LINGAN v. HENDERSON. 245

6th Cross Interr. From your knowledge of the land when Mr.
Henderson moved on it, could there be any reasonable prospect of
ever paying for it from its products ?

Answer. That he cannot say from his knowledge of the land
whether there was or was not a reasonable prospect, when Mr.
Henderson moved on it, of paying for it from its products; he
thought the land was good land for that part of the country; it
required improvement before it could be cultivated to advantage.

After the examination of the witness was thus closed, the soli-
citor of the defendants filed with the commissioners the following
objection: " On the part of the defendants so much of Mr. Wa-
ringys deposition as goes to prove, by the parol declarations of John
Henderson deceased, any promise or acknowledgment concerning
the purchase money of the land in question; especially in so far
as it goes to contradict or explain the receipt of J. M. Lingan on
the deed for the purchase money; or the complainant's exhihit A,
referred to in said deposition, (purporting to be said John Hender-
son's receipt for the deed, dated June 10th, 1807,) is objected to as
inadmissible, as well under the particular provisions of the statute
of frauds, as the general rules of evidence, by which evidence to
contradict or vary a written instrument is excluded."

The commission, with this testimony and these objections, were
returned and filed on the 12th of July, 1824. Some time after
which the plaintiffs by their petition stated, that they had by mis-
take alleged in their bill, that all the defendants were non-residents,
when in truth the defendant Richard Henderson always has been,
and is now a resident of Montgomery county in this State.
Whereupon they asked leave so to amend their bill as to pray
process of subpaena against him.

16th January, 1826.—BLAND, Chancellor.—An order of publi-
cation, such as that prayed for by the bill of these plaintiffs, is
allowed by the acts of assembly only as a substitute for a subpaena
in certain specified cases, which are thus made exceptions to the
general rule, which requires, that the regular process of the court
should be prayed for and issued against all who are to be called in
as parties and defendants to the suit. Hence it must appear upon
the face of the bill, that the case is of such a nature as to autho-
rize an order of publication warning a resident defendant to appear,
or it must be expressly stated in the bill, that the parties therein
named do not reside within the State, so as thereby to lay a proper
foundation for praying for an order of publication warning them to