Twelve causes are now usually put into the prayer or list for each day appointed for hearing causes. It appears, in 1636, only four causes were appointed for each day, and that causes having got into arrear on account of the plague, Lord Coventry "doth purpose, (God willing.) though it may prove the more labour and trouble unto his lordship, to hear six causes."(1)

This court will not grant a private hearing, except by the consent of both parties.(2) The defendant has no right to object to a cause being heard at any time after it has been set down for a hearing, it being in the discretion of the Court to direct a cause to be advanced upon a sufficient allegation.(3) A plaintiff cannot put off the cause for defect of parties, without consent or a special ground, as that he was not aware of the existence of such parties.(4)

Where the subject of a suit has been disposed of out of court, the Court will not hear the cause merely for the [ *411 ] *purpose of disposing of the costs.(5)[a] A party is bound by the consent of his counsel given in court, though such counsel had no instructions to consent, if he was at the time apprised of all those facts, of which the knowledge was essential to the proper exercise of his discretion, but the party will be relieved from an order made by such consent, if the counsel give that consent in ignorance of material circumstances.(6)[b]

(1) Beam. Ord. 90.

(3) Hoyle v. Livesey, 1 Mer. 381.
(5) Roberts v. Roberts, 1 S. & S. 39.

(2) Re Lord Portsmouth, Coop. 106.
(4) Innes v. Jackson, 16 Ves. 356.
(6) Furnival v. Bogle, 4 Russ. 142.

[a] Gibson v. Lord Cranley, Mad. & Geld. 365; Eastburn v. Downes, 2 Johns. Ch. Rep. 317; Stewart v. Ellice, 2 Paige, 604.

And where a final decree is silent as to costs, they are lost, and cannot afterwards be ordered to be paid, unless, on a rehcaring, the decree be opened for that purpose. Travis v. Waters, 1 Johns. Ch. Rep. 85; S. C., on appeal, 12 Johns. 500.

[b] Downing v. Cage, Eq. Abr. 165; Bernal v. Donegal, 3 Dow's P. C. 146; Washington Ins. Co. v. Slee, N. Y. Chan. cited 1 Hoff. Ch. Prac. 27; Corning v. Cooper, 7 Paige, 587. Where, upon the hearing of a cause, the counsel for the defendants abandoned the defence, after hearing the opening argument in behalf of the complainants, the Court refused to grant a rehearing, upon the ordinary certificate of counsel. To obtain a rehearing, under such circumstances, the defendants will be required to show a violation of duty on the part of their counsel, or that he had clearly mistaken the law or the facts. Decarters v. La Farge, 1 Paige, 574.

The Court has power, even after enrolment, to open a regular decree, obtained by default, and to discharge the enrolment, for the purpose of giving the defendant an opportunity to make a defence on the merits, where he has been deprived of such defence, either by mistake or accident, or by the negligence of his solicitor. Millspaugh v. M'Bride, 7 Paige, 509. See 1 Hoff. Ch. Prac. 561.

Eng. Chan. Reps. i. 20.

Eng. Chan. Reps. iii. 603.

An objection may be taken at the hearing for want of parties.(1) But the Court will not dismiss a bill on this ground, as was attempted by Sir Joseph Jekyll, but will allow the cause to stand over with liberty to amend.(2)[c] The plaintiff usually is ordered to pay the defendant the costs of the day; but if the defendant has not raised the objection of want of parties, by his answer, the present practice appears not to allow him such costs.(3)[d] When a cause which stands for hearing is called on to be heard, but cannot be decided by reason of a want of parties, or other defect on the part of the plaintiff, and is therefore struck out of the paper, if the same cause is again set down, the defendant or defendants is to be allowed the taxed costs occasioned by the first setting down, although he or they do not obtain the costs of the suit.(4)

Where a cause, being in the paper for hearing, is ordered to be adjourned upon payment of the costs of the day, there the party to pay the same, whether before the Lord High Chancellor, the Master of the Rolls, or the Vice Chancellor, is to pay the sum of 107. unless the Court shall make other order to the contrary.(5)

*Whenever, upon the hearing of any cause or [ *412 ] other matter, it shall appear that the same cannot conveniently proceed, by reason of the solicitor for any party having neglected to attend personally, or by some proper person on his behalf, or having omitted to deliver any paper necessary for the use of the Court, and which according to its practice ought to have been delivered, such solicitor, is personally to pay to all or any of the parties such costs as the Court shall think fit to award.(6)

When the cause is called on, the plaintiff's junior counsel upon the bill, and the defendant's counsel the answer; the plaintiff's counsel then argues the case, after which the plaintiff's evidence is read, the defendant's counsel then addresses the Court and reads his evidence ; after which the plaintiff's senior counsel is at liberty to reply the Judge then delivers his judgment. The parties should be careful that the Registrar enters the evidence

(1) Darwent v. Walton, 2 Atk. 510. (3) Mitchell v. Bailey, 3 Mad. 61.

(2) Jones v. Jones, 3 Atk. 110. (4) 34 N. O. (5) 35 N. O. (6) 36 N. O.

[c] For a full examination of the American cases on this subject, see ante, 293, note. [d] In a later case, costs were, in such case, allowed. Lowry v. Fulton, 9 Sim. 104.

which is read, or if any is excluded, that he enters a note to that effect.

By the Order of 18th June, 1686, the clerks in court, on either side, are ordered to attend all hearing of causes before the Master of the Rolls,(1) but by the 37 N. O. they are not entitled to receive any fee for attendance in court, except in cases where they shall actually attend; and where their attendance shall be necessary.

If, on the cause coming on, the defendant does not appear, the plaintiff on producing in court an affidavit of the service of the subpoena to hear judgment, is entitled to a decree nisi; if the plaintiff is not prepared with the affidavit, and cannot produce the same before the rising of the Court, the cause will be struck out of the paper. When the practice of the Court required the subpoena to [*413] be personally *served, it was very customary for the defendant's solicitor to accept service of subpoena for his client, and give an undertaking to appear. Where the plaintiff's solicitor has neglected to serve the subpœna within the time required, this undertaking is now sometimes given. If, however, the defendant does not perform what his solicitor has undertaken, the plaintiff is not entitled to a decree by default, and his cause will be struck out. His only remedy is a motion against the defendant's solicitor to pay the costs occasioned by the defendant's not appearing on the hearing of the cause pursuant to his undertaking, and the costs of the application, which motion will be ordered.(2)

If the plaintiff does not appear, the defendant, on producing in court, before the rising of the Court, an affidavit of having been served with the subpoena to hear judgment, is entitled to have the bill dismissed, as against him with costs; this affidavit is usually made by the clerk or agent of the clerk in court, on whom the subpoena to hear judgment was served pursuant to the 20 N. O.

After the cause has been set down, if the parties are amicable, the same may be heard by consent upon one of the days appointed by the Court for the purpose. If the parties cannot agree to take a decree by consent, but are anxious to have the cause disposed of, and only a short

(1) Beam. Ord. 268.

(2) Cook v. Bromhead, 16 Ves. 134. Ellis v. King, 5 Madd. 21.

point is involved, the cause may be heard as a short cause. No cause can be set down to be heard as a short cause without the certificate of the counsel of the plaintiff and defendant, or the certificate of the counsel for the plaintiff, with the consent of the solicitor for the defendant. If the parties agree to hear the cause by consent, or as a short cause, it is entered in the paper by the secretary of the Judge before whom it is set down.

*If a plaintiff has proved a document in a defen- [ *414 ] dant's possession, the latter must produce it at the hearing, although he has not been served with an order to that effect.(1)

(1) Wheat v. Graham,a 7 Sim. 61.

Eng. Chan. Reps. ix. 479.

CHAPTER XLI.

TO PROVE VIVA VOCE AT THE HEARING.

Ir a party is desirous of proving deeds, &c., viva voce at the hearing, or of reading an answer, or depositions, or other proceedings taken in another suit, but between the same parties, he may procure an order as of course[a] for liberty to do so, saving all just exception. A copy of the order must be served on the clerk in court of the opposite party at least two days before the hearing. The attendance of the witness is compelled by the service of a subpœna duces tecum.[b] The witness attends at the hearing of the cause, and the letters or deeds are marked as exhibits by the registrar, who is entitled to a fee of 2s. 6d. for each exhibit produced.

Nothing can be proved viva voce that requires more than the proof of handwriting, or that admits of cross-examination.(1)[c] The Court never orders a will to be proved viva voce at the hearing, as they do a deed.(2) Where a defendant by answer insists that a covenant in a deed was inserted without his knowledge, and that the same was not read over, and imputes fraud, the deed cannot be proved viva voce at the hearing.(3)

[ *415] *If a defendant has deeds in his possession, it is usual to procure an order for them to be deposited with

(1) Lake v. Skinner, 1 J. & W. 15. Pomfret v. Windsor, 2 Ves. 479. Graves v. Budgel, 1 Atk. 443.

(2) Harris v. Ingledew, 3 P. W. 93.

(3) Barfield v. Kelly, 4 Russ. 355.

[a] According to the practice in Virginia, and in New York, permission to prove documents at the hearing, must be upon special application, founded on notice to the opposite party. Emerson v. Berkley, 4 Hen. & Munf. 441; Barrow v. Rhinelander, 1 Johns. Ch. Rep. 559. 1 Hoff. Ch. Prac. 490; Consequa v. Fanning, 2 Johns. Ch. Rep. 483. A party may, on a special application, obtain an order to prove viva voce, at a re-hearing, documents which were not in evidence at the former hearing; but he must pay the costs of the application. Higgins v. Mills, 5 Russ. 287.

[b] See ante, 380, note [b].

[c] Letters and papers of any class may be proved, as to the handwriting, viva voce; and the witness cannot be cross-examined, at the hearing; but if there be any doubt, an opportunity may be given by the court, to see if he has sworn truly. Ellis v. Deane, 3 Malloy, 63. See Hughes v. Phelps, 3 Bibb, 199; see ante, 339, note [a].

Eng. Chan. Reps. iii. 703.