« ΠροηγούμενηΣυνέχεια »
answer unto, and not herein and hereby well and sufficiently answered unto, confessed or avoided, traversed or denied, is true ; all which matters and things this defendant is ready to aver, maintain and prove, as this honorable court shall direct, and humbly prays to be hence dismissed, with her reasonable costs and charges
in this behalf most wrongfully sustained.
G. H. Sol’r for defendant.
This answer need not be sworn to, the statute, as before mentioned, permitting it to be put in without oath.(a)
The replication is in the general form: the com-, as. Report. plainant simply maintains the truth of his own allega- tion tions, and denies those alledged by the defendant in his answer. See the form, ante, p. 127.
Where the facts charged in the bill are denied by the answer, an issue is awarded to have the fact of adultery tried by the jury: the mode of proceeding, and the forms, will be seen by referring to the head of feigned issue in the subsequent part of this work. But if the defendant by his answer admit the adultery charged in the bill, or if the bill is taken pro confesso, a reference is made to a master in chancery, to take or Henrose. the proof of the adultery charged,(b) upon which re-o '...'. ference the proceedings are conducted in the manner * herein before pointed out, with relation to references
before a master.
(a) Ante, p. 338. (b) 2 N. R. L.198. Ante, p. 359,
In cases of adultery, such common orders may be entered of course, as might be entered of course in other actions, provided however, that no order as by consent, or for a reference or feigned issue, or on the coming in of a report or verdict, shall be deemed an order of course.(c) - o The nisi prius record being returned to the court and filed, or the master’s report being filed, the cause must be regularly set down for hearing at term preparatory to a final decree.(d) The form of a final decree after the issue has been awarded and tried will be found under that head; the final decree when a reference has been ordered, may be in the following form
es. Final This cause having this day been brought on to be “ heard upon the equity reserved, and for further directions upon the report of I. H. Esq. one of the master's of this court, bearing date the day of and upon the proofs taken before him pursuant to an order heretofore made in this cause; on reading and filing an affidavit of due service of a notice of this hearing, and on reading the said proofs, and the said report, and the opinion of the said master upon such proofs, whereby it appears satisfactorily to this court, that the defendant has been guilty of the adultery charged in the complainant's bill of complaint. And on hearing Mr. of counsel for the com
plainant, and Mr. on behalf of the said defendant, it is ordered, adjudged and decreed, and his honor the Chancellor, by the power and authority of this court, and in pursuance of the act of the Legislature of the state of New-York, entitled, “An act concerning divorces, and for other purposes,” passed the 13th day of April, in the year of our Lord 1813, doth order, adjudge and decree, that the marriage between the said complainant A. B. and the said defendant C. B. be dissolved : And the same is hereby dissolved accordingly, and the said parties, and each of them, are and is freed from the obligations thereof.
I. When an issue is directed.
IN cases pending before this court, whenever it be
fact, and it cannot safely be decided upon the evidence produced, the Chancellor will direct that the question be tried in a court of common law before a jury, in order that their verdict may inform and satisfy the con
1. When an - - - - issue is directcomes material to ascertain a particular question of “d.
science of the court. This may be done either by the court's ordering an action to be brought, or by directing a feigned issue to be tried. As an instance of the former, if a question arises whether a contract be usurious, and the facts are doubtful or disputed, the court has ordered an action to be brought on the contract.(a) The most familiar cases where issues are directed, are those on the due execution of a will, the amount or allowance of damages for injuries sustained to property, and under our statute, in cases of adultery on bills filed for a divorce. The form of the issue is settled by the order or under the sanction of the court, and directs the particular matters which shall be produced or allowed in evidence, and that the plaintiff and defendant shall attend, and be examined if that is thought necessary. The Chancellor has a right (with some exceptions,) to take upon himself the decision of every fact put in issue upon the record; but he exercises it, to use Lord Eldon's expression, “very tenderly and sparingly.”(b) When, however, after an issue directed, he administers equitable relief, his own judgment ought to concur with the verdict, or at least, he ought not to be dissatisfied with the verdict; if he is, a new trial will be directed.(c) Issues may be directed not only upon the hearing of the cause, but on exceptions upon facts before the master.(d) If exhibits are upon the trial found to be forged, the court will not allow the party to go into other evidence.(e) When the Chancellor directs an issue, he usually orders that the depositions in the cause shall be read at
(a) 2 Douglas, 735. (c) 2 Mad, idem. (b) 2 Mad. 364. See Newland, 177, (d) 2 Mad idem. 178, Ce J & Mad, idem.
the trial of the issue, if the witnesses be then dead, or
The form of the issue having been settled, a feigned 2. Mode of action is brought, in which generally, the pretended”
plaintiff, John Doe, declares, that he had laid a wager of dollars with the defendant Richard Roe, on