CHAPTER XXXVI...

EXAMINATION TO THE COMPETENCY AND TO THE CREDIT OF A WITNESS.

By Lord Bacon's 72d Ordinance, no examination is to be had of the credit of any witness but by special order,[a] which is sparingly to be granted.(1) By Lord Clarendon's Order, the examiner is not to examine any witnesses to invalidate the credit of any other witnesses, but by special order of the Court, which is sparingly to be granted, and upon exceptions first put into writing, and filed with the examiner.(2) An order to examine to the credit of a witness may be obtained before publication has passed.(3) And there is no precise time beyond which witnesses cannot be discredited.(4) Five months after publication, and when the cause was within about a week of being heard, an order was made for the defendant to be at liberty to examine witnesses by general interrogatories as to the credit of A. B., and as to such particular facts only as are not material to what is in issue in the cause, and to take out a commission to examine witnesses for that purpose.(5)[6]

The examination of witnesses as to credibility, whether before or after publication, can only be upon special application, therefore evidence taken to that point upon the *399 ] *examination in chief was suppressed as impertinent.(6) The order for leave to examine witnesses in

(1) Beam. Ord. 32.

(3) 2 Eq. Ca. Ab. 397.

(5) White v. Fussell, 19 Ves. 127.

(2) Beam. Ord. 187.

(4) Pigott v. Croxhall, 1 S. & S. 467.
(6) Mill v. Mill, 12 Ves. 406.

of evidence, as to The inquiry must But, it seems, that

[a] See 1 Hoff. Ch. Prac. 489. Upon such examination, the rule impeaching the credit of witnesses, is the same in equity as at law. be general, as to the general character of the witness, for veracity. on a special application to the Court, the inquiry may be allowed to go beyond the general credit, as to particular facts affecting his character, provided those facts are not mate. rial to the matter in issue between the parties. Troup v. Sherwood, 3 Johns. Ch. Rep. 558.

If the witness be impeached, evidence of his general good character is admissible. Richmond v. Richmond, 10 Yerg. 343.

[b] This proceeding may, ordinarily, be taken, after publication and before hearing, but the interrogatories must be so shaped, as to prevent the party, under colour of an examination as to credit, from procuring testimony to overcome that already taken and published in the cause. Gass v. Stimson, 2 Sumner, 605; Wood v. Mann, 2 Sumner, 316; but see, Richmond v. Richmond, 10 Yerg. 343.

support of articles exhibited to discredit a witness is made. upon notice, and on the Six Clerk's or Examiner's certificate, that the party has filed articles to discredit the testimony of the witness, and does not require to be supported by affidavit.(1)[a] In a town cause the articles impeaching the credibility of witnesses are filed with the Examiner, in a country cause with one of the Six Clerks.

After publication has passed, the party may exhibit articles to discredit a witness who has been cross-examined, by proving that he is not to be believed upon his oath ; but he can only exhibit interrogatories to such particular facts as are not material to what is in issue in the cause ;(2) and is limited to the general question whether the witness is to be believed upon his oath.(3)[6] In Wood v. Hamilton,(4) the order was, that the plaintiff be at liberty to take out a commission directed to the commissioners in the former commission, and that the plaintiff be at liberty to examine witnesses thereon by general interrogatories as to credit, and as to such particular facts *only, as are not material to what is at issue in [ *400 ] the cause. The motion was made after publication and cross-examination.

The Court will not allow articles to be exhibited against the competency of a witness after publication, but if the incompetency came to the knowledge of the party after publication, he may apply by motion to examine to that matter.(5) After the examination of witnesses, but before publication, the defendant was under the circumstances allowed to have a commission to examine witnesses as to the fact whether the witnesses examined by the plaintiff were not interested in the suit.(6) In equity an objection to the competency of a witness is not waived by crossexamining him.(7)

(1) Walmore v. Dickenson, 2 V. & B. 267.

(2) Purcell v. Macnamara, 8 Ves. 324.

(3) Anon. 3 V. & B. 93. Carlos v. Brook, 10 Ves. 49.

(4) 9 Ves. 146.

(6) Vaughan v. Worrell, 2 Madd. 322.
(7) Harrison v. Courtould, 1 R. & M. 428.

[a] Roe v. Ashford, 1 Hogan, 127.

(5) Callaghan v. Rochford, 3 Atk. 643.

[6] In answer to the impeachment, a witness, called to sustain the character of the impeached witness, testifying that he has known him for a number of years, and knows his associates, and has never heard his veracity questioned, will be allowed to be asked whether he would believe him on his oath. The People v. Davis, 21 Wend. 309.

Eng. Chan. Reps. iv. 499.

On objection to competency, the evidence is never read; if to credit only, the evidence is read, and left to the consideration of the Court.(1)

(1) Dixon v. Parker, 2 Ves. 220.

[ *401 ]

*CHAPTER XXXVII.

SETTING DOWN THE CAUSE.

THE plaintiff is at liberty to set down his cause upon bill and answer; but if he replies to the answer, he cannot set down the cause until publication has duly passed. By the passing of publication, in the sense here used, is only intended, that publication must have passed either by rule or by consent; and if it has been subsequently enlarged, it is no bar to the cause being set down, or to the Six Clerk giving a certificate of the regularity of the pleadings, and of publication having duly passed.

The plaintiff is bound to set down his cause for hearing in the term succeeding that in which he was compelled to enter his rules, that is, the third term after the order for the commission. To comply with this order, it is not sufficient merely to set down the cause, but the subpoena to hear judgment must be returnable and served in such third term. Where publication stands enlarged, pursuant to the 16th or 17th N. O., it is without prejudice to the plaintiff's right to set down his cause.(1)

*402] *In order to set down a cause, the plaintiff obtains the Six Clerk's certificate that the pleadings in the cause have been regularly filed, and publication duly passed; or if it is proposed to set down the cause on bill and answer, that the bill and answer are regularly filed.(2) This certificate will not be granted unless all the defendants within the jurisdiction have answered. The certifi

(1) 17 N. O.

(2) By Lord Coventry's 11th Order, 1635, a party desirous of setting down his cause was to attend the Six Clerk, that is, attorney in the cause, at least six days before the end of the term, that the Six Clerk might inform the Lord Keeper, or Master of the Rolls, at the time of setting down the cause, of the long or short dependence thereof, in court, &c. &c. Beam. Ord. 75.

cate is taken to the senior clerk of the registrar of that court, where it is proposed to be heard, and by him entered in a book kept for the purpose, whereupon he gives a note of the day on which the cause is fixed for hearing, which may be either in term time or vacation.(1) The Registrar does not give the note without the Six Clerk's certificate.(2)

A cause having been set down, and a subpoena to hear judgment issued before publication had passed, the subpœna was ordered to be quashed and the cause to be struck out of the paper.(3)[a] Where any cause, which is set down to be heard, either in the Court of the Lord Chancellor, or in the Court of the Master of the Rolls, is afterwards set down to be heard in the other of the said two courts, there the solicitor for the plaintiff is to certify the fact to the Registrar of the Court where the cause was first set down, who is to cause an entry thereof to be made in his book of causes, opposite to the name of such cause; and the solicitor for the plaintiff is allowed a fee of 6s. 8d. for so certifying the fact, if he shall certify the same within eight days after the said cause is so set down a second time.(4) Where any cause becomes abated, or is compromised after *the same is set down to [ *403 ] be heard in either of the said two courts, the solicitor for the plaintiff is also to certify the fact as the case may be, to the Registrar of the Court where the cause is so set down, who is in like manner to cause an entry thereof to be made in his cause book, and the solicitor for the plaintiff is to be allowed the same fee of 6s. 8d. for such certificate, if he certify the fact as soon as the same shall come to his knowledge.(5)

If a suit abates after it has been set down, and no answer is required to the bill of revivor, the service of the order to revive is sufficient, and it is not necessary, either that the original cause should be re-set down or that the revived suit should be brought to a hearing, and no new subpoena to hear judgment is required. If the

(1) 82 N. O.

(3) Ellis v. King, 4 Madd. 126.

(2) Beam. Ord. 46.
(4) 38 N. O.

(5) 39 N. O.

[a] A cause cannot be heard as to any of the defendants, until it is in readiness for hearing as to all. Vermillyea v. Odell, 4 Paige, 121.

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suit abates partially, as by the death of one of many defendants, and fresh parties are brought before the Court, such parties must be served with a subpoena to hear judgment, but the other defendants need not. If the abatement is general, and answers are required to the bill of revivor, the revived suit must be set down for hearing, and a subpoena to hear judgment served in that cause; but it is not necessary to serve fresh subpoenas to hear judgment in the original suit.(1)[a] The cases as reported do not bear out my propositions, which, however, are correct, and I think will be found to agree with the spirit of the cases.

The clerks in court, through the medium of the Six Clerks, have the privilege of setting down a certain number of causes at the third seal after each term, so that the solicitor, when he instructs his clerk in court to enter rules for him, may also direct him to set down the cause.

A cause cannot be set down (unless by consent) in the [ *404 ] *same term in which a rule to pass publication is given,(2) which decision appears founded on Order of 9th of July, 1725.(3) But a cause might be regularly set down, without consent, in the vacation after the term in which publication passed, to come on for hearing in the ensuing term.(4)

(1) See Bray v. Woodran, 6 Madd. 72, and see Cockburn v. Raphael, 4 Sim. 18. (2) Lord v. Genslin, 5 Madd. 83. (3) Beam. Ord. 335, and 319.

(4) Partridge v. Cann, 1 S. & S. 466.

[a] Where a person, claiming to be devisee of a deceased complainant who had filed a bill to redeem, obtained, on an ex parte motion, an order to revive the suit in her favour, it was held, that the defendant might, at the hearing, object that the suit was not legally revived. Douglass v. Sherman, 2 Paige, 358.

Where one of several complainants dies before hearing, the defendant, if he wish to terminate the suit, as to them, must either proceed to revive, or take some other step on his part to preclude their right, or wait until it is terminated by lapse of time. Probably, he may, on a proper application, be entitled to an order requiring the alleged heir at law to proceed within a limited time, if so advised, or be precluded. Ibid.; Pells v. Coon, 1 Hopk. 450.

If the defendants, who had answered before the complainant's death, appear to an order for reviving the suit in the names of his heirs, and so proceed to a hearing, it will do for a revivor as to them; but as to defendants who do not appear, such an attempt to revive will not be effectual. Roberts's Heirs v. Elliott's Heirs, 3 Monroe, 399.

Eng. Chan. Reps. vi. 10.

Eng. Chan. Reps. i. 238.