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4435. After the evidence has been returned either by the report of an examiner or an executed commission, it must pass publication. By this term is understood, in chancery practice, that liberty is given to the officer in whose custody the depositions of witnesses in a cause are lodged, either by the consent of the parties or the rules of the court, to show the depositions openly and to give out copies of them.47

4436. The next matter to be considered is, whether there are any such defects in their substance or form, or the manner of taking them, as will induce the court to suppress the depositions. The ground upon which they will be suppressed is either that the interrogatories upon which they have been taken are leading, or that the interrogatories and the depositions taken upon them, or the depositions alone, are scandalous, or else that some fraud or irregularity bas occurred in relation to them. A deposition may also be suppressed, because a witness has disclosed some matter which has come to his knowledge as solicitor or attorney of the party applying. 48

4437. As a general rule, there can be no re-examination of a witness after he has once signed his name to the deposition, and turned his back upon the commissioner or examiner," for fear of tampering with or inducing him to react or qualify what he has sworn to. But justice requires in some cases that a second examination of the same witness should take place, and it will be ordered accordingly. Thus, where the depositions have been suppressed for some irregularity in the conduct of the cause, accidental and unintentional, the court will direct the witnesses to be re-examined and cross-examined upon the original interrogatories, unless the depositions have been suppressed on account of the interrogatories being leading, in which case it must be upon a new set of interrogatories, to be settled by the master. In some cases, too, where the

51 depositions have not been suppressed, the court will make an order after publication for the examination of witnesses, for the purpose of proving some facts which have been omitted to be proved upon the original deposition; as, where the loss of a deed had been omitted to be proved by mistake, upon petition the plaintiff was allowed to exhibit an interrogatory before the examiner for the purpose of proving that the deed was lost. 52%

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47 Pract. Reg. 297; Blake, Chanc. Pract. 143; 2 Daniell, Chanc. Pract. 562.
48 Sandford v. Remington, 2 Ves. Ch. 189.
69 Lord Abergavenny v. Powell, 1 Mer. Ch. 130.
60 Perry v. Sylvester, Jac. Ch. 83.

Spence v. Allen, Prec. Chanc. 493; 1 Eq. Cas. Abr. 232; Arundell v. Pitt, Ambl. Ch. 585. $2 Cox v. Allingham, Jac. Ch. 137.

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CHAPTER XVI.

THE HEARING AND DECREE.

4438. The hearing.
4439–4455. The decree.
4440–4444. The kinds of decrees.

4441. A decree nisi.
4442. A decree laken pro confesso.
4443. Interlocutory decrees.

4444. Final decrees.
4445–4448. The form of decrees.

4446. The date of the decree.
4447. The recitals in the decree.

4448. The ordering part of the decree.
4449-4451. Upon whom the decree is binding.

4449. What persons are bound by the decree.

4451. What persons are not bound by the decree.
4452–4455. Enforcing the execution of decrees.

4453. The writ of execution and attachment.
4454. The sequestration.
4455. The writ of assistance.
4456. Conclusion.

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4438. When the case has been fully prepared, it is set down for hearing ; that

; is, the cause is put upon a list containing all the causes to be argued or heard, which list is made out for the use of the court. The cases are regularly called, and upon being reached they are argued by counsel or continued. The most usual reasons for applying to continue a cause are the discovery of some defect in the pleading which may render an amendment of the bill necessary.

Before the hearing the counsel prepare a paper book, or brief, for the hearing, which contains the title of the cause, a copy of the bill and answer, and such depositions as may have been taken, and such other matters which are spread out upon the record, so as to show all the points of the case.

When the case is called up, the counsel for the plaintiff generally open and close. The judges afterward make their decree, and generally give an opinion and the reasons upon which they found it.

4439. After having heard the arguments of the counsel of the respective parties, and fully considered the facts and the law of the case, the court pronounces its decree, which is a sentence or order of the court determining the right of all the parties to the suit, according to equity and good conscience. The decree is pronounced in open court, and entered upon the record.

In the further consideration of decrees it will be convenient to distribute the subject into the following heads : of the several kinds of decrees; of their form ; upon whom the decree is binding; how it is enforced.

4440. The several kinds of decrees may be reduced to four: decrees nisi ; decrees taken pro confesso; interlocutory decrees; and final decrees.

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4441. By the English practice, when the cause is put in the paper of causes for hearing it is called in its rotation, and the bill is opened by the junior counsel for the plaintiff'; if the defendant does not then appear by his counsel to open his answer, the court calls upon the plaintiff to prove the service of the subpæna to hear judgment, and upon that being done the plaintiff's counsel pray what decree they are of opinion will be most advantageous to their client, and the court accordingly pronounce the same, superadding thereto a provisional clause, “that the decree is to be binding upon the defendant, unless, being served with process, he shall, within a limited time, show cause to the contrary. " This decree, being sub modo only, is emphatically called a decree nisi, or unless cause is shown.

In praying a decree of this sort, the counsel ought to be very careful to embrace in it such directions only as he will be able to support in case the defendant appears to show

cause, because a decree of this nature is not considered as a judgment of the court, but as an act of the party who obtains it, conceiving what the judgment would be if the other party had appeared, and it is taken at the peril of the party obtaining it, if he cannot support it by his pleadings and proofs. In this respect it differs from a decree taken pro confesso, which is an act of the court and not of the party.

4442. A decree on a bill taken pro confesso is one entered by the court when the defendant has made a default in appearing within the time prescribed by the rules of court; by the rules of practice for the courts of equity of the United States, “in default of appearance at the proper time, the plaintiff may, at his election, enter an order, as of course, in the order book, that the bill be taken pro confesso, and thereupon the cause shall be proceeded in ex parte, and the matter may be decreed by the court at the next ensuing term thereof accordingly, if the same can be done without an answer and is proper to be decreed.” “And such decree shall be deemed absolute, unless the court shall, at the same term, set aside the same, or enlarge the time for filing the answer, upon cause shown upon motion and affidavit of the defendant.”6

Unlike the case of a decree nisi, when the bill is to be taken pro confesso, the court hears the pleadings and itself pronounces the decree, and does not permit the plaintiff to draw it up as it does in ordinary cases where the defendant makes default at the hearing;' and where, upon the hearing, it appears that the plaintiff had no equity, the bill will be dismissed. 8

But there are some cases where a decree will not be made on a bill taken pro confesso, to avoid collusion, and because it is contrary to sound policy. A final decree of divorce à menså et thoro, therefore, is not made merely upon the bill pro confesso in the usual form. The facts of the case must be first ascertained.

4443. An interlocutory decree is one made when some material circumstance or fact necessary to be made known to the court is either not stated in the pleadings, or so imperfectly ascertained by them that, by reason of that defect, the court is unable to determine finally between the parties; or when further direction generally is reserved till a future hearing. Such further hearing is termed a hearing upon further directions, or upon the equity reserved. 10

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? Gilbert, Ch. 156.

* Carew v. Johnston, 2 Schoales & L. Ch. Ir. 300; Knight v. Young, 2 Ves. & B. Ch. Ir. 186.

Geary v. Sheridan, 8 Ves. Ch. 192. • Rules of the United States Courts, Equity rule 18.

ules of the United States Courts, Equity rule Geary v. Sheridan, 8 Ves. Ch. 192. 8 Molesworth v. Lord Verney, 2 Dick. Ch. 667. Barry v. Barry, Hopk. Ch. N. Y. 118.

10 Seton, Decr. 2.

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¥t very seldom happens that a first decree can be final or conclude the cause; for, if any matter of fact be strongly contested, and there is some doubt, the court is so sensible of the deficiency of trial by written evidence that it will not bind the parties by such trial, but will refer the matter to be tried by a jury. As jurors are never summoned to attend the court of chancery, the fact is usually ordered to be tried at the bar of one of the courts of law upon a feigned issue.11

The necessary consequence of sending a feigned issue to be tried at law is, that no final decree can be made until the feigned issue has been tried. The first decree directing the feigned issue?? is therefore merely an interlocutory decree, directing the issue and reserving the consideration of the further

questions in the cause until after the trial of the issue.

4444. A final decree is one which disposes of the whole cause and leaves nothing further to be done ; 13 it does not reserve the consideration of the points of equity arising upon the determination of the legal rights of the parties, or of the further directions upon the master's report, or the

costs of the suit, but when made and enrolled, it may be pleaded in bar to any new bill of the same matter. A decree is final, not only when it adjudicates as to the rights of the different parties, but also when it dismisses the plaintiff's bill ;44 for, in such case, the decree may be pleaded in bar to a new suit, unless accompanied with a direction that the dismissal is to be without prejudice to the plaintiff's right to file another bill. Directions of this sort are inserted, where the dismissal is occasioned by some slip or mistake in the pleadings or in the proof.15

4445. In their form it may be observed that decrees consist of three parts : the date and title; the recitals; and the ordering part.

4446. The decree commences with a recital of the day of the month and year when it was pronounced, and the names of the several parties to the cause. Both parties should have the titles in the decree which are given to them in the bill; if, for example, the plaintiff is described as executor in the bill, he must be so named in the decree.

4447. Formerly, the decree contained recitals of the pleadings in the cause, which became a great grievance. Some of the English chancellors endeavored to restrain this prolixity. By the rules of practice for the courts of equity of the United States, it is provided that in drawing up decrees and orders neither the bill nor the answer, nor other pleading, nor any part thereof, nor the report of any master, nor any other prior proceedings, shall be stated or recited in the decree or order.16

4448. The ordering or mandatory part of the decree contains the specific directions of the court upon the matter before it. It is manifest that these directions must depend upon the nature of the particular case which is the subject of the decree; when the decree is merely interlocutory, it directs an issue, or a case at law, or an inquiry to be made, or an account to be taken by a

11 The nature and use of a feigned issue have been explained. See before, 3014.

12 This is not, properly speaking, a decree; it is more of the nature of a direction for a preliminary inquiry, and, for this reason, it is termed "an order;" it is in the nature of a * decretal order," but, strictly speaking, it is not a decretal order, which is an order in the nature of a decree, made upon motion or petition. 2 Daniell, Chanc. Pract. 637.

13 Tennant v. Paterson, 6 Leigh, Va. 196; see Haskell v. Raoul, 1 M'Cord, Eq. So. C. 32; Patterson v. Gaines, 6 How. 585; Harvey v. Branson, 1 Leigh, Va. 108; Larue v. Larue, 2 Litt. Ky. 251; Field v. Ross, 1 T. B. Monr. Ky. 137; Weatherford v. James, 2 Ala. N. 8. 170; Wright v. Miller, 3 Barb. Ch. N. Y. 382.

14 Holmes v. Remsen, 7 Johns. Ch. N. Y. 286; Thompson v. Clay, 3 T. B. Monr. Ky. 15 2 Daniell, Chanc. Pract. 638. 16 Rules of the United States Courts, Equity rule 86.

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master; it usually contains a reservation of the further matters to be decided, and, generally, also the costs of the suit, till after the event of the issue, or of the inquiry or account, shall be known.

4449. All the original parties to the suit, and those who are afterward made parties either to the suit or the decree, of full age, compos mentis and sui juris, and their privies, and such as claim under them, by an act done pendente lite, are regularly bound by the decree. 18

4450. When one comes in pendente lite, and while the suit is in full prose cution, without any color of allowance or privity of the court, in such case a general decree binds such person ; but if there were any intermission in the suit, or the court were made acquainted with the conveyance, the court will order upon the special matter according to justice and equity.10

But to render thus a purchaser pendente lite bound by a decree, the decree must put a conclusion to the matter in question. The pendency of the suit is pre

. sumed to be known, because all persons, for this purpose, are presumed to know what passes in courts of justice, and the presumption is established to prevent great mischief which otherwise would arise. When it is only a decree to account, that is still such as affects the purchaser with notice; but when money is secured upon an estate, and there is a question depending in the court of chancery upon the rights or about that money, but no question relating to the estate upon which it is secured, a purchaser of the estate pending the suit will not be affected with notice by such implication as the law creates by the pendency of a suit.20

4451. It is one of the cardinal principles, both at law and in equity, that no judgment or decree shall be rendered against any one who is not a party to the proceedings, and who has not had an opportunity of being heard, though a court of equity will, in the first instance, decree against the party ultimately responsible, where the parties are before the court at the time of the decree, but not otherwise, 21

In general, not only parties, but all privies to the parties before the court, are bound by the decree. Therefore, though ordinarily the decree only binds the parties to the suit, he who purchases during the pendency of the suit is bound by the decree which may be made against the person from whom he derives title. An assignee of an equity of redemption, pending the suit for redemption, is bound by the decree. 22 For the same reason, a purchaser of an estate charged with debts, pending a suit by creditors, is bound by the decree. 23

It is a rule that a conveyance made pending a suit does not vary the rights of the parties in the suit : pendente lite nihil innovatur. Such conveyance gives no better right to the purchaser than the grantor had, and has no effect with reference to any beneficial result against the plaintiff in the suit; for the litigating parties are not required to take notice of a title acquired under such circumstances.

But the decree does not bind any one who comes in bona fide by a conveyance from the defendant before the bill exhibited, and where he is not a party, either by bill or order.24

4452. In some of the states, statutes have been passed giving a remedy dif

17 2 Daniell, Chanc. Pract, 667. 18 Pract. Rég. 125; 1 Harrison, Chanc. Pract. 433. 19 Toth. 45. 20 3 Atk. Ch. 392. 11 Garnet v. Macon, 6 Call, Va. 308; Sparhawk v. Buell, 9 Vt. 41. 22 Garth v. Ward, 2 Atk. Ch. 175. 23 Walker v. Smallwood, Ambl. Ch. 676. 34 See Beames, Ord. 7.

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