CHANCERY. SPECIFIC PERFORMANCE.
in defense, but rely upon their right to declare a forfeiture under the
terms of the contract, which they were not in a position to enforce, a
specific performance of the contract may be had. Peck et al. v. The
Brighton Co. 200.
RELIEF TO DEFENDANT WITHOUT CROSS-BILL.
16. And contrary to his desire. On bill by the holder of a debt
secured by a deed of trust, against a party who had succeeded to the
grantor's interest, and another who had acquired half of the debt so
secured, to foreclose the deed of trust, it was held error for the court
to require the sale of the premises for the sums found to be due both
the complainant and his assignee, he not having filed any cross bill
asking for relief, and not desiring to have the land sold for the money
due him. Campbell et al. v. Benjamin et al. 244.
17. The statute which provides that the defendant's answer shall
be taken as true on hearing upon bill and answer, without replica
tion, applies only to cases where a hearing is formally set or ordered
on bill and answer. It does not apply to a hearing upon bill, answer
and proofs, without any formal order for the same. Corbus et al. v.
Teed, 205.
18. Where parties to a chancery suit willingly go into trial with-
out the issues being made up by the filing of a replication, and the
cause is heard upon evidence, they will be considered as having
waived the formality of such an issue, and the answer will have no
greater effect as evidence than if a replication had been filed. Ibid.
205.
19. Presumption. Where the court, in its decree in a suit in equity,
finds that a deed was properly executed and tendered, and the certifi
cate of evidence does not purport to contain all the evidence, it will
be presumed that the court heard proof sufficient to justify the find-
ing, although it does not appear in the record. Ibid. 205.
20. To state an account. Where it was stipulated, in a suit at law,
that the same should be heard by the court as an equitable proceed-
ing, and that the finding of the court should include all matters
triable at law or in equity, and the balance found in favor of such as
should be entitled thereto, the same as if separate suits had been
brought: Held, that the case should have been referred to the master
in chancery or a special commissioner to state and report an account
between the several parties, as, under the stipulation. the suit must be
treated and conducted as in chancery. Stewart et al. v. Kirk, Admr.
509.
CHANCERY. REFERENCE TO THE MASTER.
21. Whether a reference to state an account requires a report of the
evidence. A reference of a cause in these words: "It is hereby stipu
lated that this case be referred to A B. as commissioner, to take the
evidence, and report the balance as he shall find the same, to this
court," was held, to require a report of the balance of the account as
found by the commissioner, only, and not as requiring him to report
the evidence, and that, under such a reference, a report of the evi-
dence was unnecessary. Prince v. Cutler, 267.
22. Reference to examine and report facts. Where a cause is referred
to a master to examine and report as to any facts in a case, it is his
duty to draw the conclusion from the evidence produced before him,
and to report that conclusion only, and it is irregular and improper
for him to set forth the evidence in his report without the special
direction of the court. Ibid. 267.
23. Taking evidence in pencil. The preserving of the evidence on
a reference to a special master, in pencil, is objectionable, and should
not be done; but the court, not being called upon, decline to express
an opinion whether a decree would be reversed for this cause alone.
Ibid. 267.
24. Whether report of balance should give a detailed statement of
accounts. Where all the items of an account are admitted, or not dis-
puted, except as to one charge, there is no necessity for a schedule
showing a detailed statement of the various items composing the
whole account. In such a case, it will be sufficient to set down the
disputed items separately in the report, without including the items
not controverted. Ibid. 267.
25. Notice of hearing before master on reference. If the parties are
present and take part in the proceedings before the master on a refer-
ence, it is not important whether they had notice or not, as the only
object of a notice is, to enable them to be present and participate in
the investigation; and where a case is referred back to a master to
correct errors in his former report, and no new evidence is taken, no
notice to the parties is necessary. Ibid. 267.
EXCEPTION TO MASTER'S REPORT.
26. Of the mode of excepting. A party desiring to have the decision
of the master reviewed as to the admission or rejection of evidence,
or the principle upon which an account is stated, should file excep
tions to his report before it is returned into court, pointing out the
grounds with reasonable certainty, and if the master still adheres to
his rulings and report, and returns it into court, the party objecting
may then file his exceptions as made before the master, upon the
hearing of which, the whole, or such part of the evidence as may be
material, may be reviewed by the court. Where, owing to surprise
CHANCERY. EXCEPTION TO MASTER'S REPORT. Continued.
or accident, objections are not taken before the master, the court will
allow exceptions to be filed after the coming in of the report. Prince
v. Cutler, 267.
27. Evidence on exceptions to report. On the hearing of exceptions
to a master's report, it is not competent to read affidavits made sub.
sequent to it, or to hear any evidence that was not before the master
when he made his report. Ibid. 267.
28. Mode of presenting evidence on exception to master's report. If
either party is dissatisfied with the master's report, he may except to
the same, and may then obtain certified copies from the master of the
depositions, or other evidence on which the decision of the master
was founded, to be used on the argument of the exception. Ibid. 267.
DECREE PRO CONFESSO.
29. Whether it should be as to original bill, for default of answer to
amended bill. Where the matters alleged in an amendment to a bill
in chancery are wholly immaterial, there is no error in refusing to
enter a decree pro confesso as to the original bill, which had been an-
swered, upon taking the amended bill for confessed for want of an
answer. The only error in such a case is in allowing a decree pro
confesso as to the amendment. Black, Admr. v. Lusk, 70.
REHEARING IN CHANCERY.
30. Upon newly discovered evidence. An application for a rehearing
in a cause in equity, on the ground of newly discovered evidence, is
properly denied when such evidence is merely cumulative and not
conclusive. Hall et al. v. Fullerton, 448.
31. On bill by vendor for specific performance. A decree in favor of
the vendor of land, on bill by him for specific performance of the
contract of purchase, finding the sum due the vendor, and ordering
the sale of the bargained premises, and awarding the vendor an exe
cution for any unsatisfied balance of the purchase money that may
remain after the sale, is proper. Corbus et al. v. Teed, 205.
32. In what manner availed of. The rule requiring a defendant in
a chancery suit to set up and insist on the complainant's laches in
filing his bill, is for the purpose of enabling the complainant to
amend his bill and account for the delay, so as to admit proof to
meet the objection, and will not be extended to a case where the bill
attempts to account for the delay, which is not sustained by the
proof. In the latter case the objection may be made without first
insisting on it in the answer. Hall et al. v. Fullerton, 448.
33. Correcting mistakes in wills and contracts. See MISTAKE.
34. As against public rights. See INJUNCTIONS, 5.
35. In respect to church property. See CHURCHES AND CHURCH
PROPERTY, 4.
AMENDING BILL AFTER DEFAULT.
36. Operates to set the default aside. See AMENDMENTS, 1.
GRANTING A NEW TRIAL AT LAW.
37. By a court of chancery. See NEW TRIALS, 11 to 17.
CHATTEL MORTGAGES.
TRUST, 15 to 18.
See MORTGAGES AND DEEDS OF
CHURCHES AND CHURCH PROPERTY.
DIVISION IN CASE OF SCHISM.
1. What is a "schism." Where property was purchased by a reli-
gious society, incorporated under the laws of this State, and paid for
by voluntary contributions of the members, and it was agreed at the
time, between all the members, that the property should be held by
the trustees for the common use and benefit of the members, and in
case of a schism or division, for any cause, there should be a fair di-
vision of the same in proportion to their members, and a similar pro-
vision was adopted in their constitution, it was held, that by the term
"schism" was meant a division or separation of the members of the
body occasioned by a diversity of opinion on religious subjects, and
that a difficulty growing out of an illegal election of trustees by a
majority, and their excluding the minority from the use of the church,
was not a schism to justify a court in decreeing a division of the
property. Nelson et al. v. Benson et al. 27.
WHO MAY DEMAND A DIVISION.
2. In such a case, there must be a division or separation of the
church into two religious bodies, and there must be a separate organ-
ization of a part of the original church, in order to claim a partition
of the church property. The partition must be applied for, not by
members of the congregation as individuals, but by an organized
religious body for purposes of religious worship, and the division
sought must not be to divert the property from the uses to which it
is devoted. Ibid. 27.
ILLEGAL ELECTION OF CHURCH TRUSTEES.
3. Remedy. Where the majority of a church, pretending, contrary
to the fact, that a portion of the trustees elected had resigned and
refused to act, proceed to elect others in their place, without notice
to the minority of the congregation, and such others wrongfully as
sume to act, the law furnishes an appropriate remedy against them
CHURCHES AND CHURCH PROPERTY.
ILLEGAL ELECTION OF CHURCH TRUSTEES.
by quo warranto, or by bill in equity to restrain their wrongful acts.
Nelson et al. v. Benson et al. 27.
ENFORCING TRUST IN EQUITY.
4. Church property vested in the trustees of a religious body is
held under a trust, and a court will enforce the trust and hold the
trust property to the uses for which it was originally given, but it
will not lend its aid to divert the property from the original uses and
purposes to which it was devoted. Ibid. 27
CLOUD UPON TITLE. See CHANCERY, 6
COMMISSION MERCHANT. See FACTORS, 1 to 4.
PRACTICE AS TO LETTING IN DEFENSE.
1. In the exercise of equitable jurisdiction by courts of law over
confessions of judgment by warrant of attorney, the court may set
aside such judgments, in whole or in part, to let in a defense to the
merits. But the rights of the parties can be as fully protected by
staying all proceedings and letting the judgment stand as a security
until the merits of the defense are heard and determined. If the de-
fense is successful, the judgment will then be set aside, otherwise
continue in force. Norton v. Allen, 306.
CONFLICT OF LAWS.
BY WHAT LAW A CONTRACT IS GOVERNED.
1. The law is well settled, that contracts are to be construed ac
cording to the laws of the State where made, unless it is presumed,
from their tenor, that they were entered into with a view to the laws
of some other State. This rule applies to the contract of a carrier
to transport goods marked to a party residing in a different State.
Pennsylvania Co. v. Fairchild et al. 260.
2. A conveyance on contract for the sale of land, situate in this
State, is governed by the laws of this State, and not by those of the
State where the contract is made. Bissell v. Terry et al. 184.
CONSERVATOR.
CONSERVATOR OF INSANE PERSON.
Of his liability to creditors after settlement. See INSANE PER-
SONS, 3.
CONSIDERATION.
WHETHER SUFFICIENT.
1. Where a party, employed under a special verbal contract to
furnish materials and erect a building, finding himself unable to per-
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