plied to for that purpose by either party, shall cause the CHAP. IX. depositions and exhibits taken and produced before him to be returned and filed with the register, assistant register or clerk. And he shall not be entitled to receive pay for taking any depositions or marking any exhibits which are not returned and filed with the proper officer, within ten days after service of a notice of the order to close the proofs. Neither shall a copy of any deposition or exhibit be read on the hearing, unless the original has been returned and filed in the proper office. (14) The proofs should be made as full as the nature of the case will admit, that the supplementary proof where a reference to a master afterwards becomes necessary may be as limited as the rights and responsibilities of the parties will admit.(1) The closing of the proofs is equivalent to the former practice of passing publication, (2) before which a cross bill [ch. 8. § ] might be filed(3) and after which depositions might be amended to correct mistakes, re-examination take place under special circumstances, and the credit or competency of witnesses impeached.(4) If after closing proofs, another defendant is made party by supplemental bill, the proofs must be re-opened; if the cause should go to hearing and decree without, it would be reversed.(5) $ 19. After the proofs are closed either party may notice Preparations the cause for hearing at the next or any subsequent for hearing ; term.(6) No order to set the cause down for hearing is necessary, but when in readiness for hearing on the pleadings and proofs, it may be noticed accordingly, and entered on the calendar. [see ch. 8 § 71.] The notice, (14) R. 87. (1) 2 J. Ch. 495. (2) See Bla. 146-150. 5 J. Ch. 189. 1 J. Dig. 356. &c. (3) 7 J. Ch. 250. 4 J. Ch. 357. 1 (4) 4 J. Ch. 649. 412. Bla. 149-151. If a bill is amended by adding parties after witnesses have been examined, their depositions cannot be read against the new parties. When after depositions sup- Interrogatories and depositions CHAP. IX. breviation of Notice note of issue, copies, ex notes of issue, preparatory papers, brief, and requisite steps prior to hearing are similar to those upon bill and § 20. answer. [ch. 8. § 71-3] But when a cause is heard or Case and ab- submitted, on bill, answer and replication, or on the the pleadings. pleadings and proofs, if the parties do not agree upon a case, to be signed by them, containing, with all requisite brevity, a statement of the pleadings and proofs, the complainant shall furnish the court with a case, stahibits, points, draft minutes. ting the time of filing the bill, the change of parties, if any has taken place pending the suit, and a very brief history of the proceedings in the cause, and an abbreviation of the pleadings only, and not exceeding one sixth of the number of folios contained in the original pleadings respectively.(8) And in addition to the case, so required, if the cause be heard on bill answer and replication, or on pleadings and proofs, the court must be furnished with copies of the pleadings, and of the depositions, if any, and with short abstracts of the exhibits.(9) The necessary papers must be ready to be delivered to the court when the hearing of the cause shall commence, (10) and furnished by the complainant; but on a hearing upon pleadings and proofs, each party must furnish copies of the testimony and abstracts of the exhibits on his part only. And each party must deliver to the court and the adverse party a copy of the points on which he relies, and may also deliver to the court and adverse party a draft of the minutes of the decree to which he conceives himself entitled.(11) In other respects the prior steps to hearing are also like those upon bill and answer, and it has appeared, [ch. 8. $74] that causes to be heard on the pleadings, or on pleadings and proofs, form the fourth class in making up the calendar, and have priority from the time when the replication was filed. (12) The subject of hearing and decrees has been mentioned under bill and answer [see ch. 8. §74-8] and will be more particularly noticed in the second volume under the corresponding chapters of the present. It is the practice of the court to order deeds and papers contest ed as false and fraudulent to be brought into court for inspection.(1) The decree, as observed, [ib.] may be interlocutory or final, for complainant, or of general dismissal of his bill in favour of defendant; or a decree between co-defendants may be made grounded upon the pleadings and proofs between the complainants and defendants; and the practice is upon the principle of preventing a multiplicity of suits. But such decree to be binding, must be founded upon and connected with the subject matter in litigation between the complainant and one or more of the defendants. (2) If the testimony taken in the cause be insufficient for a decision, the court may direct, on a question of law, a special case, [ch. 2. §54.] and on questions of fact, settle the same in the various modes noticed, [ch. 2. § 54-5.] by directing a cross bill, bill to bring up all things necessary to a decree, [see ch. 6. § 2.] an action at law, arbitration by consent, award a feigned issue, or order a reference. But it is not a proper course to refer to a master an examination into facts going to the merits or gist of the cause, and as to which proofs have been already taken in chief in the usual way.(3) Supplementary proof may, however, be taken, and a reference directed accordingly, though the prior proofs ought, as observed, [ 18.] to be as full as the nature of the case would admit. (4) The proceedings upon reference have been pointed out in the last chapter, and other modes of determining facts by feigned issue, &c. in a previous chapter, [ch. 2. § 54.] In such cases the hearing upon further directions, or on the equity reserved by the decree, and consequently the final proceedings in winding up the suit, would necessarily be protracted until the postea and judge's certificate, &c. of the trial, [ch.2 55.] the judge's certificate on the question of law submitted by a special case, [ib. § 54.] or the report of master on reference comes in, and if exceptions be taken, until those exceptions be disposed of, when the cause shall have been set down upon exceptions and for further directions as noticed. [ch. 8. § 69] But a feigned issue on exceptions taken, might also be awarded; for instance, on report on title; and the cause might therefore, in addition to the delay occasioned by prior examination, and perhaps re-examination, reference, ex(1) 1 Hopk 143. (2) 1 Paige 263. 5. J. Ch. 366. 19 J. 456. see 20 c) Slee v. Bloom. 20 J. 669. s. c. (4) 2 J. Ch. 495. CHAP. IX. 328 EXECUTION AND SATISFACTION. CHAP. Ix ceptions, and perhaps review on second reference directed, be further protracted until the trial, and perhaps new trial of the issue, and possibly also, by a special case or cases upon a point of law in the same suit, upon the determination of which the cause would at last be set down for final hearing and decree upon the equity reserved, (5) and in the manner directed. [ib.] A final decree, whether upon pleadings and proofs, reference and report, exceptions and directions, or upon equity reserved, is subject, upon sufficient grounds, to the same rehearing, [ch 2. § 57.] appeal, [ib. § 62.] impeachment and review, as upon bill and answer; [ch. 8. § 78, ch. 6. § 2.1 and if finally sustained may, after taxation of costs, [ib. $ 80.1 and after the expiration of thirty days from the entry of the decree in the minutes, be enrolled and docketed; the transcript of the docket forwarded to the clerks of the supreme court, to secure the lien; ib. $84.Jexecution be issued to enforce the decree, [ib. § 83.] and the lien be cancelled [ib. § 85.] upon return of execution satisfied, or upon due proof of the satisfaction of the decree. (5) R. 88, 89. ante. INDEX. AB Abatement of suits by death,marriage,revivor thereupon 237- Ac Accident 172.--Account and accounts: accounts of guardian, AF Affidavits, 19-22.referred for scandal,&c.19.how drawn and 41 |