and those which he has derived from the information of others should be stated or charged upon the information and belief of the complainant. And the oath of the agent or attorney verifying the bill, should state that the agent has read the bill, or heard it read, and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters which are therein stated to be on the information and belief of the complainant, and that as to those matters the deponent believes it to be true.(x)

The jurat should not be drawn in the form of a separate affidavit.(y) In verifying a bill, under the 17th rule, for the mere purpose of calling for an answer on oath, it is not necessary that the allegations in the bill should be sworn to positively. It is sufficient if the person verifying the bill swears to his belief of the charges contained in it.(z)

SECTION VII.

NUMBERING AND MARKING FOLIOS, Endorsing, and filing.

Numbering and marking folios.] The solicitor or counsel who draws a bill must distinctly number and mark each folio (of 100 words) in the margin thereof; and all copies, either for the parties or the court, must be numbered or marked in the margin so as to conform to the original draft, and to each other. No allowance will be made on taxation of costs for copies not thus numbered and marked.(a) It is not necessary to number the pages of the bill, in addition to numbering the folios. The word folio was formerly used to denote a page, and it may be conveniently employed for that purpose still.

Endorsing.] The register and assistant register are required, by rule, to keep the papers filed before the chancellor separate from those filed before a vice chancellor. And to enable them to do so, the solicitor filing a bill or other paper must designate, on the back thereof, whether it is filed "before the chancellor" or "before the vice chancellor".(6) As bills and petitions are addressed to the chancellor, in all cases, the marking of the paper in conformity with this rule is the only

(1) Bank of Orleans v. Skinner, 9 See further as to jurats, post Chap. VI. Paige, 305. Sec. 5, (Book 1.)-jurats to answers. (a) Rule 95.

(y) Stafford v. Bryan, 2 Paige, 46.
(z) Veeder v. Moritz, 9 Paige, 371.

(b) Rule 7.

mode of determining whether it was the intention of the party to institute his proceedings before the chancellor or before the vice chancellor, when the bill is filed in the first or third circuits. And the court has decided that in case of dispute as to the person before whom the suit is instituted, the marking of the bill or petition must determine the question.(c)

In the entitling and endorsement of papers by either party, the complainant's name must be placed first.(d)

The endorsement upon the back of a bill is in this form:

Filing.

In chancery.

Before the chancellor,

(or, Before the vice chancellor of the .... circuit.)

John Rodgers

v.

Timothy Jackson.

Bill,

J. E.

Sol. for comp't.

The next step is to cause the engrossed copy of the bill to be filed in the proper office. If the suit is commenced before the chancellor, the bill is to be filed in the office of the register or assistant register. If before a vice chancellor, it must be filed in the office of the clerk of that circuit. If the bill is filed with the register, or assistant register, all subsequent pleadings and proceedings must be filed with one of them, unless the cause is referred to a vice chancellor. If so referred, all papers filed therein while it remains before the vice chancellor may be filed with the clerk of his circuit.(e)

(c) In the matter of the Receivers of the Globe Ins. Co., 6 Paige, 102.

(d) Rule 95.
(e) Rule 8.

SECTION VIII.

WHEN BILL TO BE ACCOMPANIED BY AN AFFIDAVIT.

In bills of particular descriptions, it is necessary that an affidavit should be annexed to them, on their being filed. Thus, on a bill of interpleader, there must be an affidavit that the complainant does not collude with any of the defendants.(ƒ) In a bill by a party in a suit at law to examine witnesses de bene esse, there must be an affidavit that the witness proposed to be examined is of the age of seventy-that the matter to be proved is material, and lies within the knowledge of one person only—that the witness is going out of the jurisdiction, and not likely to return in time to be examined-or the other special circumstances on which it is proposed to apply to the court for leave to examine him de bene esse.(g) In a bill to obtain the benefit of an instrument on which an action at law would lie, alleging that it is lost, or if the bill is filed for the discovery of an instrument, suggesting that it is in the power or custody of the defendant, and praying relief that might be had at law if the instrument were in the hands of the complainant, there must be an affidavit annexed to the bill, in the former case, that the instrument is lost; and in the latter instance, that it is not in the custody or power of the complainant, and that he knows not where it is, unless it is in the hands of the defendant. In any of these instances, the want of the requisite affidavit makes the bill demurrable. But if the relief sought extends merely to the delivery of the instrument, or is otherwise such as can only be given in a court of equity, such an affidavit is not necessary.(h)

Affidavits are also frequently annexed to the bill for another object. Thus, where a bill is filed for any purpose other than a discovery, the complainant may, if he thinks proper, waive the necessity of the answer being made on oath of the defendant, to avoid the necessity of disproving it when responsive to the bill.(i) But as the defendant may, by the 36th rule, still answer on oath, notwithstanding an oath is waiyed by the bill, for the purpose of moving to dissolve an injunction or discharge a ne exeat, it is provided by rule 37, that if, in addition to the usual oath of the complainant, the material facts in the bill, on which the injunction or ne exeat rests, are duly verified by the oath of a

(f) Mitf. Eq. Pl. 49.

g) Atk. Ch. Pr. 4.

(h) Id. 5. 1 Newl. 70.
(1)2 R. S. 175, 49, (orig. § 44.)

credible and disinterested witness, annexed to, and filed with the bill, it shall not be a matter of course to dissolve the injunction, or discharge the ne exeat on the oath of the defendant; but the court may, in its discretion, retain it till the hearing.

Where the whole equity of the bill is denied by the sworn answer of the defendant, and no affidavit of a disinterested witness is annexed to the bill, the injunction will be dissolved on bill and answer, although security for the debt and costs in the suit at law has been given, under the provisions of the revised statues on that subject.(k)

So where it is intended to apply for an injunction or ne exeat upon a bill sworn to by an agent or attorney of the complainant, if any material allegation or charge that it is necessary to be sworn to positively, to authorize the issuing of the injunction or ne exeat, is not within the personal knowledge of the agent or attorney, he should, in addition to his own verification, annex the affidavit of the person from whom he derived his information; swearing that he knows such allegation or charge to be true. (1)

CHAP. II.

PROCESS FOR APPEARANCE.

Sect. 1. SUBPOENA.

2. ATTACHMENT.

3. ATTACHMENT WITH PROCLAMATIONS.

4. COMMISSION OF REBELLION.

5. SERGEANT AT ARMS.

6. SEQUESTRATION.

7. PROCESS AGAINST CORPORATIONS.

SECTION I.

SUBPOENA TO APPEAR.

THE Complainant's solicitor having filed the bill, in the next place proceeds to apprise the defendant thereof, in order to compel his ap

(k) Manchester v. Dey, 6 Paige, 295.

(1) Bank of Orleans v. Skinner, 9 Paige, 305.

pearance and to procure from him an answer if it is desired, or at least to give him an opportunity to defend the suit if he wishes to do so. For this purpose, in pursuance of the prayer of the bill, he sues out a subpana; which is a writ issuing out of, and under the seal of the court; commanding the defendant personally to appear in court, before the chancellor or the proper vice chancellor, on a certain day, to answer to such bill of complaint.

This writ now issues of course, upon filing the bill, without entering any order for that purpose; though the practice was formerly otherwise.

The register, assistant register and clerks are to furnish to any solicitor when required, and upon payment of the fees allowed by law, blank process to appear and answer to bills, with the seal of the court impressed thereon, and with the name of the process printed on the body of the seal. (a) But it is provided by another section of the statute that process for appearance shall not issue from the court until the bill praying the same shall have been filed.(b) By the words "issue from the court," as used in the statute, must be meant, not the sealing and delivering of the process out of the office of the register or clerk, but the filling it up, and serving, or putting it in a way to be served. As at law a writ is only considered as issued when it is delivered to the sheriff, or put in a regular course to reach him. (c) And in point of fact it is the constant practice in the register's, assistant register's and clerks' offices to deliver out sealed writs of subpoena to appear, whenever applied for, without waiting for a bill to be filed.

Form of] The subpœna is required, by the 19th rule, to be in the same form substantially, expressive of the intent, as that heretofore used in this court.(d) And a form is given, at length, in rule 20. It must be in the name of the people.(e) It must contain the names of all the defendants; and it is advisable, if not necessary, to name all the complainants.

Where the complainant wishes to make an unbaptized infant a party defendant, it seems the subpoena should describe him as the last born child of A. B. and C. D.-his father and mother.(ƒ)

A subpoena must be in the English language, and in a fair, legible character (g).