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Proceedings of the Court of Chancery, 1669-1679
Volume 51, Preface 30   View pdf image (33K)
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         xxx          Introduction to the Legal Procedure.

         miles of London, where the Chancery Office was situated, his answer would be
         taken under oath before one of the masters in Chancery there. If he lived
         farther off, his answer might be taken before other persons near him, under
         the authority of a special commission for the purpose, or of a dedimus potesla-
         tern, a writ empowering persons for the purpose. The Chancery Court in Mary-
         land is here seen issuing these writs of dedimus potestatem and commissions, but
         what distance from St. Mary's entitled a defendant to the convenience is not
           When an answer had been filed, a complainant might find the whole case pre-
         sented in a manner satisfactory to him, or, at least, leaving him nothing to add,
         and he could submit the controversy for hearing and decision on his bill and the
         answer, the allegations of the answer being accepted by him. Otherwise the
         complainant would file replication denying the answer, and the defendant
         might file a rejoinder to anything set up in a replication; and testimony of wit-
         nesses would be required to settle their differences. Instead of taking the testi-
         mony by the processes of the Chancery Court the Chancellor might refer a
         question of fact to the consideration and verdict of a jury in a common law
         court, to be returned to the Court of Chancery for its further action. By the
         Chancery Court's own processes, testimony was obtained by means of written
         interrogatories prepared by attorneys, and by persons specially commissioned
         by the court for taking the answers of the witnesses under oath. As in many
         instances here, the commissioners would file their report, or return, of the
         interrogatories and the respective answers, and when all the testimony to be
         taken had been returned, the case would then be declared by the court ready for
         publication, which meant that the testimony as a whole would be made public,
         and copies supplied if demanded. Publication implied a closing of the case
         on the testimony. In this a wide difference from the method of common law
         courts will be observed. It was not the practice in Chancery to have witnesses
         give their testimony orally in open court; cases were heard there on papers
         only. Not until 1896, in Maryland, was it permissible to examine witnesses in
         open court in Chancery cases.
           For the making up of any accounts to be settled for the purpose of the deci-
         sions the court made use of specially appointed auditors or masters, as Chancery
         Courts do to-day. When these special officers returned their accounts, the parties
         in interest could contest their conclusions by filing and arguing exceptions.
           The orders which were passed during the course of the litigation subse-
         quent to the complainant's reply to an answer, and before final decree, were
         various, and most of them will probably be sufficiently well understood without
         explanation. The capias referred to was an order to a sheriff to seize the body
         of a person named, and was an attachment of the body. The meaning of the
         sheriff's return to cepi, I have taken, will be obvious on a slight acquaintance
         with Latin.
           Instances of a writ ne exeat provinciam, one of frequent use, will be noticed.
         It was the writ of ne exeat regnum of England, and was issued in the province
         to prevent escape or departure from the jurisdiction, except upon security given
         to appear and answer, of a person against whom rights might be asserted
         in the courts.

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Proceedings of the Court of Chancery, 1669-1679
Volume 51, Preface 30   View pdf image (33K)
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