AN ACT to regulate the practice in courts of chancery. [Approved March 15, 1872. In force July 1, 1872.

L. 1871-2, p. 329.[

1. JURISDICTION.] § 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That the several circuit courts of this state, and superior court of Cook county, in all causes of which they may have jurisdiction as courts of chancery, shall have power to proceed therein according to the mode hereinafter prescribed; and where no provision is made by this act, according to the general usage and practice of courts of equity. [R. S. 1845, p. 93, § 1.

2. RULES-PRACTICE.] § 2. The judges of the circuit courts, and of the superior court of Cook county, in their respective circuits, may establish rules of proceeding in chancery, and make all needful orders and regulations, consistent with the practice of courts of chancery, in cases not provided for by law. [R. S. 1845, p. 95, § 17.

3. VENUE.] § 3. Suits in chancery shall be commenced in the county where the defendants, or some one or more of them resides; or if the defendants are all non-residents, then in any county; or if the suit may affect real estate, in the county where the same or some part thereof is situated. Bills for injunctions to stay proceedings at law shall be brought in the county in which the proceedings at law are had. [R. S. 1845, p. 93, § 2.

4. MODE OF COMMENCING SUITS.] § 4. The mode of commencing suits in chancery shall be by filing a bill of complaint with the clerk of the proper court, setting forth the nature of the complaint. [R. S. 1845, p. 93, § 2.

5. SUITS BY PERSONS UNDER GUARDIANSHIP.] § 5. Suits in chancery may be commenced and prosecuted by infants, either by guardian or next friend, and by conservators on behalf of the persons they represent. [R. S. 1845, p. 93, § 4.

6. GUARDIAN AD LITEM.] § 6. In any cause in equity it shall be lawful for the court in which the cause is pending to appoint a guardian, ad litem, to any infant or insane defendant in such cause, and to compel the person so appointed to act. By such appointment, such person shall not be rendered liable to pay costs of suit; and he shall, moreover, be allowed a reasonable sum for his charges as such guardian, to be fixed by the court, and taxed in the bill of costs. [R. S. 1845, p. 99, § 47.

7. UNKNOWN OWNERS, ETC.-AFFIDAVIT NOTICE.] § 7. In all suits in chancery, and suits to obtain title to lands, in any of the courts of this state, if there be persons interested in the same, whose names are unknown, it shall be lawful to make such persons parties to such suits or proceedings, by the name and description of unknown owners, or unknown heirs or devisees of any deceased person, who may have been interested in the subject matter of the suit previous to his or her death; but in all such cases an affidavit shall be filed by the party desiring to make any unknown person a party, stating that the names of such persons are unknown; and process shall be issued against all parties, by the name and description given as aforesaid; and notices given, by publication, as is required in this act, shall be sufficient to authorize the court to hear and determine the suit, as though all parties had been sued by their proper names. [R. S. 1845, p. 98, § 41.

8. SUMMONS.] § 8. Upon the filing of every bill, the clerk of the court shall thereupon issue a summons, tested, dated and sealed as a summons in common law suits, directed to the sheriff of the county in which the defendant resides, if the defendant be a resident of this state, requiring him to appear and answer the bill on the return day of the summons; and where there are several defendants residing in different counties, a separate summons shall be issued to each county, including all the defendants residing therein. [R. S. 1845, p. 93, § 5; p. 94, § 6.

9. SUMMONS, WHEN RETURNABLE.] § 9. Every summons in chancery shall be made returnable to the next term of the court after the date thereof, or the next succeeding term thereafter. [R. S. 1845, p. 94, § 6.

10. ALIAS, PLURIES, ETC.] § 10. If, in any suit in chancery, the process shall not be returned executed on or before the return day thereof, the clerk, if required, shall issue an alias, pluries, or other process, without an order of the court therefor. [R. S. 1845, p. 94, § 11.

11. SERVICE OF SUMMONS-CONTINUANCE.] § 11. Service of summons shall be made by delivering a copy thereof to the defendant, or leaving such copy at his usual place of abode, with some person of the family, of the age of ten years or upwards, and informing such person of the contents thereof. If service is not had at least ten days before the return day of such summons, the cause shall stand continued till the next term of the court. [R. S. 1845, p. 94, § 7.

12. NOTICE BY PUBLICATION, ETC. § 12. Whenever any complainant or his attorney shall file in the office of the clerk of the court in which his suit is pending, an affidavit showing that any defendant resides or hath gone out of this state, or on due inquiry cannot be found, or is concealed within this state, so that process cannot be served upon him, and stating the place of residence of such defendant if known, or that upon diligent inquiry his place of residence cannot be ascertained, the clerk shall cause publication to be made in some newspaper printed in his county, and if there be no newspaper published in his county, then in the nearest newspaper published in this state, containing notice of the pendency of such suit, the names of the parties thereto, the title of the court, and the time and place of the return of summons in the case; and he shall also, within ten days of the first publication of such notice, send a copy thereof by mail, addressed to such defendant whose place of residence is stated in such affidavit. The certificate of the clerk that he has sent such notice in pursuance of this section, shall be evidence. [R. S. 1845, p. 94, § 8.

13.

WHEN NOTICE MAY BE GIVEN-DEFAULT.] § 13. The notice required in the preceding section may be given at any time after the commencement of the

suit, and shall be published at least once in each week for four successive weeks, and no default or proceeding shall be taken against any defendant not served with summons, or a copy of the bill, and not appearing, unless forty days shall intervene between the first publication, as aforesaid, and the first day of the term at which such default or proceeding is proposed to be taken. [R. S. 1845, p. 94, § 8, 9.

14. SERVICE BY COPY OF BILL-PROOF.] § 14. The complainant may cause a copy of the bill, together with a notice of the commencement of the suit, to be delivered to any defendant residing or being without this state, not less than thirty days previous to the commencement of the term at which such defendant is required to appear; which service, when proved to the satisfaction of the court, shall be as effectual as if such service had been made in the usual form, within the limits of this state. The service by a copy of the bill may be proved by the affidavit of the person serving the same, made before any officer authorized to administer oaths in the place where the affidavit is made, or in case the service is made in any foreign country, before any United States minister or consul residing in the country where the same is made. [R. S. 1845, p. 94, § 12; L. 1869, p. 356, § 1.

15. WHEN CONTINUED FOR SERVICE.] § 15. If, for want of due publication or service in time, the cause shall be continued, then the same proceedings may be had at a subsequent term of the court as might have been had at the term to which said summons is returnable. [R. S. 1845, p. 94, § 10.

16. PLEADING—DEFAULT-BILL CONFESSED.] § 16. Every defendant who shall be summoned, served with a copy of the bill or petition, or notified as required in this act, shall be held to except, demur, plead or answer on the return day of the summons; or if the summons is not served ten days before the first day of the term at which it is returnable, by the first day of the next term; or in case of service by copy of the bill, or by notice, at the expiration of the time required to be given, or within such further time as may be granted by the court; or, in default thereof, the bill may be taken as confessed. [R. S. 1845, p. 95, § 18. 17. DECREE, WHEN VACATED AT NEXT TERM.] § 17. If the defendant shall appear at the next term and offer to file his answer to the bill, the court, may permit him to do so, upon his showing sufficient cause, and paying the costs of the preceding terms. In such case the decree shall be vacated and the cause may be proceeded in as in other cases. [R. S. 1845, p. 95, § 18.

18. PROOF ON BILL CONFESSED.] § 18. Where a bill is taken for confessed, the court, before a final decree is made, if deemed requisite, may require the com plainant to produce documents and witnesses to prove the allegations of his bill, or may examine him on oath or affirmation touching the facts therein alleged. Such decree shall be made in either case as the court shall consider equitable and proper. [R. S. 1845, p. 95, § 18.

19. WHEN DECREE MAY BE SET ASIDE.] § 19. When any final decree shall be entered against any defendant who shall not have been summoned or been served with a copy of the bill, or received the notice required to be sent him by mail, and such person, his heirs, devisees, executor, administrator or other legal representatives, as the case may require, shall, within one year after notice in writing given him of such decree, or within three years after such decree, if no such notice shall have been given as aforesaid, appear in open court and petition to be heard touching the matter of such decree, and shall pay such costs as the court shall deem reasonable in that behalf, the person so petitioning may appear and answer the complainant's bill, and thereupon such proceedings shall be had as if the defendants had appeared in due season and no decree had been made. And if it shall appear, upon the hearing, that such decree ought not to have been made against such defendant, the same may be set aside, altered or amended as shall appear just; otherwise the same shall be ordered to stand confirmed against said defendant. The decree shall, after three years from the making thereof, if not set aside in manner aforesaid, be deemed and adjudged confirmed against such defendant, and all persons claiming under him by virtue of any act done

subsequent to the commencement of such suit; and at the end of the said three years, the court may make such further order in the premises as shall be required to carry the same into effect. [R. S. 1845, p. 95, § 15.

20. WAIVING OATH.] $20. When a bill, supplemental bill, bill of review, of reviver, or cross bill, shall be filed in the court of chancery, other than for discovery only, the complainant may waive the necessity of the answer being made on the oath of the defendant, defendants or any of them; and, in such cases, the answer may be made without oath, and shall have no other or greater force as evidence than the bill. [R. S. 1845, p. 96, § 21.

21. ANSWER UNDER OATH.] 21. Every answer shall be verified by an oath or affirmation, except as provided in the foregoing section. [R. S. 1845, p. 95, § 20.

22. PRIVATE CORPORATIONS-DISCOVERY BY.] §22. When a corporation, other than a municipal corporation, is defendant to a bill or petition praying discovery of any paper or matter alleged to be in the custody or within the knowledge of any officer or agent of the defendant, it shall not be necessary, for the purpose of procuring such discovery, to make such officer or agent a defendant, but the answer touching the paper or matter concerning which discovery is sought, shall be under the oath of such officer or agent the same as if he had been made defendant: Provided, no corporation shall be required to procure such answer under the oath of any person not under its control at the time when the bill is filed.

23. FULL ANSWER REQUIRED.] § 23. Every defendant shall answer fully all the allegations and interrogatories of the complainant, whether an answer on oath is waived or not, except such as are not required to be answered, by reason of exceptions, plea or demurrer thereto allowed. [R. S. 1845, p. 96, § 23.

24. INSUFFICIENT ANSWER-CONTEMPT.] § 24. When an answer shall be adjudged insufficient, the defendant shall file a further answer within such time as the court shall direct, and on failure thereof, the bill shall be taken as confessed; if such further answer shall be likewise adjudged insufficient, the defendant shall file a supplemental answer, and pay all costs attendant thereon; if that shall be adjudged insufficient, the defendant may be proceeded against for a contempt, and the like proceedings be had thereon, to enforce the order of the court, as in other cases of contempt. [R. S. 1845, p. 96, § 22.

25. DISCOVERY-DISPROVING ANSWER.] § 25. When the complainant shall require a discovery respecting the matters charged in the bill, the disclosure shall not be deemed conclusive, but if a replication be filed, may be disproved or contradicted, like any other testimony, according to the practice of courts of equity. [R. S. 1845, p. 97, § 33.

26. FURTHER INTERROGATORIES.] § 26. On the coming in of any answer, the complainant may, by leave of court, exhibit and file further interrogatories, to be answered by the defendant within such time as shall be fixed by the court. 27. EXCEPTIONS TO ANSWERS, ETC.] § 27. All exceptions to answers or to interrogatories exhibited, shall be filed within such time as the court may direct, and be argued at such time as the court may appoint. [R. S. 1845, p. 96, § 30.

28. REPLICATIONS.] § 28. Replications shall be general, with the like advantage to all parties as if special, and shall be filed in four days after the plaintiff or his attorney shall be served with notice of answer filed. [R. S. 1845, p. 96, § 31.

29. HEARING.] § 29. After replication is filed, the cause shall be deemed at issue and stand for hearing, or in default of filing such replication, the cause may be set for hearing upon the bill and answer; in which case the answer shall be taken as true, and no evidence shall be received, unless it be matter of record to which the answer refers. [R. S. 1845, p. 96, § 32.

30. CROSS-BILL.] $30. Any defendant may, after filing his answer, exhibit and file his cross-bill, and call upon the complainant to file his answer thereto, in such time as may be prescribed by the court. [R. S. 1845, p. 96, § 24.

31. FORM OF CROSS-BILL-PROCESS.] § 31. It shall not be necessary to recite in a cross-bill any of the pleadings or proceedings in the case in which it is filed; and it shall not be necessary to pray process except against new parties.

32. PLEADING TO CROSS-BILL.] § 32. The complainant shall be required to except, plead, demur or answer to such cross-bill in the same manner that a defendant is required to except, plead, demur or answer to an original bill, and his answer shall have the same effect as a defendant's answer to a bill. [R. S. 1845, p. 96, § 25.

33. FAILURE TO ANSWER CROSS-BILL. § 33. If the complainant shall fail to answer such cross-bill, his bill shall be dismissed with costs, or the new matter set out in the defendant's cross-bill shall be taken as confessed, and a decree entered accordingly. [R. S. 1845, p. 96, § 26.

34. NEW PARTY ON CROSS-BILL.] § 34. Where it is necessary for the defendant to bring a new party before the court, he shall state it in his cross-bill, and a summons shall be issued, and other proceedings had, as in the case of other defendants. [R. S. 1845, p. 96, § 27.

35. ANSWER TO CROSS-BILL.] § 35. The complainant shall not be compelled to file his answer to any cross-bill, until the defendant shall have filed a sufficient answer to the complainant's bill. [R. S. 1845, p. 96, § 29.

36. DISMISSING AFTER CROSS-BILL FILED.] § 36. No complainant shall be allowed to dismiss.his bill, after a cross-bill has been filed, without the consent of the defendant. [R. S. 1845, p. 96, § 28.

37. EXTENDING TIME TO PLEAD-AMENDMENTS.] § 37. The court may extend the time for answering, replying, pleading, demurring, or joining in demurrer; and may permit the parties to amend their bills, pleas, answers and replications, ou such terms as the court may deem proper, so that neither party be surprised nor unreasonably delayed thereby; and no amendment shall be cause for a continuance, unless the party to be affected thereby, or his agent or attorney, shall make affidavit that, in consequence thereof, he is unprepared to proceed to trial of the cause at that term, and that he verily believes that if the cause is continued such party will be able to make such preparation. [R. S. 1845, p. 97, § 34.

38. SUPPLYING LOST RECORDS.] § 38. In all chancery proceedings where the bill of complaint, or any other paper filed in the cause, shall be lost or mislaid, the court in which said cause shall be pending may, in its discretion, permit the files to be supplied by the filing of a copy, in substance, of the lost or mislaid bill of complaint, or other paper, on the party wishing to supply the files making an affidavit, to the satisfaction of said court, that said bill of complaint, or other paper, is substantially a copy of the original, to the best of his knowledge, recollection and belief. [L. 1869, p. 357, § 1.

39. REFERANCE TO MASTER.] § 39. The court may, upon default, or upon issue being joined, refer the cause to a master in chancery, or special commissioner, to take and report evidence, with or without his conclusions thereupon.

40. MODE OF TRIAL-JURY. § 40. The court may, in its discretion, direct an issue or issues to be tried by a jury, whenever it shall be judged necessary in any cause in equity, pending therein. In all other causes in equity, the mode of trial shall be the same as has been heretofore practiced in courts of chancery. [R. S. 1845, p. 97, § 35.

41. CONTEMPT FOR FAILURE TO APPEAR OR ANSWER.] § 41. If a defendant in any proceeding in equity, having been served with summons, or personally notified, as provided in this act, shall fail or refuse to appear or answer the bill of complaint, he may be attached and otherwise proceeded against according to the practice in equity in cases of contempt. [R. S. 1845, p. 95, § 16.

42. ENFORCEMENT OF DECREE.] § 42. When any bill is taken for confessed, or upon hearing, the court may make such decree thereon as may be just, and may enforce such decree, either by sequestration of real and personal estate,