The same rule also applies to affidavits required to be produced by a defendant verifying the service of the subpoena to hear judgment, for the purpose of obtaining a dismissal of the bill upon the plaintiff's making default at the hearing.

Whenever no appearance is made for a party at the hearing, it is advisable to get the affidavit entered by the Registrar, as in case of the solicitor for such party neglecting to attend and produce his brief on drawing up the decree, it may be taken on the affidavit of service.

CHAPTER XXIV.

OF HEARING CAUSES.

THE Registrars keep distinct lists of the causes and other matters to be heard before each Judge,1 and from these lists the paper of causes to be heard on each day of hearing is made out.

1 In Massachusetts, cases in Equity, and motions and other applications therein, whether interlocutory or final, shall in the first instance be heard and determined by one Justice of the Supreme Judicial Court. Genl. Sts. c. 113, § 6. All hearings shall be had in the county in which the cause is pending, if the Court is in session therein; and cases set down for hearing shall be heard in their order upon the docket in the county in which they are pending, if not heard before the Court shall sit in such county, unless the Court shall otherwise order. Rule 35 of the Rules for Practice in Chancery. A single Justice, or the full Court, sitting in one county, may, when needful, hear and determine cases pending in another county, and any motion therein. And all orders and decrees made on such hearings shall be transmitted to the clerk in the proper county, to be by him entered. Genl. Sts. c. 113, § 18. Sec. 19 provides for reasonable notice in such cases to the adverse party or his counsel. When any party shall desire a hearing in Equity before a single Justice, except at a term of the Court held in the county where the cause is pending, he shall apply to the Justice to appoint a time and place for the parties to attend; and when such time and place are appointed, he shall give notice thereof to the adverse party, or his solicitor or counsel, within three days, if the cause is pending in the county of Suffolk, and within seven days, if the cause is pending in any other county. All such notices may be transmitted through the post-office, postpaid; and shall be deemed to have been received by the person to whom they are addressed, in due course of mail, unless the contrary shall appear by affidavit. Rules 36 and 20, of the Rules for Practice in Chancery. Cases may be heard by consent of parties, and the permission of the Court, without such notice. Rule 36. Where a case pending in one county or any motion therein is heard before a

The daily paper of causes for hearing is always made out by the Registrars from the list of causes entered in their general books of causes, taken in rotation as they stand;1 and a copy of this paper is put up in the Registrar's Office on the evening of the day previous to the hearing.

We have before seen the manner in which short causes are advanced and heard before their regular time.

It must also be recollected that the cause list is in the discretion of the Judge of the Court, who, upon sufficient reason, will advance a cause, or let it be taken out of its turn.2

Where an order has been obtained for taking the bill pro confesso, the Court will usually appoint a special day for the hearing.3 Formerly, the Court would not advance suits for the foreclosure of mortgages; but now, by the 4th Order of May, 1839, "Fore-· closure causes, when ready for hearing, may be ordered to be advanced for hearing, under the same circumstances and subject to the same rules as other causes may be ordered to be so advanced.” 5

Formerly, a distinction was made between what were called consent causes and short causes. This distinction, for practical purposes, seems now to be abolished. Of course causes in which all parties consent to the decree are short causes, but such cases do not usually occur, as they involve those who conduct them in somewhat unnecessary responsibility.

It may be mentioned, with reference to the subject of consent causes, that a decree or order made by consent of the counsel for the parties, cannot be set aside either by rehearing or appeal, single Justice or the full Court sitting in another county, either party may transmit to the Court his reasons in writing for or against the application, and the Justice shall examine the same and proceed thereon as if the parties were present. Genl. Sts. c. 113, § 20. The Justices of the Court shall, from time to time, by arrangement among themselves, designate some one of their number to attend at some convenient place in Boston, at all convenient times, for the purpose of hearing matters in Equity, who by his rescript may make decrees and orders in Equity suits in any county. Genl. Sts. c. 113, § 24.

1 Hoyle v. Livesey, 1 Mer. 381.

2 Ransom v. Samuel, Cr. & Ph. 181.

81st Order, May, 1845; ante, p. 367.

Rashleigh v. Dayman, 2 Mad. 147.

'Carthew v. Barclay, 10 Sim. 273; Browne v. Lockhart, ibid. 420.

Brandish v. Gee, Amb. 229; Harrison v. Rumsey, 2 Ves. 488; Belt's Sup. 391; Toder v. Sampson, 7 Bro. P. C. 244. The same principle applies to orders made on ex parte applications. Sturgeon v. Hooker, 2 Phil. 289. An order or decree in Chan

or by bill of review, unless by clerical error anything has been inserted in the order, as by consent, to which the party had not consented, in which case a bill of review might lie; if, however, the decree has been obtained by fraud, relief may be had against it by original bill. The consent of counsel to a decree is to be given upon their own conception of their instructions, and as the client is bound by the act of his counsel, he must, if the counsel has consented without sufficient authority, seek his remedy against the counsel. It has been before stated, that although, where incery, entered by consent, is not the subject of an appeal or rehearing. Atkinson v. Manks, 1 Cowen, 693; Armstrong v. Cooper, 11 Ill. 540. But see Brewer v. State of Connecticut, 9 Ohio, 189, decided under the Act of Ohio, 1831, giving an appeal "from any final sentence or decree"; and see also Morris v. Davies, 5 Clark & Fin. 163. If an order or decree appealed from, purports on its face to have been taken by consent of the party appealing, it will be deemed by the Court above, on appeal, to have been so taken; and they will not hear evidence on the question whether it was so taken. If it was in fact not taken by consent, the party should have applied to the Court below to have the mistake in the entry corrected. Atkinson v. Manks, 1 Cowen, 693. A decree by consent is binding and conclusive unless procured by a fraud. French v. Shotwell, 5 John. Ch. 564. One affected by a decree, though not a party, may aver and prove that it was entered by an agreement of the parties, though it contradict the record. Stark v. Thompson, 3 Monroe, 302. See Shute v. Gustin. Halst. Dig. 175; Lewis v. Lewis, 1 Alabama, 35.

1 Webb v. Webb, 3 Swanst. 658, and see Smith v. Turner, 1 Vern. 274, ed. Raitby; Armstrong v. Cooper, 11 Ill. 540.

Anon. 1 Ves. jr. 93.

* Brandish v. Gee, Amb. 229. Or by setting the decree aside, if the fraud is discovered at the same term the decree is made. Doss v. Tyack, 14 Howard, (U.S.) 297.

Mole v. Smith, 1 J. & W. 673.

⚫ Brandish v. Gee, supra; Turner v. Turner, 1 De G. Mac. & Gor. 28; 1 Hoff. Ch. Pr. 27 and note; Corning v. Cooper, 7 Paige, 587. Where upon the hearing of a cause the counsel of the defendants abandoned the defence after hearing the opening argument in behalf of the plaintiffs, the Court refused to grant a rehearing upon the ordinary certificate of counsel. To obtain a rehearing under such circumstances, the defendants will be obliged to show a violation of duty on the part of their counsel, or that he had clearly mistaken either the law or the facts. Decarters v. La Farge, 1 Paige, 574. The Court has power, even after enrolment, to open a regular decree, obtained by default, to discharge the enrolment, for the purpose of giving the defendant an opportunity to make a defence on the merits, where he has been deprived of such defence, either by mistake or accident, or by the negligence of his solicitor. Millspaugh v. M'Bride, 7 Paige,

• Ante, p. 165.

fants are concerned, the Court does not usually make a decree by consent, without first inquiring whether it will be for their benefit, yet, if such a decree is made, the infants will be bound by it.

Sometimes a cause will be advanced to the head of the paper, pro forma, to enable a witness attending from a public office in the country, to prove a document and return: this is frequently done in cases where it is necessary to produce an original will from the Registry of the Prerogative Court of York, or from any inferior ecclesiastical jurisdiction; which is always necessary where a will of real estate is to be established by the decree of the Court. In one case an application was made to the Court, that a cause, which was not in the paper for the day, might be immediately called on for the purpose of proving a will, the proper officer having come up from York with the original for that purpose, and being detained in town at a considerable expense, the application was granted, and the cause having been called on, the will was produced by the proper officer to the Registrar.1

So, also, under the recent practice, by which the Court can examine a witness vivá voce, a cause has been advanced for this purpose.

Where original and cross causes are set down, the one preceding the other, and some other causes intervene, the plaintiff in the original cause, if the cross cause has acquired priority in the paper of causes, or vice versa, may (if necessary) move for leave to bring forward his cause, so that both original and cross cause may come on for hearing at the same time, or that the cross cause or original cause, as the case may be, may stand adjourned, in order that both causes may be heard together.2

3

Upon an application of this sort, it may be necessary to engraft a request that the depositions (if any) taken in the original cause may be read at the hearing of the cross cause, et sic e converso; 3 it is to be noticed that such an order, when obtained, may be made use of by the other side, without notice, unless he is, upon' special reason shown to the Court by the party first obtaining the same, inhibited by the same order from so doing; but it is necessary that a subpoena to hear judgment should be served in each cause; for the cause of that party who omits serving this process

shall not come on at the same time with the other party's, unless the latter consents to it.1

The same application may also be made by the plaintiff, where there are original and supplemental causes entered for hearing in the same paper, with other causes intervening.

If the party who procures a cause to be set down for hearing is not ready to hear it at the day, he must ask the Court to allow it to stand over to another day; such an application, however, will not be granted, unless upon the terms that the party making it shall pay to the other the costs of the day. By the 35th of the Orders of 1828,3 it is directed, "That where a cause being in the paper for hearing is ordered to be adjourned upon payment of the costs of the day, there the party to pay the same, whether before the Lord Chancellor, the Master of the Rolls, or the Vice-Chancellor, shall pay the sum of 107., unless the Court shall make order to the contrary."

It is to be observed, that where there are more defendants than one, the sum of 107. is not payable by the plaintiff to each of the defendants, but is divisible amongst them all, and that the party setting down the cause may obviate the necessity of paying it at all, by applying to have the cause adjourned before it comes into the daily paper.

The most usual reasons for applying to adjourn a cause, are the discovery of some defect in the pleadings which may render an amendment of the bill, or the filing of a supplemental bill necessary, the circumstances that the cause is likely to come on for hearing before the evidence is closed (which may happen in cases where the defendant has obtained an order to enlarge the period for taking evidence, on condition that it is not to delay the plaintiff in setting down his cause), or the fact that the suit is under compromise in such cases, an application should be made to the Court, by motion or petition, for an order to adjourn the cause before it appears in the daily paper of causes; otherwise the Court, instead of adjourning the cause, will order it to be struck out of the general paper, and thereby impose upon the plaintiff the necessity of again setting it down; in which case he will be within the

1 1 Harr. (ed. Newl.) 311.

* Hind. 416.

35th Order, 1828.

Ch. Rep. Expl. Paper, Prop. 58, p. 85.