is also the place for specific interrogatories, if you think proper to propound them; but as these can only be founded upon the allegations before made, they are seldom of much use, and never indispensable. 3. That the court may grant the specific relief, to which you conceive the plaintiff to be entitled, setting it forth particularly. 4. That such other relief may be granted as the court shall deem equitable. This is called the prayer for general relief, and should never be omitted; because the plaintiff may be entitled to some relief, when he cannot have the specific relief prayed for. The bill is now signed by counsel. This is the English rule, and the intention is to have security against scandalous or impertinent matter, by holding the solicitor responsible. In common cases the bill is now ready to be filed. But there are two exceptions: namely, bills of ne exeat, to prevent persons from departing out of the jurisdiction; and bills of injunction, to stay legal or other proceedings. These further require, as will be explained hereafter, an affidavit by the plaintiff of their truth; an allowance by the court in term time or a single judge in vacation; and security to the other party, in such sum as the court or judge shall determine. The bill is now filed; that is, deposited with the clerk, who notes the date of filing on the back, and enters the cause on the appearance docket.

§ 219. Subpoena. (a) The next step is for the clerk to issue the subpoena. This a writ commanding the sheriff, who is the executive officer of this court, as well as of the courts of law, to summon the defendant to appear and answer, under the penalty of a thousand dollars. The form is prescribed by the statute. If the bill be filed in term time, the subpoena is made returnable forthwith, otherwise to the next term; and in either case the term at which the writ is to returned is called the appearance term. We have seen that this writ is usually prayed for in the bill. The statute, however, seems to require a separate application, after filing the bill; and this is usually made in the form of a precipe on the back of the bill. The subpoena takes its name from the penalty it threatens in case of disobedience. It was devised, as we have seen, when the foundations of chancery power were not very firmly established; and the threat of a penalty no doubt then had its effect. But it is probable that this penalty could not now be specifically enforced in any way; nor is this necessary in order that the writ may be effectual. For the court has express power, as we have seen, to enforce obedience in all its process, rules, and orders, by attachment for contempt; in which proceeding the delinquent may be fined, or imprisoned until he complies, or his property may be sequestrated in certain cases. This, of course, includes disobe

(a) Form of a Subpana. [Omitting the caption and conclusion, which are the same as in all other writs.] We command you to summon to appear before our court of on the to answer a petition in chancery exhibited against him by ; and this he shall in no wise omit, under the penalty of one thousand dollars; and have you then and there this writ, with your doings thereon.

dience to a subpoena, and supersedes the necessity of a penalty in the writ. Besides, if the defendant disobeys, he is in general sufficiently punished, as we shall see hereafter, by the consequences of default. The subpoena is delivered to the sheriff to be served. If the defendants reside in different counties, within the State, subpoenas may be directed accordingly. Service is made anywhere within the State by delivering a copy of the subpoena to the defendant, which is called personal service: or by leaving it at his usual place of abode, which is called service of copy. The return is made by indorsing the time and manner of service upon the original, and returning it to the clerk's office. But if any or all of the defendants reside out of the State, the manner of giving notice is in one of two ways; namely: 1. By personal service of the subpoena, together with a copy of the bill; in which case the return, being made by a person not known to the court, must be verified by affidavit. 2. By a newspaper advertisement published for six consecutive weeks, setting forth the pendency of the suit, with a brief description of the object and prayer of the bill. If there be no newspaper printed in the county, it must be one printed in the State, and which has a general circulation in the county. This is at best a very uncertain mode of notifying non-residents; and, therefore, to prevent hardship, it is provided that, where a decree has been rendered against the defendant under such circumstances, he may, at any time within five years, have the proceedings opened, by giving notice to the plaintiff, making affidavit that actual notice was not received in season to make defence, and paying costs. But if land has been sold in the mean time, under such decree, the purchaser is not to be disturbed. The general principle is, that suit must be commenced in that county where one or more of the defendants reside. But if it relate to land, it must be in that county where the land lies; or if it lies in several counties, then in either. In proceedings against heirs, whose names or residence are unknown, upon affidavit of that fact the court will allow the suit to go on, and make such order relating to notice as they may deem proper. If any of the defendants be infants, as proceedings here are never stayed on that account, the plaintiff must apply to the court to appoint a guardian ad litem to conduct the defence, who must be notified of the fact and accept the appointment before the decree will be conclusive against such infants; for although infants may sue by their next friend, they can only defend by a guardian ad litem.

§ 220. Appearance and Defence. Upon the return of the subpoena served, or upon due proof of notice, as the case may be, the defendant is considered as in court, and may be proceeded against accordingly. This is a great departure from the English practice, which requires an actual appearance before any final proceedings can be had, but furnishes all possible facilities for enforcing such appearance. Our rule, however, which substitutes a virtual for an actual appearance, is far more beneficial to the plaintiff; since, if

he take the requisite steps before mentioned, it is not in the power of the defendant to prevent a decree. When there is an actual appearance, it is usually signified by the counsel for the defendant, usually called solicitor, who writes his name in the margin of the appearance docket, opposite to that of his client. He is then entitled to a copy of the bill, which is charged among the general costs of the suit. This rule extends to all adversary proceedings, but provides for only one copy, however many opponents there may be. The defendant then has sixty days, by our statute, after the end of the appearance term, before he can be placed in default. Within this period he must either disclaim or make defence, or suffer the consequences of his default; and I shall describe the proceedings under each of these aspects.

Our statute justly provides that where a defendant will come in and disclaim all interest in the matter in dispute, the plaintiff shall pay the costs, unless the court otherwise order. In general, such disclaimer need not be under oath; for when a man denies having any interest in that which has value, his word will be taken as sufficient. When, however, the object of the bill is to compel a discovery of facts which the defendant may be interested in concealing, his disclaimer of knowledge or interest must be under oath, and takes the form of an answer. A disclaimer is signed by the defendant or his counsel; and, on being filed, the bill will be dismissed as to that defendant, at the cost of the plaintiff. In fact, the chief or only motive for putting in a simple disclaimer is to avoid the payment of costs. (a) But we will now suppose that the defendant instead of disclaiming, has an interest in the matter of the bill, and wishes to make defence. This can only be done in one of three ways; namely, by demurrer, plea, or answer. If the bill, admitting its truth, be insufficient upon its face to entitle the plaintiff to recover, the defendant presents that question to the court by demurrer: but if the bill be sufficient upon its face, the defendant must either set up some new matter of defence to obviate its effect, or deny the allegations therein made, or both. If the new matter of defence consists of a single fact, or a single result from several connected facts, it may be presented in the form of a plea: but if this be not the case, the defence can only be presented in the form of an answer. Whichever course be adopted, the time allowed is sixty days after the end of the appearance term. Would not a shorter time better promote the ends of justice, and redeem the constitutional pledge against delay? § 221. Demurrer. (b)

The object of a demurrer in chancery,

(a) Form of a Disclaimer. The disclaimer of to the bill filed against him by The said. comes and disclaims all manner of interest or concern in the matters alleged in the said bill, and prays to be hence dismissed with his

costs.

(b) Form of a Demurrer. The demurrer of to the bill filed against him by The said by protestation, not confessing or acknowledging all or any of the matters or things in the said bill set forth to be true, in manner and form as the same are therein alleged, says he is advised that there is no matter or thing in the

after the analogy of a demurrer at law, is merely to present to the court the question of the sufficiency of the bill; and it occurs at no other stage of the proceedings. It impliedly admits the facts alleged, but denies the equity claimed. It is signed by counsel, but requires no affidavit, because it alleges no fact. A special demurrer differs from a general demurrer only in specifying wherein the insufficiency consists. It would seem from the language of the books that a special demurrer may be put in, as at law, for a mere matter of form; but this is in direct opposition to the whole spirit of equity, and is not known in our practice. We demur only for a defect in substance; and though it is always the more liberal course to specify the cause of demurrer for the information of the other party, yet this is regarded as a matter of option, and not of compulsion. The demurrer may be to the entire bill, or to some particular part; and, in the latter case, the part demurred to must be specified, and a plea or answer put in to the rest. But you cannot demur, and at the same time plead or answer to the same part of the bill, for the plea or answer would supersede such demurrer; and when you demur, and plead or answer to different parts, the demurrer must be first disposed of; the manner of doing which I will now describe. Upon filing the demurrer, the cause is at issue without a formal joinder, though this is sometimes added. Either party may now" set the cause for hearing." This is done by an entry on the office docket thus: "This cause is set for hearing on demurrer," which entry is dated and subscribed by the solicitor. The effect of setting a cause for hearing is to bring it upon the issue docket. By our rules, it may be done either in term or vacation, but the hearing can only take place in term; and at least twelve days must elapse after setting the cause for hearing before it can be called up for hearing, unless by general consent. The language of our rule is that causes shall be entered on the issue docket in the order in which they have been set for hearing; but this, though it seems but reasonable, conflicts with the statutory provision, which requires the order to be the same as on the appearance docket. It now becomes the duty of the counsel demurring to prepare a brief, containing an abstract of the case, with the points and authorities relied on; which brief must be presented to the court on the first day of the term, if the cause was set for hearing before that day, otherwise, on the day of

said bill contained sufficient in law to call this defendant to answer in this court; and therefore this defendant demurs to the said bill, and for cause of demurrer says that the said bill contains not any matter or thing entitling the complainant to any relief against this defendant; wherefore, and for divers other errors and imperfections in the said bill appearing, this defendant demurs thereunto, and humbly prays judg ment of this honorable court, whether he shall be compelled to put in any further answer to the said bill, and that he may be hence dismissed with his reasonable costs, in this behalf most wrongfully sustained.

But this form may be abridged as follows. After the caption, as before, say: The said comes and demurs to the said bill, and says that the complainant has not presented such a case as entitles him to relief in equity; wherefore he prays judg ment, whether he shall be compelled to make any further answer thereto, and that he may be hence dismissed with his costs.

setting it for hearing. A neglect to do this may occasion the demurrer to be overruled at the costs of the demurrant; though this penalty is seldom enforced. When the cause comes up for hearing, which must be in its regular order, unless the court assign a particular day, the counsel who furnishes the brief has the opening and close of the argument. The court then pronounces the decree : the nature of which will be considered hereafter. At present, I will merely point out its consequences in the case before us. If the demurrer be allowed, it is a decision against the bill, and the plaintiff must pay the costs; but he may obtain leave to amend his bill, if it admits of amendment, and thus put the defendant to his plea or answer. On the subject of amendments, the court has unlimited discretion; but when a party obtains leave to amend after hearing, he is required to submit to such terms in regard to costs, and to the time and manner of coming to another hearing, as the court deem equitable. Indeed, as to costs in chancery, it may be remarked generally that our statute places them entirely at the discretion of the court of chancery, both as to the amount, and the party who shall pay them, except in some few cases where special provision is made; and payment may be forced by any method the court may direct. But if, on the other hand, the demurrer be overruled, the defendant must pay the costs; and no other demurrer will be received. But the defendant may obtain leave to plead or answer, upon making affidavit that he has a meritorious defence, and that the demurrer was not filed for the purpose of delay. Otherwise, a decree will be rendered upon the bill as confessed. $222. Plea. (a) The second method of making defence is by plea. This is the proper course where the defence rests upon a single point, as, for example, the statute of frauds, a release, or the like; or upon several matters so connected as to result in a single point; but two or more distinct matters of defence are not allowed in the same plea, or in different pleas. They can only be presented in

In case of a special demurrer, add the causes thereof immediately before the prayer for judgment. The joinder in demurrer merely contradicts the demurrer, by asserting that the bill does present such a case as entitles the complainant to relief in equity. See cases on demurrer. Carl v. Iglehard, 3 Ohio State, 457; Gilbert v. Sutliff, 3 id. 129.

(a) Form of a Plea. The plea of to the bill filed against him by The said by protestation, not confessing or acknowledging all or any of the matters contained in the complainant's bill to be true, in manner and form as the same are therein declared, for plea thereunto says, that before the filing of this present bill, to wit, on or about the, the said complainant filed his bill in this court against this defendant, for the same matters and to the same effect, and for the like relief and purpose, as the present bill; to which said first bill this defendant has made answer; and the said first bill is still depending in this court, and the said cause undetermined; wherefore this defendant doth plead the said former bill and proceedings in bar of the present suit; and prays judgment whether he shall be compelled to make any further answer thereunto; and that he may be hence dismissed with his

costs.

This form might be abridged by leaving out the protestation and commencing thus: The said comes and pleads to the said bill and says, &c. As this plea relies on a matter of record, it requires no affidavit; but when an affidavit is required, its form is the same as that appended to an answer, and will be given hereafter.