Corporation for Relief v. Eden 
 
 305, 393, 642 
 
 Cortelyou v. Hathaway 590 
 
 Coryell v. Holcombe. .470, 767, 770 
 
 Coster V. Munroe Mfg. Co 561 
 
 Coudert v. Coudert 573 
 
 Coulston V. Coulston 581 
 
 Country Homes Land Co. v. 
 
 De Gray 331,683 
 
 Coursen v. Canfield. . .313, 557, 563 
 Couse V. Boyles 563 
 
814 
 
 Table of Cases. 
 
 Couse V. Columbia Powder 
 
 Mfg. Co 172,179,274 
 
 In re Covenhoven . . 714, 716, 719 
 724, 725, 727 
 
 Cowart V. Perrine 323, 423 
 
 Cox V. Roame 108 
 
 Cox V. Westcoat 331,585,587 
 
 Coxe V. Halsted. .387, 605, 606, 607 
 609, 610, 631 
 
 Craft V. Schlag 305, 398, 399 
 
 Craighead v. Pike 695 
 
 V. Cramer 588 
 
 Crammer v. Atlantic City Gas 
 Co 303 
 
 Crahdall v. Grow 514 
 
 Crane v. Bonnell 651, 655 
 
 Crane v. Brigham 387,475 
 
 Crane v. De Camp. . .651, 656, 788 
 
 789 
 
 Crane v. Ely 303,428,533 
 
 Crane v. Fairchild. . . .164, 165, 174 
 
 Crane v. Feltz 55 
 
 Crane v. Gurnee 759 
 
 Crane v. Homeopathic &c. Co 250 
 Cranwell v. Qinton Realty Co. 752 
 
 Crawford v. Bertholf 36 
 
 Crawford v. Kline 417 
 
 D 
 
 Dabb V. Y. C. & H. R. R. Co. .398 
 
 Da Costa v. Da Costa 121 
 
 Dahlberg v. Haeberle 633 
 
 Daly V. New York & Green 
 
 wood Lake R. R. Co 597 
 
 Danbury v. Robinson. . .298, 556 
 557, 586, 647, 648, 649 
 
 Danforth v. Moore 680, 681 
 
 Danner v. Danner 108, 166 
 
 Dare v. Allen 99, 112, 170, 318 
 
 In re Davenport. .722, 725, 726, 727 
 
 David V. Cripps 184 
 
 Davidson v. Isham 174 
 
 Davidson v. Thompson. . .678, 695 
 
 Davis V. Davis . . 147, 148, 161, 248 
 
 249, 250, 267 
 
 Davis V. Flag 361 
 
 Davis V. Flagg 56, 550 
 
 Davis V. Gray 455 
 
 Davis V. Megroz 7 
 
 Crawley v. Leonard 619 
 
 Cregar v. Creamer 526 
 
 Cresse v. Security Land Co.. 22, 51 
 
 Crocheron v. Savage 550 
 
 Cronin v. Bloemecke 485 
 
 Cnonkri'ght v. Haulenbeck 
 
 692, 709, 768 
 
 Cropper v. Brown. .617, 618, 620 
 
 631, 635 
 
 Cropper v. Smith 317 
 
 Crosby v. Washburn. .540, 541, 641 
 
 Cross V. Morristown 758 
 
 Crowell V. Botsford 2,7 
 
 Crowell V. Currier 643 
 
 Crowell V. Hospital of St. 
 
 Barnabas 642, 643 
 
 Crowther v. Lloyd 408 
 
 Cruger v. Halliday 145 
 
 Cubberly v. Cubberly 101 
 
 Cumberland Lumber Co. v. 
 
 Clinton Hill Lumber Co 787 
 
 In re Gumming 725 
 
 Cummins v. Wire 416 
 
 Currie v. Bittenbinder 568 
 
 Cutler V. Tuttle 91, 136 
 
 Cutting V. Dana 346 
 
 Davis V. Palmer 680, 681, 686, 692 
 
 695 
 
 Davis V. Sullivan 33 
 
 Davison v. Davison 324 
 
 Davison v. Johnson . . 250, 262, 263 
 
 Davison v. Perrine 282,283 
 
 Davison v. Rake Ill 
 
 Dawes v. Cadmus 585 
 
 Dawes v. Taylor 235,754 
 
 Dawes v. Wheeler 44 
 
 Dawson v. Amey 340, 347 
 
 Dawson v. Drake 596,628,659 
 
 Dawson v. Leschziner 268 
 
 Day V. Allaire. . .441, 444, 445, 448 
 
 451 
 Day V. Argus Printing Co. 436, 437 
 
 Day V. Devitt 93, 114 
 
 Day V. Hathaway Printing &c. 
 
 Co 342 
 
 Day V. Lyon 618 
 
Table of Cases. 
 
 815 
 
 In re Dayton 731 
 
 Dayton v. Dusenberry 563 
 
 Dayton v. Melick 197, 198 
 
 Dean v. Bonnell 503 
 
 Dean v. Dean 363 
 
 De Baun v. Brand 634 
 
 De Bevoise z;. H. & W. Co 284 
 
 De Carriere v. De Callone. . . .351 
 
 Decker v. Caskey 373, 376 
 
 Decker v. Decker 708 
 
 Decker v. Panz 138 
 
 Decker v. Ruckman 788 
 
 Decker v. Wilson Ill 
 
 Deegan v. Capner 112,115 
 
 De Greiflf v. Wilson 95,568 
 
 De Groot v. McCotter 545,546 
 
 De Groot v. Wright 93, 533 
 
 De Hanne v. Bryant 219, 220 
 
 De Hart v. Baird 395 
 
 De Hart v. Condit. .717,730,735 
 
 726 
 
 Dehart v. Dehart 112,113 
 
 Delany v. Noble 36 
 
 Delaware &c. Canal Co. v. 
 
 Camden &c. R. R. Co 488 
 
 Delaware & Raritan Canal Co. 
 
 V. Raritan &c. R. R. Co. 322, 497 
 Delaware Bay R. R. Co. v. 
 
 Markley 770 
 
 D., L. & W. R. R. Co. V. 
 Breckenridge . . 373, 374, 377, 378 
 379, 519, 771, 780 
 D., L. & W. R. R. Co. V. Cen- 
 tral Stock Yard Co.. . .479, 483 
 484, 779 
 Delaware &c. R. R. Co. v. 
 
 Markley 79 
 
 D., L. & W. R. R. Co. V. Scran- 
 ton 616,618,633 
 
 Deftiarest v. Berry. . . .647, 648, 659 
 Demarest v. Hardham 170, 173, 174 
 
 Demarest v. Terhune 273,274 
 
 Den V. Farley 405 
 
 Den V. Thompson 408 
 
 Den V. Wood 403 
 
 Denman v. Nelson 389 
 
 Denton v. Leddell 371 
 
 De Puy V. Strong 96 
 
 In re De Vausney 715, 716 
 
 De Witt V. Ackerman 683 
 
 In re Dey 91, 716, 722, 723, 724 
 
 Dey V. Allen 63 
 
 Dey V. Dey 531 
 
 Dey V. Hathaway Printing & 
 
 Telephone Co 7 
 
 Dickerson v. Hodges 298, 313 
 
 Dickerson v. Wenman 390,392 
 
 Dickey v. Allen 390, 391 
 
 Dickinson v. Trenton 653 
 
 Dinsmore v. Westcott. .. .3, 19, 54 
 387, 475, 571 
 
 Disbrow v. Johnson 446 
 
 Dithmar v. Dithmar 352 
 
 Dittman v. Distilling Co. of 
 
 America 323, 424 
 
 Dixon V. Bentley 557 
 
 Dixon V. Dixon 348 
 
 Doane & Jones Lumber Co. v. 
 
 Essex Building & Loan Co. 
 
 267,288,291,307 
 
 Dobbins v. Cragin 508 
 
 Dobleman v. Gately 483 
 
 Dod V. Paul 171 
 
 Dodd V. Bellows 310 
 
 Dodd V. Flavell 505, 513, 531 
 
 Dodd V. Lindsley 109 
 
 Dodd V. Una 452,460,468,470 
 
 471, 769 
 
 Dodd V. Wakeman 655 
 
 Dodd V. Wilkinson 309 
 
 Dodge V. Fuller 33 
 
 Dodge V. Pennsylvania R. R. 
 
 Co 484,497 
 
 Dolman v. Cook 434, 553, 585 
 
 Doolittle V. Lewis 145 
 
 Doremus v. Cameron 389 
 
 Doremus v. Doremus 688 
 
 Doremus v. Paterson. .138, 174, 195 
 
 303, 309, 500, 703 
 
 Dorsheimer v. Rorback. . .103, 105 
 
 106, 111, 134, 134, 179, 436, 437, 574 
 
 Doughaday v. Crowell 680 
 
 Dougherty v. Dougherty 309 
 
 Doughty V. Doughty 306 
 
 Doughty V. Somerville & Eas- ,• 
 
 ton R. R. Co 486,766,779 
 
 Douglas V. Merceles 361 
 
 Dowden v. Junker 466 
 
816 
 
 Table of Cases. 
 
 Downing v. Risley 107, 109, 110 
 
 Drake v. Drake 102 
 
 Drake v. Lanning 203 
 
 Dringer v. Jewett 270 
 
 Drost V. Hall 180,385 
 
 Drummond v. Westervelt 283 
 
 Dungey v. Angrove 211 
 
 Dunham v. Cox 143 
 
 Dunham v. Doremus 579 
 
 Dunham v. Johnson 349 
 
 Dunham v. Ramsey 95 
 
 Dunn V. Seymour 114,135 
 
 Dunnell v. Henderson 363 
 
 Dunning v. Crane 45, 336 
 
 Durling v. Hammar. .163, 168, 169 
 179, 382, 283, 285 
 
 Duryee v. Linsheimer 195 
 
 Dusenbury v. Newark. .. .490, 493 
 
 Dutch Church v. Smock 366 
 
 Dyer v. Waters 260 
 
 E 
 
 Earl of Portsmouth v. Fellows 186 
 East New Brunswick &c. Co, 
 
 V. Raritan River R. R. Co. .470 
 Easton v. N. Y. & L. B. R. R. 
 Co. 352, 439, 440, 494, 497, 498, 505 
 506, 507 
 Easton National Bank v. Amer- 
 ican Brick &c. Co 259,788 
 
 Eaton V. Jenkins 526, 537 
 
 Eberhart v. Gilchrist. .144, 639, 630 
 
 Eckerson v. McCulloh 364 
 
 Edgar v. Clevenger 191, 193 
 
 Edison Storage Battery Co. v. 
 Edison Automobile Co.. 507, 517 
 
 Edsall V. Merrill 678,679 
 
 Edwards v. McClave 269 
 
 Edwards v. Mason 782,785 
 
 Edwards v. National Window 
 
 Glass Assn 188 
 
 Egner v. Meis 684 
 
 Ehret v. Camden &c. R. R. Co. 484 
 Elkins V. Camden & Atlantic 
 
 R. R. Co 501,523 
 
 Elliott V. Elliott 352 
 
 In re Ellis 728 
 
 Ellis V. Feist 227, 675, 683 
 
 Ellison V. Gray 765, 766 
 
 Ellsworth V. Curtis 313 
 
 Elmendorf v. Delancy 160 
 
 Elmendorf v. Elmendorf. .20, 352 
 Elmer v. Loper. .100, 114, 322, 658 
 
 659 
 Ely V. Crane 504, 528 
 
 Ely V. Perrine...595, 597, 598, 614 
 
 Ely V. Wilson 558 
 
 Emans v. Emans 158, 163, 164 
 
 169, 178, 179, 180, 385 
 Emans v. Wortman . . 164, 165, 175 
 Embury v. Bergamini. . . .444, 447 
 
 Embury v. Klemm 449 
 
 Emery v. Downing 36, 434, 444, 447 
 
 Emson v. Ivins 518 
 
 Emson v. Lawrence 789 
 
 Endicott v. Mathis. .453, 455, 469 
 473, 522, 533 
 Ennis v. Eden Mills Paper 'Co. 130 
 Equitable Life Assurance Co. 
 
 V. Laird 12,437 
 
 Erie R. R. Co. v. D., L. & W. 
 
 R. R. Co 485, 493, 497, 498 
 
 Essex Paper Co. v. Greacen 
 
 273, 274, 275, 277 
 Esterbrook Co. v. Ahern 
 
 34, 461, 472, 533 
 Ettenborough v. Bishop. .335, 533 
 Eureka Fire Hose Co. z'. Eureka 
 
 Rubber Mfg. Co 437 
 
 Eustis Mfg. Co. V. Eustis. .153, 154 
 
 Evans v. Evans. .. .3, 99, 105, 111 
 
 113, 113, 118, 140, 159, 168, 173 
 
 383, 395 
 
 Evans v. Huffman. . .390, 423, 437 
 
 Evans v. Staples 197, 421 
 
 Everly V. Rice. . .300, 511, 530, 533 
 
 533 
 
 Ewald V. Ortynsky.. .5, 6, 15, 353 
 
 254, 255, 356, 362, 287, 316, 763, 769 
 
 Fackler v. Worth 639 
 
 Fairchild v. Fairchild. . . .256, 258 
 296, 454 
 
 Fairchild v: Hunt 753 
 
 Faitoute v. Haycock 355,593 
 
 Falk V. James 132 
 
Table of Cases. 
 
 817 
 
 Farmer v. Ward 581,603 
 
 Farmers' National Bank v. 
 
 Lloyd 54,575 
 
 Farr v. Hauenstein 370 
 
 In re Farrell 739, 751 
 
 Fause'l v. Schabel 548 
 
 Fawkes v. Pratt 159 
 
 Fay V. Fay. . : 390 
 
 Feary v. Hayes 317, 333 
 
 Fee V. Sharkey 361 
 
 Feigenspan v. Nizolek 368,493 
 
 Feinberg v. Feinberg. .443, 443, 451 
 
 Feistel v. King's College 533 
 
 Feit V. Vanatta 755 
 
 Fellows V. Niver 133 
 
 Fenhoulet v. Passavant 186 
 
 Fennimore v. Wagner. 364, 365, 366 
 Ferguson v. Central R. R. Co 414 
 
 Ferry v. Laible .164,166,385 
 
 Feuchtwanger v. McCool 
 
 31, 35, 39, 393, 300, 308 
 
 Fiacre v. Chapman 395,581 
 
 Fidelity Trust Co. v. Hoboken 
 
 &c. R. R. Co 653 
 
 Field V. Thistle..l06, 569, 573, 644 
 
 Field V. West Orange 335 
 
 Filley v. Van Dyke 179 
 
 Firemen's Insurance Co. v. 
 
 Wilkinson 551 
 
 Firmstone v. De Camp. . .518, 526 
 First National Bank of Mor- 
 
 ristown v. Bininger 309, 210 
 
 Fisher v. Quick 340, 755 
 
 Fisk V. Grosvenor 686 
 
 Fiske V. Weigel 626, 639 
 
 Fisler v. Porch 370, 390, 391 
 
 Fitch V. Brower 313 
 
 Fittichauer v. Metropolitan &c. 
 
 Co 319, 228, 339, 330, 331, 333 
 
 334, 336 
 
 Fitzgerald v. Christl 453, 458 
 
 Flaacke v. Jersey City 753 
 
 Flagg V. Baldwin 553 
 
 Flagg V, Bonnel..363,363,264,365 
 
 367 
 
 Flagler v. Blunt... 67 
 
 Flannery v. Central Brewing Co. 
 
 418, 430 
 
 Flavell V. Flavell 359,418,789 
 
 Fleischman v. Young. 518, 526, 529 
 Fleming v. Fleming Hotel Co. 639 
 Flemineton National Bank v. 
 
 Jones 391,393 
 
 Fletcher v. Newark Telephone 
 
 Co 93,95,101,116 
 
 Flitcroft V. Allenhurst Club 
 
 39, 307 
 
 Flynn v. O'Malley 677 
 
 Folwell's Case 106 
 
 Forbes v. Tuckerman 430 
 
 Force v. Brown 65 
 
 Force v. Dutcher 153,361,281 
 
 387, 394 
 
 Forman v. Bulson 661 
 
 Forrest v. Price .. 66, 460, 462, 468 
 
 Forst V. Kirkpatrick 568 
 
 Fort Wayne Electric Co. v. 
 
 Franklin Electric Light Co.. 345 
 
 Foster v. Dey 433 
 
 Foster v. Knowles 322 
 
 Foster v. Union Bank 598 
 
 Fowler v. Roe 389,518,536 
 
 Fox V. Lynch 489 
 
 Fraas v. Barlement 459, 468 
 
 Francis v. Bertrand 154 
 
 Frank v. Herold 453, 463, 470, 
 
 Franklin v. Nutley Water Co. 481 
 Franklin Building Assn. v. 
 
 Richman 541 
 
 Franklin Electric Light Co. v. 
 
 Fort Wayne Electric Co. 
 
 344, 439 
 Franklyn v. Taylor &c. Co. . . 7 
 Frazier v. Barnum ... 63, 65, 67, 68 
 
 Frazier v. Swain 360 
 
 Fredenburgh v. Burnet 557 
 
 Freehold & N. Y. R. R. Co. v. 
 
 Hodgson 301 
 
 Freehold JVIutual &c. Assn. v. 
 
 Brown 298 
 
 Freeman v. Alderson 13 
 
 Freeman v. Elmendorf 530 
 
 Freeman v. Island Heights 
 
 Hotel &c. Co 788 
 
 Freeman v. Scofield 95, 99, 100 
 
 371, 569 
 Freeman v. Staats 373,376 
 
818 
 
 Table of Cases. 
 
 Freese ». Swayze 446,469,472 
 
 473 
 
 Freichnecht v. Meyer 150, 376, 
 
 658, 660 
 
 French v. Armstrong 259 
 
 French v. Griffin 196 
 
 French v. Snell 530 
 
 Frenche v. Chancellor. .. .344, 564 
 
 Frenche v. McConnell 560 
 
 Frey v. Frey 757 
 
 G 
 
 Gallagher v. Asphalt Co. of 
 
 America 63 
 
 Gans V. Dabergott 73 
 
 Gardner v. State 790 
 
 Gariss v. Gariss 297, 526, 537 
 
 Garr v. Drake 121 
 
 Garr v. Hill .303, 308, 768 
 
 Garrison v. Technic Electrical 
 
 Works 382,283 
 
 Garwood v. Eldridge 370 
 
 Gas Light Co. v. South River . . 513 
 Gaskill V. Sine. 29, 315, 388, 441, 599 
 
 Gawtry v. Lelend 492 
 
 Geishaker v. Pancoast.335, 337, 652 
 German Reformed Church v. 
 
 Von Puechelstein. . .160, 271, 579 
 
 Gibbons Z'.„Ogden 789 
 
 Gibbs V. Morgan 453 
 
 Gibbs V. Ward 521 
 
 Gibby v. Hall 530 
 
 Gifford V. McGuinness 47, 645 
 
 Giflford V. Thorn. . .7, 368, 279, 431 
 Gihon V. Belleville White Lead 
 
 Co 575,576 
 
 Gilbert v. Colt 349 
 
 Gilbert v. Galpin 427, 598 
 
 Gilborough v. West Side 
 
 Amusement Co 490 
 
 Gillen v. Hadley 377 
 
 Gilson V. Appleby 249, 250, 251 
 
 Giveans v. McMurtry 157 
 
 Glading v. Cubberly 328 
 
 Gleason v. Bisby 349 
 
 Glenn v. Eddy 2, 3 
 
 Glenn v. Whipple 560, 561 
 
 Glidden v. Harrington 14 
 
 Freytag v. Hoeland. . .21, 297, 394 
 
 659 
 Frink v. Adams. .389, 393, 394, 395 
 
 396 
 
 Fritz V. Simpson 658, 660 
 
 Fuller V. Hollander &c. Co. . . .420 
 
 Fulton V. Golden..36, 256, 358, 418 
 
 Fulton V. Greacen.189, 190, 265, 484 
 
 494, 495, 525 
 
 Fulton V. Rosevelt 120, 121 
 
 Furman v. Clark 527, 528 
 
 Glover v. Hedges 451 
 
 Goble V. Andruss Ill, 113, 281 
 
 Gogherty v. Bennett 144,146 
 
 Goldengay v. Smith .. 142, 273, 374 
 
 275 
 
 Gompertz v. Best 473 
 
 Goodbody v. Delaney 285,315 
 
 Goodrich v. Parker 186 
 
 Goodrich v. Pendleton 9, 145 
 
 Gorham v. Gorham 125 
 
 Gough V. Williamson . 155, 261, 262 
 
 Gould V. Wheeler 577 
 
 Grafton v. Brady 526, 534 
 
 Graham v. Berryman. . . .154, 156 
 195, 196, 389, 390, 583 
 
 Graham v. Spence 141,142,378 
 
 Graham v. Whitely 404, 407 
 
 Grand Castle of the Golden 
 
 Eagle V. Bridgeton Castle.. 483 
 Grand Lodge Knights of 
 
 Pythias v. Jansen. .460, 461, 468 
 470, 471 
 
 Grassman v. Bonn 100 
 
 Graves v. Wood 754 
 
 Gray v. Case " 543 
 
 Gray v. Van Blarcom 553 
 
 Green v. Blackwell 763, 764 
 
 Green v. Hathaway 702, 703 
 
 Green v. Pallas 533 
 
 Green v. Philadelp'hia Freestone 
 
 &c. Co 506 
 
 Green v. Piper 490 
 
 Green v. Richards 180 
 
 Green v. Stone. . .195, 196, 197, 300 
 
 395, 641, 643, 644 
 
 Green v. Tantum 63, 66 
 
Table of Cases. 
 
 819 
 
 Green v. Wilson, 508 
 
 Greenin v. Hoey 521,528,539 
 
 Greenville B. & I , Assn. v. 
 
 Wholey 52 
 
 Gregory v. Gregory 78, 451 
 
 Gregory v. Stilwell 534,535 
 
 Grey v. Bowman 295,306 
 
 Grey v. Greenville & Hudson 
 
 R. R. Co 289,459,497,516 
 
 Grey v. ^. Y. & P. Traction 
 
 Co 481 
 
 Grier v. Flitcraft 389,507,510 
 
 Griffin v. Cooper 651, 655, 658, 
 
 659, 660, 661 
 
 Haberman v. Kaufer. .108, 109, 137 
 
 200, 202, 267, 291, 292, 302, 304, 306 
 Hackensack &c. Comm. v. N. 
 
 J. Midland R. R. Co. 
 
 483, 485, 496 
 Hackensack Water Co. v. De 
 
 Kay 116, 117, 553, 554, 609 
 
 Hagan v. Ryan 579, 586 
 
 Hageman v. Brovirn. .141, 147, 308 
 398, 399 
 
 Hagerty v. Lee 483, 484 
 
 Haggerty v. Badkin 47, 468 
 
 Hague V. West Hoboken 633 
 
 In re Haines 464 
 
 Haley v. Goodheart 218, 219 
 
 Hall V. Baldwin 313,215 
 
 Hall V. Home Building Co. 
 
 294, 310, 583 
 
 Hall V. Nash 62 
 
 Hall V. Otterson 148 
 
 Hall V. Piddock..355, 680, 681, 682 
 
 Hall V. Stothard 440 
 
 Hall V. Urquhart. 449,618 
 
 Hallett V. Hallett. . ." 93 
 
 Hallowell v. Daly 446 
 
 Halsey v. Ackerman 147 
 
 Halsey v. Ball 146, 300 
 
 Halsey v. Rapid Transit &c. 
 
 R. R. Co 483,500 
 
 Halsted v. Meeker. . .153, 318, 756 
 Hamburgh Mfg. Co. v. Edsall. 91 
 Hamill v. Inventors Mfg. Co. 561 
 
 Hamilton v. Dobbs 653 
 
 Hamlen v. Bennett 132 
 
 Hammond v. Cronkright 678 
 
 Griffing v. Griffing Iron Co. 
 
 256, 257, 258, 262 
 
 Grocers Bank v. Neet 582 
 
 Groel V. United Electric Co, 
 
 6, 8, 129, 349, 253, 263, 263 
 Guarantee Trust &c. Co. v. 
 
 Jenkins 616, 620, 623 
 
 Guest V. Hewitt 33, 34 
 
 Guild V. Meyer 514 
 
 Gulick V. Bruere 118 
 
 Gulick V. Gulick 756 
 
 Gutch V. Fosdick 259, 370, 273 
 
 H 
 
 Hampton v. Coddington 161 
 
 Hampton v. Nicholson 323 
 
 Hand v. Hand 448 
 
 Hanlon v. Burnett 97 
 
 Hann v. Barnegat &c. Improve- 
 ment Co 331 
 
 In re Hannah 735, 726, 727, 728 
 
 Hannas v. Hawk 585,587 
 
 Hanneman v. Richter..267, 289, 291 
 306, 677, 679, 683, 684 
 Hanson v. First Presbyterian 
 
 Church 36 
 
 Hardenbergh v. Hardenbergh . 664 
 Kardenburgh v. Blair 62, 65, 66, 67 
 Hardenburgh v. Farmers &c. 
 
 Bank 515 
 
 Hardin v. Boyd 317 
 
 Hardin v. Lawrence 665,697 
 
 Hare v. Headley 92, 646 
 
 Haring v. Kauffman. .454, 455, 503 
 Harlem &c. B. & L. Assn. v. 
 
 Freeburn 573 
 
 Harlem Co-operative Co. v. 
 
 Fireeburn 159,160 
 
 Harmes v. Hughes 790 
 
 Harris v. Hibbard 65 
 
 Harris v. Nevins 544 
 
 Harrison v. Farrington.5, 251, 252 
 
 Harrison v. Fleischman 66 
 
 Harrison v. Guerin 599 
 
 Harrison v. Harrison 195 
 
 Harrison v. Johnson 104 
 
 Harrison v. Righter. .111, 175, 754 
 
 Harron v. Du Bois 599 
 
 Hart V. Samson 14 
 
820 
 
 Table of Cases. 
 
 Hart V. Schenck 424, 427 
 
 Hartly v. Hartly 527 
 
 Haslett V. Stephany 154 
 
 Hassell v. Van Houten. . . .100, 502 
 
 Hatch V. Daniels 526 
 
 Hatch V. Kaighns Co 514 
 
 Hatt V. Rich 159,160 
 
 Hattersley v. Bissett 58 
 
 Haughwout V. Murphy 91,250 
 
 334, 336, 337 
 Haulenbeck I/. Cronkright.363, 364 
 665, 672, 687, 689, 690, 691, 706 
 Hauser v. Capital City Brewing 
 
 Co 548 
 
 Havens v. Seashore Land Co. 
 
 339, 240, 431, 674, 683 
 
 Havens v. Thompson 230 
 
 Hawley v\ Wolverton 183 
 
 Hay V. Estell.683, 684, 689, 690, 691 
 
 Hayes v. Hayes 107 
 
 Hayes v. Heyer 106 
 
 Hayes v. Stiger 619, 620, 627 
 
 Hays V. Doane 180, 299 
 
 Hazard v. Hodges. . . .625, 636, 631 
 
 Hazeldine v. McVey 595 
 
 Hazen v. Durling 95 
 
 Heald v. Jardine 655 
 
 In re Heaton 360, 734, 741 
 
 Hecksher v. Trotter. .302, 308, 508 
 
 Hellyer v.^ Baldwin 540 
 
 Helmsley v. Bew 487 
 
 Hendee v. Howe 661 
 
 Hendricks v. Craig 404, 405 
 
 Hendrickson v. Norcross 521 
 
 Hendrickson v. Wallace. .170, 179 
 
 180 
 
 Hendry v. Quinan 575 
 
 Henninger v. Heald. .146, 176, 347 
 348, 633 
 
 Henry v. Brown 94,135 
 
 Kenwood v. Jarvis. .477, 491,492 
 494, 496, 518, 534 
 
 Herbert v. Herbert 147 
 
 Herbert v. P. R. R. Co 479, 490 
 
 Herbert v. Scofield 144 
 
 Herman & Grace v. Freehold- 
 ers of Essex Co 179 
 
 Hershenstein v. Hahn 468 
 
 Hervey v. Hervey 5, 6, 7, 17, 20, 474 
 
 Heston v. Heston 5 
 
 Hewitt V. Kuhl 142, 507 
 
 Hewitt & Ward v. Montclair 
 
 R. R. Co 34,607 
 
 Heyde v. Ehlers 305 
 
 Hicks V. Campbell .... 28, 102, 166 
 
 172 
 
 Hiern v. Mill 155 
 
 Higbee v. Camden & Amboy 
 
 R. R. Co 485, 489, 496, 532 
 
 Higgins V. Westervelt 519 
 
 Hildreth v. Overseers of the 
 
 Poor 411 
 
 Hildreth v. Schillinger 370 
 
 Hile V. Davison 303, 560 
 
 In. re Hill 731 
 
 Hill *. Beach 153, 154 
 
 Hill V. Colie 25, 393 
 
 Hill V. Day 739 
 
 Hill V. Henry 6, 11, 14, 236, 433 
 
 Hill V. Howell 423 
 
 Hill V. Smith 93, 94, 107, 113 
 
 Hillyer v. Schenck 783 
 
 Hinchman v. Paterson Horse 
 
 R. R. Co 170,178,483 
 
 Hinchman v. Stiles 645 
 
 Hitchcock V. Rhodes 307 
 
 Hite V. Dell 416, 418 
 
 Hoagland v. Delaware Town- 
 ship 489 
 
 Hoagland v. Saul 363 
 
 Hoagland v. Supreme Council 
 
 268, 346 
 
 Hoagland v. Titus 440, 521, 528 
 
 Hobbs V. Lippincott 647 
 
 Hoboken Bank v. Beckman. . .396 
 Hoboken Building Assn. v. 
 
 Martin 323,323 
 
 Hoboken &'c. R. R. Co. v. 
 
 Jersey City R. R. Co 491, 778 
 
 Hodge V. Giese 479,480,489 
 
 Hoff V. Burd.195, 305, 319, 388, 396 
 
 Hoffman v. Quigley 629 
 
 Hogencamp v. Ackerson 301 
 
 Holcomb V. Holcomb 610 
 
 Holcomb V. New Hope Dela- 
 ware Bridge Co 370' 
 
 Holcombe v. Holcombe. . .415, 782 
 
Table of Cases. 
 
 821 
 
 Holdrege v. Gwynne 508,511 
 
 520, 526 
 
 Holmdel Co. v. Conover 437 
 
 Holmes v. Chester. 94, 319, 233, 235 
 Holmes, v. Holmes. . .158, 269, 373 
 374, 283, 365 
 Holmes v. Jersey City. . .512, 533 
 534, 537 
 Holmes v. Seashore Electric 
 
 Co 540 
 
 Holmes v. Steele 608, 610 
 
 Holmes v. Trustees 483 
 
 Holt's Case 457 
 
 Holton V. Holton 389 
 
 Holzer v. Thomas. .. .166, 359,270 
 
 Home Insurance Co. v. Howell 
 
 342 
 
 Hooper v. Holmes 108, 426 
 
 Hooper v. Hooper 155 
 
 Hop'per V. Sisco.'.141, 434, 429,433 
 
 603 
 
 Hoppock V. Gray 188 
 
 Hoppock V. Ramsey. .363, 365, 595 
 
 Horn V. Clements 319 
 
 Horner v. Corning 19,22,51 
 
 Horner v. Dey 57, 589 
 
 Horner v. Jobs 536,530 
 
 Horner v. Leeds 512 
 
 Horning v. Ludlum 51 
 
 Hotovitsky v. Little Russian, 
 
 Greek &c. Church. .256, 263, 266 
 Houseworth v. Hendrickson. . .353 
 
 Howe V. Harvey 140 
 
 Howe V. Robins 152, 159 
 
 Howell. V. Ashmore 318 
 
 Howell V. Hester 630 
 
 Howell V. Schenck 635 
 
 Howell V. Sebring. . . .141, 324, 434 . 
 435, 437, 433 
 
 Howth V. Owens 96 
 
 Hoxsey v. New Jersey Mid- 
 land R. R. Co 275 
 
 Hoy V. Bramhall 642 
 
 Hoyt V. Hoyt 156,423,433 
 
 Hoyt V. Tuers 683 
 
 Huber v. Deibold.' 199 
 
 Hudnit V. Nash. .198, 553, 573, 576 
 
 583 
 
 Hudnit V. Thomson 569 
 
 Hudson V. Trenton Locomo- 
 tive &c. Co 355 
 
 Hudson Trust Co. v. Boyd 
 
 42, 840, 446 
 
 Huffman v. Hummer 310,312, 
 
 336, 337, 330, 391, 518, 521, 533, 536 
 
 Hugg V. Fath 496 
 
 Hughes V. United States 348 
 
 Hulfish V. O'Brien 196, 303 
 
 Huling V. Kaw Valley R. R.. . 14 
 
 Humphreys v. Eastlack 425 
 
 Humphreys v. Ingledon 145 
 
 Hundit V. Tomson 91 
 
 Hunt V. Field 93 
 
 Hunt V. Hunt 739 
 
 Hunt V. Van Derveer 94 
 
 Hunt V. West Jersey Traction 
 
 Co 264,266 
 
 Hunterdon Freeholders v. 
 
 Henry 66 
 
 Hurd V. Elizabeth 131 
 
 Huselton & Co. v. Durie 382 
 
 Huston V. Cassidy 366 
 
 Hutchinson v. Swartsweller. . .602 
 
 Hutchinson v. Tindall 390 
 
 Hutchinson v. Van Voorhis 
 
 183, 196, 301, 303 
 
 Hyde v. French 493 
 
 Hyer v. Little 305, 398, 399 
 
 Illingsworth v. Rowe. .211, 216, 217 
 Imperial Realty Co. v. West 
 
 Jersey &c. Co 485 
 
 Importers & Traders National 
 
 B^nk V. Littell..94, 103, 167, 176 
 
 177, 395 
 
 Industrial Land &c. Co. v. Post 549 
 
 Ireland v. Kelly. .206,307, 388, 389 
 
 393, 399, 536, 530 
 
 Trick V. Black 102, 393, 523, 526, 532 
 Irwin V. Granite State Provi- 
 dent Assn 131 
 
 Isham V. Cooper 517 
 
 Isham V. Miller 313 
 
 Island Heights Assn. v. Island 
 Heights Water Power Co.. 493 
 
 Ivins V. Jacob 278, 483 
 
 Izard V. Bodine 357,364,679 
 
822 
 
 Table of Cases. 
 
 Jackson v. Beach 674,681,689 
 
 Jackson v. Condict 600 
 
 Jackson v. Grant 203 
 
 Jackson v. Jackson 360, 365 
 
 Jackson v. Miller 495 
 
 Jacobsen v. Dodd 557 
 
 Jacobus V. Jacobus 756 
 
 Jacobus V. Mutual Benefit Life 
 
 Insurance Co 141, 434, 427 
 
 Jacquelin v. Erie R. R. Co 
 
 478, 483 
 
 Jacques v. Ennis 709 
 
 In re James ^ 715, 721 
 
 Jarmon v, Wiswall. .436, 449, 569 
 
 642 
 
 Jarvis v. Henwood 480 
 
 Jeffray v. Towar 66 
 
 Jenkins v. Guarantee Trust Co. 792 
 
 Jenkins v. Jenkins 680 
 
 Jernee v. Jernee 467 
 
 Jersey v. Demarest 45 
 
 Jersey City v. Gardner 489 
 
 Jersey City v. Lembeck. . .218, 234 
 Jersey City v. Morris Canal & 
 
 Banking Co 779 
 
 Jersey City Milling Co. v. 
 
 Blackwell 491 
 
 Jersey City Printing Co. v. 
 
 Cassidy 528 
 
 hi re Jewell 724 
 
 Jewell V. West Orange 99,567 
 
 Jewett V. Bowman..351, 353, 425 
 
 534 
 
 K 
 
 Kaighn v. Fuller 789 
 
 Kalmus v. Ballin 133,133 
 
 Kamena v. Huelbig 556, 570 
 
 Kana v. Bolton 329 
 
 Kane v. Whittick 430 
 
 Karr v. Karr 17 
 
 Kauffman v. Wooters 15 
 
 Kean v. Colt 486 
 
 Kearney v. Andrews 509 
 
 Kearns v. Kearns 347, 438, 444 
 
 Keeler v. Keeler. .94, 102, 105, 112 
 Keen v. Maple Shade Land 
 
 &c. Co 426 
 
 Keene v. Munn 573, 600 
 
 Keeney v. Henning 711 
 
 Jewett V. Dringer 467, 518, 526 
 
 778, 779, 790, 791, 793 
 
 Johnes v. Outwater. . . .94, 98, 104 
 
 106, 114, 116, 117, 134, 274, 375 
 
 377, 573 
 
 Johns V. Norris. .624, 645, 656, 658 
 
 659, 793 
 
 Johnson v. Am wine 400 
 
 Johnson v. Buttler 198 
 
 Johnson v. Everett 430 
 
 Johnson v. Helmstaedter 
 
 144, 146, 148 
 
 Johnson v. Hughes 683 
 
 Johnson v. McKenna 187 
 
 Johnson v. Vail. .99, 137, 178, 320 
 
 Johnston v. Belmar 517 
 
 Johnston v. Corey 495, 533 
 
 Jonas Glass Co. v. Glass Blow- 
 ers' Assn 467,495 
 
 Jones V. Brogan 602 
 
 Jones V. Davenport. .333, 333, 431 
 
 433, 436, 437 
 
 Jones V. Fayerweather. . .149, 244 
 
 245, 438 
 
 Jones V. Knauss 8, 305 
 
 Jones V. Sherwood 344, 526 
 
 Jones V. Winans 33 
 
 Jones V. Youngstown &c. R. R. 421 
 
 Jordan v. Clark 155,156,426 
 
 Joyce V. Hains 141 
 
 Junior Order &c. Assn. v. 
 
 Sharpe 153, 154, 385 
 
 Kelaher v. English 344 
 
 Kelly V. Masionis , . 248, 267 
 
 Kelsey v. Dilks. .245, 347, 431, 438 
 
 439, 443 
 
 Kemble v. Kemble 694 
 
 Kempson v. Kempson 20,455 
 
 460, 461, 462, 468 
 Kempton v. Bartine. . .99, 108, 109 
 
 137, 501 
 
 In re Kennedy 720, 724 
 
 Kent V. De Baura -.526 
 
 Kerlin v. West 489, 492 
 
 Kern v. Kern 729 
 
 Keron v. Coon 526, 529, 530 
 
 Ketcham v. Brooks 643 
 
Table of Cases. 
 
 823 
 
 Keupler v. Eisele 212, 217 
 
 Kidder v. Houston 125 
 
 Kiernan v. Jersey City. . . .579, 633 
 
 King V. Berry 100 
 
 King V. King 301, 424, 428 
 
 King V. Ruckman 786 
 
 King V. Wilson 682 
 
 Kingsland v. Kingsland .... 91, 113 
 Kinna v. Smith . . 393, 394, 556, 570 
 
 Kinnaman v. Henry 302 
 
 Kinney v. Emery 3 
 
 Kinney v. Ogden 59, 60 
 
 Kip V. Kip 142, 269 
 
 Kirkland v. Kirkland 55, 200 
 
 Kirkpatrick v. Corning. . . .28, 131 
 
 159, 182, 183, 185, 195, 201, 285 
 
 287, 301, 327, 333, 620, 793 
 
 Kirkpatrick v. McElroy 131 
 
 Kirkpatrick v. Post 6, 15 
 
 Kirtland v. Moore 215 
 
 Klapworth v. Dressier 640,642 
 
 Laing v. Byrne 360 
 
 Laing v. Martin 549 
 
 Laird v. Atlantic Coast Sanitary 
 
 Co 777,779,780,782 
 
 Lamb v. Cannon 54 
 
 Lambert v. Miller 658 
 
 Lambertville National Bank 
 
 V. Boss 645 
 
 Lambertville National Bank 
 V. McCready &c. Co. .. .570, 581 
 
 Lanahan v. Lawton 415 
 
 Land Title & Trust Co v. 
 
 Kellogg 587, 588, 589 
 
 Lane v. Washington Life In- 
 surance Co 553 
 
 'Ls.ng-v. Belloff...l20, 123, 124,343 
 
 Langford v. Little 131 
 
 Lanning v. Cole 653 
 
 Lanning v. Heath 511 
 
 Lanning v. Twining. .5, 13, 15, 253 
 
 Lanterman v. Lanterman 174 
 
 Large v. Ditmars 630, 657 
 
 Large v. Van Doren. .114, 567, 648 
 
 657 
 
 Larter v. Canfield. . . .256, 257, 273 
 
 274, 278, 282, 283 
 
 Klemmer v. Kerns 643 
 
 Kline v. McGuckin 670 
 
 Kloepping v. Stellmacher. .45, 630 
 
 Knauss v. Jones 470, 770 
 
 Knickerbocker v. Tie. Freest . . . 134 
 Knickerbocker Trust Co. v. 
 
 Carteret Steel Co. 356,597 
 
 Knight V. Cape May Sand Co. 541 
 
 Knight V. Hallingrer 754 
 
 Knikel v. Spitz. . .99, 163, 169, 178 
 268, 376, 346 
 
 Knoop V. Bohmrich 139, 130 
 
 Kohn V. Kelly 551 
 
 Kountze v. Morris Aqueduct 
 
 Co 527 
 
 Krauss v. Krauss. 469, 770 
 
 Kreiss v. Distilling Co 503 
 
 Krueger v. Ferry 195,201,573 
 
 583 
 
 Kuhl V. Martin 358, 530 
 
 Kuhnen v. Parker 560, 562 
 
 Kuntzman v. Smith 563, 653 
 
 Lathrop v.- Smalley 757 
 
 Laurel Springs Land Co. v. 
 
 Fougeray 772 
 
 Lawless v. Fleming 420 
 
 In re Lawrence 733, 735 
 
 Lawrence v. Finch 404, 408, 417 
 
 Lawrence v. Lawrence 393 
 
 Lawrence Harbor Colony v. 
 
 American Surety Co 3 
 
 Layton v. Cooper 416 
 
 Leach v. Leach. .56, 128, 359, 366 
 
 703 
 
 Leake v. Bergen 424, 585 
 
 Leddel v. Starr 195,201,206 
 
 Lee V. Cargill 503, 519, 521 
 
 Lee V. Stiger 305, 553, 554 
 
 Lee V. West Jersey Land &c 
 
 Co 548 
 
 Leeds v. Gifford 588, 596, 659 
 
 Le Gendre v. Goodridge. . .99, 111 
 117, 133 
 Lehigh Coal Co. v. C. R. R. of 
 
 N. J 131 
 
 Lehigh Valley R. R. Co. v. 
 
 McFarlan 142,163,176,427 
 
 Lehigh Valley R. R. Co. v. 
 McFarland 751 
 
824 
 
 Table cf Cases. 
 
 Lehigh Valley R. R. Co. v. 
 
 N. Y. & N. J. Water Co. ...483 
 Lehigh Zinc & Iron Co. v. 
 
 Trotter 268, 346, 638 
 
 Leigh V. Clark 526, 528 
 
 Leipziger v. Van Saun 551 
 
 Lembeck v. Lembeck 772 
 
 Lengyel v. Meyer 753, 754 
 
 Lennon v. Heindel . . . 622, 629, 630 
 
 Leonard v. Cook 193 
 
 Leonard v. New York Bay Co, 
 
 17, 54, 571 
 
 Leonard v. Sutphen 402 
 
 Lerch v. Oberly '. . .702 
 
 Leslie v. Leslie. . .182, 184, 291, 292 
 301, 304, 309 
 
 Leveridge v. Marsh 55 
 
 Lewis V. Conover 650 
 
 Lewis I'. Cranmer 296 
 
 Lewis V. Elizabeth 27, 488 
 
 Leyden v. Laurence. . .249, 250, 251 
 
 Liebstein v. Newark 493,526 
 
 In re Lindsley 715, 718, 719, 720 
 
 721, 723, 726, 727 
 
 Lindsley v.. Dodd 260 
 
 Lindsley v. Personette 285 
 
 Lines v. Speer 535 
 
 Linn v. Wheeler 523 
 
 Lippincott v. Bechtold 367 
 
 Lippincott v. Evens 65 
 
 Lippincott v. Ridgway. . . . 390, 423 
 
 Lippincott v. Stokes 569 
 
 Lithauer v. Royle ■ 644 
 
 Little V. Cooper 534 
 
 Lloyd V. Brewster 158 
 
 Lloyd V. Johns 190 
 
 Lock V. P. R. R. Co 413 
 
 Loder v. Allen 56 
 
 Lodor V. McGovern 500 
 
 Loehenberg v. Loehenberg. . . .109 
 
 M 
 
 McAlpin V. Universal Tobacco 
 Co 516,779 
 
 McAndrews & Forbes Co. v. 
 Camden 232, 233, 372, 374 
 
 McCahill v. Equitable Life As- 
 surance Society 20,619,624 
 
 McCall V. Yard 576, 577 
 
 Logan V. Flattau 155 
 
 Lokerson v. Stilwell 333 
 
 Lomerson v. Vroom 114,159 
 
 Long V. Long 560, 602 
 
 Long V. Majestre 9 
 
 Long Branch v. West End R. 
 
 R. Co 484 
 
 Longstreet v. Tilton 122 
 
 Longwood Valley R. R. Co. v. 
 
 Baker 479 
 
 Lord V. Carbon Iron Mfg. Co. 479 
 
 Lore V. Getsinger 62, 172 
 
 Lorey v. Overton 550 
 
 Losey v. Simpson 557 
 
 Loss V. Obry 752 
 
 Loucheim v. Casperson. . .132, 133 
 
 Lovett V. Demarest 315, 390 
 
 Low V. Holmes. .92, 101, 672, 673 
 681, 682, 683 
 
 Lozear v. Shields 661 
 
 Lozier v. Hill 385 
 
 Lozier v. Van Saun. .207, 208, 209 
 
 213 
 
 Lucas V. King 675, 683, 684 
 
 Ludington v. Elizabeth. . .4, 7, 223 
 
 224, 226, 227, 228 
 
 Ludlam v. Broderick. .404,405,408 
 
 409, 417 
 
 Ludlam v. Horner 519 
 
 Ludlow V. Strong 101 
 
 Ludy V. Larson 774 
 
 Lummis v. Stratton 416 
 
 Lundy v. Seymour 270, 610, 629 
 
 Lutheran Ciiurch v. Maschop. .486 
 
 Lutjen V. Lutjen 493 
 
 Lyle V. Staten Island &c. Co.. 436 
 
 Lyman v. Place 180 
 
 Lynde v. Lynde 20,436,449 
 
 Lynn v. Wheeler 472 
 
 Lyons v. Van Riper '. . .240 
 
 McCarren v. Coogan 341 
 
 McCarter v. Finch 612, 613 
 
 McCarter v. United N. J. R. 
 
 R. Co 272, 274, 277, 281, 290 
 
 McCarthy v. McCarthy 702, 703 
 
 McCartin v. Traphagen 113 
 
 McClain v. Babbitt 202 
 
Table of Cases. 
 
 825 
 
 McClane v. Shepherd 253, 359 
 
 260, 316 
 
 McClave v. McGregor 325 
 
 McClave v. Newark 323,229 
 
 McClung V. McClung 470 
 
 McConnell v. Holobush 186 
 
 McCormick v. Hickey 547 
 
 McCoy V. McCoy 523 
 
 McCracken v. Harned 377 
 
 McCullough V. Absecon Beach 
 -&c. Co. 334 
 
 McCrea v. Newman 54 
 
 McCullough V. Ward 179 
 
 McCulIy V. Peel 388 
 
 McDermott v. French. 136, 137, 664 
 
 McDevitt V. Connell 25, 62, 377 
 
 278, 385 
 
 McDevitt V. McDevitt 349 
 
 McDowell V. Avon-by-the-Sea 337 
 
 McDowell V. Fisher 555 
 
 McDowell V. Perritie. .441,443,448 
 
 449 
 McElroy v. Ludlum. .385, 396, 397 
 
 McEvoy V. Trustees 2, 3 
 
 McE'wan v. Broadhead 250, 257 
 
 258, 265 
 McFadden v. Mays Landing 
 
 &c. R. R. C0..566, 567, 597, 609 
 
 McFarland v. Gilchrist. ..'. 556 
 
 McGee v. Smith 536, 595, 635 
 
 McGiffen v. Stout 120 
 
 McGovern v. Loder 508 
 
 McGrail v. McGrail 790 
 
 McGrath v. Norcross . 333, 333, 233 
 McGuckin v. Kline. . .301, 304, 583 
 
 McGuiness v. McGuiness 296 
 
 Mclntyre v. Easton & Amboy 
 
 R. R. Co 763 
 
 McKaig V. McKaig 679 
 
 McKee v. Jordan 657 
 
 McKibben v. Brown 526 
 
 McKillopp V. Taylor 458 
 
 McKinley v. Coe 698 
 
 McKinney v. Slack .586 
 
 McKirgan v. Layton 478 
 
 McLaughlin v. McLaughlin .... 707 
 McLaughlin v. Van Keuren 
 
 91, 132, 136, 330, 788 
 
 McMahon v. O'Donnell. .301, 511 
 
 531 
 
 McMaster v. Dfew 345 
 
 McMichael v. Brennan 331 
 
 McMichael v. Webster 66,395 
 
 550, 563, 565 
 
 McMillan v. Kuehnle 483,490 
 
 McMullin V. Doughty. .75, 688, 690 
 691, 711 
 
 McNeal v. Brown 408 
 
 McPherson v. Housel 649 
 
 MacDonough v. Gaynor 
 
 350,351,353 
 MacFarlane v. Richardson. . . .583 
 Mackey v. Mackey. .114, 348, 365 
 
 673 
 
 Magennis v. Parkhurst 459, 467 
 
 Magie v. Reynolds. . .539, 554, 556 
 
 Magowan v. Baird 31 
 
 Maher v. Mutual Electric &c. 
 
 Co 501 
 
 Mahon v. Crothers ." . 589 
 
 Main v. Main 442, 443 
 
 Mallory v. Kirkpatrick 62, 63 
 
 Mandeville v. Harman 484 
 
 Manhattan Mfg. &c. Co. v. 
 
 New Jersey Stock Yards &c. 
 
 Co 478,492 
 
 Manhattan &c. R. R. Co. v. 
 
 Van Keuren .534 
 
 Manhattan &c. Savings &c. 
 
 Assn. V. Massarelli 601 
 
 Manley v. Mickle 303, 399, 398, 399 
 
 Mann v. Bruce 427 
 
 Manners v. Manners 683 
 
 Manning v. Young 549, 553 
 
 Marlatt v. Perrine 60 
 
 Marlatt v. Warwick. .339, 386, 630 
 Marquise De Portes v. Hurlbut 156 
 Marselis v. Morris Canal Co. 
 
 100, 143, 163, 170 
 
 Marsh v. Lasher. .25,338, 446, 448 
 
 Marsh v. Marsh. . .38, 357,358, 373 
 
 376, 385, 331, 333 
 
 Marsh v. Mitchell 141, 310, 311 
 
 336, 332, 423, 424, 428, 554, 555 
 
 Marsh v. Oliver 359 
 
 Marshall v. Carson 610 
 
 Marshman v. Conklin 141,423, 
 
 434, 437, 433, 434, 536 
 
826 
 
 Table of Cases. 
 
 Martin v. Melville 545 
 
 Martling v. Martling 118 
 
 Marvel v. Fralinger 399 
 
 Maryott v. Renton 544, 547, 548 
 
 Massaker v. Mackerley. . .547, 548 
 
 Masterton v. Barney 536 
 
 Mather's Sons Co.'s Case 131, 501 
 
 Mathis V. Sears 107 
 
 Matthews v. Hoagland. .3, 140, 159 
 Mausert v. Christian Feigen- 
 
 span 262 
 
 Maxwell v. Leichtman 209 
 
 Mayer v. West Side Develop- 
 ment Co. 364 
 
 Mead v. Combs 427 
 
 Measurall v. Pearce 547 
 
 Mechanics Bank v. Bank of 
 
 New Brunswick 363 
 
 Mechanics Bank v. Levy 183 
 
 Mechanics National Bank v. 
 
 Burnet Mfg. Co. ..310,336,338 
 Meeker v. Marsh.252, 363, 364, 333 
 
 Meigs V. Lister 175 
 
 Melick V. Creamer 661 
 
 Melick V. Dayton 395,393,563 
 
 564, 565, 581 
 Melick V. Melick. .33, 111, 134, 557 
 Menge v. M. & E. R. R. Co . . . 488 
 Merchants & Miners Transpor- 
 tation Co. V. Borland 66 
 
 Meredith v. New Jersey Zinc 
 
 Co ...391 
 
 Meredith v. Sayre 498 
 
 Merriam v. Dunham 736 
 
 Merritt v. Brown 392 
 
 Merritt v. Jordan 363 
 
 Merritt v. Merritt 7, 111 
 
 Merselis v. Merselis 358 
 
 Merselis v. Van Riper 653,657 
 
 Mershon v. Castree. .373, 540, 541 
 
 Mertens v. Schlemme 368 
 
 Merwin v. Smith. .. .387, 535, 530 
 537, 538 
 
 Meserole v. Leary 753 
 
 Methodist Episcopal Church 
 
 V. Jaques 151 
 
 Methodist Episcopal Church of 
 Gloucester v. Haimmell 
 
 331, 322, 334 
 
 Metier v. Metier 382, 284 
 
 Metropolitan Life Insurance 
 
 Co. V. Hamilton 306,212,216 
 
 Meux V. Bell 311 
 
 Meyer v. Bishop 630 
 
 Meyer v. Paterson 608 
 
 Meyer v. Somerville Water Co. 
 
 477, 486, 488 
 
 Meyers v. Schuman 383, 289 
 
 Mickle V. Rambo 600 
 
 Middleditch v. Williams. .120, 131 
 
 Midmer v. Midmer. . .321, 323, 324 
 
 325, 435, 427, 428 
 
 In re Miller 765,768 
 
 Miller v. Craig 486 
 
 Miller v. De Yoe.- 303 
 
 Miller v. English 538 
 
 Miller v. Ford 283,384,532 
 
 Miller -v. Gregory 195,196,197 
 
 394, 390, 560 
 Miller v. Henderson. . .96, 103, 569 
 
 Miller v. Hild 445 
 
 Miller v. Jamison. .94, 103, 154, 177 
 
 179, 276, 344 
 
 Miller v. Miller. .395, 361, 363, 367 
 
 Miller v. Rushforth . . 444, 508, 514 
 
 515 
 
 Miller v. Stevens 569 
 
 Miller v. Teeter 559 
 
 Miller v. Traphagen. 525 
 
 Miller v. United States Casualty 
 
 Co 351, 363, 363, 264, 265 
 
 Miller v. Wack 369, 390 
 
 Miller v. Willett 143, 174 
 
 Miller v. Woodruff 363 
 
 Miller v. Wright 444 
 
 Mills V. Hendershot 201,360 
 
 Millville Gas Co. v. Vineland. .483 
 Minchin v. Second National 
 
 Bank 130 
 
 Missell V. Hayes 5 
 
 Mohawk & H. R. Co. v. Clute 
 
 211, 213 
 
 Moies V. O'Neill 536 
 
 Monighoflf v. Sayre 318 
 
 Monmouth Insurance Co. v. 
 
 Hutchinson 154 
 
 Moore v. De Graw 439 
 
 Moore v. Galupo 783, 78,7 
 
Table of Cases. 
 
 827 
 
 Moore v. Mercer Wire Co.... 455 
 
 Moore v. Moore. .120, 133, 248, 262 
 
 263, 287, 290 
 
 Moore v. Vail. . .' 753 
 
 Moore v. Williamson 132 
 
 Moores v. Moores 294,309,391 
 
 423, 424, 437, 428 
 Moran v. Green. .404, 410, 411, 415 
 
 416 
 
 Morehouse v. Kissam 62, 172 
 
 Morgan v. Harris 284 
 
 Morgan v. Morgan. . .659, 698, 699 
 
 Morgan v. Potter 120 
 
 Morgan v. Rose. .139, 501, 523, 766 
 
 Morgan v. Thome 130 
 
 Morris v. Hill 458 
 
 Morris v. Hinchman 440 
 
 Morris v. Kettle 305 
 
 Morris v. Taylor 343, 358, 363 
 
 366, 368, 434 
 Morris v. White. .389, 393, 394, 395 
 
 396 
 
 Morris v. Woodward 633,624 
 
 M. & E. R. R. Co. V. Blair. . . .389 
 M. & E. R. R. Co. V. Haskins. .519 
 M. & E. R. R. Co. V. Prudden 
 
 170, 490, 496 
 Morris Canal Co. v. Bartlett 
 
 59, 60, 525 
 Morris Canal &c. Co. v. Biddle 
 
 520, 524 
 Morris Canal &c. Co. v. C. R. 
 
 R. Co 483, 489, 490, 496 
 
 Morris Canal &c. Co. v. Pagan 
 
 489, 526, 530, 754 
 Morris Canal &c. Co. v. Jersey 
 
 City . . .256, 512, 539, 531, 532, 533 
 Morris Canal & Banking Co. 
 
 V. Matthiesen 536, 537 
 
 Morris Canal &c. Co. v. Society 
 
 483, 488 
 
 Morrisse v. Inglis 623,629,630 
 
 Morrison v. Bell 131 
 
 Morristown v. Morris & Som- 
 erset 164, 389 
 
 Morrow v. Hasselman 480 
 
 Morse v. Harvey 398 
 
 Morton v. Beach. .73, 774, 777, 780 
 
 Moss V. Lane 550 
 
 Mosser v. Request Mining Co. 528 
 
 Mott V. Mott 144, 146, 148, 729 
 
 Mott V. Shreve 627 
 
 Mount V. Manhattan Co 
 
 250, 262, 634 
 
 Mount V. Potts 433, 600 
 
 Mt. Holly &c. Turnpike Co. v. 
 
 Ferree 309, 212, 213, 271 
 
 Muir V. Howell 484, 486. 
 
 Mulford V. Hiers 707 
 
 Mulford V. Reilly 4,6,445 
 
 Mulhearn v. Press Publishing 
 
 Co 7 
 
 Mullen V. Jennings 482, 530 
 
 Muller V. Muller 142, 145, 289 
 
 Mulock V. Mulock 439, 442, 443 
 
 526, 527, 537 
 
 Mumford v. Equador Develop- 
 ment Co. ..257,258,493 
 
 Munn V. Marsh 110 
 
 Murphy v. Stults. 383 
 
 Murray v. Elston 456, 526, 528 
 
 Mutual Benefit Life Insurance 
 
 Co. V. Gould 616,627 
 
 Mutual Benefit Life Insurance 
 
 Co. V. Howell 644 
 
 Mutual B. & L. Assn. v. Bat- 
 
 terson 550 
 
 Mutual Life Insurance Co. v. 
 
 Cokefair 23, 34, 199, 307 
 
 Mutual Life Insurance Co. v. 
 
 Goddard ...516,618,619,634,625 
 
 630 
 Mutual Life Insurance Co. v. 
 
 Hopper 44 
 
 Mutual Life Insurance Co. v. 
 
 Pinner 7,20 
 
 Mutual Life Insurance Co. v. 
 
 Schwab 32,34,55 
 
 Mutual Life Insurance Co. v. 
 
 Southard 44 
 
 Mutual Life Insurance Co. v. 
 
 Sturges 96, 143, 149, 434, 438 
 
 444, 445, 451, 569, 764, 765 
 Mutual Reserve Fund Life 
 
 Assn. V. Bradbury 381 
 
 Myer v. Myer 353 
 
 Myers V- Fridenberg 359, 370 
 
 Myers v. Morris 336 
 
 Myers v. Steel Machine Co. 
 
 427, 433, 787 
 Mygatt V. Coe 5 
 
828 
 
 Table of Cases. 
 
 N 
 
 Naar v. Union & Essex Land 
 
 Co 427,640 
 
 Nanko v. Chambersburgh 519 
 
 Nash V. Smith 211 
 
 National Bank of Metropolis 
 
 V. Sprague 197, 360, 364, 365 
 
 433, 608, 610, 611, 618, 619 
 763,764,768,769,783. 
 National B. & L. Assn. v. 
 
 Strauss 337, 636, 638 
 
 National Docks R. R. Co. v. 
 
 Central R. R. Co 484 
 
 National Docks R. R. Co. v. 
 
 P. R. R. Co 431,457,479,481 
 
 483, 487, 488 
 National Trust Co. v. Miller. .131 
 
 Neal V. Albertson 602 
 
 Neldon v. Roof .69, 389 
 
 Nesbit V. St. Patrick's Church 
 
 34, 435 
 Nessler v. Industrial Land De- 
 velopment Co 794 
 
 Neville v. Demeritt 390 
 
 Nevins v. Egbeirt. . , 651 
 
 Newark v. Erie R. R. Co. .155, 508 
 Newark & New York R. R. Co. 
 
 V. Newark . .36, 370, 371, 376, 765 
 Newark Aqueduct Board v. 
 
 Passaic 483, 487 
 
 Newark Plank Road v. Elmer 
 
 374, 430 
 Newark Savings Institution v. 
 
 Forman 640 
 
 ■Newark Savings Institution v. 
 
 Jones 7,112,116 
 
 New Barbados Co', v. Vreeland 
 
 146 
 
 Newell V. Camden 435 
 
 Newfoundland R. R. &c. Co. 
 
 V. Schack 143, 507 
 
 New Jersey Building Loan & 
 
 Investment Co. v. Lord 294, 299 
 
 427, 430, 769, 772, 782, 787, 788, 789 
 New Jersey B. & L. &c. Co. v. 
 
 Schatzkin 54, 637, 639 
 
 New Jersey Express Co. ,v. 
 
 Nichols 400,417 
 
 New Jersey Franklinite Co. v. 
 Ames 136, 566, 766, 788 
 
 N. J. Gaslight Co. v. Consumers' 
 Gas Co 484 
 
 N. J. Junction R. R. v. Wood- 
 ward 488 
 
 New Jersey Lumber Co. v. 
 Ryan 63, 66, 67, 68 
 
 New Jersey Paper Board &c. 
 Co. V. Security Trust &c. Co 546 
 
 N. J. R. R. &c. Co. -v. Long 
 Dock Co 597 
 
 New Jersey Title Guarantee & 
 Trust Co. V. Cone 590, 591 
 
 New Jersey Title Guarantee 
 & Trust Co. V. Rector 210 
 
 New Jersey Zinc Co. v. Frank- 
 lin Iron Co 514 
 
 New Jersey Zinc Co. v. New 
 Jersey Franklinite Co. 
 
 188, 439, 440 
 
 Newman v. Landrine 8, 9 
 
 New York & Greenwood Lake 
 R. R. Co. V. State 636 
 
 N. Y. & N. J. Telephone Co. v. 
 East Orange 484 
 
 New York & New Jersey 
 Water Co. v. North Arling- 
 ton 199, 205, 342, 347, 755 
 
 New York Chemical Mfg. Co. 
 V. Beck 584 
 
 New York Fire Insurance Co. 
 V. Tooker 324 
 
 New York Mutual Life &c. Co. 
 V. E'aston 658 
 
 New York, Susquehanna & 
 Western R. R. v. Lawton . . . 141 
 
 Nibert v. Baghurst 514 
 
 Nichols V. Williams..l02, 115, 128 
 
 129 
 
 Nixon V. Haslett 556 
 
 Nixon V. Walter 233 
 
 Noe V. Noe 584 
 
 Norcom v. Rogers 134, 125 
 
 Northrup v. Roe 588, 590 
 
 Norton v. Sinkhorn. .203, 291, 377 
 
Table of Cases. 
 
 829 
 
 Oakley V. O'Neill 19, 434 
 
 Oakley v. Shaw 623 
 
 Oberly v. Lerch 703 
 
 Oberon Land Co. v. Dunn, 
 
 219, 231, 233, 336,.755 
 
 Obert V. Obert. . .168, 675, 676, 677 
 
 680, 681, 682, 683, 684 
 
 O'Brien v. Hulfish 195, 196, 560 
 
 O'Brien v. Paterson Brewing 
 
 Co. 385 
 
 Ocean City Assn. v. Chalf ant . . 493 
 Ocean City Assn. v. Schurch 
 
 490, 493, 494 
 Ocean City R. R. Co. v. Bray. .345 
 Ocean View Land Co. v. Lou- 
 
 denslager 219, 334 
 
 O'Conner v. Meskill 549 
 
 O'Connor v. International Sil- 
 ver Co 269 
 
 O'Connor v. Williams 299 
 
 O'Donnel v. McCann 188, 193 
 
 Ogden V. Robertson 405 
 
 P 
 
 Pace V. Bartles 656 
 
 Packard v. Stevens. . .306, 307, 312 
 
 Pages V. McLaren 468 
 
 Palladino v. Hilpert 630 
 
 Palmer v. Sinnickson 125,220 
 
 Pancoast v. Duval 598 
 
 Pancoast v. Geishaker 114 
 
 Parker v. Child 653,658 
 
 Parker v. Fay 107, 570 
 
 Parker v. Hartt. . .56, 195, 196, 394 
 
 583 
 
 Parker v. Hayes 409, 413 
 
 Parker v. Jameson. . .195, 1^6, 394 
 
 583 
 
 Parker v. Jenks 643 
 
 Parker v. Parker 351, 353 
 
 Parker v. Snyder 143, 434 
 
 Parker v. Stevens. .97, 274, 275, 569 
 
 Parker v. Travers 794 
 
 Parkhurst v. Corey. . .609, 621, 626 
 
 Parsons v. Heston 141, 434 
 
 Parsons v. Lanning 604 
 
 Partridge v. Jackson 161 
 
 Partridge v. Wells. . .359, 260, 361 
 
 Ogden V. Thornton. . .330, 331, 323, 
 324, 429, 790 
 
 O'Hara v. Nelson 481,517 
 
 Olden V. Hubbard 270, 283 
 
 Oldin V. Bingham Copper &c. 
 
 Co 487 
 
 Olds V. Regan 179 
 
 Oliphant v. Richman 483, 489 
 
 Oliva V. Bunaforza.. 134,177 
 
 O'Neill V. Clark 337 
 
 Opdyke v. Bartles 652 
 
 Oram v. Dennison 451 
 
 Order of Heptasophs v. Dailey 211 
 
 O'Rourke v. Cleveland 469 
 
 Osborne v. O'Reilly 36 
 
 Osborne v. Tunis 651, 654 
 
 Osborne v. Williams 779 
 
 Oscillating Carousal Co. v. 
 
 McCool 514 
 
 Outcalt V. Disborough 146 
 
 Outcalt V. Helme Co 379 
 
 Outwater v. Berry 3, 188, 190 
 
 282, 283 
 
 Pasman v. Montague. .322, 435, 427 
 
 Paterson v. Stapler 94 
 
 Paterson R. R. Co v. Grundy.. 485 
 Paterson & H. R. R. Co. v. 
 
 Jersey City 143, 146, 148, 381 
 
 Patterson v. Read 441 
 
 Pattison v. Skillman 96 
 
 Pearman v. Gould 758 
 
 Peeler v. Levy 155 
 
 Peer v. Cookerow 238,240,243 
 
 343, 359, 764, 770, 777 
 
 Pell V. Vreeland 635 
 
 Pelletreau v. Rathbone 145 
 
 Pemberton's Case 769 
 
 Pemberton v. Klein 220 
 
 Pence v. Force 398, 399 
 
 Pence v. Pence 93, 105, 114 
 
 Pendleton v. Fay 190 
 
 Pendleton v. Woodhouse. .126, 127 
 
 Penn v. Craig 618, 619 
 
 Penn Insurance Co. v. Semple 
 
 772, 787 
 Pennington v. Rutherford. .. .432 
 Pennington v. Todd 788,790 
 
830 
 
 Table df Cases. 
 
 Pennock v. Geyer 588,589 
 
 Pennoyer v. Neff 13, 20 
 
 Pennsylvania & New England 
 
 R. R. Co. V. Ryerson 102 
 
 Pennsylvania R. R. Co. v. Earl 212 
 Pennsylvania R. R. Co. v. 
 
 Kelley 479 
 
 Pennsylvania R. R. Co. v. 
 
 National Docks R. R. Co. 
 
 347, 484, 763, 780 
 
 Pennsylvania R. R. Co. v. 
 
 Thompson 457, 459, 468 
 
 People V. Superior Court of 
 
 New York 768 
 
 -People's Brewing Co. v. Levin 491 
 
 Perkins v. Collins. .. .503, 504, 507 
 
 508, 510, 512, 530, 525 
 
 Perkins v. Partridge 246 
 
 Perkins v. Trinity Realty Co. 
 
 539, 555 
 
 In re Perrine 715,723 
 
 Perrine v. Broadway Bank. . . .454 
 
 Perrine v. Perrine 79, 777 
 
 Perrine v. White 439, 441 
 
 Perry v. Thompson 408, 409 
 
 Personette v. Johnson 58 
 
 Peshine v. Binns 305 
 
 Peterson v. Reid 196, 560 
 
 Petrick v. Ashcroft 262, 390 
 
 Pettit V. Shepherd 256 
 
 Peyton v. Bond 131 
 
 Pfefferle v. Herr 101, 115 
 
 Phelps V. Curtis 35 
 
 Philadelphia & Reading R. R. 
 
 Co. V. Little 388,765 
 
 Philhower v. Todd 143,507 
 
 Phillips V. Hulsizen. . .355, 656, 661 
 
 Phillips V. Pullen 59, 60 
 
 Phillips V. Schevley 147 
 
 Phillips V. Schooley 143 
 
 Phillips V. Youmans. .544, 546, 634 
 Pickert v. Ridgefield Park 
 
 R. R. Co 489,493 
 
 Pierce v. Old Dominion &c. 
 
 Smelting Co 165,192,439 
 
 Pierson v. Ryerson 300,533 
 
 Pillsbury V. Kingon 132 
 
 Pincers v. Robertson 297 
 
 Pine t/. Shannon 538, 565, 580 
 
 Pinnell v. Boyd 305,553 
 
 Plaut V. Plaut 159 
 
 Plum V. Morris Canal Co.... 170 
 Plum V. Smith. ..114, 165, 199,202 
 
 396 
 
 Plume V. Smair 433 
 
 Plumley v. Plumley 118, 135 
 
 Plunket V. Joyce 120 
 
 Podesta v. Moody 766 
 
 Point Pleasant Electric Light 
 
 Co. V. Bay Head 492 
 
 Polhemus v. Emson. .681, 688, 792 
 
 Polhemus v. Hodson 663 
 
 Polhemus v. Holland Trust Co. 
 
 296, 764, 787 
 
 Polhemus v. Princilla 617,632 
 
 Pomeroy v. Pomeroy 669,673 
 
 Pope V. Bell 538, 537 
 
 Porch V. Agnew Co. . .75, 616, 617 
 
 639 
 
 Porch V. Fries 703 
 
 Porter v. Spencer 350 
 
 Porter v. Trail 119 
 
 Post V. Kirkpatrick 15 
 
 Potts V. Potts 294, 4S8 
 
 Powell V. Mayo..220, 321, 330, 232 
 312, 330, 375 
 
 Powell V. Yearance 793 
 
 Pratt V. Boody 534 
 
 Pratt V. Worrell 308, 310 
 
 President &c. v. Trenton City 
 
 Bridge Co 498 
 
 In re Price 728 
 
 Price V. Armstrong 526 
 
 Price V. Clevenger 535 
 
 Price V. Lawton . . 303, 326, 328, 560 
 
 586 
 
 Price V. Sisson 45, 680 
 
 Prickett v. TuUer 535 
 
 Probasco v. Probasco 94, 467 
 
 Probasco v. Vaneppes .... 546, 597 
 Promes v. Freeholders of 
 
 Warren 522 
 
 Pronick v. Spirits Distilling 
 
 Co 489 
 
 Provident Inst. v. Allen 595 
 
 Prudden v. Lindsley. .373, 375, 488 
 
 Pruden v. Savage 542 
 
 Pruden v. Williams. .572, 642, 644 
 
Table of Cases. 
 
 831 
 
 Pullen V. Pullen 451 
 
 Purcell V. Bennett 7 
 
 Puster V. Parker Mercantile 
 
 Co 6,15,253 
 
 Putnam v. Clark 345,246,347,752 
 
 Prudential Insurance Co. v. 
 
 Guild 586 
 
 Pryor v. Gray 142, 273 
 
 Public Service Corporation v. 
 
 De Grote 459 
 
 Public Service Corporation v. 
 
 Hackensack Meadows Co.... 155 
 
 Q 
 
 Quackenbush v. Van Riper Quick v. Lilly 346, 247 
 
 302, 457, 488, 490, 496, 520, 526 Qujnn y Patton 209 
 
 Quaivoli v. Italian Beneficial 
 Society 270 
 
 Radley v. Radley 666,667,697 
 
 Raelble v. Goebbel 292,394 
 
 Rahway Savings Institution v. 
 
 Drake 215,757 
 
 Rainier v. Howell 144 
 
 Raleigh v. Rogers 764 
 
 Ramsey v. Smith 537 
 
 Randall v. Morrell. . . .530, 538, 753 
 
 Randall j/. Reynolds 584 
 
 Randolph v. Daly. .95, 103, 146, 167 
 176, 177 
 
 Randolph v. Wilson 198,641 
 
 Rankin v. Coar 581 
 
 Ransom v. Geer 3,112,140 
 
 142, 159 
 
 Raphael v. Zehner 630 
 
 Raritan v. Port Reading 500 
 
 Raritan Savings Bank v. 
 
 Lindsley 571 
 
 Ratzer v. Ratzer 777, 779 
 
 Rawnsley v. Trenton Mutual 
 
 Life Insurance Co. 141,427,507 
 
 515 
 
 Raymond v. Post 53, 54, 323 
 
 Rea V. Wheeler ^. . . .630 
 
 Read v. Bennett "... .107 
 
 Read v. Cramer 156 
 
 Read v. Huflf 684, 765, 767 
 
 Read v. Patterson 111, 451, 765, 788 
 
 Reading v. Stover 283 
 
 Redmond v. Dickerson 281 
 
 Redrow v. Sparks 25,269,270 
 
 378, 379, 280, 560, 561, 563, 563 
 
 Redstrake v. Surron 319,334 
 
 Reed v. Benzine-Ated Soap Co. 
 
 9, 205, 383 
 Reed v. Cumberland Mutual 
 
 Fire Insurance Co. ..29,279,300 
 302, 304, 307, 308, 398, 399 
 
 Rennie v. 
 Renton v. 
 Resnick v. 
 
 Reed v. Philadelphia &c. R. 
 
 R. Co 457 
 
 Reed v. Reed. .. .114, 137,323, 388 
 
 Reeves v. McCracken 390,399 
 
 Reeves v. Reeves 663 
 
 Reilly v. Roberts 36 
 
 Remer v. Shaw 25,293 
 
 Rennie v. Crowbie 155 
 
 Deshon 176 
 
 Chaplain 538 
 
 Campbell 253 
 
 Reynolds v. Stockton 433 
 
 Rice V. Rice 359 
 
 Richards v. Morris Canal &c. 
 
 Co. 363,757 
 
 Richards v. Salter. 213 
 
 Richards v. Shaw 345,247 
 
 Richards v. Weingarten. .338, 332 
 
 587 
 
 Richards v. West 460, 513 
 
 Richardson v. Hatch 440, 443 
 
 Richardson v. Peacock 531 
 
 Richardson v. Richardson 444, 448 
 
 Richman v. Donnell 93 
 
 Riddle v. Clabby.' 790 
 
 Riddle v. Keller 143, 434 
 
 Riehle v. Henlings 779 
 
 Rigg V. Hancock 154 
 
 Riley v. Fithian 183, 183 
 
 Riley v. Hodgkins 141, 377 
 
 Rinehart v. Rinehart 112 
 
 Rima v. Ross Iron Works.... 133 
 Ring V. New Auditorium &c. 
 
 Co 97,115,566,567 
 
 Riverview Cemetery Co. v. 
 
 Turner 683 
 
 Roake v. American Telep'hone 
 
 Co 484 
 
s;!2 
 
 Table or Cases. 
 
 Roarty v. Smith 667, 699 
 
 Robert v. Hodges 536 
 
 Roberts v. Birgess 390, 448 
 
 Roberts v. Scull 483 
 
 Roberts v. Tompkins 550 
 
 Robertson v. Meyer 491 
 
 Robertson v. Miller 449 
 
 Robeson v. Robeson 556,557 
 
 Robinson v. Davis ... 103, 177, 534 
 Rockwell V. Morgan..l58, 164, 166 
 
 180 
 
 Rodberg v. Lamachinsky 465 
 
 Roebling v. Board of Public 
 
 Works 493 
 
 In re Rogers 728 
 
 Rogers v. Danforth 514 
 
 Rogers v. Hosacks 768 
 
 Rogers v. Rogers 17, 19, 618 
 
 Rogers v. Rogers Locomotive 
 
 Co 629,630 
 
 Rogers Locomotive Works v. 
 
 Erie R. R. Co. .477,479,480,492 
 
 Roll V. Everett 683 
 
 Roll V. Rea 44,45 
 
 Roll V. Smalley 596 
 
 Romaine v. Hendrickson 
 
 24, 151, 283 
 
 Romtnel v. Kirk 9 
 
 Matter of Root 716 
 
 Rorback v. Dorsheimer 
 
 141, 147, 148, 149 
 
 Rose V. Cooley 679 
 
 Rosenkrans v. Snover 702 
 
 s 
 
 Safford v. Barber 273, 274, 275 
 
 Sailer v. Sailer 670, 678, 679 
 
 Salaun v. Hartshorne 58 
 
 Salem v. Board of Health -.306 
 
 Salem v. State 138, 302, 346 
 
 Salter v. Applegate 409 
 
 Sanborn v. Adair 180, 305, 387 
 
 Sanford v. Kerr 336 
 
 Savage v. Port Reading R. R. 
 
 Co 479 
 
 Savings Association v. Vander- 
 
 vere 110,573 
 
 Sawyer v. Piatt 344 
 
 Sayre v. Coyne 66 
 
 Sayre v. Fredericks 300, 394 
 
 Ross V. Elizabethtown &c. R. 
 
 R, Co 49:; 
 
 Ross V. Hatfield 338, 340 
 
 Ross V. Stevens 536 
 
 Ross V. Titsworth 472, 533 
 
 Rottenburgh v. Fowl 437 
 
 Rowan v. Congdon 625,631 
 
 Rowan v. Yarnall 332 
 
 Rowbothan v. Jones 
 
 164, 169, 173, 174 
 
 Rowe V. Hoagland 215 
 
 Ruckman v. Decker. .259, 427, 431 
 432, 434, 437 
 
 Ruckman v. Ruckman 758 
 
 Rudderow v. Dudley 701 
 
 Rue V. Meirs 120 
 
 Ruebry v. Grant 185 
 
 In re Rule of Court of Chan- 
 cery No. 195 79 
 
 R'unyon v. Farmers &c. Bank. .385 
 
 Rusling V. Bray 36,3.59,450 
 
 Rusling V. Brodhead 97, 98 
 
 Russell V. Lathrop 430 
 
 Russell V. Sharp 121 
 
 Rutherford v. Alyea. .105, 179, 574 
 Rutherford Land &c. Co. v. 
 
 Sanntrock 634 
 
 Ryan v. Anglesea R. R. Co. 
 
 29, 302, 308 
 
 Ryan v. Wilson 627 
 
 In re Ryder 122 
 
 Ryerson v. Adams 436, 433 
 
 Ryerson v. Boorman 610, 779 
 
 Sayre v. Newark 486 
 
 Sayre v. Sayre 114, 410 
 
 Sbarbfro v. Miller 739 
 
 Scanlan v. Howe 496,498,518 
 
 519, 522 
 
 Scattergood v. Keeley 649 
 
 Schalk V. Schmidt 501, 502, 521, 523 
 
 Scharr v. Camden 497 
 
 Schatt V. Grosch 658 
 
 Schenck v. Conover. .636, 637, 638 
 777, 778, 779 
 
 Schenck v. Hart 423 
 
 Schenck v. Schenck 118 
 
 Schenck v. Sedam 366 
 
 Schilling v. Lintner. . .610, 622, 625 
 
Table of Cases. 
 
 83S 
 
 Schlichert/. Vogel 106,169,177,178 
 
 Schmid v. Lisiewski 370 
 
 Schmitz V. Scheifele 547 
 
 Schnitzius v. Bailey 767 
 
 Schoenfeld v. American Can 
 
 Co 493,515 
 
 Schoettle v. Henegen 364 
 
 Schrafft V. Wolters 142, 149 
 
 Schuhardt v. Wittcke 66 
 
 Schuler v. Southern Iron & 
 
 Steel Co 114,141,143,269 
 
 283, 386, 336 
 
 Schultze V. Van Doren 566, 567 
 
 Schulz V. Ziegler 664 
 
 Schwenk v. Wyckoff 66 
 
 Schwoebel v. Storrie 289 
 
 Scott V. Ames 536, 528 
 
 Scott V. Gamble 153, 156, 160 
 
 Scott V. Hartman .'531 
 
 Scott V. Lalor 195, 198 
 
 Scott V. Somers 648 
 
 Scudder v. Trenton Delaware 
 
 Falls Co 493,494 
 
 Scull V. Idler 553, 573 
 
 Scull V. Reeves 399, 531 
 
 Seabring v. Conkling 301 
 
 Seaman v. Riggins 608, 619, 627, 629 
 
 Search v. Search 126, 142 
 
 Sears v. Jackson 755, 760 
 
 Seastream v. New Jersey Ex- 
 hibition Co 78,456,463,465 
 
 470, 500 
 
 Sebring v. Sebring 342 
 
 See V. Cole 133 
 
 See V. Heppenheimer. .19, 167, 176 
 
 Seeley v. Adams 655 
 
 Seeley v. Price .' 38 
 
 Seigle V. Seigle 366 
 
 Seigman v. Streeter 543 
 
 Serena v. Moore 664 
 
 Serrell v. Rothstein 545, 547 
 
 Sewall V. Russell 93 
 
 Seyfried v. StoU 315 
 
 Seymour v. Hazard 350 
 
 Seymour v. Long Dock Co. 
 
 135, 268, 316, 318, 320, 321, 325 
 
 Shann v. Jones 613, 646 
 
 Shannon v. Marselis 
 
 432, 557, 560, 561, 599, 600 
 
 Sharp V. Cutler 550 
 
 Sharp V. Hibbins 355 
 
 Sharp V. Todd 658 
 
 Sharp V. Wyckoflf 443 
 
 Shaw V. Coster 309, 311 
 
 Shepard v. New Jersey Con- 
 solidated Water Co. . .32, 33, 55 
 
 Shepherd v. McCIain 756 
 
 Sheppard v. Nixon 
 
 318, 219, 221, 235 
 
 Shields V. Arndt ' 539 
 
 Shields v. Lozear 539,658 
 
 Shimer v. Morris Canal &c. 
 
 Co. 49^ 
 
 Shipman v. Shipman 680 
 
 Shivers v. Hand 673 
 
 Short V. Post 553 
 
 Shotwell V. Dalrymple 709 
 
 Shotwell V. Smith 524 
 
 Shotwell V. Struble 530 
 
 Shreve v. Hankinson 590 
 
 Shreve v. Harvey 74, 558 
 
 Shreve v. Voorhees 496 
 
 Shuttleworth v. Dunlop 9 
 
 Shuttlesworth v. Hughey 122 
 
 Shutts V. United Box Board 
 
 & Paper Co 167,178,179 
 
 Sibell V. Weeks 53,54,544 
 
 Sieveking v. Behrens 211 
 
 Silver v, Campbell 613 
 
 Simmons v. Paterson 496 
 
 Simon V. Townsend 536,635 
 
 Ex parte Simpson 185 
 
 Simpson v. Burton 140 
 
 Simpson v. Straughen 664 
 
 Sinclair v. Armitage 653 
 
 Singer Mfg. Co. v. Bowne....430 
 Sinking Fund Commissioners 
 
 V. Peter 637 
 
 Sinnickson v. Bruere 364 
 
 Sinnickson v. Johnson 537 
 
 Sire V. Wightman 549 
 
 Sked V. Pennington Spring 
 
 Water Co 493 
 
 Skillman v. Holcomb 606 
 
 Skinner v. Christie 560, 563 
 
 Slack V. Bird 756 
 
 Slater v. Schweigler 491 
 
834 
 
 Table of Cases. 
 
 Slockbower v. Kanouse 683 
 
 Small V. Boudinot 147 
 
 Smalley v. Line 523 
 
 Smallwood v. Lewin . . 310, 312, 394 
 
 Smedberg v. Mark 350 
 
 Smith V. Allen 281 
 
 Smith V. Alton 625 
 
 Smith V. Axtell 141, 424 
 
 Smith V. Boyd 758 
 
 Smith V. Clark 150 
 
 Smith V. Combs 259 
 
 Smith V. Cunningham 612,614 
 
 Smith V. Duncan 620, 629 
 
 Smith V. Floyd 122 
 
 Smith V. Frenche 362, 364 
 
 Smith V. Gaines. ..97, 114, 115j 665 
 666, 667, 670, 671 
 
 Smith V. Howell 27 
 
 Smith V. Krueger 261 
 
 Smith V. Kuhl 506, 507, 520 
 
 Smith V. Loomis..300, 301, 510, 535 
 
 Smith V. Painter 525, 538 
 
 Smith V. Trenton Delaware 
 
 Falls Co 130, 131, 155, 156 
 
 Smith V. Umstead 752 
 
 Smith V. Wood 132, 141, 147 
 
 Snowhill V. Snowhill 791 
 
 Snyder v. Blair 612, 613, 619 
 
 Snyder v. Greaves 655 
 
 Snyder v. Harris 386, 567 
 
 Snyder v. Seeman 520,526,528 
 
 Sobernheimer v. Wheeler 
 
 67, 68, 131, 495 
 
 Society &c. v. Butler 497 
 
 Society for Establishing Useful 
 Manufactures v. Low 
 
 389, 494, 515, 516, 532, 533 
 
 Soden v. Soden 427 
 
 Sohege v. Singer Mfg. Co. 
 
 14, 15, 249 
 
 Somerset County Bank v. 
 Veghte 251,252 
 
 Somerville Water Co. v. Bor- 
 ough of Somerville 302,483 
 
 Soper V. Kipp. . . , 101 
 
 Sorchan v. Mayo 590 
 
 Southard v. Morris Canal &c. 
 Co 487,493 
 
 South Branch R. R. v. Parker 95 
 
 Southern National Bank v. 
 
 Darling 9 
 
 Southmayd v. Elizabeth 
 
 219, 223, 228 
 
 Sparks v. Fortescue 87, 443 
 
 Sparks v. Ross 373 
 
 Speakman v. Tatem 
 
 91, 101, 105, 112, 115, 116 
 Speer v. Speer 92, 101, 110, 673, 673 
 
 Speer v. Whitfield 195 
 
 Sperry v. Hertzberg 484 
 
 Sperry &c. Co. v. Vine 491 
 
 Spring V. Fisk 544, 545 
 
 Springer v. Lawrence 500 
 
 Spurr V. North Hudson R. R. 
 
 Co 432 
 
 Squiar v. Shaw 29, 292, 300, 304 
 
 306, 308, 582 
 
 Stafford v. Brown 150 
 
 Stafford v. Stafford 426 
 
 Stanberry v. Baker . . . 273, 287, 290 
 
 Standish v. Babcock 348,355 
 
 Stanford v. Lyon 479, 480 
 
 Stanton Mfg. Co. v. McFar- 
 
 land 482, 516, 518, 528 
 
 Starkey v. Fox 259 
 
 State V. Ackerson 469, 472 
 
 State V. Doty 455; 456, 457 
 
 State V. Dwyer 455 
 
 State V. Keeper of Jail, &c. . . .465 
 
 State V. Trumbull 455,468 
 
 State Mutual B. & L. Assn. v. 
 
 Batterson 574, 641 
 
 State Mutual B. & L. Assn. v. 
 O'Callaghan 
 
 592, 594, 619, 632, 780 
 
 Stearns v. Stearns 395 
 
 In re Steele 741 
 
 Steelman v. Blackman 224 
 
 Steelman v. Wheaton 274, 375, 388 
 Steepy v. Public Service Cor- 
 poration of N. J 307 
 
 Sternberg v. O'Brien 481 
 
 Sternberg v. Sternberg 312 
 
 Sternberg v. Wolff 513 
 
 Sternberger v. Sussman 599 
 
 Stevens v. Bosch 92,101,115, 
 
 164, 169 
 
Taule of Cases. 
 
 835 
 
 Stevens v. Paterson &c. R. R. 
 
 Co 484, 496 
 
 Stevens v. Post. . .390, 391, 393, 394 
 
 Stevens v. Reeves 569, 571 
 
 Stevens v. Shaw 323, 324 
 
 Stevens v. Stevens . . . 199, 204, 527 
 765, 767 
 Stevens v. U. S. Steel Corpo- 
 ration 129, 136, 137, 320 
 
 Stevens & Condit Transporta- 
 tion Co. V. C. R. R. of N. J. 141 
 Stevens Institute v. Sheridan. .643 
 
 Stevenson v. Markley 289, 318 
 
 Stevenson v. Morgan. .38, 142, 153 
 182, 275, 276, 288, 289 
 
 Stewart v. Fallon 313 
 
 Stiger V. Bacon 563 
 
 Stiles V. Galbreath 53 
 
 Stilt V. Hilton 526, 538 
 
 Stilwell V. McNeely 94, 97, 114 
 
 116, 134, 277 
 Stimis V. Stimis 
 
 259, 260, 270, 282, 558 
 
 Stimson v. Bacon 510 
 
 Stitt V. Hilton 536 
 
 Stockman v. Wallace ; . . 589 
 
 Stockton V. American Tobacco 
 Co 191 
 
 Stockton V. Anderson 96 
 
 Stockton V. Dundee Mfg. Co.. 648 
 
 Stockton -v. Lippincott 143 
 
 Stockton V. North Jersey 
 
 Street R. R. Co 481, 484 
 
 Stoddard v. Van Bussum 44 
 
 Stokes V. Garr 407 
 
 StoU V. Wellborn 413 
 
 Stone V. Stone 16, 354 
 
 Stonington Savings Bank v. 
 
 Davis 357,361,581 
 
 Storey v. Palmer 668, 670 
 
 Tainter v. Morristown 536 
 
 Tallman v. Wallack. .195, 556, 790 
 
 Talmadge v. Pell 159, 310 
 
 Tantum v. Coleman 137,138 
 
 Tantum v. West 531 
 
 Tappan v. Dayton 605 
 
 Tate V. Field 305, 595, 596 
 
 Tate V. Security Trust Co.... 557 
 
 Storm V. Vanderberg i5i 
 
 Stotesbury v. Vail 397, 518, 536 
 
 Stout V. Apgar 65 
 
 Stout V. Leonard 5 
 
 Stoutenburg v. Tompkins 385 
 
 Stoutenburgh v. Peck 
 
 521, 534, 535, 536 
 Stover V. Reading 145, 147, 439, 580 
 
 Stover V. Wood 193,333,436 
 
 Streeter v. Braman 148 
 
 Strong & Sons v. Mundy 74 
 
 Strong V. Smith. ..54, 617, 631, 636 
 637, 638, 780 
 
 Stucky V. Stucky 141,424,437 
 
 Suffern v. Butler 536 
 
 Sugar Refining Co. v. Jersey 
 
 City 497 
 
 In re Sulk 716, 730, 751 
 
 Sullivan v. Browning 383 
 
 Sullivan v. Jennings 614 
 
 Summerbell v. Summerbell . . . 789 
 Summit v. N. Y. & N. J. 
 
 Telephone Co 481 
 
 Supreme Council of Chosen 
 
 Friends v. Bennett 308 
 
 Swallow V. Swallow 
 
 98, 136, 450, 451 
 Swayze V. Hackettstown Na- 
 tional Bank 235 
 
 Swayze v. Swayze 165, 180, 263, 364 
 Swedesborough Church v. 
 
 Shivers 95,100,345 
 
 Sweet V. Parker...98, 111, 115, 398 
 399, 651 
 Swift V. D., L. & W. R. R. 
 
 483, 517 
 
 Swift V. Eckford 335 
 
 Swinley v. Force 558,559 
 
 Symmes v. Strong 398, 399, 432 
 
 Synnott v. Kobbe 291,306.307 
 
 Taylor v. Morris 553 
 
 Taylor v. Read 354 
 
 Taylor v. Taylor 67, 472 
 
 Taylor v. Thomas 34, 576 
 
 Teasey v. Baker 526, 530 
 
 Telegram Co. v. Commonwealth 
 
 456 
 Teeter v. Veitch 278 
 
83G 
 
 Table of Cases. 
 
 Tenbrook v. Jessup 66 
 
 Ten Eyck v. Manning 155 
 
 Terhune v. Colton . . . . 447, 789, 790 
 Terhune v. Midland R. R. Co. 
 
 129, 758, 766, 767 
 
 Terhune v. Pinkney 782 
 
 Terhune v. Sibbald 94,133 
 
 Terhune v. Taylor 549 
 
 Ter Knile v. Reddick 143 
 
 Terry v. Smith 668 
 
 Thiefes v. Mason 280, 344, 398, 399 
 Third Avenue Savings Bank 
 
 V. Dimock. .310, 311, 312, 326, 329 
 Third National Bank v. Carey 753 
 
 Thomas v. De Baum 
 
 315, 388, 638, 664 
 
 Thomas Iron Co. v. Allentown 
 
 Mining Co. 503 
 
 In re Thompson 689,690 
 
 Thompson v. Bird 600 
 
 Thompson v. German Valley 
 
 R. R. Co 455 
 
 Thompson v. Moxey 271 
 
 Thompson v. North 
 
 301, 302, 305, 393 
 Thompson v. Ocean City R. R. 
 
 Co 508,509,510 
 
 Thompson v. Paterson 488 
 
 Thompson v. P. R. R. Co. 
 
 452, 458, 462 
 
 Thompson v. Ramsey 636 
 
 Thompson v. Williamson. .307, 308 
 
 Thome v. Andrews 701 
 
 Thome v. Mosher 547 
 
 Thornton v. Ogden 339,793 
 
 Thorp V. Leibrecht 429 
 
 Thorp V. Pettit 536 
 
 Thropp V. Field 458 
 
 Tichenor v. Wilson 490 
 
 Titus V. Bennet 170 
 
 Todd V. Staats 379 
 
 Toffey V. Atcheson 640 
 
 Tomkins v. Miller 668 
 
 Tomlinson v. Sheppard 376 
 
 Tompkins v. Tompkins 547 
 
 Tooker v. National Sugar &c. 
 
 Co. 494 
 
 Torrey v. Camden & Amboy 
 
 R. R. Co 496 
 
 Townsend v. Simon 614, 646 
 
 Townsend v. Smith. . .439, 769, 770 
 Trades Savings Bank v. 
 
 Freese 96,567,568 
 
 Traphagen v. Jersey City 
 
 493, 494, 498 
 
 Traphagen v. Levy 94,115,137 
 
 Traphagen v. Voorhees 346 
 
 Travelers Insurance Co. v. 
 
 Moses 274 
 
 Travers v. Ross 367,292,300 
 
 Trenton Banking Co. v. Mc- 
 
 KeWay 370 
 
 Trenton Banking Co. v. Ros- 
 
 sell 373,374 
 
 Trenton Banking Co. v. Wood- 
 ruff 369,370,390,586 
 
 Trenton Passenger R. R. Co. v. 
 
 Wilson 96,134,284 
 
 Im re Trenton Street Railway 
 
 Co 387,475 
 
 Trenton Trust &c. Co. v. Fitz- 
 
 gibbon &c. Co 604 
 
 Trimble v. American Sugar 
 
 Refining Co 382 
 
 Trimmer v. P. R. R. Co 457 
 
 Trimmer v. Todd 565 
 
 Tripp V. Gifford 121 
 
 Trout V. Lucas 493 
 
 Troxall v. Silverthorne 645 
 
 Trusdel v. Jones 549 
 
 Trusdell v. Dowden 552,553 
 
 Trustees v. Gilbert 493, 526 
 
 Trustees v. Gray 483 
 
 Trustees v. N. H. &c. R. R. 
 
 Co 623 
 
 Trustees v. Taylor 142 
 
 Trustees v. West Shore R. R. 
 
 Co 279 
 
 Trustees v. Wilkinson 112,180 
 
 Tucker v. Tucker 361 
 
 Tunnard v. Littell 137 
 
 Turner v. Houpt 334,335,336 
 
 Turner v. Kuehnle 594 
 
 Turrell v. Byard 585,587 
 
 Tuttle V. Gilmore 790 
 
 Tyler v. Simmons 363 
 
 Tynan v. Warren 361,263,298,285 
 Tyson v. Applegate. . .114, 116, 567 
 
Table of Cases. 
 
 837 
 
 U 
 
 Una V. Dodd 404, 453, 460, 467 
 
 Underbill v. Atwater 188 
 
 Union National Bank v. Pin- 
 ner 562 
 
 United Box Board & Paper 
 Co. V. McEwan Bros. Co. 
 
 311, 319, 337 
 
 United N. J. R. R. Co. v. 
 
 Standard Oil Co 487 
 
 United R. R. &c. Co. v. Long 
 
 Dock Co 333 
 
 United Security Life &c. Co. 
 
 V. Vandegrift 106, 543, 574 
 
 U. S. Fidelity & Guaranty Co. 
 
 V. Newark 198 
 
 United States Security Life 
 
 &c. Co. V. Smith 751 
 
 Updike V. Bartles 760 
 
 Vail V. C. R. R. Co. . .269, 374, 383 
 283, 333 
 
 Van Aken v. Tice 540, 541, 543 
 
 Van Arsdalen v. Vail 637 
 
 In re Van Auken 718, 723, 726 
 
 Van Buskirk v. Mulock 44 
 
 Vandegrift v. Herbert 393, 394, 395 
 Vanderbeck v. Perry. .28, 386, 448 
 Vanderbilt v. Central R. R. Co 131 
 Vanderhaize v. Hugues 
 
 651, 655, 656, 658, 659 
 
 Vanderhoof v. Clayton 390 
 
 Vanderhoven v. Romaine 
 
 651, 661, 753 
 Van der Plaat v. Undertakers 
 
 &c. Assn 486 
 
 Vanderpool v. Davenport 
 
 100, 101, 111. 113 
 Vanderveer v. Holcomb 
 
 33, 25, 198, 199, 393, 299, 328, 388 
 389, 396, 432, 552, 576, 582, 764 
 766, 768 
 Vanderveer v. Stryker 
 
 62, 282, 383, 333 
 Van Derveer v. Tallman. .91, 501 
 Vanden7eere v. Reading 
 
 310, 311, 313, 337, 330 
 Van Deventer v. Stiger. . .444, 601 
 Van Doren v. Dickerson 
 
 543, 574, 586 
 Van Doren v. Robinson 
 
 114, 116, 136 
 
 Van Doren v. Van Doren 354 
 
 Van Duyne v. Van Duyne 
 
 608, 609, 618, 753 
 
 Van Duyne v. Shann. . . ._ 577 
 
 Van Duyne v. Vreeland 
 
 361, 267, 381, 283 
 
 Van Dyke v. Van Dyke 
 
 3, 7, 135, 154, 389, 389, 390, 618, 630 
 Van Hise v. Van Hise 163, 164, 169 
 Van Hook v. Somerville Mfg. 
 
 Co 390 
 
 Van Horn v. Demarest 
 
 268, 346, 385 
 
 Van Houten's Case 755 
 
 Van Houten v. First Reformed 
 
 Church 514 
 
 Van Houten v. Hall 777 
 
 Van Houten v. Pennington. . .756 
 Van Houten v. Stevenson 
 
 256, 257, 258, 265, 433 
 Van Houten v. Van Houten. . .219 
 Van Houten v. Van Winkle 
 
 165, 175, 270, 273, 274 
 Van Keuren v. McLaughlin 
 
 92, 100, 101, 103, 137 
 Van Kuren v. Trenton Loco- 
 motive &c. Co .536 
 
 Van Mater v. Sickler 
 
 105, 112, 164, 172 
 
 Vanmeter v. Borden 638, 639 
 
 Vanneraan v. Swedesboro 
 
 Loan &c. Assn 387 
 
 Van Ness v. Robbins 585 
 
 Van Ness v. Van' Ness 
 
 359, 364, 365, 367 
 
 Van Orden v. Budd 660 
 
 Van Orden v. Van Orden.. 137, 277 
 Van Riper v. Claxton 319, 323, 602 
 Van Riper v. Wickersham. .. .305 
 Vansciver v. Bryan. . .433, 424, 427 
 Van Syckel v. Emery.. 507, 533, 533 
 
 Van Syckel v. O'Hearn 547 
 
 Van Syckle v. Rorbach 538 
 
 Van Vechten v. Terry 116 
 
838 
 
 Table of Cases. 
 
 Van Wagenen v. Cooneyi 500 
 
 Van Waggoner v. McEwan ... 560 
 Van Winkle v. Armstrong 197, 329 
 
 Van Winkle v. Curtis 488, 508 
 
 Van Winkle v. Owen 217 
 
 Van Winkle v. Stearns 630 
 
 Van Winkle v. Van Houten. .101 
 
 Varick v. Smith 169, 178 
 
 Varrian v. Berrien , 212 
 
 Varrick v. Hitt 868, 346, 774 
 
 Vass V. Hill 679, 700 
 
 Vaughn v. Johnson 397 
 
 Veghte V. Raritan Water 
 
 Power Co. . .25, 178, 180, 279, 345 
 Ventnor Investment &c. Co. v. 
 
 Record Development Co 583 
 
 Verplanck v. Insurance Co. . . .335 
 Vervalen v. Older 526 
 
 Vineland National Bank v. 
 
 Shinn 337 
 
 Vliet V. Lowmason 535 
 
 Vliet V. Wyckoff 794 
 
 Vondeplace v. Weller 25 
 
 Voorhees v. Melick 136 
 
 Voorhees v. Nixon 539 
 
 Voorhees v. Polhemus 122,756 
 
 Voorhees v. Reford 94 
 
 Voorhees v. Voorhees 305, 389, 390 
 
 Voorhis v. Murphy 545 
 
 Vreeland v. Loubat . . . 104, 134, 573 
 Vreeland v. New Jersey Stone 
 
 Co 299, 301, 391, 511, 530, 533 
 
 Vreeland v. Torrey 634 
 
 Vreeland v. Vreeland 168,683 
 
 Vulcan Detinning Co. v. Amer- 
 ican Can Co 153,167,176 
 
 305, 508 
 
 Wade V. Miller 301, 
 
 Wagner v. Blanchet 
 
 Wakeman v. Dodd 385, 
 
 Wakeman v. Erie R. R. Co. 
 
 479,480,483, 
 Wakeman v. Kingsland 
 
 206, 207, 208, 213, 214, 215, 
 Waker v. Booraem. . . .95, 112, 
 
 Walbridge v. English 
 
 Walker v. Else 
 
 Walker v. Hill. . .154, 262, 337, 
 
 398, 399, 526, 
 Walker v. Montclair &c. R R. 
 
 Co 
 
 Walker v. Walker 
 
 Wall V. Tallman 
 
 Wallace v. Coward 270, 
 
 Wallace v. Wallace 
 
 Wallace &c. Co. v. Leber. .413, 
 
 Wain V. Meirs 364, 685, 
 
 Walsh V. Dunn 
 
 Walton V. Herbert 3, 
 
 Walton V. Taylor 
 
 Walton V. Walton 454, 459, 
 
 461, 467, 
 
 Warbass v. Armstrong 
 
 Ward V. Montclair R. R. Co 
 33, 
 
 w 
 
 596 Ward v. Tallman 228, 234 
 
 5 Ware v. Thompson 157 
 
 610 Waring v. Crane 122 
 
 Warne v. Morris Canal &c. 
 488 Co 490 
 
 Warner v. Warner! . . .386, 440, 441 
 216 442, 445 
 
 374 Warren v. Pim 518, 524 
 
 570 Warwick v. Dawes 554 
 
 121 Warwick v. Hammell 588 
 
 385 Warwick t;. Perrine. .167, 176, 177 
 
 ^'^'' Washer t;. Brown 526 
 
 Watkins v. Milligan. . 142, 424, 433 
 
 Watkinson v. Watkinson 
 
 244, 245, 246 
 
 Watson V. Conklin 585, 587 
 
 Watson V. Murray 145 
 
 Watson V. Noblett 7 
 
 Watson V. Rowley 132 
 
 Wauters v. Van Vorst 352 
 
 671 
 
 Way V. Bragaw.. .94, 167, 176, 177 
 
 257, 258 
 
 Weart v. Rose 563, 564 
 
 ^gg Weatherby v. Slack 599 
 
 _,- Weatherby v. Slape 607 
 
 Weatherby v. Weatherby 542 
 
 357 Weber ii. 'Weitling 367,629 
 
 628 
 754, 
 219 
 558 
 20 
 415 
 695 
 
 159 
 755 
 
Table of Cases. 
 
 839 
 
 Weehawken Ferry Co. v. 
 
 Sisson 431 
 
 [n re Weis 714, 727, 738, 729 
 
 Weise v. Welsh 681, 682 
 
 Weissenborn v. Sieghortner. . .765 
 
 Welch V. Arnett 310, 313, 336 
 
 327, 331 
 
 Welsh V. Bayaud 155 
 
 Wend V. Cantwell 123 
 
 Wendal's Case 736 
 
 Werner v. Murphy 130 
 
 West V. Paige 29, 343 
 
 West V. Smith 503,519,531 
 
 West V. Walker 488 
 
 Westcott V. Gifford 518 
 
 Westerfield v. Bried 397 
 
 Westervelt v. Ackerson 288 
 
 West Jersey R. R. Co. v. Cape 
 
 May &c. R. R. C0...483, 484, 514 
 West Jersey &c. Co. v. Smith. .335 
 West Jersey Railroad Co. v. 
 
 Thomas 391,533 
 
 West Jersey Traction Co. v. 
 
 Camden 457,458 
 
 Wetherbee v. Baker 128,129 
 
 Wetmore v. Zabriskie 668 
 
 Wetzler v. Schumann 625, 626 
 
 Weyman v. Thompson 324 
 
 Wharton v. Stoutenburgh 469 
 
 Wheeler v. Ellis 641 
 
 Wheeler & Wilson Mfg. Co. 
 
 V. Filer 144,153 
 
 In re White 751 
 
 White V. Davis.. 3, 133, 149, 159, 160 ■ 
 
 White V. Dummer 28 
 
 White V. Smith ... 45, 438, 439, 441 
 
 444, 663, 669, 675, 677, 679, 680 
 
 681, 683, 694 
 
 White V. Stretch 563, 583 
 
 White V. Tidewater Oil Co. . . .492 
 
 White V. White 339 
 
 White V. Zust 607, 639 
 
 Whitecar v. Michenor 479,480 
 
 Whitehead v. First Methodist 
 
 &c. Church 599,646 
 
 Whitehead v. Hamilton Rubber 
 
 Co 510 
 
 In re Whitenack 718 
 
 Whitlock V. Greacen 219, 327 
 
 Whitney v. Kirtland 94 
 
 Whitney v. Robbins. .62, 63, 67, 390 
 Whittaker v. Belvidere Roller 
 
 Mill Co 599,633,648 
 
 Whittemore v. Coster 
 
 104, 106, 244, 573 
 Whyte V. Arthur 204, 205, 383, 438 
 
 Wiggins V. Wiggins 757 
 
 Wikoiif V. Davis 600 
 
 Wilkins v. Kirkbride 
 
 565, 571, 574, 575 
 Wilkinson v. Bauerle. . . .389, 390 
 Wilkinson v. Dodd. . .182, 183, 184 
 
 Wilkinson v. Rutherford 641 
 
 Willcox V. TrSnton Potteries 
 
 Co 488 
 
 Williams v. Carle 204, 306 
 
 Williams v. Doran 633 
 
 Williams v. Halliard 
 
 128, 129, 130, 359 
 
 Williams v. Lowe 439 
 
 Williams v. Matthews 208, 312, 213 
 
 Williams v. Michenor 94,172 
 
 Williams v. Stevens 532 
 
 Williams v. Vreeland 385, 386 
 
 Williams v. Williams 350 
 
 Williams v. Winans. .187, 188, 189 
 192, 193 
 
 Willianison v. Fox 56 
 
 Williamson v. New Jersey 
 
 Southern R. R. Co . . 116, 567, 597 
 
 Williamson v. Probasco 576 
 
 Williamson v. Sykes 444 
 
 Willink V. Morris Canal &c. 
 
 Co 114, 115, 116, 117, 130, 140 
 
 Willison V. Salmon 215 
 
 Wills V. Field 574 
 
 Wilson V. American Palace 
 
 Car Co 6, 13, 14, 92, 97, 134 
 
 135, 136, 137, 253, 254, 267, 288 
 290, 291, 345, 346 
 
 Wilson V. Bayley 414 
 
 Wilson V. Bellows 102, 134, 178 
 
 Wilson V. Bird 546 
 
 Wilson V. Brown 323 
 
 Wilson V. Cobb 141,389,395 
 
 424, 427 
 Wilson V. Cornell .... 405, 407, 413 
 Wilson V. Hill 276 
 
840 
 
 Table of Cases. 
 
 Wilson V. Hoflfman 635 
 
 Wilson V. King 333, 426 
 
 Wilson V. Randolph 644 
 
 Wilson V. Wintermute 310,330 
 
 Wilson V. Wood 355 
 
 Wimpfheimer v. Prudential 
 
 Insurance Co 630, 634, 635 
 
 653, 660 
 
 Winans v. Graves 102, 136 
 
 Winants v. Traphagen 613 
 
 Windsor v. Windsor 159 
 
 Winslow V. Hudson..388, 389, 526 
 
 Wintermut^ v. Snyder 755 
 
 Winters v. Earl 651,661 
 
 Winters v. Henderson 599, 600 
 
 Wisham v. Lippincott 535 
 
 Wisner v. Osborne 62 
 
 Woglom V. Kant.... 147, 168, 675 
 683, 684 
 
 Wolcott V. Melick 486 
 
 Wolters V. Schrafft 141 
 
 Wood V. Chetwood 386 
 
 Wood V. Eckert 589 
 
 Wood V. Price 334, 335, 336 
 
 Wood V. Stover 136 
 
 Wooden v. Wooden 490,526 
 
 WoodhuU V. Neafie 524 
 
 Woodridge v. Carlstadt 169 
 
 Woodruff V. Brugh 194 
 
 Woodruff V. Depue..557, 562, 565 
 
 571, 602 
 
 Woodruff V. Morristown Inst. . 557 
 
 Woodruff V. Ritter 531 
 
 Woods V. Morrill 304 
 
 Woodward v. Bullock 619,627 
 
 630, 764, 769, 788 
 
 Woolf V. Pemberton 120 
 
 Woolsey v. Abbott 475 
 
 Wooster v. Cooper 113,137 
 
 Worth V. Newlin 629 
 
 Wright V. McKean 355,592 
 
 Wright V. Wright 160, 161, 423, 703 
 
 Wrigley v. Jolley 434, 446 
 
 Wyckoff V. Combs 355,357 
 
 Wyckoff V. Gardner 550 
 
 Wyckoff V. O'Neill 114 
 
 Wyckoff <v. Wyckoff 756 
 
 Yard V. , Ocean Beach Assn. 
 
 230, 231, 281, 758 
 Yauger v. Skinner. . .139, 735, 729 
 Yglesias v. Dewey 666, 669, 670, 699 
 
 York V. Texas 15 
 
 Youle V. Richards.... 295, 526, 651- 
 655, 656, 659 
 
 Young V. Bilderback 113 
 
 Young V. Clarksville Mfg. Co. 
 
 25, 299 
 
 Young V. Young. .97, 107, 109, 127 
 
 158, 163, 164, 166, 169, 173, 174 
 
 435, 584 
 
 Youngblood v. Schamp . . . 508, 509 
 
 Yule V. Yule 350, 351 
 
 Zabriskie z/. M. & E. R. R 118 
 
 Zabriskie v. Vreeland 532 
 
 Zane v. Cawley 395 
 
 Zeingenfuss v. Moore 700 
 
 Zimmerman v. Place 630 
 
 Zinsgen v. Kidd 427 
 
GrENERAL INDEX 
 
 Page. 
 ABATEMENT OF ACTIONS. See Revivor of Actions. 
 ABSENT DEFENDANTS— 
 
 Appearance, what constitutes 19n. 
 
 after decree for sale in foreclosure 51 
 
 relief discretionary 51 
 
 supersedeas to stay proceedings 51 
 
 when decree opened upon. See Opening and 
 Vacating Decrees. 
 Decree pro confesso against. See Decrees Pro Confesso. 
 
 Final process against. Court may order security before allow- ^ 
 
 ing 21 
 
 Inquiry for Vt 
 
 nature 'of 17n. 
 
 proof of 19n. 
 
 Order against to plead, etc 13 
 
 amendment of order 13n. 
 
 effect of 14th amendment to U. S. Constitution 13n. 
 
 feme covert defendants 13n. 
 
 jurisdiction to make 12n. 
 
 notice of order 15 
 
 defects in notice 17n. 
 
 form of notice 15n. 
 
 publication 16, 16n. 
 
 proof of service, publication and inquiry . . 18n, 19n. 
 
 proof of mailing 19n. 
 
 amendment of .' 19n. 
 
 service of 15 
 
 validity of order where decree in personam is sought 15n. 
 
 where proceedings are commenced by petition 17n. 
 
 when order may be made 13n. 
 
 when order returnable 13n. 
 
 Process to be issued against 13 
 
 Sheriff to return "not found" 13 
 
 validity of Sheriff's return "not found" 13n. 
 
 Suits to quiet title. Proceedings against in 237n. 
 
 Who deemed to be 11 
 
842 General Index. 
 
 Page. 
 ADVISORY MASTERS— 
 
 Appointment of 84, 85 
 
 Compensation of 85 
 
 Fees of. Fixed by Court 69 
 
 Hearing before 
 
 evidence to be taken orally 84 
 
 report of evidence 84 
 
 to proceed as before Vice-Chancellor 84 
 
 testimony taken by stenographer 84 
 
 Matters which may be referred to 84 
 
 Opinion, not to write 85n. 
 
 Qualifications of 84 
 
 Removal of 85 
 
 Report of, when to be filed 85n. 
 
 Stenographer, may employ 85 
 
 compensation 85 
 
 Trenton, at, powers of 803 
 
 AFFIDAVITS— 
 
 Answers to, who may take out of State 20n. 
 
 Evidence, as 387 
 
 Exparte. Taken out of State — before whom may be taken. 20 
 Injunction, on application to dissolve. See Injunctions. 
 Injunction bills, to. 
 
 definite and positive, must be 509 
 
 defects of form 510 
 
 general rules of evidence apply to 510 
 
 special required 509 
 
 Interpleader, Bills of. See Bills of Interpleader. 
 
 Rule to show cause, use of on applications for 476 
 
 Service of, to be used on motion 475 
 
 on motion to extend time for pleading 387, 475 
 
 AMENDMENT OF PLEADINGS— 
 
 Agreements for 333 
 
 amended pleading must be filed 333 
 
 Allowance of 313 
 
 changing substance of cause 313 
 
 discretion, rests in 313 
 
 liberal discretion exercised) 313 
 
General Index. 843 
 
 Page. 
 AMENDMENT OF PLEADINGS— Cow*WM«-rf. 
 
 Answers, to 326 
 
 allowed on terms 328 
 
 matters of form, etc. freely allowed 326 
 
 material facts, to change, cautiously allowed 326 
 
 mistakes to correct 327 
 
 when permitted 327 
 
 new defences, to set up 329 
 
 rest in discretion 326 
 
 time when answer may be amended 330 
 
 after, depositions taken 330, 331 
 
 argument 330 
 
 at the hearing 331, 332 
 
 after decision of cause 331 
 
 usury, to set up not permitted 328 
 
 unconscionable defenses, to set up not permit- 
 ted 328, 329 
 
 Answers under oath, to 325, 329 
 
 caution exercised in permitting 329 
 
 not permitted where complainant prejudiced 329 
 
 notice of application necessary 330 
 
 Application for 325 
 
 affidavit to petition 325 
 
 eflfect of laches in making 323 
 
 notice of 330 
 
 petition 325 
 
 should be made promptly 325 
 
 Bills, of 318 
 
 after answer 319 
 
 after cross bill 319 
 
 adding prayer for general relief 152 
 
 adding prayer for special relief 157 
 
 application to dissolve injunction, on 525 
 
 cost and terms 320, 333 
 
 rest in discretion 68, 333 
 
 changing issue, not permitted 318 
 
 copy of amended bill to be served or subpoena issued 326 
 
 demurrer for non- joinder of parties, after 134 
 
 defect in parties, for 318 
 
 exceptions to answer allowed, after ■...;... 321 
 
 costs on 721 
 
 facts occurring subsequent to filing, cannot be added 
 
 by 188 
 
 liberally allowed 318 
 
 laches in application, effect of 323 
 
 notice of application 320 
 
844 General Index. 
 
 Page. 
 AMENDMENT OF PLEADINGS— Com/wm?</. 
 Bills, of — Continued. 
 
 plea or demurrer overruled, after • 321 
 
 second application for 318 
 
 stage of suit, when permitted 319 
 
 issue joined, beforft 320 
 
 issue joined, after 321 
 
 ■ . appeal after 320 
 
 trial of issue at law, after 320 
 
 injunction granted, after 320 
 
 subpoena issued, before 320 
 
 subpoena issued, after 320 
 
 exceptions to answer allowed, after 331 
 
 plea or demurrer overruled, after 320, 321 
 
 hearing, at 321, 323 
 
 .sworn bill, to 325 
 
 to meet allegation of answer 319 
 
 to conform to proofs, when allowed 323 
 
 Demurrers of, when permitted 333 
 
 Effect of, on lis pendens filed 335 
 
 Exceptions, to 307 
 
 Hearing, at 321 
 
 new or inconsistent case, to make 322 
 
 to conform to proofs 323 
 
 when allowed ; i 321 
 
 Liberal discretion exercised as to 317 
 
 Pleas, to 332 
 
 when permitted 332 
 
 To conform to proofs 323, 428 
 
 when permitted 323, 428 
 
 Verified pleadings, to 325 
 
 caution exercised in allowing 325 
 
 ANSWERS— 
 
 Admissions by 305 
 
 allegations of bill not denied, admitted 305 
 
 Affirmative relief cannot be prayed 294 
 
 when bill praying, permitted to stand as cross 
 
 bill 196, 198 
 
 Amendments to. See Amendment of Pleadings. 
 Bills to Quiet Title, to. See Bills to Quiet Title. 
 Cross bill, to. See Cross hills. 
 Cross bill, by way- of. See Cross hill. 
 
 Defenses not set up in, not available to defendant 294 
 
 Evasive stricken out, will be 300 
 
 Evidence, as. See Evidence. 
 
 Exceptions to. See Exceptions to Answer. 
 
 Facts which may be set up in 295 
 
General Index. 845 
 
 Page. 
 A'NSWERS— Continued. 
 
 Filing, time for 34, 296 
 
 after plea overruled 265 
 
 demurrer overruled, after 286 
 
 extension of time for 25n. 
 
 by consent of complainant 26n. 
 
 defendant restricted to equitable defence. 25n. 
 
 frivolous demurrer overruled, after 371 
 
 out of time — practice 25n. 
 
 when last day falls on holiday 25n. 
 
 Form of . : 296 
 
 clauses of abolished '. 396 
 
 full and complete, should be. 294 
 
 Impertinence and scandal 302 
 
 may be stricken out, for 302 
 
 what constitutes 302 
 
 when court will strike out 302 
 
 where complainant calls for answer to imperti- 
 nent matter 304 
 
 Insufficiency, what constitutes 307 
 
 Interpleader bills, to. See Bills of Interpleader. 
 
 Joint answers 298 
 
 each defendant must answer fully 298 
 
 husband and wife, by 298 
 
 when, should be filed 398 
 
 Knowledge information and belief, according to 301 
 
 Misjoinder of parties, when objection of may be raised by. 178 
 
 Motion to strike out 306 
 
 insufficiency, for 307 
 
 impertinence and scandal, for 308 
 
 Multifariousness, when defence of may be taken by 178 . 
 
 Municipal corporations, by 397 
 
 Nature and functions ' 294 
 
 Oath — without,, complainant may pray for 22 
 
 effect of 22 
 
 Objections to, exceptions by 306 
 
 motion to strike out, by 306 
 
 Order to, necessary where complainant neglects for four 
 
 months to take decree pro confesso 27n. 
 
 Prayer of 394 
 
 Portion of bill pleaded or demurred to 24n. 
 
 Reformation of 337 
 
 Responsive must be 390 
 
846 General Index. 
 
 Page. 
 
 Ai^SWERS—Contimued. 
 
 Second or further answer 31 
 
 after exceptions sustained 31 
 
 costs on 31 
 
 when filed 31 
 
 Signature of, defendant by, unnecessary 298 
 
 counsel by, unnecessary 298 
 
 solicitor may sign 298 
 
 Statute of limitations, defense of may be set up by 259 
 
 in suits involving equitable rights 259, 260 
 
 waived if not pleaded : 259 
 
 Sufficiency, of : 399 
 
 answering according to knowledge, information 
 
 and belief '. 301 
 
 answer should not be evasive 300 
 
 evasive answers will be stricken out 300 
 
 particular charges should be answered particu- 
 larly 299 
 
 should be full and complete 294,299,300 
 
 what need not be answered. 301 
 
 Suits to Quiet Title, in. See Bill to Quiet Title. 
 Supplemental. See Supplemental answers. 
 
 Sworn to, when to be 297 
 
 defects in affidavit 297 
 
 out of State, who may take affidavit 297 
 
 Withdrawal of, when permitted 306 
 
 APPEARANCE— 
 
 Absent defendant, of 21 
 
 opening of decree upon. See Opening and Vacating 
 Decrees. 
 
 •what constitutes 19n. 
 
 Authority to enter 7n. 
 
 presumed 7n. 
 
 Effect of 7 
 
 General 7n. 
 
 effect of entering 7n. 
 
 waver of irregularities by 7n. 
 
 If improperly entered court will relieve 7n. 
 
 Special — when proper 7n. 
 
 for purpose of moving to set aside service of pro- 
 cess 6n. 
 
 What constitutes an 7n 
 
 APPEALS— 
 
 Answer to petition of appeal 772 
 
 effect of not filing 773 
 
 when to be filed 773 
 
General Index. 847 
 
 Page. 
 
 APPEALS— Continued. 
 
 Argument of 783 
 
 appellant to notice cause 783 
 
 causes which may be advanced 784 
 
 cross appeals, of 785 
 
 proceedings at argument 785 
 
 priority of 784 
 
 re-argument 786 
 
 notice of 783 
 
 filed with clerk, to l^e 783 
 
 Briefs 775 
 
 appellant, of. Form and contents 775 
 
 defendant of. Form and contents 776 
 
 Cause on appeal, how entitled 774 
 
 Copy of record of case in Chancery 77a 
 
 clerk to prepare 773 
 
 Contempt proceedings, in. See Contempts. 
 
 Costs on 793 
 
 exception to general rule 794 
 
 prevailing party usually entitled to 793 
 
 rest in discretion 793 
 
 Decisions by Court 786 
 
 motions, of 786 
 
 method of taking opinion 786 
 
 opinions to be in writing 787 
 
 Decrees from which appeal will lie 764 
 
 decree pro confesso, from 769 
 
 exceptions to bill, from order sustaining 766 
 
 general rule 765 
 
 injunctions, from orders granting, denying or 
 
 dissolving 766 
 
 interlocutory orders and decrees, from 767 
 
 must go to merits of controversy 765 
 
 order of reference to Vice-Chancellor 767 
 
 orders resting in discretion 768 
 
 not appealable as general rule 768 
 
 what constitutes discretion 768 
 
 order denying application to open decree 765 
 
 preliminary injunction, order denying 766 
 
 receiver, from order appointing 765 
 
 Deposit on filing petition of appeal 771 
 
 amount of 771 
 
 when to be made 771 
 
 where made 771 
 
848 General Index. 
 
 Page. 
 
 AFPEALS—Contifwed. 
 
 Determination of cause ^89 
 
 majority of members of court present and 
 
 voting sufficient for ''89 
 
 when decree in chancery will be reversed.. 789 
 
 where court is equally divided 789 
 
 Dismissal of '''83 
 
 agreement, by '''83 
 
 defects of form, for 783 
 
 failure to prosecute, for 783, 783 
 
 notice of motion for 782 
 
 service of 783 
 
 waiver of right of 783 
 
 Effect of on injunctions. See Injunctions. 
 Exceptions for impertinence and scandal, from orders sus- 
 taining 765. 
 
 Injimctions, from orders granting and denying. See 
 Injunctions. 
 
 Issue to try questions of fact, effect of appeal 376 
 
 from order directing 371 
 
 from order directing new trial . ". 375 
 
 Judgment on appeal 790 
 
 entry of 790 
 
 Motions in cause 797 
 
 affidavits for use upon 797 
 
 service of 797 
 
 notice of 797 
 
 New parties, admission of 788 
 
 Notice of appeal 770 
 
 effect of 771 
 
 filed in Court of Chancery 770 
 
 recitals of , 770 
 
 service of 770 
 
 Opening or vacation of decrees, from order granting or deny- 
 ing application for 451 
 
 Operation of appeal 776 
 
 Court may direct stay 777 
 
 does not stay proceedings without order 776 
 
 injunctions, upon 778 
 
 does not effect without order of Court 778 
 when Court will stay proceedings 778, 782 
 where appeal is taken within ten days from 
 
 filing decree 777 
 
 Order to stay proceedings in Chancery may be obtained in 
 
 vacation 778 
 
 Papers of cause in Chancery to be delivered to Clerk of 
 
 Court of Appeals 773 
 
General Index. 849 
 
 Page. 
 APPEALS — Contifimed. 
 
 Papers to be returned to Clerk in Chancery after determina- 
 tion of appeal 790 
 
 Persons entitled to appeal 763 
 
 one of several against whom joint decree rendered 764 
 
 only those "'aggrieved" 763 
 
 parties, only entitled to 764 
 
 purchaser at judicial sale 763 
 
 successful party by, will not lie 763 
 
 Petition of appeal 771 
 
 effect of not filing in time 771 
 
 filed with Court of Appeals 771 
 
 must contain all grounds of appeal 772 
 
 recitals of 771 
 
 service of 771 
 
 when to be filed 771 
 
 Points 775 
 
 service of by appellant 775 
 
 respondent 775 
 
 Proceedings in Lower Court after determination of 790 
 
 Court must carry into effect determination of 
 
 Appellate Court 791, 793 
 
 powers and duties of Court 791, 793 
 
 Questions considered upon 787 
 
 case decided on facts before Chancellor 787 
 
 matters not complained of in petition of appeal 
 
 not considered 787 
 
 whole case reviewed 788 
 
 Remittitur, the 791 
 
 contents of 791 
 
 signed by clerk, to be 791 
 
 when remitted 791 
 
 Right of, constitutional and statutory 763 
 
 State of case on 773 
 
 appellant to prepare 773 
 
 contents of 773, 774 
 
 form of 773 
 
 printed, to be 773 
 
 proceedings may be abridged 774 
 
 service of 775 
 
 Time for taking 77& 
 
 final decrees, from 86, 776 
 
 infancy of party, in case of 776 
 
 insanity of party, in case of 776 
 
 interlocutory proceedings, from 86, 776 
 
 lis pendens filed, when 86 
 
850 General Index. 
 
 Page. 
 
 APPEALS— Continued. 
 
 Waiver of right of '^^^ 
 
 consent order, by '"'^9 
 
 decree entered by default at hearing 7&9 
 
 decree pro conf esse 769 
 
 order procured by appellant 7&9 
 
 ASSIGNEES FOR BENEFIT OF CREDITORS— 
 
 Party defendant 133 
 
 when necessary 132 
 
 Powers of 133 
 
 Suits, may maintain 132 
 
 proceedings upon refusal to bring 132 
 
 creditors, when may bring 133 
 
 ATTACHMENT WITH PROCLAMATIONS— 
 
 Abolished 71 
 
 BILL OF COMPLAINT— 
 
 Address, of : 139 
 
 Analysis of 139 
 
 Answer under oath, waiver of 397 
 
 Averment of jurisdiction '. . . 150 
 
 Certainty required 142, 145 
 
 degree of required in statement of case 142, 145 
 
 lack of, should be taken advantage of by demurrer 149 
 
 when may be objected to on final hearing. . 149 
 
 Charging part 149 
 
 defined 150 
 
 function of 150 
 
 Classification of 138 
 
 Confederating part 149 
 
 abolished 149 
 
 defined 149 
 
 Complainants' 140 
 
 can recover only on case made by bill 141 
 
 description of 140 
 
 where suing as one of a class 140 
 
 personal representatives 140, 145 
 
 trustees 143 
 
 Cross bills. See Cross Bills. 
 
 Defects in, effect of failure to object to 309 
 
 Definition ■^3g 
 
 Dismissal, of. See Dismissals. 
 Evidence, as. See Evidence. 
 
 should not be set up in 181 
 
 Exceptions to. See Exceptions to Pleadings. 
 
 Filed, must be, before process issued 2 
 
 Injunctions, for. See Injunctions. 
 
General Index. 851 
 
 Page. 
 BILL OF COMPLAINT— CoMfinw^rf. 
 
 Interpleader, of. See Bills of Interpleader. 
 
 Interrogating part 151 
 
 nature and function 151 
 
 Introduction, the 134 
 
 Impertinence in. See Impertinence. 
 
 Material facts must be fully alleged 140 
 
 certainty required 142, 145 
 
 Misjoinder of causes of action in. See Multifariousness. 
 Multifariousness in. See Multifariousness. 
 
 Prayer for process 159 
 
 absence of demurrable 160 
 
 description of defendants 159 
 
 must name parties defendant 159 
 
 nature and function 159 
 
 should present parties in capacity in which it is 
 
 wished to charge them 159 
 
 supplemental bills, in 193 
 
 Prayer for relief. See Prayer for Relief. , 
 
 Premises defined 140 
 
 every material fact must be alleged in 140 
 
 should be framed with care 141 
 
 Quiet title, to. See Bills to Quiet Title. 
 
 Records, deeds, etc. Recitals of to be abridged 181 
 
 Review of. See Bills of Review. 
 Revivor, of. See Revivor of Actions. 
 Scandal, in. See Scandal. 
 
 Signature of 160 
 
 rriust be signed by counsel 160 
 
 signature of partnership of counsellors sufficient . . 161 
 Supplemental bills. See Supplemental Bills. 
 
 Statement of case in 144 
 
 a general statement sufficient 146 
 
 allegations of, must support prayer 153 
 
 bills by administrators, in 145 
 
 bills for discovery, in 144 
 
 certainty, degree of required 142 
 
 complainant can recover only on case made by. . 142 
 
 every material fact must be alleged 140, 143 
 
 foreclosure bills, in 144 
 
 ingenuous, should be 144 
 
 insuit on several contract 146 
 
 must inform defendant of nature of case against 
 
 him 142 
 
 need not be in technical terms 145 
 
 need not be contained in premises or stating part 148 
 
 where fraud is alleged 147 
 
852 General Index. 
 
 Page. 
 BILL OF COMPLAmT— Continued. 
 
 Waiver of answer under oath 397 
 
 effect of 397 
 
 object of 398 
 
 BILLS FOR DISCOVERY AND RELIEF— 
 
 Demurrer to : 284 
 
 Statement of case in 144^ 
 
 BILLS FOR ACCOUNT— 
 
 Defendant may recover amount found due him without cross 
 
 bill 198 
 
 Hearings, scope of 355 
 
 Multifariousness in 177, 178 
 
 stating several grounds for relief not 
 
 multifariousness 168 
 
 suits by and against partners 177' 
 
 Parties to. See Parties. 
 BILLS OF INTERPLEADER— 
 
 Affidavit of non-collusion 213 
 
 bills in the nature of bills of interpleader, in.... 317 
 
 strict interpleader, in 313^ 
 
 Answer unnecessary, when 214, 801 
 
 when defendant desires to test sufficiency of fund 
 
 paid into Court 214, 801 
 
 Bill of complaint 311 
 
 affidavit of non-collusion 213 
 
 not necessary in bills in the nature of 217 
 
 allegations of, necessary 212 
 
 frame of 311 
 
 must offer to pay fund into Court 210' 
 
 prayer of 213 
 
 recitals, sufficiency of 212 
 
 Bills in the nature of 215 
 
 .complainant may pray relief 215 
 
 definition 315. 
 
 relief afforded complainant in 215 
 
 Claims, conflicting character of 207 
 
 recitals of 212 
 
 Claimants 209 
 
 complainant must not have incurred personal lia- 
 bility 208 
 
 privity must exist between 209- 
 
General Index. 853 
 / 
 
 Page. 
 BILLS OF INTERPLEADER— Cow*wjterf. 
 
 Complainant 208 
 
 cannot adjust own claims 208 
 
 cannot have incurred personal liability as to 
 
 claimant 208 
 
 costs allowed - 215 
 
 discharge of, proceedings for 801 
 
 disinterested, must be 206, 207 
 
 laches, must not be guilty of 209 
 
 possession of fund, must be in 209 
 
 right to relief, method of testing 801 
 
 wrong doer, cannot be 209 
 
 Costs, of complainant payable from fund 215 
 
 Cross bill 214 
 
 against defendants , 214 
 
 will not lie against complainant 214 
 
 Decree, when required to be served 801 
 
 Defendants 213 
 
 answer unnecessary, when 314, 801 
 
 cross bill against complainant will not lie 214 
 
 relief which can be given to 213 
 
 Defendants' pleadings 801 
 
 contested cases in 801 
 
 cross bill against defendants 214 
 
 may raise issue of interest of complainant. . . . 313 
 
 statement of claim to be filed 214 
 
 uncontested cases, in 801 
 
 Definition 308 
 
 Fund 209 
 
 complainant must be in possession of 209 
 
 payment of into Court 210 
 
 complainant must offer 310 
 
 Hearing 314, 801 
 
 issues considered at 801 
 
 method of trial 801 
 
 Laches 309 
 
 complainant must not be guilty of 209 
 
 Parties (see also Parties) 310 
 
 all persons claiming interest necessary 210 
 
 Payment of fund into Court 310 
 
 complainant must offer 310 
 
 Relief granted 313 
 
 complainant, to 215 
 
 defendant, to 313 
 
 Right to exhibit 206 
 
854 General Index. 
 
 Page. 
 BILLS OF REVIEW— 
 
 Appeal, after 245, 347 
 
 Distinction between, and bill in the nature of 244 
 
 Error on face of decree, for 247 
 
 Function of 244 
 
 Leave to file 245 
 
 after appeal to Court of Appeals 245, 247 
 
 application for 345 
 
 Court of Chancery may give after appeal 245 
 
 necessary 245 
 
 newly discovered evidence, in case of 245, 246 
 
 what petitioner must show 245, 246 
 
 when granted 245 
 
 when unnecessary 247 
 
 Nature of .' 244 
 
 Newly discovered evidence, in case of 245 
 
 when leave will be given to file 346 
 
 Time for filing 245 
 
 When necessary 244 
 
 BILLS OF REVIVOR. See Revivor of Actions. 
 
 BILLS IN THE NATURE OF BILLS OF REVIVOR— 
 
 Difference between supplemental bills and 189 
 
 BILLS TO QUIET TITLE— 
 
 Absent defendants, proceedings against 227n. 
 
 Adverse claim 223 
 
 lien claim 223 
 
 mere words not sufficient 233 
 
 municipal liens 223 
 
 must exist 218, 223 
 
 nature, of 223, 334 
 
 title under tax sale 233 
 
 Answer 238 
 
 allegations setting up defendant's title cannot be 
 
 struck out on motion 239 
 
 disclaimer, costs on 228 
 
 peaceable possession of complainant may be denied 
 
 by 239 
 
 recitals of, claiming estate 238 
 
 Appeal 332 
 
 from order denying new trial 232 
 
 question for determination 332 
 
 Bill of complaint 236 
 
 character of claim, need not allege 238 
 
 recitals in 236 
 
General Index. 855 
 
 Page. 
 BILLS TO QUIET mLE^Contimied. 
 
 Costs 236 
 
 on answer disclaiming title 228, 236 
 
 where defendant does not answer 228, 236 
 
 Decree 235 
 
 conclusive, to be 235 
 
 enforcement of 236 
 
 to settle rights of all parties 235 
 
 where party under disability 235 
 
 writ of assistance to enforce 236 
 
 Disclaimer, costs on 228, 236 
 
 defendant may file 228 
 
 Easements, statute does not apply to 219 
 
 Grantor of subdivided land may bring 221 
 
 Hearing 229 
 
 either party has absolute right to issue at law 230 
 
 issue at law directed on application of either party. 229 
 what complainant is required to show upon the. . . . 234 
 
 Incidental relief 235 
 
 Issue at law 230 
 
 character of 230 
 
 county in which tried 231 
 
 Court of Chancery bound by 230, 231 
 
 defendant to prove title as in ejectment 230 
 
 either party entitled , 230 
 
 jurisdictional fact denied, proceedings when 233 
 
 new trial of 229, 232 
 
 non-pendency of test suit, proceedings when pleaded. 233 
 
 peaceable possession denied, proceedings when 233 
 
 Jurisdiction .\ 218 
 
 foundation of 218 
 
 where remedy exists at law 324, 225 
 
 Lands or personalty held in remainder 222 
 
 New trial of issue at law 229, 231 
 
 application for 231 
 
 grounds on which granted 232 
 
 order denying, is appealable 232 
 
 practice as at law on application for new trial. . 231 
 variance between title alleged and that proven 
 
 ground for 232 
 
 what considered upon application 231 
 
 Parties (see also Parties) 225 
 
 all persons in interest should be 225 
 
856 General Index. 
 
 Page. 
 BILLS TO QUIET TITLE— Continued. 
 
 Peaceable possession 218 
 
 actual and constructive, distinguished 230 
 
 adverse possession unnecessary 333 
 
 complainant must have 218, 319 
 
 defined 330 
 
 evidence of, what constitutes 333 
 
 must exist when bill filed 233 
 
 wild lands, of, what constitutes 233 
 
 Personalty held in remainder 222 
 
 Pleadings of complainant after answer 239 
 
 Process, unknown heirs and devisees, against 236n. 
 
 Rehearing, where party under disability 335 
 
 Remedy at law, existence of deprives court of jurisdiction 334 
 
 where remedy at law lost by laches 334 
 
 Statute remedial 219 
 
 does not apply to easements 319 
 
 Ticket, issue and service of 335 
 
 Title, dispute as to complainant's must exist 318 
 
 adverse claim of, nature of 333 
 
 Unknown heirs and devisees, proceedings against 236n. 
 
 Wild lands 332 
 
 peaceable possession of, what constitutes 233 
 
 BOOKS AND PAPERS, INSPECTION OF— 
 
 Order for 430 
 
 hearing on application, evidence 431 
 
 jurisdiction to make 420 
 
 notice of application 420 
 
 terms discretionary 420 
 
 when granted 430, 431 
 
 COMMISSION OF REBELLION— 
 
 Abolished 71 
 
 CAPIAS AD SATISFACIENDUM— 
 
 Decrees may be enforced by, proceedings upon 46 
 
 To be same as at law 46 
 
 When capias will issue : 47n. 
 
 CHANCELLOR— 
 
 Absence of from State 72 
 
 may appoint master to act in case of 72 
 
 power of master so appointed 72 
 
 practice when 499 
 
 Sickness, practice in case of 499 
 
 Stenographer, may employ 86 
 
 compensation 86 
 
General Index. 857 
 
 Page. 
 CONTEMPTS— 
 
 Advice of counsel no defense 458 
 
 Appeal 470 
 
 matters considered upon 471 
 
 reversal, grounds of 471 
 
 rule prior to act of 1909 470 
 
 rule under act of 1909 470,471 
 
 Attachment for, practice 463 
 
 answer 467 
 
 appearance and notice 466 
 
 bond 466 
 
 commitment 467 
 
 evidence 467 
 
 examination before master 467 
 
 interrogatories 466 
 
 when writ returnable 466 
 
 Civil, defined 452 
 
 Corporations liable for 457 
 
 punishment 457 
 
 Criminal, defined 452 
 
 Defenses 458 
 
 advice of counsel 458 
 
 good faith 458, 459 
 
 inability to comply with order 460,461 
 
 intention and good faith .' 458, 459 
 
 invalidity of order 459, 460 
 
 Discharge of Contemnor 470 
 
 Disobedience to order or decree 452 
 
 discharge 470 
 
 effect of knowledge of order 454 
 
 for payment of money 454 
 
 inability to comply : 460 
 
 invalidity of order as defense 458 
 
 service of order 454 
 
 non-residents, on 454 
 
 what constitutes 453 
 
 when service dispensed with 454 
 
 Effect of adjudication upon party to action 472 
 
 Fines, clerk to account for 71 
 
 Good faith, when a defense 458, 459 
 
 Inability to comply with order, when a defense 460,461 
 
 Injunctions, violation of 61 
 
 jurisdiction to commit 61 
 
 punishment iflflicted 61 
 
 Intention, when a defense 458, 459 
 
858 General Index. 
 
 t 
 
 Page. 
 
 CONTEMPTS— Continued. 
 
 Interference with property in custody of law 455 
 
 Invalidity of order no defense 459, 460 
 
 Nature of proceeding 452 
 
 Persons liable 457 
 
 corporations 457 
 
 Power of Court to punish 457, 461, 462 
 
 Vice-Chancellors may ipunish for 462 
 
 Proceedings to punish 463, 464 
 
 attachment, by, practice 466 
 
 rule to show cause, by 463 
 
 when Court may institute 456 
 
 who may institute 465 
 
 Process, interference with, execution of 456 
 
 Publications 456 
 
 court may proceed upon own motion 456 
 
 when contempt 456 
 
 Punishment 71, 467 
 
 considerations governing infliction of 468 
 
 counsel fee, cannot be required 469 
 
 discharge of contemnor when sufficiently pun- 
 ished 470 
 
 extent of 468, 469 
 
 infliction of costs 469 
 
 power of court • 457 
 
 when justified 468 
 
 Purging 469 
 
 Rule to show cause, practice 463 
 
 Vice-Chancellors may punish for 83,462 
 
 Witnesses, misconduct of 455 
 
 disobedience of subpoena 455 
 
 preventing attendance of 455 
 
 CONSTITUTION OF THE UNITED STATES— 
 
 Effect of 14th Amendment upon proceedings against absent 
 
 defendants 13 
 
 CORPORATIONS— 
 
 Contempts, liable for 457 
 
 punishment 457 
 
 Domestic, may bring suit or defend 119 
 
 Foreign 119 
 
 may be sued 119 
 
 when may bring suit 119 
 
 Party defendant, when necessary 129 
 
 Receivers of insolvent. See Receivers. 
 
General Index. 859 
 
 Page. 
 CORPORATIONS— CowiiViM^rf. 
 
 Suits by 128 
 
 foreign corporations 119 
 
 may maintain 128 
 
 president cannot bring in own name 129 
 
 should be brought in corporate name 128, 129 
 
 stockholder may bring, when 129 
 
 necessary allegations of bill 146 
 
 Suits against 138 
 
 effect of appointment of receiver on suits pending 
 
 against 130 
 
 foreign corporations 119 
 
 may be brought 128 
 
 may defend 128 
 
 receiver of insolvent, may be substituted as defendant 130 
 
 stockholders not necessary parties 129 
 
 Suit by stockholder against directors, necessary allegations 
 
 of bill 146 
 
 COSTS— 
 
 Abatement of by death of party 755 
 
 Amendment of bills, on -. 330, 321 
 
 Amendments to pleadings, on 333 
 
 Amount allowable 758 
 
 Argument of,* for failure to bring on 755 
 
 Bill of revivor, on 243 
 
 Both parties in fault, when '. . . . 754 
 
 partially successful, when 753 
 
 Co-defendants, against ' 753 
 
 Complainant, against, when allowed 753 
 
 Demurrer, on 286 
 
 overruled 286 
 
 allowed 286 
 
 co-defendants, appearing by one attorney 758 
 
 Disclaimer on, when allowed 313 
 
 Discontinuance of suit by complainant, upon 755 
 
 Discretion, rest in 71, 751 
 
 Examiners, of 761 
 
 division of with stenographer 761 
 
 Exceptions to answer, on. See Exceptions to Answer. 
 Foreclosure, on. See Foreclosure of Mortgages. 
 
 Fund, liability of for payment of 757 
 
 general rule 757 
 
 Interpleader 757 
 
 lunacy proceedings, in 739, 751 
 
 suits by next friend 755 
 
860 General Index. 
 
 Page 
 CO STS — Continued. 
 
 Hearing, of argument, on 760 
 
 default at, for 'i'60 
 
 postponenient of, upon 760 
 
 setting down cause, upon 760 
 
 Injunction, on application for dissolution of 538 
 
 rest in discretion 538 
 
 Injunction bond, in suit upon 506 
 
 Interpleader, bill of 757 
 
 Issue for trial at law, upon 376 
 
 Items allowable 758 
 
 Lunacy proceedings, in 730 
 
 Master's fees for drawing deed 763 
 
 Motions on 760 
 
 occasioned by party's own fault 761 
 
 where party fails to move 760 
 
 Next friend of infant, of 755 
 
 Opening or vacation of decree, upon application for 451 
 
 Objections to allowance of 758 
 
 when and how taken 758 
 
 Partition suits, in. See Partition. 
 
 Payment of, how enforced , 759 
 
 attachment for contempt, by 759 
 
 fi, fa, or capias, by * 71 
 
 staying proceedings in second suit, by 759 
 
 when execution for, issues 759 
 
 Personal representatives, liability of, for 755 
 
 general rule 755, 756 
 
 exceptions to rule 756, 757 
 
 suit for construction of will, in 755 
 
 directions as to their duty 755 
 
 to determine ownership of trust fund 756 
 
 establish lost will 756 
 
 Plea allowed, in case of 265 
 
 overruled, in case of 266 
 
 Prevailing party, right of to 751, 752 
 
 exceptions to rule 752 
 
 Printing testimony, for 758 
 
 Rehearing on application for 45I 
 
 Right to purely statutory 751 
 
General Index. 861 
 
 Page. 
 COSTS — Continued. 
 
 Security for, by non-resident complainant 8 
 
 aifidavits on application to require 8n. 
 
 after suit begun 8n. 
 
 amount of 8 
 
 application to require 8n. 
 
 bill may be dismissed for failure to give 9 
 
 jurisdiction to require 8n. 
 
 notice of filing security ' 9n. 
 
 suit may be stayed for failure to give 9 
 
 waiver of right to require 8n. 
 
 when joined with resident complainant 8n. 
 
 where complainant removes from State 8n. 
 
 Solicitors, liability of to clerk for 762 
 
 non-resident complainant, of 9, 9n. 
 
 Subpoena, service of 761 
 
 mileage on 761 
 
 Suits to Quiet Title, in. See Bills to Quiet Title. 
 
 Supplemental answer, on application for leave to file 313 
 
 Taxation of 759 
 
 settlement of, without 759 
 
 Vendor's suit for specific performance, in 753 
 
 COUNSEL FEES— 
 
 Allowance of, to other than complainant 75n. 
 
 discretionary 73 
 
 Application for 74n. 
 
 cause heard by Chancellor, when 74n. 
 
 Vice-Chancellor, when 74n. 
 
 Attendance before master or examiner, for 761 
 
 Foreclosure suits, in. See Foreclosure of Mortgages. 
 
 Payment of, Chancellol- may direct who shall pay 73 
 
 Taxed costs, may be included in 74 
 
 COURT OF CHANCERY— 
 
 Holidays, Court forbidden to sit on 3n. 
 
 business which may be transacted on 2n. 
 
 Jurisdiction, absent defendants, against. See Absent De- 
 fendants. 
 How affected by United States Constitution. See Decrees, 
 Absent Defendants Against. 
 
 Open always, for what purposes 1 
 
 Sundays, cannot sit on 2n. 
 
 Terms, of abolished 1 
 
862 General Index. 
 
 Page. 
 COURT OF ERRORS AND APPEALS— 
 
 Adjournment 797 
 
 Attorneys and solicitors .' 795 
 
 employed by or in partnership with member of 
 
 court not to practice before 795 
 
 solicitor below considered solicitor on appeal. ... 795 
 
 Constitution of Court 795 
 
 Court may appoint three judges with power to stay proceed- 
 ings pending appeal 778 
 
 Jurisdiction altogether appellate 788 
 
 Members of Court 795 
 
 Chancellor not to sit, when . . . . , 795 
 
 not to be concerned in cause: 795 
 
 Motions before 797 
 
 affidavits for use on service of 797 
 
 notice of taking 797 
 
 Officers 795 
 
 Opinions to be in writing 787 
 
 Order of business 796 
 
 Rules of practice 797 
 
 Writs and processes 796 
 
 how issued and tested i. . 796 
 
 CREDITORS' BILLS— 
 
 Must show that complainant has exhausted remedy at law. . 143 
 
 Necessary averments of 146 
 
 CROSS BILLS— 
 
 Account, bills for, defendant may recover balance found due 
 
 him without filing * . . 198 
 
 Affirmative -relief, to obtain 195 
 
 only method by which defendant can obtain . . 195 
 
 Answer by way of 304 
 
 complainant, by 205n. 
 
 co-defendant, by 205n. 
 
 form of 204n. 
 
 practice 204n. 
 
 replication, to form of 205n. 
 
 praying affirmative relief, when permitted to stand 
 
 as cross bill 196, 198 
 
 Answer to 31 
 
 when to be filed 203 
 
 Bill of interpleader, to, will not lie against complainant 214 
 
 Consistent with answer, must be 203 
 
 Defenses to 203 
 
 Defined ' 195 
 
 Discovery for 197 
 
General Index. 863 
 
 Page. 
 CROSS BILLS— Continued. 
 
 Dismissal of original bill, effect of on cross bill 305 
 
 Filing, time for 198 
 
 Foreclosure suits, in. See Foreclosure of Mortgages. 
 
 Hearing, bill and cross bill heard together 205 
 
 Jurisdiction of subject matter 303 
 
 Matter which may be set up in answer cannot be made 
 
 foundation for 197 
 
 Must set up distinct ground of relief. 203 
 
 lifature of 195 
 
 Newly arising defenses, to introduce 197 
 
 Office of 195 
 
 Parties complainant, to 199 
 
 must have right in subject of controversy not pre- 
 sented in original bill 199 
 
 defendant 200 
 
 new parties, when may be brought in by 200 
 
 Relation to original bill 195, 200 
 
 no relief granted unless founded upon allegations 
 
 of bill 201 
 
 what facts may be introduced by 201 
 
 Relief granted by 200, 201 
 
 Stay of proceedings upon filing 204 
 
 Court may order 304 
 
 does not operate as 204 
 
 Unnecessary, when 197 
 
 CURTESY— 
 
 Idiots, lunatics and drunkards in lands of 747 
 
 Surplus proceeds of sale of mortgaged premises in, allow- 
 ance of by consent, gross sum in lieu of . . . . 55, 56n. 
 investment of proceeds in absence of consent... 55, 56n. 
 Sale of right of in partition proceedings. See Partition. 
 Sale of right of on proceedings for sale of infants' lands. 
 See Sale of Infant's Lands. 
 DECREES— 
 
 Abstract of may be filed with clerk of Supreme Court 44 
 
 character of decrees which will bind land 44n. 
 
 decree binds lands after filing 44, 44n. 
 
 recorded and indexed, to be 44 
 
 what to contain 44 
 
 Absent defendants, against 13 
 
 decree pro confesso. See Decrees Pro Confesso. 
 
 jurisdiction 13 
 
 personal judgments in 13 
 
 proceedings in rem 13 
 
 proceedings quasi in rem 13 
 
 Certainty required in 432 
 
864 Genbeal Index. 
 
 Page. 
 DECREES — Continued. 
 
 Co-defendants, fixing rights as between 433 
 
 Collateral attack upon not permitted 438 
 
 Correction of. See Opening and Vacating Decrees. 
 
 Construction of 431 
 
 Conveyance of lands, for 45 
 
 effect of 45, 45n. 
 
 operate as conveyance 45, 45n. 
 
 Definition 430 
 
 Effect and operation of 43 
 
 decree directing conveyance of lands of 45, 45n. 
 
 decrees for payment of money, of 43 
 
 execution maybe issued thereon 43 
 
 judgment at law in Supreme Court, to have 
 
 effect of 43 
 
 when decree becomes effective 43 
 
 Enrollment of 41 
 
 caveat against 42n, 450 
 
 petition for rehearing, in case of 42n. 
 
 proceedings subsequent to decree 42n. 
 
 signed by Chancellor, to be. . . ., 41 
 
 when enrolled 41n. 
 
 Entry nunc pro tunc 431 
 
 power of Court to order 431 
 
 Filing to have effect of registry 72 
 
 Final, definition 431 
 
 Foreclosure, of. See Foreclosure of Mortgages. 
 
 General nature of 430 
 
 Interlocutory, definition 430 
 
 Liens upon lands, when 43 
 
 described in bill or decree 43 
 
 what description sufficient 44 
 
 nature of decrees which become 44n. 
 
 only when abstract of filed with clerk of Supreme 
 
 Court 44 
 
 other than described in bill or decree 44 
 
 priority of lien 44n. 
 
 when decrees become Hen 44n. 
 
 Modification of by bill of review. See Bill of Review. 
 
 Objections to award of costs in 42n. 
 
 when to be taken 42n. 
 
 Objections to form 42n. 
 
 method of taking 42n. 
 
 time for taking 42n. 
 
 when to be taken 42n. 
 
 Persons bound by 432 
 
General Index. 865 
 
 Page. 
 
 DECREES— Cottft'm«erf. 
 
 Proceedings to enforce. See Execution, Capias ad Satis- 
 faciendum, Contempts, Injunctions. 
 Pro confesso. See Decrees Pro Confesso. 
 
 Registered, need not be 71 
 
 Relief in relation to pleadings 433 
 
 must be confined to matters raised by pleadings.... 433 
 
 no relief beyond that prayed for decreed 433 
 
 in relation to parties 432 
 
 Signing, notice to be taken of 68 
 
 Specific, must be 432 
 
 Suit to quiet title in. See Bills to Quiet Title. 
 Vacation of. See Opening and Vacation of Decrees. 
 DECREES PRO CONFESSO— 
 
 Absent defendants, against 17, 19n. 
 
 bound by decree 19 
 
 Chancellor may require security before executing 19, 21 
 Court may order complainant to submit proof 
 
 before allowing 18 
 
 validity of, in general 20n. 
 
 as affected by 14th Amendment to U. S. 
 
 Constitution 12n. 
 
 When may be taken 17, 19n, 37n. 
 
 Opening upon appearance. See Opening and 
 Vacating Decrees. 
 
 Entry of by defendant, effect of 435 
 
 Equitable and just upon facts stated in bill, must be 434 
 
 1 Failure to plead, etc., for 26 
 
 Court may order complainant to produce proof.... 26 
 
 practice 27n. 
 
 when not taken within four months 27n. 
 
 time for taking 26, 434 
 
 Jurisdiction to make 434 
 
 Notice of entry unnecessary 434 
 
 Opening and vacating. See Opening and Vacating Decrees 
 
 Rule to answer, when necessary 435 
 
 Second or further answer after 31 
 
 exceptions allowed 31 
 
 for failure to file 31 
 
 Right to take purely statutory 434 
 
 Time for taking 26, 434 
 
 practice when not taken within four months . . . 27n. 
 
866 General Index. 
 
 Page. 
 
 DEFICIENCIES ARISING UNDER FORECLOSURE ■ 
 SALES— 
 
 Decree for in foreclosure suit, abolished 640 
 
 Execution, order of liability to be endorsed upon 643 
 
 Grantee of mortgaged premises, liability of 642 
 
 cannot be enforced in foreclosure suit 642 
 
 defense of invalidity of covenant should be raised 
 
 by cross bill 644 
 
 burden of proof when defense is that assumption 
 
 covenant was inserted by mistake 644 
 
 assuming mortgage and reconveying to mortgagor 643 
 
 parties to suit 644 
 
 suit in equity may be enforced by 642 
 
 taxes cannot be added to deficiency 644 
 
 when covenant of assumption invalid as between 
 
 parties 643 
 
 when grantee assumes mortgage 642 
 
 Proceedings to enforce in general 640, 641 
 
 bill in equity 641 
 
 by suit at law 640 
 
 Suit in equity to enforce 641 
 
 damages for injury to mortgaged property may be 
 
 recovered in 641 
 
 parties to suit 641 
 
 Suit on bond to enforce 640 
 
 decree in foreclosure suit, effect of 641 
 
 limitation of time for bringing 640, 641 
 
 DEMURRERS— 
 
 Adequate remedy at law -268 
 
 effect of laches 268 
 
 objection must be promptly taken 268 
 
 waiver of objection 268 
 
 where jurisdiction concurrent 268 
 
 Admissions by 281 
 
 all material facts of bill admitted 281 
 
 facts not admitted by 281 
 
 Affidavit to necessary 26, 267 
 
 form of 267 
 
 result of failure to annex 26, 267 
 
 Amendment of, when permitted 333 
 
 Answer, incorporated in 278 
 
 when proper 278, 280 
 
 Answer and demurrer filed, practice 28 
 
General Index. 867 
 
 [ 
 
 Page. 
 TlEWURRERS— Continued. 
 
 Argument of, effect where complainant fails to take advan- 
 tage of failure to notice 24n. 
 
 notice of 801 
 
 rule setting down for, a common rule 30n. 
 
 service of notice 801 
 
 Bill for discovery and relief, to 28^4 
 
 Certificate of counsel, necessary 26, 267 
 
 form and contents 267 
 
 result of failure* to annex 26,267 
 
 Certainty in bill, for lack of 149 
 
 Classification 272 
 
 Costs on 28n, 286 
 
 demurrer allowed, when 28, 286 
 
 overruled, when 28, 286 
 
 not discretionary 28 
 
 Defects in form of bill ground for 271 
 
 cannot be raised under general demurrer 376 
 
 Defense to bill only 267 
 
 Disposition of case on 285 
 
 Court may sustain without prejudice 286 
 
 demurrer too broad 282 
 
 bad in part 282 
 
 sustained to part of bill 285 
 
 general demurrer good as to part but not as to 
 
 whole bill overruled 282. 385 
 
 where complainant entitled to any relief 283 
 
 defendant should answer a part of bill . . 283 
 
 Filing, time for 24, 267 
 
 extension of time for 25n. 
 
 out of time — practice 25n. 
 
 when last day for falls on holiday 35n. 
 
 Frivolous demurrers 271 
 
 answer, time for filing after 271 
 
 extension of time for pleading in case of 25 
 
 overruled, will be 25, 371 
 
 stricken out, may be 287, 290 
 
 Hearing 380 
 
 defendant confined to grounds given 381 
 
 setting down for, practice 803 
 
 what is considered at 280 
 
 Impertinence, will not lie for 184 
 
 Jurisdiction, to, when proper 253 
 
 Joint demurrers 378 
 
 effect of filing 278 
 
868 General Index. 
 
 Page. 
 T)EM\JRRKRS— Continued. 
 
 Laches, on ground of 270 
 
 in filing, effect of 268 
 
 Multifariousness, will lie for , 178, 270 
 
 Nature and functions 267 
 
 Non-joinder of parties defendant, for. See Parties, Object- 
 ions for Non-Joinder. 
 
 Overruled 28 
 
 costs when 28 
 
 duty of defendant . . . .* 28n. 
 
 filing second demurrer 28n. 
 
 no other demurrer permitted 286 
 
 plea may be filed after 28n. 
 
 or answer, by 285 
 
 practice when 286, 28 
 
 time for answer 28, 286 
 
 Ore tenus, defined 277 
 
 use of 277 
 
 Prayer for process, omission of, ground for 160 
 
 relief beyond jurisdiction of Court 153 
 
 not warranted by bill 153 
 
 Scandal, for, will not lie 184 
 
 Specification of causes of demurrer 272 
 
 demurrant confined to causes specified 281 
 
 history of rule 272 
 
 objection of form, required to be specified. 273,276 
 
 object of rule 272 
 
 waiver of objections of form 273 
 
 when required 273 
 
 Speaking demurrers 277 
 
 defined 277 
 
 overruled, should be 278 
 
 Statute of limitations 258, 270 
 
 in suits involving equitable rights 259, 260 
 
 waived if not pleaded 259 
 
 when ground for 258, 270 
 
 Supplemental bill, to 193 
 
 To portion of bill pleaded to or answered, not permitted... 24n. 
 
 Want of jurisdiction, for 268 
 
 equity, for 269, 273 
 
 objections for want of form cannot be raised by. 276 
 
 which may be raised under 274 
 
 DEPOSITIONS- 
 DC bene esse. See Witnesses. 
 Witnesses, of, before examiner. See Witnesses. 
 
General Index. 869 
 
 Page. 
 DIRECTION OF ACTION AT LAW. See Submission of 
 
 Issue to Jury. 
 DISCLAIMER— 
 
 Allowance of 313 
 
 result on 313 
 
 when allowed 313 
 
 Costs on allowance of 313 
 
 Defense, mode of , 313 
 
 in nature of answer 313 
 
 Suits to quiet title, in 238 
 
 costs on 228, 236 
 
 DISCOVERY IN AID OF EXECUTION AT LAW— 
 
 Bill, who may file 62n. 
 
 verified, should be 64 
 
 Corporation, will not lie against 63n. 
 
 Costs 64 
 
 not allowed where property recovered does not 
 
 amount to $100 64 
 
 Creditors, intervention of 63n. 
 
 Examination, before master 65 
 
 debtor may be examined 65 
 
 master may adjourn 65 
 
 to be certified to Court 66 
 
 witness may be examined 65 
 
 Examination of debtor, Court may order 64 
 
 Execution, unsatisfied, necessary 61 
 
 Hearing 68 
 
 depositions of parties may be used upon 68 
 
 notice of intention 68 
 
 Jurisdiction 61, 62n, 64 
 
 purely statutory 62n. 
 
 to decree satisfaction of sum due 64 
 
 prevent transfer of property 64 
 
 will not lie against corporation 63n. 
 
 Parties 6an. 
 
 defendants 62n, 63n. 
 
 all persons through whom title passed 
 
 may be made 63n. 
 
 Payment of debt due judgment debtor, Court may forbid. . 64 
 
 order must be directed to specific debt 67n. 
 
870 General Index. 
 
 Pagt 
 DISCOVERY IN AID OF EXECUTION AT LAW— Continued. 
 
 Property reserved by law 63n. 
 
 head of family, who is 63n. 
 
 persons entitled 63n. 
 
 wearing apparel 63n. 
 
 which creditor may recover 64n. 
 
 held in trust for debtor exempt from 63 
 
 where trust created by other than judgment debtor 64n. 
 
 Reference to master 64 
 
 Remedy statutory 62n. 
 
 construction of statute 62n. 
 
 Receiver pendente lite 66 
 
 may bring suit 66 
 
 appointment of 66 
 
 only in case of danger of loss 67n. 
 
 powers of 66 
 
 subject to authority of Court 67 
 
 when appointed 67n. 
 
 Transfer of property, Court may forbid 64 
 
 order must.be directed to specific property 67n. 
 
 Witnesses 65 
 
 may be required to appear and testify 65 
 
 subpoena may issue 65 
 
 DISMISSALS— 
 
 Bill, of 346 
 
 bars complainant from bringing new suit 347 
 
 effect upon cross bill 346 
 
 where proofs do not conform to case made by bill. .. . 429 
 
 without prejudice 347 
 
 Court's own motion, upon 346 
 
 adequate remedy at law 346 
 
 Effect of 347 
 
 bars complainant from bringing new suit 347 
 
 dismissal of original bill upon cross bill 205 
 
 without prejudice 347 
 
 Failure to set down cause for hearing, for 29 
 
 file replication or exceptions, for 29 
 
 answer interrogatories, for 34 
 
General Index. 871 
 
 Page. 
 
 DISMISSALS— CowfMwcd. 
 
 Involuntary 342 
 
 failure of proofs, for 343 
 
 to issue process, for 342 
 
 proceed after taking of testimony 
 
 begun, for 343 
 
 neglect to bring on hearing, for 342 
 
 want of necessary parties, for 345 
 
 prosecution, for 342 
 
 equity, for 344 
 
 triviality of subject matter 344 
 
 Setting down cause for hearing, for neglect in 40 
 
 Voluntary 340 
 
 after hearing begun 40 
 
 before Vice-Chancellor.... 342 
 
 as to part of relief prayed 340 
 
 by one of several complainants 341 
 
 after interlocutory decree 341 
 
 cross bill, of 342 
 
 right of complainant to dismiss bill 340,341 
 
 after answer filed 340 
 
 replication filed 340 
 
 DOWER— 
 
 Application to ascertain value of 356 
 
 order of reference 356 
 
 special master, must be to 356 
 
 Gross sum in lieu of, allowance of 55, 56n. 
 
 lands of lunatics may be mortgaged to pay 749 
 
 on foreclosure of mortgage 55, 56n. 
 
 Idiots, lunatics and drunkardSj in lands of 747 
 
 proceedings on mortgaging lands for erection of new 
 
 buildings 747 
 
 Sale of inchoate right of in partition proceedings. See Parti- 
 tion. 
 Sale of right of in partition proceedings. See Partition. 
 Sale of right of, on proceeding for sale of infants' lands. 
 See Sale of Infants' Lands. 
 
 Surplus proceeds of sale of mortgaged premises in 55 
 
 allowance by consent of gross sum in lieu of 55, 56n. 
 
 investment of proceeds in absence of consent. ... 55, 56n. 
 DRUNKENNESS— 
 
 Commission to inquire into. See Idiots, Lunatics and 
 Drunkards. 
 ENROLLMENT OF PLEADINGS, DECREES, ETC. See 
 Pleadings, Decrees. 
 
872, General Index. 
 
 Page. 
 ESTATES FOR YEARS— 
 
 Surplus proceeds of sale of mortgaged premises in 55 
 
 allowance of gross sum in lieu of, by consent.. 55, 56n. 
 investment of proceeds in absence of consent.... 55, 56n. 
 EVIDENCE— 
 
 Affidavits as 387 
 
 Allegata and probata must agree 424, 425 
 
 Amendment to conform to proofs 428 
 
 Answer as 389 
 
 answers to cross bills 390 
 
 on information and belief 393 
 
 co-defendant, of 389, 396 
 
 complainant cannot impeach veracity of defendant 393 
 credibility may be impeached by internal evidence. 393 
 evidence required to overcome sworn answer. . 394, 395 
 
 hearing on bill and answer, on 34, 388 
 
 answer of co-defendant 389 
 
 limitations of rule 388 
 
 taken as true 34, 388 
 
 new matter, in answer 391,392 
 
 on application for preliminary injunction. See 
 
 Injunctions. 
 on application to dissolve injunction. See Injunc- 
 tions. 
 
 responsive, must be 390, 391, 392 
 
 stating particulars of transaction set up in bill... 392 
 
 sufficiency of 390, 391 
 
 sworn answers 389 
 
 where answer under oath is waived 23, 397, 398 
 
 evidence for complainant 398 
 
 defendant 398 
 
 Answers to interrogatories 390 
 
 contained in bill where answer 
 
 under oath is prayed. . . . 399 
 
 Bill, as 387 
 
 injunction, on application to dissolve. See Injunc- 
 tions. 
 on application for preliminary injunction. See 
 Injunctions. 
 
 purposes for which admissible 387 
 
 Books and papers, inspection of 420 
 
 order for 420 
 
 hearing on application 421 
 
 jurisdiction to make 420 
 
 notice of application 420 
 
 terms discretionary 420 
 
 when granted 420, 421 
 
General Index. 873 
 
 Page. 
 ^YlDEiiCE— Continued. 
 
 De bene esse. See Witnesses. 
 
 Declarations by and transactions with deceased persons .... 386 
 
 Final hearing, at, evidence taken at preliminary hearing not 
 
 competent 386 
 
 General rules of 385 
 
 Hearing on bill and answer, no evidence to be received 
 
 except matter of record 34 
 
 Hearing, at, evidence taken at preliminary hearing not compe- 
 tent .' 386 
 
 Injunctions, on application for preliminary. .See Injunctions. 
 to dissolve. See Injunctions. 
 
 Issues raised by pleadings, must be confined to 423,424 
 
 answer 426 
 
 bill 424, 425 
 
 Judicial notice 423 
 
 ' foreign statute, of 423 
 
 Parol to vary written 385 
 
 Petition not admissible as 387 
 
 Substance only of .issue need be proved 424 
 
 Suppression of testimony 383 
 
 scandalous matter 383 
 
 Variance - 423, 424, 425 
 
 between proofs and allegations of bill 423,424 
 
 defense set up by answer 
 
 426, 427, 428 
 Witnesses. See Witnesses. 
 EXAMINERS— 
 
 Method of taking testimony before. See Witnesses. 
 EXCEPTIONS TO PLEADINGS— 
 
 Answer, to. See Exceptions to Answer. 
 
 Bill, to, for impertinence or scandal 184 
 
 Interrogatories, to, for impertinence or scandal 184 
 
 Method of taking, for impertinence or scandal 30n. 
 
 Reference to master a common rule 30n. 
 
 Scandal or impertinence, for 30n, 184 
 
 EXCEPTIONS TO ANSWER— 
 
 Amendment of 307 
 
 Confined to distinct question, must be 307 
 
 Costs 29 
 
 exceptions overruled, when : 29 
 
 ' sustained, when 29 
 
 on filing second or other answer after exceptions sus- 
 tained 31 
 
 when defendant submits to answer 30n. 
 
 Dismissal of bill for failure to file 29 
 
 Failure to take, effect of 309 
 
874 General Index. 
 
 Page. 
 
 EXCEPTIONS TO A-^SWER— Continued. 
 
 Filed, when to be 29 
 
 Hearing 29 
 
 Chancellor, by 39 
 
 proceedings when complainant neglects to bring on 31n. 
 
 reference to master 29 
 
 Impertinence and scandal, for 304, 308 
 
 appeal from order sustaining 309 
 
 when allowed 308 
 
 Immaterial defects to, disapproved 307 
 
 Insufficiency, for 307 
 
 exceptions for impertinence and scandal not 
 
 permitted after 30n. 
 
 motion for decision of, when entered 30n. 
 
 lie where answer under oath is waived 307 
 
 service of copy of 30n. 
 
 submission to answer 30n. 
 
 notice of 30n. 
 
 what constitutes insufficiency 307 
 
 Joinder of, for impertinence and scandal and for insufficiency 30n. 
 
 Nature of 29n, 306 
 
 Second or further answer 30 
 
 costs on 31 
 
 effect of failure to file 31 
 
 to be filed when answer adjudged insufficient 31 
 
 when filed 31 
 
 Submission to answer 30n. 
 
 amendment of bill on 30n. 
 
 notice of to be served 30n. 
 
 time for filing second answer 30n. 
 
 where complainant amends bill 30n. 
 
 does not amend bill. . 30n. 
 
 Signature of by solicitor sufficient 30n. 
 
 Sufficiency of defense cannot be tested by 306, 307 
 
 Reference to master > 29 
 
 a common rule 30n. 
 
 either party may move for 355 
 
 practice where party js in laches in obtaining 
 
 masters' report 330 
 
 EXECUTIONS— 
 
 Binds property from time of delivery to sheriff 47, 47n. 
 
 Costs for 46n. 
 
 Decrees for payment of money, upon 43 
 
 may be enforced by 46 
 
General Index. 875 
 
 Page. 
 KK.E.CUTIO'J<iS— Continued. 
 
 Deficiency, for 46n. 
 
 order of liability to be endorsed upon 46 
 
 person secondarily liable paying, may have 
 
 benefit of 46n. 
 
 Directed to Sheriff to be 46n. 
 
 Foreclosure proceedings in. See Foreclosure of Mortgages. 
 
 Issue without revival of decree within twenty years 72 
 
 of after six years 73 
 
 notice of application 72 
 
 order of Court necessary 72 
 
 proof on application 72 
 
 Order of liability of defendants to be endorsed upon 46n. 
 
 Proceeds of may be ordered paid into Court 47n. 
 
 Proceedings upon to be same as at law 46 
 
 Returnable, when 802 
 
 Sheriff, to return, when 46n. 
 
 death of, proceedings in case of 49 
 
 directed to, to be 46n. 
 
 Surplus proceeds of 46n. 
 
 not to be paid to party without order 46n. 
 
 Sheriff to pay to clerk 46 
 
 When to issue 46n. 
 
 EXECUTORS AND ADMINISTRATORS— 
 
 Administrators c, t, a, may forclose mortgage given to his 
 
 predecessor 106 
 
 Bill by, necessary allegations of 145 
 
 Description of in bill 140, 145 
 
 prayer for process 159 
 
 Duty to bring necessary suits to preserve personal property 106 
 
 Foreign, when amenable to compulsory process 119 
 
 Grantee of mortgaged premises, a proper party to foreclos- 
 ure suit 105 
 
 Interest of in real estate of decedent. » 109 
 
 Mortgagee of, right to foreclose 570 
 
 when proper parties to foreclose suit 570 
 
 Mortgagor of, proper party to foreclose suit 105 
 
 Personal property of deceased devolves upon 106 
 
 Proceeds of partition sale, payment of to. See Partition — 
 
 Proceeds of Sale. 
 Revivor of action brought against deceased defendant. See 
 Revivor. 
 
 Suits against 106 
 
 duty to defend 106 
 
 legatee or next of kin may be admitted to defend when 
 executor or administrator is not in position so 
 
 to do Ill 
 
876 General Index. 
 
 Page. 
 EXECUTORS AND ADUmiSTRATORS— Continued. 
 
 Surplus proceeds of sale of mortgaged premises, application 
 for. See Foreclosure of Mortgages — Surplus Proceeds. 
 FEIGNED ISSUE. See Submission of Issue to Jury. 
 FORECLOSURE OF MORTGAGES— 
 
 Absent defendants. See Absent Defendants. 
 
 Answer (and see, in general. Answers) 581 
 
 abatement of amount of mortgage may be raised by 581 
 cannot pray for reformation of mortgage on ground 
 
 of fraud 196 
 
 defenses available by 581, 584 
 
 fraud in consideration of mortgage 582 
 
 prior encumbrance 583 
 
 general rules regarding 581 
 
 may pray reformation of mortgage on ground of 
 
 mistake 197 
 
 mistake in description of mortgaged premises 581 
 
 paramount title may be set up by 581 
 
 second mortgagee may set up claim for expenses 
 
 incurred to preserve property 581 
 
 second mortgagee may compel mortgagee in posses- 
 sion to account by answer 581 
 
 subsequent incumbrancers notice by in lieu of.... 584 
 
 sufficiency of (and see Answers) 584, 586 
 
 allegations of usury must be specific. .. 585 
 
 usury . . .• 582 
 
 allegations of must be specific 585 
 
 Answer as evidence. And see Evidence. 
 
 matters relied upon to impeach consideration, must 
 
 be proved 392 
 
 new matter in answer 392 
 
 allegations that mortgage given as collateral must 
 
 be proved 392 
 
 Assignee of mortgage, by 555 
 
 assignment need not be under seal: 556 
 
 assignee holds subject to equities between mort- 
 gagee and mortgagor 555 
 
 estoppel to enforce equities 557 
 
 parties complainant ; 567 
 
 mortgagee, when necessary 569 
 
 necessary allegations of bill 146 
 
 waiver of equities by mortgagee 556 
 
General Index. 877 
 
 Page. 
 FORECLOSURE OF MORTGAGES— Continued. 
 
 Bill (and see Bill of Complaint) 578 
 
 assignee, by, necessary allegations of 146 
 
 bond and mortgage not to be recited at length. .. 181,578 
 
 frame of bill 579, 580 
 
 prayer for relief 580 
 
 statement of case in 144 
 
 sufficiency of 144 
 
 what bill must show 578, 579 
 
 Confirmation of sale 615 
 
 Court to confirm 77, 617 
 
 satisfied that best price was obtained 77 
 irregularity of advertisement no ground for 
 
 refusing 617 
 
 objections to 615 
 
 inadequacy of price, for... 616,617 
 
 irregularity of sale, for 617 
 
 • failure to sell in parcels, for.. 622 
 
 office of 616 
 
 officer directed to make deed 77 
 
 to report sale to court 77 
 
 order of course 615 
 
 recitals of order 615 
 
 Costs and fees 647 
 
 cancellation of mortgage cannot be demanded before 
 
 payment of 650 
 
 costs at law, not taxable 761 
 
 counsel fees discretionary with Chancellor 650 
 
 first mortgagee of, in suit by second mortgagee 649 
 
 mortgagee as general rule entitled to 647 
 
 where complainants' proceedings unneces- 
 sarily vexatious 647 
 
 paid from proceeds of sale, to be 648 
 
 search fees may be allowed 650 
 
 tender before suit, effect of 648 
 
 stipulation in mortgage fixing amount of, void 751 
 
 when fraud in making mortgage is alleged 648 
 
 Counsel fees, contested cases, in, discretionary with Court 74, 650 
 
 uncontested suits, in, rule regulating 74n. 
 
 Courts having jurisdiction of suits for 542 
 
 Cross bills, party acquiring interest, when may file 199 
 
878 Genbeal Index. 
 
 Page. 
 FORECLOSURE OF MORTGAGES— Continued. 
 
 Decree of foreclosure 594 
 
 amount of decree 601 
 
 cannot exceed amount due on mortgage . . 601 
 
 deductions for partial payments 603 
 
 fire insurance premuims paid by mortgagee — 
 
 when included 602 
 
 may exceed amount of bond 602 
 
 taxes paid by mortgagee 603 
 
 description of premises 595 
 
 directions as to sale 596 
 
 after acquired property 597 
 
 description of lands 596 
 
 interest directed to be sold 596 
 
 sale in gross or in parcels 597 
 
 time of sale 601 
 
 when immediate sale will be ordered... 601 
 
 where entire amount of mortgage not due 597 < 
 
 direction of sale of after acquired property 597 
 
 filing decree 603 
 
 nunc pro tunc 603 
 
 interest directed to be sold 596 
 
 lands described in mortgage only included 596 
 
 marshalling of assets 598 
 
 where mortgagor has sold portion of 
 
 mortgaged land 599 
 
 nature of decree 594 
 
 owners of unrecorded liens bound by 53 
 
 order of sale of several parcels 598 
 
 recitals of 595 
 
 relief afforded by 595 
 
 must conform to pleadings 595,596 
 
 sale in gross or in parcels ■*. 597, 609 
 
 satisfaction of, method of entering 52 
 
 Dedication of portion of mortgaged lands to public uses, 
 
 effect of 633 
 
 Defenses 549, 551 
 
 adverse possession 558 
 
 existence of unprobated will 550 
 
 fraud or mistake in mortgage, must be raised by 
 
 cross bill 196 
 
 fraud in procuring mortgage 554 
 
General Index. 879 
 
 FORECLOSURE OF MORTGAGES— ConHnued. ^^^^' 
 Defenses — Continued. 
 
 in suit by assignee 555 
 
 estoppel to enforce equities 557 
 
 equities between mortgagor and mortgagee 
 
 preserved 555 
 
 misappropriation of fund 556 
 
 waiver of equity by mortgagee 556 
 
 invalidity of mortgage 554 
 
 limitations 557 
 
 malice on part of mortgagee 550 
 
 purchase money mortgage. See Foreclosure of 
 
 Mortgages, Purchase Money Mortgage. 
 
 refusal to indemnify in suit on lost mortgage... 550 
 
 set off 557 
 
 usury 551 
 
 allegations of must be specific 585 
 
 where usury alleged is under laws 
 
 of other State 551 
 
 amount recovered when, proved 551 
 
 assignee of mortgage, may be set up against 556 
 
 burden of proof 586 
 
 in case of interest default clause 551 
 
 may be set up in answer 582 
 
 purchaser at Sheriff's sale may set up usury 
 
 in prior mortgage 553 
 
 purchaser of equity of redemption cannot 
 
 set up 553 
 
 rate of interest where mortgage made or 
 
 to be performed controls 551,552 
 
 second mortgagee may show first mortgage 
 
 usurious 552 
 
 want or failure of consideration 555 
 
 of title cannot be pleaded 549 
 
 waste by mortgagee in possession 550 
 
 Deficiency and personal liability. See Deficiencies under 
 Foreclosure Sales. 
 
 Extension of time for payment 547, 548 
 
 Execution 50 
 
 directed to Sheriff or master 50 
 
 estate conveyed by Sheriff's deed 50 
 
 recorded by clerk to be 50 
 
 Sheriff to make deed 50 
 
 Fire insurance premiums paid by mortgagee, recovery of... 602 
 
 Infant defendants, appointment of guardian ad litem 123 
 
 duties of guardian 123 
 
880 Gbneraf. Iniiex. 
 
 Page. 
 FORECLOSURE OF MORTGAGES— Continued. 
 
 Issues and proof 586 
 
 burden of proof 586 
 
 when usury is alleged 586 
 
 questions which may be litigated 586 
 
 waste committed by mortgagor 586 
 
 Limitations, statute of 558 
 
 Legal title, questions of, Court to be settled in 595 
 
 Masters report. See also References 591 
 
 confirmation of, when unnecessary 593 
 
 decree pro confesso, after 591 
 
 ascertainment of amount due 592 
 
 errors in report, how corrected 592 
 
 order for reference unnecessary 591 
 
 practice when reference ordered 592 
 
 proceedings before master 592 
 
 report filed of course 592 
 
 exceptions to, when must be filed 362 
 
 errors in, method of correcting 592 
 
 must conform to bill 593 
 
 order of reference unnecessary, when 591 
 
 order of priority of subsequent encumbrances not 
 
 disputed, practice when 592 
 
 Mortgagee in possession 595 
 
 liability of for rent and profits 595 
 
 prior mortgagee, accountable for rents to subse- 
 quent mortgagee 596 
 
 subsequent mortgagee not accountable to prior 
 
 encumbrancers for rents 596 
 
 Order of reference 591 
 
 notice of application for 362 
 
 practice when ordered 592 
 
 when unnecessary 591 
 
 where answer does not set up any defense 594 
 
 Parties {see also Parties) 565- 
 
 absent defendants, proceedings against. See Absent 
 
 Defendants. 
 administrator of deceased grantee of mortgagor a 
 
 proper 105 
 
 assignor of judgment a proper 103 
 
 general rule as to 565 
 
 mortgagor who has conveyed equity a proper. . 103. 106 
 mortgagee who has assigned mortgage, when neces- 
 sary 569' 
 
 owner of unrecorded lien, admission of as party. . . 578- 
 
General Index. 
 
 881 
 
 Page. 
 
 FOREa:.OSURE OF MORTGAGES— Contimied. 
 Parties — Continued. 
 
 owners of unrecorded liens may become parties 
 
 by petition 53 
 
 form of petition 53, 55n. 
 
 necessity for recording instrument 53, 55n. 
 
 who may be admitted as a party 54n. 
 
 personal representative of deceased mortgagor a 
 
 proper 105 
 
 proceedings against unknown owners 578 
 
 trust mortgages 565 
 
 junior trust mortgage, trustee of 566 
 
 I trustee and all beneficiaries necessary 565 
 
 effect of failure to include all 566 
 
 Parties complainant 567 
 
 all persons entitled to mortgage money necessary. . 567 
 
 joint mortgagees 568 
 
 person entitled to part only of mortgage money. . . 568 
 
 representatives of deceased mortgagee 570 
 
 trustees and cestuis should join to foreclose trust 
 
 mortgage 116, 117 
 
 where cestuis are very numerous 116 
 
 one of two mortgagees dies 568 
 
 trustee of trust mortgage refuses to act 117 
 
 Parties defendant 570 
 
 adverse claimants of title 571,574 
 
 all persons interested in equity of redemption neces- 
 sary .' 570 
 
 assignor of mortgage, when necessary 569 
 
 infants, appointment of guardian ad litem 571 
 
 mortgagee who has assigned mortgage 569,570 
 
 obligors on bond 571 
 
 prior encumbrancers : 575 
 
 purchaser at tax sale 574 
 
 subsequent encumbrancers 576, 577 
 
 effect of not joining 577 
 
 purchaser at tax sale 577 
 
 purchasers of premises 572 
 
 Prior incumbrancers, remedies of, when complainant refuses 
 
 to proceed with suit 583 
 
 parties defendant, when necessary . . , 575 
 
 mortgagee in possession accountable to subsequent 
 
 mortgagee for rents and profits 595 
 
 Proceeds of sale 644 
 
 applied to payment of mortgage 50 
 
 disposition of where entire amount of mortgage is 
 not dug and portion of land cannot be sold 
 
 without injury to whole 51, 52n. 
 
 paid into Court, when 50, 645 
 
882 General Index. 
 
 Page. 
 FORECLOSURE OF UORTGAGES— Continued. 
 
 Proceeds of sale — Continued. 
 
 persons entitled to 644 
 
 surplus paid into Court, when 50, 645 
 
 surplus proceeds 644 
 
 to be paid into court 644 
 
 petition for, wlien may be presented 645 
 
 parties to proceeding 646 
 
 reference to master, prbceedings 646 
 
 rights of parties fixed by foreclosure.... 646 
 
 Proceedings at law cannot be attacked in 595 
 
 Process, ticket. See Ticket. 
 
 Purchase money mortgage, of 559 
 
 abatement of mortgage debt by reason of fraud. . 560 
 
 where damages are unliquidated 560 
 
 answer cannot attack fairness of sale 196 
 
 may pray for reduction of amount of ' 
 mortgage by reason of mistake in 
 
 quantity of land 197 
 
 defenses , 559 
 
 defect or failure of title 560 
 
 eviction necessary 560 
 
 outstanding paramount title in- 
 sufficient • 560 
 
 partial eviction 561 
 
 failure of consideration 559 
 
 fraudulent inducements to purchase. . . . 559 
 
 defects in quantity of land 563 
 
 answer without cross bill, de- 
 fense may be raised by 565 
 
 effect of laches 564 
 
 grantee purchasing' subject to 
 purchase money mortgage 
 
 assumed by him 564 
 
 when mortgagor entitled to de- 
 duction 563, 564 
 
 outstanding encumbrances 561 
 
 easements 562 
 
 eviction necessary 561 
 
 exceptions to rule 561 
 reduction of mortgage by reason of mis- 
 take in quantity of land may be 
 
 obtained by answer 197 
 
 stay of, pending suit at law for breach 
 
 of covenant 562 
 
 when Court will order 563 
 
 surrender of mortgage may be sought by 
 
 cross bill 196 
 
General Index. 883 
 
 Paee. 
 FORECLOSURE OF MORTGAGES— Continued. 
 
 Receivers 587 
 
 appointment of 587 
 
 absence of personal security for debt 589 
 benefit of all parties entitled to fund, 
 
 is for 591 
 
 decrease in value of property 589 
 
 first mortgagee, at request of 587 
 
 failure to apply rents to payment of 
 
 interest 589 
 
 failure to pay interest on prior en- 
 cumbrances 588 
 
 grounds for, in general 587, 588 
 
 security inadequate 588, 589 
 
 waste by mortgagor 588, 589 
 
 disposition of fund collected ; 590 
 
 payment of interest on prior mort- 
 gage 589, 590 
 
 strangers to suit have no interest. 591 
 
 powers and duties 590 
 
 collection of rents, etc 590 
 
 lease of mortgaged premises 590 
 
 payment of interest on prior mort- 
 gages 589 
 
 Reformation of mortgage 196 
 
 fraud, for, must be sought by cross bill 196 
 
 mistake, for, may be obtained by answer 197 
 
 Relief afforded must conform to pleadings 595,596 
 
 Rents and profits 595 
 
 mortgagee in possession accountable for 595 
 
 prior mortgagee in possession accountable for to 
 
 subsequent mortgagee 595 
 
 subsequent mortgagee in possession not accountable 
 
 for to prior mortgagee < , 596 
 
 Report of sale 615 
 
 evidence of sale for highest price required 615 
 
 objections to report 615 
 
 office of objections 616 
 
 recitals of report 615 
 
 scope of legislation 615 
 
 time for filing report 615 
 
 Representatives of deceased mortgagee, by 570 
 
884 General Index. 
 
 Page. 
 FORECLOSURE OF MORTGAGES— Continued. 
 
 Right to foreclose 542 
 
 administrator, against 543 
 
 administrator c. t. a. may forclose mortgage given 
 
 to his predecessor 106 
 
 assignee, by 555 
 
 assignment need not be sealed 556 
 
 equities between mortgagor and mort- 
 gagee preserved 555 
 
 estoppel to enforce equities 557 
 
 waiver of equity by mortgagee 556 
 
 continues for twenty years from last payment of 
 
 interest 558 
 
 extension of time for payment 547 
 
 consideration necessary 547 
 
 what constitutes sufficient 548 
 
 by waiver of default 549 
 
 may be shown by parol 547 
 
 future advances, mortgage to secure 542 
 
 holder of unrecorded mortgage, by 54S 
 
 interest in default, to collect 543 
 
 limitations, statute of 557, 558 
 
 waiver of statute 559 
 
 maturity of debt 544 
 
 anticipation of maturity 544 
 
 computation of time 547 
 
 failure to pay interest 544,546 
 
 waiver of default 545, 546 
 
 remedy on mortgage after suit on bond barred by 
 
 limitation 557 
 
 waiver of default 549 
 
 Sale of mortgaged premises , 603 
 
 after acquired property, of 597 
 
 conduct of sale. See Judicial Sales. 
 confirmation of sale. See Foreclosure of Mort- 
 gages — Confirmation of Sale. 
 
 court may decree 50 
 
 deed, estate conveyed by 50 
 
 immediate sale, when ordered , . . . 691 
 
 marshalling of assets 598 
 
 notice of sale — publication. See Judicial Sales. 
 opening and setting aside. See Opening and Set- 
 ting Aside Judicial Sales. 
 
 order of sale of several parcels 598 
 
 lands sold in parcels chargeable in inverse 
 
 order of alienation 600 
 
 remaining land first sold 599 
 
 where mortgagor has conveyed portion of 
 
 mortgaged land 599 
 
General Index. 885 
 
 FORECLOSURE OF MORTGAGES— Continued. *^*' 
 
 Sale of mortgaged premises — Continued. 
 
 purchaser at sale, rights and liabihties of. See 
 
 Judicial Sales. 
 'report of sale. See Foreclosure of Mortgages — 
 Report of Sale. 
 
 sale in gross or in parcels 597 
 
 mortgage covering several parcels covered by 
 
 subsequent mortgages 597 
 
 mortgage foreclosed for default in installment 597 
 mortgage foreclosed for non-payment of inter- 
 est 597 
 
 sale pending suit where property liable to deterio- 
 rate 56 
 
 Sheriff or master to sell 50 
 
 to make deed 50 
 
 stay of on entry of appearance of absent defendant 51 
 
 time of sale, directions as to 601 
 
 when entire amount of mortgage not due 51, 597 
 
 where portion of land cannot be sold without 
 injury, court will order sale of entire 
 
 tract 51 
 
 Search fees 75 
 
 abstract of search to be filed 75n. 
 
 what to contain 75n. 
 
 allowed for searches from date of mortgage only. . 75n. 
 
 taxed as part of costs 75 
 
 ' Second mortgagee, by 575 
 
 may compel mortgagee in possession to account... 581 
 recover for expenses incurred in preservation 
 
 of property 581 
 
 rights of purchaser at first sale 576 
 
 when omitted as party to suit to foreclose first 
 
 mortgage 576 
 
 Set oflfs allowed in same manner as in actions at law 56 
 
 Subsequent encumbrancers, may give notice in lieu of answer 584 
 
 notice of in lieu of answer, practice 593 
 
 order of priority not disputed, practice obtaining, 
 
 masters' report 592 
 
 parties defendant, when necessary. See Parties 
 
 Defendant. 
 parties when necessary or proper. See Fore- 
 closure of -Mortgages — Parties. 
 remedies of when complainant refuses to proceed 
 
 with suit 583 
 
 mortgagee in possession not accountable to prior 
 
 encumbrancer 596 
 
886 General Index. 
 
 Page. 
 FORECLOSURE OF MORTGAGES— Continued. 
 
 Suit on bond 540 
 
 foreclosure proceedings first necessary 540 
 
 waiver of right to require 540,541 
 
 Surplus proceeds of sale '■ 644 
 
 allowance of gross sum in lieu of estate for life, 
 
 curtesy or dower by consent 55, 56n. 
 
 investment of proceeds subject to estate for life, 
 
 curtesy or dower, in absence of consent.... 55, 56n. 
 
 order of reference must be to special master 356 
 
 paid into Court, when 50, 645 
 
 payment of to executor or administrator. 57 
 
 executor or administrator to give bond 57, 59h. 
 
 notice and service of petition 58n. 
 
 one of two executors or administrators 
 
 may apply 58n. 
 
 petition, form of 57n. 
 
 proof before master 58n, 59n. 
 
 reference and report 5j8n. 
 
 Taxes paid by mortgagee, when recoverable 603 
 
 Ticket, issue of when necessary. See Ticket. 
 
 Trust mortgages, of 565 
 
 • bill, need not recite cestuis too numerous to be made 
 
 parties 140 
 
 parties. See also Parties. 
 
 trustee and cestuis necessary. . . . 114, 116, 117, 565 
 
 effect of failure to join all 566 
 
 junior trust mortgage, of... 56d 
 
 where cestuis are very numerous. .116, 117 
 
 single bond holder may maintain 566 
 
 form of suit 567 
 
 Usury , 551 
 
 allegations of must be specific 585 
 
 amount recovered when proved 551 
 
 assignee of mortgage, may be set up against 556 
 
 burden of proof 586 
 
 in case of interest default clause 551 
 
 may be set up by answer 582 
 
 proof required 587 
 
 purchaser at Sheriff's sale may set up 553 
 
 of equity of redemption cannot set up... 553 
 rate of interest of place where mortgage made or to 
 
 be performed governs 551, 552 
 
 second mortgagee may show usury in first mortgage 552 
 
 Waste by mortgagor, measure of damages 596 
 
 Writ of assistance. See Writ of Assistance. 
 
General Index. 887 
 
 Page. 
 
 FOREIGN STATUTES— \ . 
 
 Must be pleaded 423 
 
 FRAUDULENT CONVEYANCES— 
 
 Bill to set aside, must show that it prevents complainant from 
 
 collecting debt '. 143 
 
 may follow several properties of debtor into hands of 
 
 separate defendants 167 
 
 may seek to reach other property of debtor 167 
 
 several deeds of land to distinct grantees not multi- 
 farious 177 
 
 several judgment creditors may join in 172 
 
 Suit to set aside, parties to. See Parties — Fraudulent Con- 
 veyances. 
 GUARDIANS AD LITEM— 
 
 Idiots and lunatics, of. See Idiots, Lunatics, and Drunkards. 
 Infants, of. See Infants. 
 HEARING— 
 
 Amendment of .pleadings at, when allowed 321 
 
 Application to open decrees, opening and replying at 449 
 
 Argument at, cause may be submitted on briefs 383 
 
 consolidation of causes 383 
 
 opening and reply on 383 
 
 papers to be furnished at 383, 384, 389 
 
 Bill and answer, on. 
 
 Answer as evidence. See Evidence. 
 
 Setting down cause, time for 29 
 
 dismissal for failure 29 
 
 Bill and cross bill, heard together 205 
 
 Bringing on cause for 380 
 
 where equities settled by interlocutory decree. 381 
 
 Consolidation of causes 383 
 
 Costs of. See Costs. 
 
 Date of issue joined to be furnished clerk 381 
 
 Demurrers, on. See Demurrers. 
 Examination of witnesses. See Witnesses. 
 
 before Vice-Chancellor (see Vice-Chancellors) 380 
 Exceptions to answer, of. See Exceptions to Answer. 
 
 to master's report 381 
 
 by whom heard 802 
 
 notice of application for 802 
 
 service of order fixing day for 381 
 
 Ex parte, on failure of party to appear 40 
 
 Evidence on. See Evidence. 
 
 Injunctions, on application to dissolve. See Injunctions. 
 
 Non-attendance at, effect of 382 
 
 of complainant, effect of 382 
 
888 General Index. 
 
 Page. 
 HEARING — Continued. 
 
 Notice of 381 
 
 failure of complainant to give 383 
 
 on exceptions 381 
 
 service, of 381 
 
 Pleadings and proofs may be used at argument or hearing. . 41 
 
 Pleas, on. See Pleas. 
 
 Preliminary injunction, on application for. See' Injunctions. 
 
 Printing pleadings and evidence 37 
 
 Setting down cause for 40, 382 
 
 day not assigned until testimony closed 382 
 
 priority of causes on 382 
 
 when equities settled 381 
 
 Submission of cause on briefs 383 
 
 practice on 384 
 
 Vice-Chancellor, before (and see Vice-Chancellor) 80 
 
 ex parte, on failure of party to proceed . . 41 
 HOLIDAYS— 
 
 Court f orlpidden to sit on 2n. 
 
 Ex parte business may be transacted by Court on 2n. 
 
 Filing pleadings when last day falls on holiday 25n. 
 
 Subpoena returnable on, effect of 3n, 802 
 
 Sunday not a 3n. 
 
 effect of making process returnable on 3n, 802 
 
 IDIOTS, LUNATICS AND DRUNKARDS— 
 
 Adjudication of lunacy 729 
 
 effect of 729 
 
 not conclusive against subject 729 
 
 Buildings on lands may be removed and replaced 747 
 
 guardian may mortgage lands 747 
 
 provisions as to dower rights 747 
 
 Commission to enquire into lunacy, drunkenness, etc 713 
 
 commission of lunacy, infancy no bar to issue of.... 715 
 
 issuance of rests in discretion 714 
 
 non-resident lunatic, for 715 
 
 object of issuing 713 
 
 petition 714 
 
 affidavits to accompany 714 
 
 time limited for execution of 722 
 
 Vice-Chancellor may advise 715 
 
 commissioners, allowances to 730 
 
 appointment of 716 
 
 examination of alleged lunatic by, order 
 
 not necessary 714^ 719 
 
 may summon witnesses 719 
 
 need not be sworn 719 
 
 nominated by solicitor 71G 
 
General Index. 889 
 
 IDIOTS, LUNATICS AND DRUNKARDS— CoM/tm<erf. ^^^ 
 Commission to enquire into lunacy, etc.— Continued. 
 
 costs in lunacy proceedings 739 
 
 allowances to commissioners 730 
 
 jurors 730 
 
 where subject found of sound mind 729,751 
 
 decree, when entered 722 
 
 drunkards, appointment of guardian 713 
 
 commission to inquire into 713 
 
 order for safe keeping of drunkard 714 
 
 practice same as in lunacy 714 
 
 examination of party by commissioners, Court may 
 
 order ItTnatic brought before commissioners 719 
 
 examination may be private 720 
 
 not necessary 719 
 
 order for unnecessary 719 
 
 rights of commissioners 719 
 
 hearing 717 
 
 examination of party by commissioners . . 719, 720 
 
 master in chancery presides 719 
 
 nature of inquiry at 719 
 
 notice of 717, 718 
 
 proof of, to be filed 717 
 
 proceedings at 719, 720 
 
 right of lunatic to be present at 718 
 
 jury, proceedings to procure 716 
 
 not necessary to produce lunatic before 719 
 
 number of jurors 717 
 
 right of to examine lunatic 719 
 
 who may serve upon 717 
 
 lunacy etc., to be determined by inquest 713 
 
 protection of person and property 716 
 
 return and finding to commission 720 
 
 finding as to lucid intervals unnecessary ^ 721 
 
 form of 720 
 
 need not use language of commission 721 
 
 time limited for making 722 
 
 right of lunatic to be present at hearing 718 
 
 setting aside proceedings 722 
 
 irregularity of proceedings, for 723 
 
 new commission, when awarded 724 
 
 rests in discretion 722 
 
890 General Index. 
 
 Page. 
 
 IDIOTS, LUNATICS AND DRUNKARDS— Cow^inw^rf. 
 Commission to enquire into lunacy, etc. — Continued. 
 setting aside proceedings. — Continued. 
 
 traverse of inquisition, by 724 
 
 examination by master 726 
 
 function of 724 
 
 grant of rests in discretion 725 
 
 petition for, who may file 725 
 
 practice on application 726 
 
 trial of issue at law, practice. . . . 727 
 when leave will be granted.. 726,727 
 
 verdict against weight of evidence 722 
 
 where subject found of sound mind 724 
 
 who may apply 724 
 
 superseding inquest 727 
 
 in cases of habitual drunkenness 728 
 
 petition should be by subject 728 
 
 practice on application 728 
 
 restoration of sanity, on ground of 727 
 
 when order will be granted 727 
 
 where executed 716 
 
 who may sue out 715 
 
 person in interest 716 
 
 strangers barred 715 
 
 Exchange of lands of '. 749 
 
 practice on application for 749 
 
 same as sale of lands 749 
 
 reference to master 750 
 
 matters referred 750 
 
 Guardian ad litem 125 
 
 practice on appointment of 125 
 
 Jurisdiction of Court over estate of, direction as to expendi- 
 
 ■ ture for support 731 
 
 dissolution of partnership 730 
 
 election to accept gross sum in lieu of dower. . . 730 
 
 purchase of dwelling house for 731 
 
 specific performance of contract of 731 
 
 support of family from surplus income 731 
 
 where discretionary power is vested in 731 
 
 where lunatic holds lands as trustee, etc 731 
 
 Mortgaging lands of 748 
 
 for erection of buildings destroyed by fire 749 
 
 support of ward 749 
 
 wife and children 749 
 
 matters referred 750 
 
 practice on application 749 
 
 same as on sale of lands 749 
 
General Index. 891 
 
 Page. 
 IDIOTS, LUNATICS AND jyRXJNKAKDS— Continued. 
 Mortgaging lands of — Continued. 
 
 reference to master 750 
 
 to pay gross sum in lieu of dower 749 
 
 liens and incumbrances 749 
 
 replace buildings removed by order of Court 747 
 
 replace outworn machinery 749 
 
 where lands can be advantaged by 748 
 
 Restoration to sanity, proceedings 737 
 
 Sale of lands of 742 
 
 bond of guardian 743 
 
 confirmation of sale 743 
 
 deed to ipiurchaser 746 
 
 for support of lunatic 745 
 
 interest in proceeds of sale 744 
 
 petition for, recitals of 742 
 
 proceeds regarded as real estate 744 
 
 account of guardian 745 
 
 disposition of 745 
 
 payment of to guardian of non-resident 
 
 lunatic 746 
 
 reference to master 742 
 
 matters referred 742 
 
 special master, must be to 356 
 
 release by married woman of dower right 744 
 
 report of sale 743 
 
 title vested in purchaser 743 
 
 to pay debts of lunatic 745 
 
 when Court will order sale 742 
 
 guardian may sell without order 748 
 
 Suits against, application for appointment of guardian ad 
 
 litem, practice 125 
 
 defended by guardian ad litem 125 
 
 duty of person bringing, to make known to Court 
 
 incapacity 125 
 
 where idiot or lunatic has no guardian 125 
 
 party becomes, after suit began 125 
 
 Suits byj brought by guardian 124 
 
 entitling .: 124 
 
 when may be brought by next friend 124 
 
 consent of Court necessary 124 
 
 method of attacking propriety of order permit- 
 ting suit by next friend 124 
 
 where interests of guardian are adverse to those of 
 
 ward 134 
 
892 General Index. 
 
 Page. 
 
 INFANTS— 
 
 Buildings on lands may be removed and replaced 747 
 
 guardian may mortgage lands 747 
 
 provision as to dower rights 747 
 
 Defending suit, incapable of 123 
 
 Guardian ad litem 123 
 
 appointment of 123 
 
 authority of expires on coming of 
 
 age of infant 124 
 
 duties of 123, 124 
 
 in foreclosure suits 123 
 
 on application on behalf of infant.. 123 
 suit by does not abate on coming of 
 
 age of infant 124 
 
 when no application is made on behalf 
 
 of infant 123 
 
 continuation of suit after coming of age of infant 124 
 
 control of Court over suit by 124 
 
 expiration of authority of 124 
 
 must defend by 123 
 
 Mortgaging lands of 748 
 
 for erection of buildings destroyed by fire.... 749 
 
 support of ward 749 
 
 wife and children 749 
 
 practice on application 749 
 
 same as on sale of lands 749 
 
 reference to master 750 
 
 matters referred 750 
 
 special master, must be to 356 
 
 to pay gross sum in lieu of dower 749 
 
 liens and incumbrances 749 
 
 replace buildings removed by order of Court 747 
 
 worn out machinery 749 
 
 where lands can be advantaged by 748 
 
 Next friend, must sue by 120 
 
 costs of suit by 755 
 
 entitling suit brought by 122 
 
 necessity of in suit by infant 120 
 
 needs no authority to bring suit 120 
 
 practice when next friend dies or is removed. 122 
 
 removal of for misconduct 121 
 
 responsible for costs 122 
 
 right of father 12o 
 
 suit brought by is suit of infant 122 
 
 who may be 12o 
 
 Sale of lands of. See Sale of Infants' Lands. 
 
General Index. 893 
 
 Page. 
 INFANTS— Contitmed. 
 
 Suit, incapable of maintaining 120 
 
 brought by infant without next friend may be con- 
 tinued after arrival of infant of full age 122 
 
 coming of age of infant does not abate suit 123 
 
 Suits against, must defend by guardian ad litem 123 
 
 by. Court will look to rights of infant 120 
 
 next friend, must sue by 120 
 
 where two suits for same purpose brought by different 
 
 persons acting as next friend 121 
 
 INJUNCTIONS— 
 
 Advisory Master at Trenton may grant 803 
 
 Amendment of pleadings 511 
 
 addition of prayer for injunction by 511 
 
 after motion to dissolve 511 
 
 effect of 512 
 
 formal defects of 511 
 
 Answer 510 
 
 complete in itseK, must be 511 
 
 injunction denied if answer denies equities of bill 
 
 513, 514 
 
 must be upon defendant's own knowledge 511 
 
 responsive, must be 510 
 
 sufficiency of 514 
 
 verified, must be 511 
 
 Appeal from order dissolving 87, 778 
 
 injunction not continued without order 778 
 
 judges may be appointed to grant continuance in 
 
 vacation 778 
 
 to whom application for continuance made 780 
 
 when order for continuance will be made 780, 783 
 
 from orders granting or denying 87, 766 
 
 application to stay in vacation 778 
 
 does not stay without order 778 
 
 to whom application for stay should be made 780 
 
 when Court will order stay 778, 782 
 
 preliminary injunction, from order for or denying. 766 
 
 Bill of complaint ' 507 
 
 candor and frankness, should show 507 
 
 complainant's title, must show 508 
 
 prayer for relief 508 
 
 right of complainant must affirmatively appear.... 507 
 
 to restrain action at law 507 
 
894 General Index. 
 
 Page. 
 mjVNCTlONS—ConHtmed. 
 
 Bill of complaint — Continued. 
 
 verification of 508 
 
 corporation by . . . ' 509 
 
 defects in form of 510 
 
 general rules of evidence apply to. 510 
 
 special affidavit required 508, 509 
 
 violation of right, must show 508 
 
 where complainant relies upon own oath 507 
 
 Classification of 477 
 
 Conduct of complainant as affecting right to 493 
 
 Costs in suit upon injunction bond 506 
 
 on application for dissolution 538 
 
 Damages as remedy 490 
 
 when adequate, bar to injunction 490 
 
 Decrees, enforcement of by 46 
 
 Defined 477 
 
 Dismissal of bill, motion of defendant to strike out regarded 
 
 as demurrer 516 
 
 right of complainant to 516 
 
 Dissolution of preliminary 518 
 
 amendment of bill on application for 525 
 
 answer 526 
 
 allegations of regarded as true 525, 536 
 
 bills for discovery, to 534 
 
 denying facts on which equity of bill rests 526 
 answers by personal representatives . . 532 
 answer must be direct and free from 
 
 evasion 530, 531 
 
 co-defendants, answers of 532 
 
 denials upon information and belief. 532 
 
 exceipitions to rule 527,528,529 
 
 ground for dissolution 526 
 
 new matter in answer 532 
 
 rule not inflexible 526 
 
 sufficiency of answer 529, 536 
 
 when bill waives answer under oath. 526 
 
 where fraud is charged in bill 531 
 
 whole equity of bill must be denied 529, 530 
 
 exceptions to, effect of 536 
 
 new matter in answer 533 
 
 affidavits may be read in reply to 533 
 
 part only of defendants, by 534 
 
 all defendants implicated in charge must 
 
 answer 534, 535 
 
 where defendant is absent 535 
 
 personal representatives, by 534 
 
General Index. 895 
 
 INJUNCTIONS— Co»h»«^rf. ■^*^^" 
 
 Dissolution of preliminary — Continued. 
 
 bill 525 
 
 amendment of at hearing 535 
 
 allegations of, not answered regarded as true 525 
 
 defects in as grounds for 525 
 
 costs 538 
 
 rest in discretion 538 
 
 court's own motion, on 523 
 
 discretionary with Court 518 
 
 exceptions to answer, effect of on application 536 
 
 failure to diligently prosecute 521 
 
 fraud and misrepresentation, for ' 522 
 
 ■' carelessness and misinformation does not excuse 523 
 
 suppression of facts, effect of 522 
 
 general rule governing 518, 519 
 
 hearing on motion, affidavits 537 
 
 affiant may be required to submit 
 
 ' to cross examination 538 
 
 annexed to answer, when may be 
 
 used 537 
 
 use of by compilainant 537 
 
 f defendant 537 
 
 where complainant relies on his 
 
 affidavit alone 537 
 
 burden of showing cause 536 
 
 questions considered 536 
 
 laches, effect of, in general 518 
 
 complainant, of, effect of 520 
 
 defendant," of, effect of 521 
 
 motion for 524 
 
 before answer, not granted 524 
 
 injunction restraining suit at law 524 
 
 notice of 524 
 
 form of , 525 
 
 service of 524 
 
 should state grounds of application 525 
 
 when may be made 524 
 
 who may make 523 
 
 parties in contempt 469, 523 
 
 who may oppose 523 
 
 new parties 523 
 
 noh-joinder of parties ground for 522 
 
 parties entitled to move to dissolve 523 
 
 in contempt 469, 523 
 
 parties entitled to oppose dissolution 523 
 
 new parties 523 
 
 service of injunction irregularity of 519 
 
896 General Index. 
 
 Page. 
 
 lN]UNCTlOnS— Continued. 
 
 Dissolution of preliminary — Continued. 
 
 verification of bill, defective, effect of 520 
 
 want of equity in bill, ground for 520 
 
 Disputed questions of law and fact 484, 485 
 
 Equitable remedy more efficacious than at law, illustrations. 491 
 
 injunction allowed when 491 
 
 Evidence on application for 513 
 
 answer and affidavits may be read at hearing 515 
 
 burden of proof 51S 
 
 final hearing, at, affidavits to bill and answer not 
 
 competent 515 
 
 injunction refused when answer denies equities of 
 
 bill 513, 514 
 
 pleadings and affidavits as , 515 
 
 complainant confined to affidavits at- 
 tached to bill 515 
 
 court may require affiant whose affidavit 
 is used to submit to cross examina- 
 tion 515 
 
 defendant may read answer and affidavits 515 
 
 testimony of foreign witness .' 509 
 
 weight and sufficiency 513 
 
 Ex parte, when granted 503 
 
 security required 504 
 
 Injury sought to be restrained 486 
 
 character of injury 487 
 
 injury wholly past 487 
 
 irreparable loss, defined 488 
 
 threatened .' 486, 487 
 
 Jurisdiction to grant, in general ^98 
 
 in case of sickness or absence of Chancellor 499, 803 
 
 preliminary mandatory injunctions 479 
 
 Laches of complainant 493 
 
 effect of on right to injunction 493, 494 
 
 illustrations of 493, 494 
 
 on application to restrain public improvement 498 
 
 Mandatory 478 
 
 defined 478 
 
 legal rights must be undisputed 479, 480 
 
 preliminary, jurisdiction 479 
 
 when allowed 479, 480 
 
 Multiplicity of suits, injunction allowed to prevent 492 
 
 Notice of application 503 
 
 after answer filed 504 
 
 to restrain public improvement 503 
 
General Index. 897 
 
 Page. 
 
 INJUNCTIONS— CowHmterf. 
 
 Parties (and see Parties) 499 
 
 complainants 499 
 
 joinder of 499,500 
 
 defendants 501 
 
 corporations 501 
 
 joinder 501 
 
 Sheriff, when a proper party 502 
 
 Perpetual, defined 478 
 
 Pleadings and affidavits as evidence. See Injunction — Evi- 
 dence. 
 
 Prayer for relief 508 
 
 Preliminary injunction 481 
 
 advisory master at Trenton may grant 803 
 
 allowance of rests in discretion 481 
 
 caution to be exercised 481 
 
 constitutionality of statute, questioned, when . . 485 
 
 construction of conflicting statutes 485 
 
 defense of former adjudication, practice 517 
 
 to action at law as adequate remedy. . 491 
 
 defined 477 
 
 difference between restraining order and 477 
 
 disputed questions of law and fact 484,485 
 
 ex parte, when granted 503 
 
 hearing, Court limited to issues raised by plead- 
 ings 516 
 
 legal right of complainant must be clear.. 482,483 
 
 loss must be great or injury irreparable 488 
 
 mandatory, jurisdiction 479 
 
 when granted 479 
 
 notice of application 503 
 
 after answer filed 504 
 
 to restrain public improvement 503 
 
 principles controlling Court on application.... 482 
 
 rules governing grant of 481 
 
 title of lands disputed 485 
 
 threatened injury 486 
 
 Proceedings at law in personal actions, to stay after verdict 58 
 
 deposit or bond required 58 
 
 proceedings where bond or security insufficient 60, 61 
 
 which may be stayed 59n, 60n. 
 
 Proceedings at law before verdict, to stay, when granted.. 61 
 in mixed actions, to stay after verdict. 60 
 
 deposit or bond required 60 
 
 proceedings where bond or security insufficient 60, 61 
 which may be stayed 59n,'60n. 
 
898 General Index. 
 
 Page. 
 INJUNCTIONS— CoMri»«e<i. 
 
 Process 502 
 
 on rule to show cause 502 
 
 when subpoena should be issued 502 
 
 Public improvement, to restrain 497 
 
 ex parte, not granted 497, 503 
 
 laches in application, effect of 498 
 
 practice on application 497 
 
 when allowed 497, 498 
 
 injury and inconvenience to be considered on applica- 
 tion 497 
 
 nuisance 490 
 
 will not lie to abate 490, 500 
 
 officers, will not lie to compel performance of duties of 490 
 
 Relative convenience and injury 494 
 
 considered on application 494 
 
 illustrations of application of rule 495, 496 
 
 Remedy at law 489 
 
 existence and adequacy of 489 
 
 injunction will not lie when remedy at law adequate 489 
 Restraining order, difference between preliminary injunction 
 
 and 477 
 
 advisory master at Trenton may grant 803 
 
 Rule to show cause, service of 504 
 
 use of affidavits on application for 476 
 
 Security on grant of 504 
 
 costs in suit on bond 506 
 
 damages recoverable on bond 505 
 
 discretionary with Court 504 
 
 ejectment suit, in suit to restrain 506 
 
 liability upon bond 505 
 
 practice in suit at law on bond 505 
 
 prosecution of bond 505 
 
 when required 504, 513 
 
 Staying proceedings at law before verdict 482 
 
 terms on which allowed 482 
 
 when granted 482 
 
 Verification of bill 508 
 
 corporation, by 509 
 
 defects of form 510 
 
 general rules of evidence apply to 510 
 
 special affidavit required 508, 509 
 
 Violation and punishment. See Contempts. 
 
 of right 486 
 
 necessity for showing 486 
 
 Waiver of defects in pleadings ^^^ 
 
Genkual Indhx. 899 
 
 INJUNCTIONS— Co;tri»«erf. ^^^^' 
 
 Writ of 512 
 
 returnable, when ggg 
 
 return of service 512 
 
 security may be required before issue 504, 513 
 
 service of 512 
 
 should be framed in plain and fertain terms 513 
 
 terms of 512 
 
 when issued 513 
 
 INTERROGATORIES— 
 
 Annexed to bill when answer under oath is prayed, may be. . 24n. 
 
 waived 23 
 
 answers to, must be annexed to answer 23 
 
 effect of answers to 23 
 
 when answer is not full 23 
 
 may be excepted to 23 
 
 must be fully answered 23, 33n. 
 
 to be annexed to answer 83 
 
 answered under oath 23 
 
 Answers to, as evidence 390 
 
 contained in bill where answer under oath is 
 
 prayed 399 
 
 irresponsive — ^practice 23n. 
 
 Defendant, by 34 
 
 effect of failure of complainant to answer 34 
 
 evidence in the cause 34 
 
 exceptions to 35n. 
 
 costs on 35n. 
 
 master's report on, when filed 35n. 
 
 referred to master, to be 35n. 
 
 may exhibit to complainant after answering. ... 34 
 
 to be answered by complainant on oath 34 
 
 when filed and served 35n. 
 
 Exceptions to. See Exceptions to Pleadings. 
 IMPERTINENCE— 
 
 Allowance of objection for in discretion of- Court 184 
 
 Answers, in. See Answers. 
 
 Bill in 181 
 
 allegations affecting allowance of costs 183 
 
 of fact not supporting claim to relief 182 
 
 recitals in bill praying answer with oath 183 
 
 of deeds, records, etc 181, 183 
 
 test as to 182 
 
 Demurrer will not lie for 18* 
 
 Exceptions for 18* 
 
 practice on 18* 
 
 General rules governing Court 18* 
 
900 General Index. 
 
 Page. 
 JURY— 
 
 Submission of issues to. See Subtmssion of Issue to Jury. 
 JUDICIAL SALES— 
 
 Adjournments 606 
 
 duty of officer selling 606 
 
 judicial act, is not 607 
 
 notice of 607 
 
 ccfntents of 607 
 
 form of 607 
 
 publication of 607 
 
 power of officer selling 606 
 
 rest in discretion 606 
 
 Confirmation of sales 615 
 
 Court to confirm sale 77 
 
 be satisfied that best price obtained 
 
 before 77 
 
 foreclosure sales, in 615 
 
 objections to 615 
 
 failure to sell in parcels 622 
 
 inadequacy of price, for 616,617 
 
 irregularities of sale, for 617 
 
 advertisement, for.. . 617 
 
 office of 616 
 
 order of course 615 
 
 recitals of order 615 
 
 irregularity of advertisement does not prevent 617 
 
 officer directed to make deed 77 
 
 to report sale to Court 77 
 
 Conduct of sale 60S 
 
 conditions of sale 60S 
 
 discretionary power of officer 608 
 
 latitude of discretion 60S 
 
 exclusion of puffers 608 
 
 where bid claimed by several 609 
 
 Deed 77 
 
 officer to make 77 
 
 prima facie evidence of recitals contained therein.... 636 
 
 relates back to time of sale 635 
 
 title passes on delivery thereof 636 
 
 Deputy Sheriff, by, appointment must be in writing 607 
 
 Enforcement of against purchaser 611 
 
 action against purchaser, by 614 
 
 bill for specific performance, by 614 
 
 contempt proceedings, by 6ia 
 
 forfeiture of deposit, by 612 
 
 when enforced 612 
 
 power of Court 611 
 
General Index. 901 
 
 Page. 
 JUDICIAL SALES— Contitmed. 
 
 Freedom of competition as to bidding 610 
 
 agreement of several to make joint purchase 611 
 
 combination not to bid, effect of 611 
 
 contract to prevent competition invalidates sale. .. . 610 
 
 puffers, effect of bidding by 610 
 
 Nature of 611 
 
 Notice of sale 603 
 
 defect in does not invalidate sale 617 
 
 description of property 606 
 
 form and contents '. 605 
 
 master need not sign ._ 605 
 
 publication of 603 
 
 date of last publication 604 
 
 duration of 604 
 
 German paper, in 605 
 
 time fixed for sale 605 
 
 Officers authorized to make 607 
 
 Opening and setting aside. See Opening and Setting Aside 
 Judicial Sales. 
 
 Publication of notice of sale 603 
 
 date of last publication 604 
 
 duration of publication 604 
 
 German paper, in 605 
 
 Purchasers 610 
 
 deed to relate back to sale 635 
 
 forfeiture of deposit made by 612 
 
 property and rights acquired 633, 634 
 
 effect of dedication of property to 
 
 public use 633 
 
 mortgagee, by 634 
 
 purchaser iinder second mortgage. . . . 633 
 title co-extensive with description in 
 
 mortgage 635 
 
 regarded as parties to suit 613 
 
 right of to emblements 635 
 
 rights of 620 
 
 when title passes to 635 
 
 who may be 610 
 
 executors 610 
 
 persons occupying positions of 
 trust and confidence to mort- 
 gagor 610 
 
902 ' General Index. 
 
 Page. 
 JUDICIAL SALES— Continued. 
 
 Report of sale 615 
 
 evidence of sale for highest price required 615 
 
 foreclosure sales, in 615 
 
 evidence of sale for highest price 
 
 required 615 
 
 objections to report 615 
 
 office of objections 616 
 
 recitals of . report 615 
 
 requirement as to 615 
 
 scope of legislation 615 
 
 time for filing report 615 
 
 requirements as to 615 
 
 Sheriff authorized to complete sale after expiration of term 
 
 of office 608 
 
 Sale in parcels or in gross. See Foreclosure of Mortgages — 
 Decree — Sale of Mortgaged Premises. 
 
 control of discretion by Court 609 
 
 discretionary with officer 609 
 
 general rule as to 610 
 
 when discretion of officer will be interfered with 609 
 
 Statements at, by person claiming interest, effect of 611 
 
 LIFE ESTATES— 
 
 Surplus proceeds of sale of mortgaged premises, in, allow- 
 ance by consent of gross sum in lieu of 55, 56n. 
 
 investment of proceeds in absence of consent. ... 55, 56n. 
 LIS PENDENS— . 
 
 Amendment of pleadings, effect of 335 
 
 Bona fide purchasers only affected by filing 336 
 
 Discharge of 337 
 
 after termination of suit 337 
 
 on failure to prosecute cause 335 
 
 on payment of decree or settlement of suit. . . . 338 
 
 upon defendant giving security 338 
 
 Effect of filing 334, 335, 337 
 
 after decree 337 
 
 omitting to file 336 
 
 on time limited for taking appeals 339 
 
 Effective only after bill filed and subpoena issued 337 
 
 Foreclosure bill, does not apply to 334 
 
 Recitals in, necessary 334 
 
 Statutory provisions 334 
 
 Where filed 334 
 
 LUNATICS. See Idiots, Lunatics, and Drunkards. 
 
General Index. 908 
 
 Page. 
 
 MARRIED WOMEN. Defendants. See also Parties. 
 
 May be designated as "Mrs."' where Christian name unknown 10 
 
 Suits against, capacity to defend 126 
 
 by, incapable of maintaining at common law 126 
 
 under married women's acts 126 
 
 statute of 1912 127n. 
 
 MASTERS IN CHANCERY— 
 
 Advisory masters. See Advisory Masters. 
 
 Death of master ordered to sell lands — proceedings 49 
 
 Duty of under order of reference. See References. 
 
 Fees of, making reports, for 368 
 
 Moneys in master's hands 746 
 
 how deposited 746 
 
 statement of moneys in hands, may be required. . . . 747 
 
 when to be paid into Court 747 
 
 where deposited 746 
 
 Nature of office 354 
 
 Oath of office, to take 354 
 
 References to. See References. 
 Reports of. See References. 
 
 Responsibility of funds in hands 354 
 
 Special ihasters, what matters must be referred to 356 
 
 MISJOINDER OF CAUSES OF ACTION. See Multifarious- 
 ness. 
 MISJOINDER OF PARTIES— 
 
 Complainant 169 
 
 common interest in subject matter necessary 
 
 169, 170, 171, 172 
 
 common nuisance, in suit to restrain 173 
 
 deiined 173. 174 
 
 what constitutes 173, 174 
 
 general rules 169. 172 
 
 interest of complainants need not be co-exten- 
 sive 174 
 
 surety paying portion of principal's debt may 
 
 join with creditors to recover debt 172 
 
 what constitutes common interest in subject 
 
 matter of suit 170, 171 
 
 where complainant claims relief in several 
 
 capacities 172 
 
 Defendant 174 
 
 co-extensive common interest of' unnecessary. . 175 
 
 defined 174, 175 
 
 in cases of nuisance 175 
 
 joint claim against two, joined with separate 
 
 claim against one 175 
 
904 General Index. 
 
 Page. 
 
 MISJOINDER OF PARTmS—Contintted. 
 Defendant — Continued. 
 
 objection for, confined to cases where case of 
 each defendant is distinct from that of other 
 
 defendants 176 
 
 where bill unites several distinct matters against 
 
 several defendants 175 
 
 Objections, for 178 
 
 answer by 178 
 
 can only be made by iparty improperly joined. . . 179 
 
 demurrer, by 178 
 
 how waived 179, 180 
 
 method of raising 178 
 
 plea, by 178 
 
 raised by Court, may be 179 
 
 result if sustained 179 
 
 when waived 180 
 
 who may raise '. 179 
 
 MONEYS PAID INTO COURT— 
 
 Clerk to make annual statement of, to Chancellor 70 
 
 Deposited by clerk, to be 69 
 
 Chancellor to make rules concerning 69 
 
 where deposited 69 
 
 Interest allowed on 70n. 
 
 Investment of. United States securities, in 69 
 
 bonds and mortgages, in 70 
 
 Chancellor may appoint suitable person to super- 
 vise 71 
 
 other securities designated 70 
 
 MOTIONS— 
 
 Af5ftdavits, service of 475 
 
 use of on hearing of rule to show cause 476 
 
 Application to be made a party, notice of 474 
 
 Common and special rules defined 476 
 
 Contested, practice on 475 
 
 Costs on 760 
 
 occasioned by party's own fault 761 
 
 where party fails to move 760 
 
 Dissolve injunction, to, form of 535 
 
 grounds of motion, when required 537 
 
 notice of 524 
 
 Motion days 473 
 
 Motions must be noticed for 473 
 
 Notice of, motion day must be for 473 
 
 service of 474 
 
 acknowledgment of 475 
 
 Party in contempt, by 472 
 
 To strike out. See Motions to Strike Out Pleadings. 
 
General Index. 905 
 
 Page. 
 MOTIONS— C(w<»mterf. 
 
 Who may make 473 
 
 party in contempt 472 
 
 only party can make 472 
 
 purchaser at foreclosure sale regarded as party 612 
 
 MOTIONS TO STRIKE OUT PLEADINGS— 
 
 Answer 391 
 
 allegations of title in suit to quiet title 329 
 
 defendant bound by title set up in 232 
 
 equivalent to exceptions 291 
 
 governed by rules applicable to exceptions , . . . 393 
 
 must be made within time for filing exceptions... 391 
 on ground that it does not disclose equitable 
 
 defense unwarranted 291 
 
 when will not be stricken out 292 
 
 Bill of complaint 288 
 
 admits well pleaded facts 289 
 
 after answer filed 388 
 
 demurrer overruled 288 
 
 in effect a demurrer to bill 288 
 
 limited to defects appearing on face of bill 289 
 
 non-joinder of parties defendant 134 
 
 on ground of laches 389 
 
 Cross bill 389 
 
 effect of 389 
 
 Demurrer cannot be stricken out on motion 389 
 
 causes of demurrer unwarranted 390 
 
 frivolous demurrer 290 
 
 in lieu of, is 387 
 
 Exceptions, in lieu of, is 387 
 
 Frivolous plea or demurrer 387, 390 
 
 when granted 287, 290 
 
 Nature of 387 
 
 Notice of motion 388 
 
 grounds of objection must be stated in 288 
 
 service of 287 
 
 Objections to pleadings may be adjudicated upon 287 
 
 Plea, cannot be stricken out on motion 291 
 
 frivolous, may be 287,390 
 
 Specification of causes of demurrer, to, unwarranted 390 
 
 Time limited for making ; 388 
 
 Who may make 473 
 
 only party can make 472 
 
 party in contempt by 473 
 
 purchaser at foreclosure sale regarded as party 612 
 
906 General Index. 
 
 MORTGAGES— 
 
 Assignment of 555 
 
 assignee takes subject to equities between mort- 
 gagor and mortgagee 555 
 
 seal unnecessary 556 
 
 Foreclosure of. See Foreclosure of Mortgages. 
 
 Mortgagee, remedies of prior to act of 1880 539 
 
 foreclosure necessary before proceeding on bond 540 
 
 suit on bond, limitation of time for bringing. . . 540 
 
 under act of 1880 540 
 
 Nature of, at common law 539 
 
 under modern rules 539 
 
 Redemption of. See Redemption of Mortgages. 
 MULTIFARIOUSNESS— 
 
 Bill for accounting, in. See Bill for Accounting. 
 Bill for partition, in. See Partition. 
 
 Misjoinder of causes 164 
 
 alternative prayers 165- 
 
 defined 164 
 
 joint claim against two defendants joined with 
 
 separate claim against one 165 
 
 of cause for relief with inequitable claim 169 
 
 causes springing from same subject matter 
 
 166, 167, 168 
 several distinct causes which, together make 
 
 up complainant's right to relief 166, 167, 168 
 
 rules as to what constitutes 164 
 
 several reliefs prayed inconsistent with each 
 
 other 165 
 
 Misjoinder of parties. See Misjoinder of Parties. 
 
 Obj ections for 178 
 
 answer, by 178 
 
 demurrer, by 178 
 
 how waived 179, 180 
 
 method of raising 178 
 
 plea, by 178 
 
 raised by Court, may be 179 
 
 result if susta'.ned 179 
 
 when waived 180 
 
 who may raise 179 
 
 Rule of convenience, a 163 
 
 NEXT FRIEND. See Infants. 
 
General Index. 907 
 
 Page. 
 
 NE EXEAT— 
 
 Advisory master at Trenton may sign writ 803 
 
 Amount of bond to be endorsed on writ 8 
 
 Application for writ 349 
 
 advisory master at Trenton, to 803 
 
 affidavits upon, sufficiency of 349 
 
 after bill filed 349 
 
 must show sum due complainant 350 
 
 that defendant intends to go abroad. 350 
 
 verified, must be 349 
 
 what must be shown upon 349, 350 
 
 Bond for appearance 351 
 
 amount of securities 351 
 
 condition 351, 353 
 
 prosecution of 352 
 
 Discharge of writ 353 
 
 affidavits may be read in support of and against 
 
 motion 352 
 
 defendant entitled to benefit of sworn answer 
 
 on application 353 
 
 grounds for 352, 353 
 
 motion for- 352 
 
 upon giving bond to answer decree 353 
 
 Form of writ '. 351 
 
 Nature of writ 349 
 
 Service of writ on Sunday 351 
 
 Subpoena unnecessary 351 
 
 When writ will issue 8, 349, 350 
 
 defendant must owe equitable debt or duty to com- 
 plainant 350 
 
 non-resident temporarily in this State 350 
 
 rests in discretion 351 
 
 threats to go abroad, when sufficient 350 
 
 Writ returnable, when . . .^ 802 
 
 OPENING, AMENDING AND VACATING DECREES— 
 
 Absent defendant, against 21 
 
 costs 21 
 
 relief discretionary 23n. 
 
 terms upon which Court will open '. 21 
 
 when application must be made 21 
 
 Amendment of decrees 436 
 
 court of appeals cannot amend decree below. . 438 
 
 power of Court 436 
 
 to effectuate intention of Court in making decree 436 
 
 upon Court's own motion 437 
 
 when permitted 436 
 
908 General Index. 
 
 Page. 
 OPENING, AMENDING AND VACATING DEGREES— Contitmed. 
 
 Appeal 451 
 
 Application for, when may be made 438, 439 
 
 Bill of review, by. See Bill of Review. 
 
 Caveat against enrolling, effect of 450 
 
 Costs 451 
 
 Decree advised by Vice-Chancellor 450 
 
 application should be to Vice-Chancellor 450 
 
 practice upon 451 
 
 when entertained by Chancellor 450 
 
 Decrees pro confesso 443 
 
 affidavit required 450 
 
 defendant musfe set up defense 446 
 
 defense must be equitable 448 
 
 effect of laches 445, 446, 448 
 
 grounds for opening 444 
 
 not necessary to satisfy Court that 
 
 defense will be successful 444 
 
 mistake or error of counsel 448 
 
 rests in discretion 443 
 
 surprise 447 
 
 Effect of order for rehearing as stay 450 
 
 Enrollment, after 438, 439 
 
 Hearing on application 449 
 
 opening and replying • 450 
 
 Notice of application 449 
 
 Petition, application should be by 449 
 
 recitals of 449 
 
 in application to vacate default decree.... 450 
 
 service of 449 
 
 signature of 449 
 
 time for presenting 449 
 
 Principles controlling Court 438 
 
 Proceedings to open decrees 438 
 
 after enrollment 438, 439 
 
 principles controlling Court 438 
 
 when application may be made 438, 439 
 
 OPENING AND, SETTING ASIDE JUDICIAL SALES— 
 
 Appeal lies from order refusing 619 
 
 Application for 618 
 
 creditors of deceased party in interest. 618 
 
 effect of laches 618 
 
 in making 619 
 
 material facts must be proved 631 
 
 mortgagor assigning for benefit of creditors. . 618 
 
 must be by party to suit 618 
 
General Index. 909 
 
 Paee. 
 OPENING AND SETTING ASIDE JUDICIAL SALES— Contimed. 
 Application for — Contdnued. 
 
 opposing confirmation, by 615 
 
 parties to 630, 632 
 
 petition in original suit, by 630 
 
 iproceedings 631 
 
 purchaser at sale, by 618 
 
 time for making 619 
 
 who may make 618, 630 
 
 Circumstances discouraging competition 637 
 
 statements at sale by persons in interest 628 
 
 Defects and irregularities of sale 622 
 
 in notice of sale • 633, 634 
 
 failure to sell in parcels 633 
 
 refusal to adjourn sale for 623 
 
 unjust conditions of sale 634 
 
 when available on application to set aside sale. 631,633 
 
 Encumbrances, existence of, for 619 
 
 statutory provisions 631 
 
 effect of statute 622 
 
 object of statute 631 
 
 Fraud for , 634 
 
 representations as to encumbrances 634 
 
 Grounds, in general 619 
 
 Inadequacy of price 629 
 
 general rules 639 
 
 mere inadequacy of price insufficient 629 
 
 security that higher price will be obtained 
 
 required 617, 630 
 
 specific instances 616, 639 
 
 Mistake, surprise or want of notice 635 
 
 lack of notice from inability to read 620 
 
 neglect of counsel 626 
 
 owner misled by purchaser 625 
 
 surprise, what constitutes .'. 626, 627 
 
 where misapprehension as to time of sale is cor- 
 rected 636 
 
 Mortgagee purchaser, when 631 
 
 application regarded with more indulgence 631 
 
 Parties 630, 631, 633 
 
 Power and authority of Court 619 
 
 rests in discretion , 619 
 
 Proof required 631 
 
 material facts of petition must be proved 631 
 
910 General Index. 
 
 Page. 
 PARTIES— 
 
 Absent defendants. See Absent Defendants. 
 
 Account in suits for 105, 177 
 
 all persons interested necessary 105 
 
 by and against partners 106, 177 
 
 sureties on bond proper 105 
 
 Administration suits, in 106 
 
 all persons interested in residuum necessary 106 
 heirs, next of kin and creditors cannot main- 
 tain 107 
 
 must be brought by personal representatives 106 
 
 Admission of new parties 32 
 
 before or after decree 33 
 
 cause not to be delayed by proceedings 32 
 
 in foreclosure suits. See Foreclosure — Parties. 
 
 persons acquiring interest after bill filed 32 
 
 added as parties bound by proceedings. . 32 
 
 petition in cause, by 32 
 
 form of 32 
 
 notice of application 32 
 
 service of petition and notice.... 32, 33n, 474 
 
 verified, to be 32 
 
 service of notice of application 32, 33n. 
 
 supplemental bill not necessary 32 
 
 who may be admitted 33n, 33n. 
 
 Agent contracting in own name on behalf of principal 102 
 
 All persons interested necessary 91, 103 
 
 a rule of convenience 97 
 
 exceptions to rule 97 
 
 persons interested in part of suit only 103 
 
 without interest should not be lOO, 101 
 
 exceptions to rule 101, 102 
 
 where presence necessary for protection of 
 
 other parties 102 
 
 in interest should stand on same side of suit. . 99 
 on refusal to be, complainants may be 
 
 joined as defendants 99 
 
 where there are conflicting interests 99 
 Assignees. See Assignees for Benefit of Creditors. 
 
 Assignee of debtor in creditor's suit for discovery 97 
 
 Assignor, purchaser assigning interest in contract a proper 
 
 party to suit for specific performance 103 
 
 judgment, of, proper party to suit to foreclose 
 
 mortgage 103 
 
 Bailee of property sought to be recovered a necessary 96 
 
General Index. 911 
 
 Page. 
 FARTl'ES—Contifmed. 
 
 Bill for discovery in aid of execution at law. See Discovery 
 in Aid of Execution at Law. 
 
 of revivor, to 243 
 
 to quiet title, to. See Bill to Quiet Title. 
 
 Cestuis que trustent 114 
 
 necessary, when 114 
 
 construction of will in suits involving. . 115 
 
 exceptions to general rule 115 
 
 when rights between are not 
 
 involved 115 
 
 foreclosure of mortgage made to trustee. 
 See Foreclosure of Mortgages. 
 
 in suits involving trust estate 114 
 
 unnecessary, when 116 
 
 suits against trustee to enforce 
 
 his contract 116 
 
 where cestuis are very numerous.... 116 
 rights between trustee and 
 
 cestuis not involved 98, 115, 116 
 
 Co-executors 112 
 
 death of one of, in case of 112 
 
 joined in suits respecting estate, should be... 112 
 
 where one refuses to join. 112 
 
 Complainant 119 
 
 all persons except those under disability may 
 
 maintain suit 119 
 
 description of in bill. See Bill of Complaint. 
 
 foreign corporations 119 
 
 non-residents 119 
 
 Construction of will, in suits affecting Ill 
 
 Corporations as. See Corporations. , 
 
 Creditors, cannot maintain action to recover unadministered 
 
 assets of deceased debtor 107 
 
 in suits by or against personal representatives of 
 
 deceased debtor 98 
 
 in suits to set aside fraudulent conveyance 102 
 
 when necessary parties 98, 101 
 
 Cross bill, to. See Cross Bill. 
 Defendants. See also Joinder of Parties. 
 
 absent, see Absent Defendcmts. 
 
 all persons sui juris may be 119 
 
 foreign corporations 119 
 
 married women 126 
 
 when necessary to join hus- 
 
 .band in suits against 126 
 
 where Christian name un- 
 known may be designated 
 as "Mrs." 10 
 
912 General Index. 
 
 Page. 
 PARTIES— CowfJMwrf. 
 Defendants — Continued. 
 
 misjoinder of. (See also Misjoinder of Parties) 174 
 persons properly complainant refusing to join 
 
 may be joined as defendants 99 
 
 unknown whether living or dead, bound by 
 
 decree 11 
 
 method of proceeding against 10 
 
 proceedings do not apply to suit to 
 
 quiet title lln. 
 
 where there are conflicting interests 99 
 
 Description of in bill. See Bill of Complaint. 
 
 Distributees, in suits by or against personal representatives. 98 
 
 Executors and administrators -. 106 
 
 co-executors should be joined 112 
 
 in suits respecting funds in hands, are only neces- 
 sary 106 
 
 joint debtor of 96 
 
 where obligation is joint and several 96 
 
 non-resident, when may bring suit 119 
 
 necessary, when 105 
 
 deceased mortgagor, of, not necessary 
 
 to suit to foreclose 110 
 
 in suits affecting realty while estate 
 
 unsettled 109, 110 
 
 by and against 98 
 
 suit by heir at law for specific per- 
 formance of contract to con- 
 vey to ancestor 107 
 
 by heirs at law to recover fund 
 
 claimed to be real estate. 107 
 
 suits to appoint new trustee 118 
 
 suit to enforce contract of decedent 
 making gift of all estate at his 
 
 death 108 
 
 to recover fund held in trust 
 
 for deceased lunatic 107 
 
 where estate settled but undistributed 109 
 may be required to perform 
 
 some act 106 
 
 personal estate affected 106, 108, 109 
 they represent parties in inter- 
 est 98 
 
 non-resident, when may bring suit. . . . 106 
 unnecessary, when after settlement of 
 
 estate 108 
 
 debts are all paid 
 and all parties 
 are before the 
 
 Court 108 
 
 where one executor neglects or refuses 
 
 to join 112 
 
General Index.' 913 
 
 ' Page. 
 PARTIES— Cowriiw^rf. 
 
 Formal or proper 103 
 
 defined .,..'. 91,103 
 
 joinder of discretionary with Court 104 
 
 not ground of demurrer 104 
 
 Foreclosure suits, in. See Foreclosure of Mortgages. 
 
 Fraud doers, not necessary to join all 96 
 
 Fraudulent conveyances, in suits to set aside 93 
 
 all persons participating in fraud proper 102 
 
 creditors 102 
 
 having no lien not necessary 94 
 
 debtor a necessary 93 
 
 grantees of portion of property fraudulently con- 
 veyed 103 
 
 judgment creditors of debtor '. 94 
 
 persons participating in making the fraudulent 
 
 conveyance necessary 93 
 
 where fraudulent grantor is dead 94 
 
 Heirs and devisees 113 
 
 necessary, when specific performance suits, to '. 113 
 
 to suits respecting lands descended or 
 
 devised 113 
 
 to recover legacy or debt charged 
 
 upon lands 113 
 
 where proof of will involved... 113 
 cannot maintain suit to recover debts or tuiad- 
 
 ministered assets 107 
 
 construction of will, in suit for 104 
 
 may maintain bill for specific performance of con- 
 tract to convey to ancestor 107 
 
 necessary to suits to appoint new trustee 118 
 
 Husband of married woman defendant 136 
 
 necessary, when 128 
 
 proper, when 128 
 
 Idiots and lunatics. See Idiots and Lunatics. 
 Infant. See Infants. 
 Injunction suits, to. See Injunctions. 
 Interpleader bill, to. See Bill of Interpleader. 
 Joinder of. See Misjoinder of Parties. \ 
 
 complainants 169 
 
 conflicting interests not to be joined' on same 
 
 side of suit . .' 99 
 
 defendants 174 
 
 fraud doers 96 
 
 persons not to be affected by decree unneces- 
 sary 95,100,101 
 
 who will be required by decree to per- 
 form some act, necessary 96 
 
914 General Index. 
 
 Page. 
 PARTIES— Continued. 
 Joinder of — Continued. 
 
 proper parties ' 103 
 
 discretionary with Court 104 
 
 not ground for demurrer 104 
 
 where parties are very numerous 97 
 
 party is without the jurisdiction 97 
 
 Joint debtors, representatives of deceased necessary 96 
 
 where obligation is joint and several 96 
 
 obligation or liability, in suits to enforce 95 
 
 Legatees, in suits by or against personal representatives. ... 98 
 may be admitted to defend suit against executor or 
 administrator where he is not in position to 
 
 defend Ill 
 
 residuary, unnecessary to suit by legatee entitled 
 
 to priority of payment 101 
 
 who have assigned interests. 100 
 
 Married women. See Married Women. 
 Misjoinder of. See Misjoinder of Parties. 
 
 Multiplication of to be avoided 100 
 
 Nature of interest requisite to make owner thereof necessary 
 
 party 93 
 
 in part of suit only 103 
 
 persons without interest but who may be required 
 
 to perform some act, necessary 96 
 
 owners of interests in expectancy 94 
 
 representation, doctrine of 98 
 
 where necessary for protection of other parties. . 102 
 
 Necessary defined 91 
 
 Next of kin, cannot maintain suit to recover debts or unad- 
 
 ministered assets 107 
 
 may be admitted to defend suit against execu- 
 tor or administrator where he is not in a 
 
 position to defend Ill 
 
 Non-joinder of necessary 134 
 
 ground for dissolution of injunction 522 
 
 objections for, amendment of pleadings, after 134 
 
 answer, by 135 
 
 demurrer, by 134, 270, 283 
 
 hearing, may be taken at... 135,136 
 
 how taken 134 
 
 may be raised by Court 136 
 
 motion to strike out, by 134 
 
 plea, by 135 
 
 when may be taken 135, 136 
 
 that person joined on wrong 
 side of suit, is question of 
 
 form 99 
 
 misjoinder for. See Misjoinder 
 of Parties. 
 
Gbneiial Index. 015 
 
 Page. 
 F ARTIES— Continued. 
 
 Officer conducting judicial sale only necessary complainant 
 
 to bill against purchaser '. 98 
 
 Partnership, in suits against 95 
 
 property, in suits relating to 177 
 
 Proper , 103 
 
 defined 91, 103 
 
 joinder of discretionary with Court 104 
 
 not ground for demurrer 104 
 
 Receivers of insolvent corporations. See Receivers. 
 
 Representation by 98 
 
 Specific performance, in suits for 93 
 
 Supplemental bills, to. See- Supplemental Bills. 
 Sureties, in suit against principal, proper but not necessary. . 105 
 administrator's bond, on, in suit against adminis- 
 trator , 106 
 
 Trustees 114 
 
 bill must correctly describe 143 
 
 co-trustees should be joined 117 
 
 deg.th of sole surviving, devolution of trust upon. . 118 
 
 necessary, when ^ 114 
 
 and cestuis que trustent, necessary parties, when. . 114 
 
 Tenants in common, in suits against 95 
 
 Will, proof of, heirs and devisees necessary parties to 113 
 
 PARTITION— 
 
 Accounting in 677 
 
 rents and profits, for 677, 678 
 
 use and occupation, for 677, 678 
 
 Agreements not to, valid 669 
 
 Answer 675 
 
 necessary recitals of 675 
 
 practice when filed 685 . 
 
 when answer raises no defense 685 
 
 Bill of complaint 674 
 
 general rule 674 
 
 multifarious (.see also Multifariousness), including 
 
 an equitable question of title not 168 
 
 seeking account of tenant in possession, not. . . . 168 
 
 prayer for relief 674, 675 
 
 recitals of bill 674 
 
 Commission, number of 687 
 
 . order appointing 687 
 
 oath of office by commissioners 688 
 
 when appointed 687 
 
91G ■ General Index. 
 
 Page. 
 PARTITION— Co»ri»M^d. 
 
 Commissioners, compensation of 692 
 
 procedure when parties desire to enjoy 
 
 shares in common- 691 
 
 recording map and report of 693 
 
 report of 688 
 
 objections to, how taken 689 
 
 when Court will interfere 690 
 
 Courts having jurisdiction 662 
 
 origin of jurisdiction of chancery 662 
 
 Creditors 672 
 
 eflfect of, upon claims of 672 
 
 may be admitted as parties 693 
 
 proper but not necessary parties. . . .* 672 
 
 Creditors of decedent, right of to object within one year of 
 
 death 663 
 
 sale free from liens, of 697 
 
 Curtesy 696 
 
 sale free from 696 
 
 distribution of proceeds of sale 704, 705, 709 
 
 notice of application for 696 
 
 payment of gross sum in lieu of 706, 707 
 
 method of ascertaining 706, 707, 708 
 
 reference to ascertain value 708 
 
 waiver of notice 696 
 
 Decree for sale 695 
 
 Defined 662 
 
 Defendant's pleadings 675 
 
 Dower 696 
 
 inchoate rights of may be ordered sold 696 
 
 sale free from 696 
 
 compensation to doweress 706 
 
 distribution of proceeds of sale 704, 705 
 
 investment of proceeds 709 
 
 method of ascertaining 706, 708 
 
 notice of application for decree for 696 
 
 payment of gross sum in lieu of 706 
 
 reference to master to ascertain 708 
 
 waiver of notice 697 
 
 where widow dies after sale 707 
 
 Dowress, cannot maintain gg4 
 
 Estates subject to ; 662 
 
 community of interest necessary 662 
 
 dower rights in whole property, in case of 664 
 
 estates by the entirety 664 
 
 eflfect of divorce 664 
 
 where either husband or wife conveys estate 664 
 
General Index. 917 
 
 Page. 
 
 PARTITION— CoHhW^rf. 
 
 Estates subject to — Continued. 
 
 nature of co-tenancy 663 
 
 trust estates 668 
 
 where lands are limited over ' 665, 666 
 
 Fees and costs 711 
 
 commissioner's fees 713 
 
 counsel's fees 711 
 
 master's fees 712 
 
 search fees 711,712 
 
 where actual partition is had 711, 712 
 
 estate of dower or curtesy is sold 713 
 
 Injunction 681 
 
 to prevent interference with possession 683 
 
 to restrain waste 681 
 
 when allowed 681 
 
 Improvements by co-tenant, allowances for 680 
 
 Lands limited over, of 665, 666 
 
 eflfect of statute 666 
 
 essential jurisdictional facts 667 
 
 sale of lands 666, 699 
 
 service of process 666 
 
 when consent of particular tenant necessary 667 
 
 Lis pendens , 674 
 
 Married women, distribution of proceeds of sale to 703 
 
 share of how stated in master's report. . . . 686 
 
 Master's report 686 
 
 as to share of married woman 687 
 
 no exception will lie to, after decree pro 
 
 conf esso 362 
 
 objections to, how taken 687 
 
 what to contain 686 
 
 when to be filed 687 
 
 Order of reference 362 
 
 master not to be nominated by party 356 
 
 notice of application for 362 
 
 specific instructions in 355 
 
 when answer raises no defence 685 
 
 when decree pro confesso taken 685 
 
 Owelty, when allowed 689 
 
 Parties. See also Parties. ' 
 
 creditors may be admitted as 693 
 
 trustee of land sought to be partitioned necessary. 114 
 
 defendant 671 
 
 absent, process against 673 
 
 creditors 672 
 
 may be admitted as 693 
 
918 General Index. 
 
 Page. 
 PARTmon^^ontimed. 
 Parties — Continued. 
 
 dowress 672 
 
 encumbrancers .' 673, 673 
 
 ■• co-tenants of 673 
 
 executors and administrators 672 
 
 general rule 671 
 
 pleadings of 675 
 
 trustees and cestuis que trustent 671 
 
 unknown, process against 673 
 
 where co-parcener is presumed to be dead 672 
 
 Payment of proceeds of sale into Court, when ordered 699 
 
 Plea, issue raised by 675 
 
 Preservation of property, proceedings for 681 
 
 appointment of receiver 683 
 
 injunction by 681 
 
 to prevent interference with possession 683 
 
 waste 681 
 
 Proceeds of sale 702 
 
 compensation to dowress or tenant by curtesy. . . . 706 
 method of ascertaining. . . . 706, 707, 708 
 
 payment of gross sura in lieu of . . . 706 
 
 reference to ascertain value 708 
 
 conflict of law 703 
 
 disposition of, where person entitled is un- 
 known 709, 710 
 
 distribution of in general 703 
 
 inchoate dower right, in case of sale of 704, 705 
 
 investment of proceeds 709 
 
 judgments, payment of from 704 
 
 married woman, to 703 
 
 payment of to executor or administrator 57 
 
 executor or administrator to give 
 
 bond 57, 59n. 
 
 notice and service of petition. . . . 58n. 
 
 petition, recitals to contain 57n. 
 
 proof before master 58n. 59n. 
 
 one of two executors or adminis- 
 trators may apply 58n. 
 
 reference and report 58n. 
 
 where so-tenant dies after sale 702 
 
 Procedure when parties desire to enjoy shares in common. . 691 
 
 Process gY3 
 
 unknown parties, against 673 
 
 Prosecution of suit, neglect of complainant, proceedings 687 
 
 References to special master, must be to 356 
 
 master reporting on partition not to make sale 695 
 
General Index. 919 
 
 Page. 
 
 PARTITION^^on.*J»M«e(i. 
 
 Receiver, when appointed 682 
 
 Relief granted incidental to 676 
 
 accounting 677 
 
 rents and profits, for 677, 678 
 
 use and occupation, for 677, 678 
 
 general rules 676 
 
 proceedings to preserve the property 681 
 
 receiver, appointment of 683 
 
 removal of cloud from title 676 
 
 respecting improvements by co-tenant 679,680 
 
 good faith required 680 
 
 waste by co-tenants, against 681 
 
 Sale of lands 693 
 
 advertisement of sale. See Judicial Sales. 
 confirmation of sale. Court to be satisfied that best price 
 
 obtained before 77 
 
 court to confirm 77 
 
 officer directed to make deed 77 
 
 to report sale to Court 77 
 
 requirement as to 701 
 
 when Court will refuse 701 
 
 conduct of sale 700 
 
 conveyance by master 701 
 
 Court to order 701 
 
 effect of 702 
 
 recorded, may be 702 
 
 death of master, proceedings in case of 49 
 
 estate less than fee, of 694 
 
 free from dower or curtesy 696 
 
 notice of application for decree for 696 
 
 waiver of notice 697 
 
 from lien of ancestor's debts 698 
 
 inchoate rights of dower, of 696 
 
 jurisdiction to order 693 
 
 lands limited over, where 666, 699 
 
 master must not be clerk in office or connected in 
 
 business with solicitor of either party 356 
 
 proceedings to collect bid 700 
 
 report of sale 701 
 
 sale of undivided share 699 
 
 undivided shares limited over, when 698 
 
 sale directed by will 669 
 
 Search fees, abstract of search to be filed 75n. 
 
 what to contain 75n. 
 
 allowed for searches from date of creation of 
 
 co-tenancy only 76n. 
 
 taxed as part of costs 75 
 
920 GENERAL Index. 
 
 Page. 
 
 PARTITIONL-CoMfiMwrf. 
 
 Title to land disputed, practice when 683, 684 
 
 what constitutes disputed title 683 
 
 Trust estates, of 668 
 
 Waste by co-tenants, accounting for 681 
 
 injunction to restrain 681 
 
 Who may maintain 669 
 
 co-tenancy essential 669 
 
 executors and administrators 670 
 
 in general 669 
 
 mortgagees 669 
 
 owner of equitable title 670 
 
 trustees 670 
 
 PLEAS— 
 
 Affidavit to be annexed to • 26, 252 
 
 effect of failure to annex affidavit 26, 252 
 
 overruled, in case of absence of 252 
 
 Allowance of 264 
 
 costs 265 
 
 result on 265 
 
 Allowed, when, costs, when 28 
 
 jurisdiction, to, result when 253 
 
 practice when 28 
 
 time for answer 28 
 
 Amendment of, when permitted 332 
 
 Anomalous pleas 251 
 
 defined 248, 251 
 
 require support by answer ' 251 
 
 when proper 252 
 
 Another suit pending, of 256 
 
 action at law no bar to suit in equity 256 
 
 in foreign state no bar 256 
 
 complainant may reply or show that both suits are 
 
 not for same matter 258 
 
 plea must set up that second suit is for same subject 
 
 as firsts 257 
 
 practice 258 
 
 relief afforded upon . 258 
 
 sufficiency of plea 356 
 
 what plea should set up 256, 257 
 
 Argument of, by whom heard 802 
 
 effect of failure to take advantage of neglect to ^ 
 
 notice 34n 
 
 either party may bring on 381 
 
 notice of 802 
 
 rule setting down for, a common rule 30n. 
 
 service of notice 24n. 
 
General Index. 921 
 
 Page. 
 PLEAS — Continued. 
 
 Bona fide purchaser, in bar of discovery and relief 250 
 
 necessary averments of 350 
 
 Certificate of counsel to be annexed to 36, 353 
 
 effect of failure to annex certificate 36, 352 
 
 overruled, in case of absence of 252 
 
 Classification of pleas 348 
 
 Costs, when allowed , 38 
 
 plea allowed, when 265 
 
 overruled, when 266 
 
 Depositions for use on hearing — method of taking. See 
 fitnesses. 
 
 Essentials and requisites of 248 
 
 Filing * 24 
 
 demurrer overruled — after 28n. 
 
 extension of time for 25n. 
 
 out of time — practice 35n. 
 
 time for 24 
 
 when last day for falls on holiday 25n. 
 
 Frame of , 350 
 
 averments must be direct 351 
 
 must aver all facts necessary to raise equitable 
 
 defense 250 
 
 Frivolous, may be stricken out on motion 263, 287, 290 
 
 Function of 348 
 
 Hearing 263 
 
 burden of proof 263 
 
 how brought on 802 
 
 notice of — service 802 
 
 questions considered upon 365 
 
 result of allowance 364 
 
 testimony, how taken 263 
 
 when validity of plea is attacked 262 
 
 questions considered upon 262 
 
 Jurisdiction, to the 353 
 
 defined 253 
 
 jurisdiction of subject matter and of parties dis- 
 tinguished 353 
 
 non-service of process as ground of 353 
 
 result when plea of found good 353 
 
 waiver of objection as to jurisdiction 256 
 
 when proper " 253 
 
 Multifariousness, for, when proper 178 
 
 Nature of .' 248 
 
 One only permitted to same part of bill without leave 348 
 
 waiver of objection 248 
 
922 General Index. 
 
 Page. 
 
 PLEAS — Continued. 
 
 Overruled by answer, when 249 
 
 exception in case of anomalous pleas 351 
 
 same defense cannot be set up by both plea and 
 
 answer 249 
 
 when 265 
 
 answer, time for 28, 265 
 
 costs 266 
 
 no plea thereafter received 365 
 
 practice ". 28 
 
 result 365 
 
 Practice, when complainant, conceives plea to be bad 262 
 
 hearing substantially as if complainant had 
 
 demurred to plea 262 
 
 niay move to strike out 262 
 
 plea to be set down for hearing 262 
 
 Practice, when complainant conceives plea to be good but not 
 
 true 263 
 
 argument of 263 
 
 reply to plea 263 
 
 testimony, how taken 263 
 
 Pure pleas defined 248 
 
 Reply to 37 
 
 effect of 363, 364 
 
 practice on 27 
 
 testimony, how taken 263 
 
 withdrawal of, when permitted 256 
 
 when proper 263 
 
 Service of process, to, how taken 253 
 
 Single, must be 248 
 
 reduce case to single point 248 
 
 Statute of limitations, of 258 
 
 answer, when should accompany 261 
 
 in suits involving equitable rights 159, 160 
 
 valid defence as to legal rights 259 
 
 waived if not pleaded 259 
 
 frauds, of 261 
 
 waived if not pleaded 261 
 
 Testimony in support of, how taken 363 
 
 To portion of bill answered or demurred to, not permitted. . 24a 
 
 Usury, of, must state facts of bargain 250 
 
General Index. 923 
 
 Page. 
 PLEADINGS— 
 
 Endorsements upon, address of complainant or defendant 
 
 appearing pro se . . .' 162 
 
 contents of 161 
 
 name of iifst complainant and defendant.... 161 
 
 solicitor \ 161 
 
 office address of solicitor 162 
 
 shall not occupy more than one-half of cover 161 
 
 Enrollment of by clerk 41 
 
 not to be made on dismissal by consent 42 
 
 signed by Chancellor, to be 41 
 
 successor of Chancellor, may be signed by 43 
 
 clerk, by 43 
 
 what enrollment to contain 41 
 
 when to be enrolled 41n, 42 
 
 Filing, answer 24 
 
 after plea overruled 31 
 
 frivolous demurrer overruled 25 
 
 exceptions to 29 
 
 bill, not to be filed before subpoena issued 2, 2n. 
 
 extension of time for 25n. 
 
 after frivolous demurrer overruled 25 
 
 by consent 26n. 
 
 defendant restricted to equitable defense. . . 25n. 
 
 notice of motion for 474 
 
 service of affidavits for use on application 
 
 for 475 
 
 notice to be taken of 68, 474 
 
 plea or demurrer 24 
 
 reply, to plea 27 
 
 Paper to be used, character of 162 
 
 Printing pleadings, when necessary 37 
 
 Chancellor may order, evidence to be printed if over 
 
 120 folios 39n. 
 
 expense of taxed as costs 37, 39n. 
 
 form of printed record 39n. 
 
 pleadings and evidence print- 
 ed 37 
 
 Typewritten, black record ribbon to be used 162 
 
 PRAYER FOR RELIEF— 
 
 Alternative prayer 157 
 
 bill cannot contain two inconsistent states of 
 
 fact and pray alternative relief 158,165 
 
 nature and function 157 
 
 proper where complainant in doubt as to appro- 
 priate relief 157, 165 
 
924 General Index. 
 
 Page. 
 PRAYER FOR RELIEF— Continued. 
 
 General relief, for 153 
 
 importance of . ., 153 
 
 relief afforded under 154, 155 
 
 must be consistent with that specially prayed 
 
 155, 165 
 
 only that to which complainant is entitled 
 
 on case made by bill 155, 156 
 
 where complainant does not pray special reilef 154 
 bill shows complainant entitled to 
 
 relief at law 155 
 
 complainant not entitled to special 
 
 relief prayed 153 
 
 should contain any tender or offer complainant 
 
 bound to make 157 
 
 Injunction bill, in. See Injunctions. 
 
 No relief beyond that prayed for decreed 433 
 
 Nature and function 151 
 
 should name persons against whom relief is prayed 152 
 
 Special relief for 152 
 
 must embrace all relief to which complainant shows 
 
 a right 152 
 
 nature and function 152, 153 
 
 relief given under 153 
 
 prayed must conform to allegations of bill. . 153 
 
 several prayers for must be consistent 165 
 
 species of relief may be prayed 169 
 
 PROCESS— 
 
 Absent defendants, against. See Absent Defendants. 
 Appearance, for. See Subpoena ad Respondendum. 
 Bill for injunction, in. See Injunctions. 
 
 of revivor, on filing 243 
 
 Endorsed with name of solicitor or party before service 
 
 —to be 3 
 
 Form of to be prescribed by rule 3 
 
 Issued by solicitor or clerk, to be 3 
 
 Issuance before bill filed forbidden. . .' 2 
 
 Names of defendants resident in same county to be inserted 
 
 in one 3 
 
 Service (see also Subpoena ad Respondendum), objections 
 
 that process not served, how taken 253 
 
 Signed and sealed by clerk, to be 3 
 
 Ticket. See Ticket. 
 
 Unknown heirs etc., against 226 
 
Genbeal Index. 925 
 
 Page. 
 RECEIVERS— 
 
 Foreclosure of mortgage, appointed in, proceedings for. See 
 Foreclosure of Mortgages. 
 
 Insolvent corporations, of 130 
 
 effect of appointment of on suits pending against. 130 
 
 jurisdiction of 131 
 
 receiver of foreign corporation, to. 
 
 maintain suit in this State 131 
 
 right of to bring suit in foreign State 131 
 
 may be substituted as defendant in pending suit.. . 130 
 
 necessary party defendant, when 130 
 
 power of to bring suits 130 
 
 property of corporation vested in 130 
 
 suit by, not to bring without authority of Court 131 
 
 substitution of as party defendant 130 
 
 Partition proceedings, appointed in. See Partition. 
 REDEMPTION OF MORTGAGES— 
 
 Accounting by mortgagee in possession '. . . 658 
 
 credits to which he is entitled 658 
 
 deed by way of mortgage, under 659 
 
 duty of to account for profits 658, 659 
 
 waste, for 659 
 
 where mortgagee refuses to enter 659 
 
 Admission by defendant of complainant's rights, effect of. . 660 
 
 Amount required to redeem 657 
 
 dowress, by 657 
 
 first mortgagee purchasing at sale 657 
 
 subsequent encumbrancers, by 657 
 
 tender of, necessity and effect 658 
 
 Assignment of mortgage and bond, right of party redeem- 
 ing to 660 
 
 Bill for 660 
 
 necessary recitals of 660 
 
 should conform to general rules of pleading 660 
 
 Costs on 661 
 
 mortgagor to pay as general rule 661 
 
 exceptions to rule 661 
 
 Deed absolute, given as security for loan 651 
 
 accounting by mortgagee in possession under 659 
 
 General principles underlying 650 
 
 Persons entitled to redeem 651 
 
 first mortgagee purchasing at foreclosure sale 653 
 
 general rules 651, 652 
 
 heirs at law and devisees 652 
 
 woman joining with husband in execution of mort- 
 gage 652 
 
926 General Index. 
 
 Page. 
 REDEMPTION OF UORTGAGES— Continued. 
 Persons entitled to redeem — Continued. 
 
 subsequent encumbrancers 653 
 
 tenant for years ^ 653 
 
 widow entitled to dower 652 
 
 Right to redeem 650 
 
 agreement in mortgage for no redemption void 651, 654 
 
 bar by adverse possession of mortgagee 656 
 
 estoppel of 655 
 
 inseparable from mortgage 650 
 
 rules apply to deed given by way of mortgage 651 
 
 surrender of 654 
 
 Time for redemption 654 
 
 after foreclosure of mortgage and suit on bond. . 654 
 
 agreements as to 654 
 
 begins at maturity of mortgage debt 654 
 
 expiration of 654 
 
 REFERENCES— 
 
 Account, in matters of 355 
 
 Depositions, 358 
 
 reduced to writing by master, must be 358 
 
 returned and filed with report 358 
 
 signed by witness, must be 359 
 
 when may be taken by stenographer 359 
 
 Fees of master for drawiijg report 368 
 
 Hearing, master to assign day for 357 
 
 notice of — master's summons, service 357 
 
 scope of, limited by order of reference 357 
 
 service of master's summons 357 
 
 when party serving summons does not appear.... 357 
 
 summoned does not appear 357 
 
 Masters (see also Masters in Chancery) 354 
 
 authority of in general 359 
 
 limited by order of reference 357 
 
 under general order of reference 358 
 
 duties cannot be delegated 354 
 
 Master's summons 357 
 
 service of 357 
 
 non-residents, on 357 
 
 Master's report 359 
 
 action of Court upon 364 
 
 burden of showing error upon exceptant. . 364 
 conclusion of master entitled to great 
 
 weight 364 
 
 report regarded as correct until error is 
 
 shown : 364 
 
 weight of master's report 364, 365 
 
General Index. 927 
 
 REFERENCES— CotiriMM^rf ^^^^ 
 
 Master's report — Continued. 
 
 when new reference will be ordered. . . 365, 366 
 
 where evidence is evenly balanced 365 
 
 amendments and changes in 360 
 
 confirmation of 367 
 
 method of objecting to 367 
 
 order nisi, when necessary 367 
 
 service of 367 
 
 rule for a common rule 30n. 
 
 exceptions to 362 
 
 hearing on 363, 802 
 
 notice of 363, 802 
 
 order setting down for 363 
 
 service of 363 
 
 lack of notice not ground for 361 
 
 matters considered upon 365 
 
 must specify particulars of objection... 363 
 
 object of 363 
 
 refusal to grant an adjournment not 
 
 ground for 361 
 
 report contrary to evidence 363 
 
 rule setting down for argument a com- 
 mon rule 30n. 
 
 service of order fixing day for hearing 381 
 
 when heard 802 
 
 proper 361, 362 
 
 to be filed 362 
 
 exceptions to interrogatories, on, costs on 35n. 
 
 when filed 35n. 
 
 fees for making 368 
 
 filed without notice, may be 359 
 
 filing of, to have effect of registry. 72 
 
 grounds for setting aside 360, 361, 365 
 
 lack of, or insufficient notice 361 
 
 refusal to grant adjournment 361 
 
 surplusage not sufficient 360 
 
 where master reports on matter not 
 
 referred 360 
 
 master's opinion must be founded upon facts 360 
 
 objections to 361 
 
 exceptions, by, when proper 361,362 
 
 motion to set aside report, when 
 
 proper 361 
 
 should recite facts, not arguments 360 
 
 show how master arrived at conclusion .... 359 
 
928 General Index. 
 
 Page. 
 REFERENCES— Continued 
 
 Notice of proceedings before master, master's summons, 
 
 service 357 
 
 unnecessary when decree pro confesso taken 37n. 
 
 Order of reference 354 
 
 irregularity in entering cured by appearance 364 
 
 master's authority limited by 357, 358 
 
 master can only consider matters raised by plead- , 
 
 ings 357, 358i 
 
 must be founded on pleadings and proofs 355 
 
 not an order of course 355 
 
 object of 354 
 
 power of Court to make 354 
 
 Partition, in. See Partition. 
 
 Prosecution of, duty of party obtaining order 356 
 
 Special masters, to . . . .^. 356 
 
 Subjects of ". 354,355 
 
 Testimony 358 
 
 reduced to writing by master, must be 358 
 
 returned and filedj with report 358 
 
 signed by witness, must be 359 
 
 when may be taken by stenographer 359 
 
 Vice-Chancellor, to. See Vice-Chancellors. 
 REHEARING— 
 
 Appeal from order disallowing 439 
 
 Costs 451 
 
 Decree advised by Vice-Chancellor 450 
 
 application should be to Vice-Chancellor 450 
 
 practice upon 451 
 
 when entertained by Chancellor 450 
 
 Discretionary with Court 439 
 
 Effect of order for, as stay 450 
 
 Errors and mistakes of counsel not ground for 440, 441 
 
 error of judgment or mistake of law 441 
 
 mistake as to pertinency of evidence 441 
 
 neglect to introduce important evidence 441 
 
 Mistake of law or fact 440 
 
 Newly discovered evidence 442 
 
 character of evidence 443 
 
 cumulative evidence 443 
 
 general rule 442 
 
 rests in discretion 442 
 
 rule at law on application for new trial applies 442 
 
 when application, must be made 443 
 
 To let in a defense 440 
 
General Index. 929 
 
 REFERENCES TO SUPREME COURT— ^^^^' 
 
 Court may refer matters for advisory opinion 68 
 
 Trial before jury, for. See Submission of Issues to Jury. 
 REPLICATION— 
 
 Classification 315 
 
 Filed, when to be 29 
 
 dismissal for failure to file 29n. 
 
 effect of filing 315, 316 
 
 , Form of to bill 29n, 316 
 
 answer in nature of cross bill 316 
 
 cross bill 316 
 
 Function of 315 
 
 General 315 
 
 Neglect to file, effect of 29n. 
 
 Plea, to. See Pleas. 
 
 Special, disused 316 
 
 Waives defects in answer 315 
 
 Withdrawal of 316, 321 
 
 when permitted 256 
 
 REVIVOR OF ACTIONS— 
 
 Answer, new, not required to action revived 239 
 
 Bill of Revivor 238 
 
 form of bill 242 
 
 nature and function. 238 
 
 parties 243 
 
 process 243 
 
 right to file 241 
 
 costs on 245 
 
 time for filing 241 
 
 unnecessary in modern practice ■. 238 
 
 in the nature of bill of revivor, defined 240 
 
 when necessary 240 
 
 Complainant, by, upon death of sole defendant 241 
 
 Costs on 243 
 
 Decree after 242 
 
 for purpose of prosecuting appeal -. 343 ' 
 
 Defendant, by, upon death of sole complainant 341, 343 
 
 Executors of deceased defendant, against ; 240 
 
 Revived action, depositions of witnesses, previously taken, 
 
 admissible 339 
 
 no new answer required 339 
 
 not new suit 239 
 
 Rule to revive, by 238, 239n. 
 
 applies to cases where bill in the nature of bill to 
 
 revive was formerly iiecessary 240 
 
 discharge of 241 
 
980 General Index. 
 
 Page. 
 RULES— 
 
 Chancellor to make 72 
 
 Common and special 476 
 
 defined 476 
 
 entry of 476 
 
 enumerated 30n, 
 
 Consent, entered of course 68 
 
 Filing to have effect of registry 72 
 
 Registered, not to be 72 
 
 Special, defined 476 
 
 SALE OF INFANT'S LANDS— 
 
 Confirmation of sale 736 
 
 order confirming 736 
 
 matters included within 736 
 
 report of sale 736 
 
 Conveyance directed by Court 736 
 
 Dower or curtesy, free from 738 
 
 compensation to tenant 738 
 
 consent of dowress 738 
 
 method of determining value 739 
 
 practice 738 
 
 reference to ascertain value 739 
 
 release of married woman 739 
 
 Estate for life of years, free from 738 
 
 compensation to .tenant 738 
 
 consent of tenant 738 
 
 method of determining value 739 
 
 practice 738 
 
 reference to ascertain value 739 
 
 release of married woman 739 
 
 Guardian for infant 734 
 
 accounting by 740 
 
 appointment of 734 
 
 bond of 734 
 
 character of bond 734 
 
 commissions on sale '. 740 
 
 death of, proceedings in case of 735 
 
 payment of proceeds of sale to general guardian. 737 
 
 Hearing on application 735 
 
 reference, may be by 735 
 
 Jurisdiction 732 
 
 Lands defined 732 
 
 limited over to infants 740 
 
 practice ^ 741 
 
 Master's report 733 
 
 what master required to report 733, 734 
 
General Index. » 931 
 
 Page. 
 SALE OF INFANT'S ^.ANDS—Contimted. 
 
 Master ordered to sell, death of, proceedings 49 
 
 Order for sale 735 
 
 when granted : . . . 735 
 
 of reference 733 
 
 matters referred 733 
 
 recitals of 733 
 
 special master, must be to , 356 
 
 Petition for 733 
 
 recitals of 733 
 
 who may file .'. . 732 
 
 Proceeds of sale 736 
 
 considered real estate 736 
 
 interest in proceeds 736 
 
 investment of 736 
 
 payment to general guardian 736 
 
 bond of general guardian 737 
 
 Court may direct 736 
 
 report of investment 736 
 
 Real estate defined 733 
 
 Reference to master 733 
 
 matters to be referred 733 
 
 order of reference, recitals of 733 
 
 When lands will be ordered sold 732 
 
 SCANDAI^ . 
 
 Answers, in. See Ansivers. 
 
 Definition of 185 
 
 Exceptions for 184 
 
 interrogatories, in 184 
 
 practice on 184 
 
 Interrogatories, in, exceptions lie for 184 
 
 Objections for, demurrer will not lie 184 
 
 exceptions for 184 
 
 Offensive statements not, if relevant 185 
 
 Relation between impertinence and 186 
 
 SEQUESTRATION— 
 
 Decrees may be enforced by 46 
 
 SHERIFF— 
 
 Amercement of for neglect of duties relating to final process 47, 48 
 
 procedure 47, 48 
 
 Death of, proceedings on execution, in case of 49 
 
 Executions to be directed to 46n. 
 
 Failure to return process or order is contempt 48 
 
 proceedings 48 
 
 Surplus proceeds of execution not to pay to party without 
 
 order 46n. 
 
 to be paid to clerk 46n. 
 
932 ' .General Index. 
 
 Page. 
 SUBMISSION OF ISSUE TO JURY— 
 
 Appeal 376 
 
 effect of 376 
 
 ' from order directing issue 371 
 
 new trial 375 
 
 Costs 376 
 
 rest in discretion 375 
 
 Direction of actjon at law 376 
 
 distinction between and direction of issue at law. . 377 
 
 general principles governing 376, 377 
 
 practice at trial at law 378 ■ 
 
 in chancery after trial at law 378 
 
 upon 376 
 
 Issue to try questions of fact 369 
 
 appeal from order directing 371 
 
 award of discretionary 369 
 
 control of chancery over mode of trial 372 
 
 distinction between and direction of action at law. . 377 
 
 nature and form of 371 
 
 objections to form of ' 373 
 
 purpose of issue 369 
 
 when awarded 370, 371 
 
 New trial 374 
 
 appeal from order allowing 375 
 
 application for .' 374 
 
 principles governing grant of 374 
 
 result, when allowed 375 
 
 when allowed 374, 375 
 
 Postea, where returnable 373 
 
 contents of 373 
 
 report of judge 373 
 
 Principles governing 369 
 
 discretion of Court in directing 369 
 
 Trial in court of law 372 
 
 chancery not bound by result of 373 
 
 mode of trial under control of chancery 372 
 
 SOLICITORS— 
 
 Employed by or in partnership with judge not to practice 
 
 before 795 
 
 SUBPOENA AD RESPONDENDUM— 
 
 Amendment of 3n. 
 
 Description of parties in 3n. 
 
 failure to describe as executor, etc., not ground 
 
 for demurrer 3n. 
 
 Endorsed with name of solicitor or party, to be 3 
 
General Index. 933 
 
 Page. 
 SUBPOENA AD RESPONDENDUM— Co»iw«?rf. 
 
 Form of 3 
 
 names of all defendants in same county to be insert- 
 ed in one 3n. 
 
 notice to be added that defendant need not appear 
 
 on return day 3 
 
 Issue of before bill filed forbidden 3 
 
 effect of 3n. 
 
 how taken advantage of 2n. 
 
 method of correcting defect 2n. 
 
 waiver of defect 2n. 
 
 Issue by solicitor or clerk, to be 3 
 
 Names of defendants resident in same county to be inserted 
 
 in one 3 
 
 notice to be added that defendant need not appear on return 
 
 day 3 
 
 Returnable on holiday, effect of 3n. 
 
 Sunday, effect of 3n. 
 
 Service of 4 
 
 accomplished by fraud, effect of 5n. 
 
 acknowledgement of — effect 7, 7n. 
 
 by whom served 4 
 
 corporation, on, method of 6 
 
 where officer is temporarily in State.. 6n. 
 
 defective, effect of 5n. 
 
 method of taking advantage of 5n. 
 
 duty of officer 5 
 
 dwelling house or usual place of abode, defined. ... 4n. 
 
 method of 4 
 
 return of 6 
 
 validity of officer's 6n. 
 
 to be filed with clerk 6 
 
 Signed and sealed by clerk, to be 3 
 
 SUBPOENA TO HEAR JUDGMENT— 
 
 Abolished 71 
 
 STATUTE OF FRAUDS— 
 
 Defense of, when proper to be raised by plea 261 
 
 STATUTE OF LIMITATIONS— 
 
 As valid a defense as at law 259 
 
 Defense of may be set up by answer 259 
 
 Equitable rights to 259 
 
 Plea, answer or demurrer, may be set up by 258 
 
 Waived if not pleaded 259 
 
934 General Index. 
 
 Page. 
 
 SUNDAY— 
 
 Court cannot sit on 2n. 
 
 Difference between, and a legal holiday 2n. 
 
 Holiday, not a 2n. 
 
 Judicial business cannot be transacted on 3n. 
 
 Service of writ on ne exeat on 802 
 
 Subpoena returnable on — effect of 3"- 
 
 SUPPLEMENTAL ANSWERS— 
 
 Application for leave to file by petition 312 
 
 notice, must be on 312 
 
 petition must set out amendment desired 312 
 
 supported by affdavits, must be 312 
 
 Costs on aplication to file 312 
 
 Function of 310 
 
 Inequitable defenses 311 
 
 cannot be set up by 311 
 
 usury 311 
 
 Mistake in original answer 311 
 
 to correct 311 
 
 when permission to file granted 311 
 
 Newly discovered defense, to introduce 310 
 
 when permitted 310 
 
 Permission to file, must be obtained 310 
 
 notice of application 312 
 
 petition for 312 
 
 when granted 310, 312 
 
 Time for filing 312 
 
 SUPPLEMENTAL BILLS— 
 
 Addition to original bill, regarded as 187 
 
 Defenses to 193 
 
 Demurrer will lie to 193 
 
 Facts occurring after filing of original bill must be brought 
 
 in by , 188 
 
 tending to corroborate charges in bill not foundation 
 
 for 187 
 
 occurring before filing original bill not sufficient 
 
 foundation for 187 
 
 Filing 190 
 
 leave of Court must be obtained before 190, 191 
 
 process on original bill should be issued before 2n. 
 
 method of correcting defect when process not issued 2n. 
 
 right to file 19CI 
 
 time for 190 
 
 waiver of leave of Court 190 
 
 Form and sufficiency 191 
 
 Function of 187 
 
General Index. 935 
 
 Page. 
 SUPPLEMENTAL BILLS— Continued. 
 
 Improper where different relief from that prayed in original 
 
 bill is 'sought 189 
 
 New parties, to bring in 188 
 
 Original bill in the nature of 190 
 
 a bill of revivor, difference 
 
 between and 189 
 
 Parties 193 
 
 by stranger acquiring interest 192 
 
 bringing in new by 188 
 
 must be between same parties as original bill 189 
 
 Prayer for subpoena 192 
 
 Relation to original bill 193 
 
 •Resorted to, when to be 187 
 
 in preference to original bill, should be 187 • 
 
 only when amendment not available 187 
 
 TICKET— 
 
 Failure to issue 4n. 
 
 not ground for demurrer 4n. 
 
 waiver of 4n. 
 
 Issue of — when necessary 4, 225 
 
 bills to quiet title 225 
 
 objection for not issuing, how taken 226 
 
 waiver of failure to issue 4n, 
 
 Service of 4 
 
 cost of 4n. 
 
 method of 4 
 
 proof of 4n. 
 
 return of 4n. 
 
 TRANSFER OF CAUSES 376 
 
 Practice 801 
 
 TRIAL OF ISSUE IN SUPREME COURT. See Submission 
 
 of Issue to Jury. 
 TRUSTEES— 
 
 Appointment of to receive trust ^ fund transferred from 
 
 other State 73 
 
 bond 73 
 
 powers and duties of trustee 73 
 
 Death of sole surviving, devolution of trust in case of 118 
 
 Suits by, bill must correctly describe 143 
 
 co-trustees should be joined 117 
 
 Parties, necessary when (see also Parties) 114 
 
 VICE-CHANCELLORS— 
 
 Adjournment of hearing f 81 
 
 Applications which may be made to 79n. 
 
 Appointment 77 
 
936 General Index. 
 
 Page. 
 
 VICE-CHANCELLORS— ConiOTMcd. 
 
 Contempt, may punish for 83, 462 
 
 Division of State into districts 82 
 
 Decisions of, review of ''''n. 
 
 Evidence, may rule upon admissibility of 81n. 
 
 General references to *: 79n. 
 
 Hearing before 80 
 
 adjournment of 81 
 
 admissibility of evidence, Vice-Chancellor to rule 
 
 upon 81n. 
 
 conduct of , 80n. 
 
 notice of 79n. 
 
 application to fix time for 79n. 
 
 place of sitting. Chancellor may appoint 82 
 
 report of evidence 80 
 
 stenographer, may employ 81 
 
 expense of 81 
 
 how divided 81 
 
 testimony to be taken orally 80 
 
 time of sitting. Chancellor may appoint 82 
 
 Number of 77 
 
 Place of sitting. Chancellor may appoint 82 
 
 Practice of law by forbidden ^ 82 
 
 References to 78 
 
 any matter may be referred to 78 
 
 general references 79n. 
 
 matter in which Chancellor is interested may 
 
 be referred 79 
 
 notice of application for order of reference. . . 79n. 
 
 shall retain cause referred to final decree 79n. 
 
 Retain cause referred, must • 79n. 
 
 Review of decisions of 77n. 
 
 Chancellor will not review 78n. 
 
 exceptions to rule 78n. 
 
 Salary, how paid 82 
 
 Sergeant-at-Arms 82 
 
 appointment 82 
 
 duties , 82 
 
 salary 82 
 
 method of payment 83 
 
 Stenographer, may employ 81 
 
 compensation of 83 
 
 Time of sitting, Chancellor may appoint 82 
 
 Term of office 77 
 
General Index. 937 
 
 Page. 
 WITNESSES— 
 
 Competency of 385 
 
 time to which relates 385 
 
 Examination of before examiner, adjournments 37n. 
 
 before whom depositions may be taken .... 35, 36n. 
 
 competency as evidence 413, 414, 415, 416, 417 
 
 preliminary proof 415 
 
 complainant, examination of 37n. 
 
 copies of testimony 414 
 
 cross-examination of 35 
 
 depositions— how taken 38n. 
 
 examiner to file 35, 38n. 
 
 regulations as to form of 38n. 
 
 depositions taken on legal holidays invalid.... 414 
 
 documentary evidence 39n. 
 
 effect of want of notice 413 
 
 examiner not to be solicitor or clerk 36n. 
 
 examination to be filed 35, 39n. 
 
 read upon hearing 35 
 
 exclusion, . grounds of 415 
 
 irregularity in, not grounds for 
 
 415, 416, 417 
 
 exhibits 37n. 
 
 expense of taking 418 
 
 fees of witnesses 36 
 
 how forwarded 413 
 
 interrogatories and answers to be reduced to 
 
 writing 413 
 
 notice of 35, 36n, 412, 413 
 
 objections to testimony 36n. 
 
 order of 36n. 
 
 plea, order of proof on 38n. 
 
 rebutting testimony 37n. 
 
 re-examination of 36n. 
 
 subpoena for witnesses 39n. 
 
 taxation of costs 418 
 
 , testimony may be taken stenographically 414 
 
 to be upon oath 412 
 
 time for taking, complainant's 37n. 
 
 defendant's 37n. 
 
 extension of by order 37n. 
 
 consent 37n. 
 
 legal holidays and vacation not com- 
 puted 37n. 
 
 witnesses must answer questions 36n. 
 
938 General Index. 
 
 Page. 
 
 WITNESSES— CowhW^rf. 
 
 Examination of before Vice-Chancellor. See Vice-Chancel- 
 lors. 
 
 under old practice 380 
 
 Examination of de bene esse, consent, by 419 
 
 grounds for exclusion 419 
 
 may be taken without order 419 
 
 stipulation, necessary provisions of 419 
 
 what may be stipulated 419 
 
 domestic witnesses, of 399 
 
 affidavit of messenger transmitting testi- 
 mony 401 
 
 affidavit to obtain order 400 
 
 before what officer may be taken 400 
 
 certificate of officer 400 
 
 compensation of witness 400 
 
 deposition of party in own behalf 402 
 
 when to be filed 400 
 
 in what cases may be taken 399, 400 
 
 mode of taking 401 
 
 notice to be given 400 
 
 witness about to leave State 400 
 
 how compelled to testify 400 
 
 non-resident witnesses, of, commission for, affidavit 
 
 to obtain 402 
 
 application for 404 
 
 consent, upon 405 
 
 notice of 404, 406 
 
 service of notice 404 
 
 interrogatories 404 
 
 appointment of commissioners 406 
 
 construction of act ; 403 
 
 Courts to which act applies 403 
 
 execution of without United States... 411 
 
 issue of not a stay of proceedings 407 
 
 names of witnesses, must contain 405 
 
 testimony of non-resident party 403 
 
 when and how awarded 402, 405 
 
 commissioner, adjournments, power to grant 409 
 
 documentary evidence exhibited be- 
 fore 409 
 
 examination of witnesses by 409 
 
 to be reduced to writing 
 and signed by wit- 
 ness 409 
 
 oath of 407 
 
 transcript of testimony may be in 
 
 , typewriting 409 
 
General Index. 939 
 
 WITNESSES— Continued. ^^^' 
 
 Examination of de bene esse — Continued. 
 
 interrogatories, approval of 406 
 
 by whom prepared 405 
 
 copies of to be furnished parties. .. 406 
 
 cross interrogatories — service .... 406 
 
 how signed 405, 406 
 
 objections to 407 
 
 service of 404 
 
 order for commission 404 
 
 notice of application for 404,406 
 
 what to contain 406 
 
 return of commission, certificate of commissioner. . 410 
 
 executed without United States, when 411 
 
 how forwarded by mail 410 
 
 transmitted in person 411 
 
 opening and filing 410 
 
 recitals as to oath of commissioner 408 
 
 signed and sealed by commissioner *.. 410 
 
 transmission in person.. ■. 411 
 
 oarty on own motion, of admissibility of 421 
 
 in case of death of party. . . . 421 
 
 before whom deposition taken 421 
 
 documentary evidence 422 
 
 may be taken by stenographer 422 
 
 notice 421 
 
 oath of person transmitting 422 
 
 right of .' 421 
 
 subscribed by party, to be 422 
 
 transmission of 422 
 
 under oath, to be 422 
 
 testimony may be taken stenographically 414 
 
 competency of as evidence 415 
 
 exclusion of 415 
 
 parties entitled to copy of .' 414 
 
 Suppressing depositions 415 
 
 application may be by motion 415 
 
 discretionary 415 
 
 for refusal to be cross-examined 418 
 
 grounds for 415, 417 
 
 irregularities not sufficient for 415 
 
 time for motion *19 
 
940 General Index. 
 
 Page. 
 WRIT OF ASSISTANCE— 
 
 Against whom writ will issue 636 
 
 person in possession under unrecorded instrument.. 637 
 
 not parties to suit 636 
 
 Demand for possession ; 639 
 
 Exhibition of deed to tenant required 639 
 
 Nature and function 636 
 
 Notice of application for 639 
 
 Order for possession 639 
 
 may provide for issue of writ without further notice 639 
 
 notice of application for 639 
 
 Suits to quiet title, in 236 
 
 When writ will issue 636 
 
 against person not party to suit 637 
 
 general rule 636 
 
 issue of writ rests in discretion 638 
 
 only when parties all bound by decree 636 
 
 When writ will not issue 638 
 
 estoppel by acts of purchaser 639 
 
 in cases of doubt 638 
 
 issue of writ rests in discretion 638 
 
 right must be clear 638 
 
 when legal questions involved 638 
 
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