Page images
PDF
EPUB

in the office of the clerk of the court in which the suit may

be commenced.

RECOGNISANCES.

63. All recognisances taken by the clerk for the appearance of either parties or witnesses, shall be written in a book for that purpose, separate and distinct from the minutes, to which he shall affix an alphabetical index.

SCIRE FACIAS.

64. Writs of scire facias, issued to revive judgments, shall be returnable to the next superior court of the county where the defendant or defendants reside, under the following regulations, viz: The party suing out such writs shall procure a full exemplification of the record of the judgment, which shall be sent to the clerk of the superior court of the county where the scire facias is made returnable, and filed with the same, whereupon judgment may be revived on such exemplification, in like manner as if the original judgment had been recovered in the county where the scire facias is made returnable. 65. A suggestion of the death of either

party,
for the
purpose

of enabling the survivor, or the representatives of such deceased party, to issue scire facias to revive, may be made either in term time or in vacation ; in either case the order for issuing the scire facias shall be of course, and be granted by the clerk; and such suggestion, and the order thereon, shall be filed among the proceedings in the cause.

SIGNING JUDGMENTS.

66. In all and every case when a verdict has been obtained at common law, and an appeal entered without judgment signed upon the said verdict, judgment shall not afterwards be signed further back than the time of disposing said appeal.

SUBPOENA.

67. Subpænas duces tecum may issue against third persons without order, at any time, upon application to the clerk.

SURVEYS.

68. County surveyors are required to deliver copies of re-surreys by them made, to each of the parties concerned

upon

their application, and at their own proper costs, within ten days after such application is made; and the surveyor executing a survey

shall be bound to attend court to prove the same, and shall be allowed the per diem pay of a witness attending upon subpæna.

69. Surveys of lauds in any quantity of two hundred acres, or less, shall be laid down by a scale of ten chains to the inch ;

and over that quantity, by a scale of twenty chains to an inch.

70. No survey made under the rule of court shall be received in evidence, unless it appears that at least ten days' notice of the time of commencing such survey was given to the opposite party by the one who offers it in evidence.

71. Every surveyor shall represent on his plat, as nearly as he can, the different enclosures of the parties, and the extent or boundaries within which each party may have exercised acts of ownership,

72. After a cause has gone to the jury, and any evidence been heard in it, neither party shall be allowed to make any objection to a rule of survey made in the case, or the manner in which it may have been obtained, or the survey executed.

73. Either party, in actions of ejectment, shall be entitled as matter of right, to a rule of survey, upon application to the clerk in vacation.

[ocr errors]

WITNESSES.

74. Witnesses shall first be examined by the party introducing them, then cross-examined by the adverse party; further examina

; tion shall not be had but by leave of the court first obtained, and then only upon the declaration of the attorney or witness, that a material fact has not been stated, to which all further inquiries shall be directed; and in all cases in which more than one attorney is retained on either side, the examination and cross-examination shall be conducted by one of the counsel only, and at the opening of the case both parties shall state to the court to which attorney the es amination and cross-examination of witnesses is confined.

RULES IN EQUITY.

1. When a bill has been sanctioned and filed, and the usual process taken out and served or advertised according to the rules of court, and no answer shall be filed within the time allowed, if the defendant or defendants still remain in contempt at the next term thereafter, so as to entitle the complainant to have his bill taken pro confesso, the order shall be made by the court on application of the complainant; but such order shall only operate as an interlocutory decree, which shall entitle the complainant to have his cause submitted ex parte to a jury; provided always, that is the complainant or complainants shall swear or affirm that the answer of the defendant or defendants to the whole or part of the charges contained in the said bill is absolutely necessary, and that without such answer he, she, or they cannot support the truth of his, her, or their allegations, the court may permit such complainant or complainants to make a special oath or affirmation (as the case may be) of what he, she, or they know or believe the said defendant or defendants could or ought to answer, and such oath or affirmation may be given to the jury, together with the bill and other proof.

2. When a defendant or defendants reside out of the county in which a bill originates, and is sanctioned, which fact must be verified by affidavit, the court, or judge at chambers, shall pass such order for appearance and answer as the distance of defendant's residence shall warrant, service or publication of which order, according to the exigency thereof, shall be deemed a sufficient service to compel an appearance; and subsequent proceedings shall be the same as if the defendant or defendants had been served with process by the sheriff of the county where the subpæna is made returnable. And if it shall appear by affidavit that a defendant is absent from this State, or cannot be found therein, service may be effected by publication in a public newspaper upon the order of the court, requiring him to appear and answer the complainant's bill in such time as the court may

direct. 3. A plea or demurrer, in part or to the whole of a bill, shall be filed at the return term, and shall be argued during the term, or upon motion and cause shown at such other time as the court may direct. The court will, however, in its discretion, upon sufficient cause shown, grant further time for filing such plea or demurrer, and such order shall express the time within which the same shall be filed, and the further time thereafter within which it shall be argued or be considered as dismissed. And notice in writing of the filing of such plea or demurrer, shall be given to the adverse party or his counsel at the time of filing thereof. The defendant or defendants in any bill in equity may demur, plead, and answer at the same time, at the first term; the demurrer, plea, and answer may be separately disposed of in their order, but the filing of the plea or answer shall in no case operate to overrule the demurrer.

4. All answers shall be filed within four months after the adjourn. ment of the court to which the subpena is returnable, unless further time be granted. Exceptions to answers must be filed before the hour for jury business on the second day of the term thereafter, or said answers will be deemed sufficient; and if such exceptions shall be sustained by the court, the defendant shall perfect his answer within such further time as the court may order. But if said amended answer be defective, the defendant may be punished as for contempt, and shall pay all costs that have accrued up to the time of filing such defective answer. Nothing in this rule shall be construed to prevent the respondent from filing his answer at any time after the filing a bill for injunction against him, and moving the judge at chambers, who granted the bill for the dissolution of the injunction, if the equity of the bill shall be sworn off by the answer. But in such cases a rule nisi stating the grounds of the application, and fixing the time and place of hearing the motion, shall be served upon the complainant at least ten days before the hearing of any such motion ; and the judge shall have power to order such amendments as are usually made in open court, and to hear and determine exceptions to answers.

5. A general replication to the answer shall be filed, and what is admitted in the answer shall remain admitted, notwithstanding such general replication. No special replication shall be received, but the complainant may, by his replication, controvert any part of the facts stated in the defendant's answer, if he will admit the rest to be true; and such replication shall be confined to the particular matter controverted, and the defendant shall only be obliged to produce proof of such controverted matter. In either case the cause shall be at issue after replication filed without rejoinder.

6. In trials in equity the jury shall be taken from the panel of the grand inquest, in the manner prescribed by law for the selection of special jurors.

7. When a bill praying an injunction is presented to the judge for his sanction, there shall be annexed to it the clerk's certificate of payment of costs, and security being given as required by law; and

application to the judge additional security may be ordered if

2

circumstances require it. All injunctions shall be granted until further order had thereon.

8. An injunction shall not issue to stay proceedings at law in any action in which a verdict shall have been given for money, unless a sum of money equal to the amount which the party applying for the injunction acknowledges to be due, is deposited with the clerk of the court, to be paid to the adverse party; and a certificate of such payment shall accompany the bill..

9. When either party in a suit at law shall be desirious of obtaining the interposition of the court, in the exercise of its equitable jurisdiction in the prosecution or defence of said suit, the application therefor shall be by bill, which may be sanctioned by the judge upon such terms as shall seem just and reasonable. *And no bill to enjoin an action at law shall be sanctioned by the judge, unless the same shall be presented in time to be made returnable to the regular trial term of the case next after the sanction of the bill, unless good cause to the contrary, to be judged of by the chancellor, shall be shown in the application for the bill, and be sworn to by

the party.

10. Commissions shall be issued, returned, and published, and notice of interrogatories given in like manner as in cases of common law; and the like rules shall be observed on application for continuances.

11. The oath or affirmation of a defendant, to his or her answer shall be in the following form : “You, A B, do swear or solemnly, sincerely, and truly declare and affirm, (as the case may be,) that what is contained in your answer, as far as concerns your own act and deed is true of your own knowledge; and that what relates to the act or deed or any other persons, you believe to be true.”

12. Bills may be revived by petition to the judge at chambers, or at a term time; and upon the presentment of a petition for that purpose, an order for the revival of the bill nisi causa, on the first day of the term next thereafter shall be passed, a copy of petition and order shall be served by the sheriff on the defendant, at least twenty days before the meeting of the said court. No bill of subpæna will be required.

13. When a case in equity shall be tried by a jury, who shall render a verdict for a specific sum, a decree shall be entered for such sum, and such execution may be issued thereon, as if the. cause had been decided at common law. Where the finding of a

* Amendatory of the original rule.

« PreviousContinue »