est in the subject-matter of the suit, or from his not owing any duty to the plaintiff. Another ground of demurrer is, that complete justice cannot be done without other persons than those made parties to the suit being before the court (q); and that the bill is therefore defective for want of parties, and ought not to proceed. Another, and the last ground of demurrer which we need here mention, is that of multifariousness. The court will not permit a plaintiff to demand by one bill several matters of different natures against several defendants, or even, where the demands are clearly distinct in their character, against one defendant. A defendant may, therefore, demur to a bill open to this objection (r). When a demurrer is put in to the bill, and the plaintiff does not admit its validity, the case is set down for * argument before the court. If the [* 92] court thinks the demurrer is well founded, the decision is equivalent to a dismissal of the bill, and so terminates the suit as regards the demurring defendant. Sometimes, however, the court, whilst holding the demurrer to be well founded, yet considers the circumstances to be such that it ought not to put an end to the suit, but give the plaintiff an opportunity of making some alteration in the statement of his case. The court then allows the demurrer, but gives leave to the plaintiff to amend his bill. In such case the plaintiff usually has to pay the costs which have been incurred by the defendant up to that time. If the demurrer is, in the opinion of the court, not well founded, it is overruled, and the suit is in the same condition as if it had not been put in, the defendant having, however, generally to pay the costs occasioned by it. A third method of defence is by plea. A plea is of the nature of an answer to the bill, but is of a special kind, having no reference to any interrogatories which may have been filed. It may be described as a statement of some simple ground of defence, which does not appear on the face of the bill, but which would if it were in the bill render it demurrable. The grounds of pleas are very much like those of demurrers. The object of them is to save the expense of examination of witnesses at large; therefore it is not every good defence in equity that is good as a plea, for where the defence consists of a variety of circumstances, it is not proper for a plea, as the court would be giving judgment on the case before it is made out by proof (s). Plea. Pleas are not much favoured by the court, and except where the fact pleaded is a bankruptcy of the plaintiff or defendant, taking away the right to sue or liability to be sued, or some other equally simple fact, they are rarely resorted to, and still more rarely succeed. (4) The demurrer for want of parties was formerly a fruitful source of annoyance and expense. This has been much diminished by the alteration made by the legislature in the rules of the court (15 & 16 Vict. c. 86, s. 42; Cons. Order, vii. 1. 2). The old rule, requiring the presence of every person who was materially interested in the subject-matter of the suit, arose from the extreme anxiety of the court to do complete justice, and prevent future litigation. The strictness with which it was applied often led to great practical injustice, from the difficulty and expense of complying with it. This led to its relaxation in several classes of cases, mentioned in the act and the orders. (r) For illustrations of the several kinds of demurrers, see Mitford on Pleadings, ch. ii. s. 2, p. 1, and also J. W. Smith's Notes thereto. The demurrer for want of equity is the most frequent, that for multifariousness the next. The skill of draughtsmen, however, in preparing bills, renders demurrers not very common; sometimes, however, the plan of filing a bill in order that it may be demurred to, is adopted as a convenient means of quickly obtaining the opinion of the court upon the construction of an instrument, upon which the plaintiff in such a case founds his claim. The parties in such a case usually acquiesce in the decision upon the demurrer. (8) Mitford, 219. [* 93] *If a plea succeeds, there is an end of the suit; if it fails, the suit proceeds as if none had been put in. Exceptions to answer. If the defendant, not succeeding in either demurrer or plea, puts in an answer, the plaintiff next considers whether the answer contains sufficient replies to his interrogatories. If it does not, he excepts to the sufficiency of the answer; which is done by filing a formal statement of his objections, called the exceptions. The exceptions, which must show accurately wherein the answer is deficient, are then argued before the court; and if they are allowed, the defendant has to put in a further answer. This process continues until the plaintiff has, in the opinion of the court, obtained a complete answer to his interrogatories. A plaintiff, after seeing the answer, often finds that the allegations contained in his bill are either incorrect or insufficient fully to exhibit his case to the best advantage. He is allowed at that stage, therefore, to amend his bill by making such alterations in it as he thinks proper, with this restriction only, that he must not by amendment entirely alter the character of the suit. Amendment of bill. He may also introduce by amendment any fact which has occurred subsequently to the filing of the original bill (t). A bill may be amended at other stages of the suit besides after answer, and the changes which may be introduced by way of amendment are many and various; new parties may be added and former parties struck out; even a party originally plaintiff may be made a defendant; additional relief may be asked, and the former prayer altered. Even at the hearing of a cause in court amendments are allowed; and the hearing will in such a case be postponed for a few days, in order that they may be [* 94] made (u). An order is in every case obtained from the * court giving leave to amend; such an order will, before the defendant has put in his answer, be given as of course (i. e. without the defendant being allowed to oppose it), as often as the plaintiff pleases. After an answer has been put in, one order to amend only will be granted as of course, and any further order can only be obtained if the court, after hearing the defendant, thinks proper to allow it. The plaintiff may file interrogatories, and require an answer to his amended bill if he pleases; these new interrogatories are confined, however, to the subject-matter of the amendments, but the same process for insisting upon a sufficient answer that applied to the original bill is repeated for the amended bill. If the defendant wishes to examine the plaintiff in the same searching manner in which he has himself been examined, he may do so. Formerly in Examination of plaintiff. order to do this, he was obliged to file a second bill, i. e. institute a second suit, called a cross suit (x), but now a defendant may, as soon as he has put in a sufficient answer (if required to answer), file interrogatories for the examination of the plaintiff, prefixing to such interrogatories a concise statement of the subjects on which discovery is sought. The plain (t) This was not allowed until the act 15 & 16 Vict. c. 86, s. 53. It could previously only be done by filing a new bill, called a supplemental bill. See Mitford, 62. (u) See Tasker v. Small, 3 M. & Cr. 63; Maughan v. Blake, L. R. 3 Ch. 32. (x) A cross suit is even now sometimes necessary for complete defence; for instance, when one defendant wishes to obtain discovery from a co-defendant. The right to file a cross bill is expressly reserved by the statute 15 & 16 Vict. c. 86, s. 19, which first authorised these interrogatories on the defendant's part. tiff is bound to answer such interrogatories, in like manner as the defendant was bound to answer the plaintiff's interrogatories. When the defendant has answered in an unexceptionable manner, and the plaintiff no longer wishes to amend his bill, the latter carefully considers the answer, and if he finds that upon the answer alone, without further proof, there is sufficient ground for a final order or decree (which rarely happens in Hearing on bill hostile suits), he is bound to proceed upon the answer without entering into evidence (y). In such a case the cause is set down on bill and answer, the answer being assumed in the argu and answer. ment to be true (z). * [* 95] If, however, the plaintiff thinks, as usually happens, that evidence beyond. the admissions in the answer is necessary to support his case, or if the defend-. ant has not been required to answer, and has not answered, then there are two distinct courses open to the plaintiff, which differ in their effects principally as to the mode in which the evidence is taken. The plaintiff may at once put the cause in issue, by filing what is called a replication (a), and is equivalent to traversing or denying in toto the statements in the answer. Or he may serve a notice of motion for a decree (b). These two modes of bringing the cause to a hearing we will consider separately, but before doing so it may be here mentioned, that if he has required an answer, but the defendant has neglected to put one in, the plaintiff, besides taking steps to imprison him for contempt in not answering, may file a traversing note, which is a declaration. Traversing note. of his intention "to proceed with his cause as if the defendant had filed an answer traversing the case made by the bill" (c). We will suppose now that the plaintiff has put the cause in issue by filing replication (d), he immediately gives notice that he has done so to the defendant, and each side then proceeds to verify his case by evidence. Replication. Evidence. In chancery, evidence is for the most part taken by affidavit, that is, by a written statement signed by the witness, to the truth of which he is sworn in the presence of certain officers of the court, (who are usually solicitors), appointed by the lord chancellor, and called "commissioners to administer oaths in chancery," of whom there are a great number residing in all parts of the kingdom. These affidavits when sworn are filed in the record* and writ clerk's office, and copies of them for the use [* 96] of the parties at the hearing are printed under the direction of the record and writ clerks (e). Sometimes, however, it is necessary, either from the refusal of a witness to make an affidavit, or for some other reason, to compel a witness to give evidence; when this is the case, the examination must of course be vivá voce. The witness is served by the party who desires to examine with a writ of subpoena, to appear before one of the examiners of the court, of whom there are two. He is then examined ex parte, no person having a right to be present at such examination except the party producing the witness, his counsel, solicitor, and agents. The examination is put into writing by the examiner, and is then treated as an affidavit (ƒ). (y) Cons. Order, xix. 1. (a) Cons. Order, xvii. 2. VOL. II.-12 (e) Gen. Order, 16 May, 1862, i. (f) Gen. Order on Evidence, 5 Feb. 1861, r. 6. This order was made under the authority of an act (23 & 24 Vict. c. 128), passed for the purpose of giving effect to the recommendation of the chancery evidence commissioners. All the evidence in chief must be taken in the above modes, within eight weeks after issue is joined (g), and the cross-examination of all witnesses is taken before the court at the hearing (h), unless the witness be, through age, infirmity, or for some other good reason satisfactory to the court, incapable of being so cross-examined (i), or unless the parties agree otherwise (k). Besides the above modes of taking evidence, it is competent for any party, within fourteen days after issue joined, to apply for an order that all the evidence, both in chief and on cross-examination, upon some particular issue of fact, should be taken viva voce at the hearing (1). *When an order of this kind has been made, the hearing, so far [*97] as concerns the issue of fact mentioned in the order, very much resembles a trial at nisi prius of a common law action, the judge taking both the part of judge and jury: a still greater resemblance, however, is allowed under the recent improvements of chancery practice, inasmuch as the court may, if it thinks fit, summon a jury to try before itself any question of fact which may arise in a suit. This trial by jury, however, will not, unless by consent of counsel on both sides, be directed until the cause has been actually brought to a hearing in the usual way (m), and it is completely in the discretion of the court whether a jury shall be summoned or not (n). When the eight weeks allowed for taking evidence in the manner above explained have expired, or when any further enlarged time which the court may have allowed has expired, the evidence (except as to such issue, if any, as is to be tried before the court) is considered to be closed, and the cause is ripe for the hearing. The plaintiff accordingly sets it down in the registrar's book, and it comes on in its turn in court. On hearing the cause, the court has, whatever may be the state of the evidence, or the mode in which parties have attempted to prove their cases, power to require the production and oral examination of any witness or party in the cause (0). This power is wholly discretionary on the part of the court, and will only be exercised with great care, and when the point on which further evidence is wanted is of great importance (p). [* 98] Notice of motion for decree. * We come now to the course of preparing evidence in the other case, viz., where the plaintiff moves for a decree. The notice of motion which he must give to the defendant states that one month from its date he will move the court for a decree (g). Before serving the notice of motion for decree, the plaintiff must file all affidavits which he thinks material for his purpose, and he must, at the (n) Bovill v. Hitchcock, L. R. 3 Ch. 417; and see Fernie v. Young, L. R. 1 H. L. 63, where the principles and practice of the court, under the Chancery Amendment Act, 1858 (21 & 22 Vict. c. 27), and the Chancery Regulation Act, 1862 (25 & 26 Vict. c. 42), are fully explained. (0) 15 & 16 Vict. c. 86, s. 39. (p) Only, in fact, in those cases in which formerly the court used to send an issue to be tried by a jury before a common law judge, a practice which no longer exists. Wilkinson v. Stringer, 9 Hare, App. xxiii.; Ferguson v. Wilson, 36 L. J. Ch. 67. (g) 15 & 16 Vict. c. 86, s. 14; Cons. Order, (m) George v. Whitmore, 26 Beav. 557; xxxiii. r. 4. Bradley v. Bevington, 4 Dr. 511. foot of his notice of motion which he serves upon the defendant, set forth a list of the affidavits which he intends to use at the hearing (r). It follows from this, that if the plaintiff wishes to use the evidence of witnesses who refuse to make affidavits on his behalf, he must not proceed in this manner, but must file replication; because, before giving the notice. of motion, he cannot subpoena any witnesses, and after doing so he is too late (s). On the hearing of a motion for decree, the answer, if there be one, is treated as an affidavit (t). When the defendant has received notice of motion for decree, he of course has an opportunity of seeing at the same time the evidence of his adversary, because he can obtain copies of the affidavits from the office. He must then, within fourteen days after service of the notice, file his affidavits in answer to the plaintiff's case (u). If he wishes to examine an unwilling witness, he has now an opportunity of doing so; he serves a subpœna on the witness to appear before an examiner of the court (x). The examination in this case would, it would * seem, be conducted in the presence of both parties, and the witness would be subject to cross-examination and re-examination (y). [* 99] When the defendant has completed his evidence and filed it, the plaintiff has an opportunity of filing further evidence in reply. Seven days are allowed for this (z), after which time no further evidence on either side can be put in to be used on the hearing of the motion for decree (a). But if either party wishes to cross-examine any witness whose affidavit has been filed, he may give a notice to the party on whose behalf the affidavit was filed of his desire to cross-examine, and such party must produce the witness before an examiner to be cross-examined, otherwise he cannot use the affidavit without special leave of the court (b). The hearing of the motion for decree in most cases has the same effect as the hearing of the cause (c). The court can either make a decree exactly as if the cause had been brought to a hearing by joining issue, or it may dismiss the bill, and so put an end to the suit, to the overthrow of the plaintiff. On comparing the method of taking evidence just described with that where the cause is brought to issue by replication, we see the great difference between them. When the cause is brought to issue, all * the evidence in chief is put in, without an opportunity being given to either party of see- [*100] ing the evidence in chief of the other side: but each side, having power to obtain copies of all the evidence on the file, knows, before the hearing, all the (r) b. and r. 5. (8) Coles v. Morris, L. R. 2 Ch. 701. (t) 15 & 16 Vict. c. 86, s. 15. (") Cons. Order, xxxiii. 6. The time is readily enlarged upon application to the court. (r) This seems to be the effect of 15 & 16 Vict. c. 86, s. 40, as that section appears to apply to the examination of a witness by a defendant, after notice of motion for decree. See Coles v. Morris, L. R. 2 Ch. 701; and Wigan v. Rowland, 10 Hare, App. xviii.; Wilhelm v. Reynolds, 8 W. R. 625. (y) 15 & 16 Vict. c. 86, ss. 31, 40. The words in section 40, that the witness shall be examined "in like manner, as such witness would be bound to attend and be examined with a view to the hearing of a cause," seem properly to be referred to s. 31, and not to the manner in which, under the later General Order of 1861, witnesses are examined with a view to the hearing of the cause. (z) Cons. Order, xxxiii. 7. It would seem, that at this stage a plaintiff may summon an unwilling witness before the examiner, under 15 & 16 Vict. c. 86, s. 40, but the evidence extracted from him must be strictly in reply to the defendant's evidence. (a) lb. r. 8. (b) Gen. Order, 5 Feb. 1861, r. 19. (c) There have been cases where the motion for a decree has been simply refused, without prejudice to the plaintiff bringing the cause to a hearing by filing replication. Thomas v. Barnard, 5 Jur. N. S. 31. |