11. A complainant cannot demand several distinct things having no connec-
tion with each other, of several defendants, by the same bill. Ingersoll v.
Kirby,
65
12. The relief given by the Court must be consistent with the case made by
the bill. Thayer v. Lane,
200
13. To determine whether a bill is multifarious, we must look to the stating
part of the bill, and not to the prayer alone; for, if, in his prayer for relief.
complainant ask several things, to some of which he may be entitled, and to
others not, the bill is not on that account multifarious, but he will, on the
hearing, be entitled to that specific relief only, which is consistent with the
case made in the stating part of the bill. Hammond v. Michigan State
Bank,
214
14. Different causes of complaint, of the same nature, and between the same
parties, may be united in one suit, where the same relief is asked; but where
the causes of complaint are dissimilar in their nature, and would require
different decrees, it would embarrass, rather than expedite, the adminis-
tration of justice, to allow them to be united in the same bill. Hart v.
McKeen,
417
15. A bill framed with a double aspect must be consistent with itself. It
should not set up different and distinct causes of complaint that destroy
each other. Id.,
417
16. Where a bill was filed to have a tax sale set aside, held, that it was not
necessary to offer in the bill to refund the money paid by S. for the tax
title fraudulently obtained by him. Taylor v. Snyder,
17. A general demurrer will be overruled, unless good as to the whole of the
bill. Williams v. Hubbard,
28
18. Where a defendant who should have demurred to discovery only, demurs
to both discovery and relief, his demurrer will be overruled. Edwards v.
Hulbert,
54
19. Where a defendant demurs to discovery and relief, when he should have
demurred to discovery only, his demurrer will be overruled. Burpee v.
Smith,
327
20. Where one of several defendants demurs to discovery on the ground that it
would subject him to a criminal prosecution, his demurrer should be con-
fined to such parts of the bill as tend to implicate him in the supposed crime.
Id.,
327
21. A demurrer may be good as to one defendant, and bad as to other de-
fendants. Barstow v. Smith,
394
22. A plea must rest the defense upon a single point; and a plea containing
two distinct points, is bad. Albany City Bank v. Dorr,
317
23. A plea must be positive, and not on belief, when it states a fact within de-
fendant's knowledge, or touching his own acts, but when it relates to the
act of third persons and not to defendant's own act, it may be on informa-
tion and belief. Parker v. Parker,
24. Where a bill is filed under a statute, where there is an exception in the en-
acting clause, it must negative the exception; but, where there is no excep-
tion to the enacting clause, but an exemption in a proviso thereto, or in a
subsequent section of the act, it is matter of defense, and must be shown by
the defendant. Attorney General v. Oakland County Bank,
90
25. The defense in such case should state facts, and not conclusions of law.
Id.,
90
26. Where the answer is put in issue, the defendant must prove what he in-
sists on by way of avoidance. Id.,
90
27. Where an answer on oath is waived, it must, notwithstanding, be signed
by defendant. Kimball v. Ward,
439
28. When a defendant, who might, by demurrer or plea to the whole bill,
have protected himself against a particular discovery, submits to answer
the whole bill, he must answer as fully as in any other case.
Paige,
29. When irrelevancy is made a ground for refusing to answer a particular
question, or part of a bill, it should appear that an answer to such part
would, in no aspect of complainant's case, as made by the bill, be of service
to him. Id.,
520
30. A cross-bill is necessary, where the defendant is entitled to some positive
relief, beyond what the complainant's bill will afford him. Schwarz v.
Sears,
170
31. When a replication to a plea is filed, the truth of the plea is the only ques-
tion to be tried, and if established, it is a bar to so much of the bill as it pro-
fesses to cover.
Hurlbut v. Britain,
454
See ADMISSIONS, 1. CONDITION, 1. EVIDENCE, 1, 10, 11, 12, 13, 14. Hus-
BAND AND WIFE, 2. MORTGAGE, 28. NOTICE, 1, 2. PARTITION.
I. Filing bill and process.
II. Motion and orders,
III. Amending and dismissing bill.
IV. Taking bill pro confesso and opening decree.
V. Excepting to answer.
VI. Taking testimony, and other intermediate proceedings.
VII. Hearing and rehearing.
VIII. Reference to Master, Reports and exceptions.
I. Filing bill, and process.
1. Where a petition was not signed by the petitioner, but was verified by an
affidavit signed by her, which stated that she had read it, and knew the
contents of it, and that it was true, it was held to be a sufficient signature
of such petition. Johnson v. Johnson,
309
2. Where the subpoena was served on the keeper of the State's prison, instead
of on the defendant, who was confined therein, the service was held suffi-
cient. Id.,
309
3. The service of a subpoena was set aside as irregular, where the copy deliver-
ed to the defendant varied from the original, in being tested on the 31st
day of October, 1840, instead of 1843. Gould v. Tryon,
339
4. After a motion has been denied on its merits, it should not be renewed,
without leave of the Court, on the same facts, or any new facts which
might have been included in the first motion. The party must present all
of his case at once, whether he have several grounds or not. Johnson v.
Johnson,
309
5. An order in part erroneous is not void, so far as relates to matters proper-
ly contained in it. Howard v. Palmer,
391
6. Where a plea had been filed to an original bill, and complainant amended his
bill, and defendants answered the amendments, it was held, that the plea
was superseded by the amended bill, and a motion to take it from the files
for irregularity was denied, the proper motion being to take the answer
to the amendments from the files. Peck v. Burgess,
485
III. Amending and dismissing bill.
7. A complainant may, at any time before there has been an interlocutory or
final decree in a cause, dismiss the bill of course, on payment of costs.
Seymour v. Jerome,
356
8. Where an interlocutory order had been entered by consent of parties, oper-
ating as an adjudication to some extent on the rights of the parties, the
Court refused to allow the complainant to dismiss his bill. Id.,
356
9. Where leave is given to complainant to dismiss his bill conditionally, the de-
fendant may, until the condition is complied with, consider the case as in
Court or out of Court, at his discretion; and may either proceed in it, or
consider it dismissed and apply to the Court to enforce the payment of his
costs. Jerome v. Seymour,
359
10. Where leave had been granted complainant to dismiss his bill on payment
of costs, and the order was entered generally without mentioning costs, on
application of the defendant, it was ordered to be amended so as to cor-
respond with the terms on which leave to dismiss was granted. Id., 359
11. It is usual on allowing a demurrer for any cause which the Court sees, on the
argument, may be obviated by amending the bill, to give leave to amend
on paying the costs of the demurrer. But where the Court on the argu-
ment cannot see from the facts before it, how the objection on which the
demurrer was sustained could be removed, it is necessary for the com-
plainant to apply for leave to amend, by petition setting forth the addi-
tional facts sought to be incorporated in the bill. Bank of Michigan v.
Niles,
393
12. Where a petition was presented for leave to amend a bill, by inserting addi-
tional facts, after a decree sustaining a demurrer to the bill had been af-
firmed by the Supreme Court, on the same reasons which had governed
this Court, it was held, that the application came too late. Id., 398
13. A complainant wishing to amend his bill, must take the first opportunity
after being made acquainted with the defects in it, to ask leave to do so.
Id.,
398
14. Where no answer had been put in to an injunction bill, leave was granted
to amend so as to waive an answer under oath, on payment of costs.
Bronson v. Green,
486
IV. Taking bill pro confesso, and opening decree.
15. In applications for opening decrees obtained regularly by default, no general
rule can be laid down; but each case must, in a great measure, depend
upon its own circumstances, and the sound discretion of the Court.
Russell v. Waite,
31
16. Such a decree should be opened only under special circumstances, and to
promote the ends of justice. Id.,
31
17. After a decree has been entered on a bill regularly taken as confessed, the
question of opening it, to let in a defense on the merits, should be brought
before the Court by petition, accompanied by the answer proposed to be
put in. Hart v. Linsday,
18. A decree regularly entered will not be opened, except under special circum-
529
stances, and a stronger case must be made for this, than to vacate an or-
der pro confesso before decree. Id.,
19. Where a party defendant has been guilty of gross negligence, a decree will
not be opened, neither will a re-taxation of costs be ordered, or sale be set
aside. Id.,
20. Where a defendant both answers and demurs to different parts of the bill,
and the demurrer is overruled, complainant, to obtain a further answer,
must except, under the thirty-fourth rule of the Court, to the answer
already put in by defendant, within twenty days after the demurrer is
overruled. Bragg v. Whitcomb,
VI. Taking testimony, and other intermediate proceedings.
21. An agreement between counsel in a case must be in writing, or reduced
to the form of an order by consent, pursuant to the provisions of rule 87,
in order to be noticed by the Court. Suydam v. Dequindre,
22. Practice in chancery in regard to the impeachment of witnesses the same
as at law. Sawyer v. Sawyer,
48
23. Before the credit of a witness can be impeached by proof of inconsistency in
his declarations, a foundation must be laid by questioning him on cross-
examination as to his former statements. that he may have an opportunity
for explanation. Id.,
24. Having laid this foundation, a party may proceed without exhibiting
articles of impeachment. Id.,
25. Each party must pay for taking down the cross-examination of his adver-
sary's witness, as well as the direct examination of his own.
Id., 48
26. A witness having been examined, after his examination is closed cannot be
re-examined as to the same facts without an order of the Court; but he may
be as to other facts, or new matter arising out of the testimony of other
witnesses. Id.,
48
27. Where a time had been set for the examination of one of the defendant's
witnesses, and the commissioner and complainant's counsel attended and
waited an hour and a half, during which time defendants did not appear
with their witness. and complainants then left, refusing to wait longer,
held that new notice should have been given them; and the deposition of
the witness taken after complainants had left, without such notice, was
suppressed. Stockton v. Williams,
120
28. It is the settled practice of this Court in an affidavit of merits, to require the
party to state what such merits are. Thayer v. Swift.
29. Where a party applies for leave to take testimony, after the time allowed
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