administrators of the assignor, praying to have want of proper parties until the final hearing, the assignment declared void, and that the the objection will not be regarded if a decree property assigned be brought into administra- can be made without them; if not, the case tion for the payment of the orator's debt;- will only stand over to bring in the necessary Held, that the other creditors provided for in parties. Cannon v. Norton, 14 Vt. 178. 18 the assignment were not necessary parties. Vt. 420. Day v. Cummings, 19 Vt. 496. Page Therasson v. Hickok, 37 Vt. 454. v. Olcott. Rowan v. Union Arms Co., 36 Vt. 124. 70. Contribution. On a bill for contribu-| 79. Where certain heirs, apparently intertion and to settle the affairs of a "union store,"ested in the subject matter of the orator's claim, certain associates, who left the State before the were not made parties to the bill, but gave their business of the "division" was closed and were depositions in which they disclaimed all interbeyond the reach of process, were properly left est ;-Held, that such disclaimer would bar any out of the account for contribution. Henry v. future claim on their part, and therefore superJackson, 37 Vt. 431. seded the necessity of their being made parties. 71. Parties numerous. A bill will not be McConnell v. McConnell, 11 Vt. 290. 19 Vt. 499. dismissed because all the parties in interest are 80. If there be a mis-joinder of a defendnot made defendants, where their number is so ant, and this is apparent in the bill, and the obgreat as to make it impracticable to bring them jection is not made by demurrer, nor in the all in, or where this would be attended with answer, it should be considered as waived, and great inconvenience and expense. But it must as coming too late when raised at the hearing. appear in all such cases, that a full and com- Wing v. Cooper, 37 Vt. 169. plete decree can be made as between the parties 81. Where a decree can be made which will before the court, and without substantial injury do entire justice to all parties, notwithstanding to third persons. Stimson v. Lewis, 36 Vt. 91. the non-joinder or mis-joinder of a party, and 72. Joint sureties. Where some of the the objection, though known before, is not injoint sureties pay the debt jointly, they may sisted upon by plea, demurrer or answer, it join in a bill against the other sureties for con- cannot be raised upon the hearing. Smith v. tribution; and there is no objection to a decree Bartholomew, 42 Vt. 356. against the defendants severally for so much as 82. Parties misplaced. A court of chaneach is liable for. Fletcher v. Jackson, 23 Vt. 581. cery will not ordinarily dismiss a suit on ac73. Questions of mis-joinder and non-count of any mere informality in the position joinder. On a petition by husband and wife of the parties, as orators or defendants, if all to foreclose two mortgages upon the same land, the parties interested are before the court. West one to the husband and the other to the wife, v. Bank of Rutland, 19 Vt. 403. an objection for mis-joinder was disallowed on the hearing, it not having been noticed in the pleadings. Bartlett v. Boyd, 34 Vt. 256. 74. There are many cases where defendants have not a co-extensive common interest or relation, and yet are properly joined as defendants; and so held in this case. Eureka Marble Co. v. Windsor Mfg. Co., 47 Vt. 430. 83. All the parties being before the court and heard, the court rendered a decree settling their rights, though one of the defendants should have been orator, and the orator a defendant. Isham v. Higbee, 2 Vt. 354. Nason v. Smalley, 8 Vt. 118. 84. Amendment. Where a bill was brought in behalf of a corporation, as claimed, and it 75. Where the defendant had wrongfully turned out on hearing that the complainant had filled in a common private passage way, in no legal existence as a corporation ;-Held, that which the orator had a right of passage as well it was within the power of the court of chanas the defendant, and also one A;-Held, that a cery, in its discretion, to allow an amendment decree might be made that the defendant re- by bringing in, as complainants, the stockholdmove or grade down the filling-in, without ers in the company, to prosecute the same right making A a party to the bill.-That was but in their own names. Whether the evidence to make him undo what, to the orator's preju- filed before such amendment could be read on dice, he had improperly done. Walker v. Pierce, the hearing, after the amendment, would de38 Vt. 94. pend upon the circumstances of the case, and 76. On general demurrer a bill is sufficient the issues involved. Vt. Mining Co. v. Windin regard to parties, if the facts stated disclose ham Co. Bank, 44 Vt. 489. one ground on which the orator is entitled to relief without additional parties. Shaw v. Chamberlin, 45 Vt. 512. 77. Waiver. As a general rule, if the want of parties to a bill is not insisted upon in the answer, it cannot be at the hearing. Page v. Olcott, 28 Vt. 465. 85. Instance of amendment by bringing in new parties, after hearing on appeal. Barrett v. Sargeant, 18 Vt. 365. 2. Demurrer. 86. Demurring to a bill for want of equity 78. If no objection be taken to a bill for is submitting to the jurisdiction of the court, An objection to jurisdiction over the defend-responsive to the bill, must be taken as true; ants should be presented by plea. Bank of B. and where the facts so stated constitute a full Falls v. Rut. & Bur. R. Co., 28 Vt. 470. defense, the bill must be dismissed. Slason v. Wright, 14 Vt. 208. 87. A demurrer to a bill upon its merits admits the facts regularly pleaded, and an order 97. Where a case stands upon bill and anoverruling the demurrer is made upon the sup-swer not traversed, the allegations of the deposition of the truth of the matters stated; and fendant made by way of belief come within the it is well enough that the record should state general rule that the answer is to be taken as them as being taken as true, and so the orator true. Gates v. Adams, 24 Vt. 70. is entitled to relief. Hall v. Dana, 2 Aik. 381. 98. Answer as evidence. But where the 88. Unless the demurrer is to that part of answer to a bill is upon information and belief the bill which claims a discovery, objection only, and the defendant is not supposed to have, cannot be taken, under it, to interrogatories and does not profess to have, personal knowlwhose answer might subject the defendant to a edge of the facts stated in the bill, such answer, penalty. Payne v. Hathaway, 3 Vt. 212. being traversed, is not evidence of the truth of 89. The question of a presumptive bar from its denials which requires to be overcome by lapse of time cannot be raised by demurrer to something more than the testimony of one wita bill. Ib. ness. Loomis v. Fay, 24 Vt. 240. Wooley v. Chamberlain, Ib. 270. 90. A demurrer to the whole bill will be overruled, if it is ill as to part. Shed v. Garfield, 5 Vt. 39. 3. Plea; Answer; Cross bill. 99. The general rule is, that the answer of one defendant is not evidence for, or against, his co-defendant. Blodgett v. Hobart, 18 Vt. 414. Cannon v. Norton, 14 Vt. 178. 100. When responsive. An answer re91. Form and substance of answer. sponsive to the allegations of a bill, or petition, Where a defendant makes his defense by way is evidence for the defendant; and his right to of answer, he must set up in it all the various have the answer taken as evidence is co-extengrounds of defense upon which he intends to sive with his obligation to answer. Blaisdell v. rely; otherwise, they are not in the case. War- Bowers, 40 Vt. 126. Rich v. Austin, 40 Vt. ren v. Warren, 30 Vt. 530. 416. Grafton Bank v. Doe, 19 Vt. 463; and 92. A defendant may answer in part, and see Adams v. Adams, 22 Vt. 50. refuse to answer further by stating sufficient 101. What is responsive will be determined ground why he should not be compelled to an- by the bill, and not by the interrogatories. swer further. Hunt v. Gookin, 6 Vt. 462. These can neither limit nor extend the defendant's obligation to answer. Redfield, J., in McDonald v. McDonald, 16 Vt. 630. 93. In order to excuse the defendant from either admitting or denying in his answer the truth of any material allegation of the bill, it 102. The answer is to be considered as a is necessary that he deny all knowledge and in- plea, and so far as any fact is admitted it is formation upon the point. If he has any in- evidence against the defendant; but when any formation upon a material matter alleged, aside new fact is alleged by way of avoidance of the from the bill itself, he is bound to state his be- matter charged in the bill and admitted in the lief of the truth or falsity of the allegation; answer, and the answer is traversed, it stands otherwise, the answer is subject to exception. like any other plea, and must be proved. RedDevereaux v. Cooper, 11 Vt. 103. field, J. Ib. 94. Exceptions to answer. Any defects 103. If the answer assert matter affirmain an answer must be supplied by taking ex- tively in opposition to the right claimed by the ceptions and obtaining a further answer. If orator, though it be responsive to the bill, the defendant omits to answer, or answers quare, whether, upon a traverse, the answer evasively, this is not to be taken as an implied shall be received as proof, or as mere pleading. admission against his interest, or of the facts Bennett, J., in Allen v. Mower, 17 Vt. 67. But alleged in the bill, but he should be pushed to see Grafton Bank v. Doe, 19 Vt. 463. Blaisa distinct and explicit declaration as to how the dell v. Bowers, 40 Vt. 126. Rich v. Austin, facts are, the same as any other witness. Blais- Ib. 416. dell v. Stevens, 16 Vt. 179. Bigelow v. Topliff, 25 Vt. 273, 288. 104. Where the answer is not responsive to the bill, or sets up affirmative allegations in op 95. Hearing on bill and answer. Where position to or in avoidance of the orator's dea cause is heard upon bill and answer, the an- mand, and is replied to, the answer is of no swer must be taken to be true, and the orator avail, as evidence, in respect to such allegations, can take a decree only according to the allega- and the defendant is as much bound to estabtions and qualifications of the answer. Doolittle lish the allegations so made by independent v. Gookin, 10 Vt. 265. testimony, as the plaintiff is to sustain his bill. 96. An answer not traversed, though not Wells v. Houston, 37 Vt. 245. Mott v. Har rington, 12 Vt. 199. Cannon v. Norton, 14 and whether by way of denial, excuse or avoidVt. 178. Lane v. Marshall, 15 Vt. 85. Pier- ance, is evidence for the defendant. Wilson, son v. Clayes, Ib. 93. McDonald v. McDonald, J. in Rich v. Austin, 40 Vt. 420. 16 Vt. 630. Allen v. Mower, 17 Vt. 61. San- 111. Where the bill or petition for foreclosure born v. Kittredge, 20 Vt. 632. of a mortgage charged that the mortgage note 105. Where a bill was brought to procure a "is justly due and owing and has not been settlement of a partnership account, and the paid," and the answer set forth sundry payanswer, admitting the partnership, averred a ments and the circumstances under which such settlement of the partnership accounts;-Held, payments were made, and an understanding for that such averment was by way of defense and their application upon the mortgage;-Held, in the nature of a plea, and was not responsive, that the answer was responsive 'and was eviand so was not evidence, but must be proved dence for the defendant. Blaisdell v. Bowers, by evidence aliunde. Spaulding v. Holmes, 40 Vt. 126. Grafton Bank v. Doe, 19 Vt. 106. The answer to a bill of foreclosure, 112. Cross-bill. A cross-bill must be based even that of the original mortgagor, is never upon an equity growing out of the claim set up regarded as evidence to impeach the considera- in the original bill, and, in our practice, is contion of the mortgage security, where the answer sidered a dependency merely upon the principal is traversed. Wooley v. Chamberlain, 24 Vt. bill. It is usually brought, either to obtain a 270. necessary discovery of facts in aid of the de 107. Where the plaintiff's claim as set forth fense of the original bill, or to obtain full relief in the bill rests upon a written contract, and to all parties touching the matters of the originthe right of action is not barred by lapse of al bill. Rutland v. Paige, 24 Vt. 181. Slason time, the admission of the contract in the an- v. Wright, 14 Vt. 208. swer and the allegation of payment, or of any 113. Active relief was refused to a defenother matter merely in discharge, are to be dant in a foreclosure suit, for want of a crosstreated as distinct, and the answer is not evi- bill, although, in his defense, he established a dence of the latter, but it must be proved other- priority and superior right. Simonds v. Brown, wise; but, if the plaintiff's claim rests wholly 18 Vt. 231. in oral proof, and the answer of the defendant is invoked to make out the plaintiff's case, the defendant may admit such contract and al IV. PROCEEDINGS AFTER ISSUE. 1. The testimony. lege that it was in its inception inoperative, or (See Rules of Chancery Practice, 11 Vt. 689.) that it has been paid, or released, and the whole answer upon both points is to be regarded as evidence; nor need the matter of avoidance, in order to be evidence, be contained in the same sentence with the admission ;--but the chancellor is not bound equally to believe all parts of such answer. Adams v. Adams, 22 Vt. 50. 114. Matters in the record. A letter, not before proved, was admitted to be proved and read in evidence at the hearing,-such having been the former practice. Dana v. Nelson, 1 108. Where a bill alleged that the release of Aik. 252. a bond conditioned for the support of the orator 115. A document as a decree in chancery was obtained by the defendant for a grossly—which is stated in the bill and admitted in the inadequate consideration, and the answer de- answer, is to be considered as proved and in nied the inadequacy, and set forth the previous evidence so far as it is stated and admitted, alarrangement which led to the execution of the though not filed as an exhibit. Lyman v. Litbond, the maintenance of the orator from that tle, 15 Vt. 576. time to the cancelling of the bond, and the amount paid for the release, the court was inclined to think that the answer was responsive and was evidence. Mann v. Betterly, 21 Vt. 326. 109. And in considering the question of the sufficiency of the consideration for the discharge of the bond;--Held, that it was proper to take into consideration the amount of property conveyed to the defendant on the occasion of giv. ing the bond, and the amount expended by the defendant in the support of the orator. Ib. 116. A court of chancery having referred certain issues to a court of law for trial by jury, the jury found certain of the issues and failed to agree as to others. Held, that the case stood before the court on final hearing upon the whole record, and that not only what appeared upon the record in the court of chancery, but the information collected before the jury and the testimony there given, as shown by the judge's report, were to be regarded. Adams v. Soule, 33 Vt. 538. 117. Mode of taking testimony. The 110. Whatever in an answer is fairly a re- true construction of the 16th Rule in Chancery ply to the general scope of the 'claim set up in is, that each party, before he commences taking the bill, whether in the stating or charging part, testimony on his side, shall furnish to the other 2. Report of Master. the names of his witnesses, &c. Chase v. Dix, 46 Vt. 642. 118. The practice of having questions shown 127. Form. In taking accounts in chancery, to a witness in a chancery cause, and his an- the master, and not the court, is to settle the swers prepared beforehand, and reduced to writ- facts, and his finding is conclusive, unless the ing, and examined by counsel before coming report for good cause be set aside. Merriam v. before the master to testify, is not allowable, Barton, 14 Vt. 501. and receives the censure of the court. Hickok 128. Exceptions to a master's report, which v. Farm. & Mech. Bank, 35 Vt. 476; and see are addressed to the discretion of a chancellor, Me Daniels v. Barnum, 5 Vt. 296 8. cannot be revised in the supreme court;—as Ib. 119. Criticism and condemnation of the where the accounts before a master were not sometime practices of the bar in taking testi-verified by the oath of the party, as required mony in chancery - the needless diffuseness by Rule 41, and the report was not recommitand prolixity, and sometimes impertinence and ted. scandal. Costs refused in such case. Vermont 129. A master appointed to take an account Copper, &c., Co. v. Barnard, 40 Vt. 65. is not obliged to make a special report, unless Nor should he report evidence, but the facts found. Mott v. Harrington, 15 Vt. 185. 120. Testimony of surviving party. G. by direction of the court. S. c. 36, s. 24, excluding the surviving party as a witness in his own behalf, does not apply to the answer of a defendant in chancery to a bill or petition, so far as it is responsive. Blaisdell v. Bowers, 40 Vt. 126. 130. A master in chancery before whom an accounting is had must report all the testimony given, as well as state the accounts at length, 121. of a single witness against the and all the facts found. Herrick v. Belknap, answer. The testimony of one witness, against 27 Vt. 673. (Changed by G. S. c. 29, s. 11;the direct and positive averment of the answer, not his duty to report the testimony, unless is not sufficient ground for a decree. But the specially required so to do by the chancellor.) testimony of the one witness may be so corrob- 131. On a reference to a master upon an acorated by circumstances as to be sufficient, and counting ordered, the statements of the answer the answer itself may contain such circumstan- as to number, quantity and value, were held to ces. Pierson v. Catlin, 3 Vt. 272. be evidence merely, but not conclusive against 122. Motion to suppress. Motions to the defendant, and yet of the strongest characMorse v. Slason, 16 Vt. 319. suppress testimony for any defect which is ter. curable should be made at the earliest oppor- 132. Effect. The court of chancery, or the tunity, in order to enable the party relying up-supreme court, will not overrule or disregard on the testimony to obviate the objection by the findings of a master to whom it has been reobtaining an order to re-examine the witness. ferred to take the accounts upon a mortgage, Where the testimony had been on file more unless for evident mistake on his part, or evithan one term, the court refused a motion to dent corruption. McDaniels v. Harbour, 43 suppress for an informality in taking it. Marcy Vt. 460. See Thrall v. Chittenden, 31 Vt. 186. v. Ross, 12 Vt. 484. 133. Unless the result at which the master arrives in taking an account is clearly shown to be wrong, the court will not disturb such result. Barrett, J., in Vt. & Can. R. Co. v. Vt. Cen 123. A deposition in chancery ought not to be suppressed for a failure to comply with the rules in a mere matter of form, unless such failure proceed from bad faith, rather than from tral R. Co., 34 Vt. 65. accident and mistake. Partridge v. Stocker, 36 Vt. 108. 134. Where an account has been taken and returned by a master, exceptions should be filed 124. Where a motion has been made to sup-to the report as to any items objected to. It is press testimony, and the adverse party has not the duty of the chancellor to examine items given notice to bring it on before the hearing not so excepted to, nor will such items be exin chief, it should be so brought on, or should amined on appeal. Smalley v. Corliss, 37 Vt. 486. not be entertained on the hearing in chief. 135. Although the report of the master is Ib. not final as to the facts, yet it is firmly settled 125. A motion to suppress testimony must in this State that it will be regarded as settling be disposed of in chancery; otherwise, the the facts which fall within his province to find, question cannot be raised in the supreme court and which he reports as found, unless it appears on appeal. Van Namee v. Groot, 40 Vt. 74. affirmatively that he has found facts without 126. to inspect papers. A motion in evidence, or against evidence. Rowan v. State chancery for the inspection of certain letters, Bank, 45 Vt. 160, 191, 195. &c., in the possession of the adverse party, which had been proved as exhibits, was denied, as not authorized. Clark v. Field, 10 Vt. 321. 16 Vt. 112. 3. The decree. 136. Must be of a term. The chancellor can make necessary orders in vacation for fur- the answer. But if, instead, the answer be thering the cause, but cannot render a final de- traversed, and on trial he fails to support the cree in the cause. According to the recent facts relied upon in his bill, he cannot fall back practice, the court of chancery does not ad- and claim an account on the basis of the anjourn, but unless when in session at the regular swer. McOrmsby v. Low, 24 Vt. 436. term, the court is not in practice regarded as 143. Exceptional cases. In an interopen except for the purposes of such acts as a pleader suit, the defendants compromised and chancellor may legally do in vacation,-al- reduced their settlement to writing after anthough, by consent of parties, a hearing may be swers, and filed the writing in the cause with a had and final decree rendered, entitled as of statement of facts agreed. The court treated the term. Sturges v. Knapp, 38 Vt. 540. (G. this, though irregular, as tantamount to an S. c. 29, s. 14.) amended answer and as evidence of the facts 137. For want of appearance. Under stated, and rendered a decree thereon. the 4th and 25th Chancery Rules (1 D. Chip. v. Baptist Church, &c., 34 Vt. 309. 498), the orator was allowed to take a decree 144. Where the orator sets up in his bill a for want of an appearance entered by the de- claim of right against the defendant, not defendant on the first day of the term, although pending entirely upon contract, the bill will an appearance was entered on the 4th day, and not be dismissed for a variance, when he proves immediately on notice being proved. Miller v. a right of the same nature, though of less exMoore, 1 Aik. 216. tent, and yet broad enough to render unjusti138. A decree dismissing a bill for want of fiable the defendant's acts complained of; and an appearance, or prosecution, is like a non- he may have a decree establishing and defining suit at law, and is not a bar to a subsequent his true right, in answer to a prayer therefor. bill for the same matter. Porter v. Vaughn, Weston v. Cushing, 45 Vt. 531. 26 Vt. 624. V. PROCEEDINGS AFTER DECREE. 1. Appeal. Horton 139. Must be upon the facts stated in| the bill and in issue. Facts occurring after a cause is at issue in chancery cannot be considered in deciding the case, unless brought into the issue by subsequent proceedings,-as, 145. The term. An appeal from chancery, by the orator's withdrawing his traverse, on actually taken at a term subsequent to the renleave, and amending his bill, or by filing a sup-dering of the final decree, but entered as of the plemental bill; or by the defendant's filing a former term, was held irregular, and was discross-bill, &c., so that testimony may be taken missed. Gove v. Dyke, 14 Vt. 561. on both sides, if desired. Blaisdell v. Stevens, 16 Vt. 179. 140. A decree cannot be made upon matters happening since the bringing of the bill, unless brought into the case by some proper supplemental proceeding. Downer v. Wilson, 33 Vt. 1. 141. Where a material fact-as notice--was not alleged in the bill, but was denied in the answer which was traversed, and testimony was taken, on which the supreme court on appeal found the fact proved, yet it was held that the fact was not properly in issue: but the court, pro forma, reversed the decree of the chancellor, and remanded the cause for amendment, and further proceedings. Porter v. Bank of Rutland, 19 Vt. 410. 146. Mode. A party appealing from a decree in chancery is not obliged by G. S. c. 29, s. 85, to make a formal assignment of errors. Bishop v. Day, 13 Vt. 116. 19 Vt. 174. 147. Entry. An appeal from chancery cannot be entered in the supreme court upon affidavits that the appeal was duly taken, but the clerk had neglected to make the proper entries. Gove v. Dyke, 13 Vt. 308. 148. Form of decree. The supreme court refused to hear an appeal from chancery, because no decree had been drawn up in form and signed by the chancellor. Brown v. Mead, 16 Vt. 148. 149. Pro forma decree. The practice of allowing appeals in chancery upon merely formal decrees, without hearing, disapproved by 142. If the orator claim an account on cer- Redfield, C. J., Stafford v. Ballou, 17 Vt. 329. tain obligations set forth in his bill, which are Hyndman v. Hyndman, 19 Vt. 9. 24 Vt. denied in the answer, but other and different | 240. obligations are admitted in the answer suffi- 150. A pro forma decree entered by agreecient to entitle the orator to an account upon ment, and made for the sole purpose of being the basis of the answer, and the orator desires appealed from in order that the case may be to have an account taken even upon the basis brought to a speedy hearing, is not such a deof the answer, in the event of failing to compel parture from the regular proceedings in a cause, the account which he claims in his bill, he as to affect the rights or liabilities of any person should obtain leave to file a supplemental bill, connected with the suit, either as principals or alleging in the alternative the facts admitted insureties. It does not, in such case, stay the |