evidence, the counsel for the prosecution shall be allowed to address the jury a second time in support of his case, for the purpose of summing up the evidence against such prisoner or prisoners, defendant or defendants; and upon every trial for felony or misdemeanor, whether the prisoners or defendants, or any of them, shall be defended by counsel or not, each or every such prisoner or defendant, or his or their counsel respectively, shall be allowed, if he or they shall think fit, to open his or their cases respectively; and after the conclusion of such opening or of all such openings, if more than one, such prisoner or prisoners, or defendant or defendants, or their counsel, shall be entitled to examine such witnesses as he or they may think fit, and when all the evidence is concluded, to sum up the evidence respectively; and the right of reply, and practice and course of proceedings, save as hereby altered shall be as at present."

By sect. 9, the word "counsel" is construed to apply to attorneys in all cases where attorneys are allowed by law or by the practice of any court to appear as advocates.

CHAPTER III.

ON EVIDENCE IN CHANCERY.

It is desired in the present chapter to supplement the information which may be gathered from the preceding pages relative to the principles and practice of the law of evidence in Courts of Chancery.

The rules of evidence in general are the same in equity as at law (a); for, according to Lord Hardwicke, "it would be of mischievous consequence to lay down a different rule of evidence in equity from what it would be at law" (b). Still, as we have seen before, there are cases in which Courts of Equity, for obvious reasons, require stricter proof than Courts of Law; as, for example, in pecuniary demands, when made against the estate of a deceased person (c); and in countervailing, under certain circumstances, the denial of a fact by a defendant (d). While, on the other hand, it cannot be denied that the modern tendency of the equity judges is towards great laxity in letting in what may not be evidence in the strictest sense of the word. Where a judge is sitting alone, less danger arises from this practice, as he will not be so likely to be unduly influenced by it; but where a question of fact is being tried by a jury before an equity judge,

(a) Manning v. Lechmere, 1 Atk. 453.

(b) Glyn v. Bank of England, 2 Ves. sen. 41.
(c) Supra, p. 50.

(d) Ibid.

the admission of evidence, which would be excluded at law, is unjustifiable.

A cause is sometimes, though rarely, heard upon bill and answer alone. This occurs when the plaintiff finds upon the face of the answer sufficient ground for a final order or decree, and sets down the case accordingly. Under these circumstances, no evidence can be gone into by either party, unless it be matter of record or proveable by the record; but exhibits, it seems, may be proved at the hearing, in the ordinary way (e). The plaintiff may use against the defendant (1) so much of the bill as is admitted by the answer; (2) the answer itself, which however is not conclusive on the court (ƒ); (3) exhibits proved at the hearing. The defendant may use against the plaintiff (1) the bill; (2) the answer; (3) exhibits.

The mode most frequently adopted by the plaintiff is to give notice of motion for decree under sect. 15 of 15 & 16 Vict. c. 86. The plaintiff on motion for decree may use against the defendant (1) the answers, but the answer of one defendant cannot be used against another defendant without notice (g); (2) such parts of the bill as are admitted by the answer; (3) his own answer to interrogatories filed by the defendant upon giving notice; (4) such affidavits as are filed in the suit at any time before notice of motion for decree is given, a list thereof being attached to the notice; (5) such affidavits as are filed within a limited time in reply to the defendant's affidavits; (6) depositions

(e) Rowland v. Sturgis, 2 Hare, 510.
(f) Stanton v. Perceval, 3 W. R. 393.
(g) Stephens v. Heathcote, 1 Dr. & Sm. 138.

of his own witnesses subpoenaed for examination before an examiner in the presence of the opposite party who may cross-examine (h); (7) depositions of the defendant cross-examined on his answer (i), or of any of the defendants' witnesses cross-examined on their affidavits (j) before an examiner; (8) depositions of aged, infirm and absent witnesses, taken before an examiner, under the 11th Rule of the Order of 5th February, 1861; (9) depositions taken before a commission under 15 & 16 Vict. c. 86, s. 28; (10) depositions taken in a suit to perpetuate testimony; (11) documents proved as exhibits at the hearing (k); (12) documents admitted under 21 & 22 Vict. c. 27, s. 7; (13) depositions and affidavits in another suit, between the same parties on the same issue (7).

The defendant may use against the plaintiff (1) the bill; (2) his own answer, provided he gives notice to the plaintiff, or the plaintiff reads it as part of his case; (3) the answer of the plaintiff to interrogatories filed by him; (4) the answer of a co-defendant, provided he gives notice to the plaintiff (m); (5) affidavits filed within a limited time; (6) depositions of his own witnesses subpoenaed for examination before an examiner, in the presence of the opposite party, who may cross-examine; (7) depositions of a co-defendant cross-examined before an examiner on his

(h) The Court has power to order the cross-examination to take place at the hearing under the 39th section of 15 & 16 Vict. c. 86.

(i) Rehden v. Wesley, 26 Beav. 432.

(j) Cf. supra, p. 401.

(k) Woodburn v. Grant, 22 Beav. 487.

(1) Cf. supra, pp. 187, 189.

(m) Lord v. Colvin, 3 Drew. 222.

answer which the plaintiff proposes to read (n); (8) depositions of the plaintiff's witnesses who have made affidavits taken on cross-examination before an examiner; (9) depositions of aged, infirm, and absent witnesses, taken before an examiner, under the 11th Rule of the Order of 5th February, 1861; (10) depositions taken before a commission under 15 & 16 Vict. c. 86, s. 28 (11) depositions taken in a suit to perpetuate testimony; (12) documents proved as exhibits at the hearing; (13) documents admitted under 21 & 22 Vict. c. 27, s. 7; (14) depositions and affidavits in another suit between the same parties on the same issue.

Or the plaintiff may "join issue," that is, file a replication to the defendant's answer. In such a case, either plaintiff or defendant may apply, under the 3rd Rule of the Order of 5th of February, 1861, to have the evidence in chief as to any facts or issues taken orally at the hearing. Then the evidence is taken as in a trial at Nisi Prius. If no such order is applied for, or if the application is refused, the plaintiff, when the cause comes on for hearing, may use against the defendant (1) such portions of the bill as are admitted or corroborated by the answer; (2) the answer; (3) his own answer to interrogatories filed by the defendant, verified by the usual short affidavit; (4) affidavits filed within a limited time; (5) depositions of his own witnesses (o), taken ex parte before an examiner; (6) cross-examinations before the court at the hearing of the defendant on the statements in his answer verified by the usual short affidavit, and of

(n) Dawkins v. Mortan, 1 J. & H. 339.

(o) If the witnesses are unwilling they are subpoenaed and treated as hostile in examination.