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two months after the filing of the replication expire in the long vacation, publication is to pass on the second day of the ensuing Michaelmas Term, unless the time is enlarged by order. And that," if the time is enlarged by order, publication is to pass with- · out rule or order, on the expiration of the enlarged time, unless the enlarged time expires in the long vacation, in which case publication is to pass without rule or order on the second day of the ensuing Michælmas Term, unless the time is further enlarged by order." 2

As these Orders fix precisely the time at which publication is in all cases hereafter to pass, it will not be necessary to enter at length into the details of the practice by which the time of publication has hitherto been determined.

It is desirable, however, to state that before these Orders came into operation publication passed either by consent or rule.

A rule to pass publication was in the nature of an order of the Court, directing that publication should pass unless cause was shown by the other side. Before a rule to pass publication could be entered, it was necessary, in most cases, that there should have been a previous order or rule, called a rule to produce witnesses. This rule, which was in fact, a notice given by one side to the other to proceed with the examination of his witnesses, was sometimes called the ordinary rule.

3

When witnesses were examined in Court, two rules were necessary for publication, viz., an ordinary rule, and then a day to show cause why publicatian should not pass. So also in cases where a commission issued, but which came under the 17th Order of 1828, two rules were necessary. When, however, the case did not come within the 17th Order of 1828, and a commission issued, only one rule to pass publication was necessary.

When the prescribed period from the date of the rule to pass publication expired, publication passed as of course, unless the by mistake out of Court, may be received and filed in Maine on affidavit of the fact. Law v. Law, 4 Greenl. 167. In Massachusetts, a deposition taken under a commission, so opened, may be used in the discretion of the Court, notwithstanding the rule, that "all depositions shall be opened and filed with the Clerk." Burrell v. Andrews, 16 Pick. 551; Goff v. Goff, 1 Pick. 475.

1 112th Order, May, 1845.

2 113th Order, May, 1845. Moody v. Payne, 3 John. Ch. 294. Beames's Ord. 190.

Whalley v. Pepper, 8 Sim. 203.

Examiner or the clerk in whose custody the depositions were, had been served with an order to enlarge publication; or unless a commission had been issued at the instance of a defendant, under the provisions of the 17th Order, for the examination of witnesses in the country, the time allowed for the return of which had not expired, in which case, publication was directed by the 17th Order, to stand enlarged until the commission was returnable.

The recent Orders of May, 1845, do not appear to have made any alteration in the practice according to which applications of this kind are hereafter to be made; but care must be taken in future in every case, that the application to enlarge publication be made before the expiration of two months from the filing of the replication. If this period has expired, it would appear, from the old practice, that the Master has no longer jurisdiction to allow any further examination of witnesses, as any subsequent application, although, in form, one to enlarge publication, is in effect one for leave to examine witnesses notwithstanding publication has passed.2

It has before been stated, that the Master has no jurisdiction to allow of the further examination of witnesses after the period has arrived at which publication, according to the general Order, passes.3

The Orders of May, 1845, have now, as we have seen, changed the manner in which publication passes, and it remains to be seen whether hereafter any terms or conditions will be annexed to the order to enlarge publication.

Hitherto in most cases publication would have been enlarged,

1 To enlarge publication is to stay or postpone the rule for passing publication, and a motion for that purpose may be granted, on reasonable cause shown; but this is very different from a motion to examine witnesses after publication has actually passed. Hamersley v. Lambert, 2 John. Ch. 432; post, 967, note. It is not of course to enlarge the rule to pass publication, and it will be refused where there has been great delay. Underhill v. Van Cortlandt, 1 John. Ch. 500.

* Carr v. Appleyard, 2 M. & C. 476; Anon. 5 Beav. 92; Strickland v. Strickland, 4 Beav. 146.

In New Jersey, the examination must close at the time limited by the rule, unless the time shall be enlarged by consent, or the Chancellor, upon petition or motion, and sufficient cause shown, shall give further time for closing the examination; but an ex parte order shall not be granted after the time has expired, nor shall a second order be granted to the same party, except on two days' notice to the opposite party, and upon such terms as may be prescribed. Chancery Rule, XIII. § 2.

and a party have had an opportunity given him of examining witnesses, even though publication had been enlarged by a precedent order, if any ground for doing it was shown and verified by affidavit; as where witnesses resided in parts of the kingdom at any distance from each other, or where the party applying had not been able to examine all his witnesses under a joint commission, executed in the cause, by reason of some of the witnesses residing at a great distance from the party, and others at a great distance from the place of executing the commission; or where witnesses have refused or neglected to attend before the Commissioners; or by any accident have not been examined at the execution of the commission.2 In Barnes v. Abram,3 publication, though often enlarged before, was enlarged again in order to enable the defendant in a tithe cause to search for records in the Vatican upon affidavit as to the probability of success there.

Under the practice before the Orders of 1845 came into operation, when any of the parties were desirous of obtaining a commission returnable at a period subsequent to that at which publication would have passed, the proper course seems to have been first to apply to the Master to enlarge publication, and then an order might have been obtained from the Court for the commission.* The same practice appears to continue, except that now the Master has jurisdiction to hear applications for additional commissions, and to determine questions relating thereto.5

Where a cross bill has been filed before the original suit has been proceeded in, and the defendant to the cross suit (who is the plaintiff in the original suit) has not put in an answer to the cross bill, the plaintiff in the cross suit may have publication enlarged in the original suit till a fortnight after the answer to the cross bill shall have come in, as the discovery afforded by such answer may be of service to him in framing his interrogatories. But we have before seen, that if publication has been allowed to pass in the original suit, witnesses can no longer be examined in the cross cause concerning matters in issue in the original one.7

1 Hind. 383; Moody v. Leaming, 1 Mad. 85.

2 Hind. 383.

Maund v. Allies, 4 M. & C. 503.

See ante, p. 925.

3 Mad. 103.

Creswick v. Creswick, 1 Atk. 291. See also, Ramkissenseat v. Barker, 1

Atk. 19.

'Pashall v. Scott, 1 Ph. 110.

It seems, however, that after proceedings have been taken in the original cause, publication can only be enlarged where the defendant in the cross cause is in contempt, unless a special case is made. In Cook v. Broomhead,1 where the cross bill was not filed till after a rule to pass publication had been entered in the original suit, and the defendant in the cross suit was not in contempt, a motion by the plaintiff in the cross suit, to enlarge publication, which was not founded upon any special grounds, was refused with costs.2

It may be mentioned here, that the Court of Exchequer has determined, that an order to enlarge publication till the coming-in of the answer in a cross-cause, shall not be granted, unless upon affidavit of the truth of the facts stated in the cross bill, and that the answer may furnish a good defence to the original bill. It is not necessary, however, that such affidavit should be made by the party himself, but if made by his solicitor, it will be sufficient.

Sometimes, when, by accident or surprise, publication passes before a party has examined his witnesses, and there has been no blameable negligence, publication will be enlarged 5 even after the

1 16 Ves. 133.

See Underhill v. Van Cortlandt, 1 John. Ch. 500; Governeur v. Elmendorf, 4 John. Ch. 357; Field v. Schieffelin, 7 John. Ch. 250.

⚫ Edwards v. Morgan, 11 Pri. 939.

* Lowe v. Firkins, M'Lel. 10; 13 Pri. 21, S. C.

The time for publication will be enlarged, or more properly, the time for taking testimony will be enlarged, after publication passed, though not in fact made according to the rules of the Court, provided some good cause is shown therefor upon affidavit, as surprise, accident, or other circumstances, which repel the presumption of laches. The affidavit is indispensable except in cases of fraud, practised by the other party. Wood v. Mann, 2 Sumner, 316. In Hamersley v. Lambert, 2 John. Ch. 432, it was held, that after publication witnesses cannot be examined unless under very special circumstances. See also Hamersley v. Brown, 2 John. Ch. 428. The deposition of a witness, whose examination was not closed until after publication had passed, was allowed to be read; he having been crossexamined by the opposite party, and no actual abuse appearing; but such practice is irregular. Underhill v. Van Cortlandt, 2 John. Ch. 339. The Court by extreme rigor, endeavors to guard against the abuse of introducing testimony to meet that which has been produced; and accordingly it has been held, that if, after publication has passed, the substance of the testimony taken on a material point, upon which further testimony is sought, has been disclosed to the party applying, it is too late to move to open or enlarge the rule on affidavit. Moody v. Payne, 3 John. Ch. 294. See this subject discussed in Wood v. Mann, 2 Sumner, 316.

depositions have been delivered out, upon affidavit that they have not been read. Such an order, however, cannot be made1 except upon application to the Court itself,2 nor unless some cause is shown why the witness was not examined before. And it is a rule of the Court, that the party, as well as his solicitor, must make oath that they have never seen, read, nor been informed of the contents of the depositions taken in the cause, nor will they, &c., till publication is duly passed.3

An instance is mentioned in the books, having occurred in Lord Somers's time, in which the Court granted an order to enlarge publication after it had actually passed, although the rule of the Court above stated could not be complied with; but in that case the solicitor on the other side, being an artful man, having procured copies of his client's depositions, immediately went with them to the adverse solicitor, and showed him the depositions, and read them over to him; the solicitor, being ignorant of the rule, told him he must, notwithstanding, have an opportunity of examining his witnesses, and soon after took his witnesses to the Examiner's office, where he was told they could not be examined, because publication was passed and the depositions delivered out. The solicitor, surprised at this, went to his clerk in Court to know what he was to do, and told him the whole story, which being laid before the Court, it enlarged publication, and gave the party an opportunity to examine his witnesses, and the adverse party narrowly escaped commitment for his misconduct.4

Where a defendant obtained an order to enlarge publication upon an allegation that it had not passed, which was untrue, the order was held to be informal, and an application, upon the usual affidavit, that publication might be again enlarged, or the evidence taken under the informal order, read at the hearing of the cause, was dismissed with costs.5

It seems that the Court will not only enlarge publication, upon the proper affidavits, after publication has actually passed, but it 1 1 Harr. (ed. Newl.) 289.

Anon. 5 Beav. 92; Maund v. Allies, 4 M. & C. 503.

3 Ibid.; but see Lawrell v. Titchborne, 2 Cox, 289; Hamersley v. Lambert, 2 John. Ch. 432. In this case the Chancellor remarks, that "such an oath ought not to be much encouraged. It is partly promissory, it may be difficult to be strictly kept, and is of dangerous and suspicious tendency." p. 433.

1 Harr. (ed. Newl.) 289.

Conethard v. Hasted, 3 Mad. 429.

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