opportunity to prove matters which they had the means and opportunity of proving at the time of the hearing, will not be disturbed.68

recognized and acted upon by Mr. Chancellor Kent in Troup v. Sherwood (3 Johns. Ch. [N. Y.] 558), where he critically examined the leading authorities. But what is most important in its bearing on the present case is the absolute refusal of the court in these cases to allow the witness to be contradicted as to any fact which he had sworn, touching the merits of the matters in issue between the parties. 'If,' said Lord Eldon, in Purcell v. McNamara, 'for instance, the fact is material to the merits of the case, and the witness has sworn to it, there is great danger of bringing other witnesses, under color of discrediting that witness, to prove or disprove such fact.' See Gilbert, Forum Rom. 147; Smith v. Turner, 3 P. Wms. 413. Another class of exceptions is where the application is made to enlarge the time for publication, or, more frequently, to enlarge the time for taking the testimony after publication has been in form, though not in fact, made according to the rules of the court. To such applications, whenever they will cause any delay in the cause, the court does not listen without some good cause shown upon affidavit, such as surprise, accident, or other circumstances which repel any imputation of laches. See Gilbert, Forum Rom. 124; 1 Harrison, Ch. Pr. (by Newland) c. 43, pp. 285, 287. See, also, Watmore v. Dickinson, 2 Ves. & B. 267, 268; Cutler v. Cremer, 6 Madd. 254. And in all cases of this sort, before the application is allowed, the party and his clerk in court and solicitor are required to make oath 'that they have neither seen, heard, read, nor been informed of any of the contents of the depositions taken in that cause, nor will they see, hear, read, or be informed of the same till publication is duly passed in the cause.' Gilbert, Forum Rom. 146. See, also, Anonymous, 1 Vern. 253; Hinde, Pr. 384, 385. And this affidavit is so important that the court will never dispense with it except in a case of fraud practiced by the other party to evade the rule; as was the case in a memorable instance in Lord Somers' time, stated by Chief Baron Gilbert (Gilbert, Forum Rom. 146). Lord Eldon, in commenting on the affidavit, and the strictness of the rule requiring it, said: "That it is founded upon this: that no more dangerous mode of proceeding can take place than permitting parties to make out evidence by piecemeal, and to make up the deficiency of original depositions by other evidence.' Whitelock v. Baker, 13 Ves. 512. * Mr. Chancellor Kent, in Hamersly v. Lambert (2 Johns. Ch. [N. Y.]

68 Shea's Appeal, 121 Pa. 302, 15 Atl. 629. See, also, Witters v. Sowles, 31 Fed. 5; Hood v. Primm, 4 Sim. 101. See, also, for supplemental evidence in equity and re-examination of witnesses, 3 Greenleaf, Ev. §§ 345, 346.

$ 692. Argument of counsel.

It is a general rule that the party holding the affirmative has

432), reviewed the authorities, and sustained the doctrine, as above stated, with all the weight of his own great opinion. Another class of exceptions is the proof of exhibits in the cause, after publication, and even viva voce at the hearing, where there has been an omission of the proof in due season, and they are applicable to the merits. Gilbert, in his Forum Romanum (page 183), takes notice of this practice, and says: 'Upon this rehearing, any exhibit may be proved viva voce, as upon the original hearing; but no proof can be offered of any new matter without special leave of the court, which is seldom granted.' The like doctrine is fully supported in many cases. See Wright v. Pilling, Finch, Prec. Ch. 496; Dashwood v. Bulkeley, 10 Ves. 238; Buckmaster v. Harrop, 13 Ves. 458; White v. Fussell, 1 Ves. & B. 153; Higgins v. Mills, 5 Russ. 287; Wyld v. Ward, 2 Younge & J. 384; Williams v. Goodchild, 2 Russ. 91; Dale v. Roosevelt, 6 Johns. Ch. (N. Y.) 256. Another class of exceptions is where depositions have been suppressed from the interrogatories being leading, or for irregularity, or where it has been discovered that a proper release has not been given to make a witness competent. In every such case, from the obvious necessity, and in furtherance of justice, fresh interrogatories and a reexamination have been permitted. Arundel v. Pitt, Amb. 585; Perry v. Sylvester, Jac. 83; Curre v. Bowyer, 3 Swanst. 357; Sandford v. Paul, 3 Brown Ch. 370, 1 Ves. Jr. 398, 2 Dickens, 750; Spence v. Allen, Finch, Prec. Ch. 493; Shaw v. Lindsey, 15 Ves. 380; Cox v. Allingham, Jac. 337, 341, 343; Callow v. Mince, 2 Vern. 472. In the case of Sandford v. Paul (2 Dickens, 750, 3 Brown Ch. 370, and 1 Ves. Jr. 398) it appears from Mr. Dickens' Reports that the subject was a good deal examined, and many authorities are cited by the reporter to show that the strictness of the rule had been relaxed in special cases of this na ture.. * I have thus gone over the principal cases (with an exception, which will presently appear) which seem to me to be applicable to the more general question before the court. The result has been already incidentally suggested. But I will give it in a more direct and positive form. It is that there is no universal and absolute rule which prohibits the court from allowing the introduction of newlydiscovered evidence of witnesses to facts in issue in the cause, after publication and knowledge of the former testimony, and even after the hearing. But the allowance of it is not a matter of right in the party, but of sound discretion in the court, to be exercised cautiously and sparingly, and only under circumstances which demonstrate it to be indispensable to the merits and justice of the cause." Mr. Justice Story, in coming to the above conclusion, cited the following cases: Whitelock v. Baker, 13 Ves. 511; Cann v. Cann, 1 P. Wms. 727; Hamer. sly v. Lambert, 2 Johns. Ch. (N. Y.) 432; Milner v. Harewood, 17 Ves.

the right to open and close.69 Upon the hearing on a bill, cross bill, answers, and depositions, where each party has material allegations to sustain, the complainant in the original bill is entitled to the opening and close.7° Where there are two defendants who set up adverse claims, the course of practice is for the complainant to open, for the defendant who sets up a claim against the other defendant 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.71 Upon a plea or demurrer, the defendant holds the affirmative, and opens the argument, and, upon appeal, the opening argument of the appellant's counsel is first heard. Where a cause is heard upon exceptions to a

148; Willan v. Willan, 19 Ves. 591; Smith v. Turner, 3 P. Wms. 413; Ward v. Eyles, Mos. 377; City of London v. Dorset, 1 Ch. Cas. 228; Bank v. Farques, Amb. 145; Blake v. Foster, 2 Ball & B. 457; Clarke v. Jennings, 1 Anstr. 173; Williamson v. Hutton, 9 Price, 194; Cox v. Allingham, Jac. 337; Ord v. Noel, 6 Madd. 127; Bingham v. Dawson, Jac. 243; Coley v. Coley, 2 Younge & J. 44; Partridge v. Usborne, 5 Russ. 249; Young v. Keighly, 16 Ves. 348; Norris v. Le Neve, 3 Atk. 35; Patterson v. Slaughter, Amb. 292; Gould v. Tancred, 2 Atk. 533; Dexter v. Arnold, 5 Mason, 303, Fed. Cas. No. 3,856; Jones v. Purefoy, 1 Vern. 45; Respass v. McClanahan, Hardin (Ky.) 350; Livingston v. Hubbs, 3 Johns. Ch. (N. Y.) 124; Taylor v. Sharp, 3 P. Wms. 371; Bowles v. South, Hardin (Ky.) 460; Head v. Head's Adm'rs, 3 A. K. Marsh (Ky.) 121; Randolph's Ex'r v. Randolph's Ex'rs, 1 Hen. & M. (Va.) 180. The conclusion of Mr. Justice Story is discussed in Mulock v. Mulock, 28 N. J. Eq. 15. This case extensively considers this subject, and cites Newland v. Horseman, 2 Ch. Cas. 75; Needham v. Smith, 2 Vern. 463; City of London v. Dorset, 1 Ch. Cas. 228; Gregory v. Marychurch, 12 Beav. 275; Gilbert, Forum Rom. 180; 1 Harrison, Ch. Pr. 46; Wood v. Mann, 2 Sumn. 316, Fed. Cas. No. 17,953. See, also, 3 Greenleaf, Ev. §§ 336, 345, 347. If the newly-discovered evidence is of a different kind and character from that adduced on the trial, it will not be liable to the objection that it is cumulative. Mulock v. Mulock, 28 N. J. Eq. 15; Guyot v. Butts, 4 Wend. (N. Y.) 579; Gardner v. Mitchell, 6 Pick. (Mass.) 114; Watts v. Howard, 7 Metc. (Mass.) 478.

69 Guerry v. Perryman, 6 Ga. 119; Vancleave v. Beam, 2 Dana (Ky.) 155.

70 Murphy v. Stults, 1 N. J. Eq. 560; Guerry v. Perryman, 6 Ga. 119. 711 Barbour, Ch. Pr. 317, citing Walton v. Van Mater, Halst. Dig. (N. J.) 175.

master's report, the party excepting opens the argument; but where both parties except, the complainant's counsel is first heard upon his exceptions, and then the defendant's counsel answers him, and opens the argument upon his own exceptions.72 Where the arguments have been finally closed, there can be no further argument unless the court should reach some point where they desire reargument, and request the same of the counsel, or, upon application, reopen the cause for further argument."

§ 693. Dismissal on final hearing.

Where a bill fails to state a case proper for relief in equity, the court will dismiss it at the hearing, though no objection has been made in the pleadings.74 Where the complainant fails to make out his case, the court will dismiss the bill at the hearing.75 A bill will be dismissed where the evidence is too contradictory or uncertain to warrant a decree.76 A bill will be dismissed on the ground of misjoinder or multifariousness on the hearing only where the court finds itself embarrassed thereby to such an extent as to prevent it from administering appropriate relief." Where a cause is by consent submitted for hearing on bill, answer, and replication, without proofs, and it appears on the face of the bill that there is no equity in it, the bill will be dis missed.78 If, on the hearing, it is discovered that the cause is not matured for hearing as to some of the defendants, against

721 Barbour, Ch. Pr. 318.

73 Lawrence v. Dana, 4 Cliff. 1, Fed. Cas. No. 8,136.

74 Salamone v. Keiley, 80 Va. 86; Green v. Massie, 21 Grat. (Va.) 356; Hudson v. Kline, 9 Grat. (Va.) 379; Chicago Public Stock Exchange v. McClaughry, 148 Ill. 372, 36 N. E. 88.

75 Mounce v. Byars, 11 Ga. 180; Meux v. Anthony, 11 Ark. 411, 52 Am. Dec. 274; Union Pac. Ry. Co. v. Harmon, 10 U. S. App. 653, 54 Fed. 29; Judd v. Seaver, 8 Paige (N. Y.) 548.

76 Field v. Oppenstein, 98 Ill. 68; Vermillion v. Bailey, 27 Ill. 230; Marvin v. Hampton, 18 Fla. 131.

77 Annin v. Annin, 24 N. J. Eq. 184. See Brinkerhoff v. Brown, 6 Johns. Ch. (N. Y.) 139.

78 Winkler v. Winkler, 40 Ill. 179. See Reece v. Darby, 5 Ill. 159; Edwards v. Beaird, 1 Ill. 70.

whom the complainant appears to have a claim in equity, the bill ought not to be dismissed on the merits, but only as to those against whom there is no equity. As to the others, it should be sent back for further proceedings, although the cause was set prematurely for hearing on the motion of the complainant.79

§ 694. Mode of dismissing bill on hearing.

81

If a bill is dismissed on the hearing, on a mere defect of form of the pleadings, and not on the merits of the case, it should be dismissed without prejudice to the complainant to institute a new suit if he thinks proper to do so.80 Unless the dismissal is accompanied with such a direction, it may be pleaded in bar to a new suit.s When a case is prematurely submitted, the court may either set aside the submission or dismiss the bill without prejudice. It should not dismiss the bill on the merits.82 A decree dismissing a bill without prejudice does not operate as a bar to a new suit, which the party might institute, nor does it debar the defendant of any defense he may be entitled to make to the new suit, and it confers no right or advantage on the complainant, and it will not have the effect of excepting, from the time prescribed by the statute of limitations, the time during which that suit was pending.83 It is said that a bill will not be dismissed without prejudice where, from the pleadings and proofs, there is not much probability that the complainant could derive any benefit from further litigation.84 On dismissing a bill permission to sue again

79 Key v. Hord, 4 Munf. (Va.) 485. See Cutter v. Thompson, 51 Ill. 531.

80 1 Barbour, Ch. Pr. 323; Crosier v. Acer, 7 Paige (N. Y.) 137; Cobb v. Baker, 95 Me. 89, 49 Atl. 425; Robbins v. Hanbury, 37 Fla. 468, 19 So. 886.

811 Barbour, Ch. Pr. 323; Mitford, Eq. Pl. 237.

82 Moore v. Murrah, 40 Ala. 573; Bank of Kentucky v. Milton, 12 B. Mon. (Ky.) 340; Wright v. May, 40 Ala. 550.

83 Nevitt v. Bacon, 32 Miss. 212, 66 Am. Dec. 609.

84 Anthony v. Peay, 18 Ark. 29. See Doggett v. Lane, 12 Mo. 215, holding it to be discretionary with the court to either dismiss it without prejudice, or render a final decree.