fealed up, either one of the commiffioners carries it up to the court; or it is fent by a meffenger, who fwears he received it from one of the commiffioners, and that the fame has not been opened or altered fince he received it. An answer must be figned by counsel, and must either deny or confess all the [448] material parts of the bill; or it may confefs and avoid, that is, juftify or palliate the facts. If one of these is not done, the answer may be excepted to for infufficiency, and the defendant be compelled to put in a more fufficient answer. A defendant cannot pray, any thing in this his answer, but to be difmiffed the court; if he has any relief to pray against the plaintiff, he must do it by an original bill of his own, which is called a cross-bill. AFTER answer put in, the plaintiff upon payment of cofts may amend his bill, either by adding new parties, or new matter, or both, upon the new lights given him by the defendant; and the defendant is obliged to answer afresh to fuch amended bill. But this must be before the plaintiff has replied to the defendant's anfwer, whereby the caufe is at iffue; for afterwards (8), if new matter arifes, which did not exist before, he muil set it forth by a supplemental bill. There may be also a bill of revivor, when the fuit is abated by the death of any of the parties; in order to fet the proceedings again in motion, without which they remain at a stand. And there is likewife a bill of interpleader; where a perfon who owes a debt or rent to one of the parties in fuit, but, till the determination of it, he knows not to which, desires that they may interplead, that he may be fafe in the payment. In this laft cafe it is ufual to order the money to be paid into court, for the benefit of fuch of the parties, to whom upon hearing the court fhall decree it to be due. But this depends upon circumstances: and the plaintiff must also annex an (8) Where new matter arifes after filing the bill, it cannot be introduced into the fuit by amending the original bill, the iffue is not joined, but must be ftated in a fupplemental bill. 3 Ark. 217. 1 Atk. 291. affidavit affidavit to his bill, fwearing that he does not collude with ei her of the parties. If the plaintiff finds fufficient matter confeffed in the defendant's anfwer to ground a decree upon, he may procced to the hearing of the cause upon bill and anfwer only. But in that cafe he must take the defendant's anfwer to be true in every point. Otherwife the courfe is for the plaintiff to reply generally to the answer, averring his bill to be true, certain, and fufficient, and the defendant's answer to be directly the reverse; which he is ready to prove as the court [449] shall award: upon which the defendant rejoins, averring the like on his fide; which is joining iffue upon the facts in difpute. To prove which facts is the next concern. THIS is done by examination of witneffes, and taking their depofitions in writing, according to the manner of the civil law. And for that purpofe interrogatories are framed, or questions in writing; which, and which only, are to be propofed to, and afked of, the witneffes in the caufe. Thefe interrogatories must be fhort and pertinent: not leading ones; (as "did not you see this, or, did not you hear "that?") for if they be fuch, the depofitions taken thereon will be fuppreffed and not fuffered to be read. For the purpofe of examining witneffes in or near London, there is an examiner's office appointed; but, for fuch as live in the country, a commiffion to examine witneffes is ufually granted to four commiffioners, two named of each fide, or any three or two of them, to take the depofitions there. And if the witneffes refide beyond fea, a commiffion may be had to examine them there upon their own oaths, and (if foreigners) upon the oaths of fkilful interpreters. And it hath been established that the depofition of an heathen who believes in the fupreme being, taken by commiffion in the most folemn manner according to the custom of his own country, may be read in evidence. y Omichund v. Barker. Atk. 21. THE Book III. THE Commiffioners are fworn to take the examinations truly and without partiality, and not to divulge them till published in the court of chancery; and their clerks are also fwoin to fecrecy. The witneffes are compella le by procefs of fubpoena, as in the courts of common law, to appear and fubmit to examination. And when their depofitions are taken, they are tranfmitted to the court with the fame care that the answer of a defendant is fent. [450 IF witnesses to a difputable fact are old and infirm, it is very usual to file a bill to perpetuate the teftimony of those witneffes, although no fuit is depending; for, it may be, a man's antagonist only waits for the death of fome of them to begin his fuit. This is most frequent when lands are devised by will away from the heir at law; and the devisee, in order to perpetuate the teftimony of the witneffes to fuch will, exhibits a bill in chancery against the heir, and fets forth the will verbatim therein, fuggesting that the heir is inclined to difpute it's validity: and then, the defendant having answered, they proceed to iffue as in other cafes, and examine the witneffes to the will; after which the caufe is at an end, without proceeding to any decree, no relief being prayed by the bill: but the heir is entitled to his cofts, even though he contests the will. This is what is usually meant by proving a will in chancery. WHEN all the witneffes are examined, then, and not before, the depofitions may be published, by a rule to pafs publication; after which they are open for the inspection of all the parties, and copies may be taken of them. The cause is then ripe to be fet down for hearing, which may be done at the procurement of the plaintiff, or defendant, before either the lord chancellor or the mafter of the rolls, according to the difcretion of the clerk in court, regulated by the nature and importance of the fuit, and the arrear of caufes depending before each of them refpectively. Concerning the authority of the mafter of the rolls to hear and determine causes, and his general power in the court of chancery, there were (not many many years fince) divers questions and difputes very warmly agitated; to quiet which it was declared by statute 3 Geo. II. c. 30. that all orders and decrees by him made, except fuch as by the course of the court were appropriated to the great feal alone, fhould be deemed to be valid; fubject neverthelefs to be discharged or altered by the lord chancellor, and fo as they shall not be inrolled, till the fame are figned by his lordship. Either party may be subpoena'd to hear judgment on the day fo fixed for the hearing: and then, if the plaintiff [ 451 } does not attend, his bill is difmiffed with cofts; cr, if the defendant makes default, a decree will be made against him, which will be final, unless he pays the plaintiff's coft of attendance, and fhews good caufe to the contrary on a day appointed by the court. A plaintiff's bill A plaintiff's bill may also at any time be difmiffed for want of profecution, which is in the nature of a nonfuit at law, if he suffers three terms to elapse without moving forward in the cause. WHEN there are crofs caufes, on a crofs bill filed by the defendant against the plaintiff in the original cause, they are generally contrived to be brought on together, that the fame hearing and the fame decree may serve for both of them. The method of hearing caufes in court is ufually this. The parties on both fides appearing by their counfel, the plaintiff's bill is first opened, or briefly abridged, and the defendant's answer also, by the junior counsel on each side: after which the plaintiff's leading counsel states the cafe and the matters in issue, and the points of equity arifing therefrom: and then such depositions as are called for by the plaintiff are read by one of the fix clerks, and the plaintiff may also read fuch part of the defendant's answer, as he thinks material or convenient and after this the reft of the counsel for the plaintiff make their obfervations and arguments. Then the defendant's counsel go through the fame process for him, except that they may not read any part of his answer; and the coun z On a trial at law if the plaintiff reads any part of the defendant's answer, he muft read the whole of it: for by reading any of it he shews a reliance on the truth of the defendant's teftimony, fel fel for the plaintiff are heard in reply. When all are heard, the court pronounces the decree, adjusting every point in debate according to equity and good confcience; which decree being ufually very long, the minutes of it are taken down, and read openly in court by the registrar (9). The matter of cofts to be given to either party, is not here held to be a point of right, but merely difcretionary (by the ftatute 17 Ric. II. c. 6.) according to the circumftances of the cafe, as they ap[452 ] pear more or lefs favourable to the party vanquished. And yet the ftatute 15 Hen. VI. c. 4. feems exprefsly to direct, that as well damages as cofts fhall be given to the defendant, if wrongfully vexed in this court. THE chancellor's decree is either interlocutory or final. It very feldom happens that the first decree can be final, or conclude the cause; for, if any matter of fact is strongly controverted, this court is fo fenfible of the deficiency of trial by written depofitions, that it will not bind the parties thereby, but ufually directs the matter to be tried by jury; especially fuch important facts as the validity of a will, or whether A is the heir at law to B, or the existence of a modus decimandi or real and immemorial compofition for tithes. But, as no jury can be fummoned to attend this court, the fact is usually directed to be tried at the bar of the court of king's bench or at the affifes, upon a feigned iffue. For, (in order to bring it there, and have the point in difpute, and that only, put in iffue) an action is brought, wherein the plaintiff by a fiction declares that he laid a wager of 5/ with the defendant, that A was heir at law to B; and then avers that he is fo; and therefore demands the 5. The defendant admits the feigned wager, but avers that A is not the heir to B; and there (9) It is not now the practice for the registrar to read the minutes of the decree openly in court; but any party to the fuit may procure a copy of them, and if there is any mistake, may move to have them amended. But after a decree has been formally drawn up and entered, no errors in it can be rectified on motion, or by any other proceeding than rehearing the caufe, upon |