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Demurrers.

Motion to dismiss.

Costs.

Answer.

Testimony.

Testimony.

Testimony.

Testimony.

Depositions.

Defaults.

Briefs.

and subscribed by the defendant, before such commissioners, or one of them, and so certified by him or them. Where an affidavit to the bill or petition of a party residing out of the state is necessary, it may be taken and certified in like manner. The answer of a foreign corporation taken according to law, may be certified by commissioners appointed in like manner.

6. All demurrers shall state the matters of objection to the bill. If a demurrer be overruled, the defendant shall forthwith put in a full and sufficient answer.

7. A defendant may at any time move to dismiss a bill, or to dissolve an injunction, for want of equity. When exceptions to an answer for insufficiency have been filed and disallowed, the injunction shall thereby be dissolved without motion or further argument.

8. The unsuccessful party in a demurrer to a bill, exceptions to an answer, motion to dismiss a bill, or to dissolve an injunction, shall pay the costs thereof, unless the court shall otherwise order.

9. When a hearing is brought on by consent on bill and answer, the answer shall be taken as true.

10. The testimony of witnesses shall be written in presence of the commissioners. A solicitor for either party shall not be a commissioner, or write the deposition.

11. Testimony de bene esse may be taken before answer filed, if the complainant make affidavit that the proof of a material fact depends on the testimony of the witness, or that the witness is aged or very infirm, or about to remove from the state, and give notice as in other cases. If the emergency is such as will not admit of delay, the court or clerk may appoint the time of taking and the notice to be given.

12. The complainant in a bill of interpleader, intending to take testimony, must give notice to all the parties required to interplead.

13. Testimony taken by interrogatories and cross interrogatories, fully answered, may be used by either party. Where a party, having had an opportunity to cross-examine, fails so to do, he shall not afterwards have a commission to examine the same witness on the same points, unless by special order of the court, or of a judge in vacation; nor shall a re-examination of a witness as to the same points be allowed, unless by order of the court, and on special shewing.

14. Depositions shall be sealed up with the commission by the commissioners, with the name of the cause indorsed on the envelope, and the packet shall be directed to the clerk. The publication of any deposition must be by order on the minutes of the court, or by consent in writing, signed by the parties or their counsel.

15. When a cause is called for hearing, if the complainant does not appear, it shall be dismissed: if he appear, and the defendant does not, it shall be heard and a decree rendered according to the claim and proof. Either party on timely application, may set aside his default on such term as the court shall impose.

16. At the hearing of every cause the complainant's counsel shall furnish to the court a brief, containing a succinct statement

of the material facts stated in the bill, answer, exhibits and testimony; the points raised, and the authorities on which he intends to rely. If he fail to furnish such brief, he shall not be heard in argument.

17. A final decree should be called in question, before the Review of final court rendering it, by bill of review only; and shall never be decrec. impeached by original bill, unless on the ground of fraud.

18. The clerk shall keep a rule book, in which the solicitors Rule book. shall respectively enter ail motions for re-hearing, and motions to set aside orders or decrees made for want of answer. The motion for re-hearing must be made at the same term at which the decree is rendered. A defendant must, at the time of entering a motion to set aside an order or decree made on his default, file with the clerk a full and sufficient answer.

Re-hearing.

19. Any bill for discovery, in aid of a claim or defence at Bills for discolaw, being ancillary to the common law proceeding, shall be filed very. therewith, and disposed of when the case at law is called.

20. Where a suit at law and a bill in chancery are instituted Election of for the same claim or demand, the defendant, on suggestion suits. supported by affidavit, may move the court to inspect the records, and if it appear that the two suits are for one and the same cause of action, it shall be ordered that the plaintiff elect in which he will proceed, and that he dismiss the other,

in new parties.

21. In cases which may be revived by scire facias, on sug- Sci. fa. to bring gestion of the adverse party to the clerk in vacation, he may issue a scire facias to bring in as parties the representatives of such as may have died pending the suit.

22. The sessions of the clerk as master in chancery, shall be Sessions of held at his office, unless by consent of parties he appoint a dif- master. ferent place. He shall determine as to the time and duration thereof, and issue all notices to the parties interested in his investigations.

23. Exceptions to testimony admitted by the master, must be Exceptions to taken before him, and certified in his report. If not so taken, testimony. the exception is waived.

24. The clerk shall conduct all sales made under decree of Sales by masthe court, unless the decree otherwise direct, and the court ter.

shall fix his compensation therefor.

of chan

25. The rules of practice of chancery in England, so far as consistent with the laws of this state, and the rules made undery in Engthem, shall be in force in cases not provided for in these land.

rules.

26. Ordered, That the tenth rule, relating to chancery prac- Mode of taking tice, be abolished, and in lieu thereof, hereafter, depositions in testimony 'in chancery causes shall be taken by either party, upon chancery cases. commission; and such reasonable notice as to time and place of taking the same, as the clerk or chancellor shall prescribe.

27. Ordered, That in chancery causes, either party desiring Ibid. to take the evidence of witnesses, may do so, as now provided, by deposition; or may take the same by filing interrogatories with the register, or serving a copy on the adverse party, and giving ten days previous notice of the time when the commis

sion will issue, so that cross-interrogatories may be filed: Provided, That where there has been no cross-examination, or where the evidence shall have been taken upon interrogatories and cross-interrogatories, the opposite party shall have the right to a commission to examine again the said witness hy deposition, at his own costs, ten days notice of the time and place being given to the adverse party.*

* Adopted June term, 1839.

JUDGES OF THE SUPREME COURT

DURING THE PERIOD OF THE DECISIONS CONTAINED IN THIS DIGEST.

ABNER S. LIPSCOMB, appointed on the 18th December, 1833. CLEMENT C. CLAY, who was appointed in May, 1820, and resigned 18th December, 1823. (

REUBEN SAFFOLD, commissioned 16th December, 1819.
HENRY Y. WEBB,

RICHARD ELLIS,

do.
do.

do.

do.

died Sept., 1823.

ANDERSON CRENSHAW, elected 14th December, 1821. HENRY MINOR, appointed by Governor, 25th September, 1823, to fill vacancy occasioned by death of Judge Webb. JOHN GAYLE, JUN., elected 16th December, 1823.

}

At the new Election, on 27th December, 1825, according to the 3d section 5th article of the Constitution, were elected and commissioned

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SION L. PERRY, elected 9th January, 1828, Judge of the 7th cir

cuit, which was then created, HENRY W. COLLIER, elected to 3d circuit, vice John Gayle resigned.

On the re-organization of the Supreme Court, in 1832, were elected

ABNER S. LIPSCOMB, Chief Justice.

REUBEN SAFFOLD, Associate Justices.
JOHN M. TAYLOR,

HARRY I. THORNTON, elected in 1834, vice John M. Taylor, resigned.

HENRY HITCHCOCK, elected in 1835, vice Abner S. Lipscomb,

resigned. J

ARTHUR F. HOPKINS, elected in 1835, vice Harry I. Thornton,

resigned.

HENRY W. COLLIER, elected in 1836, vice Reuben Saffold, re

signed.

HENRY GOLDTHWAITE, elected in 1836, vice Henry Hitchcock,

resigned.

JOHN J. ORMOND, elected 14th June, 1837, vice Arthur F. Hopkins, resigned.

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