APPENDIX OF PRECEDENTS.

BOOK I.

Precedents of Proceedings in a Cause from its Commencement to a Decree.

CHAP. I.

BILL OF COMPLAINT.

No. 1.

Bill by an infant, suing by his next friend, against executors, for a

The address.] To the Chancellor of the state of New-York.

The introduction.] Complaining showeth unto your honor your orator A. B., son of J. B. of the city of Albany, merchant, an infant under the age of twenty-one years, to wit, of the age of about twelve years, by his father and next friend.

The stating part.] That J. S. of the city of Albany aforesaid, physician, being seised and possessed of a considerable real and personal estate did, on or about the twentieth day of October in the year of our VOL. II.

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*2 Lord one thousand eight hundred and forty-two, duly * make, execute, and publish his last will and testament, in writing, and thereby, amongst other things, devised and bequeathed as follows: [Recite the devise in the will.] And that the said testator did, in and by his said last will and testament, constitute and appoint C. D. and E. F. executors thereof. And that the said testator departed this life on or about the twenty-fifth day of October, in the year of our Lord one thousand eight hundred and forty-two, not having revoked, altered, or annulled his said last will and testament, or the *3 provision therein for the benefit of your orator as aforesaid, but leaving the said will and every part and portion thereof, in full force and effect. And that upon, or soon after, the death of the said testator, to wit, on or about the first day of November, in the year of our Lord one thousand eight hundred and forty-two, the said C. D. and E. F., the executors named in the said will, duly proved the said will before Moses Patten, the surrogate of the county of Albany, and took upon themselves the burthen of the execution thereof, and by virtue thereof possessed themselves of all *4 the said testator's real and personal estate, goods, chattels, and

effects, to the amount of one thousand dollars, and upwards; which was more than sufficient to pay and satisfy all the said testator's debts, legacies, and funeral expenses.

And your orator further showeth unto your honor that he hath, by his said father and next friend, several times since his said legacy of five hundred dollars was due, applied to the said C. D. and E. F. to have the same paid, or secured for the benefit of your *5 orator; and your orator well hoped that the said C. D. and E.* F. would have complied therewith, as in equity and good conscience they ought to have done.

Confederating part.] But now so it is, may it please your honor, that the said C. D. and E. F. combining and confederating together, to and with divers other persons, as yet to your orator unknown, but whose names when discovered your orator prays may be inserted herein, as defendants, and they made parties hereto, with proper and apt words to charge them, how to injure and oppress your orator; the said confederates respectively do now abso*6 lutely refuse to pay or secure the payment of your orator's said legacy, sometimes pretending that the said testator did not make any such will, or if he did, that he revoked the same previous to his death; and at other times they admit that the said testator made such will, and that they have proved the same and possessed them

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selves of all his real and personal estate; but then they pretend that the same was very small and inconsiderable, and not near sufficient to pay and satisfy the said testator's just debts, legacies, and funeral expenses, and that they have applied and disposed of the same towards the satisfaction* thereof; and at the same time the said *7 confederates do respectively refuse to set forth and discover what such real and personal estate was, or the particulars whereof the same consisted, or the value thereof, or how much thereof they have so applied, and to whom, and for what paid, or what is become thereof particularly.

Charging part.] Whereas your orator expressly charges the truth to be that the said testator died seised and possessed of such real and personal estate, to the full value aforesaid, and which was much more than sufficient to pay all the said testator's just debts, legacies,* and funeral expenses; and that the said confede- *8 rates, or one of them, have possessed and converted the same to their own use, without making any satisfaction to your orator for his said legacy.

All which actings, doings, and pretences of the said confederates are contrary to equity and good conscience, and tend to the manifest wrong, injury, and oppression of your orator.

Clause of jurisdiction.] In tender consideration whereof, and forasmuch as your orator is remediless in the premises, at and by the strict rules of the common law, and is only relievable in a court of equity where matters of this nature are properly cognizable and *9 relievable.

Interrogating part.] To the end, therefore, that the said C. D. and E. F. and their confederates may respectively, full, true, direct, and perfect answers make, upon their respective corporal oaths, according to the best of their respective knowledge, information, and belief, to all and singular the matters and charges aforesaid, [or if an answer on oath is waived, omit the words in italics, and insert here-(your orator hereby waiving, pursuant to the statute, the necessity of the answer of such defendants, being put in under the oaths of the said defendants, or the oath of either of them,)] and that as fully and particularly in every respect as if the same were here again repeated and they thereunto particularly interrogated ; and more especially that they may respectively set forth and discover according to the best of their knowledge, remembrance, information, and belief, whether the said testator J. S. duly made, exe- *10 cuted and published such last will and testament, in writing, of such

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date and to such purport and effect as aforesaid, and thereby bequeathed to your orator such legacy of five hundred dollars, as aforesaid, or any other, and what last will, if any other, and what date, and to any other and what purport or effect particularly, and that they may produce the same, or the probate thereof, to this honorable court, whenever and as often as there shall be occasion; and *11 whether by such will, or any other and what will, the said testator appointed the said C. D. and E. F. or any other and what persons, executors of such last will and testament; and whether the said testator departed this life on or about the 25th day of October in the year of our Lord one thousand eight hundred and forty two, or at any other, and what time; and whether he revoked, altered or annulled the said last will and testament before his death, or the provision therein for the benefit of your orator, and when, *12 and before whom, and in what manner; and whether the said C.* D. and E. F. or one, and which of them, proved the said will, and when, before whom, and in what manner; and whether they took upon themselves the burthen of the execution thereof, and by virtue thereof possessed themselves of all the said testator's real and personal estate, goods, chattels, and effects. And that they respectively set forth whether your orator, by his said father and next friend, hath not several times since his said legacy was payable, applied to them to have the same paid, or secured to be paid, for his benefit, *13 or to that effect; and whether the said C. D. and E. F., or one, and which of them, refused or neglected to comply with your orator's requests and for what reasons respectively, and whether such refusal was grounded on the pretences herein before charged, or any, and which of them, or any other and what pretences particularly.

Prayer for relief.] And that the said C. D. and E. F. may admit assets of their said testator come to their hands sufficient to satisfy your orator's said legacy, and subject thereto, or otherwise may set forth a particular account of the real and personal estate, goods, *14 and effects,* of which the said testator died possessed or entitled unto, and the particulars whereof the same consisted, and the value thereof, and how much thereof they have applied in discharge of the said testator's debts, legacies, and funeral expenses, and to whom and for what paid, and what is become thereof particularly; and whether the said testator did not die possessed of real and personal estate, goods, and effects, to the value of one thousand dollars and upwards, or what other value, and whether the same was not

more than sufficient to pay and satisfy all the said testator's debts,* *15 legacies, and funeral expenses; and that they may also set forth a just and true account of all such debts and sums of money as were really due and owing, by and from their said testator, at the time of his death, and to whom, by name, and on what security or securities, and how, and on what account such debts were respectively contracted, and which of them now remain unpaid and unsatisfied, and that they may be compelled by a decree of this honorable court to pay your orator's said legacy of five hundred dollars; and that the same may be placed out at interest for your orator's benefit, *16 until your orator attains his age of twenty-one years; and that the said sum of five hundred dollars may then be paid him. And that in the mean time the interest thereof may be paid to your orator's said father J. B. towards the support and maintenance of your orator. And that your orator may have such further relief, or may have such other relief as the nature of his case shall require and as shall be agreeable to equity.(a)

Prayer for process.] If an injunction or a ne exeat is asked for, insert the prayer therefor in this place.] May it please your honor to grant unto your orator* the writ of subpoena issuing out of and *17 under the seal of this honorable court, to be directed to the said C. D. and E. F. commanding them, and each of them, by a certain day, and under a certain penalty, therein to be inserted, to be and appear before chancellor, in aur court of chancery, and then and there to answer the premises, and further to stand to and abide such order and decree therein as shall be agreeable to equity and good conscience.

And your orator shall ever pray, &c.(b)

COMMENCEMENTS OF BILLS.

Bill by a married woman suing by her next friend.] Complaining showeth unto your honor your oratrix J. B. the wife of A. B., of, &c. by C. D. her next friend. That, &c.

By husband and wife. Complaining show unto your honor your orator and oratrix A. B., of, &c. and E. his wife.

(a) If an injunction is wanted it must be asked for in the prayer for relief, as well as in the prayer for process. Vol. I. p. 37.

(b) The above will suffice to exhibit the structure and several parts of an ori

ginal bill. It is not the intention of the writer to multiply illustrations. This is prevented by want of room. An example of each kind of bill treated of in the 4th Book, will, however, be given hereafter.