operation of the 34th Order of 1828, which directs that "where a cause, which stands for hearing, is called on to be heard, but cannot be decided by reason of a want of parties, or other defect on the part of the plaintiff, and is, therefore, struck out of the paper, if the same is again set down, the defendant or defendants shall be allowed the taxed costs occasioned by the first setting down, although he or they do not obtain the costs of the suit."

It is to be observed, that a cause will not be adjourned because a cross bill has been filed, to which no answer has been put in.1

on,

The plaintiff's solicitor should take care, before a cause is called on, to furnish the Judge who is to hear it with a print of the bill or a copy of the title of the cause, and of the prayer of the bill; 2 he should also, as well as the solicitor for the defendants, be in attendance, either by himself or his clerk, when the cause is called and during the hearing. In order to enforce the performance of this duty on the part of the solicitors, the 36th of the Orders of 1828 directs, that "Whenever upon the hearing of any cause or other matter, it shall appear that the same cannot conveniently proceed, by reason of the solicitor for any party having neglected to attend personally, or by some proper person on his behalf, or having omitted to deliver any paper necessary for the use of the Court, and which, according to its practice, ought to have been delivered, such solicitor shall personally pay, to all or any of the parties, such costs as the Court shall think fit to award." 3

The causes in the paper for the day are generally called on by the Registrar in the order in which they there stand.

1 Coates v. Pearson, 4 Mad. 262.

If

In New Hampshire, "If the cause is to be heard upon bill and answer, notice shall be given thereof, with a copy of the bill and answer, if not before furnished to the Court or one of the Justices, without delay, or the bill may be dismissed. Rule 25. If the cause is to be heard on the bill and demurrer, copies thereof, if not already furnished, shall be given to the Court or one of the Justices without delay, or the bill may be dismissed. Rule 26. Within ten days after the evidence is by the rules required to be closed, each party shall furnish the evidence taken by him to one of the Justices of the Court, otherwise such evidence may be regarded as waived, or the party in fault may be charged with the costs occasioned by the delay. Rule 27 of Chancery Practice, 38 N. Hamp. 610.

* In Massachusetts, the original papers in any suit in equity, may be taken from the files in any county by the counsel of record of either party, for use before the Court, upon leaving a memorandum and receipt on such files, containing a short description of the papers so taken. Genl. Sts. c. 113, § 25.

4

It seems that if a peer of the realm is interested in a cause and comes upon the

upon a particular cause being called and the bill opened, the defendant does not appear to open his answer, the Court calls on the plaintiff to prove service upon him of the subpoena to hear judgment.1

The 44th Order of August, 1841, directs, "That where a defendant makes default at the hearing of a cause, the decree shall be absolute in the first instance, without giving the defendant a day to show cause, and such decree shall have the same force and effect as if the same had been a decree nisi in the first instance, and afterwards made absolute in default of cause shown by the defendant." 2

In the case of a decree made after an order to take the bill pro confesso, we have seen that the Court does not now allow the plaintiff to take such a decree as he can abide by, but itself makes the decree which seems just.3 The Orders of 1841 have not provided that the decree made upon the default of the defendant to appear at the hearing shall be the act of the Court itself, but probably such a practice will be adopted; otherwise it does not seem clear what restraint there would be upon a plaintiff in drawing up his own decree. This appears to be the practice in Ireland.5 Even before the 44th Order of August, 1844, when the object of the bill was to establish a will against an heir-at-law, the Court, notwithstanding he made default, ordered the proofs of it to be read, for the will could not otherwise be declared to be well proved.6

The same course of proceeding, mutatis mutandis, as that adopted where the plaintiff has set the cause down and does not appear, may be taken where the cause has been set down at the request of the defendant and the plaintiff does not appear; in such cases the bench, it is usual, after the cause then in hearing is over, to call on his cause before the others which are above it; if, however, the peer's cause stands low down in the paper, and the adverse counsel say they are not ready, but will be so when the cause is called on in its course, the Court will not force them to go on, and the nobleman must wait till his cause is called and comes on in its course. For. Rom. 154.

1 Carew v. Johnstone, 2 Sch. & Lef. 300; and Knight v. Young, 2 V. & B.

186.

2 See Rule 14 of the Chancery Rules of New Jersey.

decree pronounced by the Court will be for a dismissal of the plaintiff's bill against the defendants, with costs, absolutely, but the defendant can take no advantage of the plaintiff's non-appearance, except the subpoena to hear judgment appears to have been properly served, for otherwise the plaintiff is in no fault.2

Where the cause has been set down by the plaintiff, and the defendant's counsel is ready and appears, and no counsel appears for the plaintiff, the Court always calls upon the defendant to prove service, upon himself, of the subpoena to hear judgment; this must be done by affidavit in the manner above pointed out; and if the Court is satisfied that the subpoena to hear judgment has been served, it will make a peremptory decree to dismiss the plaintiff's bill with costs. It is to be observed, that if a plaintiff sets down his cause but does not serve the defendant with a subpoena to hear judgment, the defendant cannot have a decree to dismiss, but should, if he wishes to have the suit decided, set the cause down to be heard at the request of the defendant.

It sometimes happens, that a person who has not been served with a subpoena to hear judgment, or who has not appeared in the cause, is willing to be bound by the decree; in such a case the rule seems to be, that any party named as a defendant to a bill may with the consent of the plaintiff alone appear at the hearing of the cause, and be bound by the decree, although such party has not been served with a subpoena to appear, or has not appeared in the suit; but a person, who has not been named as a defendant to the bill, cannot appear at the hearing, without the consent of all parties to the cause.4

The formal method of hearing a cause, where all the parties appear upon its being called on, is this: "The plaintiff's bill is first opened, or the substance of it briefly stated, 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 and parts of the defendant's answer, as are intended to 1 Hind. 407, 418. Clark v. Wilson, 24 May, 1775.

2 Ibid.

Hind. 419, and 117th Order, May, 1845, ante, p. 799.

4 Dyson v. Morris, 1 Hare, 413. See the remarks on this case in the note to Lewis v. Clowes, 10 Hare, App. 62.

For the course of proceeding on the hearing of a case in Equity, in Maine, See Rule 18 Chancery Practice, 37 Maine, 588, 589.

be used on the part of the plaintiff, are read by the junior counsel. It is, however, now usual for the Court to dispense with the opening of the bill and answer by the junior counsel, so that the hearing is commenced by the leading counsel stating the case of the plaintiff.1

Pleadings in the cause and depositions are usually read from office copies, which, for this purpose, must be duly signed by the proper officer.2 But neither drafts nor office copies of pleadings are considered, by the Court, as evidence in themselves, and if a doubt is suggested as to their accuracy, the Court will refer to the original record; indeed, the practice of referring either to drafts or to office copies, appears to have been adopted merely to save the Court the trouble of inspecting the original record, which is, nevertheless, always understood to be in Court.

With reference to the question of stamps upon written documents, read at the hearing of a cause, it may be useful in this place to state, that the Court of Chancery will not receive in evidence any document, which ought to be stamped, without it has the proper stamp affixed to it, and that the Court will itself raise the objection, whether it be taken by the other party or not.3 And a Court of Equity cannot any more than a Court of Law receive parol evidence of the contents of a written agreement, which appears never to have been stamped, even where it is proved to have been fraudulently destroyed by the party against whom it is sought to be enforced. If the instrument objected to is of such a nature, that a stamp may be affixed to it on payment of a penalty, the Court will permit it to be so stamped, and will, for that purpose, permit the cause to stand over.5

After the plaintiff's evidence has been read, 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. The leading counsel for the plaintiff is then heard -in reply, and

1 Newton v. Ricketts, 2 Phil. 620.

Gee v. Gurney, 8 Beav. 315. By Chancery Rule 13, § 10, of New Jersey, no documentary evidence, which is not made an exhibit before the Master, shall be read at the hearing of the cause.

17 & 18 Vict. c. 125, s. 28.

Smith v. Henley, 1 Ph. 391; Hart v. Hart, 1 Hare, 1.

Ibid.; Coles v. Trecothick, 9 Ves. 234; Carrington v. Pell, 3 De G. & Sm. 516. As to objections to probates for want of a proper stamp, see ante, p. 328. See ante, 876, for the provisions of the recent Stamp Act.

concludes the argument.1 When all are heard, the Court pronounces the decree, the minutes of which are generally taken down by the Registrar, and are sometimes read, by him, openly in Court.2

The course of proceeding is much the same, where the answer has not been replied to, and the cause has been set down for hearing, upon bill and answer only; in such case the practice has been that the answer is read, and must be admitted to be true in all points; and no other evidence has been permitted, unless matters of record to which the answer refers, and are provable by the record itself. Now, there is an exception to this rule upon a motion for decree. In this case the plaintiff does not reply, but the answer is treated as an affidavit.5

If the plaintiff goes to hearing on bill and answer, and the Court shall not see cause to make a decree thereupon, for want of sufficient matter confessed by the answer, the bill will be dismissed with costs.6

1 Hind, 412. See Higdon v. Higdon, 6 J. J. Marsh. 49. Where there are two defendants, who set up adverse claims, the course of practice is for the plaintiff to open; for the defendant who sets up a claim against the other then to go on, and for the other defendant to answer; and there is no reply between the defendants, unless specially directed by the Court. Walton v. Van Mater, Halst. Dig. 175. For the mode of proceeding in Maine, see Rule 18, Chancery Practice, 37 Maine, 588, 589.

Ibid. See post, "Decrees." In New Hampshire, when an answer is delivered to the plaintiff's solicitor, the plaintiff shall, within one month, amend his bill by leave of the Court or one of the Justices, and deliver his amendment to the defendant's solicitor, or deliver to such solicitor his replication, or his exceptions allowed by the Court, if not submitted to by the defendant, otherwise the case shall be heard as of course on the bill and answer. Rule 17 of Chancery Practice, 38 N. Hamp. 608.

3 See Childs v. Horr, 1 Clarke, (Iowa,) 432; Warren v. Twilley, 10 Maryland, 39. Whether the matters stated in it are responsive to the bill, or of pure avoidAnte, 840, notes. And this rule prevails even where the defendant only avers that he believes and hopes to be able to prove such facts. Brinckerhoff v. Brown, 7 John. Ch. 217; Dale v. McEvers, 2 Cowen, 18.

ance.

• But documentary evidence cannot be read to show facts not stated in the pleadings. Anonymous, 1 Barb. Ch. 73. In a hearing on the bill and answer, averments in the bill which are denied on oath in the answer will not be taken to be true. Tainter v. Clark, 5 Allen, 66.

Unless the objection might have been taken by demurrer, and the defendant has failed to do so, in which case the bill will be dismissed without costs. Hollingsworth v. Shakeshaft, 14 Beav. 492.