Part

III.-Process-Pleadings-Evi-, in general terms, the object of the suit, and

dence.

IV. OF PROCESS.

1. SUBPOENA TO ANSWER AND NOTICE OF SUIT.

29. The subpoena to answer shall be substantially in the form stated in Schedule B annexed to the Chancery act (1915). (July

4, 1915.)

why the persons to whom it is addressed are made defendants; and in foreclosure suits state the parties to the mortgage to be foreclosed, the date thereof and the municipality and county in which the lands are situate; and in suits under the "Act to compel the determination of claims to real estate in certain cases and to quiet the title to the same," shall describe, with precision, the lands in respect to which the bill is filed, and state 30. The names of all the defendants in the the object of the suit, and notify the defendsame causé shall be inserted in one subpoena, ants that if they claim any title to, interest unless the defendants reside in different in, or encumbrances upon, said lands, they counties, in which case the names of all those are required to answer the bill, but not othwho reside in the same county shall be in-erwise; and in suits under the "Act to compel serted in the same subpoena. (May 21, 1822.) the determination of the existence and validi31. Copies of tickets served with the sub-ty of covenants, conditions and agreements pœna upon defendants shall be annexed to and returned with the subpoena. (April, 1841.)

32. In every suit brought by a stockholder of a corporation, in behalf of himself and other stockholders, for relief to which the corporation is entitled, the complainant shall immediately, on filing the bill of complaint and issuing a subpoena to answer, give such notice of the pendency and object of the suit to the other stockholders of said corporation as the Chancellor shall in each case by order direct. (November 5, 1892.)

2.-AGAINST ABSENT DEFENDANTS.

33. In all suits against an absent defendant, an order may be had that said defendant appear and answer the complainant's bill in two months from the date of the order, unless the Chancellor, for special reasons, shall otherwise direct. (1853.)

34. No order of publication shall be made in any suit until after the return day of the subpoena or citation therein, without the special order of the court. (May 20, 1879. Amended May 12, 1893.)

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," shall describe, with precision, the lands in respect to which the bill is filed, 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 with 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. (February 1, 1910.)

NOTE.-See Rule 39.

37. The complainant or his solicitor, or his ment and conduct of the suit, in all cases agent actually entrusted with the managewhere the residence and post office address of an absent defendant not actually served with the notice to appear shall not be known, shall make diligent and careful inquiry there35. Where publication is required for ab- for; such inquiry shall, as to persons made sent defendants to answer the bill, there defendants by reason of a judgment, attachshall be published or served a notice sub-ment or decree, include inquiry of the plainstantially of the form prescribed by Rule 36; tiff's attorney or solicitor in such judgment, and if published, and the suit concerns land, attachment or decree, if residing within this such publication shall be in a newspaper pub-state, and as to persons made defendants by lished in the county where the lands are situate, or in case the lands are situate in more than one county, then in a newspaper published in each county in which the lands are situate, unless otherwise ordered. (March 12, 1867. Amended May 20, 1879, and May 12, 1893. November 1, 1901.)

NOTE.-See Rule 39.

36. 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 and

reason of any mortgage or contract stated in the bill, shall include inquiry of the person who made the mortgage or contract, if known and residing in this state; 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. (March 12, 1867. Amended February 3, 1891, May 12, 1893, and January 1, 1917.)

NOTE.-For inquiry in divorce cases, see Rule

NOTE.-See Rules 44 et seq., and Schedule of Forms.

38. No decree pro confesso shall be taken set forth, may add such parts as may be against an absent defendant who has not ap- necessary to complete or correct the same. peared or been served with process of sub- (1853.) pœna, unless it shall appear by proof that the notice prescribed by the 36th 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. (March 12, 1867. Amended February 3, 1891, May 12, 1893, November 1, 1901, 1907, and January 1, 1917.)

NOTE. For proceeding against absent defendants in divorce cases, see Rules 257 and 258.

39. The 35th and 36th rules shall apply to suits for divorce; those rules and also the 37th and 38th rules shall apply 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. (December 23, 1871; July 4, 1903; January 1, 1917.)

V.-OF PLEADINGS.

1.-GENERAL RULES FOR PLEADINGS.

40. 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 169. Every bill shall be signed by counsel before it is filed. 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 defendant if there be more than one, and with a statement of the contents, as "bill," "answer," "decree," or the like, and with the name of the solicitor, or of the party, if he appears for himself; 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. (September 8, 1817. Amended November 1, 1901. 1907.)

41. 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 repeat documents or parts of documents set forth in any previous pleading,

42. 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 statement 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. Unless otherwise required by statute, general rule or special order, it shall be sufficient service of any paper in the cause to leave the same at such office or residence between the hours of 10 a. m. and 4 p. m. until notice of removal to another office or residence is received. (November 1, 1901.)

NOTE. As to service by posting in clerk's office, see Rule 182.

43. The following rules respecting pleadings shall apply to suits for divorce and annulment of marriage so far as they are applicable and not inconsistent with the provisions of the divorce act. (July 4, 1915. Amended January 1, 1917.)

44. All pleadings must contain a plain and concise statement of the facts on which the pleader relies (and no others) but not of the evidence by which they are to be proved.

The statement must be divided into paragraphs numbered consecutively, each containing, as near as may be, a separate allegation. Dates, sums and numbers must be in fig

ures.

If any pleading be insufficient, the court may order a fuller and more particular statement to be made therein; and if the pleadings do not sufficiently define the issues, the court may order other issues prepared; and may settle the issues if the parties differ. (July 4, 1915.)

further and better particulars to be given of 45. The court may, in its discretion, order any matter stated in any pleading, or may order a bill of particulars to be given, in any case in which it may be justly required. (July 4, 1915.)

46. When the pleader relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence (and in other cases in which details or particulars were required by the former rules of equity pleading to be pleaded) particulars of the wrong, with dates and items if necessary, shall be stated in the pleading so far as practicable.

N. J.)

47. Statements of fact in any pleading (as in stating separate causes of action or separate defenses or a counter-claim) must not be repeated in other parts of the same pleading, but may be referred to in lieu of repetition. (July 4, 1915.)

NOTE.-See Rule 53.

48. Allegations or denials, made without reasonable cause, and found untrue, shall subject the party pleading the same to the payment of such reasonable expenses, to be taxed by the court, as may have been necessarily incurred by the other party by reason of such untrue pleading. (July 4, 1915.) 49. Every material allegation of fact in a pleading, which is not denied by the adverse party, is deemed to be admitted (except as against an infant, or person of unsound mind) unless such adverse party avers that he has no knowledge or information thereof sufficient to form a belief. (July 4, 1915.)

56. A denial must not be evasive, but must fairly meet the substance of the allegation denied; thus, if payment of a certain sum be alleged, when, in fact, less was paid, the pleader must not deny payment generally but must state how much was paid; and where any fact is alleged with divers circumstances, some of which are untruly stated, the denial must not be of the fact as alleged, but so much as is true and material must be admit

ted and the rest only denied. (July 4, 1915.)

57. Express admissions and denials must be direct, precise, specific, and not argumentative, hypothetical, or in the alternative; accordingly, when a pleader wishes expressly to admit or deny a portion only of a paragraph he must recite that portion; except that where a recited portion of a paragraph has been either admitted or denied the remainder of the paragraph may be denied or admitted without recital.

Admissions or denials of allegations identi

of or by describing the facts alleged as "consistent" or "inconsistent" with other facts recited or referred to, are improper. (July 4, 1915.)

50. Acts and contracts may be stated ac-fied only by summary or generalization therecording to their legal effect, but in so doing the pleading should be such as fairly to apprise the adverse party of the state of facts which it is intended to prove; thus, an act or promise of a principal (other than a corporation) if, in fact, proceeding from an agent known to the pleader, should be so stated. (July 4, 1915.)

51. In pleading any document, a copy thereof may be annexed to the pleading, and referred to therein with like effect as if it were recited at length: Provided, that copies of bonds or mortgages or assignments thereof shall not be annexed to bills for foreclosure. (July 4, 1915.)

52. Inconsistent causes of action and inconsistent defenses, when stated in the alternative, are not objectionable. (July 4, 1915.)

2.-BILL OF COMPLAINT.

58. The bill of complaint shall contain a statement of the facts constituting the cause of action, in accordance with these rules, and prayers for the relief sought. (July 4, 1915.)

59. When separate causes of action are joined, the statement of the second shall be prefixed with the words "Second Cause of Action," and so on for the others; and the several paragraphs of each shall be numbered separately. (July 4, 1915.)

60. Relief other than that prayed for may be given (without a prayer for general relief) to the same extent as if general or other relief had been prayed for. (July 4, 1915.)

61. Upon any suit in the Court of Chancery 53. Unnecessary repetition, prolixity, scandal, impertinence, obscurity and uncertainty, becoming abated by death, marriage or otherand any other violation of the rules of plead-wise, or defective by reason of some change ing, are respectively objectionable.

The court may, on motion, or of its own initiative, order amendments of such defects upon terms or may make such other order in the premises as may be just. (July 4, 1915.) NOTE.-See Rule 47.

54. Supplemental pleadings showing matters arising since the original pleadings, or suit begun, may be filed by either party by leave of court and upon terms. (July 4, 1915.) NOTE.-See Rules 63, 64.

55. When an express agreement, or any document, is referred to in a pleading, and is not annexed thereto, or recited verbatim therein, a copy of the document or of the agreement (if it be in writing) must be served on the adverse party within five days after service of written demand for the same.

or transmission of interest or liability, it shall not be necessary to exhibit a bill of revivor or supplemental bill 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, or the usual or necessary decree or order to carry on such proceedings, 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 is claimed. An order so obtained, when served upon the party or parties who, according to the existing practice, would be defendant or defendants to a bill of revivor or supplemental bill,

shall from the time of such service, be bind- in the bill of complaint, the answer must reing on such party or parties in the same fer each defense to the cause of action, to manner, in every respect, as if such order which it is pleaded. Thus, the statement had been regularly obtained according to the should be headed "Defense to First Cause of existing practice. And such party or parties Action," "Defense to Second Cause of Acwill thenceforth become a party or parties to tion," and so on. (July 4, 1915.) the suit in like manner as if he or they had 66. An answer to a bill of complaint, or to been duly served with process to appear to a counterclaim, need not be sworn to, una bill of revivor or supplemental bill; pro- less the bill or counterclaim pray answer on vided, however, that he or they may, within oath. A sworn answer, when answer under fifteen days after such service, apply to the oath is not prayed for, shall have the same Chancellor to discharge such order; provid-effect now given by the Chancery act to an

ed 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. (November 7, 1883. Amended January 1, 1917.)

62. 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. (February 1, 1910.)

63. Where a bill of revivor or supplemental bill or bills in the nature of either or both, for the joinder of additional or different 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, 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, 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 supplemental bill or bill of revivor, which contained a recital of the allegations and prayers of the original bill and the proceedings thereon. (November 1, 1901.)

NOTE.-See Rule 54.

64. Bills of revivor or supplemental bills shall not restate any of the statements in the original suit unless the special circumstances of the case require it. (July 4, 1915.) NOTE.-See Rule 54.

unsworn answer. (July 4, 1915.)

67. Demurrers, pleas and exceptions to answer are abolished. Any pleading may be objected to, on motion, on the ground that it cause of action, defense, or discloses no counter-claim, respectively.

On the hearing of such motion, the court, in its discretion, may order the application to stand over until the hearing, and if the objection be to the bill or counterclaim, may require the same to be answered on such terms and conditions as may be ordered. (July 4, 1915.)

If

68. Every defense heretofore presentable by plea, shall be made in the answer, and may, in the discretion of the court, be heard and disposed of before the hearing of the The evidence necessary to deprincipal case. termine the questions raised by such defense shall be taken as the court shall direct. a defense be stated, which heretofore would have been the proper subject of a plea, the answer need not answer the allegations of the bill of complaint further than is necessary to support such defense. In such case, should the answer be found insufficient or untrue, the court may, in its discretion and on terms, permit the defendant to answer the bill fully, or may make such other order or decree as may be just. (July 4, 1915.)

69. Defendants shall not plead to bills of interpleader except to contest the complainant's right to relief. In case of such contest, successful complainants shall serve a copy of the decree on all answering defendants, and until proof of such service is filed, they shall not be considered discharged. Nonanswering defendants shall, within twenty days after the return day of the subpœna, and answering defendants shall, within twenty days after the service of a copy of the decree, 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 affirmative defenses, they shall, within fifteen days after the time above limited, file supplemental statements concisely setting forth such defenses. At the hearing defendants shall be confined to the grounds of the claims and the causes of defense so statNo general denial of all the averments of ed, unless leave of the court to enlarge such Causes the bill is permissible. grounds and causes be obtained.

3. THE ANSWER.

65. The answer must specifically admit, or deny, or explain, the material facts as stated in the bill of complaint unless the defendant has no knowledge or information sufficient to form a belief, and so states.

defendant, as provided for in the rules con-, defenses not anticipated in the bill. cerning litigated matters. (1901. Amended shall be deemed to be joined upon the new July 4, 1913, and January 1, 1917.)

"By way of counter-claim against" (stating the parties against whom the counterclaim is made, and designating as "third | (July 4, 1915.) parties" those not made parties in the bill of complaint). (July 4, 1915.)

71. A counter-claim is deemed to be a crossaction, and the rules respecting the form and manner of pleading the bill of complaint and answer, apply respectively to the counterclaim and the answer thereto. (July 4, 1915.) 72. If the amount found due to the defend-twenty days after the return day of the subant on the counter-claim exceeds the amount found due to the complainant, the defendant shall have a decree for the excess. (July 4, 1915.)