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sealed up, either one of the commissioners carries it up to the court; or it is sent by a messenger, who swears he received it from one of the commissioners, and that the same has not been opened or altered since he received it. An answer must
be signed by counsel, and must either deny or confess all the [ 448 material parts of the bill ; or it may confess and avoid, that
is, juftify or palliate the facts. If one of these is not done, the answer may be excepted to for insufficiency, and the defendant be compelled to put in a more sufficient answer. A defendant cannot pray, any thing in this his answer, but to be dismissed 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 costs 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 such amended bill. But this must be before the plaintiff has replied to the defendant's answer, whereby the cause is at issue;, før afterwards(8), if new matter arises, which did not exist before, he muil set it forth by a supplemental bill. There may be also a bill of revivor, when the suit is abated by the death of any of the parties; in order to set the proceedings again in motion, without which they remain át a stand. And there is likewise a bill of interpleader; where a person 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 safe in the payment. In this last case it is usual to order the money to be paid into court, for the benefit of such of the parties, to whom upon hearing the court shall decree it to be due. But this depends upon circumstances : and the plaintiff must also annex an
(8) Where new marter arises after filing the bill, it cannot be introduced into the suit by amending the original bill, the iffue is not joined, but must be' Aated in a supplemental bill. 3 Atk. 217. j Alk. 291.
affidavit to his bill, swearing that he does not collude with ei her of the parties.
If the plaintiff finds sufficient matter confessed in the de. fendant's answer to ground a decree upon, he may proceed to the hearing of the cause upon bill and answer only. But in that case he must take the defendant's answer to be true in every point. Otherwise the course is for the plaintiff to reply generally to the answer, averring his bill to be true, certain, and sufficient, and the defendant's answer to be directly the reverse; which he is ready to prove as the court [ 449 1 shall award : upon which the defendant rejoins, averring the like on his side; which is joining issue upon the facts in dif. pure. To prove which facts is the next concern.
This is done by examination of witnesses, and taking their depositions in writing, according to the manner of the civil law. And for that purpose interrogatories are framed, or questions in writing; which, and which only, are to be proposed to, and asked of, the witnesses in the cause. These interrogatories must be short and pertinent : not leading ones ; (as “ did not you see this, or, did not you hear «« that?”) for if they be such, the depositions taken thereon will be suppressed and not suffered to be read. For the purpose of examining witnesses in or near London, there is an examiner's office appointed ; but, for such as live in the country, a commission to examine witnesses is usually granted to four commissioners, two named of each side, or any three or two of them, to take the depositions there. And if the witnesses reside beyond fea, a commission may be had to examine them there upon their own oaths, and (if foreigners) upon the oaths of skilful interpreters. And it hath been established y that the deposition of an heathen who believes in the supreme being, taken by commission in the most folemn manner according to the custom of his own country, may be read in evidence.
The commissioners are sworn 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 fworn to secrecy. The witnesses are compella le by process of subpoena, as in the courts of common law, to appear and submit to examination. And when their depositions are taken, they are transmitted to the court with the same care that the answer of a defendant is fent.
[ 450 1 IF witnesses to a disputable fact are old and infirm, it is
very usual to file a bill to perpetuate the testimony of those witnesses, although no suit is depending; for, it may be, a man's antagonist only waits for the death of some of them to begin his suit. This is most frequent when lands are devised by will away from the heir at law; and the devisee, in order to perpetuate the testimony of the witnesses to such will, exhibits a bill in chancery against the heir, and sets forth the will verbatim therein, suggesting that the heir is inclined to dispute it's validity: and then, the defendant having answer. ed, they proceed to issue as in other cases, and examine the witnesses to the will; after which the cause is at an end, without proceeding to any decree, no relief being prayed by the bill : but the heir is entitled to his costs, even though he contests the will. This is what is usually meant by proving a will in chancery.
When all the witnesses are examined, then, and not before, the depositions may be published, by a rule to pass 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 set down for hearing, which may be done at the procurement of the plaintiff, or defendant, before either the lord chancellor or the master of the rolls, according to the discretion of the clerk in court, regulated by the nature and importance of the suit, and the arrear of causes depending before each of them respectively. Concerning the authority of the master of the rolls to hear and determine causes, and his general power in the court of chancery, there were (not
many many years Gnce) divers questions and disputes 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 such as by the course of the court were appropriated to the great seal alone, should be deemed to be valid ; subject nevertheless to be discharged or altered by the lord chancellor, and so as they shall not be inrolled, till the same are signed by his lordship. Either party may be fubpoena'd to hear judgment on the day fo fixed for the hearing: and then, if the plaintiff ( 451 1 does not attend, his bill is dismiffed with costs; cr, if the defendant makes default, a decree will be made against him, which will be final, unless he pays the plaintiff's cost of attendance, and shews good cause to the contrary on a day appointed by the court. A plaintiff's bill may also at any time. be dismissed for want of profecution, which is in the nature of a nonsuit at law, if he suffers three terms to elapse without moving forward in the cause.
fame decrefought on original call filed by the
When there are cross causes, on a cross bill filed by the defendant against the plaintiff in the original cause, they are generally contrived to be brought on together, that the same hearing and the fame decree may serve for both of them. The method of hearing causes in court is usually this. The parties on both sides appearing by their counsel, 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 case and the matters in issue, and the points of equity arising 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 such part of the defendant's answer, as he thinks material or convenient ?: and after this the rest of the counsel for the plaintiff make their observations and arguments. Then the defendant's counsel go through the same process for him, except that they may not read any part of his answer; and the coun
2 On a trial at law if the plaintiff the truth of the defendant's testimony, reads any part of the defendant's answer, and makes the whole of his answer ke must read the whole of it: for by evidence. reading any of it he shews a reliance on
sel for the plaintif are heard in reply. When all are heard, the court pronounces the decree, adjusting every point in de. bate according to equity and good conscience; which decree being usually very long, the minutes of it are taken down, and read openlyin court by the registrar (9). The matter of costs to be given to either party, is not here held to be a point of right, but merely discretionary (by the statute 17 Ric. II. c. 6.) according to the circumstances of the case, as they appear more or less favourable to the party vanquished. And yet the statute 15 Hen. VI. C. 4. seems expressly to direct, that as well damages as costs shall be given to the defendant, if wrongfully vexed in this court.
The chancellor's decree is either interlocutory or final. It very seldom happens that the first decree can be final, or conclude the cause ; for, if any matter of fact is strongly controverted, this court is so sensible of the deficiency of trial by written depositions, that it will not bind the parties thereby, but usually directs the matter to be tried by jury; especially such 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 composition for tithes. But, as no jury can be summoned 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 assises, upon a feigned ilue. For, (in order to bring it there, and have the point in dispute, and that only, put in issue) an action is brought, wherein the plaintiff by a fiction declares that he laid a wager of 5l with the defendant, that A was heir at law to B; and then avers that he is fo; and therefore demands the 51. 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 suit 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 cause.