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the discovery of any crime, the defendant may demur and refuse to answer.
Commission. If the defendant lives within twenty miles of London, he must be sworn before one of the masters of the court; if farther off, there must be a commission to take his answer in the country, where the commissioners administer to him the usual oath, and then the answer being sealed, a commissioner carries it up to the court or sends it by a messenger, who swears he received it, as it is, from a commissioner.
Defective Answer. An answer must be signed by counsel, and must either deny or confess all the material parts of the bill, or it may confess and avoid, that is, justify or palliate the facts. If one of these be not done, the answer may be excepted to for insufficiency, and the defendant be compelled to put in a more sufficient answer.
Cross Bill. A defendant cannot pray anything in his answer, but to be dismissed the court. If he claims relief against the plaintiff, he must do it by an original bill of his own, which is called a cross bill.
Amended Bill. After answer put in, upon payment of costs, the plaintiff may amend his bill, either by adding new parties or new matter, or both, upon the additional light given him him by the defendant, and the latter is obliged to answer afresh such amended bill.
Supplemental Bill. But this must be before the plaintiff has replied to the defendant's answer, whereby the cause is at issue : for afterwards, if new matter arise, which did not exist before, he must set it forth by a supplemental bill.
Bill of Revivor. There may also be 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
in statu quo.
Bill of Interpleader. There is likewise a bill of interpleader, where a person, who owes a debt or rent to one of the parties to the suit, but until its determination, he knows not to whom, desires, that they may interplead, that he may be safe in the payment. It is usual in the latter case, to order the money paid into court for the benefit of the party, to whom it may be found due. The plaintiff must annex an affidavit to his bill, swearing there is no collusion between him and either party.
Argument on Bill and Answer. If the plaintiff finds sufficient matter confessed in the defendant's answer to ground a decree upon, he may proceed to the hearing of the cause upon bill and answer only. But in such case, he must take the defendant's answer to be true in every point:
Replication and Rejoinder. 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 the reverse, which he is ready to prove; upon which the defendant rejoins, averring the like on his side, which is joining issue on the facts in dispute.
Interrogatories and Depositions. Proof is made by examining witnesses, and taking their depositions in writing, according to the manner of the civil law. For that purpose, interrogatories are framed, or questions in writing, which and which alone are to be proposed to the witnesses in the cause. These interrogatories must be short and pertinent, and not leading, for if they be such, the depositions will be suppressed.
Commission. For the purpose of examining witnesses in or near London, an examiner's office is appointed, but for such as live at a distance, a commission to examine witnesses is granted, to take depositions at such locality. If foreigners, skilful interpreters are employed. The deposition of a heathen, who believes in a supreme being, taken by commission in the most solemn manner, according to the custom of his own country, may be read. The commissioners are sworn to take the examinations truly and without partiality, and not to divulge them till published in the court of chancery. Their clerks are also sworn to secrecy.
Witnesses. The witnesses are compellable by process of subpoena, as in the courts of common law, to appear and submit to examination.
Bill to Perpetuate Testimony. If witnesses are old and infirm, it is usual to file a bill to perpetuate their testimony, although no suit may be pending; for it may be, that an antagonist only waits for the death of some of them to begin his suit. This is most frequent, when lands are devised away from the heir at law; and the devisee in order to perpetuate the testimony of witnesses to such will, exhibits a bill in chancery against the heir, and sets forth the will verbatim, suggesting that the heir is inclined to dispute its validity; and then the defendant having answered, 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 a decree, no relief being prayed, but the heir is entitled to his costs, even if he contests the will. This is usually termed proving a will in chancery.
Depositions Published. When all the witnesses are examined, and not before, the depositions may be published, under a rule, after which they are open for inspection of the parties, and may be copied.
Decree of Master of the Rolls. The cause is then ready for hearing, and may be placed on the list at the instance of either plaintiff or defendant, before either the chancellor or the master of the rolls, according to the discretion of the clerk of the court, regulated by the nature and importance of the suit, and the number of causes then pending before them. As to the authority of the master of the rolls to hear and determine causes, and his power in the court of chancery, the statute declares, that all decrees by him made, except such as the court appropriated to the great seal alone, should be deemed valid, but may be altered by the chancellor.
Absence from the Hearing. Either party may be subpened to hear judgment on the day fixed for the hearing, and then if the plaintiff does not attend, his bill will be dismissed with costs. If the defendant makes default, a decree will be made against him, which will be final, unless he pays the plaintiff's costs of attendance, and shows good cause to the contrary on a day appointed by the court.
Bill Dismissed for Laches. A plaintiff's bill may at any time be dismissed for want of prosecution, which is in the nature of a non-suit at law, if he suffers three terms to elapse without moving forward in the cause.
Cross Bills. When there are cross causes on a cross bill, filed by the defendant against the plaintiff in the original cause, they are generally arranged to be heard together, so that the same decree may answer for both.
Method of Hearing Causes. The parties on both sides appearing by counsel, plaintiff's bill is first opened in brief, and the defendant's answer also, by the junior counsel on both sides, after which the plaintiff's leading counsel states the case and the matters in issue, and the points of equity arising therefrom. Plaintiff's depositions are then read by one of the clerks, and such part of the defendant's answer, as the plaintiff thinks material and of use; and after this, counsel for the plaintiff makes his observations and arguments. Then the defendant's counsel go through the same process for him, except that they may not read any portion of his answer; and counsel for the plaintiff are heard in reply.
Rendition of the Decree. When counsel have finished, the court pronounces the decree, adjusting every point in debate, according to equity and good conscience, the minutes of which decree are taken down and read openly in court by the registrar.
Costs. While the matter of costs to be given either party is merely a discretionary one, according to the circumstances of the case, yet they are usually given to the defendant, if he has been wrongfully vexed.
The Decree Itself. The chancellor's decree is either interlocutory or final. It seldom happens, that the first decree is final, or concludes the cause, for if any matter of fact is strongly controverted, the court being sensible of the weakness of written depositions, usually directs the matter to be tried by a jury. In such event, the fact is usually directed to be tried in the court of king's bench, or at the assizes upon a feigned issue.
Feigned Issues. These issues seem borrowed from the Roman law, and are also frequently used in the courts of law, by consent of the parties, to determine some disputed right, without the formality of pleading, and thereby to save much time and expense in the decision of a cause.?
Case Stated. So likewise, if a question of mere law arise in the course of a cause, as whether by the words of a will, an estate for life or in tail be created, it is the practice of the chancery court to refer it to the opinion of the judges of the court of king's bench or common pleas, upon a case stated for that purpose; wherein all the material facts are admitted, and the point of law submitted to their decision, who certify their opinion to the chancellor.
1 Under present chancery practice, the court itself usually determines those issues, which were formerly sent to a common law court jury.
2 The consent of the court should first be obtained before arranging a feigned issue.
Delay in the Decree. Master's Report. Another thing also retards the completion of decrees. Frequently long accounts are to be settled, and incumbrances and debts to be inquired into, before a decree can do full justice. These matters, by the decree on the first hearing are always referred to a master in chancery to examine, which examination frequently lasts for years, and then he is to report the facts, as they appear to him, to the court. This report may be excepted to, disproved and over-ruled; otherwise it is confirmed and made absolute, by order of the court.
Final Decree. When all issues are tried and settled, and all references to the master ended, the cause is again brought to hearing upon the matters of equity reserved, and a final decree is made, the performance of which is enforced, if necessary, by commitment of the person, or sequestration of the estate.
Petition for Re-hearing. If any party feels aggrieved by the decree, he may petition the chancellor for a re-hearing, whether it was heard before him, or a judge in his stead, or the master of the rolls. Every decree must be signed by the chancellor before it is enrolled, unless a re-hearing is allowed. Every petition for a rehearing must be signed by two counsel of character, concerned in the cause, certifying, that they apprehend the cause is proper to be re-heard. Upon the re-hearing, all the evidence taken in the cause, whether read before or not, is now admitted to be read, because it is the decree of the chancellor himself, who now sits to hear reasons, why the decree should not be enrolled. At this hearing every omission of evidence or argument may be supplied. But after the decree is once signed and enrolled, it cannot be re-heard or rectified, except by bill of review, or by appeal to the house of lords.
Bill of Review, This may be had upon an apparent error in judgment, appearing upon the face of the decree, or by special leave of the court, upon oath made of the discovery of new matter or evidence, which could not possibly have been obtained at the time of the decree. But no new evidence or matter then in the knowledge of the parties, and which might have been used before, shall be a sufficient ground for a bill of review.
Appeal to Parliament. This is to the house of lords,
10f late years, the court of chancery itself usually determines these points, without transferring them to a jury in the law courts.