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his clerk in court, upon the admission in his answer.[a] In such a case the order should contain a direction for the clerk in court to attend with them at the examiner's, and at the hearing of the cause. If the plaintiff has papers, &c., in his possession, he should be served with a notice to produce them. Where, from the nature of the proceedings, the party must know that the contents of a written instrument in his possession will come into question, it is not necessary to give any notice for its production; as where a letter is referred to in the depositions as in the possession of one party, the draft may be proved if the original is not forthcoming.(1)

The order is only granted on the application of the party who is to make use of the exhibits, and there is no instance where it is allowed on the application of the contrary party.(2) Permission to exhibit an interrogatory as to the loss of a deed omitted to be proved by mistake was given to the plaintiff at the hearing, under the circumstances. A document which is stated in the bill, and which the answer admits and refers to, cannot be read from the bill at the hearing, but must be produced. (3) A cross bill filed for a discovery and taken pro confesso, was ordered on motion to be read at the hearing of the original cause.(4) If it is necessary to produce an original will at the hearing, the proper officer attends upon the payment of his fees, without an order, which in case of refusal would be necessary. An order was made on the registrar of an ecclesiastical court to deliver an original will to be produced in this Court on security given to return it.(5)

(1) Wood v. Strickland, 2 Mer. 461.
(2) Graves v. Budgel, 1 Atk. 444.
(4) Cory v. Gertcken, 2 Madd. 43.

(3) Cox v. Allingham, 1 Jacob, 337.
(5) Lake v. Causefield, 3 Bro. C. C. 263.

[a] The American cases on the subject of the production of papers, are collected in the notes to Vol. 2, p. 155-157.

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CHAPTER XLII.

DECREE NISI.

Ir has been shown, that if the defendant makes default by not appearing at the hearing of the cause, upon producing an affidavit of the service of the subpoena to hear judgment upon his clerk in court, the plaintiff is entitled to a decree nisi which he may have drawn up in such terms as he can abide by, so far as the same are consistent with the pleadings.(1)

The decree nisi recites the service of the subpoena to hear judgment and the non-apearance of the defendant, and concludes, "And this decree is to be binding upon the said defendant unless the defendant, upon being served with a subpoena to show cause against the same, shall, at the return thereof, show unto this court good cause to the contrary, but before the said defendant is to be admitted to show such cause, he is to pay the plaintiff his costs of this day's default, to be taxed by the Master in rotation."

This decree is passed and entered in the usual manner, and the plaintiff obtains a subpoena to show cause against the decree, which is prepared in the manner directed by the General Orders of 1833. In the blank left in the form of the subpoena, for the number of days for the defendant [ *417 ] *to show cause, must be inserted "eight," the defendant by the practice being allowed eight days after service to show cause. The subpoena is served either personally on the defendant, or by leaving a copy of the subpoena with the endorsement thereon, with one of his family or servants at the dwelling-house of the said defendant, and at the same time producing the said subpœna.

On an affidavit of the service of the subpoena to show cause, and on the registrar's certificate of no cause shown, it is a motion of course to make the decree absolute.

(1) Bee Beam. Ord. 198.

The order absolute recites the mandatory part of the decree nisi, the service of the subpoena to show cause, and that no cause has been shown, and then orders that the decree may be made absolute. Upon a decree taken by default of the defendant at the hearing, the evidence is not to be entered as read.(1) If there are many defendants, and one makes default, the decree is drawn up absolutely as to those appearing at the hearing, and contains a clause nisi as to the defendant not appearing.

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CHAPTER XLIII.

TO SHOW CAUSE AGAINST A DECREE NISI.

Ir a defendant has neglected to appear at the hearing of the cause, and upon being served with a subpoena to show cause against the decree, is desirous of being heard, he presents a petition as of course, "that the cause may be set down to be heard before (insert Judge before whom the cause was heard), in order for the petitioner to show cause against the decree in this cause, dated the

day of next after the causes, further directions and exceptions already appointed." The petition is granted upon the terms of the petitioner paying the costs(1) of his default. By one of Lord Clarendon's Orders, it is ordered "that such defendant, upon his showing cause, shall first produce a certificate from the plaintiff's attorney in court, that he has paid the costs, or affidavit of the tender and refusal thereof.(2) In the case next cited, the Court said the order must be to set down the cause on some day immediately, and not next after the causes already set down.(3) But such are not the terms upon which orders are drawn up, the direction being "next after the causes, &c., already appointed," although after the declaration of the Court,(3) the order ought to be so framed. In Hulme v. Hulme, 28th February, 1831, on a motion as of course by the plaintiffs, an order was made [ *419 ] to *advance a cause set down after a decree nisi by defendants, who had undertaken to show cause. The Registrar, on being satisfied of the payment of the costs of default, at the instance of the defendant, sets down the cause, which is heard in its regular course.

An infant defendant has usually six months after he comes of age to show cause against a decree.[a] In the case next cited, it is said infants are bound by decrees

(1) The costs of default are all the costs of proceedings rendered unavailing, or made necessary, or otherwise incurred in consequence of such default.

(2) Beam. Ord. 198.

[a] See ante, 105, note.

(3) Marg. of Anspach v. Noel, 19 Ves. 573.

taken by consent, if the decree is made, but it is usual to refer it to the Master to see if the decree be for their benefit.(1) An infant is bound by a decree in a cause where he is plaintiff as much as a person of full age.(2)[b] Where there is a decree nisi causâ against an infant, on such infant coming of age and before the decree is made absolute, he may put in a new answer;(3) and make a defence, and examine witnesses anew.(4) An infant aggrieved by a decree is not bound to stay till he is of age, but may apply as soon as he thinks fit to reverse it; and may do it, either by bill of review, re-hearing, or by original bill, alleging specially the errors in the former decree.(5)

It appears from the above cases that it is as of course to grant the infant permission to put in a new answer. Where a decree has been made against an infant defendant, who put in the common answer by his guardian, the general rule is, that such defendant on coming of age, has the privilege of putting in a new answer, stating a different case,[c] and of going into evidence in support of that case, but the privilege does not extend to a foreclosure suit.(6)[d]

(1) Wall v. Bushby, 1 Bro. C. C. 484.
(3) Fountain v. Caine, 1 P. W. 504.
(5) Richmond v. Tayleur, 1 P. W. 736.

(2) Gregory v. Molesworth, 3 Atk. 625. (4) Napier v. Effingham, 2 P. W. 400. (6) Kelsall v. Kelsall, 2 M. & K. 409.

[b] Williamson v. Johnston, 4 Monroe, 255; Jameson v. Moseley, 4 Monroe, 416. [c] Winston v. Campbell, 4 Hen. & Munf. 477.

[d] See ante, 105, note.

Eng. Chan. Reps. viii. 58.

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