Form of the preamble.

Form of the

answers.

a title immediately preceding the present 1) should be drawn up in writing, and in the first person, as follows:

II. "The answers of me, N., the proctor of M., made to the positions of the allegation, and to the exhibits on the part of O. (on such a day)." And then should proceed thus:

III. "To the said allegations and exhibits, I answer, and believe, &c." (stating the facts according to the truth, and agreeably to his, the proctor's, conscientious belief).

IV. If the allegation or exhibits, which the proctor is bound to answer, are divided into heads, he is expected to answer each position separately.

V. If more instruments than one are exhibited, he is bound to answer specifically, by the words, "I believe, or, I do not believe," to each part of the allegation, and each of the exhibits separately.

VI. For, a general negative answer, (which is too much the practice now, without inspecting the instruments pretended to be answered), is not admissible, according to the constitution of the court. Even though the following words are used, "To such an allegation, and to the exhibits mentioned therein, I make answer, that I do not believe them to be true in any respect."

1 Viz. in tit. 130, § 3. 5, 6. 9. 12.-Oughton.

2 1. According to the present custom, the proctor seldom returns a written answer, unless as far as the acts of court are in writing; and in them the answers are general. For instance, when suit is contested, he uses the words, "I answer negatively," or, “I answer affirmatively." In reply to verbal allegations entered on the court books, and in reply to allegations in writing, and in reply to exhibits, he says, "I dissent," or, "I accept, as far as makes for my party, and I dissent, as far as makes against my party," or, “I believe,” or, I confess," or, "I disbelieve," or, I deny."

66

2. Consequently, the observations contained above in this article, according to the present practice, are of more frequent use with reference to the personal answers of the principal party. And, as far as such personal answers are concerned (making the requisite alterations) they will be found applicable and correct.-Oughton.

SEARCH FOR INSTRUMENTS.

TITLE CXXXIII.

THE MODE OF PETITIONING THE COURT FOR AUTHORITY
TO SEARCH FOR INSTRUMENTS.

rooms.

I. IF in any registry, or public muniment room, instruments or Search in writings are lodged, tending to prove the contents of the allega- muniment tions or matters brought forward by either party in a suit, the application to the court should be as follows:

tion.

II. "I, N., allege, that divers instruments or ancient records, Applica(if possible, it should be specified what they are), necessarily tending to prove the contents of the allegations and exhibits made by me on behalf of my client, are deposited in the registry, or in the public archives of the reverend father N., (or some other person in whose custody they may happen to be: and here the person's name must be stated with whom they are). Wherefore, CommisI pray, that a scrutiny may be decreed, appointing M. N. O., sion. persons of ecclesiastical dignity, conjointly and severally 2, to ex- Time and amine the instruments and muniments therein deposited, on such place of exand such days, and in such a place, (naming the place of meeting, which formerly used to be the place in which the said records were kept); and that N., the adverse party, or rather his proctor3, be admonished to be present at such scrutiny; and further, that a Monition monition be decreed against the said reverend father, &c.5, and any others in whose custody such muniments may be, directing

1 These allegations and petitions should be made before the conclusion in the cause. MSS. Oughton.

2 If the cause is pending in the supreme court of delegates, it should be added, "Or any two, or more of them."-Oughton.

3 For the proctor makes himself a party for his client, and after contestation of suit, the proctor becomes lord of the controversy.—Oughton.

4 Concerning this monition, see tit. 134, throughout.-Oughton.

See observations on tit. 134, note 2.-Oughton.

ecution.

Decree.

Proper place of scrutiny.

Ancient practice.

them to exhibit the same before the said commissioners, on the days and in the place mentioned above, in order that they may be examined."

III. Whereupon the judge says, "We so decree, and admonish the parties, as required."

IV. In the application for, and the grant of, these scrutinies, an error has, in the author's judgment at least, (and learned advocates may with advantage be consulted thereupon), crept in, during the course of the several years last past, to this effect: the commission of scrutiny has been applied for, and decreed, to sit in some consistorial court, with a monition to the keepers of records to exhibit the same before the said commissioners in the said place, and not in the muniment room to which they belong 1.

V. Whereas, in ancient times, when exhibits and records were faithfully guarded and preserved in some public place specially set apart for their safe keeping, this was not the custom.

VI. Then, if the original exhibits, mentioned in the allegation or commission, made and granted for the purpose of such scrutiny, were found by the commissioners in their scrutiny in the registry or public archives, they obtained much more credit than they would have done, if they had been removed from the registry to any other place.

VII. For, in the latter case, how could it be proved that such exhibits, or muniments, had been in fact safely lodged and preserved in the muniment room, or registry"?

VIII. Truly, it could no way be proved, further than by the single testimony of the registrar, (or more frequently his clerk),

1 It is otherwise now. For, according to the tenor of the commission for a scrutiny, power is granted by the judge to the commissioners to the following effect: "To look into, examine, and scrutinize, the records, public books, and archives of the registry, or muniment room of such a bishop, (or archdeacon, or dean and chapter,) in such or such a city or place, for any muniments, instruments, acts, and records, contained in such registry or muniment room, which may tend to prove the contents of the allegation articulate annexed to the said commission. And to cause true copies of the said muniments, &c., when found and examined by such commissioners, to be extracted and copied out; and to take care that such extracts and copies be examined and compared with the originals, or entries in the registerbook." See the formularies.-Oughton.

2 In some MSS. it is thus expressed: "For, how could it be proved that such exhibits were the records mentioned in the allegation, or that they had been faithfully preserved among the archives, or in the registry above mentioned."-Oughton.

who in exhibiting the same, only asserted the fact by word of mouth, sometimes with, sometimes without, an oath.

IX. It appears, therefore, in the author's judgment, to be the safest course for the litigants to take care that all scrutinies be made in the registry, or muniment room itself 1.

TITLE CXXXIV.

THE TENOR OF THE MONITION TO EXHIBIT RECORDS, OR
MUNIMENTS, BEFORE COMMISSIONERS, IN ORDER TO
THEIR BEING EXAMINED.

I. THE proctor applying for a scrutiny should take care, that Form of the the monition to exhibit records, muniments, &c. be properly monition. drawn up, and sealed with the judge's seal', and duly executed against the person or persons in whose custody such muniments are placed.

II. And then the said execution of the monition should be When and authentically certified before the commissioners, as soon as they how certi

1 In which registry, or public building, such instruments are preserved.— See ancient MS.-Oughton.

2 1. In order to obtain this monition under seal, it is usual to address a petition to the judge, such as is described at the conclusion of sect. 2. of the title next preceding the present.

2. Whereupon, the judge decrees, that the ordinary of the place, and his registrar, the keeper of the records, or the scribe, or scribes, of the acts of court in particular, and all and singular the others in general, in whose custody any acts, enactments, muniments, instruments, and records, any way concerning the allegation articulate annexed to the commission of scrutiny, remain, or are placed, shall be admonished, that they produce, show, and exhibit, fully, plainly, wholly, and faithfully, before the commissioners, named in the said commission, conjointly and severally (or, when the cause comes before the high Court of Delegates, in the following words, or before any two or more of them,") at the time and place of executing the said commission, all and singular the acts, &c. above mentioned, such as any way concern or relate to the business in hand, and are in their custody in their original form, or as they were registered; or that they cause them to be produced, shown, and exhibited, in order that they may be examined, and that true copies of the same may be taken and extracted, and faithfully compared with the originals or registered copies; under pain of contempt, and of the law. Further, consult the Formularies.-Oughton.

fied.

sit judicially, in the place assigned for their meetings, in the same way as other authentic certificates are prepared'.

The pro

TITLE CXXXV.

THE FORM OF PROCEEDING ON A SCRUTINY.

I. THE Commissioners and the notary being assembled on the ceedings. day, and in the place, assigned for conducting the scrutiny, the proctor (or his substitute, first exhibiting the act of substitution) should say,

Exhibition

sion.

II. "On behalf of the venerable and worshipful the official of commis- principal of the Archbishop of Canterbury's Court of Arches, (or some other judge who has granted the scrutiny 2), I present to you certain letters of commission for a scrutiny; and I pray, that you be pleased to take upon yourselves the task of executing the same, and that you decree proceedings to commence according to the tenor of the said commission."

sion.

III. Then the commissioners should cause the said commission to be publicly read 3, and, it being read, should say,

4

Acceptance IV. "We, on account of our reverence * for the judge, (or, the of commis- honour in which we hold him, if the archbishop grants the commission), take upon ourselves the office of executing this commission; and decree proceedings to take place according to the force, Assump- form, tenor, and effect of the same; and we assume the notary public here present as the register of our acts."

tion of

notary. Proctor absent.

V. Then the proctor on the other side is publicly called; and in all respects the proceedings which take place in pain of his contumacy, if he does not appear, are the same as in the title 3, the mode of proceeding after the acceptance of the task of ex

"On

1 The mode of certifying is explained in tit. 43, and observations thereupon.-Oughton.

2 The rules of proceeding in this case are laid down in tit. 113, § 4. "On the form of presenting a commission for the examination of witnesses." -Oughton.

3 See tit. 113, § 5.-Oughton.

4 See tit. 113, § 6.-Oughton.

See tit. 114, § 7-9. 16-20.-Oughton.