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can only be between the parties who are interested in the legal estate, the court, for the protection of those who are equitably interested, will order that they be at liberty to attend the trial by counsel, to make such defense as they may be advised.* If an abatement occurs before the trial of the action, by the death of any of the defendants who were at liberty to attend the trial, the suit should be revived before the trial takes place. It is otherwise where an abatement occurs by the death of a defendant having no such liberty.48 The action is tried in the usual manner. A new trial must be moved for in the court in which the action is brought. This rule applies even to cases where the court has given special directions with regard to the trial.49 If a new trial is not moved for, or if a new trial is had, after the verdict thereon, the cause should be set down for further directions. In the meantime, no proceedings should be taken at law, in consequence of the verdict, except moving for a new trial, without the sanction of the court. The hearing upon further directions is not the time when any mistake committed at the trial at law can be rectified. Therefore, where, upon further directions, the complainant applied to have the damages given by the verdict at law increased, on the suggestion that interest was omitted to be given, through a mistaken supposition that it would be given in equity, the court refused to interfere with the verdict.50 If, in the course of such action, the mode is misconceived, application should be made to

Stevens v. Praed, 2 Ves. Jr. 519; Fisher v. Carroll, 46 N. C. 27. See, also, for special directions by the court for a trial of an action at law, Marsh v. Sibbald, 2 Ves. & B. 375; Hylton v. Morgan, 6 Ves. 293; Aston v. Exeter, 6 Ves. 288; Anonymous, 1 Ch. Cas. 267; Bayley v. Morris, 4 Ves. 788. See supra, § 626.

47 1 Barbour, Ch. Pr. 467; Buxton v. Sidebotham, 2 Ves. Jr. 521, note. 48 1 Barbour, Ch. Pr. 467; Humphreys v. Hollis, Jac. 73.

49 1 Barbour, Ch. Pr. 467; Apthorp v. Comstock, 2 Paige (N. Y.) 482; Fowkes v. Chadd, 2 Dickens, 576; Ex parte Kensington, Coop. 96. See, also, Fisher v. Carroll, 46 N. C. 27; Reid v. Barnhart, 54 N. C. 142.

50 2 Smith, Ch. Pr. 92; 1 Barbour, Ch. Pr. 467; Stevens v. Praed, 2 Ves. Jr. 519.

the court directing the trial to enable it to do justice.51 The consideration of costs of the action at law is generally reserved by the order directing or permitting the action till the cause comes on for further directions. In general, however, costs follow the verdict.52 A motion that a nonresident complainant give security for costs should be made in the court directing the trial.58

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On a final hearing, all previous decretal orders are before the court, and may be modified, altered, or vacated, as justice may require.54

$688. Objections at the hearing.

Irregularities of form in proceedings in equity, and in taking of evidence thereon, should be seasonably objected to, or they will be considered as waived.55 When the cause is heard without objection by either party, all steps not taken by either which the other had a right to insist upon for the orderly bringing the cause to a hearing must be considered as waived.56

$ 689. Course of proceedings on the hearing.

Upon the hearing, the complainant's bill is first read, or the substance of it stated. The answer of the defendant is then so read or stated. Thereupon, the complainant makes a statement of his case, and the defendant makes a statement of his. Under the English chancery practice, depositions were then

82.

51 Holworthy v. Mortlock, 1 Cox, 141.

521 Barbour, Ch. Pr. 468; Stevens v. Praed, 2 Ves. Jr. 519. 53 Desprez v. Mitchell, 5 Madd. 87.

54 Gibson v. Rees, 50 Ill. 383; Fourniquet v. Perkins, 16 How. (U. S.)

55 Hart v. Small, 4 Paige (N. Y.) 288; Van Namee v. Groot, 40 Vt. 74; Mobley v. Leophart, 51 Ala. 587.

56 Allen v. City of New York, 18 Blatchf. 239, 7 Fed. 483; McElwain v. Willis, 3 Paige (N. Y.) 505.

(705)

read. In jurisdictions where oral evidence is permitted upon. the trial, the parties proceed with the introduction of such evidence. The complainant first introduces his evidence, then the defendant introduces his, after which the complainant may offer evidence rebutting that of the defendant. Argument of counsel is then had, first, by the solicitor for the complainant, who is followed by the solicitor for the defendant, the case being concluded by argument of the complainant's counsel, after which the court either renders a decision or takes the case under advisement. The court is not bound by the opinion of counsel concerning the theory of the bill, but will look at the case made by it;58 and it should notice any point presenting an important bearing on the case, even though such point is not urged by the counsel in the cause.59 It was said in Vermont that, though every case should be fully heard in the court, yet the chancellor may, where a case is one of great doubt, make a merely formal decree without hearing, with a view of saving needless expense to the parties, in case the court of review should be of opinion that the complainant cannot prevail.60

$690. Reception of evidence on the hearing.

Under the English chancery practice, no evidence is permitted to be read other than the proofs taken prior to the hearing, 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.61 It seems that, to author

57 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 980; Gibson, Suit in Ch. § 524. 58 Geney v. Maynard, 44 Mich. 578, 7 N. W. 173.

59 Lyon v. Tallmadge, 14 Johns. (N. Y.) 501.

60 Hyndman v. Hyndman, 19 Vt. 9, 46 Am. Dec. 171.

611 Barbour, Ch. Pr. 318. See, also, Potter v. Wilson, 2 Fish. Pat. Cas. 102, Fed. Cas. No. 11,342; De Butts v. Bacon, 1 Cranch, C. C. 569, Fed. Cas. No. 3,717; McIntyre v. Ledyard, Smedes & M. Ch. (Miss.) 91. Exhibits, deeds, and other writings relating to a cause in chancery may be produced and proved viva voce on the hearing, where the party using them has omitted to establish their genuineness before the officer taking the proofs. With this exception, the testimony in contested chancery causes is in writing, consisting of depositions and documentary evi

ize the proof of exhibits by testimony given viva voce, there must have been an order of the court for that purpose, and notice to the adverse party of the intention to introduce such evidence.62 Evidence taken on a preliminary matter, especially before issue joined, cannot be read on final hearing, except by order of court.63 The affidavits to the bill and answer are not evidence at the final hearing.64

§ 691. Hearing additional evidence.

Under the English orders in chancery it was provided that no witness would be examined after publication, except by consent or by special order. The power to open a case after the hearing is not encouraged by the court.66 The matter, however, rests largely in the discretion of the chancellor, who may reopen a case where some additional fact or inquiry is indispensable to enable him to make a satisfactory decree.67 And a re

dence.

Holdridge v. Bailey, 5 Ill. 124; Poupet v. Windsor, 2 Ves. Sr. 472; Turner v. Burleigh, 17 Ves. 355; Barrow v. Rhinelander, 1 Johns. Ch. (N. Y.) 550; 2 Fonblanque, Eq. 467.

621 Smith, Ch. Pr. 414; Chandler's Ex'x v. Hill, 2 Hen. & M. (Va.) 124; Emerson v. Berkley, 4 Hen. & M. (Va.) 441. See Pardee v. De Cala, 7 Paige (N. Y.) 132; Miller v. Avery, 2 Barb. Ch. (N. Y.) 582; Kellogg v. Wood, 4 Paige (N. Y.) 578; Consequa v. Fanning, 2 Johns. Ch. (N. Y.) 481; Cosby's Heirs v. Wickliffe, 7 B. Mon. (Ky.) 120; Barrow v. Rhinelander, 1 Johns. Ch. (N. Y.) 550. There is no error in admitting evidence already taken, to be read in evidence on the hearing, against one made a party after it was taken, though it would be error to deny the new party the privilege of cross-examining the witnesses. Kingman v. Higgins, 100 Ill. 319. In Illinois no notice is required to take evidence in open court on the hearing. Mason v. Bair, 33 Ill. 194. 63 Warner v. Warner, 31 N. J. Eq. 225; Underhill v. Van Cortlandt, 2 Johns. Ch. (N. Y.) 355; Holcombe v. Holcombe's Ex'rs, 10 N. J. Eq. 284.

64 Attorney General v. Steward, 21 N. J. Eq. 340.

65 Wood v. Mann, 2 Sumn. 316, Fed. Cas. No. 17,953, where the English practice was exhaustively considered by Mr. Justice Story, and the exceptions stated.

66 Dixon v. Higgins, 82 Ala. 284, 2 So. 289.

67 Wood v. Mann, 2 Sumn. 316, Fed. Cas. No. 17,953; Dixon v. Higgins, 82 Ala. 284, 2 So. 289; Hughes v. Eades, 1 Hare, 486; Hood v. Primm, 4 Sim. 101; Attorney General v. Severne, 1 Colly. 317; Mulock v. Mulock,

fusal to open a decree after evidence closed, argument heard, and report made, in order that the defendants may have an

28 N. J. Eq. 15; McKell v. Collins Colliery Co., 46 W. Va. 625, 33 S. E. 765; Shea's Appeal, 121 Pa. 302, 15 Atl. 629; Trustees of German Lutheran Evangelical St. Matthew's Congregation v. Heise, 44 Md. 453; Hall v. Pegram, 85 Ala. 522, 5 So. 209; Carter v. Edmonds, 80 Va. 58. In Wood v. Mann, 2 Sumn. 316, Fed. Cas. No. 17,953, Mr. Justice Story said: "This rule is at least as old as the time of Lord Bacon, among whose Ordinances in Chancery we find the following: 'No witnesses shall be examined after publication, except by consent, or by special order ad informandum conscientiam judicis; and then to be brought close sealed up to the court to peruse or publish, as the court shall think good.' The true exposition of the latter qualification of this rule would seem to be that the new evidence to inform the conscience of the judge should not be taken but upon or after the hearing, when the judge himself entertains a doubt, or when some additional fact or inquiry is indispensable to enable him to make a satisfactory decree. So was the doctrine held in Newland v. Horseman (2 Ch. Cas. 74); and it is strongly fortified by what fell from Lord Manners in Savage v. Carroll (2 Ball & B. 444), and by the master of the rolls in Parken v. Whitby (1 Turn. & R. 366). Except for such purposes, and under some special order of the court itself at or after the hearing, no such testimony, taken after publication, is now deemed admissible, at least unless under extraordinary circumstances, under the rules. The practice of taking such testimony before the hearing, and keeping it sealed up to be used by the court at the hearing, if it should be deemed meet, is said by the text writers to have fallen into disuse, and not to have been in practice for more than a century. ceptions, however, have been admitted to the general rule. The first class of exceptions is that of the examination of witnesses to the mere credit of the other witnesses, whose depositions have been already taken in the cause. This is the ordinary practice, and is done upon articles or objections filed. Beames, Order Ch. p. 32, § 72; Id. p. 187, § 80. But then, in these cases, the general interrogatory only, whether he (the proposed witness) would believe the other on his oath, which is the usual form of putting the interrogatory in England, and differs widely from that in which it is usually put in America (see 1 Starkie, Ev. [2d London Ed., 1833] 182; Watmore v. Dickinson, 2 Ves. & B. 267, 268; Carlos v. Brook, 10 Ves. 50), is that upon which the new examination is allowed, unless under very special circumstances. And there is this close limitation upon such special circumstances: that the interrogatory shall not be to any facts put in issue in the suit, but only to such facts as merely touch the credit of the witness. This doctrine was expounded very fully by Lord Eldon in Purcell v. Mo Namara (8 Ves. 324, 326), Wood v. Hammerton (9 Ves. 145), Carlos v. Brook (10 Ves. 50), and White v. Fussell (1 Ves. & B. 153), and it was

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