In the absence of any statute upon the subject, courts of equity assume jurisdiction to compel the giving of testimony by residents of the state, to be used in a suit pending in a foreign country, by a bill of discovery filed for that purpose.

185

§ 672. Compelling corporate officer to produce books.

An officer or agent of a private corporation, not a party to a suit, cannot be compelled to open, for examination, the books or records of the corporation.188

185 In re United States Pipe-Line Co., 16 App. Div. 188, 44 N. Y. Supp. 714; Mitchell v. Smith, 1 Paige (N. Y.) 287; Post v. Toledo, C. & St. L. R. Co., 144 Mass. 341, 11 N. E. 540.

186 Southern Ry. Co. v. North Carolina Corporation Commission, 104 Fed. 700; Henry v. Travelers' Ins. Co., 35 Fed. 15. See, on this point, In re Pacific Railway Commission, 32 Fed. 250; Wertheim v. Continental Railway & Trust Co., 15 Fed. 716. In a suit by a single shareholder against a corporation, an order will not be made allowing an expert accountant to examine its books and papers, where a subpoena duces tecum will produce the same before an examiner, the cause being at issue. Clarke v. Eastern Building & Loan Ass'n, 89 Fed. 779. (694)

CHAPTER XXXV.

HEARING.

$673. In general.

The cause is usually set down for hearing by the complainant, who, under the English practice, was required to do so within four weeks after the evidence was closed, and who gave notice to the adverse party of the day appointed for the hearing by means of a writ called a "subpoena to hear judgment." If the complainant failed to have the case set for hearing, the defendant might move to dismiss the bill for want of prosecution, or else have the case set down at his own request, and obtain a subpoena to hear judgment, and serve the same upon the complainant. In the United States, the practice is largely regulated in the various jurisdictions by statute or rule of court, which must be carefully observed.

$ 674. Hearing cause out of its order.

Although it is a general rule that causes come on to be heard according as they stand on the calendar, yet they are sometimes heard out of their ordinary course. In some cases, a cause noticed for hearing will be advanced on an application to the court. on sufficient cause being shown.2

§ 675. Postponement of hearing.

An application for the extension of the time for hearing is

12 Daniell, Ch. Pl. & Pr. (4th Ed.) 964; 1 Smith, Ch. Pr. 406; Hodges v. Wise, 16 Ala. 509. See Morris v. Taylor, 23 N. J. Eq. 131. The Eng lish practice never obtained in Alabama. Hodges v. Wise, 16 Ala. 509. See Miller v. Tobin, 18 Fed. 616.

21 Barbour, Ch. Pr. 319; Hoyle v. Livesey, 1 Mer. 381; Clark v. Marfield, 77 Ill. 258.

addressed to the sound discretion of the court.

Where causes

are continued by consent, a much greater latitude will be allowed than where either party is pressing for trial; but even then the court is not bound to continue the cause, though it usually does so. A suit will not be delayed until the determination of a suit at law which is for a different object. If the party filing a cross bill wishes to stay the cause on the original proceedings, he should give notice, and apply to the court for an order to that effect. An order to stay proceedings in a cause, on the part of the complainant, until security for costs is filed, only operates on him, and does not prevent the defendant from taking any steps to resist an application by the complainant, or to get the cause out of court." An application for a continuance, where the cause is set for hearing, is properly overruled where the affidavit shows no diligence in preparing for the hearing.

§ 676. Private hearing.

Causes are not always heard in public. Wherever there are valid objections to a public hearing, the cause may be heard privately. Statutes or rules in some jurisdictions provide that causes shall be heard publicly.

3 Reece v. Darby, 5 Ill. 159; Dudley v. Witter, 46 Ala. 664, 51 Ala. 456; Robbins v. Hanbury, 37 Fla. 468, 19 So. 886; Hahn v. Huber, 83 Ill. 243.

4 Berger v. Harrison, 1 Overt. (Tenn.) 483. Upon an application for further time to take additional testimony upon the subject-matter of the amendments to a bill, and answer made with leave at the hear ing, the showing must point out what facts are expected to be proved, so that the court may determine on their relevancy and importance. Slater v. Breese, 36 Mich. 77.

5 Carlisle v. Cooper, 18 N. J. Eq. 241.

6 Williams v. Carle, 10 N. J. Eq. 543. See White v. Buloid, 2 Paige (N. Y.) 164.

7 Price v. Betts, 6 Paige (N. Y.) 44. See Champlin v. Petrie, 4 Wend. (N. Y.) 209.

8 Hahn v. Huber, 83 Ill. 243.

91 Barbour, Ch. Pr. 319, Lord Eldon, in Re Portsmouth, Coop. 106, before going into a private room to hear a cause, according to appoint.

§ 677. Hearing on bill and answer.

11

If the complainant deems the answer, or regards the affirmative defense of the answer, as insufficient to constitute any bar to his relief, he may set the cause down for hearing on bill and answer. 10 The answer must be taken as true in all points.1 The allegations of fact in the bill that are denied in the answer are to be taken as disproved, and the averments of fact in the answer stand admitted.12 Only the truth of the facts set out in the answer, and not matters of opinion and legal conclusions, are admitted.13 No other evidence is permitted to be read, except it be matters of record to which the answer refers, and which are provable by the record itself, or documents which may be proved viva voce at the hearing.14 The answer is taken to be true, whether responsive or in avoidance, and whether an oath is waived or not.15 If the answer clearly and unequivocally denies all the material allegations of the bill, or sets up suffi

ment, desired that it might be understood that it was the uniform prac tice in chancery, as long as the court had existed, in case of family disputes, on the application of counsel on both sides, to hear the same in the chancellor's private room. It seems, however, that consent of both parties is not necessary to a private hearing. 1 Barbour, Ch. Pr. 319; Ogle v. Brandling, 2 Russ. & M. 688.

101 Barbour, Ch. Pr. 318; Ruhlig v. Wiegert, 49 Mich. 399, 13 N. W. 791; Contee v. Dawson, 2 Bland (Md.) 264; Huyck v. Bailey, 100 Mich. 223, 58 N. W. 1002; Gaskill v. Sine, 13 N. J. Eq. 130; Doolittle v. Gookin, 10 Vt. 265; Lampley v. Weed, 27 Ala. 621; Floyd v. Floyd, 77 Ala. 353; Fenno v. Sayre, 3 Ala. 458.

11 Brinckerhoff v. Brown, 7 Johns. Ch. (N. Y.) 217; Mason v. McGirr, 28 Ill. 322; Jones v. Mason, 5 Rand. (Va.) 577, 16 Am. Dec. 761; Martin v. Reese (Tenn. Ch. App.) 57 S. W. 419; Reynolds v. Crawfordsville First Nat. Bank, 112 U. S. 409; Independent Medical College v. Zeigler, 86 Ill. App. 360; Roach v. Glos, 181 Ill. 440, 54 N. E. 1022.

12 Perkins v. Nichols, 11 Allen (Mass.) 542; United States v. TransMissouri Freight Ass'n, 19 U. S. App. 36, 58 Fed. 58; Brinckerhoff v. Brown, 7 Johns. Ch. (N. Y.) 217; Tainter v. Clark, 5 Allen (Mass.) 66. 13 Contee v. Dawson, 2 Bland (Md.) 264.

141 Barbour, Ch. Pr. 318; Gibson, Suit in Ch. § 459; Milligan v. Wissman (Tenn. Ch. App.) 42 S. W. 811.

15 Hardwick v Bassett, 25 Mich. 151; Ruhlig v. Wiegert, 49 Mich. 400, 13 N. W. 791; Martin v. Reese (Tenn. Ch. App.) 57 S. W. 419.

cient new matter in avoidance, the bill should be dismissed.16 If any material matter charged in the bill is neither denied nor admitted by the answer, it stands for naught.17 If the complainant goes to hearing on bill and answer, and the court shall not see fit to make a decree thereupon for want of sufficient matter confessed by the answer, the bill will be dismissed, with costs.18 It is said that, where a case has been brought on for hearing upon bill and answer, and the complainant fails to make out his case for want of a full admission of it by the answer, the court will permit him to reply on payment of costs.19 § 678. Hearing upon bill taken pro confesso.

Where the bill is taken pro confesso, the cause must be brought to a hearing, as well as in other cases; and the court hears the pleadings, and itself pronounces the decree, and does not permit the complainant to take such a decree as he thinks will stand, as under the English practice it did in ordinary cases where the defendant made default at the hearing.20 The proceedings under a decree pro confesso are the same as those under other de crees made upon a hearing.21

§ 679. Hearing on bill and cross bill.

One who files a cross bill must take steps to obtain an answer,

16 Cocke v. Minor, 25 Grat. (Va.) 246; Ruckersville Bank v. Hemphill, 7 Ga. 396; Barton v. International Fraternal Alliance of Baltimore City, 85 Md. 14, 36 Atl. 658.

17 Crowe v. Wilson, 65 Md. 479, 5 Atl. 427, 57 Am. Rep. 343. There should be no fact admitted by the answer inconsistent with the defend. ant's denial; no doubtful denial; no doubtful avoidance. Cocke v. Minor, 25 Grat. (Va.) 246, where an answer was held insufficient to warrant dismissal of the bill.

18 1 Barbour, Ch. Pr. 318; Scott v. Cook, 4 T. B. Mon. (Ky.) 280.

19 1 Barbour, Ch. Pr. 318; Barker v. Wyld, 1 Vern. 140. See Martin v. Reese (Tenn. Ch. App.) 57 S. W. 419, citing Gibson, Suit in Ch. § 440; Green v. Hicks, 1 Barb. Ch. (N. Y.) 318; 2 Daniell, Ch. Pl. & Pr. (3d Ed.) 988, 999.

20 1 Barbour, Ch. Pr. 369; Rose v. Woodruff, 4 Johns. Ch. (N. Y.) 547. See supra, § 151 et seq., where this question is fully considered. See, also, post, § 705.

21 1 Barbour, Ch. Pr. 372.