the opposite party, and no actual abuse appearing; but such practice is irregular.(a)

Day is given to the defendant above mentioned, to show cause why publication should not pass in

three weeks. Dated this

day of

To G. H. Esq. def'ts. sol'r.

1818.

Elmendorf, clerk.

This notice of the rule, as well as the notice of the rule to produce witnesses, is usually served by the clerk in court himself upon the solicitor, to whom it is addressed, although it may be safe for the solicitor to attend to it himself, and see that the notice is actually served.

Day is given to the defendant, (or plaintiff,) for passing publication upon a joint commission returned. Elmendorf, clerk,

(a) Underhill v. Van Courtlandt and others, 2 Johns. Chan. Rep. 339.

We consent that publication do forthwith pass.

E. F. Sol'r. for Comp't.

G. H. Sol'r. for Def't.

Of this rule, the solicitor entering it, must give the adverse party notice, and at the expiration of the time limited by the rule, the solicitor for the complainant obtains a certificate from the clerk, that the rules for the examination of witnesses, as well as for passing publication are expired; and on the delivery of this certificate to the register, or assistant register, he will enter an order in his book to the following effect:

On reading and filing the certificate of Edmund Elmendorf, Fsq. the clerk of this court, residing in the city of New-York, by which it appears, that the rules to produce witnesses and pass publication in the above cause have been regularly entered and served, and have expired; and on motion of Mr. E. F. solicitor for the complainant, it is ordered that publication in the said cause do pass immediately.

After the entering of the above order, either the complainant or defendant may obtain a copy thereof,

serve the same on the examiner, and thereby obtain copies of the depositions taken in the cause, which closes the examinations.

There can be no further examination of witnesses, even though witnesses should have been sworn in a cause, and their examination commenced, it cannot be proceeded on without an order of the court for enlarging publication

But until this rule expires, either party may file interrogatories, and continue to examine his witnesses.

Publication may, and most commonly does pass by consent of parties, that is, when both parties have examined their witnesses, and are thereby prepared to bring the cause to a hearing, a rule is entered with the register by consent that publication forthwith pass, or that it pass in such time as may be limited by the rule. (Vide consent rule, ante 143.)

After the examination of the witnesses, and the rule for publication is entered, publication may be stayed by motion in court, or petition to the chancellor soon after publication has actually passed, upon proper grounds being stated by affidavit. The court, upon motion or petition, will grant the party leave to examine other witnesses, but the court will not do it if the party applying for this favor has seen, or read the depositions taken in the cause, and it must appear to the court by the affidavit that this has not been the case.(a) (Vide, under the head of motion, post.)

Where publication had passed in a cause without any witnesses being examined on either side, the court refused, especially after the elapse of more than two years from the time of filing the bill, to open the rule

(a) 1 Harrison's Chancery, $48,

Amending

for publication, on the affidavit of the plaintiff, of the discovery of a witness, who would prove a material fact in the cause denied in the answer. (a) Nor would the court, under the circumstances, award a feigned issue in the cause, that being a measure of sound discretion. (Ibid).

Amending Depositions of Witnesses.

After publication passed, and the cause set down for depositions of hearing, the deposition of a witness was allowed to be

26. Of exa

credit or com

nesses.

amended on examination of the witness by the court, he being aged, and very deaf, and a mistake made by taking down his testimony by the examiner.(b)

A witness who has been examined before a commissioner by consent of parties, on affidavit that his testimony was not truly taken down by the commissioner, who had mistaken it materially, was ordered to be re-examined before the examiner, there being no suggestion of any tampering with the witness.(c)

Of Examining to the Credit or Competency of Wit

nesses.

After publication has passed, and the depositions delimining to the vered, if either party excepts to the competency or crepetency of wit- dit of any of the witnesses examined in the cause, he shall be at liberty to file articles with the clerk in court, as of course, and shall furnish the adverse party with a copy thereof, and with notice of his intent to examine to the competency or credit of any witness before examined in the cause, specifying which, and shall there

(a) Smith v. Brush and others, 1 others, 1 Johns. Chan. Rep. 526. Johns. Chan. Rep. 459. (c) The Trustees of Kingston v. Tap (5) Denton and others v. Jackson and pen, 1 Johns. Chan. Rep. 368.

upon be at liberty to sue out the commission to take the testimony, or examine before an examiner as in other cases provided. But unless such notice and copy of the articles shall be given to the adverse party within fourteen days after obtaining a copy of the depositions, the cause shall not be delayed on account of such examination.(a) Copies of the depositions must be taken in a reasonable time after the rule for publication is out, for if the party should unreasonably delay taking copies of the depositions he would not, it is presumed, be allowed to file articles after such unreasonable delay.

In Chancery.

Sir,

Between

A. B. Complainant,
and

C. D. Defendant.

cles.

Please to take notice, that I have this day filed 27. Notice of articles with the Clerk in the above cause, on the part, fling the arti and on behalf of the complainant, a copy of which is hereunto annexed, and that I intend to examine to the credit of G. T. I. B. and H. A. witnesses already examined in the said cause, and that, on the same day, I. M. of the first ward of the city of New-York, merchant, will be examined as a witness in behalf of the said complainant, by Esq. the exami

ner, as in other cases provided.

The Form of the Articles are as follow:

Articles exhibited by A. B. complainant in a certain

28. Form of

cause now depending and at issue in the court of Chan- the articles.

(a) Rule 27.