OF THE CASE, OR ABBREVIATED STATE OF THE PLEAD WHEN a cause is to be brought to a hearing, whether on the pleadings and answer, on bill and answer, or on plea or demurrer, unless the parties agree upon a case to be signed by them respectively, and containing, with all requisite brevity, a statement of the pleadings and proofs, a case, containing an abbreviation of the pleadings, and no more shall be furnished by the party who sets down the cause for hearing, and shall be delivered to the Chancellor when the cause is brought to a hearing, each party furnishing the points on which he may think proper to rely; and if a cause be submitted without argument upon the points merely, or upon written arguments, and no case be agreed on, it shall be the duty of the party who would have been entitled to set down the cause for hearing to furnish the case, and in the taxation of costs, no allowance shall be made for any case, except for such as shall be agreed on, or furnished as aforesaid.(a) By the 13th section of the act of 1813, it is provided, that no subpoena to hear judgment shall issue, but that all causes shall be brought on to hearing un- 1. No subpæ. der such rules and orders as the Chancellor may from judgment. time to time prescribe.(b) na to hear OF HEARING THE CAUSE. THE cause having been regularly noticed, set down, and the Chancellor furnished with an abbreviated state of the pleadings, it is called on, when its turn comes on the calendar in which the causes are arranged by the register according to the seniority of their respective issues. The pleadings and testimony are read by the respective solicitors in court. If there is any viva voce testimony to be taken, it is introduced. The complainant's counsel then opens the cause, unless he has neglected to set it down, and it is set down by the defendant, in which case the defendant opens. (a) The counsel for the adverse party answer, and then the counsel for the opening party close. The cause is then left for the Chancellor's consideration and decision. At the hearing, the parties should be very particular in having all the exhibits and other original documents used on the argument marked and entered by the register or assistant register as read: This caution is very essential, because in case of an appeal to the court of Errors, no papers can be read before that court but such as had been previously used in the court below. Because, the upper court reviews the decision of the court of Chancery, upon the evidence adduced at the hearing of the cause, and affirms or reverses the decree below upon such evidence. No new evidence is admitted in the court above, nor does the court of Appeals admit any evidence of the exhibits or papers being used in the court of Chancery, other than the certificate of the register or assistant register.(c) OF THE DECREE OF THE COURT. THE Chancellor having taken his own time to consider the cause, pronounces his judgment, and commonly gives his reasons therefor at large. It often happens, that the first decree in a cause is not final, but that some matters are to be ascertained and settled before a final decree can be pronounced, in which case the decretal order is called an interlocutory decree: this may be for a reference to a master, or it may be for a feigned issue directed to try some fact by a jury in a court of law. But of this hereafter. We shall at present suppose the court to give final judgment in the cause. The judgment of the court being pronounced, the decree, if final, shall be made up, and engrossed by the register or assistant register, to be signed by the Chancellor, at any time after thirty days of the pronouncing the same if required by either of the parties, unless the same shall be appealed from, or a rehearing be petitioned for before it be made up.(a) According to the English practice, the enrollment of the decree of the court recites the several pleadings, orders and proceedings had in the cause. But by the third section of the act of 1801, continued by the act of the 10th of April, 1813, sect. 6. it is provided, that it shall not be necessary to enroll any decree, or dismission to be made or given in the court of Chancery, but that in all cases, the clerks of the court shall immediately after any decree or dismission is pronounced, deliver the bill and answer, and other plead (a) Rule 35. ings, if there be any in such cause, to the register of said court, who shall annex them together, and file the same in his office, together with a fair engrossed copy of the decree or dismission thereupon, and also the reports and decretal orders which may have been made therein, but without any recital of the bill, answer or pleadings, and shall annex the same after it is signed by himself and the Chancellor, to the said bill, answer and pleadings in the same cause, which shall be of the same force and effect, as if such decree or dismission had been enrolled.(a) Since the office of register has been divided between the register and assistant, one of whom resides at Albany, it has been found necessary to modify the practice prescribed by the above recited statute by the 82d rule of court, which directs, that the clerks and examiners, after the final hearing of a cause, shall deposit with the register or assistant register with whom the decree may be entered, all the original pleadings, interrogatories, depositions, exhibits or other proceedings, filed or lodged, or taken before them in the same cause, making a minute in their register of the delivery of such papers; and that it shall be the duty of the register or assistant register, with whom the decree may be entered, to require the same to be delivered to him as soon as may be after the decree shall have been pronounced. That the register or assistant register, with whom the decree final shall be entered, shall cause the same to be made up in proper form and engrossed, together with all the decretal orders, reports and other proceedings in the cause, and copies thereof the register and assistant register shall mutually trans (a) Rule 35. mit to each other when necessary for that purpose, and shall make a brief and connected history of such proceedings, which having been signed by the chancellor, and countersigned by the register or assistant register, and annexed to the bill, answer, and other proceedings in the cause, shall constitute the enrolment of such decree.(a) A decree on a bill for a specific performance, on the coming in of a master's report, as to the quantity of land to be conveyed, and the payments made, directing the balance due to be paid, and the conveyance to be executed, is a final decree.(b) If a final decree is silent as to costs, they are lost, and cannot afterwards be ordered to be paid, unless on a rehearing the decree has been opened for that purpose,(c) A decree can never be impeached by an original bill; it can only be questioned by a bill of review. (d) A bill of review is proper after a decree is enrolled, and a supplemental bill, in nature of a bill of review before the enrollment of the decree.(e) The party who seeks for a bill of review, must show that he has performed the decree, especially as regards the payment of money, and that he has paid the costs.(ƒ) A bill of review must be either for error in point of law, apparent on the face of the decree, or for some new matter of fact relevant to the case, discovered since publication passed, and which could not with reasonable diligence have been discovered before.(ƒ) |